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 Case4:09-cv-05796-CW Document7 Filed02/16/10 Page1 of 10

United States District Court For the Northern District of California

1

2

IN THE UNITED STATES DISTRICT COURT

3

FOR THE NORTHERN DISTRICT OF CALIFORNIA

4

5 TODD ASHKER and DANNY TROXELL,

6

Plaintiffs,

7

v.

8 ARNOLD SCHWARZENEGGER, MATHEW CATE,

9

RODERICK HICKMAN, JEANNE WOODFORD, JOE MCGRATH, RICHARD KIRKLAND, ROBERT

10

HOTEL, FRANCISCO JACQUES, WILLIAM BARLOW, R.L. JOHNSON, D.W. BRADBURY,

11

J. MCKINNEY, ROBERT MARQUEZ, R. RICE, JOHN HARRISON, B. THORNTON, G.H.

12

WISE, A. HERNANDEZ, ROBERT DOYLE, SUSAN FISHER, ROBERT HARMON, HOLLIS

13 GILLINGHAM, D. SMITH, and S. TUCKER,

No. C 09-05796 CW
ORDER DENYING APPLICATIONS TO PROCEED IN FORMA PAUPERIS, SCREENING COMPLAINT PURSUANT TO 28 U.S.C. § 1915A AND DISMISSING COMPLAINT WITH LEAVE TO AMEND

14

Defendants.

/

15

16

17

18

Plaintiffs Todd Ashker and Danny Troxell, state prisoners who

19 are incarcerated in the Secured Housing Unit (SHU) at Pelican Bay

20 State Prison (PBSP), have filed this civil rights action under 42

21 U.S.C. § 1983 seeking injunctive relief and damages. They have

22 also filed applications seeking to proceed in forma pauperis (IFP).

23 Ordinarily, a plaintiff is permitted to file a civil action in

24 federal court without prepayment of fees or security if he

25 makes affidavit that he is unable to pay such fees or give

26 security therefor. 28 U.S.C. § 1915(a). A review of

27 Plaintiffs' affidavits and financial records indicate that Mr.

28 Ashker is able to pay the filing fee and Mr. Troxell is not able

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page2 of 10

United States District Court For the Northern District of California

1 to do so. Therefore, IFP status is denied; Mr. Ashker is required

2 to pay the $350 filing fee and to serve the complaint. If Mr.

3 Ashker does not pay the filing fee within thirty days from the date

4 of this order, his claims will be dismissed and Mr. Troxell's

5 application to proceed IFP will be considered. As discussed below,

6 Plaintiffs' complaint is deficient for other reasons.

7

Defendants are state employees “responsible for the policies,

8 practices and procedures by which California operates the prison

9 system, including inmate care and well being, classifications and

10 rehabilitative programming opportunities; as well as life parole

11 policies, practices and procedures.” Comp. ¶ 4. This case is

12 related to two previous cases, Ashker and Troxell v. Schwarzenegger

13 et al., C 04-1967 CW (2004 case) and Ashker and Troxell v.

14 Schwarzenegger et al., C 05-3286 CW (2005 case). The Court reviews

15 the complaint in accordance with 28 U.S.C. § 1915A.

16

The factual allegations in this complaint are similar to the

17 facts set out in the Court’s orders in the 2004 and 2005 cases and

18 are incorporated herein. See 2004 case, Docket ## 11, 30, 68; 2005

19 case, Docket ## 14, 140 and 336. In the instant complaint,

20 Plaintiffs allege the following causes of action: (1) violation of

21 their First Amendment right of association on the ground that their

22 indefinite confinement in the SHU and denial of parole prevents

23 them from associating with other prisoners; (2) violation of their

24 First Amendment right of association and freedom of speech on the

25 ground that their confinement in the SHU is based upon their

26 innocuous association with other prisoners; (3) violation of their

27 First Amendment right not to speak on the ground that their

28 confinement in the SHU is based upon their refusal to become

2

United States District Court For the Northern District of California

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page3 of 10
1 informants; (4) violation of their First Amendment right of 2 association and Fourteenth Amendment right to equal protection 3 based upon PBSP policies that penalize them for associating with 4 other members of their own racial group; (5) violation of their 5 First Amendment right of association and Fourteenth Amendment right 6 to equal protection based upon rules and regulations that are 7 overbroad and contradictory; (6) violation of their First Amendment 8 right of access to the courts and Fourteenth Amendment right to 9 equal protection based upon policies and practices that interfere 10 with their confidential communications with their attorneys; 11 (7) violation of their First Amendment right of access to the 12 courts and Fourteenth Amendment right to equal protection based 13 upon Defendants' interpretation of PBSP-O.P.205 which allows no 14 follow up communication with inmate witnesses; (8) violation of 15 their First and Fourteenth Amendment rights to investigate, prepare 16 and prosecute their legal claims based upon Defendants' policy of 17 interfering with and confiscating correspondence sent from 18 authorized inmate witnesses; (9) violation of Mr. Troxell's First 19 Amendment right to freedom of speech and expression and Fourteenth 20 Amendment right to equal protection based upon Defendants' denial 21 of his request to post his artwork on internet sites and obtain 22 donations for his art work to fund community college courses when 23 other state prisons allow inmates to sell their artwork; 24 (10) violation of Plaintiffs' First Amendment right to freedom of 25 speech and Fourteenth Amendment right to equal protection on the 26 ground that Defendants prohibit them from purchasing non-pictorial 27 adult erotic material when other state prisons allow inmates to do 28 so; (11) violation of their Fifth Amendment due process right
3

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page4 of 10

United States District Court For the Northern District of California

1 against self-incrimination based on Defendants' requirement that

2 Plaintiffs become informants about gang activities in order to be

3 released from the SHU; (12) violation of their Eighth Amendment

4 right to be free from cruel and unusual punishment on the ground

5 that Defendants' requirement that Plaintiffs become informants

6 exposes them to a substantial risk of death or serious bodily

7 injury; (13) violation of their Eighth Amendment right to be free

8 from cruel and unusual punishment by exposing them to a substantial

9 risk of developing a serious mental illness as a result of sensory

10 deprivation in the SHU; (14) violation of their Eighth Amendment

11 right to be free of cruel and unusual punishment and Fourteenth

12 Amendment due process rights based upon the cumulative effects

13 noted in claims twelve and thirteen; (15) violation of a state-

14 created liberty interest in release from the SHU; (16) violation of

15 their Fourteenth Amendment due process and ex post facto rights

16 based upon their twenty-four year confinement in the SHU and denial

17 of parole; and (17) violation of their rights due to Defendants'

18 failure, in their supervisory capacity, to establish lawful polices

19 and procedures and to train their subordinate employees properly.

20

LEGAL STANDARD

21

Title 28 U.S.C. § 1915A states, in relevant part:

22

(a) Screening. -- The court shall review, before

docketing, if feasible or, in any event, as soon as

23

practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a

24

governmental entity or officer or employee of a

government entity.

25

(b) Grounds for dismissal -- On review, the court shall

26

identify cognizable claims or dismiss the complaint, or

any portion of the complaint, if the complaint –

27

(1) is frivolous, malicious, or fails to state

28

a claim upon which relief may be granted; . . .

4

United States District Court For the Northern District of California

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page5 of 10
1 DISCUSSION
2 As acknowledged by Plaintiffs, many of the claims alleged here
3 were also alleged in the 2004 and 2005 cases. Many claims in those
4 cases were dismissed for failure to exhaust and the Court granted
5 leave to re-file them after they were fully exhausted. Plaintiffs
6 allege that these claims are now exhausted.
7 The following claims were dismissed for lack of exhaustion
8 with leave to re-file and may proceed in this case, assuming
9 Plaintiffs remedy the other deficiencies in the complaint noted
10 below: (1) First Amendment right of association, (see 2005 case,
11 Docket # 140 at 16); (2) Fifth Amendment procedural and substantive
12 due process rights and right against self-incrimination based upon
13 debriefing requirements, (see 2005 case, Docket # 140 at 17);
14 (3) Eighth Amendment right to be free from cruel and unusual
15 punishment based upon indefinite incarceration in the SHU (see 2005
16 case, Docket # 140 at 18-19); and (4) Fourteenth Amendment equal
17 protection claim based on treating white inmates differently than
18 inmates of other races (see 2005, Docket # 140 at 22).
19 Plaintiffs' ex post facto and due process claims based upon
20 parole denials were dismissed with leave to re-file in a habeas
21 petition once they were exhausted in state court. (See 2005 case,
22 Docket # 140 at 21-22). That analysis applies to the parole denial
23 claims Plaintiffs allege in this civil rights action. If
24 Plaintiffs file an amended complaint, they must delete all claims
25 and defendants associated with claims based upon denial of parole.
26 Summary judgment was granted to Defendants on Mr. Ashker's
27 due process claim regarding gang validation procedures for
28
5

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page6 of 10

United States District Court For the Northern District of California

1 placement in the SHU. (See 2005 case, Docket # 336 at 36).

2 Therefore, that claim may not be alleged in this complaint.

3 Summary judgment also was granted to Defendants on Mr. Ashker's due

4 process claim based on a no parole policy. (See 2005 case, Docket

5 # 336 at 44-45). That claim likewise may not be alleged in this

6 complaint.

7

Furthermore, the complaint fails to specify the conduct of

8 each Defendant that proximately caused many of the constitutional

9 violations that are alleged. Section 1983 "provides a cause of

10 action for the 'deprivation of any rights, privileges, or

11 immunities secured by the Constitution and laws' of the United

12 States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990)

13 (quoting 42 U.S.C. § 1983). An individual defendant is liable for

14 money damages under § 1983 only if the defendant personally

15 participated in or otherwise proximately caused the

16 unconstitutional deprivations of which the plaintiff complains.

17 Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988). To establish

18 individual liability, a plaintiff must allege one of the following:

19 (1) the defendant personally participated in or ordered the

20 constitutional violation; (2) the defendant, acting in a

21 supervisory capacity, failed to train properly or supervise

22 personnel, resulting in the violation;

23 (3) the defendant was responsible for an official policy or custom

24 which caused the violation; or (4) the defendant knew of the

25 violation and failed to prevent it. Taylor v. List, 880 F.2d 1040,

26 1045 (9th Cir. 1989).

27

Officials of the state, while acting in their official

28 capacities, are not "persons" within the meaning of § 1983. Will

6

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page7 of 10

United States District Court For the Northern District of California

1 v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989). The

2 distinction derives from the Eleventh Amendment. Id. at 66-67.

3 The Eleventh Amendment bars suits in federal court for damages and

4 retrospective injunctive relief against state officials, acting in

5 their official capacity, unless the state has waived immunity or

6 Congress has exercised its Fourteenth Amendment power to override

7 immunity. Id. at 66. In enacting 42 U.S.C. § 1983, Congress did

8 not intend to eliminate Eleventh Amendment immunity. Id. Neither

9 a state nor its officials acting in their official capacities

10 therefore may be sued under § 1983 for damages or retrospective

11 injunctive relief. Will, 491 U.S. at 71. However, a state

12 official in his official capacity is considered a "person" for

13 § 1983 purposes when sued for prospective injunctive relief. Id.

14 at n.10.

15

Plaintiffs are suing twenty-four named Defendants who are

16 identified, in ¶ 4, as present and former state government and

17 prison officials, PBSP supervisors, investigators and corrections

18 officers, and present and former commissioners on the Board of

19 Parole Hearings. The factual allegations in the complaint include

20 actions taken by some named Defendants. However, it is not clear

21 which actions proximately caused each constitutional violation.

22 Further, in the sections listing the seventeen causes of action,

23 Plaintiffs do not specify which Defendant is being sued for each

24 cause of action. Given that the complaint is ninety-four pages in

25 length, it would be difficult, if not impossible, for each

26 Defendant to have notice of the causes of action for which he or

27 she is being sued. Therefore, the complaint is dismissed with

28 leave to amend so that Plaintiffs may remedy this deficiency. See

7

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page8 of 10

United States District Court For the Northern District of California

1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (dismissal

2 is appropriate when the complaint does not give the defendant fair

3 notice of a legally cognizable claim and the grounds on which it

4 rests). The facts given as background information are not

5 necessary; the present alleged illegal conduct is what is relevant.

6 Also, the alleged illegal conduct comprising each cause of action

7 should be discussed within the section on that cause of action. It

8 also appears that Plaintiffs have repeated the same constitutional

9 violations in different claims for relief; in an amended complaint,

10 these repetitious claims can be deleted or consolidated. Further,

11 in an amended complaint, former government or prison officials may

12 not be sued for prospective injunctive relief; the person who

13 presently holds the position should be named.

14

CONCLUSION

15

Based on the foregoing, Plaintiffs' applications to proceed

16 IFP are denied. Mr. Ashker must pay the filing fee within thirty

17 days from the date of this order if he wishes to proceed with this

18 complaint. If Mr. Ashker pays the filing fee, Plaintiffs may file,

19 within sixty days from the date of this order, an amended complaint

20 to remedy the deficiencies noted above. If Mr. Ashker does not pay

21 the filing fee, Mr. Troxell's application to proceed IFP will be

22 considered. If it is granted, he may proceed with the complaint

23 and file an amended complaint, as described herein, but without any

24 claims brought on behalf of Mr. Ashker.

25

The following may be cognizable and may be included in an

26 amended complaint: Claim One, except for the parole allegations;

27 Claim Two, except for the parole allegations; Claim Three, except

28 for the parole allegations; Claim Four; Claim Five, except for the

8

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page9 of 10

United States District Court For the Northern District of California

1 parole allegations; Claim Six; Claim Seven; Claim Eight, to the

2 extent that it is based on different allegations than Claim Seven;

3 Claim Nine; Claim Ten; Claim Eleven; Claims Twelve, Thirteen or

4 Fourteen (these appear to be the same; only one of them may be

5 realleged); and Claim Seventeen. As discussed above, claims

6 Fifteen and Sixteen are precluded.

7

8

9

IT IS SO ORDERED.

10

11 Dated: February 16, 2010 12

CLAUDIA WILKEN United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

Case4:09-cv-05796-CW Document7 Filed02/16/10 Page10 of 10

United States District Court For the Northern District of California

1

UNITED STATES DISTRICT COURT

FOR THE

2

NORTHERN DISTRICT OF CALIFORNIA

3

TODD ASHKER et al,

4

Plaintiff,

5

v.

6

ARNOLD SCHWARZENEGGER et al,

7

Defendant.

8

/

Case Number: CV09-05796 CW CERTIFICATE OF SERVICE

9 I, the undersigned, hereby certify that I aman employee in the Office of the Clerk, U.S. District Court,
10 Northern District of California.

11 That on February 16, 2010, I SERVED a true and correct copy(ies) of the at tached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
12 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.
13

14

15 Danny Troxell Pelican Bay State Prison
16 B76578 P.O. Box 7500
17 D1-120 Crescent City, CA 95532
18 Todd Ashker C58191
19 Pelican Bay State Prison P.O. Box 7500
20 D1-SHU Crescent City, CA 95532
21 Dated: February 16, 2010
22
23

Richard W. Wieking, Clerk By: Ronnie Hersler, Administrative Law Clerk

24

25

26

27

28

10

 
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Case4:09-cv-05796-CW Document1 Filed12/09/09 Page14 of 47

~~i!.iohC!. polnfs 16 (£vid.(l1?<:e u&spuf71; 1ItL?U)ftl'-al-se.anly dJie{fJ.SIUrlS.

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1 sOYJ(ehow, ... 1A);t/z asSJSi-d'7e.e. fi..orYl Murphys; (!ell'n1a1e 7a.n,.,J{who

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PROOF OF SERVICE BY MAIL (C.C.P. Section 101(a) # 2015.5,28 U.S.C. 1746)

I, S>Cnn~Tro·><a.\1l?)"5J8 ,am a resident of Pelican Bay State Prison, in the
County of 8INorte, Sfate of California. I am over eighteen (18) years of age and am a
party to the below named action.

My Address is: P.O. Box 7500, Crescent City, CA 95531.

5 On the

day of 1)oQor'nbcz.t ,in the year of 20SB.." I served the following

documents: (set forth the exact title of documents served)

l..y~\dt(t'\-o C.aw1;Cler k ~ \l<l'lA' y.2.LtSC,§\t1ca1 C\\i\( 'Ru2,k\Ts COrn?, »1t1r4

P<ly't)<3J)O fo..-J\ACyJi-)a.\

on the party(s) listed below by placing a true copy(s) of said document, enclosed in a sealed envelope(s) with postage thereon fully paid, in the United States mail, in a deposit box so provided at Pelican Say State Prison, Crescent City, CA 95531 and addressed as follows:

I declare under penalty of perjury that the foregoing is true and correct. ,20~.
Signed: _----e;;iJ~1.&1.L()\D'!-e'!c..lJ\aw.~6rn=+4t::JS~:'i\gI'-n-\a;1JM~d..e,.)s~\\~\_ - - - - -
Rev. 12106

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PROOF OF SERVICE BY MAIL (C.C.P. Section 101 (a) # 2015.5, 28 U.S.C. 1746)

I, ~ti!f:cwfJ. 87,,51ft , am a resident of Pelican Bay State Prison, in the
County of ~rte, Slate of California. I am over eighteen (18) years of age and am a

party to the below named action.
~y 9~O~ Address is: P.O. Box 7500. Crescent City, CA

v~&. ' ''''i.S~~~ear ei,Id.l'ifl,.Yo,If

On the 'J.O
documents: (set

forth

day of 'i)yag
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of 20.\L. I served the following

(\)iful~.• ~ ~'f""" Ccladltl;~IMa~l>.cts'~

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on the party(s) listed below by placing a true copy(s) of said document, enclosed in a sealed envelope(s) with postage thereon fully paid, in the United States mail, in a deposit box so provided atPelican Bay State Prison, Crescent City, CA'95531 and addressed as follows:

(
Qak).aod pa q"""J '),

I declare under penalty of perjury that the foregoing is true and correct.

Dated this ~ day of '~\A.n.e:..

, 20ll.-.

Signed: ---,S..o...p.c~~~~-"'S~I1Ar'41D.~",",""..,- - . (Declar..,t ignatuff~-Rev. 12/06

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Case4:09-cv-05796-CW Document51-3 Filed06/24/11 Page4 of 5
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION INMATE APPEALS BRANCH P O. BOX 942883
SACRAMENTO, CA 94283-0001
DIRECTOR'S LEVEL APPEAL DECISION

Date: APR 2 6 2011

In re:

James Crawford, D05996 Pelican Bay State Prison P.O. Box 7000 Crescent City, CA 95531-7000

lAB Case No.: 1002961

Local Log No.: PBSP-IO-01648

This matter was reviewed on behalf of the Director of the California Department of Corrections and Rehabilitation (CDCR) by Appeals Examiner C. Tileston, Facility Captain. All submitted documentation and supporting arguments of the parties have been considered.
I ApPELLANT'S ARGUMENT: It is the appellant's position that he disagreed with the confiscation of his property by the Pelican Bay State Prison (PBSP) staff. On April 15, 2010, his cell was searched by Correctional Officer (CO) Ford and Vermeer. The officers confiscated a manila envelope in which they labeled gang information. He contends that they also confiscated personal magazines and numerous pictorials with the magazines. He stated that he filed an appeal on this issue and did not hear anything back. He also requested in his last appeal to send all of the confiscated property home. He is requesting to be allowed to send his personal property home. He is requesting for an itemized list of all confiscated property, number of magazines, and of the alleged gang activity in the envelope. He is also requesting to know why the CDC Form 602, inmateiParolee Appeal Form, dated April 16, 20iO, was not responded to.
n SECOND LEVEL'S DECISION: The reviewer found that there was no basis to grant the grievance. The
appellant was informed of the rules and regulations that apply to this appeal. The appellant was informed that the PBSP Operational Procedure #806 provides that inmates can mail items out if they have sufficient funds to do so. The Second Level of Review (SLR) also notes that the confiscated items were altered, misused, and/or could not be indentified as belonging to either the inmates assigned to the cell or other inmates. CO Ford was never asked to retain the items for appeal purposes, or to mail them home at the conclusion of the search. The contraband items were disposed of pursuant to institutional procedures. The appellant's items that were confiscated as being gang activity were reviewed by the PBSP Institution Gang Investigator (lGI) staff. The items consisted of news and magazine clippings about crimes and other nefarious acts and were not returned to the appellant. A CDC Form 128-G, Classification Chrono, will not be issued because the information is not being used against the appellant. The SLR also noted that the appellant's cellmate, Inmate Drewberry (C35671) also filed an appeal claiming ownership of the items as well. Since the items were considered altered and removed from magazines and newspapers, they were considered contraband and disposed of.
III DIRECTOR'S LEVEL DECISION: Appeal is granted in part.
A. FINDINGS: The Director's Level of Review (DLR) does not fully concur with the decision rendered at the SLR. In this case, the appellant disagrees with the items that were confiscated and the disposition of those items. The appeals examiner reviewed the cell search receipt and notes that it indicated that a manila envelope containing gang information was confiscated. It also included items of excess trash, magazines, newspapers, and trash. CO Ford was interviewed at the SLR and stated that the magazines were in bundles and were altered. The name of who the magazines were sent to was removed. Therefore, proper ownership of the magazines and newspapers could not be determined. In addition, at the conclusion of the search the appellant did not request to mail the items out or to hold the items pending the outcome of the appeal. Therefore, the staff members disposed of the items pursuant to local operating procedures.
The items that the staff considered to be gang activity were reviewed by the PBSP IGI staff. The staff noted that it was newspaper/magazine clippings about crime and other nefarious acts and was not returned to the appellant. These items were also disposed of since they were altered. The

Case4:09-cv-05796-CW Document51-3 Filed06/24/11 Page5 of 5
JAMES CRA WFORD, D05996 CASE NO. 1002961 PAGE 2

CDC Operations Manual, Section (DOM) 54010.10 states, "Inmates may receive First-Class Mail containing newspaper clippings, Internet downloaded articles, photocopies of clippings/articles, or electronic mail (e-mail). Prior to issuance, they shall be reviewed to ensure that they comply with California Code of Regulations, Title 15, Section (CCR) Sections 3006, 3135 and DOM Sections 54010.14 and 54010.15." Therefore, the appellant could have the items unless they materials violated the listed sections, which was not established by the PBSP; however, since a value cannot be establish for suitable replacement, the appellant shall not receive compensation. Therefore, the DLR does find cause to intervene.

B. BASIS FOR THE DECISION:
California Penal Code Section: 5058 CCR: 3001,3006,3084.1, 3084.2,3084.7,3134.1,3190,3191,3192,3193,3270, 3287, 3380 DOM: 54010.10, 54030.1, 54030.2, 54030.3, 54030.4, 54030.5, 54030.6, 54030.7, 54030.7.1, 54030.7.2,54030.8,54030.9,54030.9.1, 54030.9.2, 54030.10, 54030.10.1, 54030.10.2, 54030.10.3, 54030.10.4, 54030.10.5, 54030.10.6, 54030.10.6.1, 54030.10.6.2, 54030.10.7, 54030.10.8, 54030.10.9, 54030.10.10, 54030.10.11, 54030.12, 54030.12.1, 54030.12.2, 54030.13, 54030.13.1, 54030.13.2, 54030.17

C. ORDER: The PBSP shall provide training to the PBSP staff concerning the DOM 54010.10.

This issue was discussed with the office of the chief deputy warden.

This decision exhausts the administrative remedy available to the appellant within CDCR. If dissatisfied, the

appellant may forward this issue to the California Victims Compensation and Government Claims

Board, (formerly known as the State Board of Control), Government Claims Unit, P.O. Box 3035,

sat~812_3035' forfurtheneview

~

C. TILESTON Appeals Examiner Inmate Appeals Branch
cc: Warden, PBSP Appeals Coordinator, PBSP

D. FOSTON, Chief Inmate Appeals Branch

Case4:09-cv-05796-CW Document51-4 Filed06/24/11 Page1 of 2

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CDC NO. & )(...$

HOUSING Pi -,.~O

PELICAN BAY STATE PRISON SHU LAW LIBRARY PO BOX 7500 CRESCENT CITY, CA. 95532

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US NORTHERN DlST COURT OF CA 1301 CLAY ST. SUITE _ SOUTH
,. •." ulO. CA 94612-5212

LEGAL MAIL

Case4:09-cv-05796-CW Document51-4 Filed06/24/11 Page2 of 2 .....--_.

Ashker et al v. Brown et al, Docket No. 4:09-cv-05796 (N.D. Cal. Dec 09, 2009), Court Docket
General Information

Case Name Docket Number Court Nature of Suit Related Opinion(s)

Ashker et al v. Brown et al 4:09-cv-05796 United States District Court for the Northern District of California Prisoner Petitions: Habeas Corpus - Prison Condition 2010 BL 120874

© 2012 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/2048022098460930?documentName=53.xml

 
 Case4:09-cv-05796-CW Document191 Filed04/09/13 Page1 of 19

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 TODD ASHKER, et al.,

No. C 09-5796 CW

5

Plaintiffs,

6

v.

ORDER DENYING MOTION TO DISMISS (Docket No. 160)

7 EDMUND G. BROWN, JR., et al.,

8

Defendants.

________________________________/ 9

10

Plaintiffs, ten inmates at Pelican Bay State Prison, bring

11 this putative class action against Defendants, the Governor of the

12 State of California, the Secretary of the California Department of

13 Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office

14 of Correctional Safety, and the Warden of Pelican Bay State

15 Prison, for violations of the Eighth and Fourteenth Amendments.

16 Defendants move to dismiss Plaintiffs’ second amended complaint

17 (2AC) for lack of subject matter jurisdiction and failure to state

18 a claim. Plaintiffs oppose the motion. After considering the

19 parties’ submissions and oral argument, the Court denies

20 Defendants’ motion.

21

BACKGROUND

22

Plaintiffs Todd Ashker and Danny Troxell have lived in

23 solitary confinement in Pelican Bay’s Secure Housing Unit (SHU)

24 for over two decades. Docket No. 1, Compl. ¶¶ 16-18. On December

25 9, 2009, they filed this lawsuit challenging the conditions of

26 their confinement. Their pro se complaint charged various CDCR

27 officials with violating their First, Fifth, Eighth, and

28 Fourteenth Amendment rights. Id. ¶ 8.

Case4:09-cv-05796-CW Document191 Filed04/09/13 Page2 of 19

United States District Court For the Northern District of California

1

On September 10, 2012, after securing counsel, Ashker and

2 Troxell filed a second amended complaint (2AC) converting this

3 suit into a putative class action and joining eight other long-

4 term SHU inmates as plaintiffs. Docket No. 136, 2AC ¶ 1. In

5 their 2AC, Plaintiffs assert that the conditions inside the

6 Pelican Bay SHU violate the Eighth Amendment’s ban on cruel and

7 unusual punishment. Id. ¶¶ 177-92. Specifically, they allege

8 that “the cumulative effect of extremely prolonged confinement,

9 along with denial of the opportunity of parole, the deprivation of

10 earned credits, the deprivation of good medical care, and other

11 crushing conditions of confinement at the Pelican Bay SHU” have

12 caused them significant harm, both physically and psychologically.

13 Id. ¶¶ 180-81. They claim that SHU inmates are forced to

14 “languish, typically alone, in a cramped, concrete, windowless

15 cell, for 22 and one-half to 24 hours a day” without access to

16 “telephone calls, contact visits, and vocational, recreational or

17 educational programming.” Id. ¶ 3.

18

In addition to their Eighth Amendment claim, Plaintiffs

19 assert that CDCR’s procedures for assigning inmates to the SHU

20 violate the Fourteenth Amendment’s guarantee of due process. Id.

21 ¶¶ 193-202. According to Plaintiffs, CDCR assigns inmates to the

22 SHU based solely on their membership in or association with prison

23 gangs, without regard for the inmate’s “actual behavior.” Id.

24 ¶¶ 91-92. CDCR relies instead on the word of confidential

25 informants and various indicia such as “gang-related art, tattoos,

26 or written material” to determine whether inmates are affiliated

27 with a gang -- a process known as “gang validation.” Id. ¶ 92.

28

2

Case4:09-cv-05796-CW Document191 Filed04/09/13 Page3 of 19

United States District Court For the Northern District of California

1 Inmates who have been validated as gang members or associates are

2 assigned to the SHU for an indefinite term. Id. ¶¶ 92-94.

3

Once inside the SHU, inmates receive periodic reviews every

4 six months to determine whether they should be released into

5 Pelican Bay’s general population. Id. ¶¶ 96-97. Plaintiffs

6 assert that these reviews are essentially “meaningless,” however,

7 because they require inmates to “debrief” -- that is, renounce

8 their membership in the gang and divulge the gang’s secrets to

9 prison officials -- in order to secure release. Id. ¶¶ 96-97, 7.

10 Plaintiffs contend that debriefing is not a viable option for most

11 inmates, who believe that it “places [them] and their families in

12 significant danger of retaliation” from other prisoners. Id. ¶ 7.

13

CDCR also conducts reviews of SHU inmates’ gang affiliation

14 status every six years to determine whether they are still

15 “active” gang members or associates. Id. ¶¶ 102-04. As with the

16 six-month reviews, however, Plaintiffs claim that this process

17 typically only leads to the inmate’s release from the SHU if the

18 inmate is willing to debrief. Id. Plaintiffs allege, in short,

19 that they have effectively been denied “information about an

20 actual path out of the SHU, besides debriefing.” Id. ¶ 117. They

21 assert that they “are entitled to meaningful notice of how they

22 may alter their behavior to rejoin general population, as well as

23 meaningful and timely periodic reviews to determine whether they

24 still warrant detention in the SHU.” Id. ¶ 200.

25

Plaintiffs’ 2AC seeks declaratory and injunctive relief. In

26 particular, Plaintiffs request “alleviation of the conditions of

27 confinement” in the SHU, meaningful review of the continued need

28 for solitary confinement of all inmates who have been in the SHU

3

Case4:09-cv-05796-CW Document191 Filed04/09/13 Page4 of 19

United States District Court For the Northern District of California

1 for over six months, and release from the SHU of every inmate who

2 has spent over ten years there. Id. at ¶¶ 45-46. They have not

3 asserted any claims for monetary damages.

4

LEGAL STANDARDS

5 I. Subject Matter Jurisdiction

6

Subject matter jurisdiction is a threshold issue which goes

7 to the power of the court to hear the case. Federal subject

8 matter jurisdiction must exist at the time the action is

9 commenced. Morongo Band of Mission Indians v. Cal. State Bd. of

10 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988). A federal

11 court is presumed to lack subject matter jurisdiction until the

12 contrary affirmatively appears. Stock W., Inc. v. Confederated

13 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).

14

Dismissal is appropriate under Rule 12(b)(1) when the

15 district court lacks subject matter jurisdiction over the claim.

16 Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may either

17 attack the sufficiency of the pleadings to establish federal

18 jurisdiction, or allege an actual lack of jurisdiction which

19 exists despite the formal sufficiency of the complaint. Thornhill

20 Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th

21 Cir. 1979); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.

22 1987).

23 II. Failure to State a Claim

24

A complaint must contain a “short and plain statement of the

25 claim showing that the pleader is entitled to relief.” Fed. R.

26 Civ. P. 8(a). On a motion under Rule 12(b)(6) for failure to

27 state a claim, dismissal is appropriate only when the complaint

28 does not give the defendant fair notice of a legally cognizable

4

Case4:09-cv-05796-CW Document191 Filed04/09/13 Page5 of 19

United States District Court For the Northern District of California

1 claim and the grounds on which it rests. Bell Atl. Corp. v.

2 Twombly, 550 U.S. 544, 555 (2007). In considering whether the

3 complaint is sufficient to state a claim, the court will take all

4 material allegations as true and construe them in the light most

5 favorable to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d

6 896, 898 (9th Cir. 1986). However, this principle is inapplicable

7 to legal conclusions; “threadbare recitals of the elements of a

8 cause of action, supported by mere conclusory statements,” are not

9 taken as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

10 (citing Twombly, 550 U.S. at 555).

11 12 I.

DISCUSSION Subject Matter Jurisdiction

13

Defendants contend that Plaintiffs’ due process claim is moot

14 because CDCR has recently implemented new procedures for assigning

15 inmates to the SHU.1 The new procedures -- which took effect in

16 October 2012 -- are part of the agency’s “Security Threat Group” 17 (STG) pilot program, which aims to revamp CDCR’s “gang management 18 policies.” Declaration of G. Giurbino ¶ 5. According to a CDCR

19 administrator, George Giurbino, the pilot program involves 20 (1) creating a “new STG-behavior-based disciplinary matrix, which

21 provides for additional procedural due process safeguards”; 22 (2) forming a “new STG Classification Committee, which provides an 23 additional level of due process review and confirms initial STG

24 validations”; and (3) introducing new procedures to incentivize 25 good behavior among gang affiliated inmates. Id. The program 26 will also include a case-by-case review of every SHU inmate across

27
1 Mootness is properly raised on a motion to dismiss under Rule
28 12(b)(1). White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000).

5

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1 the State. Id. ¶ 6. During the first nine weeks of the pilot

2 program, these reviews led to forty-three inmates at five

3 different correctional facilities being “classified for release

4 from the SHU to the general population.” Id. Defendants have not

5 specified how many of these releases occurred at Pelican Bay.

6

The changes implemented by the STG program do not moot

7 Plaintiffs’ due process claim. A claim is moot only if it has

8 lost its character as a present, live controversy, and if no

9 effective relief can be granted. Flast v. Cohen, 392 U.S. 83, 95

10 (1968). In general, a defendant cannot moot a claim merely by

11 ceasing voluntarily to engage in illegal conduct; rather, it must

12 show that “(1) there is no reasonable expectation that the wrong

13 will be repeated, and (2) interim relief or events have completely

14 and irrevocably eradicated the effects of the alleged violation.”

15 Barnes v. Healy, 980 F.2d 572, 580 (9th Cir. 1992). The defendant

16 bears a “heavy burden” in making this showing. Tinoqui–Chalola

17 Council of Kitanemuk & Yowlumne Tejon Indians v. United States

18 Dep’t of Energy, 232 F.3d 1300, 1303 (9th Cir. 2000).

19

Defendants here have failed to satisfy this burden. In

20 particular, they have not shown that the STG program will

21 permanently cure the specific due process violations that

22 Plaintiffs allege. The Ninth Circuit has rejected mootness

23 arguments for this reason in the past. In Gluth v. Kangas, the

24 court specifically rejected prison officials’ argument that a

25 group of Arizona inmates’ claims of lack of access to the courts

26 were rendered moot by the prison’s “post-litigation promulgation

27 of a new access policy.” 951 F.2d 1504, 1507 (9th Cir. 1991).

28 The Gluth court found the officials’ mootness argument

6

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1 “overreaching” because they had not explained in detail how the

2 new policy would permanently dispose of the plaintiffs’ claims.

3 Id. (“Even assuming that the policy meets constitutional standards

4 on its face, given the Department’s history of allegedly denying

5 access arbitrarily and the vagueness of the new policy, it cannot

6 be said ‘with assurance’ that there is no ‘reasonable expectation’

7 that the alleged violations will recur.”).

8

Defendants’ mootness argument is similarly lacking here.

9 Although they have submitted a hundred-page CDCR memorandum

10 describing the new program, they have not shown that any of the

11 program’s new procedures are permanent. To the contrary, CDCR has

12 stated that the “pilot program has a lifespan of two years.”

13 Giurbino Decl. ¶ 10. As such, Defendants cannot establish that

14 the program will “irrevocably eradicate[] the effects of the

15 alleged violation[s].” Barnes, 980 F.2d at 580 (emphasis added);

16 cf. Celano v. Marriott Int’l, Inc., 2008 WL 239306, at *5 (N.D.

17 Cal.) (finding that the defendant’s pilot program to improve

18 access to its facilities did not moot the plaintiff’s Americans

19 with Disabilities Act claim because the defendant conceded that

20 “the pilot program . . . may be temporary”).

21

Defendants request, as an alternative to dismissal, that the

22 Court stay Plaintiffs’ due process claims until the STG program

23 has been fully implemented. This request is denied. A stay would

24 prejudice Plaintiffs, delay the case unduly, and save few

25 resources because the parties would still have to litigate

26 Plaintiffs’ Eighth Amendment claims during the pendency of the

27 stay.

28

7

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1 II. Failure to State a Claim

2

A. Cruel and Unusual Punishment (First Cause of Action)

3

Plaintiffs allege that, while living inside the SHU, they

4 have been deprived of basic human needs, including “normal human

5 contact, environmental and sensory stimulation, mental and

6 physical health, physical exercise, sleep, nutrition, and

7 meaningful activity.” 2AC ¶ 180. They assert that their

8 “extremely prolonged exposure to these deprivations” has caused

9 them serious physical and psychological harm in violation of the

10 Eighth Amendment. Id. ¶¶ 179-82.

11

The Eighth Amendment requires prison officials to take

12 reasonable measures to guarantee inmate safety. See Farmer v.

13 Brennan, 511 U.S. 825, 832 (1994). Although the provision “does

14 not mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337,

15 349 (1981), it does require that prisons provide inmates with

16 “basic human needs.” Helling v. McKinney, 509 U.S. 25, 33 (1993).

17

Eighth Amendment claims have two basic elements. The first

18 is objective: the deprivation alleged must be sufficiently

19 serious. Farmer, 511 U.S. at 832 (citing Wilson v. Seiter, 501

20 U.S. 294, 297-98 (1991)). The second is subjective: the prison

21 official must possess a sufficiently culpable state of mind. Id.

22 (citing Wilson, 501 U.S. at 298). To determine whether an alleged

23 deprivation is sufficiently serious to satisfy the objective

24 component of an Eighth Amendment claim, a court must consider the

25 circumstances, nature, and duration of the deprivation. Id. at

26 834 (citing Wilson, 501 U.S. at 298). With respect to the

27 subjective component, the requisite state of mind depends on the

28 nature of the claim. In prison-conditions cases, the necessary

8

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1 state of mind is one of “deliberate indifference.” See, e.g.,

2 Wilson, 501 U.S. at 302–03; Allen v. Sakai, 48 F.3d 1082, 1087

3 (9th Cir. 1994).

4

Here, Plaintiffs have adequately plead both elements of an

5 Eighth Amendment claim. They have alleged that their prolonged

6 social isolation and lack of environmental stimuli -- each

7 Plaintiff has lived in the SHU for at least eleven years -- causes

8 “serious psychological pain and suffering and permanent

9 psychological and physical injury.” 2AC ¶¶ 181. These

10 allegations are plausible in light of another court’s fact

11 findings that even shorter stays in the SHU are capable of causing

12 psychological harm. See Madrid v. Gomez, 889 F. Supp. 1146, 1261-

13 65 (1995) (“[T]he conditions of extreme social isolation and

14 reduced environmental stimulation found in the Pelican Bay SHU

15 will likely inflict some degree of psychological trauma upon most

16 inmates confined there for more than brief periods.”).

17 Plaintiffs’ asserted injuries -- the symptoms of which include

18 “chronic insomnia,” “severe concentration and memory problems,”

19 “anxiety,” and other ailments -- are sufficient to satisfy the

20 objective component of their Eighth Amendment claim, considering

21 the length of Plaintiffs’ exposure to these conditions. See Hutto

22 v. Finney, 437 U.S. 678, 686-87 (1978) (“[T]he length of

23 confinement cannot be ignored in deciding whether the confinement

24 meets constitutional standards. A filthy, overcrowded cell and a

25 diet of ‘grue’ might be tolerable for a few days and intolerably

26 cruel for weeks or months.”); Keenan v. Hall, 83 F.3d 1083, 1089

27 (9th Cir. 1996) (same).

28

9

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1

Plaintiffs have also adequately plead facts to satisfy the

2 subjective component of their claim. Not only are the physical

3 symptoms they allege sufficiently obvious to apprise prison

4 officials of their injuries but, in addition, Plaintiffs claim

5 that CDCR officials were given explicit notice of their injuries

6 by way of administrative grievances, written complaints, and

7 inmate hunger strikes. 2AC ¶¶ 189-92. This assertion -- that

8 CDCR officials knew of the risks of long-term solitary confinement

9 but ignored them for several years -- is sufficient to satisfy the

10 deliberate indifference requirement at the pleading stage. See

11 Helling, 509 U.S. at 33 (“We have great difficulty agreeing that

12 prison authorities may not be deliberately indifferent to an

13 inmate’s current health problems but may ignore a condition of

14 confinement that is sure or very likely to cause serious illness

15 and needless suffering the next week or month or year.”).

16

The decision in Madrid, 889 F. Supp. at 1261-65, does not

17 preclude Plaintiffs’ claim here. Although the Madrid court only

18 found that the conditions in the SHU violated the Eighth Amendment

19 rights of inmates who were “already mentally ill” or predisposed

20 to mental illness, it also stated:

21

We emphasize, of course, that this determination is

22

based on the current record and data before us. We can not begin to speculate on the impact that Pelican Bay

23

SHU conditions may have on inmates confined in the SHU for periods of 10 or 20 years or more; the inmates

24

studied in connection with this action had generally been confined to the SHU for three years or less.

25 Id. The decision, thus, expressly left open the possibility that

26 longer periods of confinement in the SHU -- such as those alleged

27 here -- could implicate Eighth Amendment concerns, even for those

28 inmates who are not predisposed to mental illness.

10

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1

The other two cases that Defendants cite, Coleman v. Wilson,

2 912 F. Supp. 1282, 1293 (E.D. Cal. 1995), and Plata v.

3 Schwarzenegger, No. 01-1351 TEH, Docket No. 1237, Stipulation & 4 Order, at 1 (N.D. Cal. June 6, 2008) are also not preclusive here.

5 Coleman and Plata are class actions that address the adequacy of 6 health care services provided by CDCR to inmates across 7 California. The Coleman class includes all CDCR inmates “with

8 serious mental disorders,” 912 F. Supp. at 1293, while the Plata 9 class includes all CDCR inmates with “serious medical conditions,” 10 No. 01-1351 TEH, Docket No. 20, Compl., at 52.2 In contrast,

11 Plaintiffs here seek to represent a much narrower class (inmates 12 housed in the Pelican Bay SHU) and assert a much broader claim

13 (prolonged deprivation of human contact and environmental 14 stimuli). Because neither the Coleman nor Plata class sought to 15 challenge long-term confinement in the Pelican Bay SHU, these

16 cases do not require dismissal of Plaintiffs’ Eighth Amendment

17 claim.

18

B. Due Process (Second Cause of Action)

19

Plaintiffs allege that CDCR’s procedures for assigning

20 inmates to the SHU and periodically reviewing those assignments

21 violate the Due Process Clause of the Fourteenth Amendment. 2AC

22 ¶¶ 193-202.

23

Courts use a two-step inquiry to determine whether a

24 plaintiff has stated a valid procedural due process claim. See 25 Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 26 (1989). First, the court asks whether the plaintiff has alleged a

27
2 The Plata class originally excluded Pelican Bay inmates but was
28 later amended by stipulation.

11

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1 deprivation of a legally cognizable interest -- that is, “whether

2 there exists a liberty or property interest which has been

3 interfered with by the State.” Id. If the court finds that the

4 plaintiff has alleged such a deprivation, it will then proceed to

5 the second stage of the inquiry, asking “whether the procedures

6 attendant upon that deprivation were constitutionally sufficient.”

7 Id.

8

Defendants here do not dispute that reassigning inmates to

9 the SHU qualifies as a deprivation of a legally cognizable liberty

10 interest. See Wilkinson v. Austin, 545 U.S. 209, 223-24 (2005)

11 (recognizing inmates have a liberty interest in avoiding

12 assignment to a supermax unit that disqualifies them for parole

13 and imposes “severe limitations on all human contact” for an

14 “indefinite” period of time). Their motion therefore turns on the

15 second part of the due process inquiry: namely, whether the

16 procedures CDCR allegedly uses to assign inmates to the SHU are

17 constitutionally adequate. To answer this question, the Court

18 must apply the three-part balancing test laid out in Mathews v.

19 Eldridge, 424 U.S. 319, 335 (1976). Under this test, the Court

20 must weigh: (1) the “private interest that will be affected” by

21 the challenged government action; (2) “the risk of erroneous

22 deprivation of such interest” under current procedures and the

23 “probable value, if any, of additional or substitute procedural

24 safeguards”; and (3) the “[g]overnment’s interest” in the official

25 action, including the cost of providing additional procedures.

26 Id. Because Plaintiffs here allege that they receive only minimal

27 procedural safeguards while being subjected to a significant

28

12

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1 deprivation of liberty, they have stated a valid due process claim 2 under Mathews.

3

The Supreme Court’s decision in Wilkinson provides useful

4 guidance here. In Wilkinson, the Court held that Ohio’s

5 procedures for assigning inmates to the State’s only supermax 6 prison -- a facility similar to Pelican Bay’s SHU -- satisfied the 7 due process requirements of Mathews. 545 U.S. at 224-29. The

8 Court’s decision was based on the fact that Ohio’s reassignment 9 process includes numerous measures to help ensure that inmates are 10 not erroneously assigned to the supermax facility. In particular,

11 Court noted,

12

Ohio provides multiple levels of review for any decision

13

recommending [supermax] placement, with power to overturn the recommendation at each level. In addition

14

to these safeguards, Ohio further reduces the risk of erroneous placement by providing for a placement review

15

within 30 days of an inmate’s initial assignment to [the supermax facility].

16 Id. at 227.3 The Court also emphasized that “Ohio requires that

17 the decisionmaker provide a short statement of reasons. This

18

19

20

21

22
3 Ohio’s decision-making process involves several steps. First, to

23 initiate the reassignment, a prison official must prepare a form

detailing “matters such as the inmate’s recent violence, escape
24 attempts, gang affiliation, underlying offense, and other pertinent

details.” 545 U.S. at 216. Next, a three-member committee of
25 corrections officials is convened to review the form and to hold a

hearing on the matter. Although the inmate may not call witnesses at
26 the hearing, he may appear to object to the proposed reassignment and

offer any information or explanations that he finds relevant to the
27 committee’s decision. Id. The committee is required to give the inmate

28

written notice, including a copy of the form that initiated the process, at least forty-eight hours before the hearing. Id.

13

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1 requirement guards against arbitrary decisionmaking while also 2 providing the inmate a basis for objection before the next 3 decisionmaker or in a subsequent classification review.” Id. at

4 226. Finally, the Court noted that inmates housed in the supermax 5 facility are entitled to this same multi-tiered review process 6 every year that they remain there. Id. at 217. Based on these

7 robust safeguards, the Court concluded that Ohio’s reassignment

8 policy “strikes a constitutionally permissible balance between the

9 factors of the Mathews framework.” Id. at 230.

10

CDCR’s reassignment procedures include significantly fewer

11 protections than Ohio’s. According to Plaintiffs’ complaint, CDCR 12 inmates do not receive a multi-tiered review before being 13 reassigned to the SHU. Nor do they receive an immediate review of

14 the reassignment decision within thirty days of their placement

15 there. Inmates also receive fewer opportunities to object to 16 CDCR’s initial reassignment decision and to the subsequent six17 month and six-year reviews of their gang affiliation status. In

18 fact, according to Plaintiffs’ complaint, the only way inmates can 19 realistically secure release from the SHU is to debrief, an option 20 which many inmates are reluctant to exercise. See Wilkinson, 545

21 U.S. at 227 (“Testifying against, or otherwise informing on, gang

22 activities can invite one’s own death sentence.”). Finally,

23

If the committee recommends reassignment, it must issue a written

24 report explaining its reasoning and summarizing the evidence presented

at the hearing. Id. at 216-17. The warden at the facility where the
25 inmate is housed must then sign off on the committee report and forward

it to a state agency staffed with corrections officials, who must do the
26 same. Id. Both the warden and the agency must annotate the committee

report with the reasons for their respective decisions and provide a
27 copy of the annotated report to the inmate. Id. If the inmate is

28

ultimately reassigned, his file will be reviewed again by an official at the supermax facility within thirty days of his arrival there. Id.

14

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United States District Court For the Northern District of California

1 unlike in Ohio, CDCR’s initial reassignment decision is based 2 solely on the inmate’s gang affiliations, without regard to his

3 criminal history or propensity for violence. Taken together, 4 CDCR’s procedures as alleged appear create a much greater “risk of

5 erroneous deprivation” -- the second Mathews factor -- than was

6 present in Wilkinson.

7

The third Mathews factor also weighs slightly in Plaintiffs’

8 favor here because the costs of providing additional safeguards 9 would be relatively small. Plaintiffs allege that Pelican Bay’s 10 SHU houses roughly a thousand inmates, which constitutes only a

11 small fraction of California’s total inmate population. Amending 12 the procedural protections afforded to this subset of

13 geographically isolated inmates would be considerably easier -14 and cheaper -- than affording new protections to the inmate 15 population as a whole.4

16

While the Court recognizes that the first Mathews factor --

17 the private interest at stake -- is ordinarily given less weight

18 “within the context of the prison system and its attendant

19 curtailment of liberties,” Wilkinson, 545 U.S. at 225, this case 20 presents unique circumstances, given the length and severity of

21 the deprivations alleged. Plaintiffs here have spent much more 22 time in the SHU than any of the Wilkinson plaintiffs spent in 23 Ohio’s supermax facility, which was only four years old when the

24 case was filed. Five of the Plaintiffs here allege that they have

25

4 As noted above, Defendants have represented that they intend to
26 conduct a case-by-case review of all current SHU assignments as part of

the new STG pilot program. Such an endeavor is likely possible only
27 because of the relatively small number of inmates housed in SHUs across

28

the State. Pelican Bay’s SHU inmates represent an even smaller share of this subgroup.

15

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United States District Court For the Northern District of California

1 lived in the SHU, with minimal human contact, for more than twenty

2 consecutive years: even within the “context of the prison system,”

3 this represents a significant deprivation of liberty. See Keenan,

4 83 F.3d at 1089 (“We do know that relevant factors [when

5 evaluating an inmate’s liberty interest in avoiding a transfer]

6 include whether there is a likelihood that the transfer will

7 affect the duration of [the inmate]’s sentence and the duration of

8 the transfer.”).

9

Toussaint v. McCarthy, 801 F.2d 1080, 1098-1101 (9th Cir.

10 1986), which Defendants cite for support, does not counsel

11 otherwise. In Toussaint, the Ninth Circuit examined California’s

12 procedure for reassigning inmates to administrative segregation

13 units and concluded that inmates lacked a substantial liberty

14 interest in avoiding reassignment to those units. Id. at 1291-92.

15 This holding has little application to the present case because

16 Plaintiffs’ asserted liberty interest here is considerably greater

17 than merely avoiding administrative segregation. The SHU not only

18 exposes inmates to harsher conditions than administrative

19 segregation but, as noted above, does so for longer periods of

20 time. Indeed, the conditions inside the SHU appear more similar

21 to the conditions inside the Ohio supermax facility described in

22 Wilkinson -- where the Supreme Court recognized a cognizable

23 liberty interest -- than to those described in Toussaint.

24 Toussaint is therefore inapposite.

25

So, too, is Bruce v. Ylst, 351 F.3d 1283, 1287-88 (9th Cir.

26 2003), another case on which Defendants rely. In Bruce, the Ninth

27 Circuit rejected an individual SHU inmate’s due process claim

28 alleging that “prison officials did not have sufficient evidence

16

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United States District Court For the Northern District of California

1 to validate him as a member of the BGF prison gang.” Id. at 1287. 2 The court held that the prison officials were entitled to summary

3 judgment because their initial gang validation decision was 4 supported by “some evidence.” Id. at 1288. While the Bruce court

5 upheld CDCR’s gang validation decision in that case, however, it 6 did not resolve the broader question presented here: namely, 7 whether CDCR’s practice of assigning inmates to the SHU

8 indefinitely and then allegedly denying them realistic 9 opportunities for release violates due process. Unlike in Bruce, 10 Plaintiffs here allege a wide range of procedural deficiencies,

11 which include the infrequency of CDCR reviews, the lack of 12 meaningful opportunities to contest reassignment, conditioning

13 release from the SHU on debriefing, and denying SHU inmates a 14 chance to earn good-time credits.5 These deficiencies must be 15 considered as a whole. The Supreme Court’s decision in Wilkinson

16 illustrates that courts deciding due process challenges to inmate 17 reassignment procedures must examine the entire reassignment 18 process -- including both the initial reassignment decision and

19 subsequent reviews of that decision -- rather than focusing on a 20 single element of the process in isolation. Bruce, which was

21 decided two years before Wilkinson, dealt only with a single gang 22 validation decision and did not examine CDCR’s broader decision23 making process.

24

This Court’s decision in Ashker v. Schwarzenegger, No. 05-

25 3286 CW, Docket No. 336 (N.D. Cal. 2009), is inapplicable here for

26

5 Notably, SHU inmates were not denied the opportunity to earn
27 good-time credits until 2010, seven years after Bruce was decided, when

28

the California Legislature amended the Penal Code to make them ineligible for such credits. Cal. Penal Code § 2933.6.

17

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United States District Court For the Northern District of California

1 the same reason. In that case, Plaintiff Ashker challenged CDCR’s

2 repeated decisions to validate him as a member of the Aryan

3 Brotherhood prison gang in 2001, 2002, and 2003. Relying on

4 Bruce, this Court granted summary judgment to CDCR officials

5 because their gang validation decisions were supported by “some

6 evidence,” id. at 27-35; the Court did not, however, hold that

7 CDCR’s entire reassignment process comports with due process.

8 Furthermore, Ashker’s claims in the present lawsuit are not based

9 on the 2001, 2002, and 2003 gang validation decisions he

10 challenged in his prior lawsuit. Docket No. 11, Order Granting

11 Plaintiffs’ Requests for Reconsideration & Extension of Time,

12 at 3. As this Court has previously stated, Plaintiff Ashker’s

13 prior due process claims do not preclude his claims in this case.

14 Id. (“[T]o the extent that Plaintiffs’ claims regarding gang

15 status reviews and revalidations have not been litigated in C 05-

16 3286 CW, they are cognizable in this case.”).

17

In sum, Plaintiffs have adequately plead a violation of their

18 due process rights. The Court need not decide at this stage

19 whether they are entitled to the specific hearing procedures

20 described in Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974) or

21 merely the “minimal process” required in cases like Sandin v.

22 Conner, 515 U.S. 472, 479 (1995), and Hewitt v. Helms, 459 U.S.

23 460 (1983). As explained above, Plaintiffs have alleged a

24 sufficiently serious deprivation of liberty and corresponding lack

25 of procedural safeguards to state a due process claim under

26 Mathews. Determination of the process due would be premature at

27 the pleading stage, where Plaintiffs have yet to produce evidence

28 to support their allegations.

18

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United States District Court For the Northern District of California

1

CONCLUSION

2

For the reasons set forth above, Defendants’ motion to

3 dismiss (Docket No. 160) is DENIED. Defendants must file their

4 answer within twenty-one days of the date of this order.

5

IT IS SO ORDERED.

6

7 Dated: 4/9/2013 8

CLAUDIA WILKEN United States District Judge

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 1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5 TODD ASHKER, et al.,
6 Plaintiffs,
7 v.
8
9 EDMUND G. BROWN, JR., et al., Defendants.
10 ________________________________/

No. C 09-5796 CW
ORDER AMENDING SCHEDULE AND GRANTING IN PART MOTIONS FOR ADMINISTRATIVE RELIEF (Docket Nos. 143 & 147)

United States District Court For the Northern District of California

11

12

On November 1, 2012, Plaintiffs, Todd Ashker, et al., filed a

13 motion for administrative relief asking the Court to vacate the

14 previous case management schedule and to set new dates for

15 discovery and trial. Docket No. 143. The following day,

16 Defendants, Governor Edmund G. Brown, et al., filed a motion for

17 an extension of time to file a motion to dismiss and asking the

18 Court to vacate inconsistent case management deadlines. Docket

19 No. 147. The Court has reviewed both motions and now grants each

20 motion in part.

21

Defendants will file their motion to dismiss by December 17,

22 2012. Plaintiffs will file their response by January 17, 2013 and

23 Defendants will file their reply by January 31, 2013. The Court

24 will hear the matter at 2:00pm on February 14, 2013. A case

25 management conference will be held on the same date as the hearing

26 on the motion and the parties will submit a joint case management

27 statement one week in advance of the conference. The case

28 management deadlines set forth in the Court’s May 31, 2012

United States District Court For the Northern District of California

1 scheduling order (Docket No. 127) are hereby vacated. The

2 deadlines will be reset as needed at the case management

3 conference on February 14, 2013. Until then, the parties should

4 continue to engage in fact discovery.

5

IT IS SO ORDERED.

6

7 Dated: 11/16/2012 8

CLAUDIA WILKEN United States District Judge

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 Case4:09-cv-05796-CW Document183 Filed03/07/13 Page1 of 20

1 CHARLES FRANCIS-ANTONIO CARBONE (SBN 206536)

2 EVAN CHARLES GREENBERG (SBN 271356)

LAW OFFICE OF CHARLES CARBONE

3 P.O. Box 2809

4

San Francisco, California 94126 Tel: 415.981.9773

5 Fax: 415.981.9774

6 (Other counsel listed on pg. 18-19) 7 ATTORNEY FOR PLAINTIFFS

8 KAMALA D. HARRIS

Attorney General of California 9 WILLIAM C. KWONG

10 Supervising Deputy Attorney General JILLIAN R. WEADER

11 Deputy Attorney General

ADRIANO HRVATIN 12 Deputy Attorney General

13 State Bar No. 220909 455 Golden Gate Avenue, Suite 11000

14 San Francisco, CA 94102-7004

15

Telephone: (415) 703-1672 Fax: (415) 703-5843

16 E-mail: Adriano.Hrvatin@doj.ca.gov Attorneys for Defendants

17 Brown, Cate, Lewis, and Chaus

18

19

UNITED STATES DISTRICT COURT

20

NORTHERN DISTRICT OF CALIFORNIA

21

OAKLAND DIVISION

22

23 24 RUIZ, et al. ,

25 v.
26

Plaintiffs,

27 BROWN, et al.,

28

Defendants.

No. 4:09-cv-05796-CW
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
(FED. R. CIV. P. 26(f) and CIV. L. R. 16)

Ruiz, et al. v. Brown, et al., Jt. Case Management Conference Statement

Case No. 4:09-cv-05796-CW - 1-

Case4:09-cv-05796-CW Document183 Filed03/07/13 Page2 of 20

1

CLASS ACTION

2

Date: March 14, 2013

Time: 2:00 p.m.

3

Dept.: Courtroom 2

4

5

6

JOINT CASE MANAGEMENT CONFERENCE STATEMENT

7

In accordance with Civil Local Rule 16-9, Plaintiffs and Defendants submit their Joint

8

Case Management Statement in this matter set for a case management conference on March 14, 9

10 2013, at 2:00 p.m. in Courtroom 2 before the Honorable Claudia Wilken in the Oakland Division

11 of this Court.

12

1. Jurisdiction and Service:

13 This action was originally filed in the United States District Court for the Northern
14
15 District of California, Oakland Division, on December 9, 2009, based on the federal questions

16 raised in Plaintiffs’ causes of action against Defendants. After the Court granted leave,

17 Plaintiffs filed a Second Amended Complaint on September 10, 2012.

18

All Defendants have been served and timely appeared in this matter. Defendants contest

19 whether the Court has subject-matter jurisdiction over Plaintiffs’ due process claim, which
20

21 Defendants have moved to dismiss as moot or, alternatively, to stay, under Rule 12(b)(1) of the

22 Federal Rules of Civil Procedure in light of new gang-management guidelines implemented and

23 enforced by the California Department of Corrections and Rehabilitation (CDCR).

24 2. Facts:
25
26

PLAINTIFFS

27

Plaintiffs Ruiz, Franklin, Ashker, Franco, Reyes, Johnson, Troxell, Redd, Esquivel, and

28 Dewberry—and the members of the proposed class—have been held in solitary confinement at

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1 California’s Pelican Bay Security Housing Unit and other California Prisons for an 2 extraordinarily long time. Some for more than two decades. During that time, they have

3 committed virtually no disciplinary infractions.

4

Their conditions of confinement are draconian and stark: they are confined alone to cells

5 measuring approximately 80 square feet, deprived of any normal human contact, deprived of any
6

7 meaningful exercise, of all telephone calls, contact visits, and vocational, recreational, and

8 educational programming. They must linger in their small, concrete cells for 22.5 hours each

9 day. Moreover, there is an unwritten, but strictly enforced CDCR practice prohibiting the grant
10 of parole to any prisoner incarcerated in the SHU. Nearly as bad, SHU prisoners cannot receive
11 the good-time credits that other California prisoners can earn. Their only way out of isolation is
12
13 to debrief by reporting on the gang activity of other prisoners, thus placing themselves and their

14 families in great danger.

15

California, alone out of any state in the country, and most other jurisdictions in the world,

16 holds Plaintiffs and hundreds of others in these tortuous conditions for decades, based merely on
17
18 their association with a prison gang. CDCR deems it irrelevant whether Plaintiffs have ever

19 undertaken an illegal act on behalf of a gang. California’s practices are both cruel and unusual.

20

Plaintiffs’ claims are common and typical to those of the proposed class.

21

22

DEFENDANTS

23 Each of the ten named Plaintiffs is a validated member or associate of rival prison gangs.
24 Some are acknowledged to be leaders, or “shot callers,” of those gangs. Because of their gang 25 validations and re-validations, Plaintiffs are confined in the Security Housing Unit (SHU) at 26 Pelican Bay State Prison. Each has been confined in the SHU pursuant to an indeterminate term 27 under § 3341.5(c)(2)(A)(2) of title 15 in California’s Code of Regulations. The decisions to 28 assign and retain Plaintiffs in the SHU were made in accordance with due process considerations

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1 appropriate for administrative decisions such as gang validation, classification, and housing. In

2 that context, due process only requires that prison officials provide the inmate with some notice

3 of the charges against him, an opportunity to present his views, and that the validation decision

4 be supported by some evidence. That a recent change in California’s Penal Code no longer

5 permits SHU inmates to earn good-time credits does not change the level of due process owed to

6 inmates subject to administrative decisions by prison officials. No court has so held; and, most

7 tellingly, Plaintiffs’ second amended complaint does not so allege.

8

Notwithstanding the constitutionality of CDCR’s validation and review guidelines,

9 CDCR has recently implemented significant changes to those guidelines through its Security

10 Threat Group (STG) pilot program. The pilot program reflects CDCR’s efforts to address

11 evolving trends of gang activities in state prisons and to provide an alternate procedure for

12 inmates to “step down” or disassociate from gang activity and earn incremental privileges

13 without debriefing, consistent with the security, safety, and inmate management needs presently

14 affecting the administration of state prisons. In connection with the implementation of the STG

15 pilot program on October 18, 2012, CDCR has conducted approximately 150 case-by-case

16 reviews of validated inmates to determine their placement in an appropriate level of the STG’s

17 Step-Down Program. Those case-by-case reviews are ongoing, and it is anticipated that each

18 Plaintiff will have the status of his validation reviewed in accordance with STG’s new policies.

19 To the extent Plaintiffs and other validated SHU inmates seek an alternative to debriefing to exit

20 the SHU, the Step-Down Program gives them such an alternative.

21

Defendants dispute that the conditions of the SHU constitute a per se violation of the

22 Eighth Amendment’s prohibition against cruel and unusual punishment. That exact claim was

23 previously litigated and rejected in Madrid, which held that SHU conditions give rise to a

24 violation of the Eighth Amendment only as to those inmates that are already mentally ill or are at

25 serious risk of developing mental illness. Not one Plaintiff alleges that his mental health has

26 deteriorated to such a state to rise to the sufficiently serious level of an Eighth Amendment

27 violation. Absent such allegations, Plaintiffs cannot show the deprivation of a sufficiently

28 serious need, and their deliberate-indifference claim fails.

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1

However, even if Plaintiffs did allege such facts, they would not be in the SHU.

2 Defendants have implemented and comply with court-approved guidelines for the provision of
3 medical and mental health care that exist and are closely monitored as a result of extensive class
4 allegation litigation in Madrid, Coleman, and Plata. Inmates with mental illness are excluded
5 from the SHU. This refutes any contention that Defendants have acted toward Plaintiffs with the
6 required culpable state of mind. Defendants have not acted “wantonly” but instead, for example. 7 have made reasoned choices consistent with the Coleman court-ordered MHSDS Program Guide 8
provisions on SHU placement that strike a balance between the mental health needs of SHU 9
inmates and the challenges inherent in managing a segment of the prison population that presents 10
significant security and safety concerns. Those decisions are entitled to substantial deference, 11
and cannot support a claim of deliberate indifference. 12

13 3. Legal Issues:
14

15

PLAINTIFFS

16

17

With the adoption of the Second Amended Complaint, Plaintiffs now seek class-wide

18 declaratory and injunctive relief based on two central claims:

19

(1) CDCR’s extraordinarily long-term detention of Plaintiffs and the proposed class in

20 solitary confinement and in extremely harsh conditions deprives Plaintiffs and the proposed class

21 of basic human needs in violation of the Eighth and Fourteenth Amendments to the United States

22 Constitution. Defendants are deliberately indifferent to the deprivation of those human needs.

23

(2) CDCR’s continued and long-term confinement of Plaintiffs and the proposed class in

24 isolated, solitary conditions constitute an atypical and significant hardship, and Defendants have

25 failed to accord notice and meaningful review in violation of the Due Process Clause of the

26 Fourteenth Amendment.

27

Plaintiffs and those in the proposed class have been in the SHU for exceedingly lengthy

28 periods of time – a decade or more.

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1

Few or none of the Plaintiffs evidenced gang activity (as opposed to mere association or

2 inactive membership in a gang) at their last 6-year inactive gang status review. Yet all were

3 denied status as an inactive gang member at that 6-year review and retained in the SHU for an

4 indeterminate and continuing period of time.

5

Plaintiffs and the proposed class will establish that they have been deprived of basic

6 human needs during their prolonged confinement in the SHU, that all are suffering serious

7 mental harm from their prolonged solitary confinement, and or that they have a significant risk of

8 exposure to future mental harm if they continue to be detained in the SHU.

9

10

DEFENDANTS

11

A. CDCR has implemented its STG pilot program with new validation and review

12 policies and has, in accordance with those new policies, continues to conduct case-by-case

13 reviews of validated inmates serving indeterminate terms in the SHU at Pelican Bay. Should

14 Plaintiffs’ due process challenge to CDCR’s former gang management regulations be dismissed

15 as moot under Rule 12(b)(1) of the Federal Rules?

16

B. A federal court has significant discretion to stay proceedings incident to its power

17 to control its own docket and focus its resources on cases that present actual and ripe

18 controversies. Should the Court stay litigation of Plaintiffs’ due process claim to allow CDCR to

19 continue its implementation of the STG pilot program?

20

C. Minimal due process protections apply to administrative functions like gang

21 validation. Should the Court dismiss Plaintiffs’ due process claim under Rule 12(b)(6) because

22 the challenged procedures provide Plaintiffs the requisite notice, an opportunity to be heard, and

23 require that there be some evidence to support Plaintiffs’ status as active gang members or

24 associates?

25

D. Should the Court dismiss Plaintiffs’ due process claim to the extent it is based on

26 the alleged denial of parole because: (i) such allegations concern the duration of confinement

27 and are barred by well-established precedent; and (ii) the Court already ordered that Plaintiffs

28 Ashker and Troxell could not proceed on such allegations? Similarly, should the Court dismiss

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1 Plaintiff Ashker’s due process claim regarding gang validation because the Court already ordered

2 that he could not bring such a claim in an amended complaint?

3

E. Should the Court dismiss Plaintiffs’ Eighth Amendment claim for cruel and

4 unusual punishment on the ground that Plaintiffs fail to allege facts to establish: (i) a sufficiently

5 serious deprivation; and (ii) that each Defendant acted with the required “wanton” state of mind?

6

F. The doctrine of claim preclusion prevents the relitigation of claims that were

7 finally determined in prior litigation. Should the Court dismiss Plaintiffs’ Eighth Amendment

8 claim as precluded by the Madrid, Coleman, and Plata class actions, each of which concerned

9 the same claim raised by Plaintiffs here regarding the conditions of the SHU at Pelican Bay and

10 the alleged physical and mental health effects of SHU confinement?

11

G. Has each named Plaintiff exhausted his administrative remedies as to the

12 complaint’s claims under both the 8th and 14th Amendments?

13

H. Are any of the named Plaintiff’s claims barred by the statute of limitations?

14

I. Can Plaintiffs show that this action is maintainable as a class action under either

15 Rule 23(b)(1) or Rule 23(b)(2) of the Federal Rules of Civil Procedure?

16

J. The Prison Litigation Reform Act (PLRA) requires that injunctive relief be

17 “narrowly drawn, extends no further than necessary to correct the violation of the Federal right,
18 and is the least intrusive measure necessary to correct the violation of the Federal right.” 19 Assuming the violation of a federal right, does Plaintiffs’ request for injunctive relief, which 20 includes an across-the-board “release from the SHU of those prisoners who have spent more than 21 10 years in the SHU,” violate the PLRA? 22

23

4. Motions:

24

PLAINTIFFS

25 Plaintiffs currently have one motion pending: a motion for a preliminary injunction filed
26

27 on December 6, 2012. On December 20, Plaintiffs filed declarations supporting that motion

28

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1 from counsel Jules Lobel and Plaintiffs Ashker and Troxell. Also on December 20, Defendants 2 filed their Response. A week later, on December 27, Plaintiffs filed their Reply.

3

4

DEFENDANTS

5

On December 17, 2012, Defendants filed a motion to dismiss Plaintiffs’ second amended

6 complaint or, alternatively, to stay. The motion is fully briefed and currently set for hearing on

7 March 14, 2013. Moreover, depending on the Court’s ruling on Defendants’ motion to dismiss,
8 Defendants may file the following motions: (a) unenumerated motions to dismiss under Rule
9 12(b) of the Federal Rules for failure to exhaust administrative remedies; (b) motions to dismiss,
10 for judgment on the pleadings, or summary judgment on individual named Plaintiffs’ claims; (c)
11 a motion for summary judgment on the merits of Plaintiffs’ claims; (d) discovery-related motions
12 before Magistrate Vadas; and (e) a motion to proscribe extra-judicial statements, should
13
14 Plaintiffs’ counsel make public statements regarding this case that create a substantial likelihood

15 of material prejudice to Defendants’ right to a fair trial.

16 5. Amendment of Pleadings:
17

18

Plaintiffs moved for leave to file a Second Amended Complaint on May 31, 2012.

19 Defendants filed their Response on June 14, 2012, and Plaintiffs filed a Reply on June 21, 2012.

20 The Court granted Plaintiffs’ motion on September 10, 2012, and Plaintiffs filed the Second

21 Amended Complaint the same day. Although Plaintiffs do not anticipate seeking leave to

22 further amend the complaint, Plaintiffs retain their right to seek the Court’s leave.
23

24

Should the Court grant any part of Defendants’ motion to dismiss but with leave to

25 amend, Defendants request that any further amendment be filed within thirty days of the Court’s

26 dismissal order, and that Defendants have a minimum of thirty days to respond to any further
27 amended complaint. Moreover, Defendants sued in their official capacities may be substituted 28

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1 when the individual leaves office and is replaced by another individual. Fed. R. Civ. P. 25(d). 2 This is applicable to Defendant Cate, who is no longer Secretary of the California Department of

3 Corrections and Rehabilitation. In December 2012, Dr. Jeffrey Beard was appointed as

4 Secretary, and is awaiting confirmation by the State Senate.

5 6. Evidence Preservation:
6

7

Both parties have fulfilled their duties to preserve electronically stored information as

8 well as with other methods of storage.

9

7. Disclosures:

10 The parties have not yet exchanged initial disclosures in accordance with Federal Rules
11 of Civil Procedure (FRCP) 26(a)(1). In accordance with FRCP 26(a)(C), and given the nature of
12

13 the case, the Court should decide whether initial disclosures are appropriate in this action, and if

14 so, what disclosures are to be made and the date for disclosure. Depending on the scope of the

15 Court’s ruling on Defendants’ motion to dismiss, and should the Court order the parties to
16 exchange initial disclosures, Defendants submit that the parties exchange initial disclosures
17 18 within thirty days of the Court’s ruling on Defendants’ motion to dismiss.

19

8. Discovery:

20

PLAINTIFFS

21

(1) Discovery requests, responses, and objections:

22 On October 31, 2012, Plaintiffs served their First Set of Common Document Requests
23

24 and their First Set of Common Interrogatories. On November 8, 2012, Plaintiffs served their

25 First Request for Entry onto Property for Inspection.

26

On December 3, 2012, Defendants served Responses to the first set of interrogatories and

27 requests for production of documents from Defendants Cate, Brown, and Lewis. 28

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1

Defendants served their Response to Plaintiffs’ First Request for Entry onto Property for

2 Inspection on December 11, 2012.

3

(2) Meet and Confer process:

4

For more than two months, Plaintiffs and Defendants have engaged in extensive, detailed

5 meet-and-confer discussions.
6

7

The parties engaged in extensive discussions on the phone on December 19, 2012;

8 January 7, 2013; February 4 and 11, 2013; and March 1, 2013.

9

The parties also exchanged letters and emails throughout the months of December 2012

10 and January and February 2013. Plaintiffs provided written responses to Defendants’ objections
11 to the document requests and interrogatories.
12

13

The meet-and-confer process between the parties is ongoing.

14

(3) Protective Order:

15

The parties stipulated to a protective order that this Court approved on February 6, 2013.

16 (Doc. No. 182.)
17

18

(4) Motions to compel:

19

Because of ongoing, irresolvable discovery disputes regarding all three of Plaintiffs’

20 requests, Plaintiffs intend to file motions to compel before Magistrate Judge Vadas.

21

Further, Plaintiffs request clarification—ideally at the upcoming Case Management

22 Conference—from the Court regarding whether the parties may presently engage in expert
23

24 discovery. This Court’s order dated November 15, 2012, (Doc. No. 155), set the Case

25 Management Conference for February 14, 2013, and then continued, “[u]ntil then, the parties

26 should continue to engage in fact discovery.” 27

28

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1

This last sentence has been a point of contention, with Defendants reading into it a

2 prohibition on engaging in any expert discovery. Plaintiffs request that the Court clarify whether

3 they may engage in expert discovery.

4

5

DEFENDANTS

6

Notwithstanding the case-dispositive nature of Defendants’ pending motion to dismiss,

7 Defendants have responded to Plaintiffs’ discovery requests to meet the Court’s direction that the

8 “parties should continue to engage in fact discovery.” (Order 2, Nov. 16, 2012, ECF No. 155.)

9 In that connection, Defendants have further engaged in good-faith meet-and-confer efforts to,

10 among other things, alleviate various burdens and other objections associated with Plaintiffs’

11 discovery requests, and so as to avoid unnecessary or premature discovery motion practice. This

12 is particularly the case with respect to Plaintiffs’ pursuit of expert discovery at this still

13 preliminary stage of the case.

Specifically, Plaintiffs inspection demand requests that their experts be permitted to tour 14

15 Pelican Bay and conduct mental health interviews of sixty-plus SHU inmates, including the ten

16 named Plaintiffs. During meet-and-confer negotiations, Plaintiffs’ counsel have conceded that

17 the information the experts expect to derive from this discovery will serve as the foundation of

18 their anticipated expert testimony in this action with respect to whether the inmates’ confinement

19 in the SHU constitutes cruel and unusual punishment under the Eighth Amendment. Defendants

20 are entitled to a ruling on their challenge to the Eighth Amendment claim, before Plaintiffs

21 should be allowed to impose upon Defendants the burdens of expert discovery. Moreover, to the

22 extent Plaintiffs seek to conduct expert discovery to support their arguments on class

23 certification or on the merits, Defendants are similarly entitled to engage in expert discovery.

24 But, the Court has not yet established a schedule for such discovery to take place; instead, having

25 limited the discovery at this stage of the proceedings to “fact discovery” as the parties work to

settle the pleadings, which is reasonable. To have to engage in expert discovery before then is 26

27 burdensome, costly, and prejudicial to Defendants’ right to defend against allegations they have

28 challenged fail to state a claim in the first instance.

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1

In accordance with the Court’s instruction that the parties engage in fact discovery, on

2 February 14, 2013, Defendants served a set of document requests on all Plaintiffs. Also on

3 February 14, Defendant Lewis served a set of interrogatories and a set of document requests on

4 each named Plaintiffs.

5

Defendants separately propose that the ten-deposition limit of Rule 30(a)(2)(A)(1) be

6 expanded to fifteen, given the number of parties and the complex nature of the parties’ claims

7 and defenses, without prejudice to seeking a further expansion of the limit depending on the

8 Court’s ruling on Defendants’ motion to dismiss. Defendants further propose that the Court

9 bifurcate discovery so as to focus the parties’ resources on the discovery necessary to adequately

10 brief Plaintiffs’ anticipated motion for class certification. Finally, the scope of the Court’s ruling

11 on Defendants’ motion to dismiss or, alternatively, to stay litigation of, Plaintiffs’ due process

12 claim will impact the scope of discovery (if any) as to that claim (e.g., whether discovery should

13 focus on CDCR’s old validation and review guidelines, the guidelines set forth by the STG pilot

14 program, or both).

15

16

17

9. Class Actions:

18

Plaintiffs added class allegations in the Second Amended Complaint. (Doc. No. 136 at

19 34-38.) Plaintiffs anticipate moving for class certification by May 2, 2013. Defendants contest
20 Plaintiffs’ ability to meet the class-certification requirements of Rule 23 of the Federal Rules of 21
Civil Procedure, and Defendants will oppose any motion for class certification. Defendants also 22
23 object to Plaintiffs’ anticipated date for class certification, as discussed further below in

24 connection with scheduling.

25

26

10. Related Cases:

27 The parties are unaware of any pending related cases or proceedings at this time.
28

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1

2

11. Relief:

3

Plaintiffs seek injunctive relief to require Defendants to conduct a meaningful review for

4 California’s gang-validated inmates in the Pelican Bay SHU and end long-term, indefinite
5 detention in CDCR’s Administrative and Security Housing Units. 6

7

8

12. Settlement and ADR:

9

PLAINTIFFS

10

The parties have not engaged in any settlement efforts to date. Nor have the parties

11 stipulated to ADR. Plaintiffs agree to mediation. Plaintiffs would consider entering into an early 12
mediation process in the next few months, consisting of approximately four hours, in order to see 13 14 if there was any basis for a more prolonged and serious mediation process.

15 DEFENDANTS
16

17

Although Defendants are willing to engage in meaningful settlement negotiations,

18 given the litigation’s procedural posture and Defendants’ pending motion to dismiss, Defendants

19 submit this case is unlikely to settle at this time and it is premature to consider whether key
20 discovery or motions would put the parties in a position to negotiate a resolution. Plaintiffs 21
indicate a willingness to engage in early mediation. Defendants are willing to engage in early 22 23 mediation but maintain that any mediation will be most meaningful if conducted following the

24 Court’s ruling on Defendants’ motion to dismiss.

25 13. Consent to Magistrate Judge For All Purposes:
26

27

The parties do not consent to a Magistrate Judge for all purposes.

28

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1

14. Other References:

2

The case is not suitable for binding arbitration, a special master at this time, or the

3 Judicial Panel on Multidistrict Litigation.

4

5

15. Narrowing of Issues:

6

PLAINTIFFS

7 The Second Amended Complaint has significantly narrowed the issues in this case.
8

9

DEFENDANTS

10

Defendants have moved to dismiss Plaintiffs’ second amended complaint or,

11 alternatively, to stay, specifically with respect to Plaintiffs’ due process claim. The Court’s

12 ruling on Defendants’ motion could eliminate or further narrow the issues subject to litigation.
13

14

16. Expedited Trial Procedure:

15

The parties do not believe that this is the type of case appropriate for an expedited trial

16 procedure.
17

18

19

17. Scheduling:

20

PLAINTIFFS

21 Plaintiffs intend on moving to certify the class by May 2, 2013.
22 Plaintiffs believe a trial date sometime in mid-May 2014 (likely Monday the 12th or
23

24 19th) is appropriate and realistic with a commensurate calendaring of the operative deadlines for

25 a discovery cut-off, designation of experts, etc. Such dates presently depend on the parties’

26 agreeing on a May 2014 proposed trial date. 27

28

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1

DEFENDANTS

2

During meet-and-confer discussions related to the preparation of this joint statement,

3 Plaintiffs’ counsel indicated that the next phase of this case should involve class certification.

4 Plaintiffs further indicated that they intended to file a motion for class certification within one
5 month of the Court’s ruling on Defendants’ motion to dismiss. Plaintiffs have since changed
6 their position, stating that they will seek class certification by May 2, 2013 on the ground that
7 “t[ying] our motion for class cert to when Judge Wilken decides the motion to dismiss . . . is too
8 uncertain.” Defendants agree that class certification should be taken up next; however,
9
10 Plaintiffs’ intent to move to certify the class by May 2 is unreasonable and prejudicial to

11 Defendants. The scope of any class certification motion, and discovery related to that motion,

12 will turn directly on the Court’s ruling on Defendants’ motion to dismiss. The schedule

13 governing this case should provide the Court with sufficient opportunity to rule on Defendants’

14 motion to dismiss, and provide for both sides, depending on the Court’s ruling, a full and fair

15 opportunity to litigate issues pertinent to any class certification proceeding.

16

Similarly, Plaintiffs’ proposed trial date of “mid-May 2014,” fails to contemplate the

17 currently unsettled nature of the pleadings as well as the complex nature of this case, presuming

18 Plaintiffs intend both of their claims, as currently plead, to go forward through class certification,

19 class, merits, and expert discovery, summary judgment, and trial. Although proposing a

20 schedule at this time is difficult, given the case’s procedural posture, Defendants, as required by

21 this District’s Civil Local Rule 16-9, set forth the below proposed schedule should the Court

22 deny Defendants’ motion to dismiss and order the litigation to proceed as to both of Plaintiffs’

23 claims:

24 Date

25

3/14/2013

26

9/12/2013 10/24/2013

27

12/19/2013

1/16/2014

28

1/30/2014

Event
Hearing on motion to dismiss and CMC Bifurcated class discovery cut-off Class certification deadline Opposition to class certification Reply on class certification Hearing on class certification

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1

7/10/2014 8/7/2014

2

9/18/2014

10/30/2014

3

12/11/2014

4

1/22/2015 2/12/2015

5

3/5/2015

5/18/2015

6

6/1/2015

Merits discovery cut-off Disclose experts and reports Rebuttal expert reports Expert discovery cut-off Summary judgment deadline Opposition to summary judgment Reply on summary judgment Hearing on summary judgment and further CMC Pretrial conference Trial

7

Defendants respectfully reserve the right to propose alternative scheduling proposals

8 depending on the nature of the Court’s order on Defendants’ motion to dismiss. Should the

9 Court prefer, Defendants are also willing to appear at a further case management conference
10 once the Court rules on Defendants’ motion to dismiss and, following meet-and-confer efforts 11 with Plaintiffs’ counsel, propose a schedule commensurate with the Court’s ruling. 12

13

18. Trial:

14

PLAINTIFFS

15 Plaintiffs will withdraw their request for a jury trial. Plaintiffs cannot assess the length of
16

17 the trial until the issues are sorted out through discovery.

18

DEFENDANTS

19 Defendants requested a jury trial in this matter. Given the unsettled nature of the
20 pleadings, Defendants cannot at this time estimate the expected length of any trial. However,
21 depending on the nature of the claims to be tried, Defendants expect a trial could take anywhere
22
23 from ten to thirty court days.

24 19. Disclosure of Non-party Interested Entities and Persons:
25

26

PLAINTIFFS

27

28

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1

Plaintiffs know of no other entities that may have a financial interest or any other interest

2 in the subject matter in controversy, or in a party to the proceeding, or an interest that could

3 substantially affect the outcome of the proceeding.

4

DEFENDANTS

5 Because Defendants work for a governmental entity, they are exempt from the disclosure
6

7 requirement of Rule 3-16(a) of this District’s Civil Local Rules.

8

9

20. Such other matters that may facilitate the just, speedy and inexpensive

10

disposition of this matter.

11

12

PLAINTIFFS

13

Plaintiffs intend to move by May 2, 2013, for class certification for all those in the

14 Security Housing Unit (SHU) at Pelican Bay State Prison (PBSP).
15 Plaintiffs anticipate that there will be a need to go before Magistrate Judge Vadas
16 17 regarding issues of direct access to our clients at PBSP, including but not limited to access for
18 Plaintiffs’ experts, both psychological and medical. Plaintiffs are seeking contact visits for these

19 expert medical and psychological examinations. There may also be a need for motions to

20 compel responses to discovery, regarding interrogatories and document requests.
21 Plaintiffs will likely seek to have one or more of the named plaintiffs attend future court
22
23 hearings via videoconference.

24

25

DEFENDANTS

26

Plaintiffs refer to various “anticipated” events or issues that they “will likely seek” the

27 intervention of either this Court or Magistrate Vadas. To avoid unnecessary, burdensome, or
28

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1 premature motion practice, Defendants to date have been willing to discuss Plaintiffs’ discovery 2 or informal requests, and negotiate, where appropriate, amenable resolutions. Defendants will

3 continue to do so, even as to a request that “one or more of the named plaintiffs attend future
4 court hearings via videoconference,” an issue raised for the first time in this joint statement. 5
As a minor, administrative matter, on November 2, 2012, substitutions of counsel were 6 7 filed on behalf of Defendants Brown, Cate, and Lewis. Defendants respectfully request that the

8 Court approve and order those substitutions. Defendants otherwise are unaware at this time of

9 matters, other than those addressed above, that would facilitate the just, speedy, and inexpensive
10 disposition of this matter.
11

12 13 DATED: March 7, 2013

14

LAW OFFICE OF CHARLES CARBONE, ESQ.

15

16 By /s/ Charles Carbone, Esq.____

17

CHARLES CARBONE, ESQ.

18

Attorneys for Plaintiffs

19 ANNE BUTTERFIELD WEILLS (SBN 139845)

20

SIEGEL & YEE

21

499-14th Street, Suite 300 Oakland, California 94612

22

Tel: 510.839.1200

Fax: 510.444.6698 23

24

GREGORY D. HULL Email: greg.hull@weil.com

25

BAMBO OBARO

Email: bambo.obaro@weil.com

26

201 Redwood Shores Parkway

27

Redwood Shores, CA 94065-1134 Tel: (650) 802-3000

28

Fax: (650) 802-3100

Ruiz, et al. v. Brown, et al., Jt. Case Management Conference Statement

Case No. 4:09-cv-05796-CW - 18-

Case4:09-cv-05796-CW Document183 Filed03/07/13 Page19 of 20

1

RACHEL MEEROPOL (pro hac vice)

2

Email: rachelM@ccrjustice.org

ALEXIS AGATHOCLEOUS (pro hac vice)

3

Email: aagathocleous@ccrjustice.org

4

JULES LOBEL (pro hac vice) Email: jll3@pitt.edu

5

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

6

New York, NY 10012

7

Tel: (212) 614-6432 Fax: (212) 614- 6499

8

MARILYN S. MCMAHON (SBN 270059)

9

Email: marilyn@prisons.org

10

CALIFORNIA PRISON FOCUS

1904 Franklin Street, Suite 507

11

Oakland, CA 94612

Tel: (510) 734-3600

12

Fax: (510) 836-7222

13 ANNE BUTTERFIELD WEILLS (SBN 139845)

14

Email: aweills@aol.com

15

SIEGEL & YEE 499 14TH STREET, SUITE 300

16

OAKLAND, CA 94612

Tel: (510) 839-1200

17

Fax: (510) 444-6698

18

CAROL STRICKMAN (SBN 78341)

19

Email: carol@prisonerswithchildren.org

LEGAL SERVICES FO PRISONERS WITH

20

CHILDREN

21

1540 Market Street, Suite 490 San Francisco, CA 94102

22

Tel: (415) 255-7036

Attorneys for Plaintiffs

23

24

25

26

27

28

Ruiz, et al. v. Brown, et al., Jt. Case Management Conference Statement

Case No. 4:09-cv-05796-CW - 19-

Case4:09-cv-05796-CW Document183 Filed03/07/13 Page20 of 20

1 DATED: March 7, 2013 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

KAMALA D. HARRIS Attorney General of California WILLIAM C. KWONG Supervising Deputy Attorney General JILLIAN R. WEADER Deputy Attorney General
/s/ Adriano Hrvatin, Esq.____ ADRIANO HRVATIN Deputy Attorney General Attorneys for Defendants Brown, Cate, Lewis, and Chaus

Ruiz, et al. v. Brown, et al., Jt. Case Management Conference Statement

Case No. 4:09-cv-05796-CW - 20-

 
 2012 WL 847750 Only the Westlaw citation is currently available.
United States District Court, N.D. California.
Todd ASHKER and Danny Troxell, Plaintiffs, v.
Edmund G. BROWN, Jr., et al., Defendants.
No. C 09–5796 CW. | March 13, 2012.
Attorneys and Law Firms
Anne Butterfield Weills, Siegel & Yee, Oakland, CA, Charles Francis-Antonio Carbone, Evan Charles Greenberg, Law Office of Charles Carbone, San Francisco, CA, Jules Lobel, Pittsburgh, PA, for Plaintiffs.J. Randall Andrada, Nicole Lynne Roman, Andrada & Associates Professional Corporation, Oakland, CA, for Defendants.
Opinion
ORDER DENYING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION (Docket
No. 75)
CLAUDIA WILKEN, District Judge.
*1 Plaintiffs Todd Ashker and Danny Troxell, inmates at Pelican Bay State Prison (PBSP), move for leave to file a motion for reconsideration of the Court’s October 11, 2011 Order Denying Plaintiffs’ Motion for Relief from Interference (docket no. 61). Defendants have filed an opposition. The motion was taken under submission and decided on the papers. Having considered the papers filed by the parties, the Court denies Plaintiffs’ motion.
In the October 11, 2011 Order, the Court concluded that the PBSP librarian did not misapply Title 15, California Code of Regulations (CCR) section 3162(c)1 or the California Department of Corrections and Rehabilitation (CDCR) Department Operations Manual (DOM) section 101120.152 because Plaintiffs’ legal briefs should generally not be in excess of fifty pages. The Court pointed out that the civil local rules limit motions to twenty-five pages. The Court also ruled that the librarian did not misapply DOM section 54010.223 because Plaintiffs need not send to potential inmate witnesses a summary of the case, but only need to send, with the warden’s approval, a list of questions for witnesses to

answer under penalty of perjury.
Under Civil Local Rule 7–9, a party may ask a court to reconsider an interlocutory order if the party can show:
(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
(2) The emergence of new material facts or a change of law occurring after the time of such order; or
(3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order.
First, Plaintiffs argue that the Court should reconsider its ruling regarding the duplication of their legal documents because the page limits in the local rules that apply to briefs may not apply to declarations and exhibits. This is an insufficient ground for reconsideration. Plaintiffs must be more concise in all of their Court filings. Filing documents in excess of fifty pages is discouraged. In the event that a brief, together with exhibits and declarations, is longer than 100 pages, Plaintiffs must file a motion with the Court for an order allowing such a lengthy filing.
Second, Plaintiffs argue that the Court should reconsider its ruling regarding their ability to communicate with other inmates because DOM section 54010.22 has been repealed. They argue that now, absent a court order, they will not be able to contact other similarly situated inmates to obtain evidence relevant to their claims. Defendants respond that DOM section 54010.22 has not been repealed and that there has been no change in the law that warrants reconsideration of the Court’s order.
*2 The online version of the DOM indicates that section 54010.22 has not been repealed. Further, like DOM section 54010.22, California Code of Regulations, title 15, section 3139 provides that inmates must obtain written authorization from the warden or his or her designee to correspond with other inmates and instructs inmates how to initiate such requests. Because there has been no change in the relevant law, reconsideration of the issue of corresponding with other inmates is not warranted.

CONCLUSION

documents or correspond with witnesses themselves.

For the foregoing reasons, Plaintiffs’ motion for leave to file a motion for reconsideration is denied (docket no. 75). Further, because Plaintiffs are now represented by counsel, they should no longer need to duplicate

IT IS SO ORDERED.

Footnotes

1

Section 3162(c) provides that a legal document to be duplicated for any inmate, including exhibits and attachments, is not to

exceed fifty pages, except when necessary to advance litigation. The inmate must provide a written explanation of the need for

excess document length.

2

DOM section 101120.15 similarly provides that the inmate must provide a written explanation of the need to duplicate legal

documents exceeding fifty pages. It also requires a court order to duplicate a legal document exceeding 100 pages.

3

DOM section 54010.22 provides that inmates wishing to correspond with other inmates must obtain written authorization from the

warden or his or her designee.

 
 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4 TODD ASHKER, et al.,

No. C 09-5796 CW

5

Plaintiffs,

6

v.

7 EDMUND G. BROWN, JR., et al.,

8

Defendants.

________________________________/ 9

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION (Docket No. 157)

10

Plaintiffs, ten inmates at Pelican Bay State Prison, move for

United States District Court For the Northern District of California

11 a preliminary injunction. Defendants, the Governor of the State

12 of California, the Secretary of the California Department of

13 Corrections and Rehabilitation (CDCR), the Chief of CDCR’s Office

14 of Correctional Safety, and the Warden of Pelican Bay State

15 Prison, oppose the motion. The Court took the matter under

16 submission on the papers and now denies the motion.

17

BACKGROUND

18

In December 2009, Plaintiffs Todd Ashker and Danny Troxell

19 filed this action challenging the conditions of confinement in

20 Pelican Bay’s Secure Housing Unit (SHU), where they both live.

21 Docket No. 1, Compl. ¶¶ 16-18. Their pro se complaint charged

22 various CDCR officials with violating their First, Fifth, Eighth,

23 and Fourteenth Amendment rights. Id. ¶ 8.

24

On September 10, 2012, after securing counsel, Ashker and

25 Troxell filed a second amended complaint (2AC) that added eight of

26 their fellow SHU inmates as Plaintiffs and converted this suit

27 into a putative class action. Docket No. 136, 2AC ¶ 1. In their

28

1 2AC, they assert claims under the Eighth and Fourteenth Amendments 2 and seek declaratory and injunctive relief. Id. ¶¶ 177-202.

3

Four days before Plaintiffs filed the 2AC, Plaintiff Ashker

4 was transferred to a new cell within the SHU. Declaration of Todd

5 Ashker ¶ 21. The new cell is located in a different pod from his 6 previous cell. Ashker asserts that the cell’s location prevents 7 him from communicating with his co-Plaintiffs in this litigation,

8 all of whom are housed in his old pod. Id. ¶¶ 8-12. Of 9 particular note, he asserts that his transfer makes it impossible 10 for him to communicate with Troxell, who had previously served as

United States District Court For the Northern District of California

11 Ashker’s writing assistant by helping him draft letters and pro se 12 legal documents.1 Ashker, who suffers from a physical disability

13 that prevents him from writing for long periods of time, contends 14 that his separation from Troxell has made it “much more painful 15 for [him] to write to [his] attorneys as well as others with whom

16 [he has] corresponded for many years.” Id. ¶¶ 6-12; Declaration

17 of Danny Troxell ¶¶ 3, 7.

18

Ashker now alleges that Defendants ordered his transfer in

19 retaliation for his litigation and other advocacy activities. He 20 asserts that the move undermines his ability to participate in

21 this suit by hindering his ability to discuss litigation strategy 22 with his co-Plaintiffs and communicate with his attorneys. Id. 23 ¶¶ 30-31; Troxell Decl. ¶ 8; Declaration of Jules Lobel ¶¶ 6-7.

24 He seeks a preliminary injunction directing Defendants to return

25 him to his old cell and prohibiting them from transferring him

26

1 According to Ashker, guards permitted him and Troxell to exchange
27 certain writing materials between their adjacent cells, pursuant to an

28

“informal understanding” between Ashker and CDCR officials. Decl. ¶¶ 7, 10, Ex. C.

Ashker

2

United States District Court For the Northern District of California

1 again during the pendency of this litigation. Docket No. 157,

2 Mot. Prelim. Inj. 1.

3

Defendants oppose Ashker’s request and contend that his

4 transfer was not ordered for retaliatory reasons but, rather, to

5 protect Ashker’s safety. For support, they have submitted a

6 declaration from the Pelican Bay gang investigator whose

7 investigation prompted Ashker’s transfer. Although much of the

8 declaration is sealed, the investigator’s underlying assertion is

9 that Ashker would have been exposed to certain security risks had

10 he remained in his old cell.

11

DISCUSSION

12

A party seeking a preliminary injunction “must establish that

13 he is likely to succeed on the merits, that he is likely to suffer

14 irreparable harm in the absence of preliminary relief, that the

15 balance of equities tips in his favor, and that an injunction is

16 in the public interest.” Winter v. Natural Res. Def. Council,

17 Inc., 555 U.S. 7, 20 (2008). Alternatively, “a preliminary

18 injunction could issue where the likelihood of success is such

19 that serious questions going to the merits were raised and the

20 balance of hardships tips sharply in plaintiff’s favor,” so long

21 as the plaintiff demonstrates irreparable harm and shows that the

22 injunction is in the public interest. Alliance for the Wild

23 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (citation

24 and internal quotation and editing marks omitted).

25

Ashker has not satisfied either of these standards because he

26 has not addressed his likelihood of success on the merits of his

27 claims in this suit. Although Ashker asserts that he has

28 presented sufficient evidence to support a claim of prison

3

United States District Court For the Northern District of California

1 retaliation, Plaintiffs have not raised any such claim in their

2 2AC, which only alleges violations of the Eighth and Fourteenth

3 Amendments.

4

Other courts have denied preliminary injunctive relief in

5 situations like this. In Devose v. Herrington, for example, the

6 Eighth Circuit denied a prisoner’s motion for a preliminary

7 injunction where the motion was “based on new assertions of

8 mistreatment that are entirely different from the claim raised and

9 the relief requested in his [complaint].” 42 F.3d 470, 471 (8th

10 Cir. 1994) (per curiam). The Devose plaintiff, whose underlying

11 Eighth Amendment suit challenged the adequacy of his medical

12 treatment, alleged that prison officials had issued disciplinary

13 sanctions against him in retaliation for filing the suit against

14 them. Id. The court held, “Although these new assertions might

15 support additional claims against the same prison officials, they

16 cannot provide the basis for a preliminary injunction in this

17 lawsuit.” Id.

18

The same principle governs here. If the Court were to grant

19 Ashker’s motion, it would provide him with relief beyond that

20 which he would receive if Plaintiffs prevailed in this lawsuit.

21 This approach is disfavored. See, e.g., Tatum v. Puget, 2011 U.S.

22 Dist. LEXIS 71576, at *3 (N.D. Cal.) (“[A] preliminary injunction

23 may be granted only when the ‘intermediate relief [is] of the same

24 character as that which may be granted finally.’”) (citing De

25 Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)).

26

Ashker contends that, even if he cannot meet the traditional

27 requirements for preliminary injunctive relief, the Court should

28 nevertheless invoke its authority under the All Writs Act, 28

4

1 U.S.C. § 1651, and order Defendants to return him to his old cell. 2 The Court will not do so. Ashker’s evidence does not indicate

3 that his transfer was motivated by retaliatory animus and does not 4 rebut Defendants’ non-retaliatory justification for the

5 transfer -- namely, prisoner safety. See Silva v. Di Vittorio, 6 658 F.3d 1090, 1104 (9th Cir. 2011) (requiring plaintiffs in a 7 prison retaliation action to show that the prison officials’

8 allegedly retaliatory conduct “did not reasonably advance a 9 legitimate correctional goal”). While Ashker asserts that he was 10 transferred because he “initiated the pro se lawsuit that resulted

United States District Court For the Northern District of California

11 in the amended class action complaint filed in this Court,” Ashker 12 Decl. ¶ 16, his transfer was actually ordered before Plaintiffs

13 filed the amended complaint.2 This sequence of events undermines 14 Ashker’s retaliation claim and supports the Court’s decision not 15 to grant the relief he seeks here.

16

CONCLUSION

17

For the reasons set forth above, Ashker’s motion for a

18 preliminary injunction (Docket No. 157) is DENIED.

19

IT IS SO ORDERED.

20

21 Dated: 4/18/2013 22

CLAUDIA WILKEN United States District Judge

23

24

25

26

2 As noted above, Ashker was transferred on September 6, 2012. The
27 Court did not grant Plaintiffs leave to file an amended complaint until

28

September 10, 2012. See Docket No. 135, Order Granting Motion for Leave to File Second Amended Complaint.

5

 
 Case4:09-cv-05796-CW Document136 Filed09/10/12 Page1 of 48

1 JULES LOBEL (pro hac vice)

CENTER FOR CONSTITUTIONAL RIGHTS 2 666 Broadway, 7th Floor

3

New York, New York 10012 Tel: 212.614.6478

4 Fax: 212.614.6499 Email: jll4@pitt.edu
5

CHARLES F.A. CARBONE (SBN 206536) 6 LAW OFFICE OF CHARLES CARBONE

7 P.O. Box 2809 San Francisco, California 94126

8 Tel: 415.981.9773 Fax: 415.981.9774
9 Email: charles@charlescarbone.com

10 Attorneys for Plaintiffs 11 (Additional counsel listed on signature page)

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

OAKLAND DIVISION

15 GEORGE RUIZ, JEFFREY FRANKLIN, )

TODD ASHKER, GEORGE FRANCO,

)

16 GABRIEL REYES, RICHARD JOHNSON, )

DANNY TROXELL, PAUL REDD, LUIS ) Case No.: 4:09-cv-05796-CW 17 ESQUIVEL, and RONNIE DEWBERRY, on )

18

their own behalf, and on behalf of a class of similarly situated prisoners,

) PLAINTIFFS’ SECOND AMENDED ) COMPLAINT

19

)

Plaintiffs,

) CLASS ACTION

20 v.

)

) 21 EDMUND G. BROWN, Jr., Governor of the )

22

State of California; MATTHEW CATE, Secretary, California Department of

) )

23 Corrections and Rehabilitation (CDCR);

)

ANTHONY CHAUS, Chief, Office of

)

24 Correctional Safety, CDCR; and G.D. LEWIS, )

Warden, Pelican Bay State Prison,

)

25

)

26

Defendants.

)

27

28
PLAINTIFFS’ SECOND AMENDED COMPLAINT Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page2 of 48

1

I. INTRODUCTION

2

1. Plaintiffs George Ruiz, Jeffrey Franklin, Todd Ashker, George Franco, Gabriel

3 Reyes, Richard Johnson, Danny Troxell, Paul Redd, Luis Esquivel, and Ronnie Dewberry sue on
4 their own behalf and as representatives of a class of prisoners who have been incarcerated in
5
California’s Pelican Bay State Prison’s Security Housing Unit (“SHU”) for an unconscionably 6

7 long period of time without meaningful review of their placement. Plaintiffs have been isolated

8 at the Pelican Bay SHU for between 11 and 22 years. Many were sent to Pelican Bay directly

9 from other SHUs, and thus have spent even longer – over 25 years – in solitary confinement.

10

2. California has subjected an extraordinary number of prisoners to more than a

11 decade of solitary confinement at the Pelican Bay SHU. According to 2011 California
12 Department of Corrections and Rehabilitation (CDCR) statistics, more than 500 prisoners (about
13

14 half the population at the Pelican Bay SHU) have been there for more than 10 years. Of those

15 people, 78 prisoners have been there for more than 20 years. As one federal judge in the

16 Northern District of California noted, retention of prisoners in the Pelican Bay SHU for 20 years

17 “is a shockingly long period of time.” See Griffin v. Gomez, No. C-98-21038, slip op. at 10 (N.D.
18 Cal. June 28, 2006). 19
3. California’s uniquely harsh regime of prolonged solitary confinement at Pelican 20
Bay is inhumane and debilitating. Plaintiffs and class members languish, typically alone, in a 21 22 cramped, concrete, windowless cell, for 22 and one-half to 24 hours a day. They are denied
23 telephone calls, contact visits, and vocational, recreational or educational programming.

24 Defendants persistently deny these men the normal human contact necessary for a person’s

25 mental and physical well-being. These tormenting and prolonged conditions of confinement have
26 produced harmful and predictable psychological deterioration among Plaintiffs and class
27 members.
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 1
Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page3 of 48

1

4. The solitary confinement regime at Pelican Bay, which renders California an

2 outlier in this country and in the civilized world, violates the United States Constitution’s
3 requirement of due process and prohibition of cruel and unusual punishment, as well as the most 4
basic human rights prohibitions against cruel, inhuman or degrading treatment. Indeed, the 5
prolonged conditions of brutal confinement and isolation at Pelican Bay cross over from having 6
7 any valid penological purpose into a system rightly condemned as torture by the international

8 community.

9

5. The conditions at Pelican Bay have become so harsh and notorious that prisoners

10 at the Pelican Bay SHU, as well as thousands of others incarcerated in facilities across the
11 country, have engaged in two recent sustained hunger strikes.
12 6. California, alone among all 50 states and most other jurisdictions in the world,
13
14 imposes this type of extremely prolonged solitary confinement based merely on a prisoner’s

15 alleged association with a prison gang. While defendants purport to release “inactive” gang

16 members after six years in the SHU, in reality their so-called gang validation and retention

17 decisions (and resulting indefinite SHU placement) are made without considering whether
18 plaintiffs and class members have ever undertaken an illegal act on behalf of a gang, or whether 19
they are – or ever were – actually involved in gang activity. As one example, defendants continue 20
to detain plaintiff George Ruiz in the Pelican Bay SHU after 22 years, based on nothing more 21 22 than his appearance on lists of alleged gang members discovered in some unnamed prisoners’
23 cells and his possession of allegedly gang-related drawings.

24

7. Plaintiffs’ and class members’ only way out of isolation is to “debrief” to prison

25 administrators (i.e., report on the gang activity of other prisoners); as such, defendants
26 unreasonably condition release from inhumane conditions on cooperation with prison officials in
27 a manner that places prisoners and their families in significant danger of retaliation. See Griffin,
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 2
Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page4 of 48

1 No. C-98-21038 at 8. Accordingly, for those many prisoners who refuse or are unable to debrief,

2 defendants’ policies result in “effectively permanent” solitary confinement. Id.

3

8. The conditions at the Pelican Bay SHU are extremely harsh when compared to the

4 experience of a typical California state prisoner, particularly given the extraordinary length of
5

SHU confinement at Pelican Bay. Yet plaintiffs and the class they represent are incarcerated for 6

7 years without any meaningful review of their SHU confinement or any notice of how they can

8 earn their way back to the general population without becoming informants.

9

9. A few years after Pelican Bay opened its doors in December 1989, a class of

10 Pelican Bay prisoners brought a constitutional challenge to the conditions, practices, and abuse at
11 the facility. After an extensive trial, the court found that, for a subclass of prisoners at high risk
12 for developing mental illness, the isolation and harsh conditions in the Pelican Bay SHU
13
14 constituted cruel and unusual punishment. See Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D.

15 Cal. 1995). Although the court rejected Eighth Amendment claims brought by prisoners outside

16 this high risk group, it emphasized that it had only considered isolation lasting up to three years.

17 The court could “not even begin to speculate on the impact on inmates confined in the SHU for
18 periods of 10 to 20 years or more[.]” Id. at 1267. This case presents the substantial question left 19
unanswered by Madrid. 20
10. Plaintiffs and the class seek a declaration that the ongoing practices of the 21 22 defendants – the Governor of California, the Secretary and the Chief of the Office of Correctional
23 Safety of the CDCR, and the Warden of Pelican Bay State prison – violate their constitutional

24 rights, and injunctive relief compelling defendants to provide prisoners at Pelican Bay with

25 meaningful review of their indeterminate SHU assignment and to cease holding prisoners in the
26 inhumane conditions of solitary confinement for extremely prolonged periods. 27

28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 3
Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page5 of 48

1

II. JURISDICTION AND VENUE

2

11. Plaintiffs and the class bring claims pursuant to 42 U.S.C. § 1983 and the Eighth

3 and Fourteenth Amendments to the United States Constitution.
4 12. This Court has jurisdiction for claims seeking declaratory and injunctive relief
5
pursuant to 28 U.S.C. §§ 1331 and 1343 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 6

7 2202.

8

13. Venue is proper in the Northern District of California pursuant to 28 U.S.C. §

9 1391(b)(2) in that a substantial part of the events or omissions giving rise to the claims brought by

10 plaintiffs and the class have occurred in this District.

11
12 A.
13

Plaintiffs

III. PARTIES

14

14. Plaintiff GEORGE RUIZ (B82089) is a 69-year-old prisoner who has spent 22

15 years at the Pelican Bay SHU, and the last 28 years in solitary confinement, due to his validation

16 as a member of the Mexican Mafia (EME). He has had no significant rule violations since his

17 incarceration began in 1980. Indeed, he has only had one disciplinary violation of any kind since

18 1986. He is serving a seven year to life sentence and has been eligible for parole since 1993, but

19 multiple parole boards have indicated that he will never be paroled while he is housed in the
20
SHU. 21

22

15. Plaintiff JEFFREY FRANKLIN (C08545) is a 52-year-old prisoner who has spent

23 the last 22 years at the Pelican Bay SHU. In 2006, he was denied inactive Black Guerilla Family

24 (BGF) status based solely on evidence that he associates with other gang members, shares a

25 common ideology, and attempts to educate the community and other prisoners to his philosophy.

26

16. Plaintiff TODD ASHKER (C58191) is a 48-year-old prisoner who has spent over

27 25 years in solitary confinement, and 22 years at the Pelican Bay SHU. He was validated as an
28

PLAINTIFFS’ SECOND AMENDED COMPLAINT 4

Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page6 of 48

1 Aryan Brotherhood member in 1988, and has been denied inactive status based on confidential

2 memoranda from informants and artwork found in his cell. Ashker has never been charged with
3 or disciplined for a proven gang-related act. As the Warden stated in response to one of Ashker’s 4
administrative grievances, unless Ashker debriefs, by “formally renounc[ing] his membership” in 5
the Aryan Brotherhood and “divulg[ing] all of their secrets to the authorities,” he will remain 6
7 incarcerated in the SHU for the rest of his life.

8

17. Plaintiff GEORGE FRANCO (D46556) is a 46-year-old prisoner who has spent 20

9 years in solitary confinement at the Pelican Bay SHU. In 2008, Franco was denied inactive

10 Nuestra Familia status based on confidential statements by informants regarding his role within
11 the gang, and the fact that his name appeared on gang rosters found in other prisoners’ cells.
12 None of the source items relied on to retain Franco in the SHU for another six years alleged any
13
14 gang activity or criminal conduct.

15

18. Plaintiff GABRIEL REYES (C88996) is a 46-year-old prisoner who has spent

16 almost 16 years continuously in isolation in California, and has been kept in the Pelican Bay SHU

17 for 14 and one-half years. Reyes is serving a sentence of 25 years to life as a result of
18 California’s “three strikes” law. At his last inactive review in 2008, he was denied inactive EME 19
associate status solely on possession of artwork allegedly containing gang symbols. 20
19. Plaintiff RICHARD JOHNSON (K53293) is a 61-year-old prisoner who has spent 21 22 almost 15 years in solitary confinement at the Pelican Bay SHU due to his validation as a BGF
23 member. Under California’s “three strikes” law, Johnson is currently serving 33 years to life for

24 drug-related offenses. Johnson has never incurred a major disciplinary offense, yet continues to

25 languish in the Pelican Bay SHU.

26

20. Plaintiff DANNY TROXELL (B76578) is a 59-year-old prisoner who has spent

27 over 26 years in solitary confinement, and 22 years at the Pelican Bay SHU due to his validation
28

PLAINTIFFS’ SECOND AMENDED COMPLAINT 5

Case No.: 4-09-cv-05796-CW

Case4:09-cv-05796-CW Document136 Filed09/10/12 Page7 of 48

1 as a member of the Aryan Brotherhood. Troxell’s only act of violence in the last 30 years

2 involved a fist fight in 1997 in which nobody was significantly injured. He has been eligible for
3 parole since 1996, but pursuant to a practice of denying parole to all SHU prisoners, he has no 4
hope of being released from prison. 5
21. Plaintiff PAUL REDD (B72683) is a 55-year-old prisoner who has spent almost 6
7 33 of the past 35 years in solitary confinement in California and has spent the last 11 and one-half

8 years in Pelican Bay’s SHU. Redd was first validated as a BGF gang member in 1980 based on

9 six confidential memoranda stating that he had communicated with other BGF prisoners and that
10 his name was on a coded roster found in a validated BGF member’s possession. Over 30 years 11
later, he continues to be labeled a gang member based merely on association. 12
22. Plaintiff LUIS ESQUIVEL (E35207) is a 43-year-old prisoner who has spent the 13 14 last 13 years in solitary confinement in the Pelican Bay SHU. He has never incurred a serious
15 disciplinary violation. In 2007, after more than six years in the SHU, Esquivel was determined to

16 be an inactive gang associate, but was nonetheless retained in the SHU. He was revalidated as an

17 active EME associate a year later because he possessed allegedly gang-related Aztec artwork.

18

23. Plaintiff RONNIE DEWBERRY (C35671) is a 53-year-old prisoner who has spent

19 the last 27 years in solitary confinement. He has been repeatedly validated as a BGF member
20
based merely on his associations and his political, cultural, and historical writings. He has had no 21

22 major disciplinary infractions since 1995. Dewberry would be eligible for parole consideration

23 but for his retention in the SHU.

24

24. As detailed below, plaintiffs are suffering serious mental and physical harm due to

25 their prolonged confinement in isolation at the Pelican Bay SHU.
26 B. Defendants
27 25. Defendant EDMUND G. BROWN, Jr., is the Governor of the State of California.
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1 As such, he has caused, created, authorized, condoned, ratified, approved or knowingly

2 acquiesced in the illegal, unconstitutional, and inhumane conditions, actions, policies, customs

3 and practices that prevail at Pelican Bay SHU, as described below. He has, therefore, directly and
4 proximately caused, and will continue to cause in the future, the injuries and violations of rights
5
set forth below. Defendant Brown is sued in his official capacity only. 6

7

26. Defendant MATTHEW CATE is the Secretary of the CDCR. As such, he has

8 caused, created, authorized, condoned, ratified, approved, or knowingly acquiesced in the illegal,

9 unconstitutional, and inhumane conditions, actions, policies, customs and practices that prevail at

10 the Pelican Bay SHU, as described below. He has, therefore, directly and proximately caused,

11 and will continue to cause in the future, the injuries and violations of rights set forth below.
12 Defendant Cate is sued in his official capacity only.
13

14

27. Defendant ANTHONY CHAUS is the Chief of the Office of Correctional Safety

15 of the CDCR. The Office of Correctional Safety houses and supervises the Special Services Unit

16 (SSU), which is CDCR’s primary departmental gang-management unit responsible for

17 investigating prisoners suspected of gang affiliation. As such, he has caused, created, authorized,
18 condoned, ratified, approved, or knowingly acquiesced in the illegal, unconstitutional, and 19
inhumane conditions, actions, policies, customs and practices that prevail at the Pelican Bay 20
SHU, including but not limited to issues of gang validation. He has, therefore, directly and 21 22 proximately caused, and will continue to cause in the future, the injuries and violations of rights
23 set forth below. Defendant Chaus is sued in his official capacity only.

24

28. Defendant G.D. LEWIS is the Warden of Pelican Bay State Prison. As such, he

25 has caused, created, authorized, condoned, ratified, approved or knowingly acquiesced in the
26 illegal, unconstitutional, and inhumane conditions, actions, policies, customs, and practices that
27 prevail at the Pelican Bay SHU, as described below. He has, therefore, directly and proximately
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1 caused, and will continue to cause in the future, the injuries and violations of rights set forth

2 below. Defendant Lewis is sued in his official capacity only.

3
4 A.
5
6

IV. FACTUAL ALLEGATIONS Conditions at the Pelican Bay SHU 29. California opened Pelican Bay State Prison on December 1, 1989. It is the most

7 restrictive prison in California and one of the harshest super-maximum security facilities in the

8 country.

9

30. The prison is split between general population units for maximum security

10 prisoners and the Security Housing Unit (SHU). The SHU contains 1,056 cells explicitly
11 designed to keep the alleged “worst of the worst” in the state prison system under conditions of
12 extreme isolation, sensory deprivation, and restricted movement. Also characteristic of Pelican
13
14 Bay’s SHU are the extremely limited recreational and cultural opportunities afforded to prisoners,

15 a near total lack of contact with family and loved ones, an absolute denial of work opportunities,

16 limited access to personal property, and extraordinary levels of surveillance and control.

17

31. Pelican Bay was specifically designed to foster maximum isolation. Situated in

18 rural Del Norte County, on California’s northern border with Oregon, its lengthy distance from
19 most prisoners’ families was considered advantageous by the California correctional
20 administrators who developed the facility. The prison is a 355-mile drive from San Francisco and
21
22 a 728-mile drive from Los Angeles, where many of the prisoners’ families live.

23

32. The original planners did not contemplate that prisoners would spend decades at

24 Pelican Bay. Rather, they designed the prison under the assumption that prisoners would

25 generally spend up to 18 months in the SHU – a term consistent with practices in the rest of the
26 country.
27 33. According to CDCR, there were on average 1,106 people incarcerated in the
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1 Pelican Bay SHU in 2011. About half (513) had been in the SHU for more than 10 years. Of

2 those people, 222 had been incarcerated in the SHU for 15 or more years, and 78 had been there
3 for more than 20 years. Of the remaining people, 544 had been in the SHU for five to 10 years, 4
and the rest, 54, were there for five years or less. 5
34. Many plaintiffs and class members, including Ruiz, Ashker, Troxell, Franklin, and 6
7 Dewberry, have been at Pelican Bay since the year it opened.

8

35. Some plaintiffs and class members have spent even longer in continuous isolation,

9 as they were transferred directly from other solitary units to the Pelican Bay SHU. For example,

10 Ruiz has been held in solitary confinement since 1984 – for approximately 28 years. Dewberry

11 has been in isolation for 27 years. Troxell has spent over 26 years in isolation, and Ashker has
12 spent over 25 years in isolation.
13

14

36. All plaintiffs have been held in the Pelican Bay SHU for over 10 years.

15

37. California’s prolonged isolation of thousands of men is without equal in the United

16 States. There is no other state in the country that consistently retains so many prisoners in

17 solitary confinement for such lengthy periods of time.

18

38. The cost of housing a prisoner at the Pelican Bay SHU is considerably higher than

19 the cost of incarcerating a prisoner in general population housing. CDCR reports that it cost the
20
State $70,641 in 2010-2011 to house a single prisoner at the Pelican Bay SHU – tens of thousands 21

22 of dollars more per prisoner than in the general population.

23

39. Plaintiffs and the hundreds of other long-term SHU residents at Pelican Bay are

24 warehoused in cramped, windowless cells, are given almost no access to recreation or exercise,

25 and have no access to programming or vocational activities. Prisoners never leave the Pelican
26 Bay SHU except under rare circumstances for medical purposes or a court appearance.
27 40. Compounding the extremity of their situation, plaintiffs and class members must
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1 face these conditions in a state of near total solitude. Pelican Bay prisoners have absolutely no

2 access to group recreation, group education, group prayer, or group meals. Most are housed in a
3 single-occupancy cell and cannot have a normal human conversation with another prisoner. Their 4
only avenue of communication is by speaking loudly enough for the prisoner in the next cell, or a 5
cell down the line, to hear. Guards, however, have discretion to issue warnings and punish any 6
7 loud communication as a rule violation, and do so. Moreover, any communication with another

8 validated gang member or associate, even just a greeting, may be and has been used by CDCR as

9 evidence of gang affiliation justifying the prisoners’ retention in the SHU.

10

41. For example, CDCR cited as evidence of Franklin’s continued gang affiliation the

11 fact that he was observed in 2006 “communicating by talking” between pods with another
12 prisoner who is a validated member of a different gang.
13

14

42. Similarly, in March 2011, Franco received a disciplinary violation simply for

15 speaking to a prisoner in the next pod as he passed by his cell on the way back from the shower.

16 Redd, too, was disciplined in 2007 for talking to another prisoner in passing.

17

43. While some plaintiffs and class members have had cellmates at Pelican Bay, being

18 locked up with a cellmate all day in an 80-square-foot cell does not compensate for the severe
19 isolation of the Pelican Bay SHU, as the Madrid Court found. See Madrid, 889 F.Supp. at 1229-
20 30. Instead, double-celling requires two strangers to live around-the-clock in intolerably cramped
21
22 conditions, in a cell barely large enough for a single human being to stand or sit.

23

44. Plaintiffs’ and class members’ communication with loved ones outside the facility

24 is also subject to severe restrictions.

25

45. Prisoners at the Pelican Bay SHU are prohibited from any access to social

26 telephone calls absent an emergency. A single telephone call may be granted to a prisoner in the
27 event of an emergency (such as a death in the family), but Pelican Bay staff retains complete
28
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1 discretion to determine whether the circumstances allow for a call. Ashker, for example, was able

2 to speak to his mother only twice in 22 years: once in 1998, and once in 2000. She has since
3 died. Reyes was denied a telephone call home after his stepfather died, because he had been 4
allowed a telephone call several months earlier when his biological father died. 5
46. Neither plaintiffs nor the experts they have consulted are aware of any other 6
7 federal, local or state correctional system in the United States that forbids all non-emergency

8 telephone communication.

9

47. The remote location of Pelican Bay means that most SHU prisoners receive no

10 visits with family members or friends for years at a time. Many prisoners have thus been without
11 face-to-face contact with people other than prison staff for decades.
12 48. When they do occur, family visits are limited to two two-hour visits on weekends.
13
14 No physical contact whatsoever is allowed; visits occur behind plexiglass, over a telephone, in a

15 cramped cubicle. This means that prisoners may not even hug or hold hands with visiting family

16 members, children, or other loved ones. Despite the non-contact nature of the visits, prisoners are

17 strip-searched before and after.

18

49. The visits are monitored and recorded, and the tapes are later reviewed by gang

19 investigators seeking evidence of gang communication to use against the prisoner and his visitor.
20
50. When Ashker’s disabled mother visited him, no accommodation was made for her 21

22 wheelchair, causing a shortened and difficult visit. She never visited again. Dewberry, whose

23 family lives in Oakland, has had less than one visit per year since his 1990 transfer to Pelican

24 Bay. He had no visits between 2008 and February 2012. Franklin’s last social visit was in 2005.

25

51. Troxell’s family has given up trying to visit him because of the distance and cost

26 of traveling to Pelican Bay and because non-contact visits are so upsetting. He has five
27 grandchildren and one great-grandchild, but has never met them.
28
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1

52. Esquivel sought a hardship transfer from Pelican Bay, due to his mother’s

2 difficulty in visiting him from San Diego. The transfer was denied, and he was told to debrief
3 instead. As a result, Esquivel was unable to see or speak to his parents between 2000 and 2009, 4
when his mother died. After her death, he was allowed one phone call with his father and sister – 5
his only social call in nine years. As soon as he hung up the phone, Pelican Bay gang 6
7 investigators told him to think about taking advantage of the debriefing program.

8

53. The lack of telephone calls and functional lack of visitation imposes considerable

9 strain on family relationships; those relationships have frequently broken down entirely. Reyes

10 has not hugged his daughters in almost two decades, since they were in pre-school. They are now
11 adults. Reyes was only recently allowed to send his children a photograph of him – his first in 17
12 years. His aging mother is ill and cannot travel the considerable distance to Pelican Bay, and the
13
14 rules forbid him to speak with her by phone.

15

54. Esquivel has not shaken another person’s hand in 13 years and fears that he has

16 forgotten the feel of human contact. He spends a lot of time wondering what it would feel like to

17 shake the hand of another person.

18

55. Prisoners at the Pelican Bay SHU may receive non-legal mail, but they may only

19 keep 10 pieces of social mail at a time; any other mail is confiscated. There are significant delays
20
in the delivery of both social and legal mail to prisoners. 21

22

56. These extreme restrictions on human contact are imposed on plaintiffs and class

23 members as a matter of official CDCR policy and have been approved or implemented by

24 defendants.

25

57. In addition to the near total isolation that prisoners at Pelican Bay face, the

26 physical conditions under which they live are stark.
27 58. The cells in the Pelican Bay SHU are completely concrete, measure approximately
28
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1 80 square feet, and are eight feet high. They contain a bed made of concrete, a sink, and a toilet.

2 Concrete slabs projecting from the walls and floor serve as a desk and stool. The cells have no
3 window, so prisoners have no view of the outside world, nor any exposure to natural light. Until 4
the summer 2011 hunger strike described below, prisoners were not allowed to put up any 5
decorations, drawings, or photographs on their walls; now they are permitted one wall calendar. 6
7 The doors to the cells consist of solid steel, rather than bars, and are perforated with small holes

8 that allow for a partial view into a concrete hallway. The door has a food slot that an officer may

9 unlock to insert food or mail, and that is also used to handcuff the prisoner before the door is
10 opened. The cells do not contain an emergency call button, so prisoners must yell for help in the 11
event of an emergency, or rely on a staff member noticing that they are in distress. 12
59. The unit is loud – guards’ conversations echo down the tier all day. At night the 13 14 guards stamp mail loudly, open and close doors, and walk the tier with rattling keys and chains
15 for count. Prisoners who are not “showing skin” during these counts are awakened. As a result

16 of these conditions, and the impact of their long-term isolation, many prisoners have developed

17 sleep disorders, vision problems, and headaches.

18

60. Bedding consists of a hard, lumpy mattress, sheets, and two thin blankets.

19 61. The temperature in the cells can be excessively hot or cold. The ventilation
20
consists of recycled air, which is cold in the winter and hot in the summer. 21

22

62. Property is tightly restricted. Plaintiffs and the class are allowed a total of only 10

23 books or magazines, and up to six cubic feet of property. They may purchase a television set or

24 radio if they have the means, though available stations are limited. Prisoners at the Pelican Bay

25 SHU are given one quarter of the regular monthly canteen allowance and may receive one annual
26 package, not exceeding 30 pounds in weight, including packaging.
27 63. Plaintiffs and the class normally spend between 22 and one-half and 24 hours a
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1 day in their cells. They are typically allowed to leave their cells only for “exercise” and to

2 shower.

3

64. “Exercise” occurs in a barren, solid concrete exercise pen, known as a “dog run.”

4 It is supposed to last for one and one-half hours, seven times weekly. However, prisoners often
5

do not receive even this minimal amount of exercise due to staff shortages and training days, 6

7 disruptions, inclement weather, or arbitrary staff decisions.

8

65. The exercise pen is small and cramped, with high walls. Half of the roof is

9 partially covered with painted plexiglass and a metal mesh grate that obstructs direct sunlight; the

10 other half allows the only exposure Pelican Bay SHU prisoners ever have to the sky. Pelican Bay
11 is situated in one of the wettest areas of California, with an average rainfall of 67 inches. Rain
12 falls directly into the exercise pens, causing water to pool on the floor. The walls of the exercise
13
14 pen have accumulated mildew or mold, aggravating respiratory problems among the prisoners.

15

66. Until the 2011 hunger strike, there was no equipment whatsoever in the exercise

16 pen. Since then, prisoners have been provided one handball. Prisoners exercise alone, unless they

17 share their cell, in which case they are permitted to exercise with their cellmate. If a prisoner
18 with a cellmate wants to exercise alone to get a brief period of privacy, then his cellmate must 19
forfeit his opportunity to exercise. 20
67. Plaintiffs and other Pelican Bay SHU prisoners have absolutely no access to 21 22 recreational or vocational programming. While those prisoners who can afford them are allowed
23 to take correspondence classes, there has been no consistent access to proctors for exams that

24 would allow prisoners to get credit for their coursework. Until the 2011 hunger strike, prisoners

25 at the facility were banned from purchasing art supplies or hobby or crafting materials. Prisoners
26 who are discipline free for one year are now permitted to purchase and retain a limited amount of
27 art supplies.
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1

68. Prisoners at the Pelican Bay SHU are allowed one 15-minute shower in a single

2 shower cell three times weekly.

3

69. Prisoners are allowed access to the law library for two hours, once a month, unless

4 they have a court deadline within 30 days.
5

70. Whenever a prisoner is moved outside of the “pod” in which he is housed and in 6

7 which the shower and exercise pen is located, he is handcuffed, his hands are shackled to his

8 waist or behind his back, and he is escorted by two guards. The prisoner is also strip searched in

9 public, near the door to the pod.

10

71. While prisoners in the SHU are supposed to be served the same meals as other

11 prisoners in California, in practice it is common that the meals prisoners receive in the SHU are
12 substandard in that they contain smaller portions, fewer calories, and often are served cold, rotten,
13

14 or barely edible.

15

72. Conditions at Pelican Bay are so harsh, even compared to other California SHUs,

16 that in 2011 Franklin requested to be transferred out of the Pelican Bay SHU to any of the other

17 three SHUs in California so that he could have “minimal human contact” and not suffer the

18 “extreme sensory deprivation” at Pelican Bay. In his request, he explained that other SHUs have

19 windows in the cells, allow some time for prisoners to “see and talk with each other,” and permit
20
prisoners to “see grass, dirt, birds, people and other things.” 21

22

73. Defendants are directly responsible for these stark conditions at Pelican Bay, and

23 for the degree to which the conditions are compounded by other punitive measures, including a

24 pattern and practice of coercive denial of standard medical care.

25

74. Plaintiffs have serious medical conditions, some of which, upon information and

26 belief, have been caused or exacerbated by their confinement at the Pelican Bay SHU. Franklin,
27 for example, has chronic back and eye problems, and Dewberry suffers from melanin deficiency
28
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1 leading to severe pigmentation loss, vitamin D deficiency, chronic lower back problems and pain,

2 stomach problems, and swollen thyroid glands. Redd suffers from hypertension, diabetes, vision
3 problems, and a thyroid disorder for which he receives no medication. 4
75. Johnson has osteoporosis, arthritis, and cysts in both kidneys, and he has suffered 5
renal failure. He also had a heart attack in 2009 while in the SHU, and takes heart medication. 6
7 He was scheduled to be transferred to Folsom Prison because of his heart condition, but was later

8 refused transfer after his participation in the Pelican Bay hunger strike.

9

76. Reyes suffers from several chronic medical ailments, including Sjogren’s Disease,

10 for which he was prescribed effective medications; those medications have been discontinued at
11 the Pelican Bay SHU, and other medical treatment has also been withdrawn without explanation.
12 77. Ruiz has glaucoma and had a corneal transplant on his left eye. He may need one
13
14 for his right. He has diabetes, which became aggravated after a change in his medication. He

15 recently developed pneumonia, kidney failure, and difficulty breathing, and experienced a delay

16 in being seen by a medical practitioner.

17

78. Despite these serious conditions, prisoners with medical concerns are routinely

18 told by prison officials that if they want better medical care for their conditions or illnesses, or
19 improved pain management, the way to obtain adequate care is to debrief.
20 79. Ashker, for example, who suffers from almost constant pain due in part to an old
21
22 gunshot wound, was told by Pelican Bay medical staff in 2006 that he “holds the keys” to getting

23 better medical care, presumably by debriefing and moving to the general population.

24

80. Ruiz and Johnson have also been told that the only path to better health care is

25 debriefing.

26

81. The denial of adequate medical care at Pelican Bay is not isolated to a few doctors

27 or correctional officials, but is rather a longstanding pattern and practice which, on information
28

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1 and belief, has been officially sanctioned by defendants for the purpose of coercing plaintiffs and

2 class members to debrief.

3

82. The serious mental-health impact of even a few years in solitary confinement is

4 well documented, yet mental health care at the Pelican Bay SHU is grossly inadequate. Every
5

two weeks, a psychologist walks past the prisoners’ cells, calling out “good morning,” or “you 6

7 okay?” The psychologist walks past eight cells in approximately 30 seconds during these

8 “rounds.” It is incumbent on a prisoner to get the psychologist’s attention to indicate that he

9 wants to talk. As a result, prisoners in neighboring cells are aware when someone calls out to the
10 psychologist for help. There is no opportunity during this brief encounter for a private 11
consultation with a mental-health practitioner. 12
83. Indeed, beyond a brief intake screening upon their arrival to the SHU, the only 13 14 mental health assessment that many SHU prisoners receive occurs at Institutional Classification
15 Committee meetings, at which a mental health staff member is present. Each prisoner is asked

16 two standard questions: (1) whether he has a history of mental illness; and (2) whether he wants

17 to hurt himself or others. These questions are asked in front of the Warden, Correctional Captain,
18 and numerous other correctional staff. No further mental health evaluation occurs. 19
84. For these reasons, plaintiffs and class members have received inadequate mental 20
health care or none at all. Though prisoners may request mental-health services by filling out a 21 22 form, some plaintiffs have declined to seek any mental health care while incarcerated because of
23 concerns over lack of confidentiality. Others do not talk to mental health staff because those staff

24 members seem uncaring, and because officers can overhear sessions or are told of prisoners’

25 personal problems.

26

85. When one plaintiff actually requested mental health care, he was referred to a

27 “self-help” library book.
28

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1

86. SHU assignment also prolongs plaintiffs’ and class members’ time in prison.

2 Since legislative changes in 2010, prisoners cannot earn “good time” or “conduct” credit while in
3 the SHU for gang affiliation. Therefore, a prisoner with a determinate (fixed) sentence such as 4
Esquivel, who was convicted in 1997 of robbery and burglary and is serving a flat 34-year 5
sentence, will be released between four and five years later than he otherwise would have simply 6
7 because he is incarcerated in the SHU.

8

87. In addition, an unwritten policy prevents any prisoner held in the SHU from being

9 granted parole. Ruiz, Ashker, Troxell, Franklin, and Dewberry are all eligible for parole, but
10 have been informed by parole boards that they will never attain parole so long as they are housed 11
in the SHU. 12
88. Ruiz, for example, has been incarcerated in California since 1981, after he was 13 14 convicted of robbery and kidnapping and sentenced to seven years to life in prison. He was told
15 by the judge that he would likely serve 13 and one-half years, and has been eligible for parole

16 since 1993. However, multiple parole boards have indicated that he will never get parole as long

17 as he is housed in the SHU.

18

89. Franklin has been eligible for parole since 2000, and although the parole board has

19 characterized his disciplinary history at Pelican Bay as “minimal,” it has repeatedly denied him
20
parole, citing, among other things, his refusal to disassociate with the gang through debriefing. In 21

22 2001, he was explicitly told that he needed to get out of the SHU to gain parole.

23

90. So too, Dewberry and Ashker have been eligible for parole since 1996 and 2004

24 respectively, but have been informed that they will not receive parole unless they first get out of

25 the SHU. 26

27

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1 B. Assignment to and Retention in the Pelican Bay SHU

2

i. Initial Assignment to the SHU

3

91. CDCR places prisoners who have been validated as gang affiliates into the above

4 conditions in SHU for an indefinite term, served in repeatedly renewed six-year increments. See
5

CAL. CODE REGS. tit. 15, § 3341.5(c)(2)(A)(2) (2012). 6

7

92. Ignoring prisoners’ actual behavior, CDCR identifies prison gang affiliates

8 through a process called prison gang validation. See CDCR, OPERATIONS MANUAL § 52070.21

9 (2009). Validation does not require CDCR to show that the prisoner has violated a prison rule,

10 broken the law, or even acted on behalf of the gang. Indeed, many prisoners who have not

11 engaged in any gang-related misconduct or rule violations before validation are placed in the
12 SHU based merely on allegations that they have associated with a gang.
13

14

93. For example, Ruiz, Johnson, Redd, Esquivel and Dewberry were all validated as

15 gang members or associates without allegations of actual gang activity or gang-related rule

16 violations. Rather, the prison relied on confidential informants who claimed these plaintiffs were

17 gang members or associates, on possession of allegedly gang-related art, tattoos, or written
18 material, and/or on inclusion of their names on alleged lists of gang members and associates. 19
94. When validated, prisoners are classified as either gang members or gang 20
associates. A “member” is a prisoner who has been accepted into membership by a gang. CAL. 21
22 CODE REGS. tit. 15, § 3378(c)(3). An “associate” is a prisoner or any person who is involved

23 periodically or regularly with members or associates of a gang. Id. at § 3378(c)(4). Both

24 members and associates (referred to globally as “gang affiliates”) are subject to indefinite SHU

25 confinement.

26

95. California’s practice of placing people in long-term SHU confinement simply

27 because of gang association is unusual and does not comport with the general practice of other
28

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1 states that maintain super-maximum security prisons.

2

ii. Periodic Review

3

96. Once a prisoner is validated as a gang affiliate and sent to the SHU for an

4 indefinite term, he is entitled to periodic “reviews” of his validation. Pursuant to California
5

regulations, a classification committee must review the prisoner’s status every 180 days, allegedly 6

7 so they can consider releasing the prisoner to the general population. Id. at

8 § 3341.5(c)(2)(A)(1). In reality, classification reviews do not substantively review the prisoner’s

9 SHU assignment, but rather involve three steps. First, the prisoner is urged to debrief from the
10 gang. Second, a mental health staff member asks two questions: (1) do you have a history of 11
mental illness; and (2) do you want to hurt yourself or others? This mental health evaluation 12
occurs in front of all members of the classification committee, including the Warden, Facility 13 14 Captain, Correctional Captain, the Assignment Lieutenant, and other correctional staff. See id. at
15 § 3376(c)(2). Third, the classification committee “reviews” the paperwork in the prisoners’ file,

16 to make sure that all required paperwork is accounted for.

17

97. Unless a prisoner is willing to debrief, the 180-day review allows absolutely no

18 possibility of release from the SHU.
19 98. No examination of continued gang activity or association occurs at the 180-day
20 review, nor is there any assessment of whether the prisoner’s behavior requires continued SHU
21
22 placement. For this reason, such reviews are meaningless, and few Pelican Bay SHU prisoners

23 attend them.

24

99. The only review at which the classification committee team even purports to

25 determine whether the prisoner should be released from the SHU occurs once every six years. See
26 id. at § 3378(e). Therefore, all gang validated prisoners in the SHU must remain in solitary
27 confinement for six years without even the possibility of any review to obtain their release. This
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1 six-year interval is far longer than any equivalent classification review at other supermax or high-

2 security systems in other states, the federal system, or other nations, and is far longer than the
3 120-day period that the Ninth Circuit deemed constitutionally permissible for prisoners housed in 4
solitary confinement in Toussaint v. McCarthy, 926 F.2d 800 (9th Cir. 1990). 5
100. Yet even this six-year inactive review is meaningless for most prisoners housed in 6
7 the SHU.

8

101. In some cases, like that of plaintiffs Ashker and Troxell, defendants have made a

9 predetermined decision to deny inactive status and thus retain the prisoner in the SHU until he

10 either debriefs or dies. For example, in 2004, Pelican Bay Warden Joe McGrath wrote in
11 response to one of Ashker’s grievances that Ashker had been identified as an active member of
12 the Aryan Brotherhood and that “such an inmate must formally renounce his membership in this
13 14 group and divulge all of their secrets to the authorities. The alternative is remaining where
15 extremely dangerous inmates belong: the SHU.”

16

102. For many, the six-year review results in SHU retention even though the prison can

17 produce no evidence (or even allegations) of gang activity. The review is supposed to determine
18 whether the prisoner is “active” with the prison gang or has assumed “inactive” status. Under 19
California regulations, “when the inmate has not been identified as being involved in gang 20
activity for a minimum of six (6) years,” he can achieve “inactive status” and may be released 21
22 from the SHU. CAL. CODE REGS. tit. 15, § 3378(e).

23

103. Logically, one who achieves “inactive” status is still a gang member or associate,

24 but not an “active” one, in that he does not engage in any gang activities. Yet CDCR routinely

25 and regularly denies inactive status to prisoners even where there is no evidence whatsoever of
26 any gang activity. This longstanding pattern and practice is not the result of failings by individual
27 gang investigators, but is instead CDCR policy which, upon information and belief, has been
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1 approved and implemented by defendants. Plaintiffs’ experiences demonstrate this pattern.

2

104. Ruiz, for example, was denied inactive gang status in 2007 based on: (a) two 2006

3 searches of unnamed prisoners’ cells that uncovered Ruiz’s name on a laundry list of purported
4 EME members and associates in “good standing”; and (b) possession of photocopied drawings in
5
his cell. Ruiz openly possessed this artwork, drawn by other prisoners, for at least eight years 6

7 without any complaint or objection from prison officials. Three days before his 2007 inactive

8 review, CDCR asserted that the drawings contained symbols associated with the EME. Neither

9 of these source items provides any evidence of active gang involvement.

10

105. Reyes too has been repeatedly denied inactive status based on association, without

11 evidence of any gang activity. At his first inactive review, for example, Reyes was denied
12 inactive status based on one source item: exercising with other validated prisoners in a group yard
13

14 while in administrative segregation. At his last inactive review, in 2008, Reyes was denied

15 inactive status based only on drawings found in his cell, including a drawing for a tattoo of his

16 name with alleged Mactlactlomei symbols and a drawing of a woman, man and Aztec warrior,

17 with a geometric pattern known as the G-shield. The G-shield also appears in a tattoo on Reyes’
18 left pectoral and was rejected as a gang-related source item in 1996, 2003 and 2005. 19
106. Franklin has had similar experiences. In 2006, he was denied inactive status 20
because he was listed as a board member of George Jackson University, claimed by CDCR to be 21 22 a gang front, and because his name appeared on gang rosters confiscated from other prisoners.
23 Shortly thereafter he was seen “communicat[ing] by talking” with a validated member of a

24 different gang. CDCR officials instructed that this should be considered during Franklin’s next

25 inactive review.

26

107. Johnson’s inactive reviews have also largely focused on association and shared

27 ideology. In 1997, for example, he was denied inactive status based on a Black Power tattoo,
28

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1 possession of a book about George Jackson (Paul Liberatore’s The Road to Hell: the True Story
2 of George Jackson, Stephen Bingham, and the San Quentin Massacre), and a photograph collage 3 of him and George Jackson. Staff confidential informants also alleged, without any supporting 4
facts attached, that Johnson was a high-ranking member of the BGF and that he communicated 5
with BGF members through third parties. Johnson was denied inactive status in 2006 based on 6 7 old source items and possession of a copy of “N-GOMA Pelican Bay Support Project, Black
8 August 2005,” a newsletter which includes dedications to alleged BGF members who have died.
9 None of these source items provide any evidence of Johnson’s active involvement in a prison 10 gang in the prior six years. 11
108. Redd was denied inactive status in 2011 based purely on association and not on 12
any gang-related actions. His SHU retention was based on possession of drawings, collages, and 13 14 booklets related to George Jackson and the Black Panthers, as well as a card from a former Black 15 Panther Party member and his appearance on a roster of purported gang affiliates found amid the
16 property of another prisoner. In addition, according to confidential informants, Redd is a
17 “captain” of BGF who has communicated with other BGF members. None of these source items 18 provide any evidence of Redd’s actions on behalf of a prison gang in the prior six years. 19
109. Dewberry was recently denied inactive status in November 2011 based on his 20
name appearing on a coded roster in another prisoner’s possession, as well as such materials as 21 22 his political and historical writings, his possession of a pamphlet in Swahili, which defendants’ 23 inactive review materials state is “a banned language at PBSP,” confidential memoranda stating
24 that he is an “enforcer,” and his participation in George Jackson University, which according to
25 defendants’ inactive review materials “is not a university at all,” but rather a “concept,” “to teach 26 the philosophies and ideologies of all ‘Political Prisoners’” and “to enlist individuals who are not 27
in prison to help spread the ideologies of the BGF (Black Guerilla Family).” None of the 28
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1 materials used to deny Dewberry inactive status and consign him to the SHU for at least six more

2 years contained any evidence whatsoever that Dewberry was involved in any violent or gang-
3 related activity. 4
110. The most recent review of Franco’s validation was in 2008, when he was found 5
inactive in the Northern Structure but was revalidated as an active Nuestra Familia member. His 6
7 SHU retention was based on several confidential memoranda from informants regarding his status

8 within the Nuestra Familia along with inclusion of his name on several gang rosters found in the

9 cells of other validated gang members. None of the source items relied on to consign Franco to
10 another six years in the SHU alleged any actual gang activity or criminal conduct. 11
111. At the same time that they were repeatedly denied inactive status, many plaintiffs 12
have demonstrated their ability to follow prison rules by avoiding any significant prison 13 14 misconduct. Ruiz, for example, has been disciplined only once for violating a prison rule in over
15 25 years. Indeed, his only rule violations in the past 30 years have been for missing count in

16 1981, possession of wine in 1983, possession of unlabeled stimulants and sedatives in 1986, and a

17 2007 rule violation entitled “Mail Violation With No Security Threat.” Despite this innocuous
18 prison record, he has spent over 25 years in harsh isolation, without access to normal human 19
contact. 20
112. Similarly, Reyes’ only disciplinary offenses in the last 12 years involved the recent 21 22 hunger strike and unauthorized donation of artwork to a non-profit organization. Johnson has had
23 only one rule violation in close to 15 years in the Pelican Bay SHU: in 2000, he was disciplined

24 for a mail violation.

25

113. With the exception of violations in 2011 related to his involvement in the hunger

26 strikes and his possession of a Black History scrapbook including information on the BGF’s
27 history, Dewberry has not been charged with violating any prison rule since 1995.
28
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1

114. Redd’s disciplinary offenses since 2000 consist mainly of simply speaking with

2 other prisoners in passing, along with one mail violation.

3

115. When, in the rarest of cases, a long-term prisoner does achieve inactive status,

4 even this is no guarantee of escape from solitary confinement. In 2007, after more than six years
5

in the SHU with only minor disciplinary write-ups, including, for example, refusing handcuffs, 6

7 refusing to leave the yard, and yelling, Esquivel was determined to be an inactive EME associate.

8 Nevertheless, he was retained in the SHU for a 12-month observation period. In 2008, after one

9 year of SHU observation, Esquivel was revalidated as an active gang associate based on one
10 source item: a report that officers found three items of artwork with Aztec symbols in his cell. 11
116. CDCR informs prisoners that they can gain release from the SHU as an “inactive” 12
gang member if CDCR has no evidence that they have been involved in “gang activity” for at 13 14 least six years, but in practice it denies prisoners inactive status even where there is no evidence
15 of any “gang activity” as that word is understood by the ordinary person. This denies meaningful

16 review.

17

117. At the same time, plaintiffs and class members are not given information about an

18 actual path out of the SHU, besides debriefing.
19 118. The disconnect between CDCR’s stated policy and actual practice has been
20 compounded by the settlement in the case of Castillo v. Almeida, C-94-2847 (N.D. Cal. 1994),
21
22 agreed to on September 23, 2004. In that settlement, CDCR officials agreed that “laundry lists” –

23 that is, lists by confidential sources, including debriefers, of alleged associates or members

24 without reference to gang-related acts performed by the prisoner – would not be used as a source

25 item to either validate a prisoner as a gang affiliate or deny him inactive status. CDCR officials
26 also agreed that “the confidential source must identify specific gang activity or conduct
27 performed by the alleged associate or member before such information can be considered as a
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1 source item.” Id. at ¶ 21.

2

119. The Castillo settlement was memorialized in a public document filed with the

3 court and widely publicized to the prisoners at Pelican Bay prison. Despite the Castillo
4 settlement, defendants continue to rely on “laundry lists” and on informants who identify no
5
specific gang activity or conduct by the prisoner to retain plaintiffs and class members at the 6

7 Pelican Bay SHU at the six-year inactive review. Such review violates due process a) by denying

8 Plaintiffs and class members’ fair notice of the evidence that can be used against them to deny

9 inactive status, and b) by providing confusing and misleading notification of what they need to do
10 to get out of the SHU. 11
120. Thus, CDCR’s practice of denying prisoners release despite their record of 12
inactivity operates as a cruel hoax. This bait-and-switch furthers the hopelessness and despair 13 14 that plaintiffs and other prisoners experience in the SHU and leads them to reasonably believe
15 that there is no way out of the SHU except to debrief or die.

16

121. Defendants’ policy of retaining prisoners in the SHU who are not active gang

17 affiliates, or against whom no reliable evidence exists that they present any threat of gang-related
18 violence or misconduct, is unmoored from any legitimate penological purpose or security need. 19
122. These are not isolated aberrations limited to plaintiffs. Rather, defendants engage 20
in an unwritten but consistent pattern and practice of equating gang association or shared 21 22 ideology with “current gang activity.” All prisoners in the Pelican Bay SHU are subject to this
23 practice.

24 C. Psychological Harms

25

123. In addition to being deprived of the minimal civilized measure of life’s necessities

26 as described above, plaintiffs and class members are also experiencing unrelenting and crushing
27 mental anguish, pain, and suffering as a result of the many years they have spent without normal
28
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1 human interaction, in stark and restrictive conditions, without any hope of release or relief.

2 Prisoners describe this confinement as “a living nightmare that does not end and will not end.”

3

124. The devastating psychological and physical effects of prolonged solitary

4 confinement are well documented by social scientists: prolonged solitary confinement causes
5

prisoners significant mental harm and places them at grave risk of even more devastating future 6

7 psychological harm.

8

125. Researchers have demonstrated that prolonged solitary confinement causes a

9 persistent and heightened state of anxiety and nervousness, headaches, insomnia, lethargy or
10 chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, 11
heart palpitations, and fear of impending nervous breakdowns. Other documented effects include 12
obsessive ruminations, confused thought processes, an oversensitivity to stimuli, irrational anger, 13 14 social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic
15 depression, feelings of overall deterioration, as well as suicidal ideation. Individuals in prolonged

16 solitary confinement frequently fear that they will lose control of their anger, and thereby be

17 punished further.

18

126. Plaintiffs suffer from and exhibit these symptoms.

19 127. While these symptoms are reported by people who have suffered from being
20
placed in solitary confinement for days, months or a few years, they become more pronounced 21

22 and cause greater pain and suffering when, as with plaintiffs and the class, one is incarcerated in

23 these conditions for many years without any meaningful hope of release. As plaintiff Gabriel

24 Reyes wrote in 2011:

25

You don’t really know what makes [the SHU psychological torture] unless you

26

live it and have lived it for 10, 15, 20 plus years 24/7. Only the long term SHU prisoner knows the effect of being alone between four cold walls with no one to

confide in and only a pillow for comfort. How much more can any of us take?

27

Only tomorrow knows. Today I hold it all in hoping I don’t explode.

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1

128. As a result of their prolonged SHU placement, most plaintiffs suffer from extreme

2 and chronic insomnia. For Johnson, “I am so busy suppressing feelings and isolating myself all

3 day, and so much anger builds up in me from the conditions, that I can’t sleep at night because the
4 sound of a door opening or closing wakes me and I get anxious about someone coming in on me
5
and I can’t fall back to sleep.” 6

7

129. Similarly, Ashker only gets approximately one to three hours of sleep a night both

8 because his mattress is too short for him, causing him to sleep on bare concrete from his knees

9 down, and because noise from the doors constantly slamming open and shut in the SHU at night

10 wakes him and causes anger and anxiety. The startling loud noises cause flashbacks of the

11 incident in which he was set up and shot unlawfully by a guard which began with the opening and
12 slamming of his cell door.
13

14

130. Many of the plaintiffs also suffer from severe concentration and memory

15 problems. For example, reading newspapers and books used to be a large part of Ruiz’s daily

16 routine, but the severe concentration and memory problems that he developed in the SHU now

17 prohibit him from reading more than a few sentences at a time, and he forgets the paragraph he

18 just read. Therefore he has essentially given up reading. Similarly, Franklin and Franco have

19 trouble concentrating, and their attention span and memory are deteriorating because of the
20
effects of long-term isolation in the SHU. 21

22

131. Plaintiffs experience life in the SHU as a struggle to avoid becoming mentally ill.

23 They have done so thus far by developing responses that deaden feelings and emotions, suppress

24 anger, and develop a psychological and physical state which removes much of what makes

25 normal human beings human – namely, feelings, emotions, daily physical contact, regular social
26 communication, and being able to see another person or living thing.
27 132. Plaintiffs experience growing and persistent rage at the conditions under which
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1 they are incarcerated in the SHU. They attempt to suppress that rage in order to avoid self-

2 destruction, irresponsible acts of violence, or a mental breakdown. Plaintiffs’ attempts at
3 suppression, in combination with their isolation, have led them to increasingly withdraw into 4
themselves and become emotionally numb to the point of feeling “non-human.” 5
133. Troxell, for example, does not initiate conversations, is not motivated to do 6
7 anything, and feels as if in a stupor much of the time. He often becomes “blank” or out of touch

8 with his feelings.

9

134. Ashker experiences great feelings of anger, which he tries to control and suppress,

10 but this just deadens his feelings. He feels that he is “silently screaming” 24 hours a day.

11 135. Reyes copes with his years of SHU confinement by suppressing his anger, but to
12 do so he has had to suppress all feelings to the point where he no longer knows what he is feeling.
13

14

136. Esquivel experiences a near-total loss of the capacity to feel. He states that he

15 does not feel anything and this makes him “feel dead.” He reports that days go by without him

16 feeling anything, “as if I am walking dead.” He watches some television but has no emotional

17 reaction to the dramas he watches.

18

137. So too, when Redd suppresses his anger, he starts to not feel anything at all and

19 becomes numb. He often “feels like a caged animal.”
20
138. This mounting anger, and attempts to suppress it, is a recurring and predicable 21

22 human reaction to the extreme situation that is isolated confinement. It is not a propensity unique

23 to plaintiffs.

24

139. Plaintiffs also experience a range of other psychological symptoms stemming

25 from their confinement in the SHU, including hallucinations, anxiety disorder, hypersensitivity,
26 severe mood swings, violent nightmares and fantasies, and panic attacks. At least one plaintiff
27 hears voices when no one is talking to him. Redd experiences frequent nightmares about
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1 violence, something that he never experienced before being in the SHU.

2

140. The harm to plaintiffs is compounded by their prolonged and indefinite lack of

3 contact with their families and others. For example, Ashker speaks of never having any face-to-
4 face communication with others; he just hears disembodied voices. Other plaintiffs describe the
5
pain of not being able to hug, share photos with, have phone calls with, or in some cases even see, 6

7 family members for what they expect will be the rest of their lives.

8

141. Plaintiffs are convinced that they will be kept in the SHU for the rest of their

9 sentences, or the rest of their lives. This causes them acute despair.

10

142. These psychological symptoms are precisely those reported in the literature about

11 individuals placed in prolonged solitary confinement. But the extreme duration of plaintiffs’ and
12 class members’ confinement has meant that the isolative and emotionally numbing effects of
13

14 solitary confinement have become even more pronounced. Plaintiffs’ symptoms are almost

15 identical to those described in psychological literature about the long-term effects of severe

16 trauma and torture.

17

143. Upon information and belief, numerous prisoners confined in the SHU for long

18 periods of time have developed mental illness, and some have committed or attempted suicide

19 while in the SHU. All prisoners confined in the SHU for prolonged periods have a significant
20
risk of descending into mental illness due to prolonged exposure to the conditions in the SHU. 21

22

144. Most plaintiffs recently participated in two hunger strikes (described below),

23 which provide additional evidence of the severe psychological distress, desperation, and

24 hopelessness that they experience from languishing in the SHU for decades. Almost every

25 plaintiff participant reported viewing the possibility of death by starvation as a worthwhile risk in
26 light of their current situation.
27 145. Numerous plaintiffs also have serious physical ailments and illnesses caused or
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1 exacerbated by their prolonged incarceration under the harsh conditions in the SHU, including

2 eye and vision problems, headaches, diabetes, hypertension, and chronic back problems. These

3 health concerns add to their psychological distress, as they fear that as they age and their health
4 problems worsen, they will be left to die in the SHU without adequate medical care because they
5
have refused to debrief. 6

7 D.

International Standards Regarding Torture and Cruel, Inhuman or Degrading Treatment

8 146. In light of the well-documented harms described above, there is an international
9

10 consensus that the type of prolonged solitary confinement practiced in California at Pelican Bay

11 violates international human rights norms and civilized standards of humanity and human dignity.

12 International human rights organizations and bodies, including the United Nations, have

13 condemned indefinite or prolonged solitary confinement as a human rights abuse that can amount
14 to torture. 15
147. As just one example, in August 2011, the United Nations Special Rapporteur of 16
the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or 17 18 Punishment concluded that the use of solitary confinement is acceptable in only exceptional
19 circumstances, and that its duration must be as short as possible and for a definite term that is

20 properly announced and communicated.

21

148. Plaintiffs’ and class members’ prolonged detention meets none of these criteria.

22

149. The Special Rapporteur concluded that prolonged solitary confinement is

23 prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the
24

Convention Against Torture (CAT), and that prolonged solitary confinement constitutes torture or 25

26 cruel, inhuman or degrading treatment or punishment. The Special Rapporteur has concluded that

27 even 15 days in solitary confinement constitutes a human rights violation.

28

150. Plaintiffs and class members have been held in solitary confinement for at least

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1 250 times this duration.

2

151. The Special Rapporteur’s view comports with standards laid out by the Istanbul

3 Statement on the Use and Effects of Solitary Confinement, the ICCPR Human Rights Committee,
4 and the United Nations Office of the High Commissioner for Human Rights.
5
152. The Convention Against Torture (CAT), ratified by the United States in 1994, 6

7 provides the following definition of torture:

8

For the purposes of this Convention, torture means any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a person for such

9

purposes as obtaining from him or a third person information or a confession, punishing

10

him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination

11

of any kind, when such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.

12

CAT, art. 1, para. 1. By being forced to either debrief or endure the crushing and inhumane 13

14 policies and conditions at the Pelican Bay SHU described above, plaintiffs and class members are

15 being subjected to treatment consistent with CAT’s definition of torture.

16 E. Pelican Bay Hunger Strikes

17

153. Coinciding with this international consensus against solitary confinement,

18 prisoners at Pelican Bay have repeatedly organized hunger strikes to draw public attention to the
19 conditions described above.
20 154. A hunger strike occurred at Pelican Bay in 2002 and lasted approximately one
21
22 week. The prisoners called off the strike after a California State Senator promised to look into the

23 strikers’ complaints, primarily centered on the debriefing policy. No reforms, however, were

24 implemented.

25

155. In light of ongoing concerns, a 2007 report commissioned by CDCR examined

26 national standards about the handling of security threat group members and recommended a step-
27 down program through which prisoners in the SHU could be released to the general population
28
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1 without having to debrief. See CDCR, SECURITY THREAT GROUP IDENTIFICATION AND

2 MANAGEMENT (2007). Instead, they would spend a minimum of four years in a program in which
3 their “acceptable custodial adjustment” resulted in stages of increased social contact and 4
privileges. Id. at 6. CDCR also failed to implement these recommendations. 5
156. On February 5, 2010, plaintiffs Ashker and Troxell sent a formal Human Rights 6
7 Complaint to then-Governor Arnold Schwarzenegger and Defendant Cate, titled “Complaint on

8 Human Rights Violations and Request for Action to End 20+ Years of State Sanctioned Torture

9 to Extract Information From (or Cause Mental Illness to) California Pelican Bay State Prison

10 Security Housing Unit (SHU) Inmates.” The complaint outlined the history of Pelican Bay State
11 Prison and set forth the prisoners’ factual and legal claims for relief.
12 157. In May 2011, the complaint was again sent to the Governor and Secretary. This
13 14 time, it was accompanied by a “Final Notice” that an indefinite hunger strike would begin on July
15 1, 2011, and it provided five broad demands that CDCR: (1) end group punishment; (2) abandon

16 the debriefing program and modify the active/inactive gang status criteria; (3) end long-term

17 solitary confinement and alleviate conditions in segregation, including providing regular and
18 meaningful social contact, adequate healthcare and access to sunlight; (4) provide adequate food; 19
and (5) expand programming and privileges. 20
158. In June 2011, the complaint and final notice were sent again to the Governor, the 21
22 Secretary, and the Warden.

23

159. On July 1, 2011, the hunger strike began. At its peak, over 6,600 prisoners at 13

24 California prisons participated. Ashker, Dewberry, Franco, Redd and Troxell were among the 11

25 principal representatives and negotiators for the prisoners at Pelican Bay State Prison. Most of
26 the other plaintiffs also participated, as did prisoners from every major ethnic, racial, and
27 geographic group. The hunger strike garnered national and international media attention and
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1 support.

2

160. CDCR staff met with prisoner representatives, and on July 20, 2011, the hunger

3 strike was temporarily suspended after CDCR officials agreed to provide a few basic amenities
4 and to revise the regulations by which a prisoner is assigned to and kept in the SHU.
5
161. On August 23, 2011, an informational hearing on California’s SHUs was held by 6

7 the California State Assembly Public Safety Committee. Hundreds of family members and

8 supporters attended, and many testified about the conditions their loved ones endure in the SHU

9 and in Administrative Segregation Units. See http://solitarywatch.com/2011/08/24/historic-
10 california-assembly-hearing-on-solitary-confinement. 11
162. On September 26, 2011, the hunger strike resumed because prisoners lost faith that 12
CDCR would implement a revision of the regulations as it had promised. This time nearly 12,000 13 14 prisoners participated. The hunger strike ended on October 12, 2011, after CDCR assured the
15 prisoner representatives that it was working on the new regulations and would continue

16 conversations about other improvements sought by the prisoners.

17

163. On March 9, 2012, CDCR publicly issued a “concept paper” describing its

18 proposed changes to gang validation regulations. That document has been condemned by
19 prisoners and prisoner-rights advocates as making virtually no meaningful changes and, instead,
20 expanding the net of who may be incarcerated in the SHU. No new regulations have been
21
22 implemented to date.

23

164. Since the hunger strike, CDCR has issued disciplinary rule violations against

24 participants in that peaceful protest, and particularly serious rule violations against those it

25 alleged were its leaders. Ashker, Dewberry, Franco, Redd, and Troxell received disciplinary

26 write-ups on this ground.

27
F. 28

Class Allegations

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1

165. Plaintiffs bring this action on their own behalf and, pursuant to Rules 23(a),

2 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all prisoners serving

3 indeterminate SHU sentences at the Pelican Bay SHU on the basis of gang validation, none of
4 whom have been or will be afforded meaningful review of their confinement, in violation of the
5
Due Process Clause of the Fourteenth Amendment. 6

7

166. Plaintiffs also bring this action on behalf of a subclass of Pelican Bay prisoners

8 who are now, or will be in the future, imprisoned by defendants at the Pelican Bay SHU under the

9 conditions and pursuant to the policies described herein for longer than 10 continuous years.
10 Such imprisonment constitutes cruel and unusual punishment within the meaning of the Eighth 11
Amendment. 12
167. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. 13 14 P. 23(a)(1). As of April 1, 2012, there were more than 1,000 prisoners imprisoned at the Pelican
15 Bay SHU. Upon information and belief, all of these prisoners have been denied meaningful

16 notice and review, and thus fit the class definition. Of those prisoners, over 500, or

17 approximately half, have been imprisoned for over 10 years in the Pelican Bay SHU, where they

18 have been subjected to cruel and unusual punishment. These 500 comprise the Eighth
19 Amendment subclass.
20 168. The class members are identifiable using records maintained in the ordinary course
21
22 of business by CDCR.

23

169. All members of the Eighth Amendment subclass are suffering the deprivation of at

24 least one basic human need due to their prolonged confinement in the SHU, including mental and

25 physical health, physical exercise, sleep, nutrition, normal human contact, meaningful activity,
26 and environmental stimulation. In addition, all class members are suffering significant mental
27 and physical harm. While the exact nature of those harms may differ in some respects for each
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 35
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1 prisoner, the source of the harm complained of here is the same – namely, defendants’ policies

2 and practices in placing the class of prisoners for a lengthy period of time in conditions of
3 confinement shown to cause serious mental and physical harm. 4
170. In addition, all prisoners placed in the conditions at the Pelican Bay SHU face a 5
common risk of suffering even more serious mental harm caused by their retention in the SHU for 6
7 such a lengthy period of time.

8

171. There are questions of law and fact common to the members of the class. Those

9 questions include, but are not limited to:

10

a) Whether prolonged confinement in the SHU for over 10 years under the

11 conditions and policies maintained by the defendants objectively constitutes
12 cruel and unusual punishment prohibited by the Eighth Amendment.
13

14

b) Whether defendants have been deliberately indifferent to the mental and

15

physical suffering incurred by the plaintiff class.

16

c) Whether incarceration under the conditions and policies imposed by

17

defendants results in constitutionally cognizable harm, or presents a

18

constitutionally unacceptable risk of harm.

19 d) Whether a legitimate penological reason exists for defendants to incarcerate
20
prisoners for decades in the conditions described herein simply because they 21

22

are members or associates of a gang, without demonstrating that they are

23

currently engaged or have been recently engaged in some illegal or wrongful

24

gang-related misconduct.

25

e) Whether the conditions at the Pelican Bay SHU and the policies imposed by

26

defendants on all prisoners housed in the SHU constitute an atypical and

27 significant hardship compared to the ordinary incidents of prison life.
28

PLAINTIFFS’ SECOND AMENDED COMPLAINT 36

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1

f) Whether SHU confinement extends the duration of incarceration because of a

2

de facto policy of denying parole to SHU prisoners.

3

g) Whether defendants deny prisoners incarcerated in the SHU meaningful,

4 periodic review of their confinement as required by the Due Process Clause of
5

the Fourteenth Amendment by: (1) failing to provide them with notice of what 6

7

they can do to get released from the SHU apart from risking their lives and

8

safety and that of their families by debriefing; (2) providing misleading notice

9

that they can become eligible to be released from the SHU by becoming an

10

“inactive” gang member or associate and refraining from any gang activity,

11 when in fact prisoners who are not involved in any current gang activity are
12 still routinely retained in the SHU; and 3) making a predetermination that
13

14

many prisoners will stay in the SHU until they either die or debrief, thus

15

rendering the periodic reviews meaningless.

16

h) Whether defendants fail to provide timely meaningful review of prisoners’

17

imprisonment in the SHU by engaging in 180-day reviews that do not

18

substantively review whether the prisoners should be retained in the SHU and

19 therefore are meaningless, and only affording the so-called “inactive” review
20
every six years. 21

22

172. Defendants are expected to raise common defenses to these claims, including

23 denying that their policies and practices violate the Constitution.

24

173. The claims of the plaintiffs are typical of those of the plaintiff class, as their claims

25 arise from the same policies, practices, courses of conduct, and conditions of confinement, and
26 their claims are based on the same legal theories as the class’ claims. The cause of the named
27 plaintiffs’ injuries is the same as the cause of the injuries suffered by the rest of the class, namely
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 37
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1 defendants’ policies and practices.

2

174. Plaintiffs are capable of fairly and adequately protecting the interests of the

3 plaintiff class because plaintiffs do not have any interests antagonistic to the class. Plaintiffs, as
4 well as class members, seek to enjoin the unlawful acts, policies, and practices of the defendants.
5
Indeed, some of the named plaintiffs have already served as de facto representatives of the class 6

7 by presenting the demands of thousands of Pelican Bay and other California hunger strikers to

8 defendants during the two hunger strikes in the summer and fall of 2011. Finally, plaintiffs are

9 represented by counsel experienced in civil rights litigation, prisoners’ rights litigation, and
10 complex class litigation. 11
175. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) 12
because the number of class members is numerous and prosecution of separate actions by 13 14 individuals create a risk of inconsistent and varying adjudications, which in turn would establish
15 incompatible standards of conduct for defendants. Moreover, the prosecution of separate actions

16 by individual members is costly, inefficient, and could result in decisions with respect to

17 individual members of the class that, as a practical matter, would substantially impair the ability
18 of other members to protect their interests. 19
176. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 20
23(b)(2) because defendants’ policies and practices that form the basis of this Complaint are 21 22 generally applicable to all the class members, thereby making class-wide declaratory and
23 injunctive relief appropriate. Common questions of law and fact clearly predominate within the

24 meaning of Rule 23(b)(2) as set forth above. Class treatment provides a fair and efficient method

25 for the adjudication of the controversy herein described, affecting a large number of persons,
26 joinder of whom is impracticable. 27

28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 38
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1

V. CLAIMS FOR RELIEF

2

First Cause of Action: Eighth & Fourteenth Amendments

3

(Cruel and Unusual Punishment)

4

177. Plaintiffs incorporate by reference each and every allegation contained in the

5 preceding paragraphs as if set forth fully herein.

6

178. Plaintiffs advance this claim on their own behalf, and on behalf of the Eighth

7 Amendment subclass, against all defendants.
8 179. By their policies and practices described herein, defendants have deprived and
9
10 continue to deprive plaintiffs and the class of the minimal civilized measure of life’s necessities,

11 and have violated their basic human dignity and their right to be free from cruel and unusual

12 punishment under the Eighth and Fourteenth Amendments to the United States Constitution for

13 each of the reasons set forth below.
14 A. Deprivation of Basic Human Need 15
180. First, the cumulative effect of extremely prolonged confinement, along with denial 16
of the opportunity of parole, the deprivation of earned credits, the deprivation of good medical 17 18 care, and other crushing conditions of confinement at the Pelican Bay SHU, constitute a serious
19 deprivation of at least one basic human need, including but not limited to normal human contact,

20 environmental and sensory stimulation, mental and physical health, physical exercise, sleep,

21 nutrition, and meaningful activity.
22 B. Imposition of Serious Psychological and Physical Injury, Pain and Suffering 23
181. Second, extremely prolonged exposure to these deprivations of basic human needs 24
is currently imposing serious psychological pain and suffering and permanent psychological and 25
26 physical injury on Plaintiffs and the class they represent.

27

182. In addition to plaintiffs’ current psychological and physical pain, the likelihood

28 that plaintiffs and the class will remain in SHU for the foreseeable future subjects plaintiffs and PLAINTIFFS’ SECOND AMENDED COMPLAINT 39
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1 the class they represent to a significant risk of future debilitating and permanent mental illness

2 and physical harm.
3 C. SHU Confinement Designed to Coerce Plaintiffs to Provide Information 4
183. Third, Defendants’ harsh policies are not legitimately related to security or other 5
penological needs of isolating alleged dangerous prisoners from others, but rather are designed to 6
7 coerce plaintiffs to debrief and become informants for the State. This policy of holding plaintiffs

8 and class members in prolonged solitary confinement for many years at the Pelican Bay SHU

9 until they debrief or die is, as one Court put it, “tantamount to indefinite administrative

10 segregation for silence – an intolerable practice in modern society.” Griffin, No. C-98-21038 at
11 11. It is cruel and unusual punishment for defendants to coerce prisoners to provide information
12 on other prisoners – if indeed they have any such information – by maintaining them in stifling
13
14 and punitive conditions that constitute an atypical and significant hardship, unless they so inform.

15

184. Prisoners who debrief incur a substantial risk of serious harm and retaliation to

16 themselves and to their families. The combination of the crushing conditions in the SHU, the

17 policies designed to coerce prisoners to debrief, the lack of any effective means of obtaining
18 release from the SHU without debriefing, and the substantial risk of serious harm if one does 19
debrief, puts prisoners in an untenable position and constitutes an unconstitutional threat to the 20
safety of prisoners confined in the SHU in violation of the Eighth and Fourteenth Amendments to 21 22 the Constitution.
23 D. Disproportionate Punishment

24

185. Fourth, defendants’ policy of indefinite and prolonged SHU placement imposes

25 disproportionate punishment on plaintiffs and class members. Defendants have no legitimate
26 penological interest in retaining prisoners indefinitely in the debilitating conditions of the SHU
27 simply because they are gang members or associates, without recent, serious disciplinary or gang-
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 40
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1 related infractions. Nor is this policy and practice rationally related to legitimate security needs.

2 Defendants’ decades-long infliction of significant psychological and physical harm and the risk
3 of future debilitating harm on these prisoners simply for allegedly being gang members or 4
associates offends civilized society’s sense of decency, constitutes an intolerable practice in 5
modern society, and is a disproportionate punishment which violates the Eighth and Fourteenth 6
7 Amendments to the Constitution.

8 E. 9 10

Deprivation of Human Dignity in Violation of Contemporary Standards of Human Decency
186. Finally, Defendants’ continuation of Plaintiffs’ solitary confinement for many

11 years under the debilitating and extreme conditions existing at the Pelican Bay SHU strips human

12 beings of their basic dignity and humanity in violation of contemporary standards of human

13 decency and constitutes cruel and unusual treatment prohibited by the Eighth and Fourteenth
14 Amendments to the United States Constitution. 15
187. That California’s policies and practices violate contemporary standards of human 16
dignity and decency is evidenced by the fact that those practices are unusual in comparison to 17 18 other states’ practices with respect to segregated prisoner housing. Virtually no other state uses
19 mere gang association or membership to confine prisoners in the SHU. Other states do not

20 warehouse hundreds of prisoners in the SHU for decades at a time. Plaintiffs and class members

21 are subject to unusually harsh conditions of confinement even in comparison with other supermax
22 prisons, such as windowless cells and a lack of telephone calls to family members and friends. 23
And finally, California’s SHU policies and practices are atypical in effectively prolonging 24
incarceration, in that prisoners in the SHU are deprived of good time credit and are rendered 25
26 functionally ineligible for parole.

27

188. That California’s practices with respect to the plaintiff class violates contemporary

28 standards of human decency and dignity is also evidenced by the international community’s PLAINTIFFS’ SECOND AMENDED COMPLAINT 41
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1 condemnation of the practice of prolonged and indefinite solitary confinement under very harsh

2 and stifling conditions such as exist at the Pelican Bay SHU. Such condemnation is reflected in
3 international treaties such as the Convention Against Torture, the International Covenant on Civil 4
and Political Rights, decisions and declarations of international bodies, customary international 5
law, and decisions of regional and national courts such as the European Court of Human Rights 6
7 and Canadian courts.

8 F. Defendants’ Deliberate Indifference to the Deprivations Suffered by Plaintiffs

9

189. The policies and practices complained of herein have been and continue to be

10 implemented by defendants and their agents, officials, employees, and all persons acting in
11 concert with them under color of state law, in their official capacity.
12 190. Defendants have been and are aware of all of the deprivations complained of
13
14 herein, and have condoned or been deliberately indifferent to such conduct.

15

191. It should be obvious to defendants and to any reasonable person that the conditions

16 imposed on plaintiffs and class members for many years cause tremendous mental anguish,

17 suffering, and pain to such prisoners. Moreover defendants have repeatedly been made aware,

18 through administrative grievances, hunger strikes, and written complaints that plaintiffs and class

19 members are currently experiencing significant and lasting injury. Defendants have been
20
deliberately indifferent to the plaintiffs’ pain and suffering. 21

22

192. Indeed, defendants have deliberately and knowingly caused such pain in an effort

23 to force plaintiffs and the class to debrief.

24

25

26

27

28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 42
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1

Second Cause of Action: Fourteenth Amendment

(Due Process) 2

3

193. Plaintiffs incorporate by reference each and every allegation contained in the

4 preceding paragraphs as if set forth fully herein.

5

194. Plaintiffs advance this claim on their own behalf, and on behalf of the class,

6 against all defendants.
7 195. Defendants have deprived plaintiffs and class members of a liberty interest without
8 due process of law by denying them meaningful and timely periodic review of their continued
9 10 long-term and indefinite detention at the Pelican Bay SHU and meaningful notice of what they
11 must do to earn release, in violation of the Fourteenth Amendment to the United States

12 Constitution.

13

196. The conditions and the duration of defendants’ confinement of plaintiffs and class

14 members at the Pelican Bay SHU constitute an atypical and significant hardship as compared
15 with the ordinary incidents of prison life for three basic reasons: (a) the exceedingly harsh and
16 isolated conditions in the SHU; (b) the lengthy duration of confinement in the SHU; and (c) the
17
18 effect on the possibility of parole being granted and the overall length of imprisonment that

19 results from such confinement.

20 A. Conditions at the Pelican Bay SHU

21

197. The conditions in the SHU are unduly harsh, and do not generally mirror those

22 conditions imposed upon prisoners in administrative segregation and protective custody in
23 California. These harsh conditions include but are not limited to: isolation in cells that are sealed
24 off from contact with other prisoners, the lack of windows in cells, a prohibition on all social
25

26 phone calls except in emergencies, no contact visits and very limited visiting hours, no or

27 minimal educational or general programming, exercise facilities that provide very little natural

28 sunlight and have virtually no recreational equipment, food which is inferior to that served to PLAINTIFFS’ SECOND AMENDED COMPLAINT 43
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1 other California prisoners, and denial of standard medical care to prisoners unless they debrief.

2 B.

Duration of Confinement at the Pelican Bay SHU

3

198. Plaintiffs have been held in the crushing conditions described above for 11 to 22

4 years. Indeed, about half of the prisoners detained at the Pelican Bay SHU have been there for
5

over 10 years, more than 20 percent have been held there for more than 15 years, and almost 10 6

7 percent have been held there for over 20 years. Upon information and belief, this shockingly

8 lengthy confinement is atypical in comparison to the ordinary disciplinary and administrative

9 segregation imposed in California.

10 C.

Effect of SHU Confinement on Overall Length of Imprisonment

11 199. An unwritten, but uniformly enforced policy imposed by CDCR precludes
12 plaintiffs and class members from being released on parole while they are at the Pelican Bay
13

14 SHU. In addition, under California law, prisoners housed in the SHU cannot earn good-time

15 credits no matter how impeccable their behavior. The effect of these policies and practices has

16 been that many prisoners, including some of the named plaintiffs, spend a longer time

17 incarcerated in prison than had they not been housed in the SHU.
18 D. Lack of Meaningful Process 19
200. Because indefinite placement in the Pelican Bay SHU constitutes a significant and 20
atypical hardship, plaintiffs and class members are entitled to meaningful notice of how they may 21 22 alter their behavior to rejoin general population, as well as meaningful and timely periodic
23 reviews to determine whether they still warrant detention in the SHU.

24

201. Defendants have denied and continue to deny any such notice or meaningful

25 review by: (1) failing to provide prisoners with notice of what they can do to get released from
26 the SHU apart from providing information that they do not have or risking their life and safety
27 and that of their families by debriefing; (2) providing misleading notice that they can become
28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 44
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1 eligible to be released from the SHU by becoming an “inactive” gang member or associate and

2 refraining from engaging in any gang activities, when in fact prisoners who are not involved in
3 any current gang activity are still routinely retained in the SHU; (3) making a predetermination 4
that many prisoners will stay in the SHU until they either die or debrief, thus rendering the 5
periodic reviews substantively and procedurally meaningless; and (4) making the length of time 6
7 between reviews far too long to comport with the constitutional due-process standard.

8

202. Defendants are also violating plaintiffs’ due process rights by retaining plaintiffs

9 and the class in conditions that amount to an atypical and significant hardship without legitimate

10 penological interest, as this detention occurs without reliable evidence that plaintiffs and the class

11 are committing any acts on behalf of a prison gang and are thus active gang members.
12 PRAYER FOR RELIEF
13

14

Plaintiffs and the class they represent have no adequate remedy at law to redress the

15 wrongs suffered as set forth in this Complaint. Plaintiffs have suffered and will continue to suffer

16 irreparable injury as a result of the unlawful acts, omissions, policies, and practices of defendants,

17 as alleged herein, unless plaintiffs and the class they represent are granted the relief they request.
18 The need for relief is critical because the rights at issue are paramount under the United States 19
Constitution. 20
WHEREFORE, the named plaintiffs and the class they represent request that this Court 21 22 grant them the following relief:
23 a. Declare that this suit is maintainable as a class action pursuant to Federal Rules of Civil

24

Procedure 23(a) and 23(b)(1) and (2);

25 b. Declare that defendants’ policies and practices of confining prisoners in the Pelican Bay SHU

26

violate the Eighth and Fourteenth Amendments to the United States Constitution;

27

28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 45
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1 c. Issue injunctive relief ordering defendants to present a plan to the Court within 30 days of the

2

issuance of the Court’s order providing for:

3

i. the release from the SHU of those prisoners who have spent more than 10

4 years in the SHU;
5

ii. alleviation of the conditions of confinement of prisoners in the SHU so that 6

7

prisoners no longer are incarcerated under conditions of isolation, sensory

8

deprivation, lack of social and physical human contact, and environmental

9

deprivation;

10

iii. meaningful review of the continued need for confinement in a SHU of all

11 prisoners currently housed in the SHU within six months of the date of the
12 Court’s order; and
13

14

iv. meaningful review of SHU confinement for prisoners housed in the SHU in the

15

future;

16 d. Award plaintiffs the costs of this suit and reasonable attorneys’ fees and litigation expenses

17

pursuant to 42 U.S.C. § 1988, and other applicable law;

18 e. Retain jurisdiction of this case until defendants have fully complied with the orders of this
19 Court; and
20 f. Award such other and further relief as the Court deems just and proper.
21

22 Dated: May 15, 2012
23

Respectfully submitted,

24

/s/ Jules Lobel

25

JULES LOBEL (pro hac vice)

26

ALEXIS AGATHOCLEOUS (pro hac vice) RACHEL MEEROPOL (pro hac vice)

27

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

28

New York, New York 10012

PLAINTIFFS’ SECOND AMENDED COMPLAINT 46

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1

Tel: 212.614.6478

Fax: 212.614.6499

2

Email: jll4@pitt.edu

3

CHARLES F.A. CARBONE (SBN 206536)

4

EVAN CHARLES GREENBERG (SBN 271356)

LAW OFFICE OF CHARLES CARBONE

5

P.O. Box 2809

San Francisco, California 94126

6

Tel: 415.981.9773

7

Fax: 415.981.9774

Email: charles@charlescarbone.com,

8

evan@charlescarbone.com

9

MARILYN S. MCMAHON (SBN 270059)

10

CALIFORNIA PRISON FOCUS 1904 Franklin Street, Suite 507

11

Oakland, California 94612

Tel: 510.734.3600

12

Fax: 510.836.7222

Email: marilyn@prisons.org 13

14

ANNE BUTTERFIELD WEILLS (SBN 139845) SIEGEL & YEE

15

499 14th Street, Suite 300

Oakland, California 94612

16

Tel: 510.839.1200

Fax: 510.444.6698

17

Email: aweills@aol.com

18

CAROL STRICKMAN (SBN 78341)

19

LEGAL SERVICES FOR PRISONERS WITH CHILDREN

1540 Market Street, Suite 490

20

San Francisco, California 94102

Tel: 415.255.7036

21

Fax: 415.552.3150

22

Email: carol@prisonerswithchildren.org

23

Attorneys for Plaintiffs

24

25

26

27

28 PLAINTIFFS’ SECOND AMENDED COMPLAINT 47
Case No.: 4-09-cv-05796-CW

 
 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

TODD ASHKER, et al., 4

Plaintiffs, 5

v. 6

7

GOVERNOR OF THE STATE OF CALIFORNIA, et al.,

8 Defendants. ________________________________/
9

No. C 09-5796 CW
ORDER GRANTING IN PART MOTION FOR CLASS CERTIFICATION; DENYING MOTION TO INTERVENE (Docket Nos. 195, 233)

10

Plaintiffs, a group of Pelican Bay State Prison inmates, move

United States District Court For the Northern District of California

11 for class certification to pursue claims under the Eighth and

12 Fourteenth Amendments of the United States Constitution.

13 Defendants, the Governor of the State of California, Secretary of

14 the California Department of Corrections and Rehabilitation

15 (CDCR), Chief of CDCR’s Office of Correctional Safety, and Warden

16 of Pelican Bay State Prison, oppose the motion. After considering

17 the parties’ submissions and oral argument, the Court grants the

18 motion in part and denies it in part. In addition, the Court

19 denies the California Correctional Peace Officers Association’s

20 (CCPOA) motion to intervene.

21

BACKGROUND

22

Plaintiffs are ten inmates who live or recently lived in

23 solitary confinement at Pelican Bay, a maximum security prison

24 located in Crescent City, California. Five of these inmates are

25 currently assigned to the Security Housing Unit (SHU), the “most

26 controlled and restrictive housing available” at the prison, where

27 each has lived for over a decade. Swift Decl. ¶ 4. The other

28 five inmates were recently transferred out of the Pelican Bay SHU.

United States District Court For the Northern District of California

1 Although CDCR operates SHUs at three other correctional

2 facilities, this action focuses exclusively on the conditions of

3 confinement within the Pelican Bay SHU.

4

Under CDCR’s current regulations, inmates may be assigned to

5 the SHU if their “conduct endangers the safety of others or the

6 security of the institution.” Cal. Code Regs. tit. 15, § 3341.5;

7 accord Harrington Decl. ¶ 3. Any inmate who is a member or

8 associate of a gang is “deemed to be a severe threat to the safety

9 of others or the security of the institution and will be placed in

10 [the] SHU for an indeterminate term.” Cal. Code Regs. tit. 15,

11 § 3341.5(c)(2)(A). Because all of the Plaintiffs in this case

12 were “validated” by CDCR as gang members or associates, they were

13 all assigned to the SHU for an indeterminate term.

14

Plaintiffs allege that SHU inmates live in almost total

15 isolation. They spend at least twenty-two and a half hours per

16 day in windowless, concrete cells with perforated steel doors and

17 typically leave only to shower or exercise alone in an enclosed

18 pen. Swift Decl. ¶ 8; Ashker Decl. ¶¶ 3, 9-11. Although SHU

19 inmates sometimes speak to each other through the perforations in

20 their cell doors, they cannot communicate face-to-face and have no

21 contact with inmates in Pelican Bay’s general population. Ashker

22 Decl. ¶¶ 20-22; Zubiate Decl. ¶ 28. They also have limited

23 contact with friends and family outside the prison. Ashker Decl.

24 ¶¶ 17-19; Dewberry Decl. ¶ 11; Esquivel Decl. ¶¶ 7-8; Franco Decl.

25 ¶¶ 7-8; Reyes Decl. ¶¶ 3-6; Ruiz Decl. ¶ 10; Troxell Decl. ¶ 5.

26

Plaintiffs filed this putative class action in September

27 2012, at which time all ten were assigned to the Pelican Bay SHU.

28 Their complaint alleges that long-term confinement inside the SHU

2

United States District Court For the Northern District of California

1 violates the Eighth Amendment’s prohibition on cruel and unusual

2 punishment and that CDCR’s procedures for assigning inmates to the

3 SHU violate the Fourteenth Amendment’s guarantee of procedural due

4 process. Docket No. 136, Second Am. Compl. (2AC) ¶¶ 177-202.

5 Plaintiffs seek an injunction compelling CDCR to alleviate certain

6 conditions of confinement in the SHU, adopt new procedures for

7 reviewing SHU assignments, and transfer every inmate who has been

8 assigned to the SHU for more than ten years into the general

9 prison population. Id. at ¶ 202.

10

Defendants moved to dismiss the complaint in December 2012.

11 They argued, among other things, that Plaintiffs’ due process

12 claim was moot because CDCR had implemented a new set of

13 procedures, collectively known as the “Security Threat Group”

14 (STG) pilot program, in October 2012 to review existing SHU

15 assignments and transfer certain SHU inmates into the general

16 population. The Court rejected that argument in its April 2013

17 order denying Defendants’ motion to dismiss. It found that the

18 implementation of the STG pilot program was not sufficient to

19 render Plaintiffs’ claims moot because CDCR had not implemented

20 the program permanently and, at that time, all ten Plaintiffs

21 remained subject to the preexisting procedures.

22

Defendants filed their answer to the complaint on April 30,

23 2013. Two days later, on May 2, 2013, Plaintiffs moved for class

24 certification under Federal Rules of Civil Procedure 23(b)(1) and

25 23(b)(2). In June 2013, CCPOA moved to intervene as a defendant.

26 It sought intervention under Rule 24(a) or, in the alternative,

27 under Rule 24(b).

28

3

United States District Court For the Northern District of California

1

Those motions remained pending for nearly a year while the

2 parties engaged in settlement negotiations. On May 14, 2014,

3 however, the parties notified the Court that they were not able to

4 reach a settlement. They filed a stipulation to lift the stay of

5 discovery that the Court had previously entered to allow them to

6 focus on settlement negotiations. The Court approved that

7 stipulation on May 16, 2014 and, at the parties’ request, set a

8 case management conference for June 4, 2014.

9

LEGAL STANDARDS

10 I. Class Certification

11

Plaintiffs seeking to represent a class must satisfy the

12 threshold requirements of Rule 23(a) as well as the requirements

13 for certification under one of the subsections of Rule 23(b).

14 Rule 23(a) provides that a case is appropriate for certification

15 as a class action if

16

(1) the class is so numerous that joinder of

17

all members is impracticable;

18

(2) there are questions of law or fact common

to the class;

19 (3) the claims or defenses of the

20

representative parties are typical of the

claims or defenses of the class; and 21

22

(4) the representative parties will fairly and adequately protect the interests of

23

the class.

24 Fed. R. Civ. P. 23(a).

25

Plaintiffs must also establish that one of the subsections of

26 Rule 23(b) is met. In the instant case, Plaintiffs seek

27 certification under subsections (b)(1) and (b)(2).

28

4

United States District Court For the Northern District of California

1

Subsection (b)(1) applies where the prosecution of separate

2 actions by individual members of the class would create the risk

3 of “inconsistent or varying adjudications with respect to

4 individual members of the class which would establish incompatible

5 standards of conduct for the party opposing the class,” or of

6 adjudications “which would as a practical matter be dispositive of

7 the interests of the other members not parties to the

8 adjudications or substantially impair or impede their ability to

9 protect their interests.” Fed. R. Civ. P. 23(b)(1).

10

Subsection (b)(2) applies where “the party opposing the class

11 has acted or refused to act on grounds generally applicable to the

12 class, thereby making appropriate final injunctive relief or

13 corresponding declaratory relief with respect to the class as a

14 whole.” Fed. R. Civ. Proc. 23(b)(2). “Civil rights cases against

15 parties charged with unlawful, class-based discrimination are

16 prime examples” of Rule 23(b)(2) actions. Amchem Prods., Inc. v.

17 Windsor, 521 U.S. 591, 614 (1997).

18

Regardless of what type of class the plaintiff seeks to

19 certify, it must demonstrate that each element of Rule 23 is

20 satisfied; a district court may certify a class only if it

21 determines that the plaintiff has borne this burden. Gen. Tel.

22 Co. of Sw. v. Falcon, 457 U.S. 147, 158-61 (1982); Doninger v.

23 Pac. Nw. Bell, Inc., 564 F.2d 1304, 1308 (9th Cir. 1977). In

24 general, the court must take the substantive allegations of the

25 complaint as true. Blackie v. Barrack, 524 F.2d 891, 901 (9th

26 Cir. 1975). However, the court must conduct a “‘rigorous

27 analysis,’” which may require it “‘to probe behind the pleadings

28 before coming to rest on the certification question.’” Wal-Mart

5

United States District Court For the Northern District of California

1 Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting

2 Falcon, 457 U.S. at 160-61). “Frequently that ‘rigorous analysis’

3 will entail some overlap with the merits of the plaintiff’s

4 underlying claim. That cannot be helped.” Dukes, 131 S. Ct. at

5 2551. To satisfy itself that class certification is proper, the

6 court may consider material beyond the pleadings and require

7 supplemental evidentiary submissions by the parties. Blackie, 524

8 F.2d at 901 n.17. “When resolving such factual disputes in the

9 context of a motion for class certification, district courts must

10 consider ‘the persuasiveness of the evidence presented.’” Aburto

11 v. Verizon Cal., Inc., 2012 WL 10381, at *2 (C.D. Cal.) (quoting

12 Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir.

13 2011)). Ultimately, it is in the district court’s discretion

14 whether a class should be certified. Molski v. Gleich, 318 F.3d

15 937, 946 (9th Cir. 2003); Burkhalter Travel Agency v. MacFarms

16 Int’l, Inc., 141 F.R.D. 144, 152 (N.D. Cal. 1991).

17 II. Intervention

18

To intervene as a matter of right under Rule 24(a)(2), an

19 applicant must claim an interest the protection of which may, as a

20 practical matter, be impaired or impeded if the lawsuit proceeds

21 without the applicant. Wilderness Society v. U.S. Forest Serv.,

22 630 F.3d 1173, 1177 (9th Cir. 2011). The Ninth Circuit applies a

23 four-part test to motions under Rule 24(a)(2):

24

(1) the motion must be timely; (2) the

applicant must claim a “significantly

25

protectable” interest relating to the property

or transaction which is the subject of the

26

action; (3) the applicant must be so situated

that the disposition of the action may as a

27

practical matter impair or impede its ability

to protect that interest; and (4) the 28

6

United States District Court For the Northern District of California

applicant’s interest must be inadequately

1

protected by the parties to the action.

2 Id. (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.

3 1993)).

4

The Ninth Circuit interprets Rule 24(a)(2) broadly in favor

5 of intervention. Id. at 1179. In evaluating a motion to

6 intervene under Rule 24(a)(2), a district court is required “to

7 take all well-pleaded, nonconclusory allegations in the motion

8 . . . as true absent sham, frivolity or other objections.” Sw.

9 Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir.

10 2001).

11

Alternatively, a court may, in its discretion, permit

12 intervention under Rule 24(b)(1)(B) by anyone who “has a claim or

13 defense that shares with the main action a common question of law

14 or fact.” In exercising its discretion, a court should “consider

15 whether the intervention will unduly delay or prejudice the

16 adjudication of the original parties’ rights.” Fed. R. Civ. P.

17 24(b)(3).

18

DISCUSSION

19 I. Motion for Class Certification

20

Plaintiffs move to certify two classes of inmates under Rules

21 23(b)(1) and 23(b)(2). First, they move to certify a “Due Process

22 Class” consisting of all inmates “serving indeterminate sentences

23 at the Pelican Bay SHU on the basis of gang validation, none of

24 whom have been or will be afforded meaningful review or

25 procedurally adequate review of their confinement.” Docket No.

26 195, Class Cert. Mot. 1-2. Second, they move to certify an Eighth

27

28

7

1

1
Amendment Class consisting of all inmates “who are now, or will

2 be in the future, imprisoned by Defendants at the Pelican Bay SHU

3 under the conditions and pursuant to the policies described below 4 for longer than 10 continuous years.” Id. at 2.

5

Defendants contend that Plaintiffs’ proposed definition of

6 the Due Process Class is ambiguous and that neither the proposed

7 Due Process Class nor the proposed Eighth Amendment Class

8 satisfies the requirements of Rule 23. As explained more fully

9 below, these arguments do not justify denying class certification.

10

A. Due Process Class Definition

United States District Court For the Northern District of California

11

Plaintiffs’ proposed Due Process Class contains the terms

12 “meaningful review” and “procedurally adequate review,” neither of

13 which is defined in the complaint. Defendants contend that, 14 because these terms lack a concrete meaning, the proposed class 15 definition is ambiguous and precludes certification. See Mazur v.

16 eBay Inc., 257 F.R.D. 563, 567 (N.D. Cal. 2009) (denying class 17 certification because an ambiguous term in proposed class 18 definition made “no reference to objective criteria” and meant

19 that “the class members themselves might not know if they were 20 members of the class”); Whiteway v. FedEx Kinko’s Office & Print

21 Servs., 2006 WL 2642528, at *3 (N.D. Cal.) (“An implied 22 prerequisite to certification is that the class must be 23 sufficiently definite.”).

24

25

1 Plaintiffs originally characterized the Eighth Amendment Class as
26 a “subclass” of the Due Process Class. However, at the hearing, they

acknowledged that their proposed definition of the Eighth Amendment
27 Class conceivably could encompass inmates who are not members of the

28

proposed Due Process Class. Accordingly, this order refers to the Eighth Amendment Class as a separate class rather than a subclass.

8

United States District Court For the Northern District of California

1

Although Defendants are correct that Plaintiffs’ proposed

2 class definition is ambiguous, this ambiguity does not preclude

3 certification of the Due Process Class. As Plaintiffs

4 acknowledged at the hearing, the ambiguous terms can simply be

5 removed from their proposed class definition. Thus modified, the

6 Due Process Class would simply consist of all Pelican Bay inmates

7 who are currently assigned to an indeterminate SHU term on the

8 basis of gang validation. This amended class definition is both

9 precise and inclusive of all inmates who would benefit from the

10 declaratory and injunctive relief that Plaintiffs seek.

11 Furthermore, CDCR’s own regulations treat this group as a distinct

12 class and provide a straightforward framework for distinguishing

13 between class members and non-members. See Cal. Code Regs. tit.

14 15, § 3341.5(c) (distinguishing “Indeterminate SHU Segregation”

15 from “Determinate SHU Segregation” and requiring all validated

16 gang members and associates to be assigned to indeterminate

17 terms). Thus, while the ambiguous terms of Plaintiffs’ proposed

18 Due Process Class definition might require that the class

19 definition be amended, they do not require that class

20 certification be denied.

21

B. Rule 23(a)(1): Numerosity

22

Defendants have acknowledged that there are “approximately

23 1,100 inmates housed in Pelican Bay’s SHU, the majority of which

24 are validated gang members and associates.” Swift Decl. ¶ 6.

25 Plaintiffs assert that several hundred of these inmates have lived

26 in the SHU for over a decade. These numbers are sufficient to

27 satisfy the numerosity requirement for both the proposed Due

28 Process Class and the proposed Eighth Amendment Class.

9

United States District Court For the Northern District of California

1

C. Rule 23(a)(2): Commonality

2

As noted above, Rule 23(a)(2) requires that there be

3 “questions of law or fact common to the class.” Fed. R. Civ. P.

4 23(a)(2). The Ninth Circuit has explained that this rule does not

5 preclude class certification if fewer than all questions of law or

6 fact are common to the class:

7

The commonality preconditions of Rule 23(a)(2)

8

are less rigorous than the companion

requirements of Rule 23(b)(3). Indeed, Rule

9

23(a)(2) has been construed permissively. All

questions of fact and law need not be common

10

to satisfy the rule. The existence of shared

11

legal issues with divergent factual predicates is sufficient, as is a common core of salient

12

facts coupled with disparate legal remedies

within the class.

13 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998).

14 Plaintiffs here have identified common issues of law and fact for

15 both proposed classes.

16 1.

Due Process Class

17

Defendants contend that the implementation of the STG pilot

18 program precludes certification of the proposed Due Process Class.

19 They note that, under the STG program, CDCR has begun conducting

20 case-by-case reviews of all current SHU assignments and has

21 already transferred more than one hundred inmates from SHUs into

22 the general prison population. Hubbard Decl. ¶ 11. Because some

23 SHU inmates have received these new procedural protections and

24 others have not, Defendants contend that Plaintiffs cannot

25 establish commonality.

26

This argument does not justify denying class certification.

27 Even if some SHU inmates at Pelican Bay have been transferred to

28

10

United States District Court For the Northern District of California

1 other units or received additional procedural protections under

2 the STG program, Defendants have not shown that all Pelican Bay

3 SHU have received such protections. Many of the inmates in the

4 Pelican Bay SHU remain subject to the SHU assignment procedures

5 that were in place before the STG program was implemented and

6 which remain codified in CDCR’s official regulations. Because

7 some inmates remain subject to these procedures -- which represent

8 the core of the “system-wide practice” that Plaintiffs seek to

9 challenge here -- Plaintiffs have satisfied Rule 23(a)’s

10 commonality requirement with respect to their proposed Due Process

11 Class. Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001) (“We

12 have previously held, in a civil-rights suit, that commonality is

13 satisfied where the lawsuit challenges a system-wide practice or

14 policy that affects all of the putative class members.”),

15 abrogated on other grounds by Johnson v. California, 543 U.S. 499,

16 504–05 (2005); see also Dukes, 131 S. Ct. at 2254 (recognizing

17 that a “uniform employment practice . . . would provide the

18 commonality needed for a class action” (emphasis added)).

19

That said, any inmates who have been placed in the STG

20 program or transferred out of the Pelican Bay SHU, must be

21 excluded from the proposed Due Process Class. Plaintiffs’ due

22 process claim, as currently plead, only challenges the procedures

23 that were in place before CDCR implemented the STG program. Thus,

24 inmates who were placed in the STG program were subject to a

25 different set of procedures and lack commonality with inmates who

26 have only received the preexisting procedures. As explained at

27 the hearing, if Plaintiffs seek to challenge the STG program

28 procedures, they must seek leave to amend their due process claim.

11

United States District Court For the Northern District of California

1 2.

Eighth Amendment Class

2

Defendants contend that Plaintiffs’ Eighth Amendment claim

3 “presents a host of individual questions not subject to classwide

4 proof.” Opp. 18. As noted above, however, the mere existence of

5 individual legal and factual questions is not sufficient to

6 preclude class certification. See Hanlon, 150 F.3d at 1019 (“All

7 questions of fact and law need not be common to satisfy the

8 rule.”). Rather, to satisfy Rule 23(a)’s commonality requirement,

9 a plaintiff need only show that his or her claims raise some

10 questions that are amenable to classwide adjudication.

11

Plaintiffs have satisfied this requirement here. Their

12 Eighth Amendment claim raises several common questions of law and

13 fact including (1) whether long-term confinement inside the

14 Pelican Bay SHU exposes inmates to a “sufficiently serious”

15 deprivation of basic human needs and (2) whether Defendants acted

16 with a “sufficiently culpable state of mind” in assigning inmates

17 to the SHU for indefinite terms. See generally Farmer v. Brennan,

18 511 U.S. 825, 834 (1994) (explaining that, to establish that a

19 prisoner’s Eighth Amendment rights have been violated, “the

20 deprivation alleged must be, objectively, ‘sufficiently serious’”

21 and the “prison official must have a ‘sufficiently culpable state

22 of mind’”). Plaintiffs have presented evidence to suggest that

23 the conditions inside the Pelican Bay SHU and the mental health

24 risks associated with long-term confinement there are common to

25 all putative class members. See, e.g., Kupers Decl. ¶ 15

26 (“[T]here is a clear and consistent pattern in the stories

27 articulated by these 10 men about the psychological consequences

28 of spending a decade or longer in the SHU.”); Haney Decl. ¶ 10

12

United States District Court For the Northern District of California

1 (“[L]ong-term exposure to precisely the kinds of conditions and

2 practices that . . . appear to currently exist in the [Pelican Bay

3 SHU] places prisoners at grave risk of psychological harm.”).

4

The fact that different inmates may exhibit different

5 symptoms or respond differently to prolonged SHU confinement does

6 not suffice to defeat commonality. Nor does the fact that some

7 inmates personally believe that they did not suffer any

8 psychological harm while they were confined in the SHU. Numerous

9 courts, including the Ninth Circuit, have held that “individual

10 factual differences among the individual litigants or groups of

11 litigants will not preclude a finding of commonality” in class

12 actions challenging a “system-wide” policy. Armstrong, 275 F.3d

13 at 868 (rejecting California prison officials’ argument that “a

14 wide variation in the nature of the particular class members’

15 disabilities precludes a finding of commonality”); see also

16 Parsons v. Ryan, 289 F.R.D. 513, 523 (D. Ariz. 2013) (rejecting

17 Arizona prison officials’ argument “that to determine whether

18 these conditions pose an unconstitutional risk of harm, the Court

19 must assess each individual class member’s exposure to the alleged

20 conditions”), appeal docketed, No. 13-16396 (9th Cir. July 10,

21 2013). Indeed, “classes have been certified in a legion of civil

22 rights cases where commonality findings were based primarily on

23 the fact that defendant’s conduct is central to the claims of all

24 class members irrespective of their individual circumstances and

25 the disparate effects of the conduct.” Baby Neal v. Casey, 43

26 F.3d 48, 57 (3d Cir. 1994). Accordingly, because Plaintiffs have

27 identified questions of fact and law that are common to all class

28

13

1 members, they have satisfied the commonality requirement with

2

2
respect to the Eighth Amendment Class.

3

As with the Due Process Class, however, any inmates who have

4 been transferred out of the Pelican Bay SHU must be excluded from

5 the Eighth Amendment Class. These inmates lack commonality with 6 inmates who remain housed in the Pelican Bay SHU and would not 7 benefit from any of the injunctive relief that Plaintiffs are

8 seeking here. If Plaintiffs seek to challenge the conditions of 9 confinement in any other housing unit or correctional facility, 10 they must seek leave to amend their Eighth Amendment claim.

United States District Court For the Northern District of California

11

D. Rule 23(a)(3): Typicality

12

Rule 23(a)(3)’s typicality requirement provides that a “class

13 representative must be part of the class and possess the same

14 interest and suffer the same injury as the class members.”

15 Falcon, 457 U.S. at 156 (quoting E. Tex. Motor Freight Sys., Inc.

16 v. Rodriguez, 431 U.S. 395, 403 (1977)) (internal quotation marks

17 omitted). This requirement is meant to ensure “that the interest

18 of the named representative aligns with the interests of the

19 class.” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.

20

21

2 Defendants continue to cite Madrid v. Gomez, 889 F. Supp. 1146

(1995), for the proposition that Plaintiffs’ “alleged harms are

22 insufficient to state a claim” under the Eighth Amendment. Opp. 19.

This argument is not properly raised in an opposition to class

23 certification and, even if it was, the Court has already rejected it.

As the Court explained in its prior order, Madrid dealt only with

24 inmates who had been confined in the SHU for less than three years and

“expressly left open the possibility that longer periods of confinement
25 in the SHU -- such as those alleged here -- could implicate Eighth

Amendment concerns.” Docket No. 191, April 9, 2013 Order, at 10; see
26 also Madrid, 889 F. Supp. at 1267 (“We can not begin to speculate on the

impact that Pelican Bay SHU conditions may have on inmates confined in
27 the SHU for periods of 10 or 20 years or more.”). Thus, to the extent

28

Defendants contend that Madrid requires denial of class certification, this argument is not persuasive.

14

United States District Court For the Northern District of California

1 1992). Rule 23(a)(3) is satisfied where the named plaintiffs have

2 the same or similar injury as the unnamed class members, the

3 action is based on conduct which is not unique to the named

4 plaintiffs, and other class members have been injured by the same

5 course of conduct. Id. Class certification is inappropriate,

6 however, “where a putative class representative is subject to

7 unique defenses which threaten to become the focus of the

8 litigation.” Id. (quoting Gary Plastic Packaging Corp. v. Merrill

9 Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.

10 1990)).

11

As noted above, five of the named Plaintiffs in this case are

12 currently assigned to an indeterminate term in the Pelican Bay SHU

13 on the basis of gang validation. Each of these inmates has lived

14 in the SHU for at least ten years. Defendants have not identified

15 any unique defenses that they might raise against these five

16 Plaintiffs and, instead, argue that Plaintiffs cannot establish

17 typicality for the same reasons they cannot establish commonality.

18 These arguments fail for the reasons discussed above. See

19 Armstrong, 275 F.3d at 869 (“We do not insist that the named

20 plaintiffs’ injuries be identical with those of the other class

21 members, only that the unnamed class members have injuries similar

22 to those of the named plaintiffs and that the injuries result from

23 the same, injurious course of conduct.”); LaDuke v. Nelson, 762

24 F.2d 1318, 1332 (9th Cir. 1985) (“The minor differences in the

25 manner in which the representative’s Fourth Amendment rights were

26 violated does not render their claims atypical of those of the

27 class.” (footnote omitted)); Hanlon, 150 F.3d at 1020 (“Under the

28 rule’s permissive standards, representative claims are ‘typical’

15

1 if they are reasonably co-extensive with those of absent class 2 members; they need not be substantially identical.”).

3

In contrast to the five named Plaintiffs who remain housed in

4 the Pelican Bay SHU, the five inmates who have been transferred to

5 other units or facilities are not typical of other putative class 6 members. The transferred individuals have been subject to a 7 different set of housing assignment procedures than the putative

8 class and now live under different conditions of confinement. As 9 such, they may be subject to a unique set of defenses and do not 10 satisfy the requirements of Rule 23(a)(3).

United States District Court For the Northern District of California

11

E. Rules 23(a)(4) & 23(g)(2): Adequacy

12

Rule 23(a)(4) requires that class representatives “will

13 fairly and adequately protect the interests of the class.” Fed. 14 R. Civ. P. 23(a)(4). Rule 23(g)(2) imposes a similar requirement 15 on class counsel.

16

Defendants contend that two of Plaintiffs’ attorneys, Marilyn

17 McMahon and Carol Strickman, cannot adequately serve as class

18 counsel in this case because they are “fact witnesses” who may be

19 called to testify about their communications with Plaintiffs

20 regarding recent prisoner hunger strikes.

3
Opp. 23.

Defendants

21 have not explained how this testimony is relevant to this case nor 22 how it would be admissible. Any communications between Plaintiffs 23 and Ms. McMahon and Ms. Strickman would not only be subject to the

24 attorney-client privilege but also likely constitute hearsay. 25

26

3 Defendants also initially argued that Ms. McMahon and Ms.

Strickman -- along with a third attorney, Anne Weills -- were inadequate
27 because Plaintiffs failed to submit evidence of their qualifications to

28

serve as class counsel. Because Plaintiffs subsequently submitted these attorneys’ CVs with their reply brief, this argument is now moot.

16

United States District Court For the Northern District of California

1 Thus, because Defendants have not identified any legitimate

2 grounds to disqualify Plaintiffs’ counsel, Plaintiffs have

3 satisfied the adequacy requirements of Rule 23(g).

4

As noted above, the five named Plaintiffs who have been

5 transferred out of the Pelican Bay SHU pursuant to the STG program

6 are not typical class members. This renders them inadequate class

7 representatives under Rule 23(a)(4). Thus, only the five named

8 Plaintiffs who currently remain housed in the Pelican Bay SHU may

9 adequately represent the class.

10

F. Rule 23(b)(1): Risk of Inconsistent Adjudications

11

As noted above, a class may be certified under Rule 23(b)(1)

12 if the prosecution of separate actions by individual members of

13 the class would create the risk of “inconsistent or varying

14 adjudications with respect to individual members of the class

15 which would establish incompatible standards of conduct for the

16 party opposing the class.” Fed. R. Civ. P. 23(b)(1)(A). If each

17 of the hundreds of proposed members of either the Due Process

18 Class or the Eighth Amendment Class were forced to adjudicate his

19 claims individually, there would be a significant risk of

20 inconsistent judgments. Certification of both proposed classes is

21 therefore appropriate under Rule 23(b)(1).

22

G. Rule 23(b)(2): Grounds General Applicable to the Class

23

“Rule 23(b)(2) permits class actions for declaratory or

24 injunctive relief where ‘the party opposing the class has acted or

25 refused to act on grounds generally applicable to the class.’”

26 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (2009)

27 (quoting Rule 23(b)(2)). “In a class-action lawsuit, Rule

28 23(b)(2) enables a trial court to determine the appropriateness of

17

United States District Court For the Northern District of California

1 system-wide relief based on the individual experiences of the

2 named plaintiffs.” Armstrong, 275 F.3d at 871.

3

Plaintiffs in this case seek an injunction to cure alleged

4 violations of their Eighth and Fourteenth Amendment rights

5 resulting from a uniform set of CDCR policies and procedures.

6 These claims fall squarely within the realm of class claims

7 covered by Rule 23(b)(2). Parsons, 289 F.R.D. at 524

8 (“Plaintiffs’ claims for injunctive relief stemming from allegedly

9 unconstitutional conditions of confinement are the quintessential

10 type of claims that Rule 23(b)(2) was meant to address.”); see

11 also Baby Neal, 43 F.3d at 58-59 (“It is the (b)(2) class which

12 serves most frequently as the vehicle for civil rights actions and

13 other institutional reform cases that receive class action

14 treatment.”).

15

Nevertheless, Defendants contend that certification is

16 inappropriate because Plaintiffs’ requested injunctive relief

17 “exceeds the boundaries of Rule 65(d).” Opp. 25. Defendants have

18 not cited any authority to support this argument and numerous

19 courts have expressly held that plaintiffs are not required to

20 satisfy Rule 65(d) in order to obtain class certification. See,

21 e.g., Shook v. Board of County Comm’rs, 543 F.3d 597, 605 n.4

22 (10th Cir. 2008) (explaining that plaintiffs need not “come

23 forward with an injunction that satisfies Rule 65(d) with exacting

24 precision at the class certification stage”). Indeed, in many

25 class actions challenging the constitutionality of a system-wide

26 policy or practice, it would be difficult for a plaintiff to

27 determine precisely the appropriate scope of injunctive relief at

28

18

United States District Court For the Northern District of California

1 the class certification stage. Defendants’ Rule 65(d) argument

2 therefore does not justify denying class certification here.

3

Defendants next contend that Plaintiffs’ requested injunctive

4 relief “contravenes” the Prison Litigation Reform Act (PLRA)

5 because it would have an “adverse impact on public safety.” Opp.

6 25. As with their Rule 65(d) argument, Defendants have failed to

7 cite any case law to support this contention. The provision of

8 the PLRA that they cite in their brief governs the scope of

9 injunctive relief that a federal court may issue in a “prison

10 conditions” case after liability has been assessed. 18 U.S.C.

11 § 3626(a)(1) (“Prospective relief in any civil action with respect

12 to prison conditions shall extend no further than necessary to

13 correct the violation of the Federal right of a particular

14 plaintiff or plaintiffs.”). It does not impose any requirements

15 on plaintiffs seeking class certification under Rule 23(b)(2).

16 Accordingly, it does not preclude class certification here.

17 II. Motion to Intervene

18

CCPOA is a labor union that represents roughly 27,000 CDCR

19 correctional officers across the State of California. It moves to

20 intervene as of right on the grounds that it has an interest in

21 protecting the safety of its members. It contends that

22 Plaintiffs’ requested injunctive relief -- particularly the

23 transfer of any inmates out of the Pelican Bay SHU -- would

24 jeopardize the safety of CDCR officers. In the alternative, it

25 argues that it should be granted leave to intervene permissively

26 because its motion is timely and it has defenses that share common

27 questions of law or fact with the main action. Neither of these

28 arguments is persuasive.

19

1

CCPOA has not explained why Defendants cannot adequately

2 protect the safety interests of CDCR officers in this litigation.

3 Wilderness Society, 630 F.3d at 1177 (requiring that “the 4 applicant’s interest must be inadequately represented by the

5 parties to the action”). In fact, it concedes that it plans to 6 present “substantially the same defenses as those the [current] 7 defendants are anticipated to present based on their motion to

8 dismiss.” Docket No. 233, CCPOA Mot. Intervene 8. CCPOA has also 9 failed to explain persuasively how its intervention in this action 10 would actually help it achieve its stated objective of preventing

United States District Court For the Northern District of California

11 any inmates from being transferred out of the Pelican Bay SHU. As 12 noted above, CDCR has already begun transferring inmates out of

13 the Pelican Bay SHU independently, even as these proceedings were 14 stayed. It is therefore not clear that CCPOA’s intervention in 15 this action would actually alter CDCR’s existing plans or

16 procedures. Thus, because intervention is not necessary to

17 protect the safety of CDCR employees, CCPOA may not intervene as

18

4
of right.

19

Permissive intervention is also inappropriate here. The only

20 potential defenses that CCPOA would raise are entirely duplicative

21 of arguments that Defendants have already raised, as noted above. 22 Furthermore, CCPOA waited nearly a year after Plaintiffs filed 23 their 2AC before it moved to intervene even though its interests

24

25

4 Notably, courts in this and other districts routinely dismiss

civil rights claims asserted by prisoners against CCPOA on the grounds
26 that CCPOA is not a proper defendant in such actions. See, e.g., Page

v. Acosta, 2009 WL 1357453, at *2 (N.D. Cal.) (dismissing Pelican Bay
27 inmate’s claims against CCPOA and noting that the “fact that an alleged

28

wrongdoer is the member of a union does not support liability for the union”).

20

United States District Court For the Northern District of California

1 in this case became “ripe” when that complaint was filed. See

2 CCPOA Mot. Intervene 6 (stating that “the issues affecting CCPOA’s

3 interests did not become ripe until the second amended complaint

4 was filed” in September 2012). For these reasons, intervention by

5 CCPOA at this stage would neither be productive nor timely.

6

Although CCPOA’s request to intervene is denied, the Court

7 will grant CCPOA leave to file an amicus brief in support of

8 Defendants’ dispositive motion.

9

CONCLUSION

10

For the reasons set forth above, Plaintiffs’ motion for class

11 certification (Docket No. 195) is GRANTED in part and DENIED in

12 part.

13

The Court certifies the following Due Process Class under

14 Rules 23(b)(1) and 23(b)(2): all inmates who are assigned to an

15 indeterminate term at the Pelican Bay SHU on the basis of gang

16 validation, under the policies and procedures in place as of

17 September 10, 2012.

18

The Court certifies the following Eighth Amendment Class

19 under Rules 23(b)(1) and 23(b)(2): all inmates who are now, or

20 will be in the future, assigned to the Pelican Bay SHU for a

21 period of more than ten continuous years.

22

The Court certifies the five named Plaintiffs who are

23 currently housed in the Pelican Bay SHU to serve as class

24 representatives and certifies Plaintiffs’ counsel to serve as

25 class counsel.

26

CCPOA’s motion to intervene (Docket No. 233) is DENIED.

27 CCPOA may submit an amicus brief in support of Defendants’

28 dispositive motion. The amicus brief shall not exceed fifteen

21

United States District Court For the Northern District of California

1 pages and shall not repeat any arguments raised by Defendants in

2 their motion.

3

A case management conference will be held at 2:00 p.m. on

4 June 4, 2014.

5

IT IS SO ORDERED.

6

7 Dated: 6/2/2014 8

CLAUDIA WILKEN United States District Judge

9

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 Case4:09-cv-05796-CW Document388 Filed03/11/15 Page1 of 60

1 JULES LOBEL (pro hac vice)

ALEXIS AGATHOCLEOUS (pro hac vice) 2 RACHEL MEEROPOL (pro hac vice)

3

CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor

4 New York, New York 10012

Tel: 212.614.6478

5 Fax: 212.614.6499

6 Email: jll4@pitt.edu

7 Attorneys for Plaintiffs (Additional counsel listed on signature page)
8

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

11 TODD ASHKER, JEFFREY FRANKLIN, )

12 GEORGE FRANCO, GABRIEL REYES, )

RICHARD JOHNSON, DANNY TROXELL, )

13 PAUL REDD, GEORGE RUIZ, LUIS

) Case No.: 4:09-cv-05796-CW

14

ESQUIVEL, and RONNIE DEWBERRY, on ) their own behalf, and on behalf of a class of ) PLAINTIFFS’ SUPPLEMENTAL

15 similarly situated prisoners,

) COMPLAINT )

16

Plaintiffs,

) CLASS ACTION

v.

)

17

)

18

EDMUND G. BROWN, Jr., Governor of the )

State of California; MATTHEW CATE,

)

19 Secretary, California Department of

)

Corrections and Rehabilitation (CDCR);

)

20 ANTHONY CHAUS, Chief, Office of

)

Correctional Safety, CDCR; and G.D. LEWIS, )

21 Warden, Pelican Bay State Prison,

)

22

)

Defendants.

)

23

24

25

26

27

28
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1

I. INTRODUCTION

2

1. Plaintiffs George Ruiz, Jeffrey Franklin, Todd Ashker, George Franco, Gabriel

3 Reyes, Richard Johnson, Danny Troxell, Paul Redd, Luis Esquivel, and Ronnie Dewberry sue on
4 their own behalf and as representatives of a class of prisoners who have been incarcerated in
5
6 California’s Pelican Bay State Prison’s Security Housing Unit (“SHU”) for an unconscionably

7 long period of time without meaningful review of their placement. Plaintiffs have been isolated

8 at the Pelican Bay SHU for between 11 and 22 years. Many were sent to Pelican Bay directly

9 from other SHUs, and thus have spent even longer – over 25 years – in solitary confinement.

10

2. California has subjected an extraordinary number of prisoners to more than a

11 decade of solitary confinement at the Pelican Bay SHU. According to 2011 California
12 Department of Corrections and Rehabilitation (CDCR) statistics, more than 500 prisoners (about
13

14 half the population at the Pelican Bay SHU) have been there for more than 10 years. Of those

15 people, 78 prisoners have been there for more than 20 years. As one federal judge in the

16 Northern District of California noted, retention of prisoners in the Pelican Bay SHU for 20 years

17 “is a shockingly long period of time.” See Griffin v. Gomez, No. C-98-21038, slip op. at 10 (N.D.
18 Cal. June 28, 2006). 19
3. California’s uniquely harsh regime of prolonged solitary confinement at Pelican 20
Bay is inhumane and debilitating. Plaintiffs and class members languish, typically alone, in a 21 22 cramped, concrete, windowless cell, for 22 and one-half to 24 hours a day. They are denied
23 telephone calls, contact visits, and vocational, recreational or educational programming.

24 Defendants persistently deny these men the normal human contact necessary for a person’s

25 mental and physical well-being. These tormenting and prolonged conditions of confinement have

26 produced harmful and predictable psychological deterioration among Plaintiffs and class

27 members.
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1

4. The solitary confinement regime at Pelican Bay, which renders California an

2 outlier in this country and in the civilized world, violates the United States Constitution’s
3 requirement of due process and prohibition of cruel and unusual punishment, as well as the most 4
basic human rights prohibitions against cruel, inhuman or degrading treatment. Indeed, the 5 6 prolonged conditions of brutal confinement and isolation at Pelican Bay cross over from having
7 any valid penological purpose into a system rightly condemned as torture by the international

8 community.

9

5. The conditions at Pelican Bay have become so harsh and notorious that prisoners

10 at the Pelican Bay SHU, as well as thousands of others incarcerated in facilities across the
11 country, have engaged in two recent sustained hunger strikes.
12 6. California, alone among all 50 states and most other jurisdictions in the world,
13
14 imposes this type of extremely prolonged solitary confinement based merely on a prisoner’s

15 alleged association with a prison gang. While defendants purport to release “inactive” gang

16 members after six years in the SHU, in reality their so-called gang validation and retention

17 decisions (and resulting indefinite SHU placement) are made without considering whether
18 plaintiffs and class members have ever undertaken an illegal act on behalf of a gang, or whether 19
they are – or ever were – actually involved in gang activity. As one example, defendants continue 20
to detain plaintiff George Ruiz in the Pelican Bay SHU after 22 years, based on nothing more 21 22 than his appearance on lists of alleged gang members discovered in some unnamed prisoners’
23 cells and his possession of allegedly gang-related drawings.

24

7. Plaintiffs’ and class members’ only way out of isolation is to “debrief” to prison

25 administrators (i.e., report on the gang activity of other prisoners); as such, defendants

26 unreasonably condition release from inhumane conditions on cooperation with prison officials in

27 a manner that places prisoners and their families in significant danger of retaliation. See Griffin,
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1 No. C-98-21038 at 8. Accordingly, for those many prisoners who refuse or are unable to debrief,

2 defendants’ policies result in “effectively permanent” solitary confinement. Id.

3

8. The conditions at the Pelican Bay SHU are extremely harsh when compared to the

4 experience of a typical California state prisoner, particularly given the extraordinary length of
5

6 SHU confinement at Pelican Bay. Yet plaintiffs and the class they represent are incarcerated for

7 years without any meaningful review of their SHU confinement or any notice of how they can

8 earn their way back to the general population without becoming informants.

9

9. A few years after Pelican Bay opened its doors in December 1989, a class of

10 Pelican Bay prisoners brought a constitutional challenge to the conditions, practices, and abuse at
11 the facility. After an extensive trial, the court found that, for a subclass of prisoners at high risk
12 for developing mental illness, the isolation and harsh conditions in the Pelican Bay SHU
13
14 constituted cruel and unusual punishment. See Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D.

15 Cal. 1995). Although the court rejected Eighth Amendment claims brought by prisoners outside

16 this high risk group, it emphasized that it had only considered isolation lasting up to three years.

17 The court could “not even begin to speculate on the impact on inmates confined in the SHU for
18 periods of 10 to 20 years or more[.]” Id. at 1267. This case presents the substantial question left 19
unanswered by Madrid. 20
10. Plaintiffs and the class seek a declaration that the ongoing practices of the 21 22 defendants – the Governor of California, the Secretary and the Chief of the Office of Correctional
23 Safety of the CDCR, and the Warden of Pelican Bay State prison – violate their constitutional

24 rights, and injunctive relief compelling defendants to provide prisoners at Pelican Bay with

25 meaningful review of their indeterminate SHU assignment and to cease holding prisoners in the
26 inhumane conditions of solitary confinement for extremely prolonged periods. 27

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1

II. JURISDICTION AND VENUE

2

11. Plaintiffs and the class bring claims pursuant to 42 U.S.C. § 1983 and the Eighth

3 and Fourteenth Amendments to the United States Constitution.
4 12. This Court has jurisdiction for claims seeking declaratory and injunctive relief
5
6 pursuant to 28 U.S.C. §§ 1331 and 1343 and the Declaratory Judgment Act, 28 U.S.C. §§ 2201,

7 2202.

8

13. Venue is proper in the Northern District of California pursuant to 28 U.S.C. §

9 1391(b)(2) in that a substantial part of the events or omissions giving rise to the claims brought by

10 plaintiffs and the class have occurred in this District.

11
12 A.
13

Plaintiffs

III. PARTIES

14

14. Plaintiff GEORGE RUIZ (B82089) is a 69-year-old prisoner who has spent 22

15 years at the Pelican Bay SHU, and the last 28 years in solitary confinement, due to his validation

16 as a member of the Mexican Mafia (EME). He has had no significant rule violations since his

17 incarceration began in 1980. Indeed, he has only had one disciplinary violation of any kind since

18 1986. He is serving a seven year to life sentence and has been eligible for parole since 1993, but

19 multiple parole boards have indicated that he will never be paroled while he is housed in the
20 SHU.
21

22

15. Plaintiff JEFFREY FRANKLIN (C08545) is a 52-year-old prisoner who has spent

23 the last 22 years at the Pelican Bay SHU. In 2006, he was denied inactive Black Guerilla Family

24 (BGF) status based solely on evidence that he associates with other gang members, shares a

25 common ideology, and attempts to educate the community and other prisoners to his philosophy.

26

16. Plaintiff TODD ASHKER (C58191) is a 48-year-old prisoner who has spent over

27 25 years in solitary confinement, and 22 years at the Pelican Bay SHU. He was validated as an
28

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1 Aryan Brotherhood member in 1988, and has been denied inactive status based on confidential

2 memoranda from informants and artwork found in his cell. Ashker has never been charged with
3 or disciplined for a proven gang-related act. As the Warden stated in response to one of Ashker’s 4
administrative grievances, unless Ashker debriefs, by “formally renounc[ing] his membership” in 5 6 the Aryan Brotherhood and “divulg[ing] all of their secrets to the authorities,” he will remain
7 incarcerated in the SHU for the rest of his life.

8

17. Plaintiff GEORGE FRANCO (D46556) is a 46-year-old prisoner who has spent 20

9 years in solitary confinement at the Pelican Bay SHU. In 2008, Franco was denied inactive

10 Nuestra Familia status based on confidential statements by informants regarding his role within
11 the gang, and the fact that his name appeared on gang rosters found in other prisoners’ cells.
12 None of the source items relied on to retain Franco in the SHU for another six years alleged any
13
14 gang activity or criminal conduct.

15

18. Plaintiff GABRIEL REYES (C88996) is a 46-year-old prisoner who has spent

16 almost 16 years continuously in isolation in California, and has been kept in the Pelican Bay SHU

17 for 14 and one-half years. Reyes is serving a sentence of 25 years to life as a result of
18 California’s “three strikes” law. At his last inactive review in 2008, he was denied inactive EME 19
associate status solely on possession of artwork allegedly containing gang symbols. 20
19. Plaintiff RICHARD JOHNSON (K53293) is a 61-year-old prisoner who has spent 21 22 almost 15 years in solitary confinement at the Pelican Bay SHU due to his validation as a BGF
23 member. Under California’s “three strikes” law, Johnson is currently serving 33 years to life for

24 drug-related offenses. Johnson has never incurred a major disciplinary offense, yet continues to

25 languish in the Pelican Bay SHU.

26

20. Plaintiff DANNY TROXELL (B76578) is a 59-year-old prisoner who has spent

27 over 26 years in solitary confinement, and 22 years at the Pelican Bay SHU due to his validation
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1 as a member of the Aryan Brotherhood. Troxell’s only act of violence in the last 30 years

2 involved a fist fight in 1997 in which nobody was significantly injured. He has been eligible for

3 parole since 1996, but pursuant to a practice of denying parole to all SHU prisoners, he has no

4 hope of being released from prison.
5

6

21. Plaintiff PAUL REDD (B72683) is a 55-year-old prisoner who has spent almost

7 33 of the past 35 years in solitary confinement in California and has spent the last 11 and one-half

8 years in Pelican Bay’s SHU. Redd was first validated as a BGF gang member in 1980 based on

9 six confidential memoranda stating that he had communicated with other BGF prisoners and that
10 his name was on a coded roster found in a validated BGF member’s possession. Over 30 years 11
later, he continues to be labeled a gang member based merely on association. 12
22. Plaintiff LUIS ESQUIVEL (E35207) is a 43-year-old prisoner who has spent the 13 14 last 13 years in solitary confinement in the Pelican Bay SHU. He has never incurred a serious
15 disciplinary violation. In 2007, after more than six years in the SHU, Esquivel was determined to

16 be an inactive gang associate, but was nonetheless retained in the SHU. He was revalidated as an

17 active EME associate a year later because he possessed allegedly gang-related Aztec artwork.

18

23. Plaintiff RONNIE DEWBERRY (C35671) is a 53-year-old prisoner who has spent

19 the last 27 years in solitary confinement. He has been repeatedly validated as a BGF member
20 based merely on his associations and his political, cultural, and historical writings. He has had no
21

22 major disciplinary infractions since 1995. Dewberry would be eligible for parole consideration

23 but for his retention in the SHU.

24

24. As detailed below, plaintiffs are suffering serious mental and physical harm due to

25 their prolonged confinement in isolation at the Pelican Bay SHU.

26 B. Defendants

27 25. Defendant EDMUND G. BROWN, Jr., is the Governor of the State of California.
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1 As such, he has caused, created, authorized, condoned, ratified, approved or knowingly

2 acquiesced in the illegal, unconstitutional, and inhumane conditions, actions, policies, customs

3 and practices that prevail at Pelican Bay SHU, as described below. He has, therefore, directly and
4 proximately caused, and will continue to cause in the future, the injuries and violations of rights
5
6 set forth below. Defendant Brown is sued in his official capacity only.

7

26. Defendant MATTHEW CATE is the Secretary of the CDCR. As such, he has

8 caused, created, authorized, condoned, ratified, approved, or knowingly acquiesced in the illegal,

9 unconstitutional, and inhumane conditions, actions, policies, customs and practices that prevail at

10 the Pelican Bay SHU, as described below. He has, therefore, directly and proximately caused,

11 and will continue to cause in the future, the injuries and violations of rights set forth below.
12 Defendant Cate is sued in his official capacity only.
13

14

27. Defendant ANTHONY CHAUS is the Chief of the Office of Correctional Safety

15 of the CDCR. The Office of Correctional Safety houses and supervises the Special Services Unit

16 (SSU), which is CDCR’s primary departmental gang-management unit responsible for

17 investigating prisoners suspected of gang affiliation. As such, he has caused, created, authorized,
18 condoned, ratified, approved, or knowingly acquiesced in the illegal, unconstitutional, and 19
inhumane conditions, actions, policies, customs and practices that prevail at the Pelican Bay 20
SHU, including but not limited to issues of gang validation. He has, therefore, directly and 21 22 proximately caused, and will continue to cause in the future, the injuries and violations of rights
23 set forth below. Defendant Chaus is sued in his official capacity only.

24

28. Defendant G.D. LEWIS is the Warden of Pelican Bay State Prison. As such, he

25 has caused, created, authorized, condoned, ratified, approved or knowingly acquiesced in the

26 illegal, unconstitutional, and inhumane conditions, actions, policies, customs, and practices that

27 prevail at the Pelican Bay SHU, as described below. He has, therefore, directly and proximately
28

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1 caused, and will continue to cause in the future, the injuries and violations of rights set forth

2 below. Defendant Lewis is sued in his official capacity only.

3
4 A.
5
6

IV. FACTUAL ALLEGATIONS Conditions at the Pelican Bay SHU 29. California opened Pelican Bay State Prison on December 1, 1989. It is the most

7 restrictive prison in California and one of the harshest super-maximum security facilities in the

8 country.

9

30. The prison is split between general population units for maximum security

10 prisoners and the Security Housing Unit (SHU). The SHU contains 1,056 cells explicitly
11 designed to keep the alleged “worst of the worst” in the state prison system under conditions of
12 extreme isolation, sensory deprivation, and restricted movement. Also characteristic of Pelican
13
14 Bay’s SHU are the extremely limited recreational and cultural opportunities afforded to prisoners,

15 a near total lack of contact with family and loved ones, an absolute denial of work opportunities,

16 limited access to personal property, and extraordinary levels of surveillance and control.

17

31. Pelican Bay was specifically designed to foster maximum isolation. Situated in

18 rural Del Norte County, on California’s northern border with Oregon, its lengthy distance from
19 most prisoners’ families was considered advantageous by the California correctional
20 administrators who developed the facility. The prison is a 355-mile drive from San Francisco and
21
22 a 728-mile drive from Los Angeles, where many of the prisoners’ families live.

23

32. The original planners did not contemplate that prisoners would spend decades at

24 Pelican Bay. Rather, they designed the prison under the assumption that prisoners would

25 generally spend up to 18 months in the SHU – a term consistent with practices in the rest of the

26 country.

27 33. According to CDCR, there were on average 1,106 people incarcerated in the
28

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1 Pelican Bay SHU in 2011. About half (513) had been in the SHU for more than 10 years. Of

2 those people, 222 had been incarcerated in the SHU for 15 or more years, and 78 had been there

3 for more than 20 years. Of the remaining people, 544 had been in the SHU for five to 10 years,

4 and the rest, 54, were there for five years or less.
5

6

34. Many plaintiffs and class members, including Ruiz, Ashker, Troxell, Franklin, and

7 Dewberry, have been at Pelican Bay since the year it opened.

8

35. Some plaintiffs and class members have spent even longer in continuous isolation,

9 as they were transferred directly from other solitary units to the Pelican Bay SHU. For example,

10 Ruiz has been held in solitary confinement since 1984 – for approximately 28 years. Dewberry

11 has been in isolation for 27 years. Troxell has spent over 26 years in isolation, and Ashker has
12 spent over 25 years in isolation.
13

14

36. All plaintiffs have been held in the Pelican Bay SHU for over 10 years.

15

37. California’s prolonged isolation of thousands of men is without equal in the United

16 States. There is no other state in the country that consistently retains so many prisoners in

17 solitary confinement for such lengthy periods of time.

18

38. The cost of housing a prisoner at the Pelican Bay SHU is considerably higher than

19 the cost of incarcerating a prisoner in general population housing. CDCR reports that it cost the
20 State $70,641 in 2010-2011 to house a single prisoner at the Pelican Bay SHU – tens of thousands
21

22 of dollars more per prisoner than in the general population.

23

39. Plaintiffs and the hundreds of other long-term SHU residents at Pelican Bay are

24 warehoused in cramped, windowless cells, are given almost no access to recreation or exercise,

25 and have no access to programming or vocational activities. Prisoners never leave the Pelican

26 Bay SHU except under rare circumstances for medical purposes or a court appearance.

27 40. Compounding the extremity of their situation, plaintiffs and class members must
28

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1 face these conditions in a state of near total solitude. Pelican Bay prisoners have absolutely no

2 access to group recreation, group education, group prayer, or group meals. Most are housed in a
3 single-occupancy cell and cannot have a normal human conversation with another prisoner. Their 4
only avenue of communication is by speaking loudly enough for the prisoner in the next cell, or a 5 6 cell down the line, to hear. Guards, however, have discretion to issue warnings and punish any
7 loud communication as a rule violation, and do so. Moreover, any communication with another

8 validated gang member or associate, even just a greeting, may and has been be used by CDCR as

9 evidence of gang affiliation justifying the prisoners’ retention in the SHU.

10

41. For example, CDCR cited as evidence of Franklin’s continued gang affiliation the

11 fact that he was observed in 2006 “communicating by talking” between pods with another
12 prisoner who is a validated member of a different gang.
13

14

42. Similarly, in March 2011, Franco received a disciplinary violation simply for

15 speaking to a prisoner in the next pod as he passed by his cell on the way back from the shower.

16 Redd, too, was disciplined in 2007 for talking to another prisoner in passing.

17

43. While some plaintiffs and class members have had cellmates at Pelican Bay, being

18 locked up with a cellmate all day in an 80-square-foot cell does not compensate for the severe
19 isolation of the Pelican Bay SHU, as the Madrid Court found. See Madrid, 889 F.Supp. at 1229-
20 30. Instead, double-celling requires two strangers to live around-the-clock in intolerably cramped
21
22 conditions, in a cell barely large enough for a single human being to stand or sit.

23

44. Plaintiffs’ and class members’ communication with loved ones outside the facility

24 is also subject to severe restrictions.

25

45. Prisoners at the Pelican Bay SHU are prohibited from any access to social

26 telephone calls absent an emergency. A single telephone call may be granted to a prisoner in the

27 event of an emergency (such as a death in the family), but Pelican Bay staff retains complete
28

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1 discretion to determine whether the circumstances allow for a call. Ashker, for example, was able

2 to speak to his mother only twice in 22 years: once in 1998, and once in 2000. She has since

3 died. Reyes was denied a telephone call home after his stepfather died, because he had been

4 allowed a telephone call several months earlier when his biological father died.
5

6

46. Neither plaintiffs nor the experts they have consulted are aware of any other

7 federal, local or state correctional system in the United States that forbids all non-emergency

8 telephone communication.

9

47. The remote location of Pelican Bay means that most SHU prisoners receive no

10 visits with family members or friends for years at a time. Many prisoners have thus been without
11 face-to-face contact with people other than prison staff for decades.
12 48. When they do occur, family visits are limited to two two-hour visits on weekends.
13
14 No physical contact whatsoever is allowed; visits occur behind plexiglass, over a telephone, in a

15 cramped cubicle. This means that prisoners may not even hug or hold hands with visiting family

16 members, children, or other loved ones. Despite the non-contact nature of the visits, prisoners are

17 strip-searched before and after.

18

49. The visits are monitored and recorded, and the tapes are later reviewed by gang

19 investigators seeking evidence of gang communication to use against the prisoner and his visitor.
20 50. When Ashker’s disabled mother visited him, no accommodation was made for her
21

22 wheelchair, causing a shortened and difficult visit. She never visited again. Dewberry, whose

23 family lives in Oakland, has had less than one visit per year since his 1990 transfer to Pelican

24 Bay. He had no visits between 2008 and February 2012. Franklin’s last social visit was in 2005.

25

51. Troxell’s family has given up trying to visit him because of the distance and cost

26 of traveling to Pelican Bay and because non-contact visits are so upsetting. He has five

27 grandchildren and one great-grandchild, but has never met them.
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1

52. Esquivel sought a hardship transfer from Pelican Bay, due to his mother’s

2 difficulty in visiting him from San Diego. The transfer was denied, and he was told to debrief
3 instead. As a result, Esquivel was unable to see or speak to his parents between 2000 and 2009, 4
when his mother died. After her death, he was allowed one phone call with his father and sister – 5 6 his only social call in nine years. As soon as he hung up the phone, Pelican Bay gang
7 investigators told him to think about taking advantage of the debriefing program.

8

53. The lack of telephone calls and functional lack of visitation imposes considerable

9 strain on family relationships; those relationships have frequently broken down entirely. Reyes

10 has not hugged his daughters in almost two decades, since they were in pre-school. They are now
11 adults. Reyes was only recently allowed to send his children a photograph of him – his first in 17
12 years. His aging mother is ill and cannot travel the considerable distance to Pelican Bay, and the
13
14 rules forbid him to speak with her by phone.

15

54. Esquivel has not shaken another person’s hand in 13 years and fears that he has

16 forgotten the feel of human contact. He spends a lot of time wondering what it would feel like to

17 shake the hand of another person.

18

55. Prisoners at the Pelican Bay SHU may receive non-legal mail, but they may only

19 keep 10 pieces of social mail at a time; any other mail is confiscated. There are significant delays
20 in the delivery of both social and legal mail to prisoners.
21

22

56. These extreme restrictions on human contact are imposed on plaintiffs and class

23 members as a matter of official CDCR policy and have been approved or implemented by

24 defendants.

25

57. In addition to the near total isolation that prisoners at Pelican Bay face, the

26 physical conditions under which they live are stark.

27 58. The cells in the Pelican Bay SHU are completely concrete, measure approximately
28

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1 80 square feet, and are eight feet high. They contain a bed made of concrete, a sink, and a toilet.

2 Concrete slabs projecting from the walls and floor serve as a desk and stool. The cells have no
3 window, so prisoners have no view of the outside world, nor any exposure to natural light. Until 4
the summer 2011 hunger strike described below, prisoners were not allowed to put up any 5 6 decorations, drawings, or photographs on their walls; now they are permitted one wall calendar.
7 The doors to the cells consist of solid steel, rather than bars, and are perforated with small holes

8 that allow for a partial view into a concrete hallway. The door has a food slot that an officer may

9 unlock to insert food or mail, and that is also used to handcuff the prisoner before the door is
10 opened. The cells do not contain an emergency call button, so prisoners must yell for help in the 11
event of an emergency, or rely on a staff member noticing that they are in distress. 12
59. The unit is loud – guards’ conversations echo down the tier all day. At night the 13 14 guards stamp mail loudly, open and close doors, and walk the tier with rattling keys and chains
15 for count. Prisoners who are not “showing skin” during these counts are awakened. As a result

16 of these conditions, and the impact of their long-term isolation, many prisoners have developed

17 sleep disorders, vision problems, and headaches.

18

60. Bedding consists of a hard, lumpy mattress, sheets, and two thin blankets.

19 61. The temperature in the cells can be excessively hot or cold. The ventilation
20 consists of recycled air, which is cold in the winter and hot in the summer.
21

22

62. Property is tightly restricted. Plaintiffs and the class are allowed a total of only 10

23 books or magazines, and up to six cubic feet of property. They may purchase a television set or

24 radio if they have the means, though available stations are limited. Prisoners at the Pelican Bay

25 SHU are given one quarter of the regular monthly canteen allowance and may receive one annual

26 package, not exceeding 30 pounds in weight, including packaging.

27 63. Plaintiffs and the class normally spend between 22 and one-half and 24 hours a
28

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1 day in their cells. They are typically allowed to leave their cells only for “exercise” and to

2 shower.

3

64. “Exercise” occurs in a barren, solid concrete exercise pen, known as a “dog run.”

4 It is supposed to last for one and one-half hours, seven times weekly. However, prisoners often
5

6 do not receive even this minimal amount of exercise due to staff shortages and training days,

7 disruptions, inclement weather, or arbitrary staff decisions.

8

65. The exercise pen is small and cramped, with high walls. Half of the roof is

9 partially covered with painted plexiglass and a metal mesh grate that obstructs direct sunlight; the

10 other half allows the only exposure Pelican Bay SHU prisoners ever have to the sky. Pelican Bay
11 is situated in one of the wettest areas of California, with an average rainfall of 67 inches. Rain
12 falls directly into the exercise pens, causing water to pool on the floor. The walls of the exercise
13
14 pen have accumulated mildew or mold, aggravating respiratory problems among the prisoners.

15

66. Until the 2011 hunger strike, there was no equipment whatsoever in the exercise

16 pen. Since then, prisoners have been provided one handball. Prisoners exercise alone, unless they

17 share their cell, in which case they are permitted to exercise with their cellmate. If a prisoner
18 with a cellmate wants to exercise alone to get a brief period of privacy, then his cellmate must 19
forfeit his opportunity to exercise. 20
67. Plaintiffs and other Pelican Bay SHU prisoners have absolutely no access to 21 22 recreational or vocational programming. While those prisoners who can afford them are allowed
23 to take correspondence classes, there has been no consistent access to proctors for exams that

24 would allow prisoners to get credit for their coursework. Until the 2011 hunger strike, prisoners

25 at the facility were banned from purchasing art supplies or hobby or crafting materials. Prisoners

26 who are discipline free for one year are now permitted to purchase and retain a limited amount of

27 art supplies.
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1

68. Prisoners at the Pelican Bay SHU are allowed one 15-minute shower in a single

2 shower cell three times weekly.

3

69. Prisoners are allowed access to the law library for two hours, once a month, unless

4 they have a court deadline within 30 days.
5

6

70. Whenever a prisoner is moved outside of the “pod” in which he is housed and in

7 which the shower and exercise pen is located, he is handcuffed, his hands are shackled to his

8 waist or behind his back, and he is escorted by two guards. The prisoner is also strip searched in

9 public, near the door to the pod.

10

71. While prisoners in the SHU are supposed to be served the same meals as other

11 prisoners in California, in practice it is common that the meals prisoners receive in the SHU are
12 substandard in that they contain smaller portions, fewer calories, and often are served cold, rotten,
13

14 or barely edible.

15

72. Conditions at Pelican Bay are so harsh, even compared to other California SHUs,

16 that in 2011 Franklin requested to be transferred out of the Pelican Bay SHU to any of the other

17 three SHUs in California so that he could have “minimal human contact” and not suffer the

18 “extreme sensory deprivation” at Pelican Bay. In his request, he explained that other SHUs have

19 windows in the cells, allow some time for prisoners to “see and talk with each other,” and permit
20 prisoners to “see grass, dirt, birds, people and other things.”
21

22

73. Defendants are directly responsible for these stark conditions at Pelican Bay, and

23 for the degree to which the conditions are compounded by other punitive measures, including a

24 pattern and practice of coercive denial of standard medical care.

25

74. Plaintiffs have serious medical conditions, some of which, upon information and

26 belief, have been caused or exacerbated by their confinement at the Pelican Bay SHU. Franklin,

27 for example, has chronic back and eye problems, and Dewberry suffers from melanin deficiency
28

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1 leading to severe pigmentation loss, vitamin D deficiency, chronic lower back problems and pain,

2 stomach problems, and swollen thyroid glands. Redd suffers from hypertension, diabetes, vision
3 problems, and a thyroid disorder for which he receives no medication. 4
75. Johnson has osteoporosis, arthritis, and cysts in both kidneys, and he has suffered 5 6 renal failure. He also had a heart attack in 2009 while in the SHU, and takes heart medication.
7 He was scheduled to be transferred to Folsom Prison because of his heart condition, but was later

8 refused transfer after his participation in the Pelican Bay hunger strike.

9

76. Reyes suffers from several chronic medical ailments, including Sjogren’s Disease,

10 for which he was prescribed effective medications; those medications have been discontinued at
11 the Pelican Bay SHU, and other medical treatment has also been withdrawn without explanation.
12 77. Ruiz has glaucoma and had a corneal transplant on his left eye. He may need one
13
14 for his right. He has diabetes, which became aggravated after a change in his medication. He

15 recently developed pneumonia, kidney failure, and difficulty breathing, and experienced a delay

16 in being seen by a medical practitioner.

17

78. Despite these serious conditions, prisoners with medical concerns are routinely

18 told by prison officials that if they want better medical care for their conditions or illnesses, or
19 improved pain management, the way to obtain adequate care is to debrief.
20 79. Ashker, for example, who suffers from almost constant pain due in part to an old
21
22 gunshot wound, was told by Pelican Bay medical staff in 2006 that he “holds the keys” to getting

23 better medical care, presumably by debriefing and moving to the general population.

24

80. Ruiz and Johnson have also been told that the only path to better health care is

25 debriefing.

26

81. The denial of adequate medical care at Pelican Bay is not isolated to a few doctors

27 or correctional officials, but is rather a longstanding pattern and practice which, on information
28

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1 and belief, has been officially sanctioned by defendants for the purpose of coercing plaintiffs and

2 class members to debrief.

3

82. The serious mental-health impact of even a few years in solitary confinement is

4 well documented, yet mental health care at the Pelican Bay SHU is grossly inadequate. Every
5

6 two weeks, a psychologist walks past the prisoners’ cells, calling out “good morning,” or “you

7 okay?” The psychologist walks past eight cells in approximately 30 seconds during these

8 “rounds.” It is incumbent on a prisoner to get the psychologist’s attention to indicate that he

9 wants to talk. As a result, prisoners in neighboring cells are aware when someone calls out to the
10 psychologist for help. There is no opportunity during this brief encounter for a private 11
consultation with a mental-health practitioner. 12
83. Indeed, beyond a brief intake screening upon their arrival to the SHU, the only 13 14 mental health assessment that many SHU prisoners receive occurs at Institutional Classification
15 Committee meetings, at which a mental health staff member is present. Each prisoner is asked

16 two standard questions: (1) whether he has a history of mental illness; and (2) whether he wants

17 to hurt himself or others. These questions are asked in front of the Warden, Correctional Captain,
18 and numerous other correctional staff. No further mental health evaluation occurs. 19
84. For these reasons, plaintiffs and class members have received inadequate mental 20
health care or none at all. Though prisoners may request mental-health services by filling out a 21 22 form, some plaintiffs have declined to seek any mental health care while incarcerated because of
23 concerns over lack of confidentiality. Others do not talk to mental health staff because those staff

24 members seem uncaring, and because officers can overhear sessions or are told of prisoners’

25 personal problems.

26

85. When one plaintiff actually requested mental health care, he was referred to a

27 “self-help” library book.
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1

86. SHU assignment also prolongs plaintiffs’ and class members’ time in prison.

2 Since legislative changes in 2010, prisoners cannot earn “good time” or “conduct” credit while in
3 the SHU for gang affiliation. Therefore, a prisoner with a determinate (fixed) sentence such as 4
Esquivel, who was convicted in 1997 of robbery and burglary and is serving a flat 34-year 5 6 sentence, will be released between four and five years later than he otherwise would have simply
7 because he is incarcerated in the SHU.

8

87. In addition, an unwritten policy prevents any prisoner held in the SHU from being

9 granted parole. Ruiz, Ashker, Troxell, Franklin, and Dewberry are all eligible for parole, but
10 have been informed by parole boards that they will never attain parole so long as they are housed 11
in the SHU. 12
88. Ruiz, for example, has been incarcerated in California since 1981, after he was 13 14 convicted of robbery and kidnapping and sentenced to seven years to life in prison. He was told
15 by the judge that he would likely serve 13 and one-half years, and has been eligible for parole

16 since 1993. However, multiple parole boards have indicated that he will never get parole as long

17 as he is housed in the SHU.

18

89. Franklin has been eligible for parole since 2000, and although the parole board has

19 characterized his disciplinary history at Pelican Bay as “minimal,” it has repeatedly denied him
20 parole, citing, among other things, his refusal to disassociate with the gang through debriefing. In
21

22 2001, he was explicitly told that he needed to get out of the SHU to gain parole.

23

90. So too, Dewberry and Ashker have been eligible for parole since 1996 and 2004

24 respectively, but have been informed that they will not receive parole unless they first get out of

25 the SHU. 26

27

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1 B. Assignment to and Retention in the Pelican Bay SHU

2

i. Initial Assignment to the SHU

3

91. CDCR places prisoners who have been validated as gang affiliates into the above

4 conditions in SHU for an indefinite term, served in repeatedly renewed six-year increments. See
5

6 CAL. CODE REGS. tit. 15, § 3341.5(c)(2)(A)(2) (2012).

7

92. Ignoring prisoners’ actual behavior, CDCR identifies prison gang affiliates

8 through a process called prison gang validation. See CDCR, OPERATIONS MANUAL § 52070.21

9 (2009). Validation does not require CDCR to show that the prisoner has violated a prison rule,

10 broken the law, or even acted on behalf of the gang. Indeed, many prisoners who have not

11 engaged in any gang-related misconduct or rule violations before validation are placed in the
12 SHU based merely on allegations that they have associated with a gang.
13

14

93. For example, Ruiz, Johnson, Redd, Esquivel and Dewberry were all validated as

15 gang members or associates without allegations of actual gang activity or gang-related rule

16 violations. Rather, the prison relied on confidential informants who claimed these plaintiffs were

17 gang members or associates, on possession of allegedly gang-related art, tattoos, or written
18 material, and/or on inclusion of their names on alleged lists of gang members and associates. 19
94. When validated, prisoners are classified as either gang members or gang 20
associates. A “member” is a prisoner who has been accepted into membership by a gang. CAL. 21
22 CODE REGS. tit. 15, § 3378(c)(3). An “associate” is a prisoner or any person who is involved

23 periodically or regularly with members or associates of a gang. Id. at § 3378(c)(4). Both

24 members and associates (referred to globally as “gang affiliates”) are subject to indefinite SHU

25 confinement.

26

95. California’s practice of placing people in long-term SHU confinement simply

27 because of gang association is unusual and does not comport with the general practice of other
28

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1 states that maintain super-maximum security prisons.

2

ii. Periodic Review

3

96. Once a prisoner is validated as a gang affiliate and sent to the SHU for an

4 indefinite term, he is entitled to periodic “reviews” of his validation. Pursuant to California
5

6 regulations, a classification committee must review the prisoner’s status every 180 days, allegedly

7 so they can consider releasing the prisoner to the general population. Id. at

8 § 3341.5(c)(2)(A)(1). In reality, classification reviews do not substantively review the prisoner’s

9 SHU assignment, but rather involve three steps. First, the prisoner is urged to debrief from the
10 gang. Second, a mental health staff member asks two questions: (1) do you have a history of 11
mental illness; and (2) do you want to hurt yourself or others? This mental health evaluation 12
occurs in front of all members of the classification committee, including the Warden, Facility 13 14 Captain, Correctional Captain, the Assignment Lieutenant, and other correctional staff. See id. at
15 § 3376(c)(2). Third, the classification committee “reviews” the paperwork in the prisoners’ file,

16 to make sure that all required paperwork is accounted for.

17

97. Unless a prisoner is willing to debrief, the 180-day review allows absolutely no

18 possibility of release from the SHU.
19 98. No examination of continued gang activity or association occurs at the 180-day
20 review, nor is there any assessment of whether the prisoner’s behavior requires continued SHU
21
22 placement. For this reason, such reviews are meaningless, and few Pelican Bay SHU prisoners

23 attend them.

24

99. The only review at which the classification committee team even purports to

25 determine whether the prisoner should be released from the SHU occurs once every six years. See

26 id. at § 3378(e). Therefore, all gang validated prisoners in the SHU must remain in solitary

27 confinement for six years without even the possibility of any review to obtain their release. This
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1 six-year interval is far longer than any equivalent classification review at other supermax or high-

2 security systems in other states, the federal system, or other nations, and is far longer than the

3 120-day period that the Ninth Circuit deemed constitutionally permissible for prisoners housed in

4 solitary confinement in Toussaint v. McCarthy, 926 F.2d 800 (9th Cir. 1990).
5

6

100. Yet even this six-year inactive review is meaningless for most prisoners housed in

7 the SHU.

8

101. In some cases, like that of plaintiffs Ashker and Troxell, defendants have made a

9 predetermined decision to deny inactive status and thus retain the prisoner in the SHU until he

10 either debriefs or dies. For example, in 2004, Pelican Bay Warden Joe McGrath wrote in
11 response to one of Ashker’s grievances that Ashker had been identified as an active member of
12 the Aryan Brotherhood and that “such an inmate must formally renounce his membership in this
13 14 group and divulge all of their secrets to the authorities. The alternative is remaining where
15 extremely dangerous inmates belong: the SHU.”

16

102. For many, the six-year review results in SHU retention even though the prison can

17 produce no evidence (or even allegations) of gang activity. The review is supposed to determine
18 whether the prisoner is “active” with the prison gang or has assumed “inactive” status. Under 19
California regulations, “when the inmate has not been identified as being involved in gang 20
activity for a minimum of six (6) years,” he can achieve “inactive status” and may be released 21
22 from the SHU. CAL. CODE REGS. tit. 15, § 3378(e).

23

103. Logically, one who achieves “inactive” status is still a gang member or associate,

24 but not an “active” one, in that he does not engage in any gang activities. Yet CDCR routinely

25 and regularly denies inactive status to prisoners even where there is no evidence whatsoever of

26 any gang activity. This longstanding pattern and practice is not the result of failings by individual

27 gang investigators, but is instead CDCR policy which, upon information and belief, has been
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1 approved and implemented by defendants. Plaintiffs’ experiences demonstrate this pattern.

2

104. Ruiz, for example, was denied inactive gang status in 2007 based on: (a) two 2006

3 searches of unnamed prisoners’ cells that uncovered Ruiz’s name on a laundry list of purported
4 EME members and associates in “good standing”; and (b) possession of photocopied drawings in
5
6 his cell. Ruiz openly possessed this artwork, drawn by other prisoners, for at least eight years

7 without any complaint or objection from prison officials. Three days before his 2007 inactive

8 review, CDCR asserted that the drawings contained symbols associated with the EME. Neither

9 of these source items provides any evidence of active gang involvement.

10

105. Reyes too has been repeatedly denied inactive status based on association, without

11 evidence of any gang activity. At his first inactive review, for example, Reyes was denied
12 inactive status based on one source item: exercising with other validated prisoners in a group yard
13

14 while in administrative segregation. At his last inactive review, in 2008, Reyes was denied

15 inactive status based only on drawings found in his cell, including a drawing for a tattoo of his

16 name with alleged Mactlactlomei symbols and a drawing of a woman, man and Aztec warrior,

17 with a geometric pattern known as the G-shield. The G-shield also appears in a tattoo on Reyes’
18 left pectoral and was rejected as a gang-related source item in 1996, 2003 and 2005. 19
106. Franklin has had similar experiences. In 2006, he was denied inactive status 20
because he was listed as a board member of George Jackson University, claimed by CDCR to be 21 22 a gang front, and because his name appeared on gang rosters confiscated from other prisoners.
23 Shortly thereafter he was seen “communicat[ing] by talking” with a validated member of a

24 different gang. CDCR officials instructed that this should be considered during Franklin’s next

25 inactive review.

26

107. Johnson’s inactive reviews have also largely focused on association and shared

27 ideology. In 1997, for example, he was denied inactive status based on a Black Power tattoo,
28

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1 possession of a book about George Jackson (Paul Liberatore’s The Road to Hell: the True Story

2 of George Jackson, Stephen Bingham, and the San Quentin Massacre), and a photograph collage
3 of him and George Jackson. Staff confidential informants also alleged, without any supporting 4
facts attached, that Johnson was a high-ranking member of the BGF and that he communicated 5 6 with BGF members through third parties. Johnson was denied inactive status in 2006 based on
7 old source items and possession of a copy of “N-GOMA Pelican Bay Support Project, Black

8 August 2005,” a newsletter which includes dedications to alleged BGF members who have died.

9 None of these source items provide any evidence of Johnson’s active involvement in a prison
10 gang in the prior six years. 11
108. Redd was denied inactive status in 2011 based purely on association and not on 12
any gang-related actions. His SHU retention was based on possession of drawings, collages, and 13 14 booklets related to George Jackson and the Black Panthers, as well as a card from a former Black
15 Panther Party member and his appearance on a roster of purported gang affiliates found amid the

16 property of another prisoner. In addition, according to confidential informants, Redd is a

17 “captain” of BGF who has communicated with other BGF members. None of these source items
18 provide any evidence of Redd’s actions on behalf of a prison gang in the prior six years. 19
109. Dewberry was recently denied inactive status in November 2011 based on his 20
name appearing on a coded roster in another prisoner’s possession, as well as such materials as 21 22 his political and historical writings, his possession of a pamphlet in Swahili, which defendants’
23 inactive review materials state is “a banned language at PBSP,” confidential memoranda stating

24 that he is an “enforcer,” and his participation in George Jackson University, which according to

25 defendants’ inactive review materials “is not a university at all,” but rather a “concept,” “to teach

26 the philosophies and ideologies of all ‘Political Prisoners’” and “to enlist individuals who are not

27 in prison to help spread the ideologies of the BGF (Black Guerilla Family).” None of the
28

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1 materials used to deny Dewberry inactive status and consign him to the SHU for at least six more

2 years contained any evidence whatsoever that Dewberry was involved in any violent or gang-
3 related activity. 4
110. The most recent review of Franco’s validation was in 2008, when he was found 5 6 inactive in the Northern Structure but was revalidated as an active Nuestra Familia member. His
7 SHU retention was based on several confidential memoranda from informants regarding his status

8 within the Nuestra Familia along with inclusion of his name on several gang rosters found in the

9 cells of other validated gang members. None of the source items relied on to consign Franco to
10 another six years in the SHU alleged any actual gang activity or criminal conduct. 11
111. At the same time that they were repeatedly denied inactive status, many plaintiffs 12
have demonstrated their ability to follow prison rules by avoiding any significant prison 13 14 misconduct. Ruiz, for example, has been disciplined only once for violating a prison rule in over
15 25 years. Indeed, his only rule violations in the past 30 years have been for missing count in

16 1981, possession of wine in 1983, possession of unlabeled stimulants and sedatives in 1986, and a

17 2007 rule violation entitled “Mail Violation With No Security Threat.” Despite this innocuous
18 prison record, he has spent over 25 years in harsh isolation, without access to normal human 19
contact. 20
112. Similarly, Reyes’ only disciplinary offenses in the last 12 years involved the recent 21 22 hunger strike and unauthorized donation of artwork to a non-profit organization. Johnson has had
23 only one rule violation in close to 15 years in the Pelican Bay SHU: in 2000, he was disciplined

24 for a mail violation.

25

113. With the exception of violations in 2011 related to his involvement in the hunger

26 strikes and his possession of a Black History scrapbook including information on the BGF’s

27 history, Dewberry has not been charged with violating any prison rule since 1995.
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1

114. Redd’s disciplinary offenses since 2000 consist mainly of simply speaking with

2 other prisoners in passing, along with one mail violation.

3

115. When, in the rarest of cases, a long-term prisoner does achieve inactive status,

4 even this is no guarantee of escape from solitary confinement. In 2007, after more than six years
5

6 in the SHU with only minor disciplinary write-ups, including, for example, refusing handcuffs,

7 refusing to leave the yard, and yelling, Esquivel was determined to be an inactive EME associate.

8 Nevertheless, he was retained in the SHU for a 12-month observation period. In 2008, after one

9 year of SHU observation, Esquivel was revalidated as an active gang associate based on one
10 source item: a report that officers found three items of artwork with Aztec symbols in his cell. 11
116. CDCR informs prisoners that they can gain release from the SHU as an “inactive” 12
gang member if CDCR has no evidence that they have been involved in “gang activity” for at 13 14 least six years, but in practice it denies prisoners inactive status even where there is no evidence
15 of any “gang activity” as that word is understood by the ordinary person. This denies meaningful

16 review.

17

117. At the same time, plaintiffs and class members are not given information about an

18 actual path out of the SHU, besides debriefing.
19 118. The disconnect between CDCR’s stated policy and actual practice has been
20 compounded by the settlement in the case of Castillo v. Almeida, C-94-2847 (N.D. Cal. 1994),
21
22 agreed to on September 23, 2004. In that settlement, CDCR officials agreed that “laundry lists” –

23 that is, lists by confidential sources, including debriefers, of alleged associates or members

24 without reference to gang-related acts performed by the prisoner – would not be used as a source

25 item to either validate a prisoner as a gang affiliate or deny him inactive status. CDCR officials

26 also agreed that “the confidential source must identify specific gang activity or conduct

27 performed by the alleged associate or member before such information can be considered as a
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1 source item.” Id. at ¶ 21.

2

119. The Castillo settlement was memorialized in a public document filed with the

3 court and widely publicized to the prisoners at Pelican Bay prison. Despite the Castillo
4 settlement, defendants continue to rely on “laundry lists” and on informants who identify no
5
6 specific gang activity or conduct by the prisoner to retain plaintiffs and class members at the

7 Pelican Bay SHU at the six-year inactive review. Such review violates due process a) by denying

8 Plaintiffs and class members’ fair notice of the evidence that can be used against them to deny

9 inactive status, and b) by providing confusing and misleading notification of what they need to do
10 to get out of the SHU. 11
120. Thus, CDCR’s practice of denying prisoners release despite their record of 12
inactivity operates as a cruel hoax. This bait-and-switch furthers the hopelessness and despair 13 14 that plaintiffs and other prisoners experience in the SHU and leads them to reasonably believe
15 that there is no way out of the SHU except to debrief or die.

16

121. Defendants’ policy of retaining prisoners in the SHU who are not active gang

17 affiliates, or against whom no reliable evidence exists that they present any threat of gang-related
18 violence or misconduct, is unmoored from any legitimate penological purpose or security need. 19
122. These are not isolated aberrations limited to plaintiffs. Rather, defendants engage 20
in an unwritten but consistent pattern and practice of equating gang association or shared 21 22 ideology with “current gang activity.” All prisoners in the Pelican Bay SHU are subject to this
23 practice.

24 C. Psychological Harms

25

123. In addition to being deprived of the minimal civilized measure of life’s necessities

26 as described above, plaintiffs and class members are also experiencing unrelenting and crushing

27 mental anguish, pain, and suffering as a result of the many years they have spent without normal
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1 human interaction, in stark and restrictive conditions, without any hope of release or relief.

2 Prisoners describe this confinement as “a living nightmare that does not end and will not end.”

3

124. The devastating psychological and physical effects of prolonged solitary

4 confinement are well documented by social scientists: prolonged solitary confinement causes
5

6 prisoners significant mental harm and places them at grave risk of even more devastating future

7 psychological harm.

8

125. Researchers have demonstrated that prolonged solitary confinement causes a

9 persistent and heightened state of anxiety and nervousness, headaches, insomnia, lethargy or
10 chronic fatigue (including lack of energy and lack of initiative to accomplish tasks), nightmares, 11
heart palpitations, and fear of impending nervous breakdowns. Other documented effects include 12
obsessive ruminations, confused thought processes, an oversensitivity to stimuli, irrational anger, 13 14 social withdrawal, hallucinations, violent fantasies, emotional flatness, mood swings, chronic
15 depression, feelings of overall deterioration, as well as suicidal ideation. Individuals in prolonged

16 solitary confinement frequently fear that they will lose control of their anger, and thereby be

17 punished further.

18

126. Plaintiffs suffer from and exhibit these symptoms.

19 127. While these symptoms are reported by people who have suffered from being
20 placed in solitary confinement for days, months or a few years, they become more pronounced
21

22 and cause greater pain and suffering when, as with plaintiffs and the class, one is incarcerated in

23 these conditions for many years without any meaningful hope of release. As plaintiff Gabriel

24 Reyes wrote in 2011:

25

You don’t really know what makes [the SHU psychological torture] unless you

26

live it and have lived it for 10, 15, 20 plus years 24/7. Only the long term SHU prisoner knows the effect of being alone between four cold walls with no one to

27

confide in and only a pillow for comfort. How much more can any of us take? Only tomorrow knows. Today I hold it all in hoping I don’t explode.

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1

128. As a result of their prolonged SHU placement, most plaintiffs suffer from extreme

2 and chronic insomnia. For Johnson, “I am so busy suppressing feelings and isolating myself all

3 day, and so much anger builds up in me from the conditions, that I can’t sleep at night because the
4 sound of a door opening or closing wakes me and I get anxious about someone coming in on me
5
6 and I can’t fall back to sleep.”

7

129. Similarly, Ashker only gets approximately one to three hours of sleep a night both

8 because his mattress is too short for him, causing him to sleep on bare concrete from his knees

9 down, and because noise from the doors constantly slamming open and shut in the SHU at night

10 wakes him and causes anger and anxiety. The startling loud noises cause flashbacks of the

11 incident in which he was set up and shot unlawfully by a guard which began with the opening and
12 slamming of his cell door.
13

14

130. Many of the plaintiffs also suffer from severe concentration and memory

15 problems. For example, reading newspapers and books used to be a large part of Ruiz’s daily

16 routine, but the severe concentration and memory problems that he developed in the SHU now

17 prohibit him from reading more than a few sentences at a time, and he forgets the paragraph he

18 just read. Therefore he has essentially given up reading. Similarly, Franklin and Franco have

19 trouble concentrating, and their attention span and memory are deteriorating because of the
20 effects of long-term isolation in the SHU.
21

22

131. Plaintiffs experience life in the SHU as a struggle to avoid becoming mentally ill.

23 They have done so thus far by developing responses that deaden feelings and emotions, suppress

24 anger, and develop a psychological and physical state which removes much of what makes

25 normal human beings human – namely, feelings, emotions, daily physical contact, regular social

26 communication, and being able to see another person or living thing.

27 132. Plaintiffs experience growing and persistent rage at the conditions under which
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1 they are incarcerated in the SHU. They attempt to suppress that rage in order to avoid self-

2 destruction, irresponsible acts of violence, or a mental breakdown. Plaintiffs’ attempts at

3 suppression, in combination with their isolation, have led them to increasingly withdraw into

4 themselves and become emotionally numb to the point of feeling “non-human.”
5

6

133. Troxell, for example, does not initiate conversations, is not motivated to do

7 anything, and feels as if in a stupor much of the time. He often becomes “blank” or out of touch

8 with his feelings.

9

134. Ashker experiences great feelings of anger, which he tries to control and suppress,

10 but this just deadens his feelings. He feels that he is “silently screaming” 24 hours a day.

11 135. Reyes copes with his years of SHU confinement by suppressing his anger, but to
12 do so he has had to suppress all feelings to the point where he no longer knows what he is feeling.
13

14

136. Esquivel experiences a near-total loss of the capacity to feel. He states that he

15 does not feel anything and this makes him “feel dead.” He reports that days go by without him

16 feeling anything, “as if I am walking dead.” He watches some television but has no emotional

17 reaction to the dramas he watches.

18

137. So too, when Redd suppresses his anger, he starts to not feel anything at all and

19 becomes numb. He often “feels like a caged animal.”
20 138. This mounting anger, and attempts to suppress it, is a recurring and predicable
21

22 human reaction to the extreme situation that is isolated confinement. It is not a propensity unique

23 to plaintiffs.

24

139. Plaintiffs also experience a range of other psychological symptoms stemming

25 from their confinement in the SHU, including hallucinations, anxiety disorder, hypersensitivity,

26 severe mood swings, violent nightmares and fantasies, and panic attacks. At least one plaintiff

27 hears voices when no one is talking to him. Redd experiences frequent nightmares about
28

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1 violence, something that he never experienced before being in the SHU.

2

140. The harm to plaintiffs is compounded by their prolonged and indefinite lack of

3 contact with their families and others. For example, Ashker speaks of never having any face-to-
4 face communication with others; he just hears disembodied voices. Other plaintiffs describe the
5
6 pain of not being able to hug, share photos with, have phone calls with, or in some cases even see,

7 family members for what they expect will be the rest of their lives.

8

141. Plaintiffs are convinced that they will be kept in the SHU for the rest of their

9 sentences, or the rest of their lives. This causes them acute despair.

10

142. These psychological symptoms are precisely those reported in the literature about

11 individuals placed in prolonged solitary confinement. But the extreme duration of plaintiffs’ and
12 class members’ confinement has meant that the isolative and emotionally numbing effects of
13

14 solitary confinement have become even more pronounced. Plaintiffs’ symptoms are almost

15 identical to those described in psychological literature about the long-term effects of severe

16 trauma and torture.

17

143. Upon information and belief, numerous prisoners confined in the SHU for long

18 periods of time have developed mental illness, and some have committed or attempted suicide

19 while in the SHU. All prisoners confined in the SHU for prolonged periods have a significant
20 risk of descending into mental illness due to prolonged exposure to the conditions in the SHU.
21

22

144. Most plaintiffs recently participated in two hunger strikes (described below),

23 which provide additional evidence of the severe psychological distress, desperation, and

24 hopelessness that they experience from languishing in the SHU for decades. Almost every

25 plaintiff participant reported viewing the possibility of death by starvation as a worthwhile risk in

26 light of their current situation.

27 145. Numerous plaintiffs also have serious physical ailments and illnesses caused or
28

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1 exacerbated by their prolonged incarceration under the harsh conditions in the SHU, including

2 eye and vision problems, headaches, diabetes, hypertension, and chronic back problems. These

3 health concerns add to their psychological distress, as they fear that as they age and their health
4 problems worsen, they will be left to die in the SHU without adequate medical care because they
5
6 have refused to debrief.

7 D.

International Standards Regarding Torture and Cruel, Inhuman or Degrading Treatment

8
146. In light of the well-documented harms described above, there is an international 9

10 consensus that the type of prolonged solitary confinement practiced in California at Pelican Bay

11 violates international human rights norms and civilized standards of humanity and human dignity.

12 International human rights organizations and bodies, including the United Nations, have

13 condemned indefinite or prolonged solitary confinement as a human rights abuse that can amount
14 to torture. 15
147. As just one example, in August 2011, the United Nations Special Rapporteur of 16
the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment or 17 18 Punishment concluded that the use of solitary confinement is acceptable in only exceptional
19 circumstances, and that its duration must be as short as possible and for a definite term that is

20 properly announced and communicated.

21

148. Plaintiffs’ and class members’ prolonged detention meets none of these criteria.

22

149. The Special Rapporteur concluded that prolonged solitary confinement is

23 prohibited by the International Covenant on Civil and Political Rights (ICCPR) and the
24

Convention Against Torture (CAT), and that prolonged solitary confinement constitutes torture or 25

26 cruel, inhuman or degrading treatment or punishment. The Special Rapporteur has concluded that

27 even 15 days in solitary confinement constitutes a human rights violation.

28

150. Plaintiffs and class members have been held in solitary confinement for at least

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1 250 times this duration.

2

151. The Special Rapporteur’s view comports with standards laid out by the Istanbul

3 Statement on the Use and Effects of Solitary Confinement, the ICCPR Human Rights Committee,

4 and the United Nations Office of the High Commissioner for Human Rights.
5

6

152. The Convention Against Torture (CAT), ratified by the United States in 1994,

7 provides the following definition of torture:

8

For the purposes of this Convention, torture means any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a person for such

9

purposes as obtaining from him or a third person information or a confession, punishing

10

him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination

11

of any kind, when such pain or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting in an official capacity.

12

CAT, art. 1, para. 1. By being forced to either debrief or endure the crushing and inhumane 13

14 policies and conditions at the Pelican Bay SHU described above, plaintiffs and class members are

15 being subjected to treatment consistent with CAT’s definition of torture.

16 E. Pelican Bay Hunger Strikes

17

153. Coinciding with this international consensus against solitary confinement,

18 prisoners at Pelican Bay have repeatedly organized hunger strikes to draw public attention to the
19 conditions described above.
20 154. A hunger strike occurred at Pelican Bay in 2002 and lasted approximately one
21
22 week. The prisoners called off the strike after a California State Senator promised to look into the

23 strikers’ complaints, primarily centered on the debriefing policy. No reforms, however, were

24 implemented.

25

155. In light of ongoing concerns, a 2007 report commissioned by CDCR examined

26 national standards about the handling of security threat group members and recommended a step-

27 down program through which prisoners in the SHU could be released to the general population
28

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1 without having to debrief. See CDCR, SECURITY THREAT GROUP IDENTIFICATION AND

2 MANAGEMENT (2007). Instead, they would spend a minimum of four years in a program in which

3 their “acceptable custodial adjustment” resulted in stages of increased social contact and

4 privileges. Id. at 6. CDCR also failed to implement these recommendations.
5

6

156. On February 5, 2010, plaintiffs Ashker and Troxell sent a formal Human Rights

7 Complaint to then-Governor Arnold Schwarzenegger and Defendant Cate, titled “Complaint on

8 Human Rights Violations and Request for Action to End 20+ Years of State Sanctioned Torture

9 to Extract Information From (or Cause Mental Illness to) California Pelican Bay State Prison

10 Security Housing Unit (SHU) Inmates.” The complaint outlined the history of Pelican Bay State
11 Prison and set forth the prisoners’ factual and legal claims for relief.
12 157. In May 2011, the complaint was again sent to the Governor and Secretary. This
13 14 time, it was accompanied by a “Final Notice” that an indefinite hunger strike would begin on July
15 1, 2011, and it provided five broad demands that CDCR: (1) end group punishment; (2) abandon

16 the debriefing program and modify the active/inactive gang status criteria; (3) end long-term

17 solitary confinement and alleviate conditions in segregation, including providing regular and
18 meaningful social contact, adequate healthcare and access to sunlight; (4) provide adequate food; 19
and (5) expand programming and privileges. 20
158. In June 2011, the complaint and final notice were sent again to the Governor, the 21
22 Secretary, and the Warden.

23

159. On July 1, 2011, the hunger strike began. At its peak, over 6,600 prisoners at 13

24 California prisons participated. Ashker, Dewberry, Franco, Redd and Troxell were among the 11

25 principal representatives and negotiators for the prisoners at Pelican Bay State Prison. Most of

26 the other plaintiffs also participated, as did prisoners from every major ethnic, racial, and

27 geographic group. The hunger strike garnered national and international media attention and
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1 support.

2

160. CDCR staff met with prisoner representatives, and on July 20, 2011, the hunger

3 strike was temporarily suspended after CDCR officials agreed to provide a few basic amenities

4 and to revise the regulations by which a prisoner is assigned to and kept in the SHU.
5

6

161. On August 23, 2011, an informational hearing on California’s SHUs was held by

7 the California State Assembly Public Safety Committee. Hundreds of family members and

8 supporters attended, and many testified about the conditions their loved ones endure in the SHU

9 and in Administrative Segregation Units. See http://solitarywatch.com/2011/08/24/historic-
10 california-assembly-hearing-on-solitary-confinement. 11
162. On September 26, 2011, the hunger strike resumed because prisoners lost faith that 12
CDCR would implement a revision of the regulations as it had promised. This time nearly 12,000 13 14 prisoners participated. The hunger strike ended on October 12, 2011, after CDCR assured the
15 prisoner representatives that it was working on the new regulations and would continue

16 conversations about other improvements sought by the prisoners.

17

163. On March 9, 2012, CDCR publicly issued a “concept paper” describing its

18 proposed changes to gang validation regulations. That document has been condemned by
19 prisoners and prisoner-rights advocates as making virtually no meaningful changes and, instead,
20 expanding the net of who may be incarcerated in the SHU. No new regulations have been
21
22 implemented to date.

23

164. Since the hunger strike, CDCR has issued disciplinary rule violations against

24 participants in that peaceful protest, and particularly serious rule violations against those it

25 alleged were its leaders. Ashker, Dewberry, Franco, Redd, and Troxell received disciplinary

26 write-ups on this ground.

27
F. 28

Class Allegations

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1

165. Plaintiffs bring this action on their own behalf and, pursuant to Rules 23(a),

2 23(b)(1), and 23(b)(2) of the Federal Rules of Civil Procedure, on behalf of all prisoners serving

3 indeterminate SHU sentences at the Pelican Bay SHU on the basis of gang validation, none of
4 whom have been or will be afforded meaningful review of their confinement, in violation of the
5
6 Due Process Clause of the Fourteenth Amendment.

7

166. Plaintiffs also bring this action on behalf of a subclass of Pelican Bay prisoners

8 who are now, or will be in the future, imprisoned by defendants at the Pelican Bay SHU under the

9 conditions and pursuant to the policies described herein for longer than 10 continuous years.
10 Such imprisonment constitutes cruel and unusual punishment within the meaning of the Eighth 11
Amendment. 12
167. The class is so numerous that joinder of all members is impracticable. Fed. R. Civ. 13 14 P. 23(a)(1). As of April 1, 2012, there were more than 1,000 prisoners imprisoned at the Pelican
15 Bay SHU. Upon information and belief, all of these prisoners have been denied meaningful

16 notice and review, and thus fit the class definition. Of those prisoners, over 500, or

17 approximately half, have been imprisoned for over 10 years in the Pelican Bay SHU, where they

18 have been subjected to cruel and unusual punishment. These 500 comprise the Eighth
19 Amendment subclass.
20 168. The class members are identifiable using records maintained in the ordinary course
21
22 of business by CDCR.

23

169. All members of the Eighth Amendment subclass are suffering the deprivation of at

24 least one basic human need due to their prolonged confinement in the SHU, including mental and

25 physical health, physical exercise, sleep, nutrition, normal human contact, meaningful activity,

26 and environmental stimulation. In addition, all class members are suffering significant mental

27 and physical harm. While the exact nature of those harms may differ in some respects for each
28

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1 prisoner, the source of the harm complained of here is the same – namely, defendants’ policies

2 and practices in placing the class of prisoners for a lengthy period of time in conditions of
3 confinement shown to cause serious mental and physical harm. 4
170. In addition, all prisoners placed in the conditions at the Pelican Bay SHU face a 5 6 common risk of suffering even more serious mental harm caused by their retention in the SHU for
7 such a lengthy period of time.

8

171. There are questions of law and fact common to the members of the class. Those

9 questions include, but are not limited to:

10

a) Whether prolonged confinement in the SHU for over 10 years under the

11 conditions and policies maintained by the defendants objectively constitutes
12 cruel and unusual punishment prohibited by the Eighth Amendment.
13

14

b) Whether defendants have been deliberately indifferent to the mental and

15

physical suffering incurred by the plaintiff class.

16

c) Whether incarceration under the conditions and policies imposed by

17

defendants results in constitutionally cognizable harm, or presents a

18

constitutionally unacceptable risk of harm.

19 d) Whether a legitimate penological reason exists for defendants to incarcerate
20 prisoners for decades in the conditions described herein simply because they
21

22

are members or associates of a gang, without demonstrating that they are

23

currently engaged or have been recently engaged in some illegal or wrongful

24

gang-related misconduct.

25

e) Whether the conditions at the Pelican Bay SHU and the policies imposed by

26

defendants on all prisoners housed in the SHU constitute an atypical and

27 significant hardship compared to the ordinary incidents of prison life.
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1

f) Whether SHU confinement extends the duration of incarceration because of a

2

de facto policy of denying parole to SHU prisoners.

3

g) Whether defendants deny prisoners incarcerated in the SHU meaningful,

4 periodic review of their confinement as required by the Due Process Clause of
5

6

the Fourteenth Amendment by: (1) failing to provide them with notice of what

7

they can do to get released from the SHU apart from risking their lives and

8

safety and that of their families by debriefing; (2) providing misleading notice

9

that they can become eligible to be released from the SHU by becoming an

10

“inactive” gang member or associate and refraining from any gang activity,

11 when in fact prisoners who are not involved in any current gang activity are
12 still routinely retained in the SHU; and 3) making a predetermination that
13

14

many prisoners will stay in the SHU until they either die or debrief, thus

15

rendering the periodic reviews meaningless.

16

h) Whether defendants fail to provide timely meaningful review of prisoners’

17

imprisonment in the SHU by engaging in 180-day reviews that do not

18

substantively review whether the prisoners should be retained in the SHU and

19 therefore are meaningless, and only affording the so-called “inactive” review
20 every six years.
21

22

172. Defendants are expected to raise common defenses to these claims, including

23 denying that their policies and practices violate the Constitution.

24

173. The claims of the plaintiffs are typical of those of the plaintiff class, as their claims

25 arise from the same policies, practices, courses of conduct, and conditions of confinement, and

26 their claims are based on the same legal theories as the class’ claims. The cause of the named

27 plaintiffs’ injuries is the same as the cause of the injuries suffered by the rest of the class, namely
28

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1 defendants’ policies and practices.

2

174. Plaintiffs are capable of fairly and adequately protecting the interests of the

3 plaintiff class because plaintiffs do not have any interests antagonistic to the class. Plaintiffs, as
4 well as class members, seek to enjoin the unlawful acts, policies, and practices of the defendants.
5
6 Indeed, some of the named plaintiffs have already served as de facto representatives of the class

7 by presenting the demands of thousands of Pelican Bay and other California hunger strikers to

8 defendants during the two hunger strikes in the summer and fall of 2011. Finally, plaintiffs are

9 represented by counsel experienced in civil rights litigation, prisoners’ rights litigation, and
10 complex class litigation. 11
175. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) 12
because the number of class members is numerous and prosecution of separate actions by 13 14 individuals create a risk of inconsistent and varying adjudications, which in turn would establish
15 incompatible standards of conduct for defendants. Moreover, the prosecution of separate actions

16 by individual members is costly, inefficient, and could result in decisions with respect to

17 individual members of the class that, as a practical matter, would substantially impair the ability
18 of other members to protect their interests. 19
176. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 20
23(b)(2) because defendants’ policies and practices that form the basis of this Complaint are 21 22 generally applicable to all the class members, thereby making class-wide declaratory and
23 injunctive relief appropriate. Common questions of law and fact clearly predominate within the

24 meaning of Rule 23(b)(2) as set forth above. Class treatment provides a fair and efficient method

25 for the adjudication of the controversy herein described, affecting a large number of persons,

26 joinder of whom is impractical.

27
G. Supplemental Allegations 28

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1

177. In October 2012, Defendants established a pilot “Step Down Program” to replace

2 the inactive reviews described in paragraphs 99-110 herein. Two sets of proposed amendments to

3 the program were published in 2014. After more alterations, a revised version of the program
4 was made permanent on October 17, 2014, when Defendants published final regulations
5
6 amending Title 15.

7

178. The new regulations are available at

8 http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/NCDR/2014NCR/14-

9 02/Final_Text_of_Adopted_Regulations_STG.pdf, and are incorporated by reference herein.

10

179. The new regulations alter the process and criteria for validating California

11 prisoners as “Security Threat Group” affiliates, and placing such individuals in the Pelican Bay
12 SHU. Id. They also codify a five step program through which a validated prisoner may
13
14 eventually earn release from solitary confinement. See CAL. CODE REGS. tit. 15, § 3000 (2014)

15 (defining “Step Down Program”).

16

180. The Step Down Program continues California’s attachment to prolonged solitary

17 confinement. Indeed, Steps One through Four all require SHU confinement. Id. (defining “Step

18 Down Program, Step 1 and 2” and “Step Down Program, Step 3 and 4.”

19 181. Each step is designed to be completed in 12 months, although it may be possible to
20 complete Steps One and Two in six months each. Id at § 3378.3(b)(1) – (b)(3).
21

22

182. Upon successfully completing each step, the prisoner proceeds to Step Five, which

23 involves a minimum of 12-months observation in a general population unit. Id. at § 3378.3(b)(5).

24 The “general population” units used for Step Five prisoners are also highly restrictive.

25

183. Class members placed in Steps One and Two receive few privileges differentiating

26 their situation from that which existed prior to implementation of the new program. They remain

27 at Pelican Bay SHU, under all the punishing conditions described above, with no normal social
28

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1 interaction, no access to contact visitation, and no regular telephone communication. Id. at §

2 3044(i)(2)(A)-(D).

3

184. However, prisoners do become eligible for one telephone call after six months in

4 Step One if they have met “program expectations” and stayed discipline free. Prisoners receive
5

6 one additional telephone call if they progress to Step Two. Id.

7

185. As has been the case for Pelican Bay SHU prisoners since the 2011 hunger strike,

8 Prisoners in Step One and Two receive one photograph of themselves to send to their families

9 after one year free of serious disciplinary behavior. Id.

10

186. Step Three involves only incremental differences in conditions. Rather than one

11 telephone call a year (as is allowed in Steps One and Two), a prisoner in Step Three may receive
12 two telephone calls over the year, six months apart. Id. Rather than one inmate package (as is
13

14 available at Steps One and Two), a prisoner in Step Three may receive two inmate packages. Id.

15 Rather than one photograph (as is available at Steps One and Two), a prisoner at Step Three may

16 receive two photographs, six months apart. Id.

17

187. Like prisoners in Pelican Bay SHU, prisoners in Step Three SHUs are isolated in

18 their cells an average of 22 to 23 hours a day, without any access to recreation or programming
19 outside a cage, or congregate meals.
20 188. Step Four, as well, involves only incremental differences in conditions. Rather
21
22 than two telephone calls a year, dependent on program progress, prisoners at Step Four may

23 receive four fifteen minute calls a year – one every 90 days. Id.

24

189. Like prisoners in the Pelican Bay SHU, prisoners in Step Four SHUs are isolated

25 in their cells for an average of 22 to 23 hours a day. Id. For the first six months at Step Four, they

26 have no access to congregate recreation or meals. Id. After six months of programming, Step Four

27 prisoners may be allowed yard access that “include[s] interaction with inmates of diverse
28

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1 affiliations.” Id. Neither the regulations nor CDCR practices guarantees prisoners in Step Four

2 any minimum amount of time out of their cell, or in group activities.

3

190. According to CDCR regulations, progression from step to step requires

4 “participation in program activities” including “completion of all required components /
5

6 curriculum.” Id. at § 3378.3(a)(1)-(5), 3378.3 (b)(1)-(3).

7

191. The various programs, components and curriculums required for successful

8 completion of the Step Down Program are not enumerated in the regulations nor listed in any

9 public CDCR policy statements, and many do not yet exist.

10

192. Prisoners who are found guilty of an STG related Rules Violation Report,

11 (including such disciplinary offenses as possessing photographs or contact information of other
12 STG affiliates), fail to successfully participate in and complete the as-of-yet un-enumerated Step
13

14 Down Program requirements, or who “fail to maintain acceptable behavior” may be returned to a

15 previous step. Id.

16

193. Starting in 2012, defendants began convening Departmental Review Board

17 (DRB) hearings to individually review every gang-validated prisoner housed in the Pelican Bay
18 SHU and determine where to place them in the Step Down Program. 19
194. Thus far, approximately one third of gang-validated Pelican Bay SHU prisoners 20
have received a DRB hearing. Around 850 to 900 Pelican Bay SHU prisoners have yet to receive 21 22 a hearing. Of the 281 DRB hearings convened for Pelican Bay prisoners between 2012 and
23 October 2014, (a) 219 prisoners were placed in Step Five of CDCR’s Step Down Program; (b) 13

24 prisoners were placed in Step Four; (c) 11 prisoners were placed in Step Three; (d) 19 prisoners

25 were placed in Step Two; and (e) 18 prisoners were placed in Step One.

26

195. Every plaintiff, with the exception of Luis Esquivel, received DRBs between

27 March 2014 and October 2014.
28

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1

196. As a result of their DRBs, plaintiffs Franco and Ashker have been retained in the

2 Pelican Bay SHU in Steps One and Two, respectively. There they continue to languish in extreme

3 isolation, with no hope of earning release into a general population unit in fewer than three or

4 four years, respectively.
5

6

197. Three plaintiffs – Dewberry, Ruiz, and Troxell – have been placed in Step Three

7 and transferred to the SHU at the California Correctional Institute at Tehachapi (“Tehachapi”).

8

198. One plaintiff, Franklin, was placed in Step Four and also transferred to the

9 Tehachapi SHU.

10

199. Three plaintiffs – Johnson, Redd, and Reyes – were placed in Step Five. Johnson

11 and Reyes have been moved to CSP Sacramento, and Redd has been transferred to SATF-CSP
12 Corcoran.
13

14

200. Among other methods of prioritization, defendants are currently prioritizing DRBs

15 for prisoners held in Pelican Bay SHU continuously for over ten years.

16

201. Given this prioritization, and the DRB results set forth in paragraph 194, upon

17 information and belief, it is likely that there are 20 to 25 former Pelican Bay SHU prisoners who

18 had been incarcerated for ten or more years at the Pelican Bay SHU who have, like Dewberry,

19 Ruiz, Troxell and Franklin, been transferred to Step Three or Four at a CDCR SHU. Many more
20 will be so transferred in the coming months.
21

22

202. At Step Three and Step Four, plaintiffs and the supplemental class of prisoners

23 they seek to represent (“Supplemental Class”) face isolation that is substantially similar to what

24 they endured at the Pelican Bay SHU for a decade or more.

25

203. There are a few differences between Pelican Bay SHU and Tehachapi SHU. For

26 example, Tehachapi SHU cells have windows and a solid steel door, as compared to no windows

27 but a perforated metal mesh door at the Pelican Bay SHU. But there is no change in the crushing
28

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1 continuation of prolonged isolation. Indeed, prisoners at Tehachapi SHU have considerably less

2 access to family visits than at Pelican Bay. Prisoners in Step Three and Four continue to languish

3 alone in their cell, with virtually no normal human contact, and extremely limited opportunity for

4 social interaction.
5

6

204. The limited out-of-cell programming and social interaction these plaintiffs and

7 class members receive on Steps Three and Four is wholly inadequate to repair the extreme

8 injuries caused by their prolonged solitary confinement at the Pelican Bay SHU.

9

205. As at Pelican Bay SHU, Troxell, Dewberry and Ruiz and other similarly situated

10 Step Three prisoners are confined to their cells for an average of 22 to 23 hours a day, without

11 any normal human interaction. Unlike at Pelican Bay, most days of the week Step Three prisoners
12 are confined to their cell for the entire 24 hours.
13

14

206. As at Pelican Bay SHU, Troxell, Dewberry and Ruiz and other Step Three

15 prisoners are prohibited from any physical contact with their families or friends and regular

16 telephone access.

17

207. As at Pelican Bay, they are denied all congregate recreation and meals. While

18 Troxell, Dewberry, and Ruiz are currently receiving one to two hours a week of a 13 week group

19 therapy program in adjoining cages, this limited interaction in not enough to dispel the injuries
20 they have suffered and continue to suffer from their prolonged solitary confinement.
21

22

208. Plaintiffs and other Step Three prisoners have not received programming adequate

23 to aid in their eventual transition to general population.

24

209. The same harsh solitary confinement they endured at Pelican Bay SHU continues

25 in a different prison.

26

210. Plaintiff Franklin is at Step Four at Tehachapi SHU, where he continues to be held

27 in solitary confinement for an average of 22 to 23 hours a day.
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1

211. In the second half of Step Four Franklin and some other Step Four prisoners have

2 some, albeit limited, access to congregate programming and recreation. According to CDCR
3 regulations, Step Four prisoners may have some access to congregate meals in the future. 4
However, this interaction is so minimal as to fail to overcome the crushing isolation Franklin and 5 6 other Step Four prisoners experienced at Pelican Bay SHU for over a decade, and continue to
7 experience in a Step Four SHU.

8

212. Franklin and other Step Four prisoners have received only very limited transitional

9 programming or assistance. This programming has not eased their transition after so many years
10 in near total isolation. 11
213. Plaintiffs and the Supplemental Class, who languished ten or more years in solitary 12
confinement in the Pelican Bay SHU, and were then transferred to solitary confinement at a Step 13 14 Three or Step Four SHU, continue to experience the psychological harm alleged in paragraphs
15 123 – 145, and continue to be deprived of one or more fundamental human needs. The Eighth

16 Amendment violations they alleged in the Second Amended Complaint have not been remedied;

17 they continue unabated in a new location.

18

214. Plaintiffs Dewberry, Ruiz, Troxell and Franklin therefore continue this action on

19 their own behalf, and pursuant to Rules 23(a), 23(b)(1), and 23(b)(2) of the Federal Rules of Civil
20 Procedure, on behalf of a supplemental class of all prisoners who have now, or will have in the
21

22 future, been imprisoned by defendants at the Pelican Bay SHU for longer than ten continuous

23 years and subsequently transferred from Pelican Bay SHU to another SHU in California to be

24 held in solitary confinement pursuant to Step Three or Step Four of the Step Down Program.

25

215. Plaintiffs Johnson and Reyes are in Step Five at CSP Sacramento. Redd is in Step

26 Five at SATF-CSP Corcoran. All three plaintiffs are in a “general population” unit, yet Johnson

27 and Reyes are locked down in their cells 22 to 24 hours per day. Some days they have up to two
28

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1 hours of congregate recreation, other days they have none. They have no congregate meals. Redd

2 has more out of cell time. None of the three has received adequate transitional programming.

3

216. Despite increased privileges in Step Five, Johnson, Reyes, and Redd continue to

4 suffer the effects of their prolonged solitary confinement in the PB SHU, and face the very real
5

6 possibility of return to Pelican Bay SHU under the Step Down Program regulations, if they are

7 found to have engaged in any STG behavior (like having a photograph of a friend who is an STG

8 affiliate), or if they fail to complete any of the un-written and ill-defined Step Down

9 requirements.

10

217. Plaintiffs’ prolonged isolation has not yet been remedied. The effects of their

11 prolonged solitary confinement have not been fully eradicated and they face a realistic threat of
12 return to the PB SHU. Thus, plaintiffs Johnson, Reyes, and Redd continue this action on their
13

14 own behalf, as individual plaintiffs.

15

H. Supplemental Class Allegations

16

218. Plaintiffs Dewberry, Ruiz, Troxell and Franklin seek to represent a supplemental

17 Eighth Amendment class of all prisoners who have now, or will have in the future, been

18 imprisoned by defendants at the Pelican Bay SHU for longer than 10 continuous years and then

19 transferred from Pelican Bay SHU to another SHU in California to be held in solitary
20 confinement pursuant to Step Three or Step Four of the Step Down Program.
21

22

219. The Supplemental Class is so numerous that joinder of all members is

23 impracticable.

24

220. All members of the Supplemental Class are suffering the deprivation of at least

25 one basic human need due to their prolonged confinement in the Pelican Bay SHU and another

26 SHU and face a common risk of suffering even more serious mental harm caused by their

27 retention in a CDCR SHU for such a lengthy period of time.
28

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1

221. There are questions of law and fact common to the members of the Supplemental

2 Class. Those questions include, but are not limited to

3

a) Whether the prolonged confinement at the Pelican Bay SHU for over ten years and

4 continued isolation at another SHU constitutes cruel and unusual punishment
5

6

prohibited by the Eighth Amendment.

7

b) Whether defendants have been deliberately indifferent to the mental and physical

8

suffering of the supplemental class members due to their confinement at the Pelican

9

Bay SHU and the continuation of that confinement at another CDCR SHU.

10

c) Whether the conditions and restrictions imposed upon supplemental class members at

11 Step Three and Step Four of the Step Down Program reflect legitimate penological
12 concerns.
13

14

222. Defendants are expected to raise common defenses to these claims, including

15 denying that their policies and practices violate the Constitution

16

223. The claims of plaintiffs Dewberry, Ruiz, Troxell and Franklin are typical of those

17 of the Supplemental Class, as their claims arise from the same policies, practices, courses of

18 conduct, and conditions of confinement, and their claims are based on the same legal theories as

19 the class’ claims. The cause of the named plaintiffs’ injuries is the same as the cause of the
20 injuries suffered by the rest of the class, namely defendants’ policies and practices.
21

22

224. Plaintiffs Dewberry, Ruiz, Troxell and Franklin are capable of fairly and

23 adequately protecting the interests of the Supplemental Class because plaintiffs do not have any

24 interests antagonistic to the class. Plaintiffs, as well as class members, seek to enjoin the

25 unlawful acts, policies, and practices of the defendants. Finally, plaintiffs are represented by

26 counsel experienced in civil rights litigation, prisoners’ rights litigation, and complex class

27 litigation.
28

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1

225. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1)

2 because the class is numerous and prosecution of separate actions by individuals create a risk of
3 inconsistent and varying adjudications, which in turn would establish incompatible standards of 4
conduct for defendants. Moreover, the prosecution of separate actions by individual members is 5 6 costly, inefficient, and could result in decisions with respect to individual members of the class
7 that, as a practical matter, would substantially impair the ability of other members to protect their

8 interests.

9

226. This action is also maintainable as a class action pursuant to Fed. R. Civ. P.

10 23(b)(2) because defendants’ policies and practices that form the basis of this Complaint are
11 generally applicable to all the class members, thereby making class-wide declaratory and
12 injunctive relief appropriate. Common questions of law and fact clearly predominate within the
13
14 meaning of Rule 23(b)(2) as set forth above. Class treatment provides a fair and efficient method

15 for the adjudication of the controversy herein described, affecting a large number of persons,

16 joinder of whom is impractical.

17

V. CLAIMS FOR RELIEF

18

First Cause of Action: Eighth & Fourteenth Amendments

19

(Cruel and Unusual Punishment)

20

227. Plaintiffs incorporate by reference each and every allegation contained in the

21 preceding paragraphs as if set forth fully herein.

22

228. Plaintiffs advance this claim on their own behalf, and on behalf of the Eighth

23 Amendment subclass, against all defendants.
24

229. By their policies and practices described herein, defendants have deprived and 25

26 continue to deprive plaintiffs and the class of the minimal civilized measure of life’s necessities,

27 and have violated their basic human dignity and their right to be free from cruel and unusual

28 punishment under the Eighth and Fourteenth Amendments to the United States Constitution for

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1 each of the reasons set forth below.

2 A. Deprivation of Basic Human Need

3

230. First, the cumulative effect of extremely prolonged confinement, along with denial

4 of the opportunity of parole, the deprivation of earned credits, the deprivation of good medical
5

6 care, and other crushing conditions of confinement at the Pelican Bay SHU, constitute a serious

7 deprivation of at least one basic human need, including but not limited to normal human contact,

8 environmental and sensory stimulation, mental and physical health, physical exercise, sleep,

9 nutrition, and meaningful activity.

10 B. Imposition of Serious Psychological and Physical Injury, Pain and Suffering
11 231. Second, extremely prolonged exposure to these deprivations of basic human needs
12 is currently imposing serious psychological pain and suffering and permanent psychological and
13
14 physical injury on Plaintiffs and the class they represent.

15

232. In addition to plaintiffs’ current psychological and physical pain, the likelihood

16 that plaintiffs and the class will remain in SHU for the foreseeable future subjects plaintiffs and

17 the class they represent to a significant risk of future debilitating and permanent mental illness

18 and physical harm.

19 C.
20
21

SHU Confinement Designed to Coerce Plaintiffs to Provide Information 233. Third, Defendants’ harsh policies are not legitimately related to security or other

22 penological needs of isolating alleged dangerous prisoners from others, but rather are designed to

23 coerce plaintiffs to debrief and become informants for the State. This policy of holding plaintiffs

24 and class members in prolonged solitary confinement for many years at the Pelican Bay SHU

25 until they debrief or die is, as one Court put it, “tantamount to indefinite administrative

26 segregation for silence – an intolerable practice in modern society.” Griffin, No. C-98-21038 at

27 11. It is cruel and unusual punishment for defendants to coerce prisoners to provide information
28

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1 on other prisoners – if indeed they have any such information – by maintaining them in stifling

2 and punitive conditions that constitute an atypical and significant hardship, unless they so inform.

3

234. Prisoners who debrief incur a substantial risk of serious harm and retaliation to

4 themselves and to their families. The combination of the crushing conditions in the SHU, the
5

6 policies designed to coerce prisoners to debrief, the lack of any effective means of obtaining

7 release from the SHU without debriefing, and the substantial risk of serious harm if one does

8 debrief, puts prisoners in an untenable position and constitutes an unconstitutional threat to the

9 safety of prisoners confined in the SHU in violation of the Eighth and Fourteenth Amendments to

10 the Constitution.

11 D.
12
13

Disproportionate Punishment 235. Fourth, defendants’ policy of indefinite and prolonged SHU placement imposes

14 disproportionate punishment on plaintiffs and class members. Defendants have no legitimate

15 penological interest in retaining prisoners indefinitely in the debilitating conditions of the SHU

16 simply because they are gang members or associates, without recent, serious disciplinary or gang-

17 related infractions. Nor is this policy and practice rationally related to legitimate security needs.
18 Defendants’ decades-long infliction of significant psychological and physical harm and the risk 19
of future debilitating harm on these prisoners simply for allegedly being gang members or 20
associates offends civilized society’s sense of decency, constitutes an intolerable practice in 21 22 modern society, and is a disproportionate punishment which violates the Eighth and Fourteenth
23 Amendments to the Constitution.

24 E. 25 26

Deprivation of Human Dignity in Violation of Contemporary Standards of Human Decency
236. Finally, Defendants’ continuation of Plaintiffs’ solitary confinement for many

27 years under the debilitating and extreme conditions existing at the Pelican Bay SHU strips human

28 beings of their basic dignity and humanity in violation of contemporary standards of human

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1 decency and constitutes cruel and unusual treatment prohibited by the Eighth and Fourteenth

2 Amendments to the United States Constitution.

3

237. That California’s policies and practices violate contemporary standards of human

4 dignity and decency is evidenced by the fact that those practices are unusual in comparison to
5

6 other states’ practices with respect to segregated prisoner housing. Virtually no other state uses

7 mere gang association or membership to confine prisoners in the SHU. Other states do not

8 warehouse hundreds of prisoners in the SHU for decades at a time. Plaintiffs and class members

9 are subject to unusually harsh conditions of confinement even in comparison with other supermax

10 prisons, such as windowless cells and a lack of telephone calls to family members and friends.
11 And finally, California’s SHU policies and practices are atypical in effectively prolonging
12 incarceration, in that prisoners in the SHU are deprived of good time credit and are rendered
13
14 functionally ineligible for parole.

15

238. That California’s practices with respect to the plaintiff class violates contemporary

16 standards of human decency and dignity is also evidenced by the international community’s

17 condemnation of the practice of prolonged and indefinite solitary confinement under very harsh
18 and stifling conditions such as exist at the Pelican Bay SHU. Such condemnation is reflected in 19
international treaties such as the Convention Against Torture, the International Covenant on Civil 20
and Political Rights, decisions and declarations of international bodies, customary international 21 22 law, and decisions of regional and national courts such as the European Court of Human Rights
23 and Canadian courts.

24 F. Defendants’ Deliberate Indifference to the Deprivations Suffered by Plaintiffs

25

239. The policies and practices complained of herein have been and continue to be

26 implemented by defendants and their agents, officials, employees, and all persons acting in

27 concert with them under color of state law, in their official capacity.
28

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1

240. Defendants have been and are aware of all of the deprivations complained of

2 herein, and have condoned or been deliberately indifferent to such conduct.

3

241. It should be obvious to defendants and to any reasonable person that the conditions

4 imposed on plaintiffs and class members for many years cause tremendous mental anguish,
5

6 suffering, and pain to such prisoners. Moreover defendants have repeatedly been made aware,

7 through administrative grievances, hunger strikes, and written complaints that plaintiffs and class

8 members are currently experiencing significant and lasting injury. Defendants have been

9 deliberately indifferent to the plaintiffs’ pain and suffering.

10

242. Indeed, defendants have deliberately and knowingly caused such pain in an effort

11 to force plaintiffs and the class to debrief.
12

13

Second Cause of Action: Fourteenth Amendment

14

(Due Process)

15

243. Plaintiffs incorporate by reference each and every allegation contained in the

16 preceding paragraphs as if set forth fully herein.

17

244. Plaintiffs advance this claim on their own behalf, and on behalf of the class,

18 against all defendants.
19 245. Defendants have deprived plaintiffs and class members of a liberty interest without
20 due process of law by denying them meaningful and timely periodic review of their continued
21
22 long-term and indefinite detention at the Pelican Bay SHU and meaningful notice of what they

23 must do to earn release, in violation of the Fourteenth Amendment to the United States

24 Constitution.

25

246. The conditions and the duration of defendants’ confinement of plaintiffs and class

26 members at the Pelican Bay SHU constitute an atypical and significant hardship as compared

27 with the ordinary incidents of prison life for three basic reasons: (a) the exceedingly harsh and
28

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1 isolated conditions in the SHU; (b) the lengthy duration of confinement in the SHU; and (c) the

2 effect on the possibility of parole being granted and the overall length of imprisonment that

3 results from such confinement.

4
A. 5

Conditions at the Pelican Bay SHU

6

247. The conditions in the SHU are unduly harsh, and do not generally mirror those

7 conditions imposed upon prisoners in administrative segregation and protective custody in

8 California. These harsh conditions include but are not limited to: isolation in cells that are sealed

9 off from contact with other prisoners, the lack of windows in cells, a prohibition on all social
10 phone calls except in emergencies, no contact visits and very limited visiting hours, no or 11
minimal educational or general programming, exercise facilities that provide very little natural 12
sunlight and have virtually no recreational equipment, food which is inferior to that served to 13 14 other California prisoners, and denial of standard medical care to prisoners unless they debrief.
15 B. Duration of Confinement at the Pelican Bay SHU

16

248. Plaintiffs have been held in the crushing conditions described above for 11 to 22

17 years. Indeed, about half of the prisoners detained at the Pelican Bay SHU have been there for
18 over 10 years, more than 20 percent have been held there for more than 15 years, and almost 10 19
percent have been held there for over 20 years. Upon information and belief, this shockingly 20
lengthy confinement is atypical in comparison to the ordinary disciplinary and administrative 21
22 segregation imposed in California.

23 C. Effect of SHU Confinement on Overall Length of Imprisonment

24

249. An unwritten, but uniformly enforced policy imposed by CDCR precludes

25 plaintiffs and class members from being released on parole while they are at the Pelican Bay

26 SHU. In addition, under California law, prisoners housed in the SHU cannot earn good-time

27 credits no matter how impeccable their behavior. The effect of these policies and practices has
28

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1 been that many prisoners, including some of the named plaintiffs, spend a longer time

2 incarcerated in prison than had they not been housed in the SHU.
3 D. Lack of Meaningful Process
4 250. Because indefinite placement in the Pelican Bay SHU constitutes a significant and
5 6 atypical hardship, plaintiffs and class members are entitled to meaningful notice of how they may
7 alter their behavior to rejoin general population, as well as meaningful and timely periodic

8 reviews to determine whether they still warrant detention in the SHU.

9

251. Defendants have denied and continue to deny any such notice or meaningful

10 review by: (1) failing to provide prisoners with notice of what they can do to get released from
11 the SHU apart from providing information that they do not have or risking their life and safety
12 and that of their families by debriefing; (2) providing misleading notice that they can become
13
14 eligible to be released from the SHU by becoming an “inactive” gang member or associate and

15 refraining from engaging in any gang activities, when in fact prisoners who are not involved in

16 any current gang activity are still routinely retained in the SHU; (3) making a predetermination

17 that many prisoners will stay in the SHU until they either die or debrief, thus rendering the
18 periodic reviews substantively and procedurally meaningless; and (4) making the length of time 19
between reviews far too long to comport with the constitutional due-process standard. 20
252. Defendants are also violating plaintiffs’ due process rights by retaining plaintiffs 21 22 and the class in conditions that amount to an atypical and significant hardship without legitimate
23 penological interest, as this detention occurs without reliable evidence that plaintiffs and the class

24 are committing any acts on behalf of a prison gang and are thus active gang members.

25

26

27

28

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1

Third (Supplemental) Cause of Action: Eighth & Fourteenth Amendments

(Cruel and Unusual Punishment) 2

3

253. Plaintiffs Dewberry, Ruiz, Troxell, and Franklin incorporate by reference each and

4 every allegation contained in the preceding paragraphs as if set forth fully herein.

5

254. Plaintiffs Dewberry, Ruiz, Troxell, and Franklin advance this claim on their own

6 behalf, and on behalf of the Supplemental Class, against all defendants.
7 255. By their policies and practices described herein, defendants have deprived and
8 continue to deprive plaintiffs and the Supplemental Class of the minimal civilized measure of
9 10 life’s necessities, and have violated their basic human dignity and their right to be free from cruel
11 and unusual punishment under the Eighth and Fourteenth Amendments to the United States

12 Constitution for each of the reasons set forth below.

13 G. Deprivation of Basic Human Need

14

256. First, the cumulative effect of extremely prolonged confinement, along with denial

15 of the opportunity of parole, the deprivation of earned credits, the deprivation of good medical
16 care, and other crushing conditions of confinement at the Pelican Bay SHU, continued at another
17

18 CDCR SHU, constitute a serious deprivation of at least one basic human need, including but not

19 limited to normal human contact, environmental and sensory stimulation, mental and physical

20 health, physical exercise, sleep, nutrition, and meaningful activity.

21 H. Imposition of Serious Psychological and Physical Injury, Pain and Suffering

22

257. Second, extremely prolonged exposure to these deprivations of basic human needs

23 is currently imposing serious psychological pain and suffering and permanent psychological and
24

physical injury on plaintiffs and the class they represent. 25

26

258. In addition to plaintiffs’ current psychological and physical pain, the likelihood

27 that plaintiffs and the class will remain in SHU for the foreseeable future subjects plaintiffs and

28 the class they represent to a significant risk of future debilitating and permanent mental illness

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1 and physical harm.

2 I.

Disproportionate Punishment

3

259. Third, defendants’ policy of indefinite and prolonged SHU placement imposes

4 disproportionate punishment on plaintiffs and class members. Defendants have no legitimate
5

6 penological interest in retaining prisoners indefinitely in the debilitating conditions of the SHU

7 without serious disciplinary infractions. Nor is this policy and practice rationally related to

8 legitimate security needs. Defendants’ decades-long infliction of significant psychological and

9 physical harm and the risk of future debilitating harm on these prisoners simply for allegedly

10 being gang members or associates and/or for minor, non-violent disciplinary infractions, offends
11 civilized society’s sense of decency, constitutes an intolerable practice in modern society, and is a
12 disproportionate punishment which violates the Eighth and Fourteenth Amendments to the
13
14 Constitution.

15 J. 16 17

Deprivation of Human Dignity in Violation of Contemporary Standards of Human Decency
260. Finally, defendants’ continuation of plaintiffs’ solitary confinement for many years

18 under the debilitating and extreme conditions existing at the Pelican Bay SHU and other CDCR

19 SHUs strips human beings of their basic dignity and humanity in violation of contemporary

20 standards of human decency and constitutes cruel and unusual treatment prohibited by the Eighth

21 and Fourteenth Amendments to the United States Constitution.

22

261. That California’s policies and practices violate contemporary standards of human

23 dignity and decency is evidenced by the fact that those practices are unusual in comparison to
24

other states’ practices with respect to segregated prisoner housing. Virtually no other state uses 25

26 mere gang association or membership or minor disciplinary infractions to confine prisoners in the

27 SHU. Other states do not warehouse hundreds of prisoners in the SHU for decades at a time.

28 And finally, California’s SHU policies and practices are atypical in effectively prolonging

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1 incarceration, in that prisoners in the SHU are deprived of good time credit and are rendered

2 functionally ineligible for parole.

3

262. That California’s practices with respect to the plaintiff class violates contemporary

4 standards of human decency and dignity is also evidenced by the international community’s
5

6 condemnation of the practice of prolonged and indefinite solitary confinement under very harsh

7 and stifling conditions such as exist at the Pelican Bay SHU and other CDCR SHUs. Such

8 condemnation is reflected in international treaties such as the Convention Against Torture, the

9 International Covenant on Civil and Political Rights, decisions and declarations of international

10 bodies, customary international law, and decisions of regional and national courts such as the

11 European Court of Human Rights and Canadian courts.
12 K. Defendants’ Deliberate Indifference to the Deprivations Suffered by Plaintiffs
13

14

263. The policies and practices complained of herein have been and continue to be

15 implemented by defendants and their agents, officials, employees, and all persons acting in

16 concert with them under color of state law, in their official capacity.

17

264. Defendants have been and are aware of all of the deprivations complained of

18 herein, and have condoned or been deliberately indifferent to such conduct.
19 265. It should be obvious to defendants and to any reasonable person that the conditions
20 imposed on plaintiffs and class members for many years cause tremendous mental anguish,
21
22 suffering, and pain to such prisoners. Moreover defendants have repeatedly been made aware,

23 through administrative grievances, hunger strikes, and written complaints that plaintiffs and class

24 members are currently experiencing significant and lasting injury. Defendants have been

25 deliberately indifferent to the plaintiffs’ pain and suffering.

26

266. Indeed, defendants have deliberately and knowingly caused such pain in an effort

27 to force plaintiffs and the class to debrief.
28

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1

PRAYER FOR RELIEF

2

Plaintiffs and the classes they represent have no adequate remedy at law to redress the

3 wrongs suffered as set forth in this Complaint. Plaintiffs have suffered and will continue to suffer
4 irreparable injury as a result of the unlawful acts, omissions, policies, and practices of defendants,
5
6 as alleged herein, unless plaintiffs and the classes they represent are granted the relief they

7 request. The need for relief is critical because the rights at issue are paramount under the United

8 States Constitution.

9

WHEREFORE, the named plaintiffs and the classes they represent request that this Court

10 grant them the following relief:
11 a. Declare that this suit is maintainable as a class action pursuant to Federal Rules of Civil
12 Procedure 23(a) and 23(b)(1) and (2);
13
14 b. Declare that defendants’ policies and practices of confining prisoners in the Pelican Bay SHU

15

violate the Eighth and Fourteenth Amendments to the United States Constitution;

16 c. Issue injunctive relief ordering defendants to present a plan to the Court within 30 days of the

17

issuance of the Court’s order providing for:

18

i. the release from the SHU of those prisoners who have spent more than 10

19 years in the SHU, and placement of these prisoners in either a) a general
20 population unit, or b) in a modified general population unit, in which the
21

22

prisoners are segregated from the general prison population in a high security

23

setting but have similar privileges as do prisoners in general population such as

24

access to small group congregate recreation, contact visits, phone calls,

25

programming, and significant out of cell time, until such time as prisoners can

26

safely transition into a non-segregated general population unit.

27

28

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1

ii. alleviation of the conditions of confinement of prisoners in the SHU so that

2

prisoners no longer are incarcerated under conditions of isolation, sensory

3

deprivation, lack of social and physical human contact, and environmental

4 deprivation;
5

6

iii. meaningful review of the continued need for confinement in a SHU of all

7

prisoners currently housed in the SHU within six months of the date of the

8

Court’s order; and

9

iv. meaningful review of SHU confinement for prisoners housed in the SHU in the

10

future;

11 d. Award plaintiffs the costs of this suit and reasonable attorneys’ fees and litigation expenses
12 pursuant to 42 U.S.C. § 1988, and other applicable law;
13

14 e. Retain jurisdiction of this case until defendants have fully complied with the orders of this

15

Court; and

16 f. Award such other and further relief as the Court deems just and proper.

17

18 Dated: March 11, 2015 19

Respectfully submitted,

20

/s/ Jules Lobel

21 JULES LOBEL (pro hac vice)

22

Email: jll4@pitt.edu

ALEXIS AGATHOCLEOUS (pro hac vice)

23

Email: aagathocleous@ccrjustice.org

RACHEL MEEROPOL (pro hac vice)

24

Email: rachelm@ccrjustice.org

CENTER FOR CONSTITUTIONAL RIGHTS

25

666 Broadway, 7th Floor

New York, NY 10012

26

Tel: (212) 614-6478

Fax: (212) 614-6499

27

ANNE CAPPELLA (Bar No. 181402)

28

Email: anne.cappella@weil.com

PLAINTIFF’S SUPPLEMENTAL COMPLAINT

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1

AARON HUANG (Bar No. 261903)

Email: aaron.huang@weil.com

2

BAMBO OBARO (Bar No. 267683)

Email: bambo.obaro@weil.com

3

WEIL, GOTSHAL & MANGES LLP

201 Redwood Shores Parkway

4

Redwood Shores, CA 94065-1134

Tel: (650) 802-3000

5

Fax: (650) 802-3100

6

CAROL STRICKMAN (SBN 78341)

Email: carol@prisonerswithchilodren.org

7

LEGAL SERVICES FOR PRISONERS WITH

CHILDREN

8

1540 Market Street, Suite 490

San Francisco, CA 94102

9

Tel: (415) 255-7036

Fax: (415) 552-3150

10 CHARLES F.A. CARBONE (Bar No. 206536)

11

Email: Charles@charlescarbone.com

LAW OFFICES OF CHARLES CARBONE

12

P. O. Box 2809

13

San Francisco, CA 94126 Tel: (415) 981-9773

14

Fax: (415) 981-9774

15

MARILYN S. MCMAHON (SBN 270059)

Email: Marilyn@prisons.org

16

CALIFORNIA PRISON FOCUS

1904 Franklin Street, Suite 507

17

Oakland, CA 94612

18

Tel: (510) 734-3600 Fax: (510) 836-7222

19

ANNE BUTERFIELD WEILLS (SBN 139845)

20

Email: abweills@gmail.com

SIEGEL & YEE

21

499 14th Street, Suite 300

Oakland, CA 94612

22

Tel: (510) 839-1200

23

Fax: (510) 444-6698

24

Attorneys for Plaintiffs

25

26

27

28

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1 KAMALA D. HARRIS Attorney General of California
2 JAY C. RUSSELL Supervising Deputy Attorney General
3 ADRIANO HRVATIN Deputy Attorney General
4 State Bar No. 220909 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 703-1672
6 Fax: (415) 703-5843 E-mail: Adriano.Hrvatin@doj.ca.gov
7 Attorneys for Defendants

JULES LOBEL (pro hac vice) ALEXIS AGATHOCLEOUS (pro hac vice) RACHEL MEEROPOL (pro hac vice) SAMUEL MILLER, State Bar No. 138942 CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Telephone: 212.614.6432 Facsimile: 212.614.6499 E-mail: jll4@pitt.edu Attorneys for Plaintiffs

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11

12 TODD ASHKER, et al.,
13
14 v.
15

C 09-05796 CW Plaintiffs, SETTLEMENT AGREEMENT

16 GOVERNOR OF THE STATE OF CALIFORNIA, et al.,
17 Defendants.
18

19

The parties enter into this Settlement Agreement (the Agreement) to address and settle

20 Plaintiffs’ claims for declaratory and injunctive relief regarding the policies and practices of the

21 California Department of Corrections and Rehabilitation (CDCR) for placing, housing, managing,

22 and retaining inmates validated as prison gang members and associates, as well as the conditions

23 of confinement in the Security Housing Unit (SHU) at Pelican Bay State Prison and other CDCR

24 SHU facilities.

25 I. BACKGROUND AND PROCEDURAL POSTURE

26

1. Plaintiffs in this matter are inmates Todd Ashker, Ronnie Dewberry, Luis Esquivel,

27 George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, and

28 Danny Troxell (Plaintiffs).

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1

2. Defendants are the Governor of the State of California, CDCR’s Secretary, Pelican

2 Bay’s Warden, and the Chief of CDCR’s Office of Correctional Safety, each of whom is sued in

3 his official capacity (Defendants).

4

3. This action was originally filed on December 9, 2009, as an individual pro se civil-

5 rights suit by Plaintiffs Todd Ashker and Danny Troxell. A First Amended Complaint was filed

6 on May 21, 2010. On September 10, 2012, Plaintiffs, having retained counsel, filed a Second

7 Amended Complaint, which added class allegations and eight additional Plaintiffs. The Second

8 Amended Complaint alleges that CDCR’s gang management regulations and practices violate the

9 Due Process Clause of the Fourteenth Amendment and that the conditions of confinement in

10 Pelican Bay’s SHU constitute cruel and unusual punishment in violation of the Eighth

11 Amendment. The Second Amended Complaint seeks declaratory and injunctive relief to address

12 the alleged constitutional violations.

13

4. Defendants filed a motion to dismiss the Second Amended Complaint, which the

14 Court denied on April 9, 2013. (ECF No. 191.) On April 30, 2013, Defendants answered the

15 Second Amended Complaint. (ECF No. 194.)

16

5. Plaintiffs filed a motion for class certification, which the Court granted in part and

17 denied in part on June 2, 2014. (ECF No. 317.) Some Plaintiffs were appointed to represent two

18 classes of inmates certified under Rules 23(b)(1) and (b)(2) of the Federal Rules to include: (i) all

19 inmates assigned to an indeterminate term at Pelican Bay’s SHU on the basis of gang validation,

20 under CDCR’s policies and procedures, as of September 10, 2012; and (ii) all inmates who are

21 now, or will be in the future, assigned to Pelican Bay’s SHU for ten or more continuous years.

22 (See, e.g., ECF No. 317 at 11, 14, 21; ECF No. 387 at 13-17.)

23

6. On October 18, 2012, CDCR implemented its Security Threat Group (STG) program

24 as a pilot program which modified the criteria for placement into the SHU and initiated a Step

25 Down Program designed to afford validated inmates a way to transfer from the SHU to a general

26 population setting within three or four years. On October 17, 2014, and upon expiration of the

27 pilot, CDCR’s STG regulations were approved and adopted in Title 15.

28
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1

7. Plaintiffs filed a motion for leave to file a Supplemental Complaint, which the Court

2 granted on March 9, 2015. (ECF No. 387.) On March 11, 2015, Plaintiffs filed their

3 Supplemental Complaint. (ECF No. 388.) The Supplemental Complaint alleges an additional

4 Eighth Amendment claim on behalf of a putative class of gang-validated inmates transferred to

5 another CDCR SHU facility under CDCR’s Step Down Program, after having been housed in

6 Pelican Bay’s SHU for ten or more years. Plaintiffs Dewberry, Franklin, Ruiz, and Troxell are

7 the putative class representatives of this supplemental Eighth Amendment claim. Plaintiffs

8 transferred from Pelican Bay’s SHU also pursue relief on an individual basis. Plaintiffs contend

9 that the alleged constitutional violation that inmates suffered because of their confinement in

10 Pelican Bay’s SHU for ten or more continuous years does not end notwithstanding their transfer

11 from Pelican Bay to another facility under the Step Down Program. The Court stayed the

12 litigation of this additional Eighth Amendment claim until resolution of the Eighth Amendment

13 claim alleged in Plaintiffs’ Second Amended Complaint. (ECF Nos. 387, 393.)

14

8. Apart from a 45-day litigation stay in early 2014 to discuss settlement, the parties

15 engaged in extensive discovery for over three years. Fact discovery closed on November 28,

16 2014. The parties responded to hundreds of written discovery requests, produced hundreds of

17 thousands of pages of documents, and completed approximately thirty depositions of current and

18 former prison officials and inmates. Expert discovery closed on May 29, 2015. Plaintiffs

19 disclosed ten experts, Defendants disclosed seven, and the parties collectively completed a dozen

20 expert depositions. The parties produced over 45,000 pages of documents in response to

21 subpoenas directed to their respective experts.

22

9. The parties have conducted extensive negotiations over several months to resolve

23 Plaintiffs’ demands that CDCR revise its gang management and SHU policies and practices.

24 Those negotiations have been undertaken at arm’s length and in good faith between Plaintiffs’

25 counsel and high-ranking state officials and their counsel. The parties have reached agreement on

26 statewide policies and practices to settle Plaintiffs’ claims for declaratory and injunctive relief,

27 and, for settlement purposes only, agree that this Agreement meets the requirements of 18 U.S.C.

28 § 3626(a)(1).

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1

10. The parties agree that the putative supplemental class asserted in Plaintiffs’

2 Supplemental Complaint—namely, all prisoners who have now, or will have in the future, been

3 imprisoned in Pelican Bay’s SHU for longer than 10 continuous years and then transferred from

4 Pelican Bay’s SHU to another SHU in California in connection with CDCR’s Step Down

5 Program—may be certified as a class for settlement purposes under Rule 23(b)(2) of the Federal

6 Rules of Civil Procedure. The parties agree that, after notice and an opportunity to object is

7 provided to members of the two classes previously certified by the Court as well as members of

8 the supplemental settlement class, the Court may enter an order finding this Agreement to be fair

9 and reasonable to all class members.

10

11. All parties and their counsel recognize that, in the absence of an approved settlement,

11 they face lengthy and substantial litigation, including trial and potential appellate proceedings, all

12 of which will consume time and resources and present the parties with ongoing litigation risks

13 and uncertainties. The parties wish to avoid these risks, uncertainties, and consumption of time

14 and resources through a settlement under the terms and conditions of this Agreement.

15

ACCORDINGLY, without any admission or concession by Defendants of any current and

16 ongoing violations of a federal right, all claims for declaratory and injunctive relief asserted in the

17 Second Amended Complaint and Supplemental Complaint shall be finally and fully settled and

18 released, subject to the terms and conditions of this Agreement, which the parties enter into freely,

19 voluntarily, knowingly, and with the advice of counsel.

20 II. JURISDICTION AND VENUE

21

12. The Court has jurisdiction of this matter under 28 U.S.C. §§ 1331 and 1343. Venue is

22 proper under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to Plaintiffs’

23 claims occurred in the Northern District of California.

24 III. TERMS AND CONDITIONS

25

A. NEW CRITERIA FOR PLACEMENT IN SHU, ADMINISTRATIVE SEGREGATION, OR

26

THE STEP DOWN PROGRAM.

27

13. CDCR shall not place inmates into a SHU, Administrative Segregation, or Step Down

28 Program solely on the basis of their validation status.
4

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1

14. CDCR shall amend the SHU Assessment Chart located in Title 15 of the California

2 Code of Regulations, section 3341.5, subsection (c)(9). The SHU Assessment Chart shall be

3 amended as set forth in Attachment B.

4

15. Under the revised Step Down Program policy, STG-I inmates, as defined in Title 15

5 of the California Code of Regulations, section 3000, will be transferred into the Step Down

6 Program if they have been found guilty in a disciplinary hearing of committing, with a proven

7 nexus to an STG, a SHU-eligible offense, as listed in the SHU Assessment Chart.

8

16. STG-II inmates, as defined in Title 15 of the California Code of Regulations, section

9 3000, will be transferred into the Step Down Program if they have been found guilty in a

10 disciplinary hearing of committing, with a proven nexus to a STG, two SHU-eligible offenses

11 within a four year period, as listed in the SHU Assessment Chart.

12

17. Any STG-I or STG-II inmate shall be transferred into the Step Down Program as

13 described in Paragraphs 15 and 16, upon the completion of the determinate, disciplinary SHU

14 term imposed by the Institution Classification Committee for that offense. All time spent in the

15 SHU following completion of the determinate SHU term prior to actual transfer into the Step

16 Down Program shall be credited as part of the inmate’s Step Down Program time. The Institution

17 Classification Committee shall continue to have the authority to impose, commute, or suspend

18 any part of the determinate SHU term, as provided in regulations.

19

B. MODIFICATIONS TO THE STEP DOWN PROGRAM.

20

18. CDCR shall modify its Step Down Program so that it is based on the individual

21 accountability of each inmate for proven STG behavior, and not solely on the inmate’s validation

22 status or level of STG affiliation.

23

19. The revised Step Down Program shall be 24 months in duration and consist of 4

24 program steps that take place within a SHU. Except as provided in Paragraphs 22 and 23, each

25 step will be 6 months in duration. Step 5 of the existing Step Down Program shall be eliminated.

26 Upon successful completion of the Step Down Program, the inmate shall be transferred to a

27 General Population prison commensurate with his specific case factors and in accordance with

28 existing regulations.

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1

20. Each Step within the Step Down Program shall provide incremental increases in

2 privileges and freedom of movement commensurate with program placement as set forth in

3 Attachment A.

4

21. The Step Down Program incorporates rehabilitative programming consisting of both

5 required and elective components. Within 90 days of the Court’s preliminary approval of this

6 Agreement, CDCR will afford Plaintiffs’ counsel and four inmate representatives identified by

7 Plaintiffs an opportunity to meet with CDCR officials to discuss the nature, content and substance

8 of the mandatory and elective programming. It is CDCR’s intent to provide programming with

9 clear requirements and outcomes to provide an alternative path away from STG behavior and

10 promote critical life skills. CDCR shall convene a panel of experts, of CDCR’s choosing, to

11 evaluate the Step Down Program curriculum and to make recommendations in keeping with this

12 intent. CDCR will provide Plaintiffs’ counsel with a copy of the panel of experts’

13 recommendations. Plaintiffs’ counsel and the four inmate representatives will have the

14 opportunity to meet with Defendants regarding recommended components; however, CDCR

15 retains its discretion to implement the mandatory programming of its choosing for this population.

16

22. Participation in the Step Down Program is mandatory for any inmate placed into the

17 program. An inmate’s refusal to participate in or complete the required programming in the Step

18 Down Program shall not result in regression or retention in the program, but shall be addressed as

19 follows: At the 180-day review performed by the Institution Classification Committee at the end

20 of Step 3, if the Committee determines that the inmate refused to participate in or has not

21 completed all components of the Step Down Program, the Committee shall retain the non-

22 participating inmate in Step 3 for an additional 6 months. If, at the end of that additional 6-month

23 period, the inmate continues to refuse or does not complete all Step Down Program components,

24 the Institution Classification Committee shall remove the inmate from the program and transfer

25 him to a Restricted Custody General Population (RCGP) facility. That inmate shall be assigned

26 to the Step 3 privilege group, however the Institution Classification Committee may later reassign

27 the inmate to the Step 4 privilege group based on his progression through the commensurate Step

28 Down Program components remaining to be completed. If the inmate elects to complete the Step
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1 Down Program requirements, he shall do so within the RCGP and shall not be returned to the

2 SHU to complete the program, unless he is found guilty in a disciplinary hearing of a new SHU-

3 eligible offense. If the inmate completes the Step Down Program components and, while in the

4 RCGP, is not found guilty of either one serious STG-related or two administrative STG-related

5 rules violations as listed in the STG Disciplinary Matrix, during the 180-day review period, he

6 will then be released to the General Population. (See Attachment C.) The Institution

7 Classification Committee shall conduct reviews no less than every 180-days to determine whether

8 the inmate has completed the Step Down Program and is eligible for release to the General

9 Population. Non-participation or lack of completion that is due to the unavailability or

10 inaccessibility of programming components necessary for Step Down Program compliance shall

11 not impede an inmate’s progress to the next step and shall not be considered as a factor in an

12 inmate’s regression or retention in any step. CDCR shall provide an opportunity for each inmate

13 to complete Step Down Program programming for each step within 6 months. All time spent

14 awaiting transfer to another step shall be credited to the completion of the next step.

15

23. The Step Down Program is intended to be a rehabilitative, gang behavior diversion

16 program for STG affiliated inmates. As such, inmates within the program are expected to remain

17 disciplinary-free. Misconduct shall be addressed in accordance with existing disciplinary rules

18 and regulations. The commission of repeated STG violations while in the Step Down Program

19 shall not result in regression or retention in the program, but shall be addressed as follows: If an

20 inmate has committed either 3 serious STG rules violations or 5 administrative STG rules

21 violations as listed in the STG Disciplinary Matrix while in the Step Down Program, he shall be

22 transferred to the RCGP facility. The Institution Classification Committee shall review the

23 inmate’s disciplinary history and make this determination during the 180-day reviews performed

24 at the end of Steps 3 and 4. If, during the Step 3 review, the inmate is guilty of committing 3

25 serious STG rules violations or 5 administrative STG rules violations while in the Step Down

26 Program, the Committee shall retain the inmate in Step 3 for an additional 6 months. At the end

27 of that additional 6-month period, the Committee shall remove the inmate from the program and

28 transfer him to the RCGP. An inmate transferred to the RCGP pursuant to this Paragraph shall be
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1 assigned to the Step 3 privilege group. The inmate can appeal the decision to transfer him to the

2 RCGP to the Departmental Review Board, which would review the inmate’s disciplinary history

3 and determine whether removal from the program and transfer to the RCGP is appropriate; a

4 hearing before the Board is not required for a determination of such an appeal. Consistent with

5 Paragraph 22, if the inmate completes the Step Down Program components and, while housed in

6 the RCGP, is not found guilty of either one serious STG-related or two administrative STG-

7 related rules violations as listed in the STG Disciplinary Matrix during the RCGP 180-day review

8 period, he will then be released to the General Population. The Institution Classification

9 Committee shall conduct reviews no less than every 180-days to determine whether the inmate

10 has completed the Step Down Program and is eligible for release to the General Population.

11

24. If an inmate is found guilty of committing a SHU-eligible offense while assigned to

12 the Step Down Program or RCGP, he shall complete the intervening determinate, disciplinary

13 SHU term as imposed by the Institution Classification Committee for that offense before

14 returning to the Step Down Program or RCGP. If such SHU-eligible offense has a proven nexus

15 to an STG as described in Paragraphs 15 and 16, upon completion of the determinate term

16 imposed by the Committee, the inmate shall be returned to the Step Down Program at Step 1 or

17 another step as determined by the Committee.

18

C. REVIEW OF STG-VALIDATED INMATES CURRENTLY IN SHU.

19

25. Within twelve months of the Court’s preliminary approval of this Agreement, CDCR

20 shall review the cases of all validated inmates who are currently in the SHU as a result of either

21 an indeterminate term that was previously assessed under prior regulations or who are currently

22 assigned to Steps 1 through 4, or who were assigned to Step 5 but are retained within the SHU.

23 These reviews shall be conducted by Institution Classification Committees and prioritized by the

24 inmates’ length of continuous housing within a SHU so that those of the longest duration are

25 reviewed first. If an inmate has not been found guilty of a SHU-eligible rule violation with a

26 proven STG nexus within the last 24 months, he shall be released from the SHU and transferred

27 to a General Population level IV 180-design facility, or other general population institution

28 consistent with his case factors. An inmate who has committed a SHU-eligible rule violation
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1 with an STG nexus within the last 24 months shall be placed into the Step Down Program based

2 on the date of the most recent STG-related rule violation, as follows: Step 1: violation occurred

3 within the last 6 months; Step 2: violation occurred within the last 6-12 months; Step 3:

4 violation occurred within the last 12-18 months; Step 4: violation occurred within the last 18-24

5 months. Inmates currently assigned to Step 5 in the General Population shall remain in the

6 General Population and shall no longer be considered current Step Down Program participants.

7

26. During the review described in Paragraph 25, any inmate housed in a SHU program

8 for 10 or more continuous years who has committed a SHU-eligible offense with a nexus to an

9 STG within the preceding 2 years, will be transferred into the RCGP for completion of Step

10 Down Program requirements. Inmates subject to this provision who are currently serving a

11 disciplinary SHU term will be allowed to complete the SHU term in the RCGP prior to beginning

12 the Step Down Program, unless the Institution Classification Committee determines by a

13 preponderance of the evidence that to do so would pose an unreasonable risk to individual or

14 institutional safety and security. This function of the RCGP shall be implemented as a pilot

15 program. If the inmate completes the Step Down program requirements, he will be transferred to

16 a General Population prison setting in accordance with his case factors. One hundred twenty days

17 after completion of the reviews described in Paragraph 25, CDCR will produce a report on the

18 functioning of this pilot program and shall inform plaintiffs’ counsel whether it intends to make

19 permanent, modify, or terminate this RCGP function. Within 30 days of receiving the notice

20 from CDCR, the parties shall meet and confer regarding any proposed changes to the RCGP pilot

21 program. If CDCR decides to terminate the RCGP pilot program, inmates housed in the RCGP

22 pursuant to this Paragraph will, in the absence of pending disciplinary charges of a new SHU-

23 eligible offense requiring segregation, either remain in the RCGP until they transition into

24 General Population or will be transferred to non-segregated housing.

25

27. For those STG inmates considered for release to the General Population either

26 following Step Down Program completion or pursuant to the review described in Paragraph 25,

27 and against whom there is a substantial threat to their personal safety should they be released to

28 the General Population as determined by a preponderance of the evidence, the Departmental
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1 Review Board retains the discretion, in accordance with existing authority, to house that inmate in

2 alternate appropriate non SHU, non-Administrative segregation housing commensurate with his

3 case factors, such as a Sensitive Needs Yard or RCGP, until such time that the inmate can safely

4 be housed in a general population environment. The Departmental Review Board shall articulate

5 the substantial justification for the need for alternative placement. If the Institution Classification

6 Committee refers a case to the Departmental Review Board pursuant to this Paragraph, the

7 Departmental Review Board shall prioritize these case reviews and expeditiously conduct the

8 hearing and render its placement decision. Thereafter, during their regular 180-day reviews, the

9 Institution Classification Committee shall verify whether there continues to be a demonstrated

10 threat to the inmate’s personal safety; and if such threat no longer exists the case shall be referred

11 to the Departmental Review Board for review of housing placement as soon as practicable. For

12 Departmental Review Board hearings held pursuant to this Paragraph, a staff assistant shall be

13 provided to help inmates prepare and present their case due to the fact that the complexity of these

14 types of cases makes assistance necessary. If Plaintiffs’ counsel contends that CDCR has abused

15 its discretion in making housing decisions under this Paragraph, that concern may be raised with

16 Magistrate Judge Nandor J. Vadas in accordance with the dispute resolution and enforcement

17 procedures set forth in Paragraphs 52 and 53 below to determine whether CDCR has articulated

18 substantial justification by a preponderance of the evidence for alternative placement.

19

D. THE RESTRICTIVE CUSTODY GENERAL POPULATION HOUSING UNIT.

20

28. The RCGP is a Level IV 180-design facility commensurate with similarly designed

21 high security general population facilities. Inmates shall be transferred to the RCGP if they have

22 refused to complete Step Down Program components as described in Paragraph 22; if they have

23 been found guilty of repeated STG violations while in the Step Down Program as described in

24 Paragraph 23; if identified safety concerns prevent their release to General Population and the

25 RCGP is deemed to be appropriate as described in Paragraph 27; or if they meet the eligibility for

26 placement in the RCGP under the pilot program described in Paragraph 26. Programming for

27 those inmates transferred to or retained in the RCGP will be designed to provide increased

28 opportunities for positive social interaction with other prisoners and staff, including but not
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1 limited to: Alternative Education Program and/or small group education opportunities; yard/out

2 of cell time commensurate with Level IV GP in small group yards, in groups as determined by the

3 Institution Classification Committee; access to religious services; support services job

4 assignments for eligible inmates as they become available; and leisure time activity groups.

5 Contact visiting shall be limited to immediate family and visitors who have been pre-approved in

6 accordance with existing Title 15 visiting regulations, and shall occur on the schedule set forth in

7 Attachment A. Other privileges provided in the RCGP are also set forth in Attachment A. CDCR

8 policy is that inmate movement, programming, and contact visits within the RCGP shall not

9 require the application of mechanical restraints; any application of restraints shall be in

10 accordance with existing Title 15, section 3268.2. CDCR will provide Plaintiffs’ counsel with the

11 opportunity to tour the proposed RCGP facility and to meet and confer with Defendants regarding

12 the functioning and conditions of the RCGP, prior to its implementation.

13

E. ADMINISTRATIVE SHU STATUS.

14

29. An inmate may be retained in the SHU and placed on Administrative SHU status after

15 serving a determinate SHU sentence if it has been determined by the Departmental Review Board

16 that the inmate’s case factors are such that overwhelming evidence exists supporting an

17 immediate threat to the security of the institution or the safety of others, and substantial

18 justification has been articulated of the need for SHU placement. Inmates may also be placed on

19 Administrative SHU status if they have a substantial disciplinary history consisting of no less

20 than three SHU terms within the past five years and the Departmental Review Board articulates a

21 substantial justification for the need for continued SHU placement due to the inmate’s ongoing

22 threat to safety and security of the institution and/or others, and that the inmate cannot be housed

23 in a less restrictive environment. Inmates currently serving an Administrative SHU term may

24 continue to be retained in the SHU based on the criteria set forth in this Paragraph. The

25 Institution Classification Committee shall conduct classification reviews every 180 days in

26 accordance with Title 15, section 3341.5. The Departmental Review Board shall annually assess

27 the inmate’s case factors and disciplinary behavior and shall articulate the basis for the need to

28 continue to retain the inmate on Administrative SHU status. The inmate’s privilege group shall
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1 be set in a range similar to S-1 to S-5, which can be modified by the Institution Classification

2 Committee during the inmate’s classification review, if deemed appropriate. CDCR shall provide

3 inmates placed on Administrative SHU status with enhanced out of cell recreation and

4 programming of a combined total of 20 hours per week. It is CDCR’s expectation that a small

5 number of inmates will be retained in the SHU pursuant to this Paragraph. If Plaintiffs’ counsel

6 contends that CDCR has abused its discretion in making a housing decision under this Paragraph,

7 that concern may be raised with Magistrate Judge Vadas in accordance with the dispute resolution

8 and enforcement procedures set forth in Paragraphs 52 and 53 below to determine whether the

9 Defendants’ decision meets the evidentiary standards and criteria set forth in this Paragraph.

10

30. The initial decision to place an inmate on Administrative SHU status, as described in

11 Paragraph 29, can only be made by the Departmental Review Board.

12

31. At each 180-day review, institutional staff shall identify all efforts made to work with

13 each inmate on Administrative SHU status to move the inmate to a less restrictive environment as

14 soon as case factors would allow.

15

F. HOUSING ASSIGNMENT TO PELICAN BAY’S SHU.

16

32. Notwithstanding Paragraph 29 above, CDCR shall not house any inmate within the

17 SHU at Pelican Bay State Prison for more than 5 continuous years. Inmates housed in the Pelican

18 Bay SHU requiring continued SHU placement beyond this limitation will be transferred from the

19 Pelican Bay SHU to another SHU facility within CDCR, or to a 180-design facility at Pelican Bay.

20 Inmates who have previously been housed in the Pelican Bay SHU for 5 continuous years can

21 only be returned to the Pelican Bay SHU if that return has been specifically approved by the

22 Departmental Review Board and at least 5 years have passed since the inmate was last transferred

23 out of the Pelican Bay SHU.

24

33. Notwithstanding Paragraph 32 above, inmates may request in writing that they be

25 housed in the Pelican Bay SHU in lieu of another SHU location, but such a request must be

26 reviewed and approved by the Departmental Review Board. An inmate’s request to remain

27 housed in the Pelican Bay SHU shall be reviewed and documented by the Institution

28 Classification Committee at each scheduled Committee hearing.
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1

G. CONFIDENTIAL INFORMATION.

2

34. CDCR shall adhere to the standards for the consideration of and reliance on

3 confidential information set forth in Title 15 of the California Code of Regulations, section 3321.

4 To ensure that the confidential information used against inmates is accurate, CDCR shall develop

5 and implement appropriate training for impacted staff members who make administrative 6 determinations based on confidential information as part of their assigned duties, consistent with

7 the general training provisions set forth in Paragraph 35. The training shall include procedures 8 and requirements regarding the disclosure of information to inmates.

9

H. TRAINING.

10

35. CDCR shall adequately train all staff responsible for implementing and managing the

11 policies and procedures set forth in this Agreement. Plaintiffs’ counsel shall be provided an

12 advanced copy of all such training materials with sufficient time to meet and confer with

13 Defendants, prior to the implementation of the trainings. Plaintiffs are entitled to have an 14 attorney attend training sessions on these modifications, no greater than 6 times per year.

15

I. NEW REGULATIONS.

16

36. CDCR shall promulgate regulations, policies and procedures governing the STG

17 management and Step Down Program as set forth in this agreement. The pilot program described

18 in Paragraph 26 will not be required to be promulgated in regulations, unless the pilot program is 19 made permanent.

20

J. DATA AND DOCUMENTS.

21

37. For a period of twenty-four months following the Court’s preliminary approval of this

22 Agreement, CDCR will provide Plaintiffs’ counsel data and documentation to be agreed upon,

23 under the protective order in place in this matter, to monitor Defendants’ compliance with the

24 terms of this Agreement. No later than thirty days after the Court’s preliminary approval of this 25 Agreement, and again twelve months after the Court’s preliminary approval, the parties shall

26 meet and confer to determine the details of the data and documentation to be produced. That 27 agreement and any disputes regarding data and document production, including modification of

28 the agreement, shall be submitted to Magistrate Judge Vadas in accordance with the dispute
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1 resolution and enforcement procedures set forth in Paragraphs 52 and 53 below. In addition,

2 Magistrate Judge Vadas can request and order the production of any documentation or data he

3 deems material to compliance with this Agreement or the resolution of any dispute contemplated

4 by the terms of the Agreement. The parties agree, nevertheless, that data and documentation will

5 include, but not be limited to, the following:

6

a. The number of validated STG I and STG II inmates as of the first of the month

7 following preliminary approval. Subsequently, the number of all new STG I and STG II

8 validations shall be provided on a quarterly basis for a period of nine months following the

9 Court’s preliminary approval of this Agreement, and shall be provided on a monthly basis

10 thereafter until the termination of this case;

11

b. A list of the names of all inmates serving a SHU term for a SHU-eligible

12 offense with a nexus to an STG as of the first of the month following preliminary approval.

13 Subsequently, the names of all new inmates serving a SHU term for a SHU-eligible offense with

14 a nexus to an STG shall be provided on a monthly basis;

15

c. A list of the names of all inmates reviewed pursuant to Paragraph 25 and the

16 outcome of those placement reviews on a quarterly basis;

17

d. A list of the names of all inmates in each of the following programs: Step

18 Down Program, RCGP, and placed on Administrative SHU status. This document shall be

19 provided on a quarterly basis;

20

e. The total number of Rules Violation Reports issued to inmates in each of the

21 following programs: RCGP, Step Down Program, and Administrative SHU status. This data

22 shall be provided on a semi-annual basis;

23

f. The total number of Rules Violation Reports issued for assaults and batteries on

24 staff and other inmates, riots, weapon possession, attempted murder, and murder committed by

25 inmates in each of the following programs: RCGP, Step Down Program, and Administrative

26 SHU status. This data shall be provided on a semi-annual basis;

27

g. A list of the names of inmates who have not been progressed to the next

28 successive step in the Step Down Program during their 180-day Institution Classification
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1 Committee review, and a list of the names of inmates who have been retained in the RCGP during

2 their 180-day Institution Classification Committee review; these lists shall be provided on a semi-

3 annual basis;

4

h. The following documents shall be produced on a quarterly basis regarding all

5 inmates found guilty of a SHU-eligible offense with a nexus to an STG: (i) STG Unit

6 Classification Committee validation determinations; and (ii) the decision of the hearing officer to

7 find the inmate guilty of a SHU-eligible offense. Defendants also shall produce on a quarterly

8 basis a randomly chosen representative sample of the documents relied upon for the validation

9 determinations and RVR decisions for these inmates, including redacted confidential information.

10 The number of representative samples shall be sufficient to demonstrate CDCR’s practice and

11 procedure, but shall be reasonable in amount such that compliance with this request is not overly

12 burdensome;

13

i. Institution Classification Committee chronos documenting the decision to place

14 an inmate into the RCGP, on a quarterly basis;

15

j. All Departmental Review Board classification chronos in which the decision is

16 made to house an inmate in alternate placement, pursuant to Paragraph 27, due to a substantial

17 threat to their personal safety. Should Plaintiffs’ counsel dispute the determination made, or

18 require more information to determine whether a dispute may exist, Plaintiffs may request and

19 will receive a redacted copy of the documents relied upon by the Departmental Review Board;

20

k. All Departmental Review Board classification chronos in which an inmate is

21 placed on Administrative SHU status, pursuant to Paragraph 29; all non-confidential documents

22 relied upon for that placement determination; and, on a quarterly basis, a random representative

23 sample of redacted confidential documents relied upon;

24

l. All Institution Classification Committee chronos reflecting the committee’s

25 decision to not progress an inmate to the next successive step in the Step Down Program, or to

26 retain an inmate in the RCGP; this document shall be provided on a quarterly basis;

27

28
15 Settlement Agreement (C 09-05796 CW)

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1

m. For all inmates placed on Administrative SHU status, all 180-day Institution

2 Classification Committee review chronos, and all annual Departmental Review Board review

3 classification chronos;

4

n. A random, representative sample of Rules Violation Reports relied upon to

5 deny an inmate progression through the Step Down Program, including redacted confidential

6 sections, on a quarterly basis.

7

38. Any and all confidential information provided shall be produced in redacted form

8 where necessary, be designated as “Attorneys’ Eyes Only” as defined in the protective order in

9 this case, and shall be subject to the protective order. CDCR shall provide Magistrate Judge

10 Vadas, upon request, unredacted copies for in camera review in order to resolve any disputes in

11 accordance with Paragraphs 52 and 53, below.

12

39. Representative samples, as discussed in this Paragraph, shall be of sufficient size to

13 allow a determination regarding CDCR’s pattern and practice, but shall be reasonable in amount

14 such that compliance with the request is not overly burdensome. Any disputes regarding data and

15 document production shall be submitted to Magistrate Judge Vadas in accordance with the

16 dispute resolution and enforcement procedures set forth in Paragraphs 52 and 53 below.

17

K. ATTORNEY-CLIENT COMMUNICATIONS.

18

40. Plaintiffs’ counsel shall be entitled to meet and speak with all inmates covered by this

19 agreement. Institutional staff shall facilitate Plaintiffs’ counsel’s requests for reasonable access to

20 these individuals without undue delay, whether by telephone, mail, or personal visit. Defendants

21 shall facilitate Plaintiffs’ counsel having telephone conference calls with Plaintiff class

22 representatives as a group annually.

23 IV. TERMINATION

24

41. Plaintiffs shall have thirty days after the end of the twenty-four-month period to seek

25 an extension, not to exceed twelve months, of this Agreement and the Court’s jurisdiction over

26 this matter by presenting evidence that demonstrates by a preponderance of the evidence that

27 current and ongoing systemic violations of the Eighth Amendment or the Due Process Clause of

28 the Fourteenth Amendment of the United States Constitution exist as alleged in Plaintiffs’ Second
16 Settlement Agreement (C 09-05796 CW)

Case4:09-cv-05796-CW Document424-2 Filed09/01/15 Page18 of 25

1 Amended Complaint or Supplemental Complaint or as a result of CDCR’s reforms to its Step

2 Down Program or the SHU policies contemplated by this Agreement. Defendants shall have an

3 opportunity to respond to any such evidence presented to the Court and to present their own

4 evidence. If Plaintiffs do not file a motion to extend court jurisdiction within the period noted

5 above, or if the evidence presented fails to satisfy their burden of proof, this Agreement and the

6 Court’s jurisdiction over this matter shall automatically terminate, and the case shall be dismissed.

7

42. Brief or isolated constitutional violations shall not constitute an ongoing, systemic

8 policy and practice that violate the Constitution, and shall not constitute grounds for continuing

9 this Agreement or the Court’s jurisdiction over this matter.

10

43. If the Court’s jurisdiction and this Agreement are extended by Plaintiffs’ motion, they

11 shall both automatically terminate at the end of the extension period not to exceed 12 months and

12 the case shall be dismissed unless Plaintiffs make the same showing described in Paragraph 41.

13 Any successive extensions under this Paragraph shall not exceed twelve months in duration, and

14 any extension shall automatically terminate if plaintiffs fail to make the requisite showing

15 described in Paragraph 41.

16

44. To the extent that this Agreement and the Court’s jurisdiction over this matter are

17 extended beyond the initial twenty four-month period, CDCR’s obligations and production of any

18 agreed upon data and documentation to Plaintiffs’ counsel will be extended for the same period.

19 The role and duties of Magistrate Judge Vadas, as described in Paragraphs 48-50 and 52-53, shall

20 be coextensive with that of the Agreement, and in no event shall those roles and duties extend

21 beyond the termination of the Court’s jurisdiction.

22

45. At any time after the initial twenty-four month period, Defendants and CDCR may

23 seek termination of this case and the Court’s jurisdiction under the Prison Litigation Reform Act,

24 18 U.S.C. § 3626(b)(1)(A).

25

46. If there is a motion contesting Defendants’ compliance with the terms of this

26 Agreement pending at the time the case is otherwise to be terminated, the Court will retain limited

27 jurisdiction to resolve the motion.

28
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1 V. RELEASE

2

47. It is the intention of the parties in signing this Agreement that upon completion of its

3 terms it shall be effective as a full and final release from all claims for relief asserted in the

4 Second Amended Complaint and the Supplemental Complaint. Nothing in this Agreement will

5 affect the rights of Plaintiffs regarding legal claims that arise after the dismissal of this case.

6 VI. DISPUTE RESOLUTION AND ENFORCEMENT

7

A. MAGISTRATE JUDGE NANDOR J.VADAS.

8

48. To assist the parties in ensuring compliance with this Agreement, the parties agree

9 that Magistrate Judge Vadas will assume the role and duties as set forth in Paragraphs 48-50 and

10 52-53. These duties shall commence upon the Court’s preliminary approval of this Agreement 11 and shall continue in accordance with Paragraph 43.

12

49. Following the Court’s preliminary approval of this Agreement, Plaintiffs’ counsel,

13 CDCR officials, Defendants’ counsel, and Magistrate Judge Vadas shall meet on a monthly basis 14 or at other mutually agreed-upon dates to discuss questions and concerns regarding CDCR’s

15 compliance with the Agreement. The parties and Magistrate Judge Vadas may determine that

16 such meetings can occur on a less frequent basis, but no less than every three months. No later

17 than one week prior to the meetings contemplated by this Paragraph, Plaintiffs’ counsel shall

18 circulate an agenda to Defendants and Magistrate Judge Vadas setting forth the items to be 19 discussed. The meetings described in this Paragraph may be accomplished telephonically or by

20 other means. Defendants shall meet with Plaintiffs’ counsel and the four inmate representatives

21 semiannually to discuss progress with implementation of this Agreement. No later than one week 22 prior to these meetings, Defendants shall submit to Magistrate Judge Vadas and Plaintiffs’

23 counsel a compliance report setting forth progress toward implementation.

24

50. Magistrate Judge Vadas may conduct institutional visits and meet with any inmate

25 subject to or affected by the terms of this Agreement. Magistrate Judge Vadas may submit to the

26 parties and the Court a written compliance and progress review assessing the matters under his 27 purview according to this Agreement after 18 months, irrespective of any other motions or

28 matters under Magistrate Judge Vadas’s review. Among the matters addressed shall be a review
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1 of the conditions and programming in the RCGP and whether they comport with the design and

2 purpose of that unit as provided in this Agreement.

3

B. COMPLIANCE.

4

51. The parties shall agree on a mechanism by which CDCR shall promptly respond to

5 concerns raised by Plaintiffs’ counsel regarding individual class members.

6

52. If Plaintiffs contend that current and ongoing violations of the Eighth Amendment or

7 the Due Process Clause of the Fourteenth Amendment of the United States Constitution exist on a

8 systemic basis as alleged in the Second Amended Complaint or Supplemental Complaint or as a

9 result of CDCR’s reforms to its Step Down Program and SHU policies contemplated by this

10 Agreement, Plaintiffs shall provide Defendants with a brief written description of the basis for

11 that contention and may request that the parties meet and confer to resolve the issue. Defendants

12 shall respond to Plaintiffs’ contentions no later than 30 days after receipt of Plaintiffs’ written

13 description of the issue. If the parties are unable to resolve the issue informally, Plaintiffs may

14 seek enforcement of the Agreement by seeking an order upon noticed motion before Magistrate

15 Judge Vadas. Plaintiffs must demonstrate by a preponderance of the evidence that CDCR is in

16 material breach of its obligations under this Agreement. Defendants shall have an opportunity to

17 respond to any such evidence presented to Magistrate Judge Vadas and to present their own

18 evidence in opposition to any enforcement motion. If Plaintiffs have demonstrated by a

19 preponderance of the evidence a material noncompliance with these terms, then for the purposes

20 of Plaintiffs’ enforcement motion only, the parties agree that Plaintiffs will have also

21 demonstrated a violation of a federal right and that Magistrate Judge Vadas may order

22 enforcement consistent with the requirements of 18 U.S.C. § 3626(a)(1)(A). An order issued by

23 Magistrate Judge Vadas under this Paragraph is subject to review under 28 U.S.C. § 636 (b)(1)(B).

24

53. If Plaintiffs contend that CDCR has not substantially complied with any other terms

25 of this Agreement that do not amount to current, ongoing, systemic violations as alleged in the

26 Second Amended Complaint or Supplemental Complaint of the Eighth Amendment or the Due

27 Process Clause of the Fourteenth Amendment of the United States Constitution, they may seek

28 enforcement by order of this Court. Plaintiffs shall provide Defendants with a brief written
19 Settlement Agreement (C 09-05796 CW)

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1 description of the basis for that contention and may request that the parties meet and confer to

2 resolve the issue. Defendants shall respond to Plaintiffs’ contentions no later than 30 days after

3 they receive Plaintiffs’ written description of the issue. If the parties are unable to resolve the

4 issue informally, Plaintiffs may seek enforcement of the Agreement by seeking an order upon

5 noticed motion before Magistrate Judge Vadas. It shall be Plaintiffs’ burden in making such a

6 motion to demonstrate by a preponderance of the evidence that Defendants have not substantially

7 complied with the terms of the Agreement. Defendants shall have an opportunity to respond to

8 any such evidence presented to the Court and to present their own evidence in opposition to

9 Plaintiffs’ motion. If Plaintiffs satisfy their burden of proof by demonstrating substantial

10 noncompliance with the Agreement’s terms by a preponderance of the evidence, then Magistrate

11 Judge Vadas may issue an order to achieve substantial compliance with the Agreement’s terms.

12 An order issued by Magistrate Judge Vadas under this Paragraph is subject to review under 28

13 U.S.C. § 636(b)(1)(B).

14

C. RETALIATION.

15

54. Defendants shall not retaliate against any class representative, class member, or other

16 prisoner due to their participation in any aspect of this litigation or the Agreement. Allegations of

17 retaliation may be made to Magistrate Judge Vadas in accordance with the procedures set forth in

18 Paragraph 53.

19 VII. ATTORNEYS’ FEES AND COSTS

20

55. Defendants agree to pay Plaintiffs’ counsel attorneys’ fees and costs for work

21 reasonably performed on this case, including monitoring CDCR’s compliance with this

22 Agreement and enforcing this Agreement, and for work to recover fees and costs, at the hourly

23 rate set forth under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(d). Plaintiffs preserve

24 all arguments for attorneys’ fees and costs without limitation. The Prison Litigation Reform Act

25 applies to all applications for attorneys’ fees in this case. Plaintiffs shall have sixty days from the

26 entry of a final order approving this Agreement to file their motion for attorneys’ fees and costs

27 for work reasonably performed before that date. Subject to the provisions under 42 U.S.C. §§

28 1988 and 1997e, Plaintiffs’ motion may request an award that includes their expert fees. On a
20 Settlement Agreement (C 09-05796 CW)

Case4:09-cv-05796-CW Document424-2 Filed09/01/15 Page22 of 25

1 quarterly basis, Plaintiffs may file motions for reasonable attorneys’ fees accrued in monitoring

2 and enforcing CDCR’s compliance with this Agreement.

3

56. The notice to the class members shall explain that Plaintiffs will file a motion for

4 attorneys’ fees following entry of a final order approving the Agreement.

5 VIII. JOINT MOTION AND STAY OF PROCEEDINGS

6

57. The parties will jointly request that the Court preliminarily approve this Agreement,

7 conditionally certify a settlement class, require that notice of the proposed settlement be sent to

8 the classes, provide for an objection period, and schedule a fairness hearing. Prior to or

9 concurrent with the joint motion for preliminary approval, the parties will jointly request that the

10 Court stay all other proceedings in this case pending resolution of the fairness hearing. Following

11 the close of the objection period, the parties will jointly request that the Court enter a final order

12 approving this Agreement, retaining jurisdiction to enforce it, and continuing the stay of the case

13 pending the completion of the Agreement’s terms.

14

58. If this Agreement is not approved by the Court, the parties shall be restored to their

15 respective positions in the action as of the date on which this Agreement was executed by the

16 parties, the terms and provisions of this Agreement shall have no force and effect, and shall not be

17 used in this action or in any proceeding for any purpose, and the litigation of this action would

18 resume as if there had been no settlement.

19 IX. CONSTRUCTION OF AGREEMENT

20

59. This Agreement reflects the entire agreement of the parties and supersedes any prior

21 written or oral agreements between them. Any modification to the terms of this Agreement must

22 be in writing and signed by a CDCR representative and attorneys for Plaintiffs and Defendants to

23 be effective or enforceable.

24

60. This Agreement shall be governed and construed according to California law.

25

61. The parties waive any common-law or statutory rule of construction that ambiguity

26 should be construed against the drafter of this Agreement, and agree that the language in all parts

27 of this Agreement shall in all cases be construed as a whole, according to its fair meaning.

28
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 Case 4:09-cv-05796-CW Document 488 Filed 01/26/16 Page 1 of 2

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

OAKLAND DIVISION

11 TODD ASHKER, et al.,

C 09-05796 CW

12

13

v.

Plaintiffs, [PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT

14 GOVERNOR OF THE STATE OF
15 CALIFORNIA, et al.,

16

Defendants.

17

18

This civil-rights class-action case concerns the California Department of Corrections and

19 Rehabilitation’s (CDCR) policies and practices related to gang validation and management and its

20 use of segregated housing, including the Security Housing Unit (SHU) at Pelican Bay State

21 Prison. Plaintiffs claim that CDCR’s gang validation policies did not provide sufficient due

22 process and that confinement in Pelican Bay’s SHU for ten or more years violates the United

23 States Constitution.

24

The parties have entered into a settlement agreement (Settlement Agreement or Agreement)

25 (J. Lobel Decl. Ex. A) that would settle all claims for relief asserted in this case. The Court

26 granted preliminary approval of the Agreement on October 14, 2015. (ECF No. 445.)

27 Subsequently, Court-approved notice was timely disseminated to the classes. (ECF No. 456.)

28 The Court has thoroughly considered all comments and objections filed during the notice period.

[PROPOSED] ORDER GRANTING FINAL APPROVAL CLASS ACTION SETTLEMENT AGREEMENT

1

CASE NO. C 09-05796 CW

Case 4:09-cv-05796-CW Document 488 Filed 01/26/16 Page 2 of 2

1 On January 12, 2016, the parties filed a Joint Motion for Final Approval of Class Action

2 Settlement Agreement. The parties’ Joint Motion seeks an order providing that the Court: (1)

3 grant final approval of the Settlement Agreement; (2) retain jurisdiction to enforce the

4 Agreement; and (3) stay all proceedings pending completion of the Agreement’s terms. On

5 January 26, 2016, the Court held a Final Fairness Hearing at which counsel for Plaintiffs and

6 Defendants presented argument, and during which the Court considered whether the parties’

7 Agreement is fair, reasonable, and adequate.

8

The Court has presided over the proceedings in the above-captioned action and has

9 reviewed all the pleadings, records, and papers on file. The Court has reviewed the Joint Motion

10 for Final Approval, along with the Settlement Agreement and supporting documents, and has

11 considered the parties’ arguments concerning the settlement of this class action.

12

Therefore, with good cause appearing, the Court hereby orders as follows:

13

1. For the reasons stated in the Joint Motion for Final Approval, the Court finds, under

14 Rule 23(e) of the Federal Rules of Civil Procedure, that: (a) all notice requirements have been

15 fulfilled, and that notice was successfully directed in a reasonable manner to class members; and

16 (b) the Settlement Agreement is fair, adequate, and reasonable. On that basis, final approval of

17 the Settlement Agreement is hereby GRANTED, and the Agreement is incorporated by reference.

18

2. The Court finds that, for purposes of settlement only, the Settlement Agreement

19 meets the requirements of 18 U.S.C. § 3626(a)(1).

20

3. The stay of all proceedings in this case is continued pending the completion of the

21 terms of the Settlement Agreement.

22

4. The Court retains jurisdiction of this matter to enforce the Agreement’s terms.

23

IT IS SO ORDERED.

24 Dated: J_a_n_u_a_r_y_2_6__, 2016
25

26

_______________________________________ The Honorable Claudia Wilken
United States District Court Judge

27

28

[PROPOSED] ORDER GRANTING FINAL APPROVAL CLASS ACTION SETTLEMENT AGREEMENT

2

CASE NO. C 09-05796 CW

 
 Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 1 of 75

1 JULES LOBEL (pro hac vice)

Email: jll4@pitt.edu 2 RACHEL MEEROPOL (pro hac vice)

3

Email: rachelm@ccrjustice.org SAMUEL MILLER, State Bar No. 138942

4 Email: samrmiller@yahoo.com A. AZURE WHEELER (pro hac vice)

5 Email: awheeler@ccrjustice.org

CENTER FOR CONSTITUTIONAL RIGHTS 6 666 Broadway, 7th Floor

7

New York, NY 10012 Tel: (216) 614-6432

8 Fax: (212) 614-6499

9 CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com
10 BREMER LAW GROUP PLLC 11 1700 Seventh Avenue, Suite 2100
Seattle, WA 98101 12 Tel: (206) 357-8442
Fax: (206) 858-9730 13
Attorneys for Plaintiffs 14 (Additional counsel listed on signature page)
15

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

OAKLAND DIVISION

19 TODD ASHKER, et al.,
20 Plaintiffs,
21

Case No.: 4:09-cv-05796-CW CLASS ACTION

22

v.

23 GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,
24 Defendants.
25

26

MOTION FOR EXTENSION OF SETTLEMENT AGREEMENT BASED ON SYSTEMIC DUE PROCESS VIOLATIONS
Date: February 6, 2018 Time: 2:30 p.m. Location: TBD Judge: Hon. Claudia Wilken

27

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

28

MOTION FOR EXTENSION

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 2 of 75

1

NOTICE OF MOTION AND MOTION

2

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE THAT on February 6, 2018 at 2:30pm in a courtroom to be

4 determined, 1301 Clay Street, Oakland, Plaintiffs will move the Court pursuant to Paragraph 41

5 of the Settlement Agreement for an order extending that Agreement and the Court’s Jurisdiction

6 over this matter for one year, based on Plaintiffs’ demonstration by a preponderance of the

7 evidence of continuing, systemic violations of the Due Process Clause of the United States

8 Constitution, related to the Ashker v. Governor Second Amended Complaint and Settlement

9 Agreement. This motion is based on this notice, the accompanying Memorandum of Points and

10 Authorities, and all documents and arguments submitted in support thereof.

11

Plaintiffs have previously sought leave to expand the page limits for this motion. See ECF

12 Nos. 886, 889, 895. That motion remains pending.

13 DATED: November 20, 2017
14

Respectfully submitted,

15 By: /s/ Carmen E. Bremer

16

CARMEN E. BREMER (pro hac vice)

17

Email: carmen.bremer@bremerlawgroup.com

18

BREMER LAW GROUP PLLC 1700 Seventh Avenue, Suite 2100

19

Seattle, WA 98101

Tel: (206) 357-8442

20

Fax: (206) 858-9730

21

22

23

24

25

26

27

28 MOTION FOR EXTENSION

1

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1

TABLE OF CONTENTS

2

Page

3 I. HISTORY OF THE CASE ................................................................................................. 1

4 II. SUMMARY OF THE ARGUMENT.................................................................................. 3

5 III. 6 7 8 9 10 11 12 13 14 15 16 17 18

CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY SYSTEMICALLY MISUSING CONFIDENTIAL INFORMATION TO RETURN ASHKER CLASS MEMBERS TO SOLITARY CONFINEMENT. ................................. 5

A. CDCR’S SYSTEMIC FAILURE TO ACCURATELY DISCLOSE CONFIDENTIAL INFORMATION VIOLATES DUE PROCESS. ..................... 7

1.

RVR 1.................................................................................. 9

2.

RVR 2................................................................................ 11

3.

,

,

&

........... 11

4.

....................................................................................... 14

5.

................................................................................................ 15

6.

.............................................................. 15

7.

........... 16

8.

........................................................................................... 17

9.

........................................................................................... 17

B. CDCR’S PATTERN OF PERFUNCTORY AND PRO FORMA RELIABILITY DETERMINATIONS VIOLATE DUE PROCESS.............................................. 18

19

1.

...................................................................................... 19

20

2.

21

3.

.............................................................................................. 20 ............................................................................................ 22

22

4.

........................................................................ 24

23

5.

.............................................................................................. 25

24

6.

............................................................................................. 27

25

7.

......................................................................................... 29

26
27 IV.
28

C. RELIEF FOR CDCR’S SYSTEMIC DUE PROCESS VIOLATIONS INVOLVING CONFIDENTIAL INFORMATION. ............................................ 29
CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY PLACING AND RETAINING CLASS MEMBERS IN THE RCGP WITHOUT ADEQUATE

MOTION FOR EXTENSION

i

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Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 4 of 75

PROCEDURAL PROTECTIONS. ................................................................................... 30 1

A. RCGP DESIGNATION IS ATYPICAL AND SIGNIFICANT. .......................... 31 2

1. The RCGP Imposes Exceptional Physical Restrictions. ........................... 32 3

a. RCGP Prisoners Have Limited Ability to Enjoy Contact Visits... 32 4

b. RCGP Prisoners Have Limited Social Interaction and Job

5

Opportunities. ................................................................................ 34

6

c. RCGP Placement Limits Parole Eligibility. .................................. 35

7

2. RCGP Placement Is Prolonged. ................................................................ 36

8

3. Placement in the RCGP Is Stigmatizing. .................................................. 38

9

4. RCGP Designation Is Highly Unusual. ..................................................... 39

10

B. RCGP CLASSIFICATION AND VERIFICATION PROCEDURES ARE

CONSTITUTIONALLY DEFICIENT. ................................................................ 40 11

1. Prisoners’ Private Interest in Avoiding RCGP Placement

12

Is Significant. ............................................................................................ 40

13

2. There Is a Significant Risk of Erroneous Deprivation Under Current

Procedures. ................................................................................................ 41 14

a. RCGP Prisoners Are Denied Adequate Notice and Review. ........ 41 15

b. Safety Threat Reviews Lack Sufficient Checks and Balances...... 44 16

3. Additional Procedures Would Safeguard Against Erroneous

17

Deprivations. ............................................................................................. 46

18 19 20 21
V. 22 23 24 25

4. Government Interests Would Be Better Served by Implementing Meaningful Procedures. ............................................................................ 47
C. RELIEF FOR CDCR’S SYSTEMIC DUE PROCESS VIOLATIONS INVOLVING PLACEMENT AND RETENTION OF PRISONERS IN THE RCGP. ..................................................................................................... 47
CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY USING UNRELIABLE GANG VALIDATIONS TO DENY CLASS MEMBERS A FAIR OPPORTUNITY TO SEEK PAROLE. ............................................................................ 48
A. THE PROCESS USED TO VALIDATE PRISONERS AS GANG AFFILIATES, WHICH IS NOW BEING USED TO DENY CLASS MEMBERS A FAIR OPPORTUNITY FOR PAROLE, WAS UNCONSTITUTIONAL. ..................................................................................... 50

26

1. Gang Validation Procedures Lacked Sufficient Checks and Balances. .... 50

27

2. Gang Validation Procedures Gave Prisoners Misleading Notice

About How to Avoid Revalidation............................................................ 53 28

MOTION FOR EXTENSION

ii

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3. Gang Validation Review Every Six Years Was Insufficiently

1

Frequent as a Matter of Law. .................................................................... 56

2

B. PLAINTIFFS HAVE A CONSTITUTIONALLY PROTECTED LIBERTY

INTEREST IN PAROLE CONSIDERATION AND IN AVOIDING GANG

3

VALIDATION. ..................................................................................................... 58

4

C. CDCR’S CONTINUED USE AND RETENTION OF GANG

VALIDATIONS HAS A SYSTEMIC AND ONGOING EFFECT IN THE

5

DENIAL OF PAROLE. ........................................................................................ 59

6

1. The Blanket Denial of Proposition 57 Parole Consideration Based on

Gang Validation is Unconstitutional. ........................................................ 59 7

2. CDCR’s Use of Past Gang Validations to Prevent Class Members

8

with Life Sentences from the Opportunity for Parole Violates the

Constitution. .............................................................................................. 61 9

D. RELIEF FOR CDCR’S SYSTEMIC DUE PROCESS VIOLATIONS

10

INVOLVING THE FAIR OPPORTUNITY FOR PAROLE ............................... 64

11 VI. CONCLUSION ................................................................................................................. 64

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 MOTION FOR EXTENSION

iii

CASE NO. 4:09-CV-05796-CW

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Aref v. Lynch,

5

833 F.3d 242 (D.C. Cir. 2016) .............................................................................. 33, 37, 38, 39

6 Arnold v. Evans, No. C 08-1889 CW (PR), 2010 U.S. Dist. LEXIS 13990 (N.D. Cal. Jan. 25, 2010)................ 8

7 Broussard v. Johnson,

8

253 F.3d 874 (5th Cir. 2001)..................................................................................................... 5

9 Brown v. Or. Dep’t of Corr., 751 F.3d 983 (9th Cir. 2014)................................................................................. 31, 37, 56, 57
10

11

Cardenas v. Tulare Cty. Sheriff’s Dep’t, No. 1:11-cv-01394-JLT (PC), 2013 U.S. Dist. LEXIS 69315 (E.D. Cal. May 15, 2013) ...... 38

12 Cato v. Rushen,

13

824 F.2d 703 (9th Cir. 1987)................................................................................................... 26

14 Clark v. California, No. C 96-1486-FMS, 1996 U.S. Dist. LEXIS 21630 (N.D. Cal. Oct. 1, 1996)...................... 37
15

16

Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993), vacated in part and amended by 61 F.3d 751 (9th Cir. 1995) 56

17 Freeman v. Rideout,

18

808 F.2d 949 (2d Cir. 1986) ...................................................................................................... 8

19 Greenholtz v. Inmates of Neb. Penal and Correctional Complex,

442 U.S. 1, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) ............................................ 41, 54, 56, 58 20

Haggard v. Curry,

21

631 F. 3d 931 (9th Cir. 2010).................................................................................................. 58

22 Hanline v. Borg,

23

No. 93-15979, 1994 U.S. App. LEXIS 10331 (9th Cir. Apr. 29, 1994) ............................... 8, 9

24 Harden-Bey v. Rutter,

524 F.3d 789 (6th Cir. 2008)................................................................................................... 38

25

Hayward v. Marshall,

26

603 F. 3d 546 (9th Cir. 2010) (en banc) .................................................................................. 58

27 Hensley v. Wilson,

28

850 F.2d 269 (6th Cir. 1988)..................................................................................................... 5

MOTION FOR EXTENSION

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Hewitt v. Helms,

1

459 U.S. 460 (1983). MTD Order at 18 .............................................................................. 2, 56

2 Jones v. Gomez,

3

No. C-91-3875 MHP, 1993 U.S. Dist. LEXIS 12217 (N.D. Cal. Aug. 23, 1993) .................... 6

4 Keenan v. Hall,

83 F.3d 1083 (9th Cir. 1996)............................................................................................ passim 5

Koch v. Lewis,

6

216 F. Supp. 2d 994, 2001 U.S. Dist. LEXIS 24466 (D. Ariz. Aug. 30, 2001) ...................... 37

7 In re Lawrence,

8

44 Cal. 4th 1181 (2008)........................................................................................................... 58

9 Madrid v. Gomez,

889 F. Supp. 1146, 1277 (N.D. Cal. 1995) ............................................................................... 6

10

Madrid v. Woodford,

11

No. C90-3094-T.E.H., 2004 U.S. Dist. LEXIS 11561 (N.D. Cal. June 24, 2004) 19, 20, 21, 22

12 Mathews v. Eldridge,

13

424 U.S. 319 (1976) ................................................................................................ 2, 41, 46, 47

14 McQueen v. Tabah, 839 F.2d 1525 (11th Cir. 1988)............................................................................................... 56

15

Neal v. Shimoda,

16

131 F.3d 818, 830 (9th Cir. 1997) ........................................................................................... 38

17 Overton v. Bazzetta,

18

539 U.S. 126 (2003) ................................................................................................................ 33

19 Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) ................................................................................................................ 19

20 Resnick v. Warden Hayes,

21

213 F.3d 443 (9th Cir. 2000)................................................................................................... 31

22 In re Rosenkrantz,

23

29 Cal. 4th 616 (2002)............................................................................................................. 58

24

Sandin v. Conner, 515 U.S. 472 (1995) ......................................................................................................... passim

25 People ex rel. Santiago v. Warden, Rikers Is. Corr. Facility,

26

793 N.Y.S.2d 722 (Sup. Ct. 2005) .......................................................................................... 29

27 Scales v. United States,

367 U.S. 203 (1961) ................................................................................................................ 55 28

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Serrano v. Francis,

1

345 F.3d 1071 (9th Cir. 2003) ..................................................................................... 33, 35, 59

2 Sherwood v. Tancrator,

3

No. ED CV 06-96-CJC (PLA), 2008 U.S. Dist. LEXIS 113356 (C.D. Cal. June 19, 2008) .. 38

4 Silva v. Sanford,

No. 91 Civ. 1776 (AJP) (KMW), 1998 U.S. Dist. LEXIS 5905 (S.D.N.Y. Apr. 23, 1998) ... 38 5

Sira v. Morton,

6

380 F.3d 57 (2d Cir. 2004) ........................................................................................................ 5

7 Swarthout v. Cooke,

8

562 U.S. 216 (2011) ................................................................................................................ 58

9 Taylor v. Rodriguez,

238 F.3d 188 (2d Cir. 2001) .................................................................................................... 54

10

Toevs v. Reid,

11

685 F.3d 903 (10th Cir. 2012), amended on reh’g by 685 F.3d (10th Cir. 2012)....... 41, 54, 56

12 Toussaint v. McCarthy,

13

801 F.2d 1080 (9th Cir. 1986)........................................................................................... 53, 56

14 Wilkinson v. Austin, 545 U.S. 209 (2005) ......................................................................................................... passim

15

Williams v. Foote,

16

No. CV 08-2838-CJC (JTL), 2009 US Dist. LEXIS 81958 (C.D. Cal. Apr. 30, 2009)............ 8

17 Wolff v. McDonnell,

18

418 U.S. 539 (1974) ...................................................................................................... 2, 3, 5, 7

19 Zimmerlee v. Keeney, 831 F.2d 183 (9th Cir. 1987)....................................................................................... 5, 6, 7, 18
20 Statutes
21 CAL. CODE REGS., tit. 15 § 2449.4(b)............................................................................................ 58
22
CAL. CODE REGS., tit. 15 § 3044(b) ............................................................................................... 35 23
24 CAL. CODE REGS., tit. 15 § 3044(d)-(j) (2017).............................................................................. 34

25 CAL. CODE REGS., tit. 15 §§ 3312-26 (2017) .................................................................................. 3

26 CAL. CODE REGS., tit. 15 § 3321 ................................................................................................... 20

27 CAL. CODE REGS., tit. 15 § 3321(b) (2017) ................................................................... 7, 18, 19, 22

28 CAL. CODE REGS., tit. 15 § 3321(c) (2017) ................................................................................... 21

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CAL. CODE REGS., tit. 15 § 3341.5(c) ...................................................................................... 56, 57 1 2 CAL. CODE REGS., tit. 15 § 3370(e)............................................................................................... 61 3 CAL. CODE REGS., tit. 15 § 3378.2 (2017)..................................................................................... 49 4 CAL. CODE REGS., tit. 15 § 3378.9(e)............................................................................................ 35

5 CAL.CODE REGS., tit. 15 § 3378.10(b) (2017)............................................................................... 57

6 CAL. CODE REGS., tit. 15 § 3378(c) (2013) ................................................................................... 51

7 CAL. CODE REGS., tit. 15 § 3378(d)............................................................................................... 51

8 CAL. CODE REGS., tit. 15 § 3378(e)............................................................................................... 54

9 CAL. CODE REGS., tit. 15 § 3378(f)................................................................................................ 57

10 CAL. CODE. REGS., tit. 15 § 3492 (2017)................................................................................. 59, 60

11 CAL. CONST. art. I, § 32(a)(1)........................................................................................................ 59

12 Fourteenth Amendment of the United States Constitution .................................................... passim
13

Other Authorities 14

MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/

15

active (last visited Nov. 16, 2017)........................................................................................... 55

16 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

17

http://www.cdcr.ca.gov/Facilities_Locator/PBSP.html (last visited Nov. 7, 2017) ......... 30, 31

18 CDCR COMPSTAT DAI STATISTICAL REPORT – 13 MONTH (HIGH SECURITY),

(rev. Oct. 13, 2017), available at http://www.cdcr.ca.gov/COMPSTAT/ .............................. 34 19

CDCR POPULATION PROJECTION REPORT 4 (May 2017), available at

20

http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services

21

_Branch/Projections/S17Pub.pdf ............................................................................................ 39

22

23

24

25

26

27

28 MOTION FOR EXTENSION

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

Through two years of monitoring California Department of Corrections and

3 Rehabilitation’s (“CDCR”) compliance with the Ashker v. Governor Settlement Agreement,

4 Plaintiffs have developed evidence of current and ongoing systemic violations of the Due Process

5 Clause of the Fourteenth Amendment of the United States Constitution related to Plaintiffs’

6 Second Amended Complaint (“SAC”) and CDCR’s resulting reforms. See Ashker v. Governor,

7 ECF No. 424-2 (“Settlement Agreement” or “Settlement”), ¶ 41. The violations exist in three

8 distinct areas: first, the misuse of unreliable confidential information to return class members to

9 solitary confinement; second, inadequate procedural protections related to placement and

10 retention of class members in the Restricted Custody General Population Unit (RCGP); and third,

11 the retention of CDCR’s old, constitutionally infirm, gang validations, which are being relied on

12 to deny class members a fair opportunity for parole. Each of these three, distinct, violations

13 requires extension of the Court’s jurisdiction over this matter.

14 I. 15

HISTORY OF THE CASE The Ashker Complaint set forth two basic claims. See generally, SAC, ECF No. 136.

16 First, Plaintiffs asserted that “the cumulative effect of extremely prolonged confinement, along

17 with denial of the opportunity of parole . . . and other crushing conditions of confinement at the

18 Pelican Bay SHU,” caused Plaintiffs significant physical and psychological harm. Order Denying

19 Motion to Dismiss (“MTD Order”), at 2, ECF. No. 191. Plaintiffs claimed that spending “22 and

20 one-half to 24 hours a day” alone in a cramped cell without telephone calls, contact visits and

21 vocational, recreational or educational programming deprived them of basic human needs,

22 including “normal human contact, environmental and sensory stimulation, mental and physical

23 health, physical exercise, sleep, nutrition, and meaningful activity.” Id. at 2, 8. Given the length

24 of the deprivation—at least eleven years—the Court found Plaintiffs’ Eighth Amendment claim

25 plausible. Id. at 9.

26

Second, “Plaintiffs allege[d] that CDCR’s procedures for assigning inmates to the SHU

27 [Security Housing Unit] and periodically reviewing those assignments” violate Due Process. Id.

28 at 11. The Second Amended Complaint asserted that SHU confinement deprived prisoners of a

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1 liberty interest due to its harsh conditions, lengthy duration and effect on the opportunity for

2 parole. SAC ¶ 196. This Court found the existence of a liberty interest undisputed and used the

3 three-part balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), to

4 determine that Plaintiffs adequately pled a due process violation. MTD Order at 12-18. The Court

5 did not decide whether Plaintiffs are entitled to the hearing procedures described in Wolff v.

6 McDonnell, 418 U.S. 539, 563-72 (1974), as Plaintiffs argued, or the more “minimal process” set 7 forth in Hewitt v. Helms, 459 U.S. 460 (1983). MTD Order at 18.1

8

The Settlement Agreement sought to remedy these violations. For prisoners held in SHU

9 based on gang or Security Threat Group (“STG”) validation, the Agreement created a process for

10 release to general population (GP) unless they had been found guilty of a SHU-eligible rule

11 violation with an STG-nexus within the prior two years. SA, ¶ 25. Other provisions focused on

12 changing CDCR’s policies and practices going forward. With respect to Plaintiffs’ Eighth

13 Amendment claim, the Settlement Agreement was designed to ensure that in the future, people in

14 California prisons would not have to suffer prolonged periods of solitary confinement, and thus it

15 abolished indeterminate SHU sentences for gang affiliation, allowing for SHU placement only

16 when a prisoner is found guilty of a SHU-eligible rule violation, and only for a determinate term

17 as set forth in new regulations. SA, ¶¶ 13, 14, Attach. B. The Agreement allows for the possibility

18 that a few men will be kept in “Administrative SHU,” but only if CDCR meets strict criteria. Id. ¶

19 29. The men would have receive more out-of-cell recreation and programming than prisoners

20 serving determinate SHU sentences, and meaningful annual and semi-annual reviews to identify

21 efforts to move them into less restrictive housing. Id.

22

Similarly, prisoners with serious safety concerns, and those who refuse to program or

23 receive numerous disciplinary reports in the Step Down Program (“SDP”), would not be housed

24 indefinitely in the SHU, but instead would be sent to a newly created Restricted Custody General

25

26 1 Several years after the Second Amended Complaint was filed, the Court granted Plaintiffs’ motion for leave to file a supplemental complaint to include a new class of prisoners who had
27 already spent ten years at the Pelican Bay SHU and who were subsequently transferred to another SHU. Order Granting Motion for Leave to File a Supplemental Complaint, ECF No.
28 387.

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1 Population unit (RCGP), designed to provide out-of-cell time and programming commensurate

2 with GP, and “increased opportunities for positive social interaction with other prisoners and staff

3 . . .”. SA, ¶ 28. The intent of these provisions was to ensure that going forward, only in extreme

4 circumstances could a prisoner spend more than ten years in the SHU and then only with

5 significantly more-out-of-cell recreation and programming than had previously been provided,

6 and with a recognized way out.

7

Other provisions of the Settlement Agreement were directed to remedying the due process

8 violations alleged in the Complaint and uncovered in the course of discovery and expert reports.

9 CDCR agreed that in the future, it would only place inmates in the SHU or SDP if they were

10 found guilty of a SHU-eligible rule violation through a prison disciplinary proceeding. CDCR, in

11 line with due process, requires that disciplinary proceedings utilize significant procedural

12 protections. See CAL. CODE REGS. tit. 15 §§ 3312-26 (2017); Wolff, 418 U.S. at 563-72. In this

13 way, the Settlement Agreement remedied one of Plaintiffs’ main demands – that prisoners not be

14 placed in SHU for any substantial period of time without Wolff procedures. See Plaintiffs’ Opp. to

15 Defs’ Mot. to Dismiss Second Amended Compl. at 12-14, ECF. No. 178.

16

Along with requiring Wolff procedures, the Settlement Agreement also specified that

17 CDCR must comply with its regulations governing the use and disclosure of confidential

18 information. SA, ¶ 34. “To ensure that the confidential information used against inmates is

19 accurate,” CDCR agreed to “develop and implement appropriate training for impacted staff

20 members who make administrative determinations based on confidential information as part of

21 their assigned duties . . .”. Id. This agreement was essential given the Complaint’s focus on how

22 CDCR’s prior use of confidential information presented a serious risk of erroneous deprivation of

23 liberty, and the evidence Plaintiffs amassed in expert and fact discovery regarding the same.

24 II. SUMMARY OF THE ARGUMENT

25

CDCR has removed nearly all of the original class members from the SHU; this is an

26 important result of the lawsuit and the Settlement Agreement. However, serious and systemic

27 constitutional defects continue which, if not rectified, may well result in many of the original

28 class members and other California prisoners being placed once again in the SHU for prolonged

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1 periods without due process of law, being placed and retained in RCGP without cause or a way to

2 transition to a true GP unit, and being denied parole based on gang validations imposed in

3 violation of due process. Thus, Plaintiffs move for a twelve-month extension of the Settlement

4 Agreement and the Court’s jurisdiction. SA, ¶ 41. To prevail, Plaintiffs must demonstrate by a

5 “preponderance of the evidence that current and ongoing systemic violations of . . . the Due

6 Process Clause of the Fourteenth Amendment . . . exist as alleged in Plaintiffs’ Second Amended

7 Complaint or Supplemental Complaint or as a result of . . . the SHU policies contemplated by this

8 Agreement.” Id. We make this showing below.

9

First, CDCR has completely failed in its implementation of Paragraph 34 of the

10 Settlement Agreement, regarding the use of confidential information. The result is a current and

11 ongoing violation of the due process requirement that confidential information used to find

12 prisoners guilty of rule violations, and to send them to solitary for years on end, be adequately

13 disclosed and determined reliable by the relevant fact-finder.

14

Second, the Settlement Agreement created enhanced procedural protections to be used

15 when CDCR suspects that a prisoner faces a threat to their safety in GP and requires placement in

16 the RCGP. CDCR has failed to implement these protections in a fair and meaningful way. As

17 described below, the unusual and onerous conditions of the RCGP are atypical and significant

18 compared to the ordinary incidents of prison life, and thus give rise to a liberty interest. Yet, as

19 implemented, CDCR’s RCGP placement and retention procedures fail to ensure reliable decision-

20 making.

21

Third, the Settlement Agreement’s prohibition on placing prisoners in the SHU based on

22 gang validation should have ended the previous de facto bar on parole for gang affiliates. But

23 CDCR has continued to maintain and rely on its old gang validations, without acknowledging

24 their flawed nature. CDCR uses validation decisions to bar Ashker class members from eligibility

25 for Proposition 57 relief, and the validations also infect non-Prop 57 parole hearings. Because the

26 old validation procedures violated due process, they cannot be relied on to deprive prisoners of

27 their liberty interest in an opportunity for parole, and must be expunged.

28

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III. 1 2

CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY SYSTEMICALLY MISUSING CONFIDENTIAL INFORMATION TO RETURN ASHKER CLASS MEMBERS TO SOLITARY CONFINEMENT.

3

Paragraph 34 of the Settlement Agreement requires CDCR to adhere to its regulations

4 about consideration and reliance on confidential information, and to train relevant staff

5 accordingly. CDCR’s failure to do so has resulted in widespread and systemic violations of due

6 process, evidenced by CDCR’s reliance on fabricated or inadequately disclosed confidential

7 information, and failure to independently assess the reliability of confidential evidence.

8

While the full spectrum of constitutional protections is not available to prisoners, “there is

9 no iron curtain drawn between the Constitution and the prisons of the country,” and prisoners do

10 not forfeit all constitutional protections by reason of their conviction and confinement. Wolff, 418

11 U.S. at 555-56. In particular, while due process permits prison officials to use confidential

12 information in disciplinary proceedings, the Ninth Circuit, consistent with other Courts of

13 Appeal, has emphasized “the importance of reliability” in connection with such use. Zimmerlee v.

14 Keeney, 831 F.2d 183, 186 (9th Cir. 1987).

15

The reliability of confidential information cannot be assumed based on the assertion of an

16 investigating official. Rather, the hearing official or board must make an independent assessment

17 of the credibility of statements by confidential informants. Sira v. Morton, 380 F.3d 57, 77-78 (2d

18 Cir. 2004) (requiring hearing officer to make “independent assessment” of informant credibility

19 to ensure fairness); Hensley v. Wilson, 850 F.2d 269, 276-77 (6th Cir. 1988) (To simply accept

20 the investigating officer’s conclusion is “recordkeeping” and “not fact finding.” To pass

21 constitutional muster, the Committee must have an evidentiary basis “to determine for itself that

22 the informant’s story is probably credible”) (emphasis added); Broussard v. Johnson, 253 F.3d

23 874, 876-77 (5th Cir. 2001) (“Courts generally require that the disciplinary board independently

24 assess the reliability of the informant’s tip based on some underlying factual information before it

25 can consider the evidence”).

26

Consistent with these guidelines, the Ninth Circuit requires that reliability be established

27 by: “(1) the oath of the investigating officer appearing before the committee as to the truth of his

28 report that contains confidential information, (2) corroborating testimony, (3) a statement on the

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1 record by the chairman of the committee that he had firsthand knowledge of sources of

2 information and considered them reliable based on the informant’s past record, or (4) an in

3 camera review of the documentation from which credibility was assessed.” See Zimmerlee, 831

4 F.2d at 186-87. Strict adherence to these requirements is essential, given the high risk that

5 prisoners with incentives to lie will provide false information. Jones v. Gomez, No. C-91-3875

6 MHP, 1993 U.S. Dist. LEXIS 12217, at *11 (N.D. Cal. Aug. 23, 1993) (“[G]iven the differences

7 that arise between prisoners due to jealousies, gang loyalties, and petty grievances, and the

8 unfortunate discrete instances where guards seek to retaliate against prisoners, to rely on

9 statements by unidentified informants without anything more to establish reliability is worse than

10 relying on no evidence: ‘It is an open invitation for clandestine settlement of personal

11 grievances’”) (citing Baker v. Lyles, 904 F.2d 925, 934-35 (4th Cir. 1990)).

12

The requirement that the Hearing Officer independently judge reliability requires more

13 than a pro forma review of the confidential information. As Judge Henderson noted in Madrid v.

14 Gomez, prison officials “must do more than simply invoke ‘in a rote fashion’ one of the five

15 criteria” listed for reliability in CDCR’s regulations; they “must also show that the ‘realities of

16 the particular informant report’ were taken into consideration.” 889 F. Supp. 1146, 1277 (N.D.

17 Cal. 1995).

18

To monitor CDCR’s compliance with Paragraph 34 of the Settlement Agreement and the

19 corresponding dictates of due process, Plaintiffs’ counsel reviewed the documents CDCR

20 produced on a quarterly basis related to prisoners found guilty of a SHU-eligible rule violation

21 with an STG nexus. SA, ¶ 37(h). Of about forty sets of files, more than half involved men 22 returned to SHU for various “conspiracy” or attempted murder charges.2 Declaration of Rachel

23 2 The relatively low number of files may result from the fact that many such cases are referred to
24 the District Attorney’s office, which may take months to decide whether to prosecute, and can delay adjudication of the rule violation. It is also the result of CDCR’s misinterpretation of the
25 requirement to produce documents related to “all inmates found guilty of a SHU-eligible offense with an STG-nexus” to only require production of documents related to STG-validated
26 prisoners found guilty of a SHU-eligible offense with a STG-nexus. This issue has been fully briefed, and the parties are awaiting guidance from the Court. See ECF Nos. 793, 807, 822. It is
27 likely that dozens of non-validated prisoners have been sent to solitary for equally questionable conspiracies; should the Court order the production of their documents, Plaintiffs may seek
28 leave to supplement this motion.

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1 Meeropol in Support of Plaintiffs’ Motion to Extend the Settlement Agreement (“Meeropol

2 Decl.”), ¶ 3. Of twenty-four conspiracy or attempted murder guilty findings, twenty (over 80%)

3 violate due process, because CDCR officials (a) fabricated or improperly disclosed confidential 4 information, or (b) failed to independently ensure the confidential material was reliable. 3

5

Despite CDCR’s agreement to train its administrative staff to ensure that the confidential

6 information they rely on is accurate, the evidence shows that CDCR administrative officials

7 repeatedly have dealt with this information in a slipshod, careless way, demonstrating no effort to

8 ensure that confidential information is accurate, reliable, and properly disclosed. This is the

9 continuation of a problem that infected CDCR’s old gang validation procedures (see generally

10 section V infra; see also n.30) and motivated Plaintiffs to insist that validation alone no longer

11 lead to SHU placement. High-level CDCR officials have even perpetuated the fabrication of

12 confidential information, illustrating that the problem involving confidential information is not

13 simply one of lower level officials, but continues to exist on a systemic basis across the entire

14 department.

15

A. CDCR’s Systemic Failure to Accurately Disclose Confidential Information

Violates Due Process. 16

17

When confidential information is used against a prisoner, California regulations require

18 the prisoner be provided with, “[a]s much of the information as can be disclosed without

19 identifying its source including an evaluation of the source’s reliability; [and] a brief statement of

20 the reason for the conclusion reached…”. CAL. CODE REGS., tit. 15 § 3321(b)(3)(B) (2017).

21 Fabricated or otherwise substantially flawed disclosures violate due process, as a prisoner without

22 knowledge of the evidence used against him, and the claimed basis for reliability, cannot hope to

23 “marshal the facts and prepare a defense” (Wolff, 418 U.S. at 564) or challenge the evidence for

24 failing to meet Zimmerlee standards.

25

26

3 Plaintiffs’ counsel have also received relevant documents directly from the prisoners, and we

27 discuss some of these cases as well, as they present further evidence of the systemic nature of

CDCR’s misuse of confidential information. See infra Section A, regarding

28

.

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1

Plaintiffs recognize that offering false evidence of misconduct in a prison disciplinary

2 hearing does not, in itself, violate due process. See, e.g., Freeman v. Rideout, 808 F.2d 949, 951-

3 52 (2d Cir. 1986). But the introduction of fabricated confidential material presents a different

4 problem. In the normal course of events, when non-confidential, false, evidence is introduced, the

5 prisoner can challenge that evidence within a disciplinary proceeding. So long as the hearing

6 accords with due process protections, the Constitution is satisfied. See id. at 953. But when

7 confidential information is fabricated, or not properly disclosed, a prisoner has no opportunity to

8 defend herself, or to challenge reliability. Cf. Williams v. Foote, No. CV 08-2838-CJC (JTL),

9 2009 US Dist. LEXIS 81958, at *35-36 (C.D. Cal. Apr. 30, 2009) (While the filing of a false

10 disciplinary report is not a constitutional violation per se, it may state a claim if the prisoner is

11 deprived of procedural due process in connection with proceedings flowing from such false

12 report). Because a prisoner cannot rebut false confidential information, its use violates due

13 process. Cf. Freeman, 808 F.2d at 952 (citing Morrison v. Lefevre, 592 F. Supp. 1052, 1073

14 (S.D.N.Y. 1984)); see also Hanline v. Borg, No. 93-15979, 1994 U.S. App. LEXIS 10331, at

15 *11-14 (9th Cir. Apr. 29, 1994) (allegations of fabricated evidence and sham disciplinary hearing

16 state due process claim); Arnold v. Evans, No. C 08-1889 CW (PR), 2010 U.S. Dist. LEXIS

17 13990 (N.D. Cal. Jan. 25, 2010) (refusing to dismiss an amended pro se complaint challenging

18 use of false and unreliable confidential information).

19

At odds with the demands of due process and CDCR’s own regulations, Plaintiffs’

20 document review has uncovered repeated failures by CDCR to accurately and fully disclose

21 confidential information. CDCR has repeatedly “disclosed” fabricated evidence that does not

22 actually exist, has misstated confidential information to make it appear corroborated when it is

23 not, has failed to disclose exculpatory evidence, and has provided disclosures so vague and

24 general as to prevent any defense. These examples are not “isolated violations,” (see SA, ¶ 42)

25 but reflect a systemic problem, found in multiple rule violation reports (“RVRs”) throughout the

26 monitoring period, across many prisons, and involving personnel at disparate levels of authority.

27 Moreover, this trend is particularly cruel, in that it has resulted in the return to solitary of dozens

28 of class members only recently released from decades in SHU.

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1

1.

RVR 1

2

was found guilty of

with an STG nexus

3 at California State Prison -- Los Angeles County. See Meeropol Decl., Ex. A (

RVR), at 1.

4 As shown below, this finding was based on fabricated confidential information; when two

5 confidential informants provided inconsistent reasons for the alleged conspiracy, CDCR officials

6 doctored the disclosure to make it appear that the evidence was actually consistent, and thus

7 corroborated, when it was not.

8

9

10

11

12

13

14

15

16

CDCR regulations require that confidential information is documented in a confidential

17 memorandum, and summarized for the prisoner in a confidential disclosure form. A disclosure

18 form provided to

on February 2, 2017, summarized the information reported by CI1 as

19 recounted above. See Meeropol Decl., Ex. B (

2/2/17 Conf. Discl.). Plaintiffs received this

20 disclosure from

directly. See Meeropol Decl., ¶ 6. However, when CDCR produced

21

RVR packet,

22

23

24

25

26

27

28

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1

In other words, CDCR’s documentation first indicated

2

3

4

. This chain of events suggests purposeful fabrication of informant testimony, to render it

5 consistent.

6

Moreover, none of these confidential disclosures accurately reflect

7

8

9

10

11

12

13

14

15

That “confidential information” appears to have been made

16 up out of whole cloth.

17

Unsurprisingly, the RVR and disclosures also misstate the evidence provided by

18

19

20

21

22

23

24

25

26

. These errors are not

27 harmless; without knowledge of the general substance of the confidential evidence used against

28 him,

could not challenge it, nor could he challenge the reliability of the sources, not

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1 knowing that they actually provided inconsistent information.

2

2.

RVR 2

3

On the same day he was provided the

RVR,

was also charged, and later

4 found guilty, of

. Meeropol Decl., Ex. D (

RVR 2),

5 at 2.

6

. Again, the RVR and disclosure provided to

misstate

7 the confidential information; and again, the misstatements appear to be purposeful, to make

8 contradictory evidence appear consistent, and thus reliable.

9

10

11

12

13

14

15

16

. This is

17 no careless mistake: again CDCR appears to have purposefully misstated confidential

18 information from one informant to make it consistent with information from another informant.

19 See id., Ex. D (

RVR 2), at 13 (finding second confidential memorandum reliable because

20 other confidential source independently provided the same information).

21

3.

,

,

&

22

RVRs are not isolated errors. The Court is already familiar with the case of four

23 class members—

—found

24 guilty of conspiracy to commit murder with an STG nexus at Pelican Bay State Prison. See Order

25 Denying De Novo Motion, ECF No. 771.4

and his alleged co-conspirators received

26 4 Plaintiffs do not seek to re-litigate the Court’s prior ruling, finding no violation of Paragraph

27

34 with respect to the

proceedings. Rather, CDCR’s treatment of the

alleged co-

conspirators is offered for its value “towards a showing of a violation of due process.” Id. at 10.

28

We recognize that the Court has rejected individual instances of fabrication and improper disclosure in the context of enforcing the Settlement Agreement; but Plaintiffs’ current

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1

2

3

4

CDCR learned of its mistake when it received

5

. Id.

were provided with new confidential disclosures which

6 completely mischaracterized

7

. See Meeropol Decl., Ex. L ( 9/21/16 Confid. Discl.).

8

9

7.

10

Even when confidential information is not fabricated or misstated, it is frequently not

11 disclosed in full, or is disclosed in too vague a way as to allow for its reliability to be tested.

12 According to CDCR paperwork, on May 24, 2017, approximately

13

14 Meeropol Decl., Ex. M (

RVR).

15

16

17

18

19

20

21

22

23

24

25

This information could significantly aid prisoners in arguing

26

. But because it was not

27 disclosed, the men cannot mount this defense.

28

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1 to a completely different alleged conspiracy, suggests that these disclosure forms are treated in

2 rote, canned fashion by CDCR staff.

3

The above examples are not “brief or isolated” incidents (see SA¶ 42), but rather involve

4 fifteen prisoners, nine different conspiracies, four different prisons, and CDCR officials at every

5 level. Some of the erroneous disclosures of confidential information seem purposeful, others

6 merely negligent, but none are harmless. Each of these class members was sent back to solitary

7 confinement after being told that certain damning, corroborated, confidential information existed

8 against them, when this was not the case. The men, who have access only to the confidential

9 disclosures and not the underlying confidential evidence, have no way to point out discrepancies

10 or to attack the evidence as unreliable, and thus have no way to defend themselves from the

11 claimed rule violations. They do not know of it to this day. It is only due to the existence of the

12 monitoring period that counsel was able to learn of the issue. Meanwhile, almost all the men

13 described above remain in solitary.

14

B. CDCR’s Pattern of Perfunctory and Pro Forma Reliability Determinations

Violate Due Process. 15

16

Compounding its failure to accurately and fully disclose confidential information, CDCR

17 systemically relies on such evidence without ensuring its reliability. The Ninth Circuit has

18 emphasized “the importance of reliability” in connection with prison officials’ use of confidential

19 information. See Zimmerlee, 831 F. 2d at 186. CDCR regulations are designed to meet this

20 standard, and mandate that only reliable confidential information is to be used in decision-

21 making. Thus, title 15, section 3321(b)(1) of the California Code of Regulations states that no

22 decision will be based upon information from a confidential source, unless the information is

23 corroborated by another source, or “other circumstantial evidence surrounding the event and the

24 documented reliability of the source satisfies the decision maker(s) that the information is true”

25 (emphasis added). “Any document containing information from a confidential source shall

26 include an evaluation of the source’s reliability,” a brief statement of the reason for the

27 conclusion reached, and a statement of the reason why the information or source is not

28 disclosed.” tit. 15, § 3321(b)(2). And to ensure that the prisoner understands CDCR’s reasoning

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1 as to why the information is reliable, section 3321(b)(3)(B) requires that the documentation given

2 to the prisoner shall include, “[a]s much of the information as can be disclosed without

3 identifying its source including an evaluation of the source’s reliability; [and] a brief statement

4 of the reason for the conclusion reached . . . ” (emphasis added). These regulations have been

5 held to meet due process requirements “so long as [they are] not applied in a rote fashion, without

6 regard to the realities of the particular informant.” See Madrid, 889 F. Supp. at 1277.

7

Here, the documents show repeated failures to ensure confidential information is reliable,

8 including unwarranted assumptions by CDCR officials at every level that confidential

9 informants’ statements are reliable, hearing officers’ blind reliance on the investigating officers’

10 reliability determination, and findings of corroboration not supported by the factual context. This

11 problem is not confined to one or two isolated incidents; rather, the extent of CDCR’s failings,

12 and the fact that they exist at all levels of the department, evidences a systematic violation. See

13 e.g. Madrid v. Woodford, No. C90-3094-T.E.H., 2004 U.S. Dist. LEXIS 11561, at *189 (N.D.

14 Cal. June 24, 2004) (failure of a specific prominent investigation is “illustrative of a pattern of

15 conduct in which CDC officials at the highest level demonstrate an unwillingness and inability to

16 investigate and discipline serious abuses of force by correctional officers”); cf. Pembaur v. City of

17 Cincinnati, 475 U.S. 469, 481-82 (1986) (actions by high-level government officials can establish

18 municipal policy for Monell purposes). This systemic violation has serious consequences. Many

19 of the men described below have been returned to solitary on the word of one confidential

20 informant, while the CDCR hearing officers required to assess the reliability of that information

21 have completely failed to do so.

22

1.

23

First, the evidence shows that Senior Hearing Officers required by due process to make

24 their own reliability assessment frequently fail to do so.

provides one example.

25

a “non-validated STG-II member” was issued an RVR for

26 27 (

for the furtherance of the Mexican Mafia at Centinela Prison. See Meeropol Decl., Ex. U RVR), at 3.6

28 6

provides an example of an RVR that should have been produced under the plain

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1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

, is precisely the kind of “rote” determination

21 condemned by Madrid, 889 F. Supp. at 1277.

22

2.

23

This reliance on confidential material already determined unreliable by other staff is not

24 limited to the disciplinary process. The Departmental Review Board (DRB) decision that

25

26

27 language of the Settlement Agreement, but has been withheld by CDCR. See supra, n.2. Given

the issues noted above, review of the confidential material underlying

rule violation

28 is essential.

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1

2

3

4

5

6

7

8

9

.

10

The inaccuracies also appear in the confidential disclosure form

11

12

13

14

15

16

17

Even worse, according to the confidential disclosure,

18

19

20

21

22

23

Apparently none of the correctional officials who prepared the disclosures, the hearing

24 officers who made guilty findings, or the chief disciplinary officers who reviewed those findings,

25 read the actual underlying confidential memorandum to determine what the confidential

26 informant said, and whether his statements could be deemed reliable. That so many different

27 officials, at three different levels, repeated and relied on inaccurate confidential information

28

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1

2

3

4

5

This investigative leap is remarkable, and certainly cannot

6 corroborate the informants’ gossip.

7

6.

8

was also found guilty of

9

deemed reliable in a perfunctory, rote fashion. According to CDCR,

10

11

12

13

14

15

16

17

CDCR did not produce to Plaintiffs the confidential memorandum upon which

18 guilty finding was based, thus a full analysis of the case is impossible. Meeropol Decl., ¶ 45.

19 Nonetheless, the documentation provided is internally contradictory, and other evidence gathered

20 by

casts the reliability of the confidential informant into serious doubt, yet CDCR officials

21 have either ignored this information or deliberately squelched it.

22

23

24

25

26

27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1

2

3

4

5

6

7

7.

8

While Plaintiffs’ primary concern is with the due process implications of CDCR’s failure

9 to assess the reliability of confidential information, it is also worth noting CDCR’s reliance on

10 non-confidential material that is equally unreliable.

11

was found guilty of

12

13

14

15

16

. See People ex rel.

17 Santiago v. Warden, Rikers Is. Corr. Facility, 793 N.Y.S.2d 722 (Sup. Ct. 2005) (holding

18 prisoner could not be sent to solitary based on allegation in an indictment, as an indictment is not

19 evidence).

20

C. Relief for CDCR’s Systemic Due Process Violations Involving Confidential

Information. 21

22

The above evidence shows systemic due process violations through California’s misuse of

23 confidential information to find class members guilty of rules violations, and return them to

24 solitary confinement. Extension of the Settlement Agreement is necessary to monitor this issue,

25 including the continued production of documentation related to all SHU-eligible RVRs with an

26 STG nexus. Given the extensive problems uncovered with respect to conspiracy RVRs, the Court

27 should order production of all SHU-eligible conspiracy RVRs with an STG-nexus, along with all

28 supporting confidential information, on a monthly basis as soon as they are issued, rather than on

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1 a quarterly basis after a guilty finding. This is essential to avoid class members’ prolonged

2 placement in administrative segregation or SHU based on fabricated or unreliable evidence.

3

Moreover, given the extent of the problem and the mounting evidence that CDCR is

4 engaged in the purposeful misrepresentation and fabrication of confidential information, other

5 forms of relief may also be necessary, including independent oversight of the department’s use of

6 confidential information, and the creation of a mechanism for prisoners who are currently serving

7 prolonged solitary terms based on confidential information to appeal those disciplinary

8 proceedings to an independent fact-finder. The magistrate judge or a special master may be better

9 suited than Plaintiffs’ counsel to review all confidential files upon which conspiracy charges are

10 based for accuracy and reliability, and could report to the Court on a quarterly basis as to whether

11 CDCR has come into compliance with due process requirements.

12 IV. 13 14

CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY PLACING AND RETAINING CLASS MEMBERS IN THE RCGP WITHOUT ADEQUATE PROCEDURAL PROTECTIONS.
The Restricted Custody General Population (RCGP) unit was established by the

15 Settlement Agreement primarily to house prisoners who would face a substantial threat to their

16 personal safety in GP. SA, ¶¶ 27, 28. The RCGP is meant to be a transitional housing unit for

17 such prisoners, designed to provide them with “increased opportunities for positive social 18 interaction with other prisoners and staff” while they work towards release to GP. Id. ¶ 28.16

19 However, in practice, CDCR is using the RCGP as an interminable placement for the vast

20 majority of prisoners who enter the facility, and one that is considerably more restrictive than GP, 21 and certainly more restrictive than necessary.17 One CDCR official aptly described the unit as

22 “

” stating “

23

” Declaration of Carmen E. Bremer in Support of Plaintiffs’ Motion to Extend the

24 Settlement Agreement (“Bremer Decl.”), Ex. u (

Interview Transcript), at 2.

25

26 16 Details & History, Pelican Bay State Prison (PBSP), CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, http://www.cdcr.ca.gov/Facilities_Locator/PBSP.html

27 (last visited Nov. 7, 2017) (describing the RCGP as a “transitional unit”).

17 Plaintiffs understand from Defendants’ counsel that

RCGP prisoners have been

28 transferred to GP through CDCR’s review procedures. Bremer Decl., ¶¶ 3, 4.

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1

The RCGP unit imposes an exceptional hardship on prisoners, due largely to poor

2 management, as well as its location. Defendants placed the RCGP at Pelican Bay State Prison

3 (PBSP)—a maximum security facility designed to house California’s “most serious criminal 4 offenders.”18 PBSP is located on the north coast of California, just thirteen miles from the Oregon 5 border.19 Due to the RCGP’s remote location at PBSP, the vast majority of RCGP prisoners are

6 effectively cut off from enjoying visits with their loved ones.

7

A prison due process challenge involves a two-step inquiry. First, the court must

8 determine whether the housing conditions at issue implicate a liberty interest protected by the

9 Due Process Clause. Sandin v. Conner, 515 U.S. 472, 483-84 (1995). Second, if such an interest

10 exists, the Court must then determine whether the procedures utilized satisfy due process

11 requirements. Wilkinson v. Austin, 545 U.S. 209, 224 (2005). These two steps are discussed in

12 sections A and B, below.

13

A. RCGP Designation Is Atypical and Significant.

14

The Due Process Clause protects prisoners from any restraint that “imposes atypical and

15 significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at

16 484. Precedent suggests that conditions in GP constitute the “ordinary incidents of prison life,”

17 against which challenged restraints must be compared. Keenan v. Hall, 83 F.3d 1083, 1089 (9th

18 Cir. 1996) (“The Sandin Court seems to suggest that a major difference between the conditions of

19 the general prison population and the segregated population triggers a right to a hearing.”);

20 Resnick v. Warden Hayes, 213 F.3d 443, 448 (9th Cir. 2000) (finding no liberty interest in part

21 because plaintiff did not compare conditions at issue with those in GP). But this is not “entirely

22 clear.” Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th Cir. 2014). What is clear in the Ninth

23 Circuit, however, is that determining what “condition or combination of conditions or factors

24 would meet the [Sandin] test requires case by case, fact by fact consideration.” Keenan, 83 F.3d

25 at 1089. Under this fact-intensive analysis, the RCGP imposes an atypical and significant

26 18 Details & History, Pelican Bay State Prison (PBSP), CALIFORNIA DEPARTMENT OF 27 CORRECTIONS AND REHABILITATION, http://www.cdcr.ca.gov/Facilities_Locator/PBSP.html
(last visited Nov. 7, 2017).
28 19 Id.

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1 hardship warranting due process protections because of its physical restrictions, the duration of

2 the placement, the unusualness of the transfer, and the stigma inherent in the unit.

3

1. The RCGP Imposes Exceptional Physical Restrictions.

4

First, the RCGP is atypical and significant because it imposes exceptional deprivations on

5 the prisoners placed there, including minimal opportunity for visits, limited social interaction and

6 job opportunities, and parole ineligibility. As the name suggests, the Restricted Custody General

7 Population unit is considerably more restrictive than GP housing. As noted supra, a CDCR

8 official himself has described the unit as “

Bremer Decl., Ex. u (

Interview

9 Transcript), at 2. This grim description is corroborated by RCGP prisoners who describe the

10 conditions as

Id., Ex. i (

Decl.), ¶ 7; Ex. e

11 (

Decl.), ¶ 4. One prisoner, who has been in CDCR custody for over twenty-six years,

12 including ten years in the SHU, said that it was the RCGP unit that finally “broke [his] spirit.” Id.,

13 Ex. i (

Decl.), ¶ 7.

14

The RCGP’s restrictive nature, described below, is magnified by its location at PBSP. The

15 location is especially onerous for RCGP prisoners whose case factors make them eligible for

16 placement at lower security level facilities, but have no choice but to be housed at the most

17 restrictive facility in the state. See, e.g., Bremer Decl., Ex. m at 102 ( DRB Chrono)

18 (indicating that he has a Level I placement score of 0), 075 (

DRB Chrono) (indicating that

19 he has a Level II placement score), 090 (

DRB Chrono) (indicating that he has a Level

20 II placement score).

21

a. RCGP Prisoners Have Limited Ability to Enjoy Contact Visits.

22

Although RCGP prisoners are allowed bi-weekly contact and non-contact visits, most

23 prisoners receive very few visits, if any, because of the RCGP’s remote location at PBSP. Bremer

24 Decl., Ex. g (

Decl.), ¶¶ 12-13; Ex. K ( Decl.), ¶ 18; Ex. t (

Parole Hearing

25 Transcript), at 17:18-18:15; Ex. x (RCGP Letter to Judge Vadas 7/21/16), at 1; see also Bremer

26 Decl., Ex. i (

Decl.), ¶ 15 (explaining that

27

). See Serrano v.

28 Francis, 345 F.3d 1071, 1078-79 (9th Cir. 2003) (analyzing existence of liberty interest based not

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1 on what amenities and privileges were theoretically available to the prisoner, but on his ability to

2 take advantage of them). Visits from families and friends are one of the most important means of

3 support for prisoners. Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003). In finding a protected

4 liberty interest in a housing unit that is substantially similar to the RCGP, the D.C. Circuit

5 specifically pointed to the significance of the strain on family relationships over time: “Inmates

6 housed in CMUs [Communication Management Units] . . . may spend years denied contact with

7 their loved ones and with diminished ability to communicate with them. The harms of these

8 deprivations are heightened over time, as children grow older and relationships with the outside

9 become more difficult to maintain.” Aref v. Lynch, 833 F.3d 242, 256 (D.C. Cir. 2016).

10

When the Settlement received preliminary approval, various class members wrote this

11 Court objecting to its provision of fewer contact visits for RCGP prisoners than those in a regular

12 GP unit. See Letter from Robert Cole to Court, ECF No. 432; Letter from Johneil Bailey to Court,

13 ECF No. 433; Letter from Andrew R. Lopez to Court, ECF No. 444; Letter from Derrick Sims to

14 Court, ECF No. 447. This Court opined that their objections had merit and suggested that the

15 parties negotiate to fix this problem. Transcript of Proceedings at 8:21-10:5, ECF No. 477.

16 Plaintiffs and Defendants negotiated at length, but CDCR ultimately refused to equalize visits for

17 RCGP safety prisoners and regular GP prisoners. Bremer Decl., Ex. y (CDCR 11/10/16

18 Compliance Letter), at 4-5.

19

The upshot of CDCR’s decision to have only one RCGP unit in the most isolated prison in

20 the state, and their refusal to allow any contact visits on the weekends when prisoner families

21 would not have to miss work or school, has resulted in most prisoners getting almost no family

22 contact visits. Bremer Decl., Ex. g (

Decl.), ¶ 13; Ex. k ( Decl.), ¶ 18; Ex. e (

23 Decl.), ¶ 5. As

explained,

24

25

. Id., Ex. g (

Decl.), ¶¶ 12-13; see also id.,

26 Ex. k ( Decl.), ¶ 18 (“

27

28

”); id., Ex. t (

Parole Hearing Transcript), at 17:18-18:15 (explaining that

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1

2

). Because RCGP placement is often indefinite—and

3 likely permanent for those serving life sentences—the corrosive strain on prisoners’ contact with

4 loved ones is magnified. Yet,

5

. Bremer Decl., ¶ 2.20

6

The strain caused by the lack of weekend contact visits and the RCGP’s location is

7 unique. Although other prisoners at PBSP may suffer the same visiting limitations while housed

8 there, non-RCGP prisoners enjoy greater freedom to be transferred to other facilities that are

9 more accessible to loved ones. Administrative segregation, protective custody, and even SHU 10 units are located at various facilities throughout the state, and transfer between units is routine.21

11

b. RCGP Prisoners Have Limited Social Interaction and Job

Opportunities. 12

13

Prisoners in the RCGP do not enjoy nearly the same level of social interaction as

14 prisoners housed in GP; their interactions are limited to their programming group, each of which

15 is comprised of

. Bremer Decl., Ex. o (CDCR 9/27/17 Compliance

16 Letter), at 2.

. Id., Ex. e (

Decl.), ¶

17 2; Ex. x (RCGP Letter to Judge Vadas 7/21/16), at 1.

18

There are also limited job opportunities for RCGP prisoners, which is harmful in itself,

19 but also bars them from achieving a higher privilege group level, which influences telephone

20 access and frequency of visits. Bremer Decl., Ex. e (

Decl.), ¶¶ 6-7; Ex. g (

Decl.),

21 ¶ 9; Ex. x (RCGP Letter to Judge Vadas 7/21/16), at 1. See also CAL. CODE REGS.,

22

tit. 15 § 3044(d)-(j) (2017). Although RCGP prisoners are eligible for jobs, as Defendants

23 admit,

. Bremer Decl., Ex. o (CDCR 9/27/17

24 Compliance Letter), at 2. This is due solely to the constraints of the unit. Id., Ex. e (

25 20 Confining RCGP prisoners to the northern most part of the state at PBSP is not the only 26 option for Defendants, as CDCR has twenty facilities for males throughout the state, ten of
which are maximum security facilities. CDCR COMPSTAT DAI STATISTICAL REPORT – 13 27 MONTH (HIGH SECURITY), (rev. Oct. 13, 2017), available at
http://www.cdcr.ca.gov/COMPSTAT/.
28 21 See id. (noting various facilities located at different institutions).

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1 Decl.), ¶ 6. As a result, RCGP prisoners are unable to achieve the highest privilege level, which

2 requires a full-time job. tit. 15 § 3044(b)(1). In contrast, prisoners not in the RCGP may be able

3 to achieve a higher work group privilege status even without a full-time job by participating in

4 other educational or rehabilitative programming. Id. But this is not possible in the RCGP. Id. §

5 3378.9(e)(1).

6

The harm caused by limited social interaction and lack of job opportunities is uniquely

7 acute with respect to Ashker class members in the RCGP, who previously spent years in SHU. As

8 demonstrated in a recent report entitled Mental Health Consequences Following Release from

9 Long-Term Solitary Confinement in California, prisoners released from long-term SHU

10 confinement demonstrate particular psychological disturbances that last even after their release

11 from segregation. Bremer Decl., Ex. v (Stanford Report: Mental Health Consequences), at 4. See

12 also Plaintiffs’ Enforcement Motion Regarding Violation of Settlement Agreement Provision

13 Requiring Release of Class Members to General Population, ECF No. 849, 11-12. Though these

14 effects of long-term segregation are persistent, increased social interaction, and having a job are

15 two factors that help prisoners overcome the detrimental effects of long-term isolation. Bremer

16 Decl., Ex. v (Stanford Report: Mental Health Consequences), at 15, 22, 25. In particular, the

17 report reveals that former long-term SHU prisoners who are denied opportunities for employment

18 “can be expected to demonstrate greater levels of psychiatric distress, poorer general health, and

19 poorer outcomes with regard to functioning and performance.” Id. at 23. Thus, the lack of social

20 interaction and job opportunities leads to a particularly significant and atypical hardship for class

21 members in the RCGP.

22

c. RCGP Placement Limits Parole Eligibility.

23

The California Board of Parole Hearings appears to consider RCGP placement as a reason

24 to disqualify prisoners for parole; this imposes a significant and atypical hardship on its own.

25 Whether challenged conditions affect the duration of one’s sentence is a significant factor in the

26 Sandin liberty interest analysis. Sandin, 515 U.S. 472, 487 (1995); Serrano, 345 F.3d at 1078;

27 Keenan, 83 F.3d at 1089. Indeed, that the placement at issue in Wilkinson v. Austin lead to parole

28

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1 disqualification is one of the main reasons the Supreme Court found it to be atypical and

2 significant. 545 U.S. at 224.

3

Similar to the designation in Wilkinson, RCGP placement has a dispositive effect on one’s

4 ability to parole. All four RCGP prisoners who have gone before the parole board have been

5 denied. Bremer Decl., ¶ 5. For example,

was denied elder parole on

6

, after his transfer to the RCGP following nearly thirty years in the SHU. Id., Ex. t (

7 Parole Hearing Transcript), at 182:24-183:4; Ex. m at 092 (

DRB Chrono). The Board

8 expressed its concern that RCGP placement demonstrates that

would be unable to

9

. Id., Ex. t (

Parole Hearing Transcript), at 69:23-70:6 (“

10

11

12

”). The Board also noted that

13

14

. Id. at 193:12-22 (“

15

16

.”).

17 See also id. at 198:23-199:18 (instructing Mr.

that if he

18

19

).

20

This is not only a significant hardship imposed by the placement, but it is atypical, as

21

.

22 Bremer Decl., Ex. t (

Parole Hearing Transcript), at 70:9-14. Special Needs Yard (SNY),

23 an alternative placement for prisoners who require protective custody, does not foreclose the

24 parole board from finding that one would be successful if released on parole. Id. at 70:9-14, 71:4-

25 8 (

).

26

2. RCGP Placement Is Prolonged.

27

RCGP placement is also atypical and significant because it is prolonged. The duration of a

28 given restriction factors significantly into the liberty interest analysis. Keenan, 83 F.3d at 1089

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1 allowed two fifteen-minute calls per week and two four-hour non-contact visits per month. Id. at

2 257. They were allowed in common spaces with other prisoners for most of the day, had access to

3 educational and professional opportunities, had property privileges akin to those in GP, and had

4 no added restriction on exercise. Id. Nevertheless, the court found that the duration of CMU

5 designation, together with its highly selective application, “pushe[d] CMU designation over the

6 Sandin threshold.” Id. See also Wilkinson, 545 U.S. at 224 (noting that the indefinite duration of

7 the designation to a Supermax facility contributed to the liberty interest finding); Harden-Bey v.

8 Rutter, 524 F.3d 789, 793 (6th Cir. 2008) (“most (if not all) of our sister circuits have considered

9 the nature of the more-restrictive confinement and its duration in determining whether it imposes

10 an ‘atypical and significant hardship.’); Silva v. Sanford, No. 91 Civ. 1776 (AJP) (KMW), 1998

11 U.S. Dist. LEXIS 5905, at *46 (S.D.N.Y. Apr. 23, 1998) (“Duration is one of the most important

12 factors in [the atypical and significant] analysis.”).

13

3. Placement in the RCGP Is Stigmatizing.

14

RCGP placement is also atypical and significant because it is stigmatizing. As the Ninth

15 Circuit has recognized, a stigmatizing classification gives rise to a liberty interest. Neal v.

16 Shimoda, 131 F.3d 818, 830 (9th Cir. 1997) (“the stigmatizing consequences of the attachment of

17 the ‘sex offender’ label coupled with the subjection of the targeted inmate to a mandatory

18 treatment program . . . create the kind of deprivations of liberty that require procedural

19 protections.”); see also Cardenas v. Tulare Cty. Sheriff’s Dep’t, No. 1:11-cv-01394-JLT (PC),

20 2013 U.S. Dist. LEXIS 69315, at *10 (E.D. Cal. May 15, 2013) (noting plaintiff’s resistance to

21 entering protective custody “due to the social stigma” associated with it); Sherwood v. Tancrator,

22 No. ED CV 06-96-CJC (PLA), 2008 U.S. Dist. LEXIS 113356, at *12 (C.D. Cal. June 19, 2008)

23 (noting stigma of protective custody that attaches within gangs).

24

Prisoners in the RCGP face a serious stigma, contributing to their liberty interest in

25 avoiding transfer to the unit. Bremer Decl., Ex. i (

Decl.), ¶ 10; Ex. h (

Decl.),

26 ¶¶ 7-8; Ex. l (

Decl.), ¶ 21 (discussing stigma associated with RCGP placement).

27

28

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1

2

3

4

Thus, RCGP

5 placement is not only stigmatizing in the sense that it causes disgrace, but it also endangers

6 prisoners’ safety.

7

4. RCGP Designation Is Highly Unusual.

8

Finally, RCGP placement gives rise to a liberty interest because it is so unusual. See

9 Sandin, 515 U.S. at 484 (holding that conditions imposing “atypical and significant hardship”

10 require procedural protections) (emphasis added). In Aref, the D.C. Circuit specifically found the

11 unusualness of CMU designation to be a significant factor in its finding a liberty interest. 833

12 F.3d at 257. This makes sense, as the singling out of only a few prisoners from a vast population

13 for different treatment suggests arbitrary, discriminatory, or retaliatory decision-making, or at

14 least the appearance of the same. Where such selectivity occurs, procedural protections are

15 particularly important.

16

For CDCR prisoners, the RCGP is a highly unusual placement, and the vast majority will

17 never even face the possibility of RCGP designation. According to CDCR’s most recent

18 Settlement compliance report, there are prisoners in the unit, out of a total prisoner population 19 of about 129,000. Bremer Decl., Ex. o (CDCR 9/27/17 Compliance Letter), at 2.23 Being one of

20 so few prisoners is by definition an atypical experience. This atypicality, together with the

21 hardship imposed by the RCGP for a prolonged period, implicates a liberty interest.

22

The RCGP unit is exactly the type of placement that warrants Due Process Clause

23 protections, given the physical restrictions imposed, the duration of the placement, the

24 unusualness of the transfer, and the stigma inherent in the unit. Any one or two of these factors

25 alone gives rise to a liberty interest under Sandin. Taken together, there is no question that the

26

27 23 CDCR POPULATION PROJECTION REPORT 4, (May 2017), available at http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Branch/Projections/
28 S17Pub.pdf.

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1 RCGP imposes an atypical and significant hardship in relation to the ordinary incidents of prison

2 life.

3

B. RCGP Classification and Verification Procedures Are Constitutionally

Deficient. 4

5

Having established that prisoners have a liberty interest in avoiding RCGP placement, the

6 Court next must consider what process is due, balancing three factors: first, the private interest

7 affected by the official action; second, the risk of erroneous deprivation of such interest through

8 the procedures used, and the probable value, if any, of additional or substitute procedural

9 safeguards; and third, the government’s interest, including the function involved and fiscal and

10 administrative burdens that the additional or substitute procedural requirement would entail.

11 Wilkinson, 545 U.S. at 224-25 (citing Mathews, 424 U.S. at 335).

12

1. Prisoners’ Private Interest in Avoiding RCGP Placement Is

Significant. 13

14

Prisoners already have their liberty curtailed by definition; thus, the first Mathews

15 factor—the private interest at stake—must be evaluated “within the context of the prison system

16 and its attendant curtailment of liberties.” Wilkinson, 545 U.S. at 225. That said, given the

17 restrictions imposed by the RCGP, the private interest in avoiding the unit is substantial, and as

18 this court has previously found, the prolonged duration of the conditions weigh in favor of there

19 being a significant private interest at stake. MTD Order at 12.

20

CDCR itself has implicitly recognized the significance of the deprivations imposed by the

21 RCGP. See, e.g., Bremer Decl., Ex. p (CDCR Design and Construction Policy Guidelines for

22 Prisons), at 45; Ex. q (PBSP Operational Procedure 204: General Population Program), at 3 (both

23 documents in which CDCR recognizes the importance of providing programming opportunities

24 and full-time work assignments); Ex. s (Lewis Deposition (“depo.”)), at 119:19-21 (“In my

25 opinion, social interaction with family plays a very important role with inmates incarcerated in

26 State Prison.”); Ex. r (Giurbino depo.), at 149:2-16 (acknowledging that greater contact with

27 family reduces recidivism).

28

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2. There Is a Significant Risk of Erroneous Deprivation Under Current

1

Procedures.

2

The second Mathews factor addresses “the risk of an erroneous placement under the

3 procedures in place.” Wilkinson, 545 U.S. at 224-25. Under the current RCGP review system,

4 there is more than a serious risk of erroneous deprivation; there is evidence that CDCR has

5 wrongly retained several prisoners in the unit. These deficiencies give rise to a high risk of

6 arbitrary decision-making in the safety threat review process, leading to the erroneous deprivation

7 of liberty for many.

8

a. RCGP Prisoners Are Denied Adequate Notice and Review.

9

Notice of the factual basis leading to a decision, and a full and fair opportunity for rebuttal

10 are “among the most important procedural mechanisms for purposes of avoiding erroneous

11 deprivations.” Wilkinson, 545 U.S. at 225-26 (citing Greenholtz v. Inmates of Neb. Penal and

12 Correctional Complex, 442 U.S. 1, 15, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979)). See also infra

13 Section V.A.2. Notice must be meaningful, in that it “provid[es] the inmate [with] a basis for

14 objection before the next decisionmaker or in a subsequent classification review.” Wilkinson, 545

15 U.S. at 226. Notice “also serves as a guide for future behavior.” Id.; see also Greenholtz, 442

16 U.S. at 15 (prisoners denied parole given notice of the reason “as a guide to the inmate for his

17 future behavior”). If “one supposedly has the keys to one’s release, but one has no idea what they

18 are,” notice is deficient. Toevs v. Reid, 685 F.3d 903, 914 (10th Cir. 2012), amended on reh’g by

19 685 F.3d (10th Cir. 2012).

20

CDCR utterly fails to conduct its reviews in a manner consistent with the standards

21 provided to RCGP prisoners on how they may demonstrate eligibility for a GP transfer. The

22 Settlement provides that prisoners may only be placed in the RCGP if the DRB demonstrates “by

23 a preponderance of the evidence” that there exists “a substantial threat to their personal safety

24 should they be released to the General Population.” SA, ¶ 27. Thereafter, during their 180-day

25 reviews, the ICC “shall verify whether there continues to be a demonstrated threat to the inmate’s

26 personal safety.” Id. If such a threat is found, the prisoner will be retained in the RCGP without

27 further review. Id. And if the ICC finds that such a threat no longer exists, the prisoner is referred

28 to the DRB to conduct another threat assessment review. Id.

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1 6/22/16 ICC Chrono), 037 (

7/14/16 ICC Chrono). This framework directly contradicts

2 the plain meaning of the Settlement, leaving prisoners in an untenable position, without any

3 meaningful guide for how to gain release from the RCGP.

4

In addition to conducting reviews in a manner that is inconsistent with the standards

5 provided by the Settlement Agreement, CDCR actively gives prisoners misleading notice about

6 how to gain release from the RCGP. Several prisoners attest that at their initial DRB safety

7 reviews, they were told that

8

. Bremer Decl., Ex. a (

Decl.), ¶¶ 6-7; Ex. b

9(

Decl.), ¶ 3; Ex. f (

Decl.), ¶ 3; Ex. j (

Decl.), ¶ 6; Ex. k ( Decl.), ¶ 11.

10 See also id., Ex. w (RCGP Prisoners’ Letters to Judge Vadas), at 002, 005, 008 (noting that

11

12

13

14

. See id., Ex. n at 009-10 (

4/20/17

15 ICC Chrono), 031 (

5/18/17 ICC Chrono) (both noting that

16

17

). See also id., Ex. n at 004-5 (

4/20/17 ICC

18 Chrono), 037-38 (

7/14/16 ICC Chrono) (neither noting that

19

). The ICC perpetuates this

20 misleading guidance, stating in some cases that

21

” Id.,

22 Ex. n at 021 (

11/21/16 ICC Chrono), 036 (

11/21/16 ICC Chrono), 044

23 (

11/21/16 ICC Chrono). But even where prisoners have done so, they continue to be

24 retained at their subsequent ICC reviews. Id., Ex. n at 019-20 (

5/18/17 ICC Chrono),

25 033-34 (

5/18/17 ICC Chrono) (both showing individual was retained,

26

27

. RCGP prisoners’ ability to object to their retention in the unit is severely undermined by

28 CDCR’s failure to provide them with meaningful notice of how to gain removal from the unit.

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1

RCGP prisoners’ right to a meaningful review is also undermined by CDCR’s disregard

2 of their statements denying that they face a safety threat, and offering evidence that they can be

3 safely housed in GP. Bremer Decl., Ex. g (

Decl.), ¶ 15; Ex. b (

Decl.), ¶¶ 5, 7. In

4 the course of the DRB and ICC reviews, prisoners are routinely asked

5

See, e.g., id., Ex. m at 007 (

DRB Chrono), 023 (

DRB

6 Chrono), 064 (

DRB Chrono) (all noting that

7

); Ex. n at 014 (

4/20/17 ICC

8 Chrono), 034 (

5/18/17 ICC Chrono), 042 (

4/21/17 ICC Chrono) (all noting

9

10

). But there is no indication that the DRB or the ICC actually considers a prisoner’s

11 denial that he faces a safety threat.

12

The cursory manner in which the ICC reviews are conducted further indicates that the

13 ICC is simply summarily retaining individuals without giving due consideration to prisoners’

14 explanations that they may be safe in GP. Prisoners

and

—who have

15 each had at least two ICC reviews—attest that

. Bremer Decl., Ex. a

16 (

Decl.), ¶ 12 (

; Ex. j

17 (

Decl.), ¶ 11 (

).

18

CDCR’s deviation from the standards provided in the Settlement, as well as its actively

19 giving RCGP prisoners misleading notice, undermines the very purpose of the notice

20 requirement, deprives prisoners of a “fair opportunity” to seek transfer out of the RCGP, and fails

21 to safeguard against erroneous deprivations of liberty. Wilkinson, 545 U.S. at 225-26.

22

b. Safety Threat Reviews Lack Sufficient Checks and Balances.

23

In Wilkinson, the Supreme Court noted with approval that Ohio’s three-tiered review

24 process “provides multiple levels of review for any decision recommending OSP placement, with

25 the power to overturn the recommendation at each level.” Wilkinson, 545 U.S. at 227. Following

26 transfer to the OSP, the prisoner’s placement is reviewed at least annually according to the same

27 robust three-tiered classification review initially applied. Id. at 217.

28

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1

In contrast to the Ohio procedures in Wilkinson, multiple levels of review are required to

2 release a prisoner from the RCGP, but no further review is required if the ICC decides to retain a

3 prisoner. After the DRB approves RCGP placement, the decision is final. SA, ¶ 27. The DRB is

4 the only body that may reverse that decision, or approve any transfer from PBSP. See, e.g.,

5 Bremer Decl., Ex. m at 007 (

DRB Chrono), 111 ( DRB Chrono).25 Even if the ICC

6 finds at a 180-day review that a prisoner no longer faces a threat to his personal safety, the case

7 must be referred to the DRB to recommend or deny transfer to GP. SA, ¶ 27. If at any point

8 following the prisoner’s initial ICC review, the ICC or the DRB elects to retain the prisoner in the

9 RCGP, there is no further check on that decision, and the process terminates until the prisoner’s

10 following 180-day review. Id. Thus, a recommendation to remove a prisoner from the RCGP

11 requires a heightened two-tiered review, but a recommendation to retain him does not. The Ohio

12 procedures in Wilkinson require the inverse: for both the initial placement review and annual

13 follow-up reviews, if a reviewing body elects to remove the prisoner from OSP placement, that

14 decision is final. Wilkinson, 545 U.S. at 227. But if the recommendation is to retain him in the

15 OSP, that decision must go through another level of review. Id. at 217, 227. This multi-layered

16 review system “guards against arbitrary decisionmaking.” Id. at 227.

17

Moreover, also unlike the procedures in Wilkinson, the ICC reviews are not being

18 conducted in a meaningful manner. At the 180-day review, the ICC will often retain prisoners

19 based on only

. See,

20 e.g., Bremer Decl., Ex. n at 002 (

1/19/17 ICC Chrono), 007 (

4/11/17 ICC

21 Chrono), 009-10 (

4/20/17 ICC Chrono), 014 (

1/18/17 ICC Chrono), 025-26 (

22 6/23/17 ICC Chrono), 027-28 ( 5/12/17 ICC Chrono), 029 (

6/22/16 ICC Chrono),

23 040 (

2/21/17 ICC Chrono), 042 (

4/21/17 ICC Chrono). In such instances, the

24 ICC includes the same boilerplate language: that the

25

26

” and retains the prisoner in the RCGP. Id. The ICC has explicitly

27

25 However, the DRB control is lifted if the prisoner enters the debriefing program. Bremer

28 Decl., Ex. m at 007 (

DRB Chrono), 111 ( DRB Chrono).

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1 stated in some cases that

2

. Id., Ex. n at 010 (

4/20/17 ICC Chrono) (“

3

4

.”) (emphasis

5 added); 034 (

5/18/17 ICC Chrono) (“

6

7

”) (emphasis added). The ICC’s failure to conduct a holistic review of an

8 individual’s case factors, and the lack of a fair opportunity to object to the decision, creates a

9 substantial risk of erroneous deprivation that would be considerably curtailed by implementing a

10 check on the ICC’s decisions.

11

Even more problematically, in some circumstances the ICC’s purported review appears to

12 operate as little more than a rubber stamp of the Institutional Gang Investigator’s (IGI)

13 recommendation. RCGP prisoners’ accounts of conversations with the IGI in advance of their

14 ICC reviews indicate that the IGI controls the outcomes of the reviews. See Bremer Decl., Ex. f

15 (

Decl.), ¶¶ 5-6 (describing

16

); Ex. b (

Decl.), ¶¶ 5-7 (indicating that

17

).

18

3. Additional Procedures Would Safeguard Against Erroneous

Deprivations. 19

20

Mathews next instructs the court to consider “the probable value, if any, of additional or

21 substitute procedural safeguards.” Wilkinson, 545 U.S. at 224-25. Here, providing meaningful

22 and accurate notice, a meaningful hearing, and multiple levels of review would significantly

23 reduce CDCR’s pattern of erroneous RCGP placement. CDCR’s own procedures indicate that

24 even adding one additional level of review to RCGP placement decisions substantially reduces

25 erroneous placements. The ICC was responsible for an initial recommendation regarding Ashker

26 class members’ need for RCGP placement. SA, ¶ 27. Paragraph 27 required the DRB to review

27 the ICC’s recommendation before transfer to the RCGP. Id. Of prisoners recommended for

28 RCGP placement by the ICC, the DRB approved only —

—for RCGP

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1 placement.26 Bremer Decl., ¶ 3. Despite this clear evidence that

2

, it has the authority to make

3 unchecked decisions to retain prisoners in the RCGP. Given this pattern, it is no surprise that

4

, though the placement is

5 supposed to be temporary. Id. ¶ 4. The dramatic decrease in RCGP placements when a two-tiered

6 system is utilized supports a finding that additional procedures are necessary to correct and

7 prevent further erroneous deprivations of liberty.

8

4. Government Interests Would Be Better Served by Implementing

Meaningful Procedures. 9

10

The final Mathews factor is “the Government’s interest, including the function involved

11 and the fiscal and administrative burdens that the additional or substitute procedural requirement

12 would entail.” Wilkinson, 545 U.S. at 224-25. Here, the government’s interests would be served

13 by implementing meaningful procedures. Implementing more robust procedures would very

14 likely lead to a reduction in the RCGP population, thereby offsetting any initial modest increase

15 in required resources. A smaller number of prisoners in the unit would enable CDCR to offer

16 more meaningful educational and vocational programming per prisoner—both of which are

17 currently in short supply because the unit is overburdened. See supra section IV.A.1.b; Bremer

18 Decl., Ex. c (

Decl.), ¶ 8; Ex. d ( Decl.), ¶ 11; Ex. g (

Decl.), ¶¶ 7-9

19 (describing

20

). Additionally, if the population of the unit were reduced,

21 CDCR would be better able to manage the sensitive protection needs of the prisoners who

22 actually require RCGP placement.

23

C. Relief for CDCR’s Systemic Due Process Violations Involving Placement and

Retention of Prisoners in the RCGP. 24

The above evidence demonstrates that Defendants’ RCGP review procedures are

25

constitutionally deficient, and as a result, prisoners are being erroneously deprived of their liberty

26

27 26 Defendants’ document productions indicate that prisoners were referred to the DRB following their initial Paragraph 25 reviews, but Defendants only provided DRB review
28 outcomes for of them. Bremer Decl., ¶ 3.

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1 without due process of law. Extending monitoring of Defendants’ administration of the RCGP

2 and the safety threat reviews is necessary to correct these due process violations, as are the

3 following changes in CDCR’s practices and procedures: (a) adoption of a multi-tiered RCGP

4 classification and verification review system in which any decision or recommendation to place

5 or retain a prisoner in the RCGP is not deemed final until it is confirmed by at least one other

6 reviewing body; and (b) implementation of a set of criteria that the DRB and the ICC will adhere

7 to at each initial safety review and subsequent 180-day review, which specifies the factors to be 8 considered, and the weight afforded to each.27 To correct the errors that have already occurred,

9 Defendants should be made to re-review the case factors of each prisoner who has been classified

10 for placement in the unit according to the proper criteria, within six months of the Court’s order.

11 Continuation of Defendants’ document production obligations under Paragraph 37, subsections

12 (j), (i), (l), and (d), with respect to RCGP prisoners, is also necessary, so that Plaintiffs may

13 properly monitor Defendants’ future RCGP placement decisions.

14

Alternatively, Defendants could fix the due process issue by relieving the burdens

15 imposed by the RCGP that give rise to a liberty interest, including by: (a) re-locating the RCGP,

16 or establishing an additional RCGP unit, that is centrally located within the state of California in

17 order to relieve the burdens imposed by virtue of the remoteness of PBSP, including the lack of

18 opportunities for visiting; (b) providing greater opportunities for increased social interaction with

19 other prisoners by allowing prisoners in programming groups to interact with prisoners in other

20 groups or other housing units in controlled settings, or through a chain link fence; (c) providing

21 RCGP prisoners with the opportunity to enroll in courses that demonstrate to the Board of Parole

22 Hearings eligibility for parole, including the Long Term Offender Program; and (d) offering

23 RCGP prisoners the opportunity to have contact visits on weekends.

24 V. 25 26

CDCR CONTINUES TO VIOLATE THE DUE PROCESS CLAUSE BY USING UNRELIABLE GANG VALIDATIONS TO DENY CLASS MEMBERS A FAIR OPPORTUNITY TO SEEK PAROLE.

27 27 See Plaintiffs’ Enforcement Motion Regarding Inadequate RCGP Verification Reviews, ECF No. 847 (in which Plaintiffs proposed that Defendants be ordered to adopt specific criteria with
28 respect to 180-day ICC reviews).

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1

A key feature of the Settlement Agreement is that CDCR has changed from a status-based

2 system to a proven disciplinary-based system for making SHU placement decisions. CDCR has

3 ceased using gang validations to place and retain prisoners in the SHU, and must now make such

4 placements only on the basis of a defined set of serious misbehaviors. SA, ¶ 13 (“CDCR shall not

5 place inmates into a SHU, Administrative Segregation, or Step Down Program solely on the basis

6 of their validation status.”); id. ¶ 18. Recently promulgated regulations also require greater

7 complexity in the validation process, purportedly to reduce the risk of error. See CAL. CODE

8 REGS., tit. 15 § 3378.2 (2017); see also id. § 3000; Defendants’ Motion to Dismiss at 7, ECF No.

9 160. This is essential, because, as shown below, the old validation procedures failed to comport 10 with due process requirements.28

11

Despite these improvements, CDCR has retained the gang validations completed under

12 the old system. CDCR treats these validations as if they were reliable, resulting in deprivations of

13 class members’ liberty interest in the fair opportunity for parole. This functions in two discrete

14 ways. First, CDCR relies on decisions made under the old validation system to find Ashker class

15 members categorically ineligible for relief under Proposition 57, a Constitutional Amendment

16 passed by California voters in 2016 to provide non-violent offenders with an opportunity to

17 parole. Second, CDCR’s failure to expunge the validations from prisoners’ records, or to

18 otherwise inform the parole board that the validations do not reliably indicate that a prisoner has

19 been active on behalf of a gang, has led the parole board to rely on these constitutionally infirm

20 validations to deny class members fair parole consideration. These two uses of old validations to

21 disqualify class members from parole eligibility deprive them of a substantial liberty interest –

22 that of the opportunity to earn release from incarceration.

23

This is a new incarnation of what Plaintiffs alleged in the Second Amended Complaint.

24 SA, ¶ 41. There, Plaintiffs complained that “an unwritten policy prevents any prisoner housed in

25 the SHU from being granted parole.” SAC ¶ 87; see also id. ¶¶ 88-90 (providing examples of

26

27 28 Plaintiffs take no position on whether the new regulations regarding STG validation procedures, promulgated on October 27, 2017, are adequate to avoid erroneous classifications.
28 See tit. 15 § 3378.2.

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1 individual prisoners denied the opportunity to parole because of SHU confinement). The SAC

2 also asserted as a basis for a liberty interest in release from SHU confinement the “effect on the

3 possibility of parole being granted and the overall length of imprisonment that results from such

4 confinement.” Id. ¶ 196(c); see also id. ¶ 171(f). The release of most class members from the

5 SHU through the implementation of the Settlement Agreement should have remedied this

6 problem; without SHU placement prompting the parole board to deny parole for gang-validated

7 prisoners, class members would have a fair opportunity to seek release from incarceration.

8 Instead, since the Settlement, gang-validations (or six-year inactive review denials) have been

9 substituted for SHU confinement as a substantial obstacle for Class Members seeking parole.

10 Thus, the violations alleged in the SAC are ongoing – namely, the use of constitutionally flawed

11 gang validations to deny class members the opportunity to parole. The only difference is that the

12 gang validations are now directly responsible for denying prisoners a fair opportunity for parole,

13 whereas in the past, the validations underlay SHU placement, which itself resulted in de facto

14 parole disqualification. Such a result constitutes a systemic ongoing deprivation of Plaintiffs’

15 liberty interest in the opportunity for parole.

16

A. The Process Used to Validate Prisoners as Gang Affiliates, Which Is Now

Being Used to Deny Class Members a Fair Opportunity for Parole, Was

17

Unconstitutional.

18

1. Gang Validation Procedures Lacked Sufficient Checks and Balances.

19

The gang validation procedures previously used by CDCR (and now relied on to deny

20 class members a fair opportunity to seek parole) were devoid of necessary checks and balances

21 designed to minimize the risk of error. The validation process was so infirm that it violated

22 Supreme Court requirements of significant checks to guard against the risk of erroneous

23 decisions. See Wilkinson, 545 U.S. at 216-17, 226-27; see also MTD Order at 12-18.

24

As CDCR has conceded, the former gang validation process was terribly flawed. CDCR’s

25 Office of Correctional Safety (OCS) had exclusive authority to validate prisoners as gang

26 affiliates, and OCS officials have admitted that this process lacked “independent review” and did

27 not provide sufficient “check and balance . . . to review information generated by the OCS.”

28 Miller Decl., Ex. 1 (Giurbino July 18, 2014 depo.), at 73:3-15, 207:10-16. Indeed, CDCR’s

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1 process for validating and revalidating SHU prisoners included none of the checks and balances

2 that salvaged Ohio’s procedures in Wilkinson.

3

Gang validation in California began with an Institution Gang Investigator (IGI), who was

4 authorized to investigate gang affiliation based on information from any number of sources, and

5 then develop a validation packet including at least three “source items.” CAL. CODE REGS. tit. 15

6 § 3378(c) (2013); Miller Decl., Ex. 2 (Ducart 30(b)(6) depo.), at 205:25-206:6; Ex. 3 (Frisk

7 depo.), at 31:17-22, 108:18-110:14; Ex. 4 (Barneburg depo.), at 70:7-11, 76:14-18. After the IGI

8 prepared the validation packet, it was forwarded to the Office of Correctional Safety (OCS),

9 which, according to policy, had exclusive overall authority for validating a prisoner as a gang

10 affiliate. CAL. CODE REGS. tit. 15 § 3378(c)(6) (2013); Miller Decl., Ex. 3 (Frisk depo.), at

11 124:10-24; Ex. 5 (Hubbard depo.), at 18:7-16. When making validation decisions, OCS did not

12 review the prisoner’s disciplinary history, programming, or complete central file, and in practice,

13 OCS’s focus was on gang affiliation alone. CAL. CODE REGS. tit. 15 §§ 3341.5(c)(2)(A)(2),

14 3378(c)(6), (8); Miller Decl., Ex. 5 (Hubbard depo.), at 18:7-25; Ex. 6 (Kernan depo.), at 76:6-17;

15 Ex. 3 (Frisk depo.), at 132:24-133:16; Ex. 7 (Austin Expert Report), ¶¶ 20, 21. Once OCS

16 approved a gang validation, it sent the decision to the Institutional Classification Committee

17 (ICC), which had no authority to overturn the OCS decision. Tit. 15 §3378(d); Miller Decl., Ex. 7

18 (Austin Expert Report), ¶ 21. This same lack of independent review governed the revalidation

19 process that occurred every six years (though only a single source item was needed to revalidate a

20 prisoner). Miller Decl., Ex. 2 (Ducart 30(b)(6) depo.), at 230:6-16; Ex. 8 (Parry depo.), at 12:1-7;

21 Ex. 3 (Frisk depo.), at 38:18-22; Ex. 9 (CDCR Operations Manual (2014)), § 52070.18.4.

22

Class members were not heard by OCS in the validation process, sometimes did not even

23 meet with the IGI investigator, and only a minority of the interviews were held in a confidential

24 setting. Miller Decl., Ex. 5 (Hubbard depo.), at 18:2-6; Ex. 3 (Frisk depo.), at 92:19-93:25, 100:3-

25 7, 101:20-25; Ex. 7 (Austin Expert Report), ¶¶ 20, 21. Indeed, CDCR admits that it added the

26 word “meaningful” to describe the reviews prisoners would receive under the regulations it

27 enacted in 2014 because, under the policies challenged here, there often was no opportunity for

28 “the individual to provide . . . meaningful rebuttal back to th[e] information [that IGI had

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1 presented].” Id., Ex. 10 (Giurbino Dec. 18, 2014 depo.), at 179:1-25; Ex. 5 (Hubbard depo.), at

2 27:2-13.

3

Even more problematic, OCS’s purported review of the IGI validation packets was, in

4 practice, little more than a rubber stamp. The acting Associate Warden at Pelican Bay testified

5 that he could not recall a single IGI-recommended validation being rejected by OCS. Miller 6 Decl., Ex. 4 (Barneburg depo.), at 176:7-177:22.29 Lieutenant Frisk, who oversaw the IGI Unit at

7 Pelican Bay, testified that he was not aware of any instance in which OCS rejected all the source

8 items submitted by IGI as part of a validation packet, asked IGI to conduct a follow-up interview

9 with a prisoner concerning a validation, or requested additional documentation or investigation.

10 Miller Decl., Ex. 3 (Frisk depo.), at 25:9-25, 125:18-25, 126:7-21, 129:21-130:7. Similarly, Frisk

11 testified that individual source items were rejected by OCS less than 5% of the time. Id., Ex. 3

12 (Frisk depo.), at 127:11-128:15. Thus, IGI acted as both investigator and de-facto gang validation

13 decision-maker, negating OCS’s role as a check and balance. Id., Ex. 5 (Hubbard depo.), at 14 27:14-28:6 (OCS “were not neutral reviewers of [validation] information”).30

15

California’s validation system fell significantly short not only of the procedures the

16 Supreme Court mandated in Wilkinson, but of validation systems across the country. SHU

17 placement elsewhere in the nation typically begins with an institutional classification committee

18 that has access to complete information about a prisoner, including his offense, programming,

19 and disciplinary history – not simply information about gang affiliation. Miller Decl., Ex. 7

20 (Austin Expert Report) ¶ 22. The decision is made by a group, and is not solely driven by gang

21

22 29 By contrast, the Federal Bureau of Prisons (BOP) uses a many-tiered process for evaluating referrals to restrictive settings such as Special Management Units (SMUs), a process that results

23

in a 14-19% rate of rejection at the final level of review – a significantly higher rate that does not include referrals rejected earlier in the process. Miller Decl., Ex. 11 (Austin Rebuttal

24 Report), at 10.

30 Also problematic was the fact that validations sometimes were based entirely on confidential

25 information that was not given to the prisoner. Miller Decl., Ex. 12 (Troxell 128-B-2 Forms).

Nonetheless, CDCR did not have any method to document or track informants who provided

26 false confidential information. Id., Ex. 2 (Ducart 30(b)(6) depo.), at 190:7-11. CDCR officials

admit that, as a result of the recent Ashker DRB review process, they have found some such

27 confidential information “not to be accurate;” they also have found cases in which confidential

information is neither corroborated within a confidential report, nor elsewhere in a prisoner’s

28 file. Id., Ex. 5 (Hubbard depo.), at 156:24-157:11; 159:5-17.

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1 investigator concerns. Id. The committee’s decision is typically followed by an independent

2 review by a warden and by a central office classification division, each of which reviews the

3 recommendation and makes its own recommendation, which then requires approval by the head

4 of the correctional system or her designee. Id. Such multi-tiered systems include significant

5 checks and balances, and thus protect against erroneous deprivations of liberty. Wilkinson, 545

6 U.S. at 227.

7

By contrast, CDCR’s system – as its officials now admit – resulted in significant numbers

8 of prisoners being unnecessarily sent to the SHU on the basis of inaccurate or uncorroborated

9 information, facing significant difficulties in challenging their validations, and being retained in

10 SHU far longer than otherwise could be justified. Miller Decl., Ex. 5 (Hubbard depo.), at 27:2-13,

11 47:15-48:9, 156:24-157:11, 159:5-17; Ex. 6 (Kernan depo.), at 31:2-12, 35:3-11, 42:6-14, 69:23-

12 70:20; Ex. 1 (Giurbino July 18, 2014 depo.), at 74:5-12, 198:9-12; Ex. 8 (Parry depo.), at 24:12-

13 25:18, 72:5-16, 73:1-9. CDCR’s validation process plainly created a significant risk of erroneous

14 deprivation. Indeed, through the Settlement Agreement, CDCR agreed to stop relying on

15 validations to determine whether an inmate should be sent to the SHU. SA, ¶ 16. Nonetheless

16 these flawed validations and revalidations continue to play a significant role in parole 17 determinations.31

18

2. Gang Validation Procedures Gave Prisoners Misleading Notice About

How to Avoid Revalidation. 19

20

As explained in section B.2.a, above, a “fair opportunity” for rebuttal is “among the most

21 important procedural mechanisms for purposes of avoiding erroneous deprivations.” Wilkinson,

22 545 U.S. at 226; see also Toussaint v. McCarthy, 801 F.2d 1080, 1100 (9th Cir. 1986). To

23 provide a prisoner with meaningful notice, reviews of a validation decision should “serve[] as a

24

25 31 The old, defective validations also still play a role in other CDCR determinations that implicate a liberty interest. For example, gang validated prisoners who return to CDCR are
26 immediately placed in Administrative Segregation for prolonged periods of time while a socalled safety investigation is undertaken by staff. During that period of time they lose their good
27 time credits because of the Work Group they are placed in. See ECF No. 875 (Order re Plaintiffs’ Enforcement Mot. Regarding Retention of Gang-Validated Readmitted Inmates in
28 Administrative Segregation), at 5.

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1 guide for future behavior,” Wilkinson, 545 U.S. at 226, “giv[ing] the prisoner some idea of the

2 requirements for, and his progress toward, more favorable placement.” Toevs, 646 F.3d at 758

3 (citing Wilkinson); see also Greenholtz, 442 U.S. at 15 (noting that prisoners denied parole were

4 given notice of the reason “as a guide to the inmate for his future behavior”). “A prisoner should

5 not . . . have to guess what conduct forms the basis for the charges against him.” Taylor v.

6 Rodriguez, 238 F.3d 188, 193 (2d Cir. 2001).

7

Here, notice to class members about how to avoid being revalidated as an active gang

8 member was misleading to the point of being nonsensical. Under CDCR policy and practice, a

9 validated gang affiliate was given notice that he would not be revalidated if he was found

10 “inactive,” meaning that he had not been involved in gang “activity” for a minimum of six years.

11 Tit. 15 §§ 3341.5(c)(5), 3378(e). Miller Decl., Ex. 2 (Ducart 30(b)(6) depo.), at 23:9-14; Ex. 8

12 (Parry depo.), at 74:18-23 (a SHU prisoner is “inactive” if “there was no evidence that they were

13 involved in any gang activity for that six-year period.”). However, CDCR’s internal interpretation

14 of the term “activity” did not cohere with logic or plain-language meaning. CDCR’s Validation

15 Instruction Manual, which was not shared with prisoners, included as an activity “non-action

16 piece[s] of evidence.” Id., Ex. 13 (CDCR Validation Instruction Manual (June 2011)), at 12

17 (emphasis added). The definition of “activity” as applied by CDCR thus was of indecipherable

18 and unbounded scope, meaning that prisoners who were not involved in current gang activity

19 under the plain meaning of the term routinely were revalidated as “active” gang members.

20

In line with these linguistic gymnastics, source items that were used to revalidate SHU

21 prisoners as gang affiliates at inactive reviews—and thus now still are used to justify denying

22 them parole—routinely consisted of pure association, rather than specific gang-related conduct or

23 “activity” under any reasonable interpretation of that term. The following so-called gang

24 “activity” is typical of what was used at “inactive” reviews to revalidate prisoners as gang

25 associates:

26

 A prisoner’s name simply appearing on a list of alleged gang members. Miller Decl.,

Ex. 10 (Giurbino Dec. 18, 2014 depo.), at 163:11-20; Ex. 14 (Franco 128-B-2); Ex. 15

27

(Franklin 1030); Ex. 16 (1030 Form dated Feb. 3, 2012), at CFILE072872; Ex. 17

(Garcia 128-B); 28

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 Having artwork, a birthday card, or possessions from a validated gang affiliate. Id.,

1

Ex. 8 (Parry depo.), at 70:18-21;

2

 Having a photograph of a former cellmate who is a gang-affiliated prisoner. Id., Ex. 2

(Ducart 30(b)(6) depo.), at 36:13-18; 3

 Having political and historical writings and photographs, including a pamphlet in

4

Swahili. Id., Ex. 18 (Dewberry 128-B);

5

 Having drawings or artwork (such as Aztec and Mayan images). Id., Ex. 19 (Esquivel

128-B-2); Ex. 20 (Reyes 128-B-2); Ex. 21 (Ruiz 128-B); Ex. 22 (Ruiz Decl.), ¶ 5; 6

 Speaking to another prisoner, regardless of the substance of the conversation. Id., Ex.

7

3 (Frisk depo.), at 240:22-241:25; Ex. 23 (Ashker Gang Chrono);

8

 Writing to, or receiving mail from, a validated gang affiliate, or being mentioned in a

validated gang affiliate’s mail, regardless of the content of the correspondence. Id.,

9

Ex. 2 (Ducart 30(b)(6) depo.), at 155:8-14; Ex. 24 (Johnson 128-B) (describing a letter

that was sent to plaintiff Johnson in which a validated gang member inquires about

10

Johnson’s health and sends his respects); Ex. 25 (Bruce 1030) (describing letter a

prisoner informs another prisoner that Bruce is housed on the same yard as another

11

validated gang associate, and stating that this “evidences your shared allegiance and

gang association with a validated . . . associate”); 12

 Appearing in a photograph with a validated gang affiliate. Id., Ex. 26 (Ruff depo.), at

13

66:18-25;

14

 Having a tattoo that CDCR determines is gang-related, despite the fact that CDCR

does not provide a program that allows prisoners to remove tattoos. Id., Ex. 26 (Ruff

15

depo.), at 72:6-74:6;

16

 Having a book written by George Jackson. Id., Ex. 26 (Ruff depo.), at 56:23-57:9; Ex.

3 (Frisk depo.), at 240:7-10. 17

18

Contrary to the above examples, the plain meaning of the words “active” and “inactive”

19 suggest that to have engaged in gang “activity,” a prisoner must have taken some kind of action,

20 or have performed a specific function, on behalf of a gang. Similarly, a prisoner would logically

21 become “inactive,” and therefore have some chance at parole, if he has not performed specific

22 acts on behalf of a gang, and is merely affiliated with a gang. As the Supreme Court has put it,

23 “the distinction between ‘active’ and ‘nominal’ membership is well understood in common

24 parlance.” Scales v. United States, 367 U.S. 203, 222-23, 225 (1961) (“active” member of the

25 Communist Party must mean “more than the mere voluntary listing of a person’s name on Party

26 rolls”); see Definition of Active, MERRIAM-WEBSTER, https://www.merriam-

27 webster.com/dictionary/active (last visited Nov. 16, 2017) (“active” defined as: “characterized by

28 action rather than by contemplation or speculation.”).

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1

Because CDCR’s undisclosed definition of “activity” included “non-action,” SHU

2 prisoners were left in an untenable position, without any meaningful guide for future behavior

3 and with misleading notice about how to remove their validation. See, e.g., Conner v. Sakai, 15

4 F.3d 1463, 1469 (9th Cir. 1993), vacated in part and amended by 61 F.3d 751 (9th Cir. 1995)

5 (holding that the due process clause “bars the state from imposing punishment on the basis of an

6 unexpected and unusual interpretation of plain language”). Indeed, prisoners were routinely

7 revalidated based on evidence that does not constitute gang activity as they, and even CDCR 8 officials, understand those words.32 This undermined the very purpose of notice, deprived

9 prisoners of a “fair opportunity” to remove their validations, and thus failed to safeguard against

10 erroneous deprivations of liberty. Wilkinson, 545 U.S. at 226; Toevs, 646 F.3d at 758; see also

11 Greenholtz, 442 U.S. at 15.

12

3. Gang Validation Review Every Six Years Was Insufficiently Frequent

as a Matter of Law. 13

14

Due process requires periodic review of the continued validity of the gang validation. See

15 Hewitt, 459 U.S. at 477 n.9 (there must be periodic reviews of segregation determinations). There

16 is no settled rule as to how frequently review must occur, but the Ninth Circuit has signaled that

17 annual review for segregation is insufficient. Toussaint, 801 F.2d at 1101 (“We do not believe

18 that annual review sufficiently protects plaintiffs’ liberty interest”); Brown, 751 F.3d at 988 (27

19 months without meaningful review of prison segregation violates due process); see also McQueen

20 v. Tabah, 839 F.2d 1525, 1529 (11th Cir. 1988) (11 months without review states due process

21 claim). Startlingly, class members were only reviewed for a determination of active gang 22 membership every six years.33 These “inactive reviews” were the only reviews that could result in

23 32 Miller Decl., Ex. 27 (Dewberry Decl.), ¶¶ 8-9; Ex. 28 (Esquivel Decl.), ¶ 4; Ex. 29 (Franco
24 Decl.), ¶ 2; Ex. 30 (Franklin Decl.), ¶¶ 5-6; Ex. 31 (Johnson Decl.), ¶¶ 5-6; Ex. 32 (Redd Decl.),

¶¶ 3, 5-8; Ex. 33 (Reyes Decl.), ¶¶ 10-11; Ex. 22 (Ruiz Decl.), ¶ 5; compare id., Ex. 8 (Parry 25 depo.), at 75:25-76:11 (Brian Parry, former Assistant Director at OCS, testifies that he does not

“think” that appearing on a list constitutes gang activity) with Ex. 14 (Franco 128-B-2); Ex. 15 26 (Franklin 1030); Ex. 16 (1030 Form dated Feb. 3, 2012), at CFILE072872; Ex. 17 (Garcia 128-

B) (appearing on a list used as evidence of gang activity); see also id., Ex. 34 (Vanyur depo.), at 27 182:5-183:6 (“I think the fact that one source could be used to declare you active [at an inactive

review] was not as clear to an inmate of exactly: what do I need to do these six years?”). 28 33 While class members received 180-day and annual reviews, tit. 15 §§ 3341.5(c)(2)(A)(1),

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1 a change of status from active to inactive, and the decisions were based on whether a prisoner had

2 received one “source item” at any time during the prior six years. Tit. 15 §§ 3341.5(c)(5),

3 3378(e)-(f). Miller Decl., Ex. 2 (Ducart 30(b)(6) depo.), at 230:6-16; Ex. 8 (Parry depo.) 12:1-7;

4 Ex. 3 (Frisk depo.), at 38:18-22; Ex. 5 (Hubbard depo.), at 19:6-12; Ex. 35 (Aug. 24, 2006

5 Memorandum: Documentation Concerning Active and Inactive Prison Gang Members and

6 Associates), at 2. If even one new source item was found, the prisoner was revalidated as an

7 active gang affiliate. Id., Ex. 5 (Hubbard depo.), at 19:23-20:2; Ex. 9 (CDCR Operations Manual 8 (2014)).34

9

This six-year review regime was unparalleled: no other prison system in the United States

10 reviewed prisoners for release from the SHU so infrequently. Miller Decl., Ex. 7 (Austin Expert

11 Report), ¶ 49. Indeed, both Plaintiffs’ and Defendants’ experts agreed that six years is simply too

12 long between reviews. Id., Ex. 34 (Vanyur depo.), at 193:9-12 (reviews should occur at least

13 annually, and “in many systems, it’s probably 180 days”), 194:4-7. While courts have not set a

14 bright line rule about how frequently reviews must occur, six year reviews were plainly

15 unconstitutional. See, e.g., Brown, 751 F.3d at 988.

16

Now that CDCR no longer uses validations to place class members in SHU, it has

17 abolished the six year inactive reviews. It is thus even more difficult for class members to

18 challenge these old defective validations. Current regulations allow validated gang members

19 released from segregation to challenge their validation eleven years after that release. CAL.CODE

20 REGS. tit. 15 § 3378.10(b)(1) (2017).

21

22

23 3378(c)(7), CDCR acknowledges that these reviews did not and could not result in release from

the SHU or change in gang status; indeed, the committees that ran these reviews were not 24 authorized to release a prisoner from the SHU. Miller Decl., Ex. 2 (Ducart 30(b)(6) depo.), at

225:9-226:1, 228:2-6, 230:6-16; Ex. 36 (180-day and Annual Review Records), at 25 PEL00000197, PEL00006258, PEL00015492, PEL00009765 (“recognized avenues for release

from SHU are through the debriefing process or through being determined to be an inactive 26 prison gang member or associate”); cf. id., Ex. 37 (Redd UCC Review Chrono) (sole question

asked at 180-day review is whether Redd was interested in debriefing). 27 34 If no new source item was discovered, the IGI submitted a request to headquarters to change

28

the prisoner’s status to “inactive.” Miller Decl., Ex. 9 (CDCR Operations Manual (2014)), § 52070.18.4; Ex. 5 (Hubbard depo.), at 20:3-7.

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B. Plaintiffs Have a Constitutionally Protected Liberty Interest in Parole

1

Consideration and in Avoiding Gang Validation.

2 Prisoners incarcerated in California have a state created liberty interest in parole that is
3 protected by the Federal Due Process Clause. See Haggard v. Curry, 631 F. 3d 931, 935-36 (9th
4 Cir. 2010); Hayward v. Marshall, 603 F. 3d 546, 561-63 (9th Cir. 2010) (en banc). Due process
5 requires that the Board of Parole Hearings (“BPH”) give “individualized consideration of all
6 relevant factors” bearing on an inmate’s parole suitability. In re Rosenkrantz, 29 Cal. 4th 616,
7 558, 655 (2002). BPH must consider only “relevant and reliable” information. CAL. CODE REGS.,
8 tit. 15 § 2449.4(b). Likewise, due process requires that the Board’s decision to deny parole have a
9 “basis in fact;” otherwise it is “arbitrary and capricious” and “violate[s] established principles of
10 due process of law.” In re Lawrence, 44 Cal. 4th 1181, 1204-05 (2008). To deny parole, the
11 Board must provide “more than rote recitation of the relevant factors with no reasoning
12 establishing a rational nexus between those factors and the necessary basis for the ultimate
13 decision—the determination of current dangerousness.” Id. at 1210 (also holding that “a policy of
14 rejecting parole . . . , without individualized treatment and due consideration, deprives an inmate
15 of due process of law”) (citing Rosenkrantz, 29 Cal. 4th at 684). Thus, prisoners have a liberty
16 interest in receiving individualized consideration of all relevant factors bearing on parole
17 suitability.
18 When a state creates such a liberty interest, “the Due Process Clause requires fair
19 procedures for its vindication—and federal courts will review the application of those
20 constitutionally required procedures.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). At a
21 minimum, a prisoner subject to parole must be allowed an opportunity to be heard and provided a
22 statement of the reasons why parole was denied. Id., citing Greenholz, 462 U.S. at 16. Where
23 prisoners who otherwise are qualified to apply for parole are denied these basic procedural
24 protections by being disqualified from any opportunity for parole consideration, they are deprived
25 of a constitutionally recognized liberty interest.
26 Because it disqualifies them from Proposition 57 relief, described below, prisoners also
27 have a direct liberty interest in avoiding gang validation. See Wilkinson, 545 U.S. at 224 (noting
28

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1 impact of OSP placement on parole eligibility as reason for finding of a liberty interest); Sandin,

2 515 U.S. 472, 487 (1995); Serrano, 345 F.3d at 1078; Keenan, 83 F.3d at 1089; see also, section

3 IV.A.1.a, supra.

4

C. CDCR’s Continued Use and Retention of Gang Validations Has a Systemic

and Ongoing Effect in the Denial of Parole. 5

6

As shown above, CDCR’s previous gang validation procedures violated due process, and

7 CDCR prisoners have a liberty interest in avoiding such validations, and in a fair opportunity for

8 parole. CDCR is depriving prisoners of those liberty interests in two ways: first, it is using

9 decisions made under the old validation procedures to render Ashker class members categorically

10 ineligible for Proposition 57 relief; second, by retaining the validations on files accessible to the

11 parole board, CDCR is denying Ashker class members a fair parole hearing unmarred by reliance

12 on constitutionally infirm information.

13

1. The Blanket Denial of Proposition 57 Parole Consideration Based on

Gang Validation is Unconstitutional. 14

15

With the 2016 passage of Proposition 57, California voters amended the State

16 Constitution to provide a parole opportunity for prisoners with nonviolent convictions, as

17 follows: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall

18 be eligible for parole consideration after completing the full term for his or her primary offense.”

19 CAL. CONST. art. I, § 32(a)(1).

20

The law required CDCR to adopt regulations in furtherance of its provisions (id. § 32(b)),

21 and CDCR consequently promulgated a “Public Safety Screening and Referral” procedure. CAL.

22 CODE. REGS., tit. 15 § 3492 (2017). This new procedure is designed to screen certain prisoners

23 out of parole consideration. Only those prisoners who pass this screening are referred to the

24 Board of Parole Hearings for an individualized determination of their suitability for release.

25 Miller Decl., Ex. 38 (CDCR Notice of Change of Regulations), at 4 (“Only inmates who pass this

26 public-safety screening are referred to the board.”).

27

Among CDCR’s various disqualifiers are those non-violent offenders whose “prison

28 record indicates they have been placed in a security housing unit for any involvement with a

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1 Security Threat Group (i.e., prison gang) in the past five years.” Miller Decl., Ex. 38 (CDCR

2 Notice of Change of Regulations), at 4. This means that CDCR is treating all Ashker class

3 members validated or found active in a six-year review under the old procedures and still in

4 indeterminate SHU in 2012 or later as categorically ineligible for Prop 57 parole consideration.

5 As described in section V.A above, the procedures by which CDCR made these decisions

6 violated due process. By using those flawed validations as the exclusive basis for the absolute

7 disqualification of Proposition 57 parole consideration, CDCR extends and exacerbates the

8 constitutional violation.

9

CDCR rationalizes this categorical disqualification on the faulty premise that

10 “[p]lacement in a security housing unit is reserved for the most serious offenses committed in

11 prison, clearly indicating that the nonviolent offender continues to pose a risk to public safety.”

12 Miller Decl., Ex. 38 (CDCR Notice of Change of Regulations), at 4. That should be true going

13 forward, now that the Settlement Agreement limits SHU placement to those found guilty of a

14 SHU-eligible offense, but it certainly was not true of those Ashker class members who were

15 assessed SHU terms during the relevant period for having a book by George Jackson, or because

16 their name appeared on a list. See supra, p. 55.

17

Since July 1, 2017, when CDCR began implementing its Proposition 57 screening

18 procedures under title 15 section 3492(a), CDCR has disqualified at least six class members as

19 “not eligible for review as a nonviolent offender.” Miller Decl., Ex. 39 (Inmate Board Actions).

20

provides a recent example, demonstrating that CDCR’s policy is a total bar on Prop

21 57 eligibility for many Ashker class members. See id. at 8 (noting “an indeterminate SHU term

22 assessment due to an Aryan Brotherhood gang connection.

was housed in the SHU

23 during 2015. BPH NV policy excludes from review those cases in which an inmate received a

24 SHU Term Assesment and/or the SHU housing is within 5 years of review. As such, this case is

25 jurisdictionally excluded from NV review.”); see also, id., Ex. 40 (Shannon Hogg E-mail)

26 (stating another Ashker class member “is not eligible for the non-violent review process because

27 he was still serving an indeterminate SHU term and was housed in SHU housing as recent as

28 11/10/14 . . . . [H]e was housed in SHU housing which makes him ineligible.”).

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1

This is a systemic violation, based on explicit CDCR policy. Plaintiffs thus ask the Court

2 to hold that the regulation at issue is unconstitutional and order CDCR to refer all nonviolent

3 prisoners who have been, or otherwise would be, disqualified due to being assessed a SHU term

4 for an STG reason within the past five years to be referred to the Board of Parole Hearings for

5 parole consideration under Prop 57.

6

2. CDCR’s Use of Past Gang Validations to Prevent Class Members with

Life Sentences from the Opportunity for Parole Violates the

7

Constitution.

8

Prior validations also continue to affect Ashker class members’ eligibility for parole

9 outside the Prop 57 context. Because CDCR retains the old validation decisions in prisoners’

10 files, and because CDCR has not acknowledged that these validations are flawed, the BPH—

11 which has access to those records (tit. 15 § 3370(e))—understandably relies on the validations in

12 making its parole determinations. This deprives numerous class members with life sentences of a

13 liberty interest by denying them a fair opportunity to seek release from incarceration through a

14 parole hearing unmarred by constitutionally flawed information.

15

Plaintiffs’ extensive review of the parole transcripts of many class members since their

16 Ashker reviews and release from SHU shows that gang validation is a significant factor in parole

17 consideration and risk rating. Miller Decl., ¶¶ 42-56 (Parole Board Hearing transcripts and

18 Comprehensive Risk Assessments for class members

19

). As CDCR is

20 aware, parole commissioners remain concerned with gang status notwithstanding a prisoner’s

21 release from SHU. During parole review, the simple fact of a prisoner’s validation raises a

22 presumption of actual gang activity or affiliation. As one Commissioner put it bluntly:

23

24

Id., Ex. 51 (

Transcript), at 67:18-

25 24. The presumption is unequivocal, as the truth and accuracy of the validation goes

26 unquestioned by BPH. As a Commissioner made clear:

27

28

MOTION FOR EXTENSION

61

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 71 of 75

1

Id., Ex. 52 (

Transcript), at 193:6-11; see also id., Ex. 50

2(

Transcript), at 98-99, 152.

3

The fact of a validation by CDCR remains damning even where the prisoner has engaged

4 in extensive programming and/or had a long history of discipline-free behavior. For example,

5 BPH issued a three-year denial of parole for a prisoner who had been discipline-free for decades,

6 with a Commissioner explaining:

7

8

.” Miller

9 Decl., Ex. 42 (

Transcript), at 79:24-80:4. The Commissioner further stated: “

10

11

12

13

14

15

Id., Ex. 42 (

Transcript), at 81:20-82:7. Other prisoners in similar

16 circumstances—with positive programming and no recent disciplinary history—have also been

17 unable to mitigate the impact of the past validations. See, e.g., id., Ex. 47 (BPH Comprehensive

18 Risk Assessment of

), at 10-13 (a forensic psychologist noted, “

19

20

21

22

23

24

When prisoners dispute their validation status or the use of confidential information,

25 commissioners consider the challenge as evidence of dishonesty and lack of credibility, which

26 supports the denial of parole. See, e.g., Miller Decl., Ex. 52 (

Transcript), at 187:10-119

27 (Commissioner: “

28

MOTION FOR EXTENSION

62

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 72 of 75

1

2

In many cases, the commissioners directly state that debriefing is the only means of having a

3 chance for parole. For example, a Commissioner addressed a prisoner who stated that he had not

4 participated with a gang in over two decades, by stating:

5

6

7

Id.,

8 Ex. 43 (

Transcript), at 118:7-13; see also id., Ex. 43 at 54-55. Similarly, in a

9 Comprehensive Risk Assessment, the forensic psychologist credited the prisoner for having no

10 115s since 2001 and that programming efforts indicate a positive direction, yet stated:

11

12

13

Id., Ex. 48

14 (

BPH Comprehensive Risk Assessment), at 17; see also id., Ex. 53 (

Transcript),

15 at 22:24-23:2 (Comprehensive Risk Statement asserts

16

”). In fact, Plaintiffs are unaware of any recent applications of validated

17 prisoners for parole that have been granted. Id., ¶ 57.35

18

To be clear, Plaintiffs do not challenge Parole Board procedures or decisions; it is

19 CDCR’s continued retention of the old validations and their unqualified transmittal to BPH that is 20 the problem.36 CDCR and outside experts agree that the old validations were reached by faulty

21 procedures, and resulted in overclassifying prisoners as gang members. That CDCR retains and

22 allows these faulty validations to affect Plaintiffs’ parole opportunities is a continuing violation

23 of their due process rights. To ensure a legal process that minimizes the “risk of erroneous

24
25 35 Even if a few gang-validated prisoners were to receive parole, there can be no dispute that gang validation is a substantial barrier.
26 36 Plaintiffs recognize that active gang membership and gang-related misconduct could be a legitimate criterion for the Parole Board to consider. However, using gang validation or six-year
27 review determinations that occurred prior under the old regulations as a proxy for gang activity and membership is constitutionally invalid because, as discussed in section V.A above, the risk
28 of error in that process was substantial.

MOTION FOR EXTENSION

63

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 73 of 75

1 decisions” involving an important liberty interest, CDCR must expunge the old validations, or

2 inform the BPH that they cannot be treated as reliable.

3

D. Relief for CDCR’s Systemic Due Process Violations Involving the Fair

Opportunity for Parole 4

5

To remedy CDCR’s systemic due process violations regarding class members’ fair

6 opportunity for parole, Plaintiffs ask that the Court: (1) order that Defendants expunge all past

7 validations and revalidations made in violation of due process and which may be used in the

8 consideration of class members applying for parole, and (2) hold that CDCR’s regulation

9 implementing Proposition 57 is unconstitutional and order CDCR to refer all nonviolent prisoners

10 who have been, or otherwise would be, disqualified due to being assessed a SHU term for an

11 STG reason within the past five years to be referred to the Board of Parole Hearings for parole

12 consideration.

13 VI. CONCLUSION

14

For the foregoing reasons, Plaintiffs respectfully request that the Court find that

15 Defendants have engaged in a current and ongoing systemic violation of Due Process by failing

16 to ensure the accuracy and reliability of confidential information, improperly administering the

17 RCGP unit, and denying class members the opportunity to seek parole based on unconstitutional

18 gang validations. To remedy these ongoing violations, Plaintiffs seek a one year extension of the

19 Settlement Agreement and the Court’s jurisdiction, to run from the date of the Court’s order on

20 this matter, as well as the specific relief described above.

21 DATED: November 20, 2017
22

Respectfully submitted,

23 By: /s/ Carmen E. Bremer

24

CARMEN E. BREMER (pro hac vice)

25

Email: carmen.bremer@bremerlawgroup.com

26

BREMER LAW GROUP PLLC 1700 Seventh Avenue, Suite 2100

27

Seattle, WA 98101

Tel: (206) 357-8442

28

Fax: (206) 858-9730

MOTION FOR EXTENSION

64

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 74 of 75

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOTION FOR EXTENSION

JULES LOBEL (pro hac vice) Email: jll4@pitt.edu RACHEL MEEROPOL (pro hac vice) Email: rachelm@ccrjustice.org SAMUEL MILLER (Bar No. 138942) Email: samrmiller@yahoo.com A. AZURE WHEELER (pro hac vice) Email: awheeler@ccrjustice.org CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: (212) 614-6432 Fax: (212) 614-6499

ANNE CAPPELLA (Bar No. 181402) Email: anne.cappella@weil.com WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 Tel: (650) 802-3000 Fax: (650) 802-3100

CAROL STRICKMAN (SBN 78341) Email: carol@prisonerswithchilodren.org LEGAL SERVICES FOR PRISONERS WITH CHILDREN 1540 Market Street, Suite 490 San Francisco, CA 94102 Tel: (415) 255-7036 Fax: (415) 552-3150

CHARLES F.A. CARBONE (Bar No. 206536) Email: Charles@charlescarbone.com LAW OFFICES OF CHARLES CARBONE P. O. Box 2809 San Francisco, CA 94126 Tel: (415) 981-9773 Fax: (415) 981-9774

MARILYN S. MCMAHON (SBN 270059) Email: Marilyn@prisons.org CALIFORNIA PRISON FOCUS P.O. Box 1129 2000 Allston Way Berkeley, CA 94701 Tel: (510) 734-3600 Fax: (510) 836-7222

65

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 905 Filed 11/20/17 Page 75 of 75

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOTION FOR EXTENSION

ANNE BUTTERFIELD WEILLS (SBN 139845) Email: abweills@gmail.com SIEGEL, YEE & BRUNNER 475 14th Street, Suite 500 Oakland, CA 94612 Tel: (510) 839-1200 Fax: (510) 444-6698
Attorneys for Plaintiffs

66

CASE NO. 4:09-CV-05796-CW

 
 Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 1 of 5

United States District Court Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 TODD ASHKER, et al.,

9

Plaintiffs,

10

v.

11 GOVERNOR OF THE STATE OF CALIFORNIA, et al.,
12 Defendants.
13

No. 09-cv-05796-CW
ORDER REGARDING PLAINTIFFS' MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE REGARDING PRODUCTION OF DOCUMENTS REQUIRED BY SETTLEMENT AGREEMENT

14

(Dkt No. 793)

15 Before the Court is Plaintiffs’ motion for de novo
16 determination of dispositive matters referred to the magistrate
17 judge regarding the production of documents pursuant to the
18 parties’ Settlement Agreement. Defendants filed an opposition to
19 the motion and Plaintiffs filed a reply. Having considered the
20 papers, the Court GRANTS the motion.
21
FACTUAL BACKGROUND 22
On June 9, 2017, Plaintiffs moved to compel the production 23
of documents pursuant to paragraph 37(h) of the Settlement 24
Agreement. Docket No. 702. On August 30, 2017, Judge Vadas 25
denied Plaintiffs’ motion. Docket No. 785. Judge Vadas held 26
that paragraph 37(h) “concerned gang validated inmates.” Id. at 27
3. In particular, Judge Vadas based his decision on the fact 28

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 2 of 5

United States District Court Northern District of California

1 that paragraph 37(h) states that “the documents to be produced

2 must be related to the inmate’s validation ‘and’ the senior

3 hearing officer’s final disciplinary decision.” Id.

4

Plaintiffs then brought the instant motion to challenge

5 Judge Vadas’ order, which is subject to review under 28 U.S.C.

6 § 636(b)(1)(B). See Settlement Agreement ¶ 53.

7

LEGAL STANDARD

8

This Court reviews de novo Judge Vadas’ decision. Docket

9 No. 486-3, Settlement Agreement ¶ 53 (“An order issued by

10 Magistrate Judge Vadas under this Paragraph is subject to review

11 under 28 U.S.C. § 636(b)(1)(B).”). “A judge of the court may

12 accept, reject, or modify, in whole or in part, the findings or

13 recommendations made by the magistrate judge. The judge may also

14 receive further evidence or recommit the matter to the magistrate

15 judge with instructions.” 28 U.S.C. § 636(b)(1).

16

DISCUSSION

17

Paragraph 37(h) of the Settlement Agreement states:

18

The following documents shall be produced on a

quarterly basis regarding all inmates found guilty of a

19

SHU-eligible offense with a nexus to an STG: (i) STG

Unit Classification Committee validation

20

determinations; and (ii) the decision of the hearing

officer to find the inmate guilty of a SHU-eligible

21

offense. Defendants also shall produce on a quarterly

basis a randomly chosen representative sample of the

22

documents relied upon for the validation determinations

and RVR decisions for these inmates, including redacted

23

confidential information. [ . . . ]

24

The fundamental rules of contract interpretation are based

25 on the premise that the interpretation of a contract must give

26 effect to the “mutual intention” of the parties. Waller v. Truck

27 Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995), as modified on denial

28 of reh’g (Oct. 26, 1995). Contractual terms are “understood in

2

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 3 of 5

United States District Court Northern District of California

1 their ordinary and popular sense, rather than according to their

2 strict legal meaning, unless used by the parties in a technical

3 sense, or unless a special meaning is given to them by usage.”

4 Cal. Civ. Code § 1644; see also Waller, 11 Cal. 4th at 18.

5

A plain reading of paragraph 37(h) reveals that, for “all

6 inmates found guilty of a SHU-eligible offense with a nexus to an

7 STG,” Defendants must produce two categories of documents, to the

8 extent that they exist. The fact that paragraph 37(h) requires

9 Defendants to produce documents related to validation does not

10 define or limit the group of inmates whose documents are subject

11 to production. If the contracting parties wished to limit the

12 group of inmates whose documents are subject to product to only

13 gang-validated inmates, they would have done so explicitly. The

14 Settlement Agreement uses the term “validated inmates” elsewhere,

15 such as paragraphs six, seven, and twenty-five. The contract

16 should be interpreted to give that term a different meaning.

17 Foothill Properties v. Lyon/Copley Corona Assocs., 46 Cal. App.

18 4th 1542, 1550 (1996) (“The whole of a contract is to be taken

19 together, so as to give effect to every part, if reasonably

20 practicable, each clause helping to interpret the other.”); see

21 also United States ex rel. Welch v. My Left Foot Children's

22 Therapy, LLC, 871 F.3d 791, 797 (9th Cir. 2017) (in contract

23 interpretation, “if possible, every word and every provision is

24 to be given effect”).

25

Defendants contend the settlement and the certified class

26 are limited to gang-validated inmates. Not so. Paragraph five

27 of the Settlement Agreement characterizes the certified class as

28 “(i) all inmates assigned to an indeterminate term at Pelican

3

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 4 of 5

United States District Court Northern District of California

1 Bay’s SHU on the basis of gang validation, under CDCR’s policies

2 and procedures, as of September 10, 2012; and (ii) all inmates

3 who are now, or will be in the future, assigned to Pelican Bay’s

4 SHU for ten or more continuous years.” Subpart (ii) of the

5 definition of the certified class does not require inmates to be

6 gang-validated. Moreover, nothing in the Settlement Agreement

7 limits the documents to be produced to the certified class. See

8 generally Settlement Agreement ¶ 37. Indeed, Defendants have

9 produced documents pursuant to the Settlement Agreement for non-

10 validated inmates. See Declaration of Carmen F. Bremer (Bremer

11 Decl.) in Support of Reply Brief ¶ 3.

12

The impact of this decision is that Defendants will have to

13 produce documents for inmates who have been found guilty of a

14 SHU-eligible offense with a nexus to an STG, but who have not

15 been gang-validated. This interpretation of paragraph 37(h) is

16 not likely to unduly burden Defendants. As Plaintiffs noted,

17 Defendants have only produced documents regarding approximately

18 thirty STG-validated prisoners who have been found guilty of a

19 SHU-eligible offense with an STG nexus during the monitoring

20 period. Bremer Decl. in Support of Motion ¶ 2. The number of

21 inmates found guilty of a SHU-eligible offense with a nexus to an

22 STG, but not yet gang-validated, is likely to be similar.

23 Defendants have not presented any evidence to the contrary.

24

CONCLUSION

25

Plaintiffs’ motion for de novo determination of dispositive

26 matter referred to magistrate judge regarding production of

27 documents required Settlement Agreement (Docket No. 793) is

28 GRANTED. Defendants shall produce all documents required by the

4

Case 4:09-cv-05796-CW Document 970 Filed 02/06/18 Page 5 of 5

United States District Court Northern District of California

1 Court’s interpretation of paragraph 37(h) of the Settlement

2 Agreement within 15 days of the date of this order.

3

IT IS SO ORDERED.

4 Dated: February 6, 2018 5 6

CLAUDIA WILKEN United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5

 
 Case 4:09-cv-05796-CW Document 1025 Filed 07/03/18 Page 1 of 3

1 JULES LOBEL (pro hac vice)

Email: jll4@pitt.edu 2 RACHEL MEEROPOL (pro hac vice)

3

Email: rachelm@ccrjustice.org SAMUEL MILLER, State Bar No. 138942

4 Email: samrmiller@yahoo.com CENTER FOR CONSTITUTIONAL RIGHTS

5 666 Broadway, 7th Floor

6

New York, NY 10012 Tel: (212) 614-6432

7 Fax: (212) 614-6499

8 CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com
9 BREMER LAW GROUP PLLC

10

1700 Seventh Avenue, Suite 2100 Seattle, WA 98101

11

Tel: (206) 357-8442 Fax: (206) 858-9730

12

Attorneys for Plaintiffs 13 (Additional counsel listed on signature page)

14 UNITED STATES DISTRICT COURT
15 NORTHERN DISTRICT OF CALIFORNIA
16 OAKLAND DIVISION
17

18 TODD ASHKER, et al.,
19 Plaintiffs,
20 v.
21 GOVERNOR OF THE STATE OF
22 CALIFORNIA, et al.,

23

Defendants.

24

Case No. 4:09-cv-05796-CW
CLASS ACTION
PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL
Date: August 21, 2018 Time: 10:00 a.m. Location: Courtroom D – 15th Floor Honorable Robert M. Illman

25

26

27

28

MOTION FOR ADMINISTRATIVE RELIEF

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025 Filed 07/03/18 Page 2 of 3

1

Plaintiffs have reviewed and complied with the United States District Court for the Northern

2 District of California Standing Order Governing Administrative Motions to File Under Seal and

3 Declaration in Support of Sealing in filing this motion. Pursuant to Civil Local Rules 7-1, 79-5, and

4 General Order 62, Plaintiffs hereby bring this Administrative Motion to Seal portions of Plaintiffs’

5 Supplemental Brief In Support of Motion for Extension of Settlement Agreement Based on Systemic

6 Due Process Violations, portions of the Supplemental Declaration of Rachel Meeropol in Support of

7 Plaintiffs’ Supplemental Brief, as well as Exhibits 1 through 35 to said declaration (collectively, the

8 “Confidential Materials”).

9

The Confidential Materials contain or reflect information that was designated by Defendants as

10 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under the Protective Order issued in

11 this case (ECF No. 181).

12 DATED: July 3, 2018

Respectfully submitted,

13

14

By: /s/ Carmen E. Bremer

15

CARMEN E. BREMER (pro hac vice)

Email: carmen.bremer@bremerlawgroup.com

16

BREMER LAW GROUP PLLC

17

1700 Seventh Avenue, Suite 2100 Seattle, WA 98101

18

Tel: (206) 357-8442 Fax: (206) 858-9730

19

JULES LOBEL (pro hac vice)

20

Email: jll4@pitt.edu

21

RACHEL MEEROPOL (pro hac vice) Email: rachelm@ccrjustice.org

22

SAMUEL MILLER (Bar No. 138942) Email: samrmiller@yahoo.com

23

CENTER FOR CONSTITUTIONAL RIGHTS

666 Broadway, 7th Floor

24

New York, NY 10012

25

Tel: (212) 614-6432 Fax: (212) 614-6499

26

ANNE CAPPELLA (Bar No. 181402)

27

Email: anne.cappella@weil.com

WEIL, GOTSHAL & MANGES LLP

28

201 Redwood Shores Parkway

Redwood Shores, CA 94065-1134

MOTION FOR ADMINISTRATIVE RELIEF

1

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025 Filed 07/03/18 Page 3 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
MOTION FOR ADMINISTRATIVE RELIEF

Tel: (650) 802-3000 Fax: (650) 802-3100
CAROL STRICKMAN (SBN 78341) Email: carol@prisonerswithchilodren.org LEGAL SERVICES FOR PRISONERS WITH CHILDREN 1540 Market Street, Suite 490 San Francisco, CA 94102 Tel: (415) 255-7036 Fax: (415) 552-3150
CHARLES F.A. CARBONE (Bar No. 206536) Email: Charles@charlescarbone.com LAW OFFICES OF CHARLES CARBONE P. O. Box 2809 San Francisco, CA 94126 Tel: (415) 981-9773 Fax: (415) 981-9774
MARILYN S. MCMAHON (SBN 270059) Email: Marilyn@prisons.org CALIFORNIA PRISON FOCUS P.O. Box 1129 2000 Allston Way Berkeley, CA 94701 Tel: (510) 734-3600 Fax: (510) 836-7222
ANNE BUTTERFIELD WEILLS (SBN 139845) Email: abweills@gmail.com SIEGEL, YEE & BRUNNER 475 14th Street, Suite 500 Oakland, CA 94612 Tel: (510) 839-1200 Fax: (510) 444-6698
Attorneys for Plaintiffs

2

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-1 Filed 07/03/18 Page 1 of 3

1 JULES LOBEL (pro hac vice)

Email: jll4@pitt.edu 2 RACHEL MEEROPOL (pro hac vice)

3

Email: rachelm@ccrjustice.org SAMUEL MILLER, State Bar No. 138942

4 Email: samrmiller@yahoo.com CENTER FOR CONSTITUTIONAL RIGHTS

5 666 Broadway, 7th Floor

6

New York, NY 10012 Tel: (212) 614-6432

7 Fax: (212) 614-6499

8 CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com
9 BREMER LAW GROUP PLLC

10

1700 Seventh Avenue, Suite 2100 Seattle, WA 98101

11

Tel: (206) 357-8442 Fax: (206) 858-9730

12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17

18 TODD ASHKER, et al.,

19

Plaintiffs,

20

v.

21

GOVERNOR OF THE STATE OF CALIFORNIA, et al.,

22

Defendants.

23

24

Case No. 4:09-cv-05796-CW
CLASS ACTION
DECLARATION OF CARMEN E. BREMER IN SUPPORT OF PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE UNDER SEAL
Date: August 21, 2018 Time: 10:00 a.m. Location: Courtroom D – 15th Floor Honorable Robert M. Illman

25

26

27

28

BREMER DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-1 Filed 07/03/18 Page 2 of 3

1

I, Carmen E. Bremer, declare:

2

1. I am an attorney duly admitted to practice before this Court, a member of Bremer Law

3 Group PLLC, and counsel of record for Plaintiffs in the above-captioned matter. I submit this

4 declaration in support of Plaintiffs’ Administrative Motion to File Documents Under Seal. I have

5 personal knowledge of the facts set forth herein and if called as a witness, I could and would

6 competently testify thereto.

7

2. Good cause under Fed. R. Civ. P. 26(c) is sufficient to seal discovery material attached

8 to non-dispositive motions. Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1180 (9th Cir.

9 2006). Rule 26(c) gives the district court wide discretion to protect the interests of private parties and

10 to determine when good cause has been shown. Id.; see also Dugan v. Lloyds TSB Bank, PLC, No. 12-

11 cv-02549-WHA (NJV), 2013 U.S. Dist. LEXIS 51162, at *5 (N.D. Cal. Apr. 9, 2013) (finding that

12 good cause may exist to seal records “if disclosure of the information might harm a litigant’s

13 competitive standing”). Plaintiffs seek to seal references to discovery documents in a declaration and

14 exhibits filed in support of a non-dispositive motion.1 Good cause exists to seal references to these

15 documents because they contain or reflect confidential information that Defendants claim to affect

16 institutional safety and security. By designating the information “HIGHLY CONFIDENTIAL –

17 ATTORNEYS’ EYES ONLY,” Defendants have taken the position that disclosure would reveal

18 details related to housing decisions and the investigative process used by correctional officers to

19 investigate alleged criminal behavior within CDCR’s institutions and could further compromise

20 ongoing investigations of alleged prison gang activity. Therefore, good cause exists to seal portions of

21 Plaintiffs’ Supplemental Brief In Support of Motion To Extend the Settlement Agreement Based on

22 Systemic Due Process Violations, portions of the Supplemental Declaration of Rachel Meeropol in

23

24 1 Because Plaintiffs’ Supplemental Brief In Support Of Motion To Extend the Settlement Agreement

25

Based on Systemic Due Process Violations, and this Court’s jurisdiction is not expressly contemplated by the Federal Rules of Civil Procedure, and Paragraph 41 of the Settlement Agreement giving rise to

26

Plaintiffs’ right to file such a motion is silent on the issue, it is unclear whether the motion constitutes a dispositive motion for purposes of Kamakana’s holding. To the extent Plaintiffs’ supplemental brief in

27

support of extension motion is a dispositive motion, Plaintiffs submit that there are “compelling reasons” supporting the secrecy of information contained in the motion and its supporting materials, so

28 sealing is nevertheless appropriate. Kamakana, 447 F.3d at 1080.

BREMER DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF

1

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-1 Filed 07/03/18 Page 3 of 3

1 Support of Plaintiffs’ Reply, as well as Exhibits 1 through 35 to said declaration that constitute,

2 summarize, and discuss the information (collectively, the “Confidential Materials”).

3

3. I have reviewed the Confidential Materials. The Confidential Materials reflect

4 confidential information that Defendants claim would harm institutional safety and security, and would

5 further compromise ongoing investigations of alleged prison gang activity if disclosed. Therefore,

6 pursuant to Civil Local Rule 79-5(a) and both the good cause and compelling reasons standards

7 described in Kamakana, 447 F.3d at 1180, good cause and compelling reasons exists to seal the

8 Confidential Materials.

9

I declare under penalty of perjury under the laws of the United States of America that the

10 foregoing is true and correct.

11

Executed on July 3, 2018, at Seattle, Washington.

12

13

/s/ Carmen E. Bremer

Carmen E. Bremer

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BREMER DECLARATION IN SUPPORT OF MOTION FOR ADMINISTRATIVE RELIEF

2

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-2 Filed 07/03/18 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT 9

NORTHERN DISTRICT OF CALIFORNIA 10

OAKLAND DIVISION 11

12 TODD ASHKER, et al.,

Case No.: 4:09-cv-05796-CW

Plaintiffs,

CLASS ACTION

13

v. 14

[PROPOSED] ORDER GRANTING PLAINTIFFS’ ADMINISTRATIVE

GOVERNOR OF THE STATE OF 15 CALIFORNIA, et al.,

MOTION TO FILE UNDER SEAL

16

Defendants.

Date: Time:

August 21, 2018 10:00 a.m.

17

Location: Courtroom D – 15th Floor Honorable Robert M. Illman

18

19

20

The Court has received Plaintiffs’ Administrative Motion to File Under Seal, and the

21 Declaration of Carmen E. Bremer in support of the same. Pursuant to Civil Local Rule 79-5(a),

22 Plaintiffs have shown that the portions of the documents to be sealed are entitled to protection

23 under the law because they contain confidential information that Defendants claim could harm

24 CDCR institutional safety and security if disclosed. See Dugan v. Lloyds TSB Bank, PLC, No. 25 12-cv-02549-WHA (NJV), 2013 U.S. Dist. LEXIS 51162, at *5 (N.D. Cal. Apr. 9, 2013)

26 (finding that good cause may exist to seal records “if disclosure of the information might harm

27 a litigant’s competitive standing”). Plaintiffs have met the “good cause” standard for sealing

28 portions of Plaintiff’s Supplemental Brief In Support of Motion to Extend the Settlement

[PROPOSED] ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-2 Filed 07/03/18 Page 2 of 2

1 Agreement Based on Systemic Due Process Violations, portions of the Supplemental

2 Declaration of Rachel Meeropol in Support of Plaintiffs’ Supplemental Brief, as well as

3 Exhibits 1 through 35 to said declaration, (collectively, the “Confidential Material”), because

4 Plaintiffs have shown that they contain confidential information that Defendants claim would

5 harm institutional safety and security, and would further compromise ongoing investigations of

6 alleged prison gang activity if disclosed. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d

7 1172, 1179 (9th Cir. 2006).1

8

Having considered Plaintiffs’ Administrative Motion to File Under Seal and the

9 Declaration of Carmen E. Bremer in support of same, and good cause appearing therefor,

10 Plaintiffs’ Motion is hereby GRANTED.

11

12 IT IS SO ORDERED.

13

14 Dated: ____________________, 2018 15 16

By: Honorable Robert M. Illman United States Magistrate Judge

17

18

19

20

21

22

23

24

25

26

27

1 To the extent Plaintiffs’ Supplemental Brief In Support of Motion to Extend the Settlement Agreement Based on Systemic Due Process Violations is properly considered a dispositive motion

28 within the procedural context of this case, this Court further finds that there are “compelling

reasons” supporting the secrecy of the Confidential Materials. Kamakana, 447 F.3d at 1180.

[PROPOSED] ORDER GRANTING MOTION FOR ADMINISTRATIVE RELIEF

2

CASE NO. 4:09-CV-05796-CW

Case 4:09-cv-05796-CW Document 1025-3 Filed 07/03/18 Page 1 of 20

1 JULES LOBEL (pro hac vice)

Email: jll4@pitt.edu 2 RACHEL MEEROPOL (pro hac vice)

3

Email: rachelm@ccrjustice.org SAMUEL MILLER, State Bar No. 138942

4 Email: samrmiller@yahoo.com CENTER FOR CONSTITUTIONAL RIGHTS

5 666 Broadway, 7th Floor

New York, NY 10012 6 Tel: (212) 614-6432

7 Fax: (212) 614-6499

8 CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com

9 BREMER LAW GROUP PLLC

10

1700 Seventh Avenue, Suite 2100 Seattle, WA 98101

11

Tel: (206) 357-8442 Fax: (206) 858-9730

12

Attorneys for Plaintiffs 13 (Additional counsel listed on signature page)

14

15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

OAKLAND DIVISION

18 TODD ASHKER, et al.,

19 Plaintiffs,
20
v. 21

22

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

23 Defendants.
24

25

26

Case No.: 4:09-cv-05796-CW
CLASS ACTION
PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR EXTENSION OF SETTLEMENT AGREEMENT BASED ON SYSTEMIC DUE PROCESS VIOLATIONS
Date: August 21, 2018 Time: 10:00 a.m. Location: Courtroom D – 15th Floor Honorable Robert M. Illman

27 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED
28

SUPP BRIEF ISO MOTION FOR EXTENSION

CASE NO. 4:09-CV-05796-CW

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1

TABLE OF CONTENTS

2

Page

3

4 INTRODUCTION ...................................................................................................................... 1

5 I. 6 7 8

THE SUPPLEMENTAL PRODUCTION PROVIDES FURTHER EVIDENCE OF CDCR’S PATTERN OF FABRICATING AND INADEQUAETLY DISCLOSING CONFIDENTIAL INFORMATION ..................... 3
A. Supplemental Evidence of Defendants’ Systemic Fabrication of Confidential Information .................................................................................... 3

9

B. Supplemental Evidence of Defendants’ Systemic Failure to

Adequately Summarize all Confidential Information that Can be

10

Disclosed without Jeopardizing Security.......................................................... 11

11 II. 12

THE SUPPLEMENTAL PRODUCTION PROVIDES FURTHER EVIDENCE OF CDCR’S PATTERN OF FAILING TO ENSURE CONFIDENTIAL INFORMATION IS RELIABLE ................................................... 12

13 CONCLUSION......................................................................................................................... 15

14

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Matthews v. Eldrige,

424 U.S. 319 (1976)................................................................................................................2

5

State v. Lawson,

6

352 Or. 724 (2012)..................................................................................................................4

7 Wilkinson v. Austin,

8

545 U.S. 209 (2005)..............................................................................................................11

9 Statutes

10 California Code of Regulations, Title 15, § 3378.4....................................................................11

11 Other Authorities

12 Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the

13

Strength of an Eyewitness’s Memory Representation, 14 J. Experimental Psychol.: Applied 139, 139, 143, 147-48 (2008)....................................................................................4

14 Steven E. Clark, Ryan T. Howell, Sherrie L. Davey, Regularities in Eyewitness

15

Identification, 32 Law & Hum. Behav. 187, 211 (2008)........................................................4

16

17

18

19

20

21

22

23

24

25

26

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28

SUPP BR ISO MOTION FOR EXTENSION

ii

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1

INTRODUCTION

2

On February 6, 2018, after Plaintiffs’ motion for an extension of the Ashker v.

3 Governor Settlement Agreement had already been filed, the District Court ordered Defendants

4 to supplement their production of certain documents relevant to that motion. Order, ECF. No.

5 970. Specifically, the Agreement required regular production of rule violation reports

6 (“RVRs”) pertaining to “all inmates found guilty of a SHU-eligible offense with a nexus to an

7 STG.” However, during the monitoring period Defendants produced only documents

8 pertaining to gang validated prisoners found guilty of a SHU-eligible offense with an STG

9 nexus. Id. Approximately 40 such files were produced, and Plaintiffs’ opening extension brief

10 identified due process concerns related to the use of confidential information in more than

11 half. See Plaintiffs’ Motion for Extension of Settlement Agreement Based on Systemic Due

12 Process Violations (“Mot. for Extension”), Nov. 20, 2017 at 8-29.

13

Pursuant to the Court’s order, CDCR has now produced hundreds more RVRs, many

14 of which utilized confidential information. Under a pre-existing agreement between the

15 parties, CDCR produced a random sample of that confidential material, amounting to

16 approximately 110 files. These files provide important new evidence in support of Plaintiffs’

17 motion to extend the monitoring period. First, unsurprisingly, the supplemental production

18 confirms the systemic nature of the due process violations uncovered in the original

19 production. Of the approximately 110 prisoners found guilty of SHU-eligible offenses with an

20 STG nexus based on confidential information whose complete files were produced by CDCR,

21 we show below how more than 45 of these RVRs were flawed because CDCR officials

22 fabricated, inadequately disclosed, or failed to independently assess the reliability of the

23 confidential information.1

24

Second, the supplemental production demonstrates that CDCR’s systemic due process

25 violations create a substantial risk of error of a prisoner being wrongfully sent to solitary for

26 years and/or losing good time credits, thus prolonging his prison term. As Plaintiffs argued in

27 1 The evidence provided herein is representative—not exhaustive—of the problems uncovered 28 in the supplemental production. An exhaustive presentation of all evidence of due process
violations in the supplemental production would require a much longer brief.

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1 our reply brief, CDCR’s systemic misuse of confidential information violates due process

2 regardless of whether other, non-fabricated evidence is adequate to find a given prisoner

3 guilty. See Plaintiffs’ Reply in Support of Mot. for Extension, Apr. 27, 2018 at 5, see also

4 Mot. for Extension at 7-8. This is because systemic fabrications and failure to ensure

5 reliability create a significant risk of error in all instances. See Matthews v. Eldrige, 424 U.S.

6 319, 335 (1976) (establishing that the due process inquiry must focus on the risk of an

7 erroneous deprivation of liberty interest through procedures used). The unacceptably high risk

8 of error endemic to CDCR’s use of confidential information is demonstrated again and again

9 in the supplemental production. As shown below, two prisoners were found guilty of

10

11

12

13

14

15

16

17

Each of these and

18 many other examples are described in detail below.

19

Third, the supplemental production highlights new patterns of abuse not fully apparent

20 from the initial, smaller production. The documents show repeated reliance by the Senior

21 Hearing Officer (“SHO”) on an investigator’s indication that confidential material is

22 corroborated,

23

See infra, p. 13-14. The new documents also show repeated instances in which prisoners

24 attempted to challenge the reliability of confidential information used against them by asking

25 reasonable and relevant questions in their disciplinary hearing, but the questions were denied

26 as irrelevant. See infra, p. 14-15.

27

Together with the strong and largely unrefuted evidentiary showing in Plaintiffs’

28 opening brief, Plaintiffs’ supplemental evidence of CDCR’s systemic misuse of confidential

SUPP BR ISO MOTION FOR EXTENSION

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1 information to send prisoners to months or years in solitary confinement demands attention

2 and relief from this Court.

3 I. 4 5

THE SUPPLEMENTAL PRODUCTION PROVIDES FURTHER EVIDENCE OF CDCR’S PATTERN OF FABRICATING AND INADEQUAETLY DISCLOSING CONFIDENTIAL INFORMATION Plaintiffs’ opening brief set forth evidence that CDCR has repeatedly “disclosed”

6 fabricated evidence, has misstated confidential information to make it appear definitive when

7 it is not, has failed to disclose exculpatory evidence, and has provided disclosures so vague

8 and general as to prevent any defense. See Mot. for Extension at 8-18. The supplemental

9 production includes many more examples of the same.

10

A. Supplemental Evidence of Defendants’ Systemic Fabrication of

Confidential Information 11

12

Plaintiffs have uncovered additional examples of the outright fabrication of

13 confidential information. For example, three prisoners were found guilty of attempted murder

14 with an STG nexus based, in large part,

15

16

17

See generally

18 Supplemental Declaration of Rachel Meeropol (hereafter “Meeropol Supp. Decl.”)

19

20

21

22

23

24

25

26

27

28

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1

A second prisoner,

2

3

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6

7

2

8

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10

11

12

13

14

15

16

17

18

19

20

21

22 2 Such an argument is well-supported. See e.g., Steven E. Clark, Ryan T. Howell, Sherrie L.

23

Davey, Regularities in Eyewitness Identification, 32 Law & Hum. Behav. 187, 211 (2008) (“Nonidentifications . . . are straightforward. They are diagnostic of a suspect’s innocence. . . .

[N]onidentifications are not merely ‘failures’ to identify the suspect, but rather carry important

24 information whose value should not be overlooked.”) Memory does not improve with time,

rather “[m]emory generally decays over time. Decay rates are exponential rather than linear,

25 with the greatest proportion of memory loss occurring shortly after an initial observation.”

26

State v. Lawson , 352 Or. 724, 746 (2012), see also Kenneth A. Deffenbacher et al., Forgetting the Once-Seen Face: Estimating the Strength of an Eyewitness’s Memory Representation, 14 J.

Experimental Psychol.: Applied 139, 139, 143, 147-48 (2008). Thus a positive identification

27 after an initial rejection is more likely an indication of contamination than an improved

28 memory. See Lawson, 352 Or. at 743.

SUPP BR ISO MOTION FOR EXTENSION

4

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1

2

3

4

5

6

3

7

provides another example of fabrication.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25 3

RVR resulting from this same incident was described in Plaintiffs’ opening brief. See

Mot. for Extension at 25-26. With CDCR’s recent production of the relevant confidential

26 memorandum in connection to

, it is now clear that

too was provided

fabricated information;

27

Compare Meeropol Decl.

Submitted in Support of Motion for Extension, Ex. II (

28 Decl. Ex. 5 (

RVR), at 28-34.

RVR) at 25, with Meeropol Supp.

SUPP BR ISO MOTION FOR EXTENSION

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1

2

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8

9

10

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13

14

15

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19

4

20

The supplemental production also provides evidence that CDCR frequently fabricates

21 the existence of a corroborating source to confirm the initial confidential informant.

22

23

24 25 4

26

27

28

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6

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1

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19

The production includes many more examples of fabrication of the existence of a

20 corroborating source, including

21

22

The obvious explanation for this pattern is an attempt by charging

23 officers to make informant statements appear more reliable and damning than they are.5

24 5 Along with outright fabrication, confidential information is frequently misstated or

25

exaggerated, perhaps through mere negligence, to make it seem more definitive or reliable. See e.g. Meeropol Supp. Decl. Ex. 12

26

27

28

SUPP BR ISO MOTION FOR EXTENSION

7

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1

In yet another pattern of fabrication, the documents show various CDCR officials

2 masking their own investigatory conclusions as the statements of confidential informants. For

3 example,

4

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SUPP BR ISO MOTION FOR EXTENSION

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1

2

3

4

5

6

7

8

9

10

11

12

Investigator conclusions are presented as evidence from confidential sources and

13 insulated from review in this same way in rule violation reports for prisoners

14

15

16

17

18

The documents also evidence a pattern of failure to disclose exonerating information.

19

20

21

22

23

24

25 6 Along with presenting investigator conclusions as confidential information, the actual

confidential information gathered against

was inaccurately disclosed.

26

27

28

SUPP BR ISO MOTION FOR EXTENSION

9

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1

2

3

Exculpatory confidential information was also withheld from

4

5

6

7

8

9

10

11

12

13

14

15

CDCR’s flawed approach to confidential information is perhaps most apparent in the

16 case of more than a dozen prisoners

17

18

19

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SUPP BR ISO MOTION FOR EXTENSION

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1

2

B. Supplemental Evidence of Defendants’ Systemic Failure to Adequately

Summarize all Confidential Information that Can be Disclosed without

3

Jeopardizing Security

4

As argued in Plaintiffs’ opening brief, CDCR also violates due process by disclosing

5 confidential information so vaguely or generally as to make it impossible for the prisoner to

6 mount a defense. See Mot. for Extension at 16-18. The supplemental production provides

7 more evidence of this systemic problem.

8

For example,

9

10

11

12

13

14

15

Without any factual

16 detail, had no way to mount a defense or understand the guilty finding.7

17

Numerous other prisoners have received disclosure forms equally vague and devoid of

18 any meaningful information. See Ex. 11

19 7
20

21

This

violates CDCR’s own rules, requiring that an STG “nexus shall be clearly articulated in the

22 specific act, as well as clearly described within the narrative of the associated Rules Violations

Report, and Findings of the Senior Hearing Officer/Hearing Officer.” 15 CCR 3378.4.

23

24

See Wilkinson v. Austin, 545 U.S. 209, 226 (2005)

(notice of factual basis for a decision “among the most important procedural mechanisms” to

25 avoid erroneous deprivation; requirement that decisionmaker provide statement of reasons

“guards against arbitrary decisionmaking”). Plaintiffs’ counsel have learned that

guilty

26 finding resulted in loss of good time credits, interfering with his projected release from prison

in February 2018. According to , a June 2018 CDCR review overturned the STG nexus,

27 but not before was relegated to an extra seven months in prison, and a year and half in

solitary. Counsel was unable to get documentation of this result in time for filing, but can

28 furnish the relevant evidence upon the Court’s request.

SUPP BR ISO MOTION FOR EXTENSION

11

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1

2

3

4

5

6

7

8

9

The production includes many more examples of identical confidential

10 disclosures, devoid of any detail at all, which Plaintiffs can provide to the Court upon request.

11 II. 12 13

THE SUPPLEMENTAL PRODUCTION PROVIDES FURTHER EVIDENCE OF CDCR’S PATTERN OF FAILING TO ENSURE CONFIDENTIAL INFORMATION IS RELIABLE Plaintiffs’ opening brief demonstrated CDCR’s systemic failure to ensure that

14 confidential information is reliable. See Mot. for Extension at 18-29. Unsurprisingly, the

15 supplemental production provides more evidence to support this due process violation.

16

First, the production bolsters Plaintiffs’ evidentiary showing that CDCR officials

17 routinely fail to undertake an independent evaluation of the reliability of confidential

18 information. In 2017, multiple prisoners

19

20

21

22

23

24

25

26

27

28

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1

2

3

4

5

6

7

8

9

10

11

This failure to undertake an independent review is not harmless.

12

13

14

15

16

Further evidence of numerous SHOs’ failure to independently assess whether CDCR

17 officials have accurately found a confidential source reliable can be seen in relation to the

18 fabrication of corroborating sources, described above. See supra, p. 6-7.

19

20

21

22

23

24

25

Other frequently used indicators of reliable information also fail to ensure reliability.

26 One frequently checked box is that “part of the information provided by the confidential

27 source is corroborated through investigation or by information provided by non-confidential

28 sources.” This factor allows a critical, uncorroborated, assertion by a confidential informant to

SUPP BR ISO MOTION FOR EXTENSION

13

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1 be viewed as reliable if one minor and possibly irrelevant confidential assertion is

2 corroborated. For example,

3

4

5

6

7

Finally, Plaintiffs’ opening brief presented a few instances where prisoners were

8 denied an opportunity to ask questions of witnesses relevant to the reliability of confidential

9 information being used against them. See e.g., Mot. for Extension at 28 (describing

10 questions about confidential source deemed irrelevant by SHO). That pattern continues in the

11 supplemental production. For example,

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

This same problem repeats again and again. Additional examples can be found in the

SUPP BR ISO MOTION FOR EXTENSION

14

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1 rule violation reports for

2

3

4

CONCLUSION

5

We have no doubt that the running of a fair prison disciplinary system is an unusually

6 difficult task, and that this difficulty is compounded by the fact that it may sometimes be

7 necessary to consider information from confidential in-custody sources to protect prisoners and

8 staff. But because the details of such information are kept from the prisoners and thus not

9 subject to the usual safeguards afforded by due process, it is vital for prison officials to

10 diligently, competently, and scrupulously deal with confidential sources. Yet as this

11 supplemental brief confirms, CDCR officials systemically sentence prisoners to prolonged

12 SHU terms based on confidential information that is fabricated, not adequately disclosed, or

13 treated in a cavalier, rote fashion by hearing officers whose institutional task and constitutional

14 duty is to determine whether the information is reliable.

15

CDCR’s systemic failures can even be illustrated in this monitoring process: the Court

16 will recall that the supplemental production was meant to include RVRs for non-validated

17 prisoners only; all relevant RVRs for validated prisoners were supposed to have been produced

18 during the monitoring period. However, the supplemental production reveals that CDCR failed

19 to originally produce at least 26 RVR packets for STG-validated prisoners. Meeropol Supp.

20 Decl. at ¶ 2, 4. This is more than one-third of the required production. Id. at ¶ 3, 4. But for

21 Judge Wilken’s decision requiring a supplemental production, these files would never have

22 been produced, even though Defendants were indisputably obligated to do so. This failure is

23 symptomatic of CDCR’s utter lack of care in running its disciplinary system, and underscores

24 the need for independent monitoring to ensure that the Defendants do not continue to send

25 people to the SHU, deny them good time credit, and prolong their time in prison based on

26 systemically slipshod, unfair and unreliable procedures.

27

28

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1 2 DATED: July 3, 2018 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SUPP BR ISO MOTION FOR EXTENSION

Respectfully submitted,

By: /s/ Carmen E. Bremer

CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com BREMER LAW GROUP PLLC 1700 Seventh Avenue, Suite 2100 Seattle, WA 98101 Tel: (206) 357-8442 Fax: (206) 858-9730

JULES LOBEL (pro hac vice) Email: jll4@pitt.edu RACHEL MEEROPOL (pro hac vice) Email: rachelm@ccrjustice.org SAMUEL MILLER (Bar No. 138942) Email: samrmiller@yahoo.com CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Tel: (212) 614-6432 Fax: (212) 614-6499

ANNE CAPPELLA (Bar No. 181402) Email: anne.cappella@weil.com WEIL, GOTSHAL & MANGES LLP 201 Redwood Shores Parkway Redwood Shores, CA 94065-1134 Tel: (650) 802-3000 Fax: (650) 802-3100

CAROL STRICKMAN (SBN 78341) Email: carol@prisonerswithchilodren.org LEGAL SERVICES FOR PRISONERS WITH CHILDREN 1540 Market Street, Suite 490 San Francisco, CA 94102 Tel: (415) 255-7036 Fax: (415) 552-3150

CHARLES F.A. CARBONE (Bar No. 206536) Email: Charles@charlescarbone.com LAW OFFICES OF CHARLES CARBONE P. O. Box 2809 San Francisco, CA 94126

16

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
SUPP BR ISO MOTION FOR EXTENSION

Tel: (415) 981-9773 Fax: (415) 981-9774
MARILYN S. MCMAHON (SBN 270059) Email: Marilyn@prisons.org CALIFORNIA PRISON FOCUS P.O. Box 1129 2000 Allston Way Berkeley, CA 94701 Tel: (510) 734-3600 Fax: (510) 836-7222
ANNE BUTTERFIELD WEILLS (SBN 139845) Email: abweills@gmail.com SIEGEL, YEE & BRUNNER 475 14th Street, Suite 500 Oakland, CA 94612 Tel: (510) 839-1200 Fax: (510) 444-6698
Attorneys for Plaintiffs

17

CASE NO. 4:09-CV-05796-CW

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1 JULES LOBEL (pro hac vice)

Email: jll4@pitt.edu 2 RACHEL MEEROPOL (pro hac vice)

3

Email: rachelm@ccrjustice.org SAMUEL MILLER, State Bar No. 138942

4 Email: samrmiller@yahoo.com CENTER FOR CONSTITUTIONAL RIGHTS

5 666 Broadway, 7th Floor

6

New York, NY 10012 Tel: (212) 614-6432

7 Fax: (212) 614-6499

8 CARMEN E. BREMER (pro hac vice) Email: carmen.bremer@bremerlawgroup.com
9 BREMER LAW GROUP PLLC

10

1700 Seventh Avenue, Suite 2100 Seattle, WA 98101

11

Tel: (206) 357-8442 Fax: (206) 858-9730

12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

NORTHERN DISTRICT OF CALIFORNIA

16

OAKLAND DIVISION

17

18 TODD ASHKER, et al.,

19

Plaintiffs,

20

v.

21

GOVERNOR OF THE STATE OF CALIFORNIA, et al.,

22

Defendants.

23

24

25

Case No. 4:09-cv-05796-CW
CLASS ACTION
SUPPLEMENTAL DECLARATION OF RACHEL MEEROPOL IN SUPPORT OF PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO EXTEND THE SETTLEMENT AGREEMENT
Date: August 21, 2018 Time: 10:00 a.m. Location: Courtroom D – 15th Floor Honorable Robert M. Illman

26

27

REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED

28

SUPP. DECL. OF RACHEL MEEROPOL ISO PLTFS’ SUPP. BR. ISO MOTION FOR EXTENSION

CASE NO. 4:09-CV-05796-CW

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1

I, Rachel Meeropol, declare under penalty of perjury that:

2

1. I am an attorney duly admitted to practice before this Court, a senior staff attorney at

3 the Center for Constitutional Rights, and counsel of record for Plaintiffs in the above-captioned matter.

4 I submit this declaration in support of Plaintiffs’ Supplemental Brief In Support of Motion to Extend

5 the Settlement Agreement. I have personal knowledge of the facts set forth herein and if called as a

6 witness, I could and would competently testify thereto.

7

2. When making its supplemental production, CDCR informed Plaintiffs’ counsel that it

8 had uncovered some Rule Violation Reports (RVRs) belonging to validated prisoners, that were not

9 produced during the monitoring period. CDCR did not indicate how many of these RVRs it located,

10 nor did CDCR provide Plaintiffs’ counsel with a list of these long-overdue files.

11

3. CDCR had produced approximately 40 RVR files during the monitoring period.

12

4. Through review of the supplemental production, I have identified 26 RVRs of validated

13 prisoners, which should have been produced during the monitoring period but were not, including the

14 RVRs for:

15

16

17

18

19

5. Due to the voluminous nature of the supplemental production, I was unable to review

20 every single document, rendering it possible that there are additional RVRs for validated prisoners in

21 the supplemental production.

22

6. Below I set forth the evidence relied on in Plaintiffs’ Supplemental Brief. Given the

23 voluminous nature of the RVR packets, I have excluded incident reports, photographs, and other

24 irrelevant material found in the production. I have also added page numbers to the documents for ease

25 of reference.

26

7. Attached as Exhibit 1 is a true and correct copy of

rule violation

27 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

28

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1

8. Attached as Exhibit 2 is a true and correct copy of

rule violation report,

2 hearing results and related documents, produced by CDCR under paragraph 37(h).

3

9. Attached as Exhibit 3 is a true and correct copy of

rule violation

4 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

5

10. Attached as Exhibit 4 is a true and correct copy of a confidential memorandum dated

6

produced by CDCR under paragraph 37(h).

7

11. Attached as Exhibit 5 is a true and correct copy of

rule violation report,

8 hearing results and related documents, produced by CDCR under paragraph 37(h).

9

12. Attached as Exhibit 6 is a true and correct copy of

rule violation

10 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

11

13. Attached as Exhibit 7 is a true and correct copy of

rule violation

12 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

13

14. Attached as Exhibit 8 is a true and correct copy of

rule violation

14 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

15

15. Attached as Exhibit 9 is a true and correct copy of

rule violation report,

16 hearing results and related documents, produced by CDCR under paragraph 37(h).

17

16. Attached as Exhibit 10 is a true and correct copy of

rule violation report,

18 hearing results and related documents, produced by CDCR under paragraph 37(h).

19

17. Attached as Exhibit 11 is a true and correct copy of

20

rule violation reports, hearing results and related documents, produced by CDCR under

21 paragraph 37(h).

22

18. Attached as Exhibit 12 is a true and correct copy of

rule violation report,

23 hearing results and related documents, produced by CDCR under paragraph 37(h).

24

19. Attached as Exhibit 13 is a true and correct copy of

rule violation report,

25 hearing results and related documents, produced by CDCR under paragraph 37(h).

26

27

28

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1

20. Attached as Exhibit 14 is a true and correct copy of

2

rule violation reports, hearing results and related documents, produced by CDCR under

3 paragraph 37(h).

4

21. Attached as Exhibit 15 is a true and correct copy of

rule violation

5 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

6

22. Attached as Exhibit 16 is a true and correct copy of

confidential

7 disclosure form and confidential memorandum, produced by CDCR under paragraph 37(h).

8

23. Attached as Exhibit 17 is a true and correct copy of

9

confidential disclosures, produced by CDCR under paragraph 37(h).

10

24. Attached as Exhibit 18 is a true and correct copy of

rule violation report,

11 hearing results and related documents, produced by CDCR under paragraph 37(h).

12

25. Attached as Exhibit 19 is a true and correct copy of

rule violation

13 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

14

26. Attached as Exhibit 20 is a true and correct copy of

15 confidential disclosure forms and confidential memoranda, produced by CDCR under paragraph 37(h).

16

27. Attached as Exhibit 21 is a true and correct copy of

17

confidential disclosure forms and confidential memoranda, produced by CDCR

18 under paragraph 37(h).

19

28. Attached as Exhibit 22 is a true and correct copy of

20

confidential disclosure forms and confidential memoranda, produced

21 by CDCR under paragraph 37(h).

22

29. Attached as Exhibit 23 is a true and correct copy of

rule

23 violation report, hearing results and related documents, produced by CDCR under paragraph 37(h).

24

30. Attached as Exhibit 24 is a true and correct copy of

rule violation

25 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

26

31. Attached as Exhibit 25 is a true and correct copy of

rule violation report,

27 hearing results and related documents, produced by CDCR under paragraph 37(h).

28

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3

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1

32. Attached as Exhibit 26 is a true and correct copy of

rule violation

2 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

3

33. Attached as Exhibit 27 is a true and correct copy of

rule violation report,

4 hearing results and related documents, produced by CDCR under paragraph 37(h).

5

34. Attached as Exhibit 28 is a true and correct copy of

confidential

6 disclosure, produced by CDCR under paragraph 37(h).

7

35. Attached as Exhibit 29 is a true and correct copy of

confidential

8 disclosure, produced by CDCR under paragraph 37(h).

9

36. Attached as Exhibit 30 is a true and correct copy of

confidential

10 disclosure, produced by CDCR under paragraph 37(h).

11

37. Attached as Exhibit 31 is a true and correct copy of excerpts from rule violation reports

12 for

13

produced by CDCR under paragraph 37(h).

14

38. Attached as Exhibit 32 is a true and correct copy of

rule violation

15 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

16

39. Attached as Exhibit 33 is a true and correct copy of

rule violation

17 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

18

40. Attached as Exhibit 34 is a true and correct copy of

rule violation

19 report, hearing results and related documents, produced by CDCR under paragraph 37(h).

20

41. Attached as Exhibit 35 is a true and correct copy of excerpts from rule violation reports

21 for

produced by CDCR under

22 paragraph 37(h).

23

I declare under penalty of perjury that the foregoing is true and correct based on my knowledge

24 and belief.

25

Executed on July 3, 2018 in New York, NY.

26

/s/ Rachel Meeropol

27

Rachel Meeropol

28

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1

ATTESTATION REGARDING SIGNATURES

2

I, Carmen E. Bremer, attest that all signatories listed, and on whose behalf the filing is

3 submitted, concur in the filing’s content and have authorized the filing.

4

5 DATED: July 3, 2018 6

By: /s/ Carmen E. Bremer Carmen E. Bremer

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SUPP. DECL. OF RACHEL MEEROPOL ISO PLTFS’ SUPP. BR. ISO MOTION FOR EXTENSION

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 Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 1 of 47

No. 18-16427
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

TODD ASHKER, ET AL., Plaintiffs-Appellees,
v.
EDMUND BROWN, JR., ET AL., Defendants-Appellants.
On Appeal from the United States District Court for the Northern District of California, No. 4:09-cv-05796-CW Hon. Claudia Wilken

BRIEF OF AMICI CURIAE FORMER CORRECTIONS OFFICIALS IN SUPPORT OF AFFIRMANCE

David C. Fathi Amy Fettig Jennifer Wedekind ACLU NATIONAL PRISON PROJECT 915 15th Street N.W. Washington, DC 20005 (202) 548-6610
Daniel M. Greenfield RODERICK & SOLANGE MACARTHUR JUSTICE CENTER 375 East Chicago Avenue Chicago, IL 60611 (312) 503-8538
Counsel for Amici Curiae

Danielle C. Jefferis Nicole B. Godfrey STUDENT LAW OFFICE – CIVIL RIGHTS CLINIC University of Denver College of Law 2255 E. Evans Avenue, Suite 335 Denver, CO 80208 (303) 871-6155
David Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 (619) 232-2121

i

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTEREST OF AMICI CURIAE ...............................................................................1
INTRODUCTION .....................................................................................................2
ARGUMENT .............................................................................................................5
I. CORRECTIONS OFFICIALS HAVE A COMMON AND CONSISTENT UNDERSTANDING OF THE DEFINITION AND APPLICATION OF THE TERM “GENERAL POPULATION.”...................................................5
A. General Population Conditions Include Out-Of-Cell Time For A Substantial Portion Of Each Day. .........................................................5
B. There Is No Penological Justification For Housing General Population Prisoners In Solitary Confinement Conditions. ..................8
II. THE USE OF SOLITARY CONFINEMENT UNNECESSARILY RISKS SERIOUS HARM TO PRISONERS’ MENTAL AND PHYSICAL HEALTH. ........................................................................................................9
A. Meaningful Social Interaction And Positive Environmental Stimulation Are Essential To Human Health, Yet Their Absence Is The Defining Characteristic Of Solitary Confinement Conditions.....10
B. Solitary Confinement Conditions Subject Prisoners To Severe Psychological And Physiological Harms. ...........................................12
C. The Damage Inflicted By Solitary Confinement Conditions Is Unique. ................................................................................................18
III. PRISONS, INCLUDING MAXIMUM CUSTODY GENERAL POPULATION UNITS, CAN BE SAFELY MANAGED USING LESS RESTRICTIVE HOUSING OPTIONS.........................................................21
A. Solitary Confinement Did Not Reduce Violence Within Prison Systems But Did Raise Concerns About Harm To Prisoners. ............22
i

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 3 of 47
B. Limiting The Use Of Solitary Confinement Has Reduced Violence Within Prisons And Improved Safety For Corrections Officers.........25
C. There Are Proven, Effective Strategies Available To Reduce The Use of Solitary Confinement...............................................................28
CONCLUSION ........................................................................................................30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE APPENDIX A
ii

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Cases

TABLE OF AUTHORITIES

Apodaca v. Raemisch, 139 S. Ct. 5 (2018)...........................................................................................2

Brown v. Oregon Dep’t of Corr., 751 F.3d 983 (9th Cir. 2014) ...........................................................................6

Coleman v. Brown, 28 F. Supp. 3d 1068 (E.D. Cal. 2014) .......................................................... 24

Davis v. Ayala, 135 S. Ct. 2187 (2015).............................................................................. 2, 21

Glossip v. Gross, 135 S. Ct. 2726 (2015) ................................................................................. 18

Jones’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001) ...................................................... 24

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) ............................................................. 24

McClary v. Kelly, 4 F. Supp. 2d 195 (W.D.N.Y. 1998)................................................................7

Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549 (3d Cir. 2017) ............................................................................7
Statutes
72 Neb. Admin. Code. Ch. 1 § 002.04 (2019)......................................................6

Other Authorities

Ajai Vyas et al., Effect of Chronic Stress on Dendritic Arborization in the Central and Extended Amygdala, 965 BRAIN RESEARCH 290 (2003) .... 15

iii

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 5 of 47
Allen Beck, U.S. Dep’t of Justice, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12 (2015)................................................................ 23
Allison Hastings et al., National PREA Resource Center, Keeping Vulnerable Populations Safe under PREA: Alternative Strategies to the Use of Segregation in Prisons and Jails (2015) ................ 30
Am. Corr. Ass’n, Performance-Based Expected Practices for Adult Correctional Institutions (5th Ed. 2018) ........................................ 3, 8, 25, 26
Andrew Oxford, Gov. Lujan Grisham signs criminal justice legislation, SANTA FE NEW MEXICAN, Apr. 3, 2019 .............................. 25, 30
Ass’n of State Corr. Adm’rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (2016).................................................................................... 3, 25, 29
Ass’n of State Corr. Adm’rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell (2018) .................. 5, 24, 25
Ass’n of State Corr. Adm’rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (2015)............................... 29
Atul Gawande, Hellhole, THE NEW YORKER, Mar. 30, 2009 ............................ 16
B. Steiner & C.M. Cain, U.S. Dep’t of Justice, The Relationship Between Inmate Misconduct, Institutional Violence, and Administrative Segregation: A Systematic Review of the Evidence, Restrictive Housing in the U.S.: Issues, Challenges, and Future Directions (2016) .......................................................................................... 23
British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2018] B.C.J. 53, 2018 BCSC 62 (Can.) ...................................................... 24
iv

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 6 of 47
Bruce S. McEwen, et al., Stress Effects on Neuronal Structure: Hippocampus, Amygdala, and Prefrontal Cortex, 41 NEUROPSYCHOPHARMACOLOGY 3 (2015) ................................................ 15
Bruce S. McEwen, Protective and Damaging Effects of Stress Mediators, 338 NEW ENG. J. MED. 171 (1998) ............................................................... 15
Canadian Civil Liberties Assn. v. Canada (Attorney General), [2019] O.J. 1537, 2019 ONCA 243 (Can.)................................................... 24
Carol Schaeffer, “Isolation Devastates the Brain”: The Neuroscience of Solitary Confinement, SOLITARY WATCH (May 11, 2016)....................... 15
Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence, 41 CRIMINOLOGY 1341 (2006)...................................................................... 22
Cheryl Corley, North Dakota Prison Officials Think Outside the Box to Revamp Solitary Confinement, NPR Morning Edition (July 31, 2018) ... 27
Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE 477 (1997) ..................................... 17, 19
Craig Haney, “Infamous Punishment”: The Psychological Consequences of Isolation, 8 NAT’L PRISON PROJECT J. 1 (1993)........................................ 13
Craig Haney, Restricting the Use of Solitary Confinement, 1 ANN. REV. CRIMINOLOGY 285 (2018) ................................................. passim
Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 CRIME & JUST. 365 (2018) ...................... 12, 16, 18
Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 CRIME & DELINQUENCY 124 (2003) ..... passim
Dan Pacholke & Sandy Felkey Mullins, U.S. Dep’t of Justice, More Than Emptying Beds: A Systems Approach to Segregation Reform (2016) ............................................................................................... 27
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Dana G. Smith, Neuroscientists Make a Case Against Solitary Confinement, SCI. AM., Nov. 9, 2018 ........................................................... 15
Diana Arias & Christian Otto, NASA, Defining the Scope of Sensory Deprivation for Long Duration Space Missions (2011)......................... 11, 17
Dorte Maria Sestoft et al., Impact of Solitary Confinement on Hospitalization Among Danish Prisoners in Custody, 21 INT’L J.L. & PSYCHIATRY 99 (1998) ........................................................ 19
Eli Hager & Gerald Rich, Shifting Away from Solitary:More states have passed solitary confinement reforms this year than in the past 16 years, The Marshall Project (Dec. 12, 2014) ....................... 24, 25, 30
Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741 (2015) ..................................................................... 14, 19, 22
Erica Goode, Prisons Rethink Isolation, Saving Money, Lives and Sanity, N.Y. TIMES, March 11, 2012 ..................................................... 23
Focused Deterrence Initiatives to Reduce Group Violence in Correctional Facilities: A Review of Operation Workplace Safety and Operation Stop Violence, ACA 2018 Winter Conference Seminar (2018)........................................................................................ 26, 28
G.A. Res. 70/175, Rule 44, United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules) (Dec. 17, 2015) ............................................................................................. 24
Gary C. Mohr & Rick Raemisch, Restrictive Housing: Taking the Lead, CORRECTIONS TODAY (2015) ........................................................................ 22
Hans Toch & Terry Kupers, Violence in Prisons, Revisited 45.3 J. OFFENDER REHABILITATION 1 (2007)................................................ 28
Homer Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 AM. J. PUB. HEALTH 442 (2014) .......................... 20
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 8 of 47
JAMES AUSTIN, NAT’L INST. OF CORRECTIONS, FINDINGS IN PRISON CLASSIFICATION AND RISK ASSESSMENT (2003) ..............................................8
Jared Reser, Solitary Mammals Provide an Animal Model for Autism Spectrum Disorders, 128 J. COMP. PSYCHOL. 1 (2013) ................................ 11
John E. Deaton et al., Coping Activities in Solitary Confinement of U.S. Navy POWs in Vietnam, 7 J. APPLIED SOC. PSYCHOL. 239 (1977)............... 16
John T. Cacioppo & Stephanie Ortigue, Social Neuroscience: How a Multidisciplinary Field Is Uncovering the Biology of Human Interactions, CEREBRUM, Dec. 19, 2011....................................................... 14
Juan E. Mendez, Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, U.N. Doc. A/66/268 (5 Aug. 2011) ......................................... 24
Jules Lobel & Huda Akil, Law and Neuroscience: The Case of Solitary Confinement, 147(4) DAEDALUS 61 (Fall 2018)........................................... 15
Kenneth Appelbaum, American Psychiatry Should Join the Call to Abolish Solitary Confinement, 43 J. AM. ACAD. PSYCHIATRY & L. 406 (2015) ..................................................................................................... 19
Leon Digard et al., Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems (2018) .................................................................................. 23, 28, 29
Lindsay M. Hayes & Joseph R. Rowan, National Study of Jail Suicides: Seven Years Later, 60 PSYCH. Q. 7 (1989). .................................. 19
M. Malter Cohen, et al., Translational Developmental Studies of Stress on Brain and Behavior, 249 NEUROSCIENCE 53 (2013)..................... 15
Marc A. Levin, Esq., Testimony Before the U.S Senate Judiciary Subcommittee on The Constitution, Civil Rights and Human Rights (February 25, 2014) ................................................................................ 26, 27
Marie Gottschalk, Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails, 125 YALE L.J. FORUM 253 (Jan. 15, 2016) ............. 26
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 9 of 47
Maureen L. O’Keefe et al., Reflections on Colorado’s Administrative Segregation Study, 278 NAT’L INS. JUST. J. 1 (2017) .................................... 18
National Conference of State Legislatures, Administrative Segregation: State Enactments: January 2018 (2018) ...................... 24, 25, 30
Nicole Branan, Stress Kills Brain Cells Off, 18 SCI. AM. 10 (June 2007)........................................................................... 15
Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME & JUST. 441 (2006) ................................................................ passim
Press Release, The White House, Fact Sheet: Department of Justice Review of Solitary Confinement (Jan. 25, 2016) .......................................... 24
Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 72 (2012) ........................................................... 14
Rhode Island Department of Corrections, Policy 12.27: Conditions of Confinement (2018) ...........................................6
RICHARD KOZAR, JOHN MCCAIN: OVERCOMING ADVERSITY (Chelsea House Pub. 2002)........................................................................... 16
Rick Raemisch, My Night in Solitary, N.Y. TIMES, Feb. 21, 2014.................... 29
Rick Raemisch, remarks at Vera Institute of Justice, Webinar: Rethinking Restrictive Housing: What’s Worked in Colorado? (Sept. 17, 2018)....................................................................................... 26, 27
Rick Raemisch, Why We Ended Long-Term Solitary Confinement in Colorado, N.Y. TIMES, Oct. 13, 2017....................................................... 29
Robert D. Morgan et al., Quantitative Syntheses of the Effects of Administrative Segregation on Inmates’ Well-Being, 22 PSYCHOL. PUB. POL’Y & L. 439 (2016).................................................... 18
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Sharon Shalev, Solitary Confinement as a Prison Health Issue, World Health Org. Guide to Prisons and Health (2014) .............................. 28
Simon N. Young, The Neurobiology of Human Social Behavior: An Important but Neglected Topic, 33 J. PSYCHIATRY & NEUROSCIENCE 391(2008)........................................... 11
Stanford Univ. Human Rights in Trauma Mental Health Lab, Mental Health Consequences Following Release from Long-Term Solitary Confinement in California: Consultative Report Prepared for the Center for Constitutional Rights (2017) ............... 17
Stuart Grassian & Terry A. Kupers, The Colorado Study vs. The Reality of Supermax Confinement, 13 CORRECTIONAL MENTAL HEALTH REP. 1 (2011) ......................... 18, 19, 20
Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J. L. & POL’Y 325 (2006) ................................................. passim
Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY 1450 (2006)............................................................ 13
Terry A. Kupers, Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment’s Sake, in ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIME AND JUSTICE STUDIES 213(Bruce Arrigo & Heather Bersot eds., 2013) ....... 11, 13
Terry A. Kupers, The SHU Post-Release Syndrome: A Preliminary Report, 17 CORRECTIONAL MENTAL HEALTH REPORT 81 (March/April 2016) ...................................................... 17
Terry A. Kupers, Waiting Alone to Die, in LIVING ON DEATH ROW: THE PSYCHOLOGY OF WAITING TO DIE (Hans Toch & James Acker eds., 2018) ..................................... 10, 13, 14, 19
TERRY ALLEN KUPERS, SOLITARY: THE INSIDE STORY OF SUPERMAX ISOLATION AND HOW WE CAN ABOLISH IT (Univ. of Calif. Press 2017) .......................................................................... 27
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Terry Kupers et al., Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs, 36 CRIM. JUST. & BEHAVIOR 1037 (2009) .................................................... 27
Thomas Hafemeister & Jeff George, The Ninth Circle of Hell, 90 DENV. U. L. REV. 1 (2012)....................................................................... 20
U.S. DEP’T OF JUSTICE, REPORT AND RECOMMENDATIONS CONCERNING THE USE OF RESTRICTIVE HOUSING (2016) ............................. 30
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INTEREST OF AMICI CURIAE Amici curiae1 are nine former state corrections directors and corrections experts, including two former senior leaders with the California Department of Corrections and Rehabilitation, with first-hand experience supervising general population units and reforming solitary confinement units in prisons across the United States. As corrections professionals, amici have an interest in ensuring that issues affecting corrections systems are decided in a manner that is consistent with sound penological principles. Amici thus respectfully submit this brief to advise the Court of certain principles and practices relevant to the issues presented in this case. Amici’s biographies are listed in Appendix A.
1 This brief has not been authored, in whole or in part, by counsel to any party in this appeal. No party or counsel to any party contributed money intended to fund preparation or submission of this brief. No person, other than the amici, their members, or their counsel, contributed money that was intended to fund preparation or submission of this brief. All parties have consented to the filing of this brief.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 13 of 47
INTRODUCTION
This case requires the Court to consider typical conditions for general
population prisoners, as well as the use and overuse of solitary confinement. As
former corrections officials who have run major state correctional systems, amici
have expertise in sound correctional practices for general population conditions and in reducing the use of solitary confinement.2
Leading correctional organizations, including the American Correctional
Association (“ACA”) and the Association of State Correctional Administrators
(“ASCA”), acknowledge that the use of solitary confinement should be curtailed
and constrained. The ASCA in 2015 found that “prolonged isolation of individuals
in jails and prisons is a grave problem in the United States” and by 2016 noted that
“a national consensus has emerged focused on limiting the use of restricted
2 In this brief we use the terms “solitary confinement” or “solitary confinement conditions” to refer to conditions in which a prisoner is housed in a cell alone or with another prisoner and kept locked inside that cell for the vast majority of the day. Jurisdictions use varying terms to describe solitary confinement, including restricted housing, restrictive custody, secure housing units, secure management units, isolation, segregation, etc. We use the term “solitary confinement” or “solitary confinement conditions,” therefore, not to identify any particular unit or housing area in a facility but rather to describe a particular set of conditions defined primarily by the amount of time spent in-cell. As Justice Kennedy has explained, these conditions are “better known [as] solitary confinement.” Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (Kennedy, J., concurring); see also Apodaca v. Raemisch, 139 S. Ct. 5, 6 (2018) (Sotomayor, J., respecting denial of cert.) (“segregation . . . is also fairly known by its less euphemistic name: solitary confinement”).
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housing . . . .”3 According to the ASCA, “while restricted housing once was seen as
central to prisoner management, by 2016 many prison directors and organizations
such as the ASCA and the ACA have defined restricted housing as a practice to use only when absolutely necessary and for only as long as absolutely required.”4
The ACA promulgated standards limiting the use of solitary confinement to
only “those circumstances that pose a direct threat to the safety of persons or a clear threat to the safe and secure operations of the facility.”5
Amici have been leaders in this national dialogue. In addition, as former
corrections officials, amici have witnessed first-hand the devastating and
debilitating effects of solitary confinement conditions. Amici are acutely aware of
the broad consensus among their mental health and medical colleagues that solitary
confinement leads to significant psychological and physical damage. Amici submit
that as part of sound correctional management, corrections officials have an
obligation to be aware of, and take action in response to, this scientific consensus.
Amici are therefore well-suited to address the scientific literature regarding the
effects of solitary confinement.
3 Ass’n of State Corr. Adm'rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms 1 (2016) [hereinafter “ASCA-Liman 2016”]. 4 Id. at 2. 5 American Correctional Association, Performance-Based Expected Practices for Adult Correctional Institutions, 5-4B-0001 (5th Ed. 2018) [hereinafter “ACA Standards”].
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Amici are also well aware, based on their extensive experience managing correctional systems, that reliance on solitary confinement conditions is dangerous and ineffective. Proven and reliable alternatives, on the other hand, have successfully reduced or eliminated the use of solitary confinement in many jurisdictions while increasing safety.
In this brief, amici share with the Court their expertise on three concepts: (1) the definition of “general population” conditions, in contrast to the harmful conditions of solitary confinement; (2) the scientific literature on the serious harms caused by solitary confinement conditions; and (3) the safe, effective alternatives to solitary confinement that have been successfully implemented around the country.
Amici urge this Court to uphold the lower court’s order requiring class members in general population facilities to receive “meaningfully greater” out of cell time than received when in solitary confinement, “consistent with California Department of Corrections and Rehabilitation’s (CDCR) legitimate security needs.” ER 4.
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ARGUMENT I. CORRECTIONS OFFICIALS HAVE A COMMON AND
CONSISTENT UNDERSTANDING OF THE DEFINITION AND APPLICATION OF THE TERM “GENERAL POPULATION.” The term “general population” is consistently used and understood in the corrections field. Objective risk assessments are usually used to assign a prisoner to a general population unit. Once that assessment and assignment occurs, and absent any intervening factors specific to that individual, there is no penological interest in housing a prisoner in solitary confinement conditions. A. General Population Conditions Include Out-Of-Cell Time For A
Substantial Portion Of Each Day. Significant out-of-cell time is a defining characteristic of general population conditions. Unlike in solitary confinement, prisoners in general population units, including maximum security general population units, spend a substantial portion of each day out of cell. For example, Maryland reports that its general population prisoners, including maximum security general population prisoners, get a minimum of 8 to 12 hours of out-of-cell time daily.6 Minnesota reports that general population prisoners get 8.5 to 14 hours of out-of-cell time daily.7 In Nebraska, state regulations define general population as including a minimum of 6 hours per
6 Ass’n of State Corr. Adm’rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell 66, 66 n.233 (2018) [hereinafter “ASCA-Liman 2018”]. 7 ASCA-Liman 2018 at 66, 66 n.235.
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day of out-of-cell time.8 And the Rhode Island Department of Corrections provides between 8.5 and 13 hours of daily out-of-cell time to general population prisoners, including prisoners in maximum security units.9
Out-of-cell time for general population prisoners typically includes both structured and unstructured time. Structured out-of-cell time may include meals eaten in a cafeteria or common area; access to group educational programming, group or individual mental health programming, and group religious programming and services; work details; daily showers; or visitation with family and friends. Unstructured out-of-cell time may include access to telephones, access to outdoor exercise yards and equipment, and opportunities to socialize with others in common areas.
Courts in this Circuit and around the country have acknowledged the basic conditions for general population prisoners, including substantial out-of-cell time and access to “contact visits . . . , the prison and law libraries, group religious worship, educational and vocational opportunities, telephone use except in emergencies, access to televisions, and access to personal property.” Brown v. Oregon Dep’t of Corr., 751 F.3d 983, 985 (9th Cir. 2014) (describing general
8 72 Neb. Admin. Code. Ch. 1 § 002.04 (2019). 9 Rhode Island Department of Corrections, Policy 12.27: Conditions of Confinement § IV(D)(4) (2018), available at http://www.doc.ri.gov/documents/administration/policy/policies/12.27_Conditions %20of%20Confinement_02-26-2018_Y.pdf.
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population conditions and contrasting those to conditions in solitary confinement). See also Williams v. Sec’y Pennsylvania Dep’t of Corr., 848 F.3d 549, 563 (3d Cir. 2017) (describing general population conditions as including access to group religious services, a variety of jobs and vocational programs, group sport activities, unlimited access to phones and meals in communal dining rooms); McClary v. Kelly, 4 F. Supp. 2d 195, 203 (W.D.N.Y. 1998) (describing general population conditions where prisoners were “outside of their cells for at least half the day in order to engage in congregate meals, vocational programs, educational programs, recreational programs, congregate religious programs or, when eligible, family reunion programs”).
In contrast to general population conditions, prisoners housed in solitary confinement generally receive only one to two hours of out-of-cell time per day. They typically receive showers only three times a week, and actual outdoor time is extremely circumscribed. Some days, prisoners in solitary confinement will not have the opportunity to leave their cell at all. Access to congregate programming of any kind is limited or non-existent. And all meals are taken inside the cell. As a result, in solitary confinement conditions, prisoners are deprived of meaningful social interaction and positive environmental stimulation.
Conditions in which prisoners receive less than two hours out of cell each day, therefore, do not meet any generally accepted definition of “general
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population.” Instead, prisoners receiving this limited amount of out-of-cell time are being subjected to solitary confinement conditions.
B. There Is No Penological Justification For Housing General Population Prisoners In Solitary Confinement Conditions.
There is no valid penological justification for housing prisoners deemed appropriate for general population in solitary confinement conditions. Indeed, the ACA Standards provide that solitary confinement should be used only on a shortterm basis if a prisoner “pose[s] a direct threat to the safety of persons or a clear threat to the safe and secure operations of the facility.”10
Prison officials generally use objective risk assessments to determine the appropriate security or classification level for a particular individual. Multiple factors are used, including age, history of violence, mental illness, and recent disciplinary actions.11 If a prisoner has received a risk assessment and been assigned to a general population unit, that indicates prison officials have determined there is no safety or security rationale for separating that individual from the rest of the prison population. There is no safety or security rationale, therefore, that supports subjecting that general population prisoner to solitary
10 ACA Standards, 5-4B-0001. 11 See JAMES AUSTIN, NAT’L INST. OF CORRECTIONS, FINDINGS IN PRISON CLASSIFICATION AND RISK ASSESSMENT 4-5 (2003).
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confinement conditions.12 This is particularly true in light of the devastating psychological and physical harms caused by solitary confinement conditions and the available alternatives to solitary confinement, discussed below. II. THE USE OF SOLITARY CONFINEMENT UNNECESSARILY
RISKS SERIOUS HARM TO PRISONERS’ MENTAL AND PHYSICAL HEALTH. Prisoners who receive only one to two hours of out-of-cell time a day are at a substantial risk of serious harm. Solitary confinement conditions severely constrain meaningful social interaction and positive environmental stimulation, which are basic human needs essential to physical and psychological health. There is a broad consensus among doctors, psychiatrists, psychologists, and other scientists who study isolation: Solitary confinement both exacerbates pre-existing psychological disorders and is itself the genesis of such disorders. Solitary confinement is also uniquely dangerous. Research consistently demonstrates that it inflicts psychological and physical damage significantly exceeding the negative effects of prolonged incarceration in general population. It is critical to note that phrases like “solitary confinement,” “segregation,” and “isolated housing” as employed in the scientific literature, the case law, and
12 Occasionally, a facility may experience a major incident requiring an entire unit or the entire facility to be “locked down”—essentially confining all prisoners to solitary confinement conditions in order to maintain safe and secure operations. These incidents are rare, however, and sound correctional practice mandates that facilities return to normal operations as soon as feasible.
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throughout this brief do not refer to absolute isolation from other humans in an environment completely devoid of environmental stimuli. Indeed, amici are not aware of any facility in the United States or abroad that absolutely deprives prisoners of these necessities. Rather, these terms describe imprisonment under conditions where meaningful social interaction and positive environmental stimuli are severely restricted. Brief and episodic breaks from absolute isolation—such as the delivery of a food tray, being handcuffed and escorted to a shower stall, or being able to yell through the wall to a neighbor—do not constitute the meaningful social interaction and positive environmental stimuli that research has identified as essential to physical and psychological health.
A. Meaningful Social Interaction And Positive Environmental Stimulation Are Essential To Human Health, Yet Their Absence Is The Defining Characteristic Of Solitary Confinement Conditions.
Meaningful social interaction and positive environmental stimulation (such as exposure to varying surroundings and participation in productive activities) are no less essential to human health than shelter, nutrition, and medical care.13 The
13 E.g., Craig Haney, Restricting the Use of Solitary Confinement, 1 ANN. REV. CRIMINOLOGY 285, 298 (2018) [hereinafter “Restricting the Use”] (collecting studies); Terry A. Kupers, Waiting Alone to Die, in LIVING ON DEATH ROW: THE PSYCHOLOGY OF WAITING TO DIE 47, 53 (Hans Toch & James Acker eds., 2018) [hereinafter “Waiting Alone to Die”]; Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 WASH. U. J. L. & POL’Y 325, 354 (2006) [hereinafter “Psychiatric Effects”]; Diana Arias & Christian Otto, NASA, Defining the Scope of
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near total absence of meaningful social interaction and positive environmental stimulation, however, are the hallmarks of solitary confinement conditions.14
Some animals are solitary by nature.15 Such creatures seek out community infrequently, often for limited purposes like reproduction.16 Humans, by contrast, are a social species.17 In fact, “the human brain is literally wired to connect to others.”18 Throughout our life span, therefore, we require regular meaningful interaction with others.19 Consistent social contact also enables humans to “sustain a sense of identity and to maintain a grasp on reality.”20 And the relationship
Sensory Deprivation for Long Duration Space Missions 20, 51 (2011) [hereinafter “NASA, Long Duration Space Missions”]. 14 See Craig W. Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 CRIME & DELINQUENCY 124, 125-27 (2003) [hereinafter “Mental Health”]. 15 Jared Reser, Solitary Mammals Provide an Animal Model for Autism Spectrum Disorders, 128 J. COMP. PSYCHOL. 1, 2-3 (2013). 16 Id. 17 Simon N. Young, The Neurobiology of Human Social Behavior: An Important but Neglected Topic, 33 J. PSYCHIATRY & NEUROSCIENCE 391, 391 (2008). 18 Haney, Restricting the Use, supra, at 294-295 (internal quotations omitted). 19 Young, supra, at 391; see also Haney, Restricting the Use, supra, at 290. 20 Terry A. Kupers, Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment’s Sake, in ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIME AND JUSTICE STUDIES 213, 215 (Bruce Arrigo & Heather Bersot eds., 2013) [hereinafter “Isolated Confinement”]; see also, e.g., Haney, Restricting the Use, supra, at 296 (collecting studies).
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between social connection and physical and psychological health is welldocumented in the scientific literature.21
Likewise, exposure to positive and diverse stimuli is critical to psychological and physical well-being.22 Such exposure stimulates the brain, permitting us to “maintain[] an adequate state of alertness and attention.”23 Acceptable executive function also depends on adequate positive environmental stimulation.24
B. Solitary Confinement Conditions Subject Prisoners To Severe Psychological And Physiological Harms.
Justice Kennedy wrote of the “terrible price” imposed by isolation. Davis v. Ayala, 135 S. Ct. 2187, 2210 (2015) (Kennedy, J., concurring). And with good reason. Scientific research, regardless of methodology, has produced “strikingly consistent” results: The deprivation of meaningful social contact and positive environmental stimulation characteristic of solitary confinement conditions subjects prisoners to grave psychological and physical harms.25 Solitary
21 See Craig Haney, The Psychological Effects of Solitary Confinement: A Systematic Critique, 47 CRIME & JUST. 365, 374-75 (2018) [hereinafter “A Systematic Critique”] (collecting studies). 22 See Haney, Restricting the Use, supra, at 294-95 (collecting studies). 23 Grassian, Psychiatric Effects, supra, at 330. 24 E.g., id. at 346. 25 E.g., Haney, A Systematic Critique, supra, at 367-68, 370-75 (collecting studies); Grassian, Psychiatric Effects, supra, at 335-38.
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confinement often inflicts harm within days of its institution,26 and longer durations impose greater costs.27
Prisoners exposed to solitary confinement conditions consistently develop some or all of the following psychological injuries: cognitive dysfunction, anxiety, paranoia, panic, severe depression, hallucination, memory loss, insomnia, withdrawal, lethargy, and stimuli hypersensitivity.28 Impulse control is also negatively affected by solitary confinement.29 Life-threatening behavior, such as self-mutilation and suicide attempts, is all too common among prisoners in solitary confinement conditions.30 Describing this phenomenon to Congress, one expert provided examples of a prisoner who “used a makeshift needle and thread from his pillowcase to sew his mouth completely shut,” and another who “amputated one of
26 Grassian, Psychiatric Effects, supra, at 331. 27 E.g., Kupers, Waiting Alone to Die, supra, at 54; Haney, Restricting the Use, supra, at 291-92. 28 E.g., Kupers, Waiting Alone to Die, supra, at 53; Haney, Mental Health, supra, at 130-31, 134 (collecting studies); Grassian, Psychiatric Effects, supra, at 335–36, 349, 370-71; Kupers, Isolated Confinement, supra, at 216; Peter Scharff Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME & JUST. 441, 488-90 (2006). 29 E.g., Craig Haney, “Infamous Punishment”: The Psychological Consequences of Isolation, 8 NAT’L PRISON PROJECT J. 1, 6 (1993). 30 Grassian, Psychiatric Effects, supra, at 349; Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY 1450, 1453 (2006).
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his pinkie fingers and chewed off the other, removed one of his testicles and scrotum, sliced off his ear lobes, and severed his Achilles tendon.”31
Physiological injury, too, is a consistent effect of solitary confinement, and
commonly includes hypertension, heart palpitations, decline in neural activity, gastrointestinal disorders, headaches, severe insomnia, and weight loss.32 Isolation
also causes “‘increased activation of the brain’s stress systems, vascular resistance,
and blood pressure, as well as decreased inflammatory control, immunity, sleep
salubrity, and expression of genes regulating glucocorticoid responses and oxidative stress.’”33 Even the mere perception of social isolation is associated with an increased likelihood of dementia.34 Notably, within days of a prisoner’s
confinement in solitary confinement conditions, brain scans may reflect “abnormal pattern[s] characteristic of stupor and delirium.”35
31 Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Subcomm. on Constitution, Civil Rights & Human Rights of the S. Comm. on the Judiciary, 112th Cong. 72, 80–81 (2012) (statement of Craig Haney). 32 E.g., Kupers, Waiting Alone to Die, supra, at 54; Haney, Mental Health, supra, at 133; Smith, supra, at 488-90. 33 Elizabeth Bennion, Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment, 90 IND. L.J. 741, 762 (2015) (quoting John T. Cacioppo & Stephanie Ortigue, Social Neuroscience: How a Multidisciplinary Field Is Uncovering the Biology of Human Interactions, CEREBRUM, Dec. 19, 2011, at 7-8)). 34 See id. at 755 (summarizing studies). 35 Grassian, Psychiatric Effects, at 331.
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In fact, neurological advances establish that the types of traumatic
psychological harms associated with solitary confinement conditions often trigger
detectable negative modifications to the brain’s structure and operation.36 For
example, the type of stress associated with isolation may shrink and “rewire” the
brain and kill neurons.37 The hippocampus and amygdala, two structures within the
brain critical to decision-making, memory, and emotional regulation, are also
damaged by the sort of chronic stress associated with solitary confinement
conditions.38
36 See generally Dana G. Smith, Neuroscientists Make a Case Against Solitary Confinement, SCI. AM., Nov. 9, 2018, https://www.scientificamerican.com/article/neuroscientists-make-a-case-againstsolitary-confinement; Ajai Vyas et al., Effect of Chronic Stress on Dendritic Arborization in the Central and Extended Amygdala, 965 BRAIN RESEARCH 290, 290-94 (2003); Bruce S. McEwen, Protective and Damaging Effects of Stress Mediators, 338 NEW ENG. J. MED. 171, 175-76 (1998). 37 See Carol Schaeffer, “Isolation Devastates the Brain”: The Neuroscience of Solitary Confinement, SOLITARY WATCH (May 11, 2016), https://solitarywatch.org/2016/05/11/isolation-devastates-the-brain-theneuroscience-of-solitary-confinement/; McEwen, supra, at 175-76; M. Malter Cohen, et al., Translational Developmental Studies of Stress on Brain and Behavior, 249 NEUROSCIENCE 53, 54-55 (2013); Nicole Branan, Stress Kills Brain Cells Off, 18 SCI. AM. 10 (June 2007), https://www.scientificamerican.com/article/stress-kills-brain-cells/. 38 See D. Smith, Neuroscientists Make a Case Against Solitary Confinement, supra; Bruce S. McEwen, et al., Stress Effects on Neuronal Structure: Hippocampus, Amygdala, and Prefrontal Cortex, 41 NEUROPSYCHOPHARMACOLOGY 3 (2015); see also Jules Lobel & Huda Akil, Law and Neuroscience: The Case of Solitary Confinement, 147(4) DAEDALUS 61, 70 (Fall 2018), https://www.mitpressjournals.org/doi/pdf/10.1162/daed_a_00520 (“[T]he brain of people who experience extreme psychological stress (like those in solitary
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Accounts of prisoners of war and hostages subjected to solitary confinement
conditions bear out this research. Former Senator John McCain, who was held in
isolation in Vietnam, described it as “crush[ing] your spirit and weaken[ing] your resistance more effectively than any other form of mistreatment.”39 Other
American soldiers imprisoned in Vietnam characterized solitary confinement as “among the most serious problems” they faced.40 Terry Anderson, an American
journalist captured and held hostage in Lebanon for seven years, likewise reported that, after just weeks in isolation, his mind went “dead.”41 After three years in
solitary confinement conditions, Anderson began slamming his head against a wall.42 Later, he feared he would “lose control completely.”43 Unsurprisingly, solitary confinement is “frequently used as a component of torture.”44
The adverse effects of solitary confinement conditions may persist for
decades after prisoners are released into a less restrictive environment such as
confinement) literally diminish in volume because the neural cells become shriveled.”). 39 RICHARD KOZAR, JOHN MCCAIN: OVERCOMING ADVERSITY 53 (Chelsea House Pub. 2002). 40 John E. Deaton et al., Coping Activities in Solitary Confinement of U.S. Navy POWs in Vietnam, 7 J. APPLIED SOC. PSYCHOL. 239, 241 (1977). 41 Atul Gawande, Hellhole, THE NEW YORKER (Mar. 30, 2009), http://www.newyorker.com/magazine/2009/03/30/hellhole. 42 Id. 43 Id. 44 Haney, A Systematic Critique, supra, at 373 (collecting studies).
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general population or the community.45 For example, prisoners may continue to
endure symptoms of post-traumatic stress and anxiety disorders, suffer from
cognitive impairments and a pervasive sense of hopelessness, and experience
lasting personality changes such as obsessive-compulsive disorder and emotional
instability.46
Such psychological dysfunction may be disabling forever.47 Because
isolation can precipitate a transformation in emotion, conduct, personality, and
cognition, those subjected to it may be permanently ill-suited to a less restrictive
life, whether in prison or in the community.48
45 E.g., Haney, Restricting the Use, supra, at 297; Terry A. Kupers, The SHU PostRelease Syndrome: A Preliminary Report, 17 CORRECTIONAL MENTAL HEALTH REPORT 81, 92 (March/April 2016). 46 E.g., Stanford Univ. Human Rights in Trauma Mental Health Lab, Mental Health Consequences Following Release from Long-Term Solitary Confinement in California: Consultative Report Prepared for the Center for Constitutional Rights 15-25 (2017), https://handacenter.stanford.edu/sites/default/files/publications/ mental_health_consequences_following_release_from_long-term_solitary_ confinement_in_california.pdf; Grassian, Psychiatric Effects, supra, at 353; NASA, Long Duration Space Missions, supra, at 43 (noting that “symptoms of anxiety, confusion, depression, suspiciousness and detachment from social interactions” often persist for decades after isolation is discontinued); Smith, supra, at 496 (collecting studies). Physical contact, too, may remain stressful long after isolation is removed. Craig Haney & Mona Lynch, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. REV. L. & SOC. CHANGE 477, 568 (1997). 47 Haney, Mental Health, supra, at 137-41. 48 Grassian, Psychiatric Effects, supra, at 332-33.
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A handful of researchers have asserted that isolation is not dangerous.49
These conclusions are at odds with the overwhelming scientific consensus that has
established the significant harms caused by solitary confinement conditions. And
for good reason: the outlier studies are predicated on fatally flawed methodologies.50 Justice Breyer has it right: it is “well documented that . . .
prolonged solitary confinement produces numerous deleterious harms.” Glossip v.
Gross, 135 S. Ct. 2726, 2765 (2015) (Breyer, J., dissenting).
C. The Damage Inflicted By Solitary Confinement Conditions Is Unique.
While incarceration is not conducive to optimal psychological and
physiological health, research establishes that solitary confinement conditions are
uniquely dangerous. Studies, both in the United States and abroad, consistently
demonstrate that solitary confinement causes psychological and physiological
damage that is extreme in comparison to the harms experienced by prisoners in general population.51
49 See Maureen L. O’Keefe et al., Reflections on Colorado’s Administrative Segregation Study, 278 NAT’L INS. JUST. J. 1 (2017) [hereinafter “Colorado Study”]; Robert D. Morgan et al., Quantitative Syntheses of the Effects of Administrative Segregation on Inmates’ Well-Being, 22 PSYCHOL. PUB. POL’Y & L. 439 (2016). 50 E.g., Haney, A Systematic Critique, supra, at 369-70; Stuart Grassian & Terry A. Kupers, The Colorado Study vs. The Reality of Supermax Confinement, 13 CORRECTIONAL MENTAL HEALTH REP. 1, 11 (2011). 51 E.g., Haney, Restricting the Use, supra, at 292-93; Kenneth Appelbaum, American Psychiatry Should Join the Call to Abolish Solitary Confinement, 43 J.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 30 of 47
Suicide and self-mutilation are disproportionately high among prisoners in solitary confinement conditions.52 Although prisoners in solitary confinement
constitute only 2% to 8% of the United States prison population, they account for 50% of all suicides by prisoners.53 For example, in a Maine prison, “almost every prisoner in the isolation unit had attempted suicide.”54 A national survey of jail
suicides across a two-year period revealed that two-thirds of suicides were
committed by detainees subjected to solitary confinement conditions, causing
researchers to designate isolation one of three “key indicators of suicidal behavior.”55 Non-fatal self-mutilation statistics are no less dramatic. During an
eight-year period, nearly half of all self-mutilation incidents in the North Carolina prison system occurred in solitary confinement.56 In Virginia, the data is strikingly similar.57 And in New York City jails, detainees in solitary confinement conditions
were seven times more likely than those in general population to engage in self-
AM. ACAD. PSYCHIATRY & L. 406, 410 (2015); Smith, supra, at 477; Bennion, supra, at 758 (citing Dorte Maria Sestoft et al., Impact of Solitary Confinement on Hospitalization Among Danish Prisoners in Custody, 21 INT’L J.L. & PSYCHIATRY 99, 103 (1998)). 52 E.g., Haney, Restricting the Use, supra, at 294 (collecting studies); Kupers, Waiting Alone to Die, supra, at 55; Grassian & Kupers, supra, at 1. 53 E.g., Grassian & Kupers, supra, at 1; Kupers, Waiting Alone to Die, supra, at 55. 54 Haney & Lynch, supra, at 518. 55 Lindsay M. Hayes & Joseph R. Rowan, National Study of Jail Suicides: Seven Years Later, 60 PSYCH. Q. 7, 23 (1989). 56 Haney & Lynch, supra, at 525. 57 Id.
19

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 31 of 47
mutilation.58 Even data from the flawed Colorado Study showed higher rates of
suicidal and self-destructive behavior among prisoners in solitary confinement than among a comparable population of prisoners not subjected to isolation.59
Prisoners consigned to solitary confinement conditions are also much more
likely to suffer from mental illness than prisoners in general population. For
example, researchers conducting a comprehensive examination of prisoners in
Washington State concluded that mental illness was twice as common in solitary confinement.60 Researchers in Denmark concluded that psychiatric disorders
among prisoners in solitary confinement conditions for three months or more were three times more common than among prisoners in general population.61 Even for
solitary confinement stints shorter than three months, the disparity remained profound.62 Numerous other studies have reached virtually identical conclusions.63
To be sure, prisoners with mental illness are more likely to be placed in solitary confinement conditions.64 The disproportionate frequency of mental illness
58 See Homer Venters et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, 104 AM. J. PUB. HEALTH 442, 445 (2014). 59 See Grassian & Kupers, supra, at 7-8. 60 Thomas Hafemeister & Jeff George, The Ninth Circle of Hell, 90 DENV. U. L. REV. 1, 46-47 (2012). 61 Smith, supra, at 477-78. 62 Id. (showing psychiatric disorders nearly doubled among prisoners relegated to solitary confinement for fewer than three months compared to those not in solitary conditions). 63 See Hafemeister & George, supra, at 46-47; Smith, supra, at 477-78. 64 E.g., Haney, Mental Health, supra, at 142-43.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 32 of 47
among prisoners in solitary confinement, however, cannot be attributed to preexisting mental illness alone. Rather, solitary confinement conditions result in “acute mental illness in individuals who had previously been free of any such illness.”65 In this respect, Justice Kennedy’s admonition that isolation “will bring you to the edge of madness, perhaps to madness itself,” is all too accurate. See Ayala, 135 S. Ct. at 2209 (Kennedy, J., concurring). III. PRISONS, INCLUDING MAXIMUM CUSTODY GENERAL
POPULATION UNITS, CAN BE SAFELY MANAGED USING LESS RESTRICTIVE HOUSING OPTIONS. Faced with this damning research and concomitant first-hand observations of the deleterious effects of solitary confinement, corrections officials have an obligation to take meaningful steps to mitigate its use. In addition, corrections officials recognize that the use of solitary confinement conditions is unnecessary to safely and effectively manage general population units, including maximum security general population. Many state correctional officials who once relied on solitary confinement to run facilities “efficiently” have since turned to a range of successful solutions to drastically and permanently reduce the use of solitary confinement throughout their facilities: 1) reducing the number of prisoners housed in solitary confinement conditions; 2) providing rehabilitation that instills prosocial behaviors benefitting the prison as a whole; and 3) reducing the length of time
65 See Grassian, Psychiatric Effects, supra, at 333.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 33 of 47
prisoners spend in solitary confinement conditions.66 In light of the widespread
availability and success of these reforms, prison administrators can no longer assert
a compelling interest in keeping prisoners, including general population prisoners,
in solitary confinement conditions.
A. Solitary Confinement Did Not Reduce Violence Within Prison Systems But Did Raise Concerns About Harm To Prisoners.
Over a century ago, the United States abandoned solitary confinement as a failed experiment begetting mental illness rather than rehabilitation.67 But in the
1980s, solitary confinement returned to America’s prisons, partly in reaction to exploding prison populations.68 Correctional officials believed they could pinpoint
the “troublemakers” and the “worst of the worst” who most frequently engaged in violence and put them in isolation to restore order.69 Officials expected removing prisoners from general population would reduce prison violence.70 They were
wrong.
66 See Gary C. Mohr & Rick Raemisch, Restrictive Housing: Taking the Lead, CORRECTIONS TODAY (2015), http://www.aca.org/aca_prod_imis/Docs/Corrections%20Today/2015%20Articles/ March%202015/Guest%20Editorial.pdf. 67 Bennion, supra, at 746-47. 68 Id. at 747-50. 69 Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on Aggregate Levels of Institutional Violence, 41 CRIMINOLOGY 1341, 1341-42 (2006). 70 Id. at 1342.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 34 of 47
Unfortunately, even though the increased use of solitary confinement was
“not associated with reductions in facility or systemwide misconduct and
violence,”71 isolation became an overused part of the correctional toolkit.72
Punitive isolation became common for even minor offenses.73 Inevitably, as the
practice continued, studies showed “[p]risons with higher rates of restrictive
housing had higher levels of facility disorder.”74 Psychologists demonstrated the
social pathology caused by isolation led prisoners to “occupy this idle time by
committing themselves to fighting against the system and the people that surround,
provoke, deny, thwart, and oppress them.”75
Attitudes about solitary confinement shifted. As shown above, research
confirmed that prolonged solitary confinement causes extensive harm to people’s
mental and physical health.76 Litigation highlighted the risks to prisoners in solitary
confinement, particularly those with mental illnesses. See, e.g., Coleman v. Brown,
71 B. Steiner & C.M. Cain, U.S. Dep’t of Justice, The Relationship Between Inmate Misconduct, Institutional Violence, and Administrative Segregation: A Systematic Review of the Evidence, Restrictive Housing in the U.S.: Issues, Challenges, and Future Directions 165, 179 (2016). 72 Erica Goode, Prisons Rethink Isolation, Saving Money, Lives and Sanity, N.Y. TIMES, March 11, 2012, at A1. 73 Leon Digard et al., Vera Institute of Justice, Rethinking Restrictive Housing: Lessons from Five U.S. Jail and Prison Systems 15 (2018). 74 Allen Beck, U.S. Dep’t of Justice, Use of Restrictive Housing in U.S. Prisons and Jails, 2011-12 1 (2015), https://www.bjs.gov/content/pub/pdf/ urhuspj1112.pdf. 75 Haney, Mental Health, supra, at 140. 76 Haney, Restricting the Use, supra, at 286.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 35 of 47
28 F. Supp. 3d 1068, 1105 (E.D. Cal. 2014); Jones’El v. Berge, 164 F. Supp. 2d
1096 (W.D. Wis. 2001); Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
The United States Senate and several states commissioned studies of the impact of
solitary confinement on prisoners and its effectiveness in managing violence.77
Simultaneously, international condemnation of prolonged solitary confinement
increased.78
Mindful of solitary confinement’s harm to prisoners and its failure to reduce
prison violence, twenty-one states and the federal government have undertaken
broad solitary confinement reforms.79 Seven states passed legislation restricting
placement of prisoners with a mental illness in solitary confinement.80 Sixteen
77 Eli Hager & Gerald Rich, Shifting Away from Solitary: More states have passed solitary confinement reforms this year than in the past 16 years, The Marshall Project (Dec. 12, 2014) https://bit.ly/1Bk0AJz; Press Release, The White House, Fact Sheet: Department of Justice Review of Solitary Confinement (Jan. 25, 2016), https://bit.ly/2YKCc5R; ASCA-Liman 2018, at 87-88. 78 Juan E. Mendez (Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment), ¶¶ 79-101, U.N. Doc. A/66/268 (5 Aug. 2011), http://daccessods.un.org/access.nsf/Get?OpenAgent&DS=A/66/268&Lang=E; G.A. Res. 70/175, Rule 44, United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules) (Dec. 17, 2015); see also Canadian Civil Liberties Assn. v. Canada (Attorney General), [2019] O.J. No. 1537, 2019 ONCA 243 (Can.); British Columbia Civil Liberties Assn. v. Canada (Attorney General), [2018] B.C.J. 53, 2018 BCSC 62 (Can.). 79 Hager & Rich, supra; ASCA-Liman 2018, at 87-88. 80 Those states are Colorado, Massachusetts, Nebraska, Nevada, New Mexico, New York, and Texas. National Conference of State Legislatures, Administrative Segregation: State Enactments: January 2018 (2018), https://bit.ly/2YJabvK [hereinafter “State Enactments”]; Andrew Oxford, Gov. Lujan Grisham signs
24

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 36 of 47
states passed legislation intended to limit the use of solitary confinement, and many more reformed correctional policies to reduce solitary confinement.81 The ACA published standards designed to limit the use of solitary confinement, including prohibiting the placement of people with serious mental illness in longterm solitary confinement.82 In 2016, a report published by the ACSA and the Arthur Liman Center for Public Interest Law at Yale Law School captured the growing tendency toward reform: “Instead of being cast as the solution to a problem, restricted housing has come to be understood by many as a problem in need of a solution.”83
B. Limiting The Use Of Solitary Confinement Has Reduced Violence Within Prisons And Improved Safety For Corrections Officers.
Over one-third of states have initiated restrictions on the use of solitary confinement. Nine states—Colorado, Idaho, Maine, Mississippi, Nebraska, North Carolina, North Dakota, Oregon, and Washington—report system-wide reforms, reducing the estimated population of prisoners in solitary confinement conditions from nearly 100,000 to approximately 61,000 in just four years.84 Colorado reports reducing its population of prisoners in long-term solitary confinement from seven
criminal justice legislation, SANTA FE NEW MEXICAN, Apr. 3, 2019, https://bit.ly/2JyTAqL; Hager & Rich, supra. 81 State Enactments, supra. 82 ACA Standards, supra, 5-4B-0031. 83 ASCA-Liman 2016, supra, at 15. 84 ASCA-Liman 2018, supra, at 4-7, 10.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 37 of 47
percent of the prison population to one percent.85 In reforming states, prisoners
who remain in solitary confinement now reportedly stay for days, not years, in compliance with ACA standards.86 These states transformed their prisons by
reducing the number of prisoners sent to solitary confinement, initiating prosocial
training for prisoners in temporary isolation, and reducing the length of time
prisoners spend in solitary confinement conditions.
Putting prisoners into solitary confinement did not reduce violence in
prisons, and the corollary also proved true: Releasing prisoners from solitary
confinement did not increase violence. Instead, reforms limiting the use of solitary confinement conditions resulted in a dramatic decrease in prison violence.87 In
Mississippi, “the number of incidents requiring use of force plummeted . . .
Monthly statistics showed an almost seventy percent drop in serious incidents, both
85 Marie Gottschalk, Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails, 125 YALE L.J. FORUM 253, 263 (Jan. 15, 2016), https://bit.ly/2X1vdVR. 86 See, e.g., ACA Standards, 5-4B-0008. 87 See, e.g., Marc A. Levin, Esq., Testimony Before the U.S Senate Judiciary Subcommittee on The Constitution, Civil Rights and Human Rights 3 (February 25, 2014), https://bit.ly/2Mdmgbg; Rick Raemisch, remarks at Vera Institute of Justice, Webinar: Rethinking Restrictive Housing: What’s Worked in Colorado? (Sept. 17, 2018), https://bit.ly/2VXdpPh [hereinafter “Raemisch Remarks”]; Focused Deterrence Initiatives to Reduce Group Violence in Correctional Facilities: A Review of Operation Workplace Safety and Operation Stop Violence, ACA 2018 Winter Conference Seminar (2018) 18-23 (on file with counsel) [hereinafter “Deterrence”].
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 38 of 47
prisoner-on-staff and prisoner-on-prisoner.”88 Similar broad measures of violence
in the Colorado prison system decreased by approximately 80 percent postreforms, and prisoner-on-staff assaults decreased by nearly 50 percent.89 In North
Dakota, extreme incidents such as suicide attempts and cell flooding used to occur
three or more times every week in solitary; after dramatic reductions in the use of solitary confinement, they now occur only a few times each year.90 In Maine,
barely a year after launching solitary confinement reforms, prison officials reported “substantial reductions in violence” and other uses of force and restraint.91 And in
Washington, officials observed a 50 percent drop in assaults against staff, the use
of weapons, and fights in just the first year following adoption of solitary confinement reforms and a group violence deterrence strategy.92 Between 2014 and
88 Terry Kupers et al., Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs, 36 CRIM. JUST. & BEHAVIOR 1037, 1043 (2009). 89 Raemisch Remarks, supra. 90 Cheryl Corley, North Dakota Prison Officials Think Outside the Box to Revamp Solitary Confinement, NPR Morning Edition (July 31, 2018, 5:01 a.m.), https://n.pr/2vlYbTL. 91 Levin, supra, at 3. 92 Dan Pacholke & Sandy Felkey Mullins, U.S. Dep’t of Justice, More Than Emptying Beds: A Systems Approach to Segregation Reform 1, 5 (2016), https://bit.ly/2MdmuiC; see generally, TERRY ALLEN KUPERS, SOLITARY: THE INSIDE STORY OF SUPERMAX ISOLATION AND HOW WE CAN ABOLISH IT 171-211 (Univ. of Calif. Press 2017).
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 39 of 47
2017, violent incidents in two high-security Washington prisons decreased by nearly 60 percent and prisoner-on-staff assaults decreased by nearly 90 percent.93
C. There Are Proven, Effective Strategies Available To Reduce The Use of Solitary Confinement.
Recognizing solitary confinement does not reduce prison violence, prison officials developed strategies to reduce the influx of prisoners into isolation, including deterring the violent acts that resulted in solitary confinement placement, eliminating punitive isolation for minor infractions, and creating alternative housing for prisoners who need mental health treatment or protective custody.94
Prison officials began reforms by evaluating who was put in solitary confinement and why. Staff shortages or administrative convenience were frequently reasons used to justify housing prisoners in solitary confinement conditions.95 Officials also discovered that rather than housing “the worst of the worst,” isolation cells often were filled with people who were simply disruptive, had mental illness, or sought protective custody.96 The first ASCA-Liman report revealed “the criteria for entry [into solitary confinement] were broad, as was the discretion accorded correctional officials when making individual decisions about
93 Deterrence, supra. 94 Digard, supra, at 28-29. 95 Sharon Shalev, Solitary Confinement as a Prison Health Issue, World Health Org. Guide to Prisons and Health (2014), available at https://bit.ly/2K7I2ue. 96 Hans Toch & Terry Kupers, Violence in Prisons, Revisited 45.3 J. OFFENDER REHABILITATION 1, 18 (2007); Digard, supra, at 15.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 40 of 47
placement.”97 Self-reports from correctional departments indicated “[l]ow-level
nonviolent offenses were among the most common infractions to result in
disciplinary segregation sanctions,” and in many states, a significant percentage of prisoners in solitary confinement had been diagnosed with a mental illness.98
Prisoners who “disrupted the efficient running of an institution” were isolated to make institutional management easier on staff.99
Solitary confinement may have been more convenient in the short-term but it delayed or exacerbated problems in the long-term.100 Reforming states now
withhold privileges from people who commit less serious infractions instead of sending them to solitary confinement.101 Officials reserve solitary confinement for
prisoners who “pose a serious threat to the safety of others,” and “only when a less-restrictive setting is not sufficient.”102
States also reduced the influx of prisoners into solitary confinement by
creating alternative housing for prisoners who need mental health treatment and/or
protective custody. Several states—including Colorado, Massachusetts, Nebraska,
97 Ass’n of State Corr. Adm’rs & Liman Ctr. for Pub. Interest L. at Yale L. Sch., Time-In-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison i (2015). 98 Digard, supra, at 15; ASCA-Liman 2016, supra, at 50. 99 Rick Raemisch, Why We Ended Long-Term Solitary Confinement in Colorado, N.Y. TIMES, Oct. 13, 2017, at A25. 100 Rick Raemisch, My Night in Solitary, N.Y. TIMES, Feb. 21, 2014, at A25. 101 Digard, supra, at 31-32. 102 Id. at 32.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 41 of 47
New Mexico, New York, and Texas—passed legislation restricting the isolation of
prisoners with serious mental illness, with New Mexico also excluding any prisoner who exhibits self-injurious or suicidal behaviors.103 These states, along
with Arizona, Mississippi, North Carolina, North Dakota, Pennsylvania, Virginia,
Washington, and the federal government, report creating policies for housing prisoners with mental illness in ways that do not exacerbate their illnesses.104
Reforming states report implementing screening policies to ensure vulnerable people are not placed with people known to be violent.105 “Innovations by an
increasing number of jurisdictions now demonstrate that agencies can safely
reduce their use of segregation . . . by removing vulnerable, nonviolent individuals
from segregation and considering alternative strategies as an initial response for those screened at risk of sexual victimization or abusiveness.”106
CONCLUSION
In light of the correctional norms regarding conditions for general
population prisoners, the severe harm inflicted by solitary confinement conditions,
and the ready alternatives to the use of solitary confinement, we urge this Court to
103 State Enactments, supra; Oxford, supra; Hager & Rich, supra. 104 Hager & Rich, supra; U.S. DEP’T OF JUSTICE, REPORT AND RECOMMENDATIONS CONCERNING THE USE OF RESTRICTIVE HOUSING 48-49 (2016), https://www.justice.gov /archives/dag/file/815551/download. 105 Allison Hastings et al., National PREA Resource Center, Keeping Vulnerable Populations Safe under PREA: Alternative Strategies to the Use of Segregation in Prisons and Jails 7-8 (2015). 106 Id. at 18-19.
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uphold the District Court’s requirement for out-of-cell time for class members in general population.

Dated: June 7, 2019

Respectfully submitted,

Daniel M. Greenfield RODERICK & SOLANGE MACARTHUR JUSTICE CENTER Northwestern Pritzker School of Law 375 East Chicago Avenue Chicago, IL 60611 (312) 503-8538
Danielle C. Jefferis Nicole B. Godfrey STUDENT LAW OFFICE – CIVIL RIGHTS CLINIC University of Denver Sturm College of Law 2255 E. Evans Avenue, Suite 335 Denver, CO 80208 (303) 871-6155

/s/ Jennifer Wedekind David C. Fathi Amy Fettig Jennifer Wedekind ACLU NATIONAL PRISON PROJECT 915 15th Street N.W. Washington, DC 20005 (202) 548-6610
David Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P.O. Box 87131 San Diego, CA 92138-7131 (619) 232-2121

Counsel for Amici Curiae

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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 43 of 47

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 44 of 47

CERTIFICATE OF SERVICE I hereby certify that on June 7, 2019, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

Date: June 7, 2019

/s/ Jennifer Wedekind Jennifer Wedekind
Counsel for Amici Curiae

Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 45 of 47
APPENDIX A: BIOGRAPHIES OF AMICI CURIAE Kathleen Dennehy worked for the Massachusetts Department of Corrections for more than 30 years, serving as Commissioner from 2004 until 2007. She is currently a correctional expert and consultant, and a monitor for the Department of Justice. Martin F. Horn served as Secretary of Corrections of Pennsylvania from 1995 to 2000. He also served as Commissioner of the New York City Departments of Corrections and Probation for seven years. Horn has also served as Executive Director of the New York State Sentencing Commission. Steve J. Martin is the former General Counsel/Chief of Staff of the Texas prison system and has served in gubernatorial appointments in Texas on both a sentencing commission and a council for offenders with mental impairments. He coauthored Texas Prisons: The Walls Came Tumbling Down, and has written numerous articles on criminal justice issues. Gary Mohr is currently the President of the American Correctional Association, the largest corrections accrediting body in the United States. He has more than 40 years of correctional experience, including as the director of the Ohio Department of Rehabilitation and Correction (ODRC), the deputy director and superintendent of the Ohio Department of Youth Services, the deputy director of
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 46 of 47
administration for ODRC, and the deputy director for the ODRC Office of Prisons. Mr. Mohr signs this brief in his individual capacity.
Richard Morgan was appointed Secretary of the Washington State Department of Corrections in 2016. He also was appointed to Washington State’s Parole Board and elected to the Walla Walla City Council, and he has served on the Board for the Washington State Coalition to Abolish the Death Penalty since 2012. Mr. Morgan is currently a consultant and expert witness on matters of correctional policy and operations.
Phil Stanley is the former Commissioner of the New Hampshire Department of Corrections, reporting directly to the Governor. His 42-year career in corrections includes terms as Director of Correctional Institutions, Regional Administrator, Probation Officer, and Youth Correctional Officer. He is currently a consultant for jail operations.
Richard Subia is a former Director of the California Department of Corrections and Rehabilitation, a senior position within one of the largest correctional systems in the United States. Subia served in the Department for 26 years. He is now the President of Subia Consulting Services, Inc., through which he offers his expertise in correctional operations, oversight, and rehabilitative programming. He has served as an expert witness for a variety of correctional issues in numerous state and federal court cases.
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Case: 18-16427, 06/07/2019, ID: 11323619, DktEntry: 48, Page 47 of 47
Roger Werholtz served as the Secretary of Corrections of Kansas from 2002 until his retirement in 2010. He also served as the Deputy Secretary of Corrections of Kansas. He has supervised all three divisions of the Kansas Department of Corrections: Community and Field Services, Programs and Staff Development, and Facilities Management. He has community mental health experience and served on the Governor’s Mental Health Services Planning Council. He also served as the Midwest Regional Representative on the Executive Committee of the ASCA. He is the recipient of the 2009 Michael Franke Award, given in recognition of outstanding correctional administration.
Jeanne Woodford is a former Undersecretary of the California Department of Corrections and Rehabilitation. She has more than 30 years of experience in corrections and law enforcement, including as a correctional officer and Warden of San Quentin State Prison. After her retirement from the Department, she taught at Berkeley and Hastings Law Schools and Stanford University’s Continuing Studies Program.
3

 
 Case 4:09-cv-05796-CW Document 1114 Filed 12/07/18 Page 1 of 3

United States District Court Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

TODD ASHKER, et al.,

5

Plaintiffs,

6

v.

7

EDMUND G. BROWN, et al.,

8

Defendants.

No. 09-cv-05796-CW
ORDER ADOPTING OUT-OF-CELL TIME PLAN

9

Pursuant to the Court’s Order on July 3, 2018 finding that

10 Defendants were in violation of the Settlement Agreement, Docket

11 No. 1028, the Court hereby ADOPTS the following remedial plan:

12

1. Substantive Relief. All class members who have been

13 transferred to General Population prisons and remain there must

14 be accorded an amount of time out of their cells that is

15 meaningfully greater than when they were in the Security Housing

16 Unit (SHU), consistent with California Department of Corrections

17 and Rehabilitation’s (CDCR) legitimate security needs. CDCR

18 shall have discretion as to how to implement this general remedy.

19 Plaintiffs’ counsel and Plaintiffs’ expert shall be allowed at

20 least one year of monitoring and documentation.

21

2. Documentation. CDCR is ordered to produce the following

22 information: (a) a list of all class members currently assigned

23 to Level IV prisons, with date of placement and current location;

24 (b) daily individualized logs, movement sheets, and other

25 documentation of time and location/activity of all out-of-cell

26 time for all class members in Level IV prisons, during the first

27 two months of implementation, and thereafter monthly, but only

28 for those prisoners designated by Plaintiffs’ counsel; production

Case 4:09-cv-05796-CW Document 1114 Filed 12/07/18 Page 2 of 3

United States District Court Northern District of California

1 shall occur on 15th of each month for previous month’s data; (c)

2 for each Level IV prison where class members are housed, monthly

3 documentation of every day of lockdown or modified program and

4 the reason(s) therefore, produced on the 15th of the following

5 month; (d) for each Level IV prison where class members are

6 housed, monthly documentation of each occurrence in which yard or

7 day room time is eliminated or restricted and the reason(s)

8 therefore, produced on the 15th of the following month; and (e)

9 CDCR shall not interfere with Plaintiffs’ counsel’s prompt

10 delivery to and collection from prisoners of logs or other

11 documentation prepared by Plaintiffs’ counsel to track out-of-

12 cell time.

13

3. Monitoring. Monitoring shall consist of the following

14 elements: (a) Defendants’ and Plaintiffs’ counsel shall meet and

15 confer by conference call every three months during the time of

16 the monitoring of this issue to discuss implementation; (b)

17 Defendants’ and Plaintiffs’ counsel shall meet with Magistrate

18 Judge Illman every six months, starting six months from the date

19 of this Order, to assess progress; (c) CDCR shall facilitate

20 quarterly conference calls between Plaintiffs’ counsel and class

21 representatives, and shall continue to abide by paragraph forty

22 of the Settlement Agreement regarding attorney-client

23 communications with respect to this remedial process, including

24 facilitating attorney visits and phone calls with class members;

25 and (d) monitoring shall continue for one year with Plaintiffs

26 having the right to seek an extension, and subsequent extensions,

27 each not to exceed twelve months, of this remedial order and the

28 Court’s jurisdiction over this matter by presenting evidence that

2

Case 4:09-cv-05796-CW Document 1114 Filed 12/07/18 Page 3 of 3

United States District Court Northern District of California

1 demonstrates by a preponderance of the evidence that substantial

2 compliance with the Settlement Agreement’s terms has not yet been

3 achieved.

4

4. Role of Expert. An expert shall be included as part of

5 Plaintiffs’ monitoring so that Plaintiffs can adequately evaluate

6 Defendants’ compliance with this Order.

7

The expert may be hired by Plaintiffs’ counsel to assist

8 them in monitoring, subject to reimbursement from Defendants for

9 all reasonable time and expenses. The expert is authorized to

10 conduct visits upon reasonable notice, or without notice in

11 exigent circumstances, to speak with staff and inmates, and to

12 have access to all relevant data and documentation.

13 Institutional staff shall facilitate the expert’s unencumbered

14 access to class members without undue delay, whether by

15 telephone, mail, or personal visit. The expert will not have

16 decision-making authority.

17

5. Retaliation. Consistent with paragraph fifty-four of the

18 Settlement Agreement, Defendants are prohibited from retaliating

19 against any class representative, class member, or other prisoner

20 due to their participation in any aspect of this remedial

21 process.

22

IT IS SO ORDERED.

23 Dated: December 7, 2018 24 25

CLAUDIA WILKEN United States District Judge

26

27

28

3

 
 Case 4:09-cv-05796-CW Document 1115 Filed 12/07/18 Page 1 of 3

United States District Court Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

TODD ASHKER, et al.,

5

Plaintiffs,

6

v.

7

EDMUND G. BROWN, et al.,

8

Defendants.

No. 09-cv-05796-CW
ORDER ADOPTING WALK-ALONE STATUS PLAN

9

10

Pursuant to the Court’s Order on July 3, 2018 finding that

11 Defendants were in violation of the Settlement Agreement, Docket

12 No. 1029, the Court hereby ADOPTS the following remedial plan:

13

1. The determination of whether a prisoner in the Restricted

14 Custody General Population (RCGP) should be classified as a walk-

15 alone, or allowed to exercise and participate in leisure time

16 activity in a group, shall be made by the Institution

17 Classification Committee (ICC). A group is defined as more than

18 one person. The ICC will make every effort to allow all RCGP

19 prisoners to exercise and participate in leisure time activity in

20 a group, including efforts to create smaller groups including

21 groups of two, if necessary. The ICC’s decision to classify a

22 prisoner as a walk-alone will be reassessed every two months to

23 determine if such status is still necessary.

24

2. Consistent with legitimate safety concerns and without

25 disclosing information that can create dangerous situations, the

26 ICC will provide a walk-alone prisoner and Plaintiffs’ counsel

27 with the reasons for its decision. The ICC’s decision should

28 explain why a walk-alone prisoner cannot exercise or recreate in

Case 4:09-cv-05796-CW Document 1115 Filed 12/07/18 Page 2 of 3

United States District Court Northern District of California

1 any group, even a group of two, if necessary. The ICC must

2 produce its finding to the prisoner and Plaintiffs’ counsel for

3 review within seven days of the ICC’s determination. The

4 prisoner may challenge the ICC’s finding and have it reviewed by

5 the Departmental Review Board (DRB). Prior to the DRB

6 proceedings, a staff assistant shall be provided to help the

7 prisoner prepare and present his case. The DRB will also provide

8 to Plaintiffs’ counsel and the prisoner a separate statement with

9 its review of the ICC decision and its own finding, within seven

10 days of the DRB’s determination.

11

3. If a prisoner does not want to exercise or participate in

12 leisure time activity in a group, he shall be allowed to sign a

13 chrono to that effect and thus waive the right to group yard or

14 activities. The individuals on voluntary walk-alone status shall

15 be given an opportunity to re-sign the waiver, or withdraw it,

16 every six months.

17

4. Walk-alone prisoners must be afforded ordinary General

18 Population privileges and have adequate alternatives for social

19 contact consistent with CDCR’s legitimate security needs. CDCR

20 shall have discretion as to how to implement this provision.

21

5. Plaintiffs’ counsel shall be entitled to monitor the

22 group programming status of each RCGP prisoner for one year.

23 Plaintiffs’ counsel’s right to monitor shall include regular

24 communication with walk-alone prisoners. Plaintiffs shall have

25 the right to seek an extension, and subsequent extensions, each

26 not to exceed twelve months, of this remedial order and the

27 Court’s jurisdiction over this matter by presenting evidence that

28 demonstrates by a preponderance of the evidence that substantial

2

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United States District Court Northern District of California

1 compliance with the Settlement Agreement’s terms has not yet been

2 achieved.

3

IT IS SO ORDERED.

4 Dated: December 7, 2018 5 6

CLAUDIA WILKEN United States District Judge

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

 
 Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 1 of 8

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

EUREKA DIVISION

7

8

TODD ASHKER, et al.,

9

Plaintiffs,

10

v.

11

MATHEW CATE, et al.,

12

Defendants.

Case No. 09-cv-05796-CW (RMI)
ORDER Re: Dkt. No. 1132

13

14

Currently pending before the court is Defendants’ motion requesting a stay pending appeal

15 of a previous order of this court which extended the parties’ settlement agreement as well as the

16 court’s jurisdiction over the matter for the duration of the extended period. Defs.’ Mot. (dkt. 1132).

17 Plaintiffs have responded (dkt. 1147); Defendants have replied (dkt. 1153); and, on April 2, 2019,

18 the court conducted a hearing at which the parties presented oral argument (dkt. 1168). For the

19 reasons stated below, the court will deny Defendants’ motion (dkt. 1132) as moot.

20

INTRODUCTION

21

On January 25, 2019, this court entered an order (dkt. 1122) (hereafter, “Extension Order”)

22 granting Plaintiffs’ motion (dkt. 905) to extend the 24-month monitoring and enforcement period

23 provided for in the parties’ settlement agreement (see dkt. 424-2 at 14-18). Defendants promptly

24 filed a notice of appeal (dkts. 1126 & 1130). Were it not for the court having granted Plaintiffs’

25 extension motion, the parties’ continued obligations under the settlement agreement would have

26 terminated, and the court’s jurisdiction over any future aspects of the case would have lapsed. See

27 Settlement Agmt. (dkt 424-2) at 17-18. While the appeal of this court’s decision to grant the

28 extension motion has been pending, Plaintiffs have continued to demand documents and

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 2 of 8

United States District Court Northern District of California

1 information from Defendants in line with obligations set forth in the settlement agreement. See

2 Samson Decl. (dkt. 1132-1) at 1-2. Defendants have not provided the requested information, and

3 have instead filed the instant motion for a stay of further proceedings pending the appeal of the

4 Extension Order. Id. at 7.

5

THE PARTIES’ ARGUMENTS

6

Defendants argue that the court should find that it has been divested of jurisdiction because

7 the pending appeal has been taken of an order that “conclusively decided that the Court’s

8 jurisdiction over the Agreement should continue with further monitoring and oversight, rather than

9 terminate following the 24-month compliance and contractual enforcement period the parties

10 agreed to when they resolved this case.” Defs.’ Mot. (dkt. 1132) at 4. In this regard, Defendants

11 reason that any further orders from this court, entered pursuant to the Extension Order,

12 “particularly orders that may permit Plaintiffs’ counsel to conduct further monitoring, [would]

13 materially alter[] the status quo and substantially compromise[] rights that Defendants intend to

14 vindicate on appeal.” Id. In the alternative, Defendants submit that even if this court finds that it is

15 not divested of jurisdiction by virtue of the pendency of an appeal, that a stay would be otherwise

16 appropriate. Id. at 4-12.

17

Plaintiffs contend that this court retains jurisdiction to implement the Extension Order

18 during the pendency of the appeal. Pls.’ Resp. (dkt. 1147) at 7-9. Plaintiffs submit that because

19 Judge Wilken has previously rejected “this very same argument,” in the context of effectuating

20 enforcement orders from which Defendants had appealed, that the same conclusion is compelled

21 here. Id. On that premise, Plaintiffs invoke collateral estoppel and the law of the case doctrine in

22 support of the notion that Defendants should not be allowed to re-litigate that issue, which

23 Plaintiffs couch as whether this court “is stripped of all jurisdiction during the pendency of an

24 appeal.” Id. at 7-8. Plaintiffs also suggest that if the court were to find that the pendency of the

25 appeal deprives the court of jurisdiction over enforcement matters arising under the Extension

26 Order, that such a finding would amount to “reversing Judge Wilken’s divestment ruling.” Id. at 8.

27 Additionally, while conceding the legal standard that district courts may not take further action

28 that materially alters the status of the case on appeal, Plaintiffs nevertheless contend that this court 2

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 3 of 8

United States District Court Northern District of California

1 retains jurisdiction to “enforce the Extension Order by providing a remedy to the violations it

2 found that do not materially alter the status of the case on appeal, as Judge Wilken has already

3 held.” Id. at 9. Putting jurisdiction aside, Plaintiffs conclude by arguing that Defendants have not

4 made a showing that would justify the court’s exercise of its discretion to issue a stay pending

5 appeal. Id. at 9-19.

6

DISCUSSION

7

Although 28 U.S.C. § 1291 limits an appellate court’s jurisdiction to “final1 decisions of

8 the district courts,” the Supreme Court has permitted departures from this rule where an

9 interlocutory order falls into the “collateral order” exception announced in Cohen v. Beneficial

10 Industrial Loan Corp., 337 U.S. 541, 545-47 (1949). Under that exception, an interlocutory order

11 is immediately appealable if it “conclusively determines the disputed question, resolves an

12 important issue completely separate from the merits of the action, and is effectively unreviewable

13 on appeal from final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978); see

14 also United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1981).

15

Of relevance in the present context, a special category of collateral orders has been

16 recognized in a series of cases involving the asserted right not to undergo further proceedings at

17 all. In Abney v. United States, 431 U.S. 651, 659-60 (1977), the Supreme Court held that an

18 interlocutory order denying a criminal defendant’s pre-trial motion to dismiss an indictment on

19 double jeopardy grounds was immediately appealable. Likewise, in Helstoski v. Meanor, 442 U.S.

20 500, 506-08 (1979), a pre-trial claim by a member of Congress that the Speech or Debate clause

21 immunized him from criminal prosecution was found to also be immediately appealable. In

22 addition to satisfying the other requirements of Cohen, both Abney and Helstoski, involved “an

23 asserted right the legal and practical value of which would be destroyed if it were not vindicated

24 before trial.” Hollywood Motor Car Co., 458 U.S. at 266-67. The defendants in those two cases

25

26 1 In determining whether a decision is “final,” courts employ a practical rather than a technical analysis.

27

Orr v. Plumb, 884 F.3d 923, 928 (9th Cir. 2018). Here, the Extension Order would have been a final order if Defendants had prevailed and the agreement and the court’s jurisdiction had been terminated. However,

28

since Plaintiffs prevailed and the agreement and the court’s jurisdiction were extended, the Extension Order is more in the nature of an interlocutory order.

3

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 4 of 8

United States District Court Northern District of California

1 raised claims based upon “the right not to be tried, which must be upheld prior to trial if it is to be

2 enjoyed at all.” United States v. MacDonald, 435 U.S. 850, 860-61 (1978).

3

Ordinarily, if a defendant’s interlocutory claim is considered immediately appealable as an

4 Abney-type claim, the district court generally loses its power to proceed on matters arising from

5 the time the defendant files its notice of appeal until the appeal is resolved. See United States v.

6 Hickey, 580 F.3d 922, 926 (9th Cir. 2009); United States v. Yellow Freight System, Inc., 637 F.2d

7 1248, 1252 (9th Cir. 1980) (citing Moroyoqui v. United States, 570 F.2d 862, 864 (9th Cir. 1977));

8 United States v. Garner, 663 F.2d 834, 837-38 (9th Cir. 1981); United States v. Burt, 619 F.2d

9 831, 838 (9th Cir. 1980). Such is the nature of asserting immunity from further proceedings.

10

In such cases, courts have repeatedly held that the filing of a notice of appeal confers

11 jurisdiction on the court of appeals while divesting the district court of its control of the aspects of

12 the case involved in the appeal. See Rodriguez v. Cnty. of L.A., 891 F.3d 776, 790 (9th Cir. 2018)

13 (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)); see also Chuman v.

14 Wright, 960 F.2d 104, 105 (9th Cir. 1992) (interlocutory appeal on immunity grounds divests the

15 district court of jurisdiction to proceed with trial, unless the district court certifies in writing that

16 the claim of immunity has been waived or is frivolous); United States v. Claiborne, 727 F.2d 842,

17 850 (9th Cir. 1984). The divestiture of jurisdiction rule is a judicially-made rule, and was

18 originally employed in the context of civil appeals to avoid confusion or the waste of time that

19 would result from having the same issues before two courts at the same time. Rodriguez, 891 F.3d

20 at 790 (quoting Claiborne, 727 F.2d at 850). It should be noted that while the divestiture rule was

21 previously referred to as “jurisdictional” – the Supreme Court has more recently clarified that

22 because only Congress may establish or modify the subject-matter jurisdiction of district courts,

23 judicially-made jurisdictional rules are now more accurately described as “mandatory claim

24 processing rules” that may be applied with greater flexibility than truly jurisdictional rules.

25 Rodriguez, 891 F.3d at 790.

26

As an exception to the divestiture rule, again focused on avoiding uncertainty and waste,

27 and concerned with the possibility that the appeals process might be abused to cause delay or

28 increase costs, district courts may proceed in appropriate cases by certifying that the appeal is 4

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United States District Court Northern District of California

1 frivolous or waived. Id. at 791. However, absent such certification, the district court is

2 automatically divested of its authority over those aspects of the case that are involved in the

3 appeal. Id. (citing Chuman, 960 F.2d at 105 (“In this circuit, where, as here, the interlocutory

4 claim is immediately appealable, its filing divests the district court of jurisdiction to proceed with

5 trial.”)). Also, it is important to note that district courts retain control of the aspects of the case that

6 are not involved in the appeal. See generally Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 957

7 (9th Cir. 1983) (“The district court retained the power to award attorneys’ fees after the notice of

8 appeal from the decision on the merits had been filed.”); Stein v. Wood, 127 F.3d 1187, 1189 (9th

9 Cir. 1997) (“There are a number of exceptions to the general rule that a district court loses

10 jurisdiction upon the filing of a notice of appeal. A district court may retain jurisdiction when it

11 has a duty to supervise the status quo during the pendency of an appeal, or in aid of execution of a

12 judgment that has not been superseded.”) (citations omitted); United States v. Phelps, 283 F.3d

13 1176, 1181 (9th Cir. 2002) (holding that exceptions from the divestiture of jurisdiction rule are

14 permissible so long as they do not frustrate the purpose of the rule). Accordingly, there are

15 generally three situations where a notice of appeal does not divest the district court of jurisdiction:

16 (1) where the issue before the district court is separate from, or collateral to, the matter involved in

17 the appeal; (2) where application of the divestiture of jurisdiction rule would wholly undermine its

18 purpose; and (3) where the appeal is clearly defective or frivolous, usually by reason of

19 “untimeliness, lack of essential recitals, or reference to a non-appealable order.” United States v.

20 LaMere, 951 F.2d 1106, 1108 (9th Cir. 1991); see also Ruby v. Secretary of United States Navy,

21 365 F.2d 385, 389 (9th Cir. 1966) (en banc) (notice of appeal from un-appealable order does not

22 divest district court of jurisdiction). The court finds none of these situations present.

23

At this point, several key facts should be noted with regard to the posture of this case, the

24 nature and effect of the Extension Order, as well as the subject of the pending appeal. This case

25 originated with claims brought by California prisoners under the Eighth Amendment (cumulative

26 effects of prolonged solitary confinement) and the Fourteenth Amendment (denial of due process

27 in the prison-gang validation process), and became the subject of a global settlement agreement

28 that promised certain reforms, and provided for a two-year monitoring period during which 5

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 6 of 8

United States District Court Northern District of California

1 Defendants agreed to provide Plaintiffs’ counsel the information that would be necessary to

2 determine Defendants’ compliance. Settlement Agmt. (dkt. 424-2) at 14-17. The agreement also

3 conferred continuing jurisdiction upon the court during the 24-month period such as to hear and

4 decide enforcement motions and other matters provided for in the agreement’s dispute resolution

5 procedures. Id. at 19-21. Lastly, the agreement provides that, unless Plaintiffs prevail on a motion

6 for an extension of the 24-month monitoring period by satisfying a certain evidentiary standard,

7 the agreement and the court’s jurisdiction over the matter shall automatically terminate. Id. at 17-

8 18. On January 25, 2019, finding that Plaintiffs’ motion had satisfied the evidentiary standard set

9 forth in the agreement, the court entered the Extension Order and extended the agreement, as well

10 as the court’s own subject matter jurisdiction over the future of the case, for a 12-month period.

11 See Extension Order (dkt. 1122). The Extension Order was then promptly appealed by Defendants

12 (dkts. 1126 & 1130), as well as by Plaintiffs (dkt. 1131). While the case remains pending in the

13 appellate court, Plaintiffs have “initiated the process for continued monitoring” by demanding

14 document production from Defendants, as well as by asking this court to involve itself in the

15 design of a remedial plan that might address the systemic flaws identified by Plaintiffs’ motion

16 and the Extension Order. See Samson Decl. (dkt. 1132-41) at 4-5; see also Pls.’ Resp. (dkt. 1147)

17 at 8 (arguing that “this Court has ongoing jurisdiction to both enforce the explicit terms of its prior

18 order extending the Settlement Agreement, and to provide a remedy consistent with the

19 constitutional violations it already has found.”).

20

Defendants have therefore correctly couched the divestiture issue by characterizing the

21 Extension Order as one that “conclusively decided that the Court’s jurisdiction over the

22 Agreement should continue with further monitoring and oversight, rather than terminate following

23 the 24-month compliance and contractual enforcement period the parties agreed to when they

24 resolved this case.” Defs.’ Mot. (dkt. 1132) at 4. Defendants argue that but for the Extension

25 Order, the agreement, and the court’s jurisdiction, would have terminated. The court is

26 unpersuaded by Plaintiffs’ suggestion that Judge Wilken has previously rejected “this very same

27 argument.” Pls.’ Resp. (dkt. 1147) at 7-9 (citing (dkt. 1113) at 4). During the pendency of the

28 settlement agreement’s 24-month period, based on a finding that Defendants had breached the 6

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 7 of 8

United States District Court Northern District of California

1 agreement, Judge Wilken ordered the submission of remedial plans, and Defendants appealed. See

2 (dkt. 1113) at 4-5. Holding that the mere filing of the notice of appeal did not mean that

3 Defendants were free to ignore the court’s directive to submit a remedial plan, Judge Wilken’s

4 order then evaluated and adopted Plaintiffs’ proposed remedial plans but stayed their

5 implementation on Defendants’ motion pending the resolution of the appeal. Id. at 12. Two things

6 should be noted in this regard, Judge Wilken’s order was entered during a period that the

7 agreement was in full force and effect, and, the order addressed instances of breach and remedies

8 therefor, from which a subsequent appeal was taken. In that context, Judge Wilken held that the

9 court retains continuing jurisdiction to enforce those orders to preserve the status quo during the

10 pendency of the appeal. In a rather different context, the Extension Order decided between

11 terminating or extending the court’s jurisdiction and the agreement in its entirety. At the time the

12 Extension Order was entered, the case was at the juncture of either continuing for another 12-

13 month period of monitoring and enforcement, or no longer existing at all except as to a few still-

14 pending matters that had previously arisen.

15

Because the very continuation of this case is the subject of a currently pending appeal, the

16 court finds that it has been divested of its control of any future aspects of the case, arising on or

17 after the date of the filing of Defendants’ notice of appeal at to the Extension Order. See

18 Rodriguez, 891 F.3d at 790. As stated, the purpose of the divestiture rule is to avoid confusion, or

19 the waste of time that would result from having the same issues before two courts at the same

20 time. In this regard, if this court were to conclude otherwise and maintain control over the

21 upcoming aspects of this case, in the event that the Court of Appeals were to reverse the Extension

22 Order, any orders entered by this court pertaining to matters that arose after the filing of the notice

23 of appeal will be void ab initio and yet unable to be undone, bringing to mind the familiar adage

24 about the difficulty of unringing a bell.2 This is precisely the type of confusion and wastage of

25 time that the divestiture of jurisdiction doctrine is meant to avoid. See Hickey, 580 F.3d at 927

26 (admonishing district courts that divestiture errors can waste tremendous time and resources,

27

28 2 See State v. Rader, 62 Or. 37, 40, 124 P. 195, 196 (Or. 1912). 7

Case 4:09-cv-05796-CW Document 1174 Filed 04/10/19 Page 8 of 8

United States District Court Northern District of California

1 particularly where a case goes to trial). Here, Defendant’s claim on appeal, boiled down to its

2 essence, is that jurisdiction over this case has lapsed and the agreement has terminated, the court

3 finds this claim to be in the nature of an Abney-type claim asserting a right to avoid further

4 proceedings at all, which compels divestiture of those aspects of the case arising after the filing of

5 the notice of appeal as to the Extension Order.

6

CONCLUSION

7

Accordingly, because the filing of the notice of appeal divested the court of jurisdiction as

8 to any matters arising thereafter, Defendant’s Motion for a Stay Pending Appeal (dkt. 1132) is

9 DENIED as moot.

10

IT IS SO ORDERED.

11 Dated: April 10, 2019

12

13

14

ROBERT M. ILLMAN United States Magistrate Judge

15

16

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28 8

 
 Case 4:09-cv-05796-CW Document 1198 Filed 06/26/19 Page 1 of 34

United States District Court Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

TODD ASHKER, et al.,

5

Plaintiffs,

6

v.

7

GAVIN NEWSOM, et al.,

8

Defendants.

9

Case No. 09-cv-05796 CW
ORDER GRANTING MOTION FOR DE NOVO DETERMINATION OF RULING REGARDING DISTRICT COURT’S JURISDICTION PENDING APPEAL AND MOTION TO STAY
(Dkt. No. 1180)

10

This class action for violations of 42 U.S.C. § 1983 arises

11 out of the placement and indefinite retention of inmates by the

12 California Department of Corrections and Rehabilitation (CDCR) in
13 solitary confinement in Security Housing Units (SHU) on the basis
14 of so-called gang validation. Plaintiffs, inmates in California
15 prisons, some of whom have been in solitary confinement for more
16 than ten years, bring this class action against Defendants, the 17 Governor of the State of California, the Secretary of CDCR, the
Chief of CDCR’s Office of Correctional Safety, and the Warden of 18
Pelican Bay State Prison, for violations of their Eighth and 19
Fourteenth Amendment rights. 20
The parties entered into a settlement agreement in August 21
2015, whose terms, and the Court’s jurisdiction to enforce the 22
same, were set to expire in twenty-four months, unless Plaintiffs 23
showed, pursuant to the terms of the settlement agreement, the 24
existence of ongoing and systemic violations under the Eighth 25 Amendment or Fourteenth Amendment as alleged in the operative
26 complaints or arising out of the reforms required by the
27 settlement agreement. At the end of the settlement agreement’s
28 twenty-four-month term, Plaintiffs moved for an extension, and

Case 4:09-cv-05796-CW Document 1198 Filed 06/26/19 Page 2 of 34

United States District Court Northern District of California

1 the undersigned referred the motion to the magistrate judge

2 subject to de novo review pursuant to the terms of the settlement

3 agreement. The magistrate judge found that Plaintiffs made the

4 requisite showing of ongoing and systemic violations, and he

5 extended the settlement agreement, and along with it the Court’s

6 jurisdiction over it, for twelve months. See Extension Order,

7 Docket No. 1122. Both parties appealed that order directly to
8 the Ninth Circuit, pursuant to their own agreement to bypass the
district court and present their case directly to the court of 9
appeals. Defendants moved the magistrate judge to stay the 10
Extension Order; in that motion, Defendants also argued that the 11
district court was divested of jurisdiction to enforce this order 12
when they filed their notice of appeal of it. On April 10, 2019, 13
the magistrate judge ruled that “the filing of the notice of 14
appeal divested the court of jurisdiction as to any matters
15 arising thereafter” because the appeal of the Extension Order
16 fell within the scope of the collateral order doctrine. April 10
17 Order at 8, Docket No. 1174. He then denied the motion to stay

18 as moot.

19

Now before the Court is Plaintiffs’ motion for de novo

20 review of the April 10 Order. Defendants oppose the motion. For

21 the reasons set forth below, the Court GRANTS Plaintiffs’ motion

22 for de novo review of the April 10 Order, and concludes that the

23 appeal of the Extension Order did not divest the district court

24 of jurisdiction to enforce it, and that Defendants have not met

25 their burden to show that a stay of the order pending the appeal

26 is warranted.

27 //

28

2

Case 4:09-cv-05796-CW Document 1198 Filed 06/26/19 Page 3 of 34

United States District Court Northern District of California

1

BACKGROUND

2 I. Claims and Procedural History

3

Plaintiffs Todd Ashker and Danny Troxell had lived in

4 solitary confinement in Pelican Bay’s SHU for over two decades.

5 Docket No. 1, Compl. ¶¶ 16-18. On December 9, 2009, they filed

6 this lawsuit challenging the conditions of their confinement.

7 Their pro se complaint charged various CDCR officials with

8 violating their First, Fifth, Eighth, and Fourteenth Amendment

9 rights. Id. ¶ 8.

10

On September 10, 2012, after securing counsel, Ashker and

11 Troxell filed a second amended complaint (2AC) converting this

12 suit into a putative class action and joining eight other long-

13 term SHU inmates as plaintiffs. 2AC ¶ 1, Docket No. 136. In

14 their 2AC, Plaintiffs assert that lengthy exposure to the

15 conditions inside the Pelican Bay SHU violates the Eighth

16 Amendment’s ban on cruel and unusual punishments. Id. ¶¶ 177-92.

17 Specifically, they allege that “the cumulative effect of

18 extremely prolonged confinement, along with denial of the

19 opportunity of parole, the deprivation of earned credits, the

20 deprivation of good medical care, and other crushing conditions

21 of confinement at the Pelican Bay SHU” have caused them

22 significant harm, both physically and psychologically. Id. ¶¶

23 180-81. They claim that SHU inmates are forced to “languish,

24 typically alone, in a cramped, concrete, windowless cell, for 22

25 and one-half to 24 hours a day” without access to “telephone

26 calls, contact visits, and vocational, recreational or

27 educational programming.” Id. ¶ 3.

28

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United States District Court Northern District of California

1

Plaintiffs also assert that CDCR’s procedures for assigning

2 inmates to the SHU violate the Fourteenth Amendment’s guarantee

3 of due process. Id. ¶¶ 193-202. According to Plaintiffs, CDCR

4 assigns inmates to the SHU based solely on their membership in or

5 association with prison gangs, without regard for the inmate’s

6 “actual behavior.” Id. ¶¶ 91-92. CDCR relies instead on the

7 word of confidential informants and various indicia such as

8 “gang-related art, tattoos, or written material” to determine

9 whether inmates are affiliated with a gang – a process known as

10 “gang validation.” Id. ¶ 92. Inmates who have been validated as

11 gang members or associates are assigned to the SHU for an

12 indefinite term. Id. ¶¶ 92-94. Once inside the SHU, inmates

13 receive periodic reviews every six months to determine whether

14 they should be released into the prison’s general population.

15 Id. ¶¶ 96-97. Plaintiffs allege that these reviews are

16 essentially “meaningless,” because they require inmates to

17 “debrief” – that is, to renounce their membership in the gang and

18 divulge the gang’s secrets to prison officials in order to secure

19 release. Id. ¶¶ 96-97, 7. Plaintiffs contend that debriefing is

20 not a viable option for most inmates, who either know no such

21 secrets or who believe that debriefing “places [them] and their

22 families in significant danger of retaliation” from other

23 prisoners or their associates outside. Id. ¶ 7. CDCR also

24 conducts reviews of SHU inmates’ gang affiliation status every

25 six years to determine whether they are still “active” gang

26 members or associates. Id. ¶¶ 102-04. As with the six-month

27 reviews, however, Plaintiffs aver that this process typically

28 only leads to the inmate’s release from the SHU if the inmate is

4

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1 willing to debrief. Id. Plaintiffs allege, in short, that they

2 have effectively been denied “information about an actual path

3 out of the SHU, besides debriefing.” Id. ¶ 117. They allege

4 that they “are entitled to meaningful notice of how they may

5 alter their behavior to rejoin general population, as well as

6 meaningful and timely periodic reviews to determine whether they

7 still warrant detention in the SHU.” Id. ¶ 200.

8

Plaintiffs’ 2AC seeks declaratory and injunctive relief. In

9 particular, Plaintiffs request “alleviation of the conditions of

10 confinement” in the SHU, meaningful review of the continued need

11 for solitary confinement of all inmates who have been in the SHU

12 for over six months, and release from the SHU of every inmate who

13 has spent over ten years there. Id. at ¶¶ 45-46; 202. They have

14 not asserted any claims for monetary damages.

15

Defendants moved to dismiss the complaint in December 2012.

16 They argued, among other things, that Plaintiffs’ due process

17 claim was moot because CDCR had implemented in October 2012 a new

18 set of procedures, collectively known as the “Security Threat

19 Group” (STG) pilot program to review existing SHU assignments and

20 transfer certain SHU inmates into the general population. The

21 Court rejected that argument in its April 2013 order denying

22 Defendants’ motion to dismiss. It found that the implementation

23 of the STG pilot program was not sufficient to render Plaintiffs’

24 claims moot because CDCR had not implemented the program

25 permanently and, at that time, all ten Plaintiffs remained

26 subject to the preexisting procedure.

27

On May 2, 2013, Plaintiffs moved for class certification

28 under Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2).

5

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1 The motion remained pending for nearly a year at the parties’

2 request while they engaged in settlement negotiations. On May

3 14, 2014, however, the parties notified the Court that they were

4 not able to reach a settlement. On June 2, 2014, the Court

5 granted in part and denied in part Plaintiffs’ motion for class

6 certification. The Court certified two classes under Rules

7 23(b)(1) and 23(b)(2): (1) a Due Process Class comprised of all

8 inmates who are assigned to an indeterminate term at the Pelican

9 Bay SHU on the basis of gang validation, under the policies and

10 procedures in place as of September 10, 2012; and (2) an Eighth

11 Amendment Class comprised of all inmates who are now, or will be

12 in the future, assigned to the Pelican Bay SHU for a period of

13 more than ten continuous years. Order at 21, Docket No. 317.

14

On October 17, 2014, CDCR permanently implemented the

15 Security Threat Group (STG) policy, first piloted in October

16 2012. See 15 Cal. Code Regs. § 3000, et seq.; Settlement

17 Agreement ¶ 6, Docket No. 424-2. This policy alters aspects of

18 CDCR’s gang validation process and its practice of imposing

19 indeterminate terms in Pelican Bay’s SHU. STG, in part, allows

20 Pelican Bay’s SHU inmates to “step down” from the most

21 restrictive placement in the SHU to less restrictive housing

22 conditions, provided that the inmate fulfills certain

23 obligations.

24

On March 9, 2015, the Court granted Plaintiffs’ motion to

25 file a supplemental complaint, which alleges a supplemental

26 Eighth Amendment claim on behalf of a putative class of gang-

27 validated inmates who were housed at Pelican Bay’s SHU for more

28 than ten years and who have been or will be transferred, under

6

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1 the Step Down Program, to a SHU at another CDCR facility. See

2 Order, Docket No. 387; Supp. Compl., Docket No. 388. In this

3 pleading, Plaintiffs allege that their prolonged placement in any

4 combination of SHUs constitutes cruel and unusual punishment.

5 The Court ruled that the new allegations in the Supplemental

6 Complaint would not be litigated until after the conclusion of

7 the trial based on the 2AC allegations. Order at 11, Docket No.

8 387; Order, Docket No. 393.

9

On September 2, 2015, the parties jointly moved for

10 preliminary approval of a settlement agreement (SA) that would

11 resolve all claims in the 2AC and Supplemental Complaint.

12

The Court granted preliminary approval to the settlement

13 agreement on October 14, 2015, and it granted final approval on

14 January 26, 2016. Docket Nos. 445, 488. In accordance with the

15 settlement agreement, the Court retained jurisdiction to enforce

16 it. Docket No. 488 at 2.

17 II. Relevant Terms of the Settlement Agreement

18

The key terms of the settlement agreement include the

19 following: (1) requiring CDCR to no longer place inmates in any

20 SHU, administrative segregation, or the Step Down Program solely

21 on the basis of gang validation; (2) requiring the creation of

22 the Restrictive Custody General Population Unit (RCGP), to

23 provide inmates with increased opportunities for social

24 interaction and programming; (3) requiring that no inmate be

25 placed in the Pelican Bay SHU for more than five continuous

26 years; (4) requiring the Step Down Program to be shortened to two

27 years; and (5) requiring CDCR to train staff to ensure that

28 confidential information used against inmates is accurate and to

7

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1 promote the implementation and management of the procedures and

2 policies described in the settlement agreement. See, e.g., SA ¶¶

3 13-36, Docket No. 424-2.

4

Paragraph 41 of the settlement agreement permits Plaintiffs

5 to seek an extension of the agreement “and the Court’s

6 jurisdiction over this matter” of not more than twelve months; to

7 obtain the extension, Plaintiffs must demonstrate “by a

8 preponderance of the evidence” that current and ongoing systemic

9 violations of the Eighth or Fourteenth Amendments exist as

10 alleged in the Second Amended Complaint, or Supplemental

11 Complaint, or as a result of CDCR’s reforms to its Step Down

12 Program or the SHU policies contemplated in the agreement. Id. ¶

13 41. In the event that an extension beyond the initial twenty-

14 four months is granted, CDCR’s obligations with respect to the

15 production of data and documentation would be extended for the

16 same period. Id. ¶ 44. In the absence of this showing, the

17 settlement agreement and the Court’s jurisdiction “shall

18 automatically terminate[.]” Id. ¶ 41.

19

The agreement permits Plaintiffs to seek to extend

20 indefinitely the settlement agreement and the Court’s

21 jurisdiction so long as they make the requisite showing just

22 described, with each extension lasting no more than twelve

23 months. Id. ¶ 43.

24

The settlement agreement also contains a procedure for

25 seeking enforcement of its terms; it requires Plaintiffs to

26 demonstrate by a preponderance of the evidence that CDCR is in

27 material breach of its obligations under the settlement

28 agreement. Id. ¶ 53. Any determination by the magistrate judge

8

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1 with respect to enforcement is subject to de novo review by the

2 district court under 28 U.S.C. § 636(b)(1)(B). Id. Multiple

3 enforcement motions have been resolved in accordance with this

4 procedure, and appeals of several of the orders issued by the

5 undersigned in connection with such motions are pending. See

6 Amended Notice of Appeal, Docket No. 1117 (listing pending

7 appeals of enforcement motions).

8 III. Extension of the Settlement Agreement

9

On November 20, 2017,1 Plaintiffs moved for an extension of

10 the settlement agreement under paragraph 41 on the basis of

11 current and ongoing systemic violations of the Due Process Clause

12 of the Fourteenth Amendment. Docket No. 898-4. Plaintiffs

13 advanced three independent bases for extending the settlement

14 agreement and the Court’s jurisdiction (with each being

15 sufficient to warrant an extension): (1) the misuse of unreliable

16 confidential information by Defendants; (2) inadequate procedural

17 protections related to placement and retention of class members

18 in the RCGP; and (3) the retention of CDCR’s old gang

19 validations, which Plaintiffs contend ultimately resulted in a

20 denial of a fair opportunity for parole. Id. at 1. Defendants

21 opposed the motion.

22

After the undersigned referred the motion to the magistrate

23 judge, the magistrate judge granted Plaintiffs’ motion to extend

24 the settlement agreement on January 25, 2019, finding that

25

26

1 Plaintiffs’ motion to extend the settlement agreement and

27

the Court’s jurisdiction was due on November 20, 2017, pursuant to a stipulation. See Docket No. 886 at 1. Accordingly, this

28

motion was not untimely or in violation of the settlement agreement.

9

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1 Plaintiffs had satisfied their burden under the settlement

2 agreement to extend the same for an additional twelve months

3 based on two of the three grounds they advanced in their motion.

4 Docket No. 1122. Specifically, the magistrate judge found that

5 Plaintiffs, as required by paragraph 41 of the settlement

6 agreement, had shown by a preponderance of the evidence that

7 Defendants had engaged in ongoing and systemic due process

8 violations (1) through their misuse of confidential information,

9 which had the effect of improper placement in solitary

10 confinement; and (2) by using unreliable gang validations, which

11 had the effect of denying class members the opportunity for a

12 meaningful parole hearing. Extension Order at 26, Docket No.

13 1122. The magistrate judge further found that that these

14 systemic violations were alleged in the Second Amended Complaint

15 or the Supplemental Complaint, or were the result of the reforms

16 to CDCR policies and practices required by the settlement

17 agreement and, as such, they constituted proper bases for

18 extending the settlement agreement. Id. The magistrate judge

19 did not order or implement any remedies for the systemic

20 violations he found, although he did note in his order,

21 consistent with the settlement agreement, that “in the event of

22 an extension of the Settlement Agreement and the court’s

23 jurisdiction over the matter beyond the initial 24-month period,

24 Defendants’ obligations of production of any agreed upon data and

25 documentation to Plaintiffs’ counsel will be extended for the

26 same period[.]” Id. at 3.

27

The parties agreed to take the position that the Extension

28 Order would be a “final order subject to appellate review[.]”

10

United States District Court Northern District of California

Case 4:09-cv-05796-CW Document 1198 Filed 06/26/19 Page 11 of 34
1 See Joint Notice at 2, Docket No. 1129. Defendants filed a
2 notice of appeal to the Ninth Circuit on February 6, 2019, and
3 Plaintiffs filed a notice of a cross-appeal on February 25, 2019.
4 Docket Nos. 1126, 1130, 1131. The cross-appeals are pending. As
5 noted above, appeals of certain of the orders issued in
6 connection with enforcement disputes also are pending.
7 IV. Magistrate Judge’s April 10 Ruling on Defendants’ Motion to Stay the Extension Order
8 After the Extension Order was issued, Plaintiffs initiated
9 the meet-and-confer process regarding Defendants’ obligation
10 under the settlement agreement to produce documents and data
11 during the twelve-month extension. Plaintiffs then wrote a
12 letter to the magistrate judge on February 13, 2019, requesting a
13 telephonic status conference regarding this issue. See Docket
14 No. 1132-1, Ex. A-C.
15 On February 26, 2019, Defendants moved to stay the Extension
16 Order. Docket No. 1132. In that motion, Defendants made two
17 arguments. First, Defendants contended that their appeal of the
18 Extension Order divested the district court of jurisdiction “over
19 matters relating” to that order. Mot. at 3-4, Docket No. 1132.
20 Second, Defendants contended, in the alternative, that if the
21 district court was not divested of jurisdiction by their appeal
22 of the Extension Order, then the order should be stayed pending
23 the appeal on the ground that they would suffer irreparable harm
24 if they were required to produce documents and data or enact
25 policy changes during the twelve-month extension. Id. at 3-12.
26 Plaintiffs opposed the motion. Docket No. 1147. They
27 argued that the district court was not divested of jurisdiction
28
11

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1 by Defendants’ appeal of the Extension Order, and that the court

2 therefore has jurisdiction to enforce the twelve-month extension

3 of the agreement, including Defendants’ obligations to produce

4 documents and data during the extension, and to design a remedy

5 consistent with the systemic constitutional violations that

6 justified the extension. Id. at 3-4. At present, Plaintiffs do

7 not request that remedies be designed. See Motion at 5, Docket

8 No. 1180. They also argued that Defendants did not make the

9 requisite showing to justify a stay of the Extension Order.

10 Specifically, Plaintiffs argued that Defendants cannot suffer

11 irreparable harm from being ordered to comply with their

12 production or other obligations under the settlement agreement

13 during the twelve-month extension because Defendants agreed to

14 undertake such obligations in the event of an extension.

15

The magistrate judge held a teleconference on March 5, 2019,

16 during which he indicated that he would resolve this dispute in

17 conjunction with the motion Defendants had filed to stay the

18 Extension Order. Docket No. 1191-2.

19

On April 10, 2019, the magistrate judge held that this case

20 involves an asserted “right to avoid further proceedings at all,

21 which compels divestiture of those aspects of the case arising

22 after the filing of the notice of appeal as to the Extension

23 Order” based on the collateral order doctrine. April 10 Order at

24 6-8, Docket No. 1174. He then denied Defendants’ motion to stay

25 as moot. Id.

26 V. Plaintiffs’ Motion for De Novo Review of April 10 Ruling that District Court Was Divested of Jurisdiction
27

28

Plaintiffs now move for de novo review of the April 10 Order

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1 based on these grounds: (1) that the district court was not

2 divested of jurisdiction by the appeal of the Extension Order and

3 has the authority to implement and enforce the Extension Order;

4 (2) that the magistrate judge incorrectly applied the collateral

5 order doctrine; and (3) that Defendants have not shown that a

6 stay is warranted. Docket No. 1180.

7

Defendants oppose the motion, arguing that Plaintiffs’

8 motion is based on the wrong standard because the April 10 Order

9 is not subject to de novo review. Docket No. 1187. Defendants

10 further contend (1) that the collateral order doctrine permits an

11 immediate appeal of the Extension Order because they have

12 “immunity” from further litigation given that the settlement

13 agreement’s twenty-four-month period has expired; (2) that the

14 district court was divested of jurisdiction to enforce the

15 Extension Order by their appeal of the order; and (3) that, if

16 the district court was not divested of jurisdiction, then the

17 action should be stayed pending appeal, because they are likely

18 to suffer irreparable harm if its order is enforced. Docket No.

19 1196.

20

ANALYSIS

21 I. The April 10 Order Is Subject to De Novo Review

22

The Court first addresses the parties’ dispute with respect

23 to the standard for reviewing the April 10 Order. It concludes

24 that the applicable standard of review is de novo.2

25

First, the April 10 Order resolved a motion by Defendants to

26

27

2 As will be discussed below, even if the standard for

28

reviewing the April 10 Order were “clearly erroneous or contrary to law,” the result would be the same.

13

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1 stay the action, as well as a pending dispute regarding

2 Defendants’ obligations under the settlement agreement to produce

3 documents and data during the twelve-month extension. Disputes

4 of that nature are subject to de novo review under the terms of

5 the settlement agreement. See SA ¶¶ 39, 53. At the time

6 Defendants filed the motion to stay, a dispute regarding

7 Defendants’ production obligations during the extension was

8 pending. See Docket No. 1132-1, Ex. A-C; see also Extension

9 Order at 6, Docket No. 1147 (noting that “[w]hile the case

10 remains pending in the appellate court, Plaintiffs have

11 ‘initiated the process for continued monitoring’ by demanding

12 document production from Defendants”). Although Plaintiffs did

13 not file a motion for document production, per se, Plaintiffs

14 raised the dispute regarding production during the teleconference

15 with the magistrate judge, who indicated that he would resolve

16 that dispute in conjunction with Defendants’ motion to stay.

17 Docket No. 1191, Ex. 1 at 15-17. Accordingly, because the April

18 10 Order was intended to resolve a dispute regarding Defendants’

19 document production obligations, it falls within the scope of

20 paragraph 53 of the settlement agreement and is thus subject to

21 de novo review under 28 U.S.C. § 636(b)(1)(B).3 See SA ¶ 39 (“Any

22 disputes regarding data and document production shall be

23 submitted to Magistrate Judge Vadas in accordance with the

24

25

3 28 U.S.C. § 636(b)(1)(B) provides that “[a] judge of the

court may accept, reject, or modify, in whole or in part, the

26

findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to

27

the magistrate judge with instructions.” Findings and recommendations made pursuant to Section 636(b)(1)(B) are subject

28

to de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C).

14

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1 dispute resolution and enforcement proceedings set forth in

2 Paragraphs 52 and 53 [of the Settlement Agreement].”); SA ¶ 53

3 (“An order issued by Magistrate Judge Vadas under this Paragraph

4 is subject to review under 28 U.S.C. § 636(b)(1)(B).”).

5

Second, 28 U.S.C. § 636(b)(1)(B) specifically identifies

6 prisoner petitions challenging conditions of confinement as

7 matters that can be referred to a magistrate judge subject to de

8 novo review. The Ninth Circuit has interpreted prisoner

9 petitions as “including section 1983 actions” and “conditions of

10 confinement” as those that relate to “ongoing prison practices

11 and regulations with regard to matters such as placement in

12 maximum security, deadlocks, unhealthy living conditions . . .

13 and cruel and unusual punishment by prison authorities.” See

14 Houghton v. Osborne, 834 F.2d 745, 748–50 (9th Cir. 1987)

15 (citation and internal quotation marks omitted). Issues of this

16 nature are the subject of this Section 1983 action. As such,

17 reviewing the April 10 Order de novo is consistent with the

18 language and spirit of 28 U.S.C. § 636(b)(1)(B).

19 II. The District Court Was Not Divested of Jurisdiction by Defendants’ Appeal of the Extension Order
20

A. The Court Has the Authority to Implement and Enforce

21

the Extension Order

22

A federal circuit court has jurisdiction over appeals from

23 “final decisions” of the district courts. See 28 U.S.C. § 1291.

24 “A final decision is typically one by which a district court

25 disassociates itself from a case. If non-final decisions were

26 generally appealable, cases could be interrupted and trials

27 postponed indefinitely as enterprising appellants bounced matters

28 between the district and appellate courts. Costs would be 15

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1 inflated by such a multiplication of proceedings, and district

2 courts would be inhibited in their ability to manage litigation

3 efficiently[.] Moreover, piecemeal appeals would undermine the

4 independence of the district judge.” SolarCity Corp. v. Salt

5 River Project Agric. Improvement & Power Dist., 859 F.3d 720, 723

6 (9th Cir. 2017) (internal citations and quotation marks omitted).

7

“In limited circumstances, however, appeals may be allowed

8 before a final judgment. For example, a district court may

9 certify an order for an immediate appeal. See 28 U.S.C. §

10 1292(b). Alternately, some statutes and rules allow an early

11 appeal of decisions on certain specific issues. Relief from a

12 court order may also be obtained in extraordinary circumstances

13 through a writ of mandamus.” Id. (final citation omitted).

14 Alternatively, “a piece of the case may become effectively

15 ‘final’ under the collateral-order doctrine, even though the case

16 as a whole has not ended.” Id. (citing Cohen v. Beneficial

17 Indus. Loan Corp., 337 U.S. 541, 546 (1949)). The collateral

18 order doctrine is discussed in more detail in the next section.

19

Under the judicially-created divestment doctrine, the filing

20 of a notice of appeal divests the district court of jurisdiction

21 over aspects of a case involved in the appeal. In re Padilla,

22 222 F.3d 1184, 1190 (9th Cir. 2000) (citation omitted). The

23 purpose of divestment is to “avoid the confusion and waste of

24 time that might flow from putting the same issues before two

25 courts at the same time.’” Id. (citation omitted). “This rule

26 is not absolute. For example, a district court has jurisdiction

27 to take actions that preserve the status quo during the pendency

28 of an appeal, but may not finally adjudicate substantial rights

16

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1 directly involved in the appeal. Absent a stay or supersedeas,

2 the trial court also retains jurisdiction to implement or enforce

3 the judgment or order but may not alter or expand upon the

4 judgment.” Id. (internal citations and quotation marks omitted).

5

The Extension Order is not a final order within the meaning

6 of Section 1291, because rather than ending the litigation, it

7 extended the settlement agreement and the Court’s jurisdiction

8 for another twelve months. Cf. SolarCity Corp., 859 F.3d at 723

9 (“A final decision is typically one by which a district court

10 disassociates itself from a case.”) (citation omitted).

11

The appeal of the Extension Order5, which is interlocutory,

12 does not preclude the Court from enforcing or implementing the

13 Extension Order, as well as the terms of the settlement agreement

14 that are automatically triggered by the Extension Order, for the

15 twelve-month extension period. See In re Padilla, 222 F.3d at

16 1190 (a notice of appeal does not preclude a court from

17 implementing or enforcing the order on appeal so long as it does

18 not “alter or expand” it); GTE Sylvania, Inc. v. Consumers Union

19 of U.S., Inc., 445 U.S. 375, 386 (1980) (“[P]ersons subject to an

20 injunctive order issued by a court with jurisdiction are expected

21 to obey that decree until it is modified or reversed, even if

22 they have proper grounds to object to the order.”).

23

24

25

5 The Ninth Circuit may not accept the parties’ attempt to

appeal directly to it the magistrate judge’s Extension Order. A

26

magistrate judge’s order can be appealed directly to a court of appeals instead of the district judge only if it was issued under

27

the consent statute, 28 U.S.C. § 636(c). 28 U.S.C. § 636(c)(3). The magistrate judge’s Extension Order was not issued pursuant to

28

the consent statute; accordingly, Defendants’ appeal of the Extension Order may be defective.

17

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United States District Court Northern District of California

1

In Britton v. Co-op Banking Grp., 916 F.2d 1405, 1412 (9th

2 Cir. 1990), the Ninth Circuit held that an appeal of an

3 interlocutory order denying a motion to compel arbitration did

4 not divest the district court of jurisdiction to enter subsequent

5 orders. The court of appeals distinguished orders and actions by

6 the district court that involve “moving the case along consistent

7 with its view of the case as reflected in its order denying

8 arbitration,” which are within the district court’s jurisdiction

9 pending appeal, from orders and actions that would effectuate “a

10 change in the result of the very issue on appeal,” which fall

11 outside of the district court’s jurisdiction pending appeal. Id.

12 at 1411-12 (emphasis added). The latter are inappropriate

13 because they would force the court of appeals to “deal[] with a

14 moving target.” Id.

15

Here, enforcing the terms of the settlement agreement and

16 taking any judicial action under that contract during the twelve—

17 month extension period is permissible, because doing so would not

18 alter or modify the matters determined in the Extension Order,

19 namely, whether Plaintiffs met their burden to show that the

20 twelve-month extension is warranted. See id.; cf. McClatchy

21 Newspapers v. Central Valley Typo. Union No. 46, 686 F.2d 731

22 (9th Cir.1982) (holding that it was error for district court to

23 modify the judgment being appealed while the appeal was pending).

24

Notwithstanding the foregoing, Defendants contend that the

25 district court was divested of jurisdiction to enforce the

26 Extension Order and any matters arising therefrom on the ground

27 that their appeal of that order falls within the collateral order

28 doctrine, which permits an interlocutory order to be treated as

18

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United States District Court Northern District of California

1 “final” for the purpose of permitting an immediate appeal under

2 28 U.S.C. § 1291. The Court concludes, for the reasons discussed

3 below, that this argument is unavailing.

4

B. The Collateral Order Doctrine Does Not Apply to the

Appeal of the Extension Order 5

6

The collateral order doctrine is “best understood” as a

7 “practical construction” of “the final decision rule laid out” in

8 28 U.S.C. § 1291. Digital Equip. Corp. v. Desktop Direct, Inc.,

9 511 U.S. 863, 868 (1994) (citation internal quotation marks

10 omitted). It permits a court of appeals to “treat[] as final” an

11 interlocutory order so that it can be immediately appealed under

12 Section 1291. Id. (citation internal quotation marks omitted).

13 “The collateral-order doctrine has three requirements. First, an

14 interlocutory order can be appealed only if it is conclusive.

15 Second, the order must address a question that is separate from

16 the merits of the underlying case. Third, the separate question

17 must raise some particular value of a high order and evade

18 effective review if not considered immediately. All three

19 requirements must be satisfied for the ruling to be immediately

20 appealable.” SolarCity Corp., 859 F.3d at 724 (internal

21 citations and quotation marks omitted). These three requirements

22 have been referred to as the “Cohen test.” See Digital Equip.,

23 511 U.S. at 869 (referring to Cohen v. Beneficial Indus. Loan

24 Corp., 337 U.S. 541 (1949)).

25

“The Supreme Court has repeatedly emphasized that these

26 requirements are stringent and that the collateral-order doctrine

27 must remain a narrow exception. In addition, the Court has held

28 that in evaluating these three requirements, [courts] must

19

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1 consider the entire category to which a claim belongs. As long

2 as the class of claims, taken as a whole, can be adequately

3 vindicated by other means, the chance that the litigation at hand

4 might be speeded, or a particular injustice averted, does not

5 provide a basis for jurisdiction under § 1291.” SolarCity Corp.,

6 859 F.3d at 724 (citations omitted).

7

Because the scope of the collateral order doctrine is so

8 narrow, the doctrine has been applied in a very limited set of

9 circumstances, namely where a party successfully asserts a

10 constitutional or statutory immunity from suit or trial. For

11 example, the doctrine has been applied to interlocutory denials

12 of certain “particularly important immunities from suit,” such as

13 “denials of Eleventh Amendment immunity,” absolute and qualified

14 immunity, “foreign sovereign immunity,” and “tribal sovereign

15 immunity.” Id. at 725 (citations omitted). In the criminal

16 context, the collateral order doctrine has been applied to permit

17 immediate appeals of interlocutory orders where the defendant

18 asserts a constitutional right not to be tried or a

19 constitutional immunity to being subjected to litigation. See,

20 e.g., Abney v. United States, 431 U.S. 651, 659-61 (1977)

21 (applying collateral order doctrine where criminal defendant

22 argued that he was immune from second trial based on the Double

23 Jeopardy Clause of the Fifth Amendment, reasoning that the

24 defendant was “contesting the very authority of the Government to

25 hale him into court to face trial” and that “the rights conferred

26 on a criminal accused by the Double Jeopardy Clause would be

27 significantly undermined if appellate review on double jeopardy

28 claims were postponed until after conviction and sentence”);

20

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1 Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (holding that

2 interlocutory order could be immediately appealed under the

3 collateral order doctrine to permit a United States Congressman

4 to assert the immunity conferred upon him by the Speech or Debate

5 Clause, reasoning that the Clause protects Congressmen “not just

6 from the consequences of litigation’s results but also from the

7 burden of defending themselves”). These asserted immunities from

8 suit or trial, when valid, can satisfy the third element of the

9 Cohen test, namely that the order being appealed resolve an

10 important question that would be effectively unreviewable if not

11 considered immediately.

12

Where an interlocutory order is immediately appealable under

13 the collateral order doctrine, the district court is

14 automatically divested of jurisdiction to proceed pending appeal,

15 unless the district court certifies that the appeal is frivolous

16 or another exception applies. See Chuman v. Wright, 960 F.2d

17 104, 105 (9th Cir. 1992) (emphasis added); see also United States

18 v. Claiborne, 727 F.2d 842, 850-51 (9th Cir. 1984) (where an

19 interlocutory claim in a criminal case is considered immediately

20 appealable based on a “right not to be tried,” the district court

21 loses its power to proceed from the time the notice of appeal is

22 filed until the appeal is resolved unless the appeal is found to

23 be frivolous by the district court).

24

Here, the only basis that Defendants have advanced for

25 applying the collateral order doctrine, and for arguing that the

26 district court was divested of jurisdiction to enforce the

27 Extension Order, is one that the Ninth Circuit and the Supreme

28 Court have expressly rejected. Defendants assert that the

21

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1 application of the collateral order doctrine, and the district

2 court’s purported divestment of jurisdiction over this

3 litigation, is appropriate based on their asserted “immunity from

4 continuing with the case,” which they claim arises, not from

5 statute or the Constitution, but from the notion that this

6 litigation ended at the conclusion of the settlement agreement’s

7 initial twenty-four-month term, and from the notion that

8 litigation activity between the notice of appeal and the reversal

9 would be a “waste” if they prevail on appeal. See Supp. Opp’n at

10 3-4, Docket No. 1196.

11

The Ninth Circuit and the Supreme Court specifically have

12 declined to allow immediate appeals under the collateral order

13 doctrine where the “immunity” asserted is a desire “to avoid

14 litigation[.]” See SolarCity Corp., 859 F.3d at 727; Will v.

15 Hallock, 546 U.S. 345, 354 (2006) (rejecting application of

16 collateral order doctrine based only on the asserted right to

17 avoid litigation, reasoning that if that alone were accepted as a

18 justification for an immediate interlocutory appeal, then “28

19 U.S.C. § 1291 would fade out whenever the Government or an

20 official lost an early round that could have stopped the fight”).

21

Particularly apt here is the Supreme Court’s express

22 rejection of an asserted “privately negotiated right to be free

23 from suit,” pursuant to a settlement agreement, as a basis for

24 permitting an immediate appeal under the collateral order

25 doctrine. See Digital Equip., 511 U.S. at 876-77. In Digital

26 Equipment, the parties entered into a settlement agreement that

27 ended the litigation. Id. at 865-867. Then, one of the parties

28 moved to rescind the agreement, and the district court granted

22

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1 the motion and vacated the dismissal of the case. Id. The other

2 party then sought an immediate appeal of that interlocutory order

3 based on the argument that its “right not to go to trial” under

4 the settlement agreement justified permitting an immediate appeal

5 under the collateral order doctrine. Id. The Supreme Court

6 rejected that argument, reasoning that, if a privately negotiated

7 right not to go to trial were a proper ground for applying the

8 collateral order doctrine, then “any district court order denying

9 effect to a settlement agreement could be appealed immediately.”

10 Id. at 877. It held that an asserted right to be free from suit

11 derived “by agreement does not rise to the level of importance

12 needed for recognition under § 1291.” Id. at 878.

13

Defendants’ asserted “immunity” from further proceedings in

14 this action stems from their view that, pursuant to the parties’

15 privately negotiated settlement agreement, this litigation should

16 have ended when the settlement agreement’s initial twenty-four

17 month expired. As in Digital Equipment, Defendants here have

18 invoked the collateral order doctrine to justify their immediate

19 appeal of an interlocutory order that, in their view, has

20 deprived them of a privately negotiated right to be free from

21 litigation. For the same reasons that the Supreme Court declined

22 to recognize the immediate interlocutory appeal in Digital

23 Equipment as valid under the collateral order doctrine, the Court

24 will do the same here.

25

The collateral order doctrine cannot be applied to permit an

26 immediate appeal solely because the appeal is of an interlocutory

27 order that denied a motion that could have, or should have, ended

28 the litigation; that is because “virtually every right that could

23

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1 be enforced appropriately by pretrial dismissal might loosely be

2 described as conferring a ‘right not to stand trial[.]’” Id. at

3 873. Without more, that circumstance does not give rise to the

4 existence of valid “right not to be tried” that would satisfy the

5 third element of the Cohen test. See United States v. Hollywood

6 Motor Car Co., 458 U.S. 263, 269 (1982) (noting that a “crucial

7 distinction” exists between “a right not to be tried and a right

8 whose remedy requires the dismissal” of charges or claims, and

9 holding, “The former necessarily falls into the category of

10 rights that can be enjoyed only if vindicated prior to trial.

11 The latter does not”). Accordingly, “§ 1291 requires courts of

12 appeals to view claims of a ‘right not to be tried’ with

13 skepticism, if not a jaundiced eye.” Digital Equip., 511 U.S. at

14 873. Only an “explicit statutory or constitutional guarantee

15 that trial will not occur . . . could be grounds for an immediate

16 appeal of rights under § 1291.” Id. at 874.

17

Defendants have not meaningfully addressed or distinguished

18 these authorities.

19

Accordingly, because Defendants’ purported right to avoid

20 further litigation based on their privately negotiated agreement

21 cannot satisfy the third element of the Cohen test as a matter of

22 law, Defendants’ invocation of the collateral order doctrine as a

23 basis for arguing that their appeal was proper, and that,

24 therefore, the district court was divested of jurisdiction over

25 this litigation, fails. For the same reasons, the magistrate

26 judge’s ruling that the court is divested of jurisdiction to

27 enforce the Extension Order because Defendants’ appeal satisfied

28

24

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1 the requirements of the collateral order doctrine was clearly

2 erroneous and contrary to law.

3

It’s worth noting that other reasons prevent the application

4 of the collateral order doctrine to Defendants’ appeal of the

5 Extension Order. For example, the Supreme Court has held that

6 the doctrine cannot be applied where “the class of claims [to

7 which the appeal belongs], taken as a whole, can be adequately

8 vindicated by other means[.]” Mohawk Indus., Inc. v. Carpenter,

9 558 U.S. 100, 107 (2009). The class of orders to which the

10 Extension Order belongs, which are orders that extend or refuse

11 to extend an injunctive settlement agreement or consent decree,

12 could be appealed under 28 U.S.C. § 1292(a)(1). That statute

13 permits appeals of an interlocutory order “granting, continuing,

14 modifying, refusing or dissolving injunctions, or refusing to

15 dissolve or modify injunctions[.]” See 28 U.S.C. § 1292(a)(1).

16 Orders, like the Extension Order, which extend a settlement

17 agreement that contains injunctive elements and that was

18 incorporated by reference in a court order, could satisfy the

19 requirements for an appeal under Section 1292(a)(1). See

20 Thompson v. Enomoto, 815 F.2d 1323, 1326 (9th Cir. 1987) (holding

21 that an order is injunctive within the meaning of Section

22 1292(a)(1) if it has the “practical effect of the grant or denial

23 of an injunction”).

24

Defendants’ argument to the contrary is unpersuasive.

25 Defendants contend that their appeal of the Extension Order

26 cannot fall within the scope of 28 U.S.C. § 1292(a)(1) because

27 the “Extension Order does not order Defendants to do anything.”

28 Supp. Opp’n at 4, Docket No. 1196. But Defendants ignore other

25

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1 aspects of the Extension Order, which recognize that, in the

2 event the settlement agreement is extended, Defendants’

3 production and other obligations under the settlement agreement

4 will continue for the duration of the extension. See Extension

5 Order at 3. Additionally, the Extension Order has the effect of

6 giving new life, for twelve months, to the settlement agreement,

7 which is injunctive in nature given that it requires both parties

8 to take and refrain from certain actions; as such, the Extension

9 Order “continues” an injunction within the meaning of Section

10 1292(a)(1).

11

Accordingly, the viability of an alternative path to

12 immediate appeal weighs against finding that the Extension Order

13 is immediately appealable under the collateral order doctrine.

14 III. Defendants Have Not Shown that a Stay is Warranted

15

Having found that the Court is not divested of jurisdiction

16 to enforce and implement the Extension Order, it now turns to

17 Defendants’ motion for a stay pending their appeal of the

18 Extension Order.8

19

A request for stay calls for the “consideration of four

20 factors: (1) whether the stay applicant has made a strong showing

21 that he is likely to succeed on the merits; (2) whether the

22 applicant will be irreparably injured absent a stay; (3) whether

23

24

8 Defendants contend that their request for a stay should be

decided by the magistrate judge in the first instance, but they

25

point to no authority preventing the undersigned from deciding the motion to stay now, without first referring it to the

26

magistrate judge. Because the motion to stay is within the undersigned’s authority and resolving it now will promote

27

efficiency and prevent undue delay, and because the motion has been fully briefed by both sides and the underlying facts are not

28

in dispute or in need of supplementation, the Court will resolve the motion.

26

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1 issuance of the stay will substantially injure the other parties

2 interested in the proceeding; and (4) where the public interest

3 lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citations and

4 internal quotation marks omitted). The “preservation of the

5 status quo” is not among the “factors regulating the issuance of

6 a stay.” See Golden Gate Rest. Ass’n v. City & Cty. Of San

7 Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (noting that

8 “[m]aintaining the status quo is not a talisman”).

9

Courts evaluate these factors on a continuum. Id. at 1115-

10 16. “At one end of the continuum, the moving party is required

11 to show both a probability of success on the merits and the

12 possibility of irreparable injury.” Id. at 1115 (citation and

13 internal quotation marks omitted). “At the other end of the

14 continuum, the moving party must demonstrate that serious legal

15 questions are raised and that the balance of hardships tips

16 sharply in its favor.” Id. at 1116 (citation and internal

17 quotation marks omitted). “These two formulations represent two

18 points on a sliding scale in which the required degree of

19 irreparable harm increases as the probability of success

20 decreases.” Id. (citation and internal quotation marks omitted).

21

“A stay is not a matter of right, even if irreparable injury

22 might otherwise result. It is instead an exercise of judicial

23 discretion, and [t]he propriety of its issue is dependent upon

24 the circumstances of the particular case. The party requesting a

25 stay bears the burden of showing that the circumstances justify

26 an exercise of that discretion.” Nken, 556 U.S. at 433–34

27 (citations and internal quotation marks omitted).

28

27

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1

Here, Defendants have failed to meet their burden to show

2 that a stay is warranted.

3

As to the first factor, the likelihood of success on the

4 merits, Defendants contend that they are likely to succeed on

5 appeal because the Extension Order was predicated on findings of

6 two categories of ongoing and systemic violations, which

7 Defendants argue are not proper grounds for extending the

8 settlement agreement because the violations “did not stem from

9 the constitutional claims alleged in Plaintiffs’ complaint or the

10 policy changes contemplated by the Agreement.” Motion at 6,

11 Docket No. 1132. Defendants also argue that the magistrate judge

12 simply accepted Plaintiffs’ interpretation of the evidence

13 “without any independent analysis, and without considering

14 Defendants’ interpretation of that evidence.” Id. at 7.

15

To prevail on appeal, Defendants must show that neither of

16 the two predicates for the Extension Order is a proper ground for

17 extending the settlement agreement. But Defendants have not

18 shown any likelihood that they will be able to do so. Contrary

19 to Defendants’ position, each of the two categories of ongoing

20 and systemic violations that served as predicates for the

21 Extension Order is within the scope of the operative complaints

22 or the reforms contemplated by the settlement agreement; as such,

23 each constitutes a proper, independent basis for extending the

24 settlement agreement under paragraph 41.

25

One of the predicates for the Extension Order was a finding

26 that ongoing and systemic due process violations were caused by

27 CDCR’s reliance on fabricated or inadequately disclosed

28 confidential information, or by CDCR’s failure to independently

28

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1 assess the reliability of confidential information. Extension

2 Order at 26. Because the settlement agreement requires CDCR to

3 take certain steps to ensure that the use of confidential

4 information against inmates “is accurate,” see, e.g., SA ¶ 34,

5 these violations arise out of the reforms contemplated by the

6 settlement agreement, and therefore constitute a proper ground

7 for extending the settlement agreement under paragraph 41. The

8 other predicate of the Extension order is the finding that

9 ongoing and systemic violations of due process were caused by the

10 continued use of flawed gang validations, because such

11 validations resulted in the denial to inmates of a fair

12 opportunity for parole. These violations also serve as a proper

13 ground for extending the settlement agreement under paragraph 41,

14 because the 2AC contains allegations that gang validations could

15 and did ultimately result in the denial of a fair opportunity for

16 parole. See, e.g., 2AC ¶¶ 87-90; 171, 187, 196, 199.

17

Further, nothing in the Extension Order suggests that the

18 magistrate judge failed to consider Defendants’ interpretation

19 of, or failed to properly analyze, the evidence. See, e.g.,

20 Extension Order at 20 (noting that, because Defendants failed to

21 submit any evidence, “the only task at hand is to evaluate

22 Plaintiffs’ evidence in light of Defendants’ arguments”).

23

Defendants therefore have failed to show any meaningful

24 likelihood of success on the merits. Nken, 556 U.S at 434 (2009)

25 (“It is not enough that the chance of success on the merits be

26 better than negligible.”) (citation and internal quotation marks

27 omitted). Accordingly, to justify a stay, Defendants’ showing of

28 irreparable harm must be very strong. See Golden Gate, 512 F.3d

29

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1 at 1116 (“[T]he required degree of irreparable harm increases as

2 the probability of success decreases.”) (citation and internal

3 quotation marks omitted).

4

Defendants have not shown that they are likely to suffer any

5 irreparable harm absent a stay. Defendants argue that, without a

6 stay, they “will be subject to a burdensome and costly twelve

7 months of monitoring, document production, conferences,

8 enforcement motions, and a second extension motion.” Supp. Opp’n

9 at 6. They also argue that they will be required to “engage in

10 extensive document collection and production,” the scope of

11 which, according to Defendants, falls outside of the scope of the

12 settlement agreement and the matters addressed in the Extension

13 Order. Motion at 9-11, Docket No. 1132. Finally, they argue

14 that “CDCR will be forced to reform policies and practices for

15 purported due process violations that are being challenged on

16 appeal, and which Defendants maintain were never part of this

17 case.” Id. at 8, Docket No. 1132.

18

These arguments are unpersuasive. It is well-established

19 that ongoing litigation and related expenses do not constitute

20 irreparable harm of the type that would warrant a stay. See,

21 e.g., Mohamed v. Uber Techs., 115 F. Supp. 3d 1024, 1032-33 (N.D.

22 Cal. 2015) (holding that “ongoing litigation and discovery

23 expense” do not amount to irreparable harm). Further, the

24 sources of irreparable harm that Defendants have identified

25 (i.e., monitoring, enforcement, etc.) arise out of contractual

26 obligations to which Defendants agreed. Under the terms of the

27 settlement agreement, the parties’ rights and obligations,

28 including Defendants’ obligation to produce documents and data,

30

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1 are automatically extended for the duration of any extension of

2 the settlement agreement. See, e.g., SA ¶ 44 (“To the extent

3 that this Agreement and the Court’s jurisdiction over this matter

4 are extended beyond the initial twenty-four month period, CDCR’s

5 obligations and production of any agreed upon data and

6 documentation to Plaintiffs’ counsel will be extended for the

7 same period.”). Irreparable harm cannot result from obligations

8 that Defendants agreed to undertake.

9

Defendants express concern with respect to the scope of the

10 documents and data that Plaintiffs have requested, but they have

11 not shown that present or future disputes about the scope of

12 their contractually-required productions can be a proper basis

13 for a finding of irreparable harm. Here, as discussed above, the

14 settlement agreement is clear that Defendants’ production

15 obligations continue during any extension of the agreement. The

16 scope and nature of the documents and data that Defendants are

17 obliged to produce must agreed upon, according to the settlement

18 agreement. See SA ¶ 37. If the parties are unable to reach an

19 agreement on the scope of production, the parties can avail

20 themselves of the dispute-resolution process set forth in the

21 settlement agreement. See id. ¶ 39 (providing that any “disputes

22 regarding data and document production” are to be resolved by the

23 magistrate judge in accordance with the procedures set forth in

24 paragraphs 52 and 53 of the settlement agreement). In light of

25 these pre-existing mechanisms, to which Defendants themselves

26 agreed, the existence of any present or future disputes regarding

27 production does not weigh in favor of a stay.

28

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1

Finally, Defendants’ contention that they will be

2 irreparably harmed if no stay is entered because they will be

3 “forced” to implement reforms and change policies is

4 unconvincing.10 The settlement agreement does not contain any

5 term that would make the implementation of new reforms or policy

6 changes automatic following the extension of the agreement. As

7 discussed above, the settlement agreement permits the parties to

8 avail themselves of procedures to enforce its terms. Whether any

9 new reforms or policy changes emerge from such enforcement

10 procedures remains to be seen. At present, the Court finds that

11 it would be inappropriate to issue a stay based on the

12 possibility that new reforms and policy changes could be explored

13 in the future, particularly given that Defendants retain the

14 right to request, if and when any such remedies are crafted

15 pursuant to the settlement agreement, that their implementation

16 be stayed pending appeal or otherwise.

17

Because the “most critical” factors in considering whether a

18 stay is warranted are likelihood of success on the merits and

19 irreparable harm, Nken, 556 U.S. at 434 (2009), Defendants’

20 failure to show that either of these factors weighs in favor of a

21 stay is sufficient to deny their motion.

22

23

24

10 Plaintiffs initially requested that the Court “order the

25

parties to meet and confer to present either a joint or separate remedial plans, followed by the issuance of a remedial order and

26

consideration of whether to stay implementation of remedies until the Ninth Circuit rules” on the appeal. Docket No. 1147 at 14.

27

But Plaintiffs currently “do not seek de novo review” of the magistrate judge’s rejection of their request for the design of

28

remedies for the systemic constitutional violations identified in the Extension Order. See Motion at 5, Docket No. 1180.

32

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1

The Court notes, for completeness, that the remaining

2 factors, namely the likelihood of injury to Plaintiffs if a stay

3 is issued, and the public interest, both weigh against entering a

4 stay. The public interest, and the interests of the class

5 members, would be served by the efficient and effective provision

6 of constitutional due process to California inmates. The recent

7 findings in the Extension Order show that significant and

8 systemic due process violations continue to take place. Staying

9 this litigation while the appeal is pending would contravene

10 these interests, because it could facilitate future violations of

11 the type the settlement agreement was intended to redress and

12 prevent.

13

Accordingly, the Court DENIES Defendants’ motion to stay the

14 Extension Order pending their appeal.

15

CONCLUSION

16

For the reasons set forth above, the Court concludes that it

17 is not divested of jurisdiction to enforce the Extension Order in

18 light of Defendants’ appeal of the order. The Court declines to

19 exercise its discretion to stay the order pending that appeal.

20

In accordance with the terms of the settlement agreement,

21 the parties’ and the Court’s obligations under that contract,

22 including Defendants’ obligations to produce documents and data,

23 will continue for the duration of the twelve-month extension of

24 the agreement. Defendants shall resume forthwith their

25 production of the same types and quantities of documents and data

26 they had agreed to produce prior to the expiration of the

27 original twenty-four-month period of the settlement agreement.

28 The twelve-month extension will begin on the date Defendants make

33

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1 their first complete production of such documents and data. To

2 the extent that Plaintiffs seek documents or data during the

3 twelve-month extension that go beyond the parties’ prior

4 agreements as to the scope of Defendants’ productions, the

5 parties shall promptly resume the dispute-resolution process,

6 pursuant to the terms of the settlement agreement, with respect

7 to any such requests for documents and data.

8

IT IS SO ORDERED.

9

10 Dated: June 26, 2019 11 12

CLAUDIA WILKEN United States District Judge

13

14

15

16

17

18

19

20

21

22

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24

25

26

27

28

34

 
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1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

TODD ASHKER, et al.,

5

Plaintiffs,

6

v.

7

EDMUND G. BROWN, et al.,

8

Defendants.

9

Case No. 09-cv-05796-CW
ORDER ADOPTING REMEDIAL PLANS AND GRANTING STAY OF ENFORCEMENT OF REMEDIAL PLANS
(Docket No. 1097)

10

This case was brought by a class of prisoners who had been

11 placed in the Security Housing Unit (SHU) in Pelican Bay State

12 Prison for ten years or more. The prisoners alleged that

13 placement in the SHU, including solitary confinement, for that

14 length of time amounted to cruel and unusual punishment. The

15 case resulted in a Settlement Agreement addressing the policies

16 and practices of the California Department of Corrections and

17 Rehabilitation (CDCR). Subsequently, Plaintiffs alleged, and the

18 Court found, that Defendants were in violation of the Settlement

19 Agreement. Pursuant to Court orders issued on July 3, 2018,

20 Docket Nos. 1028, 1029, both parties were to submit proposed

21 remedial plans. Before the Court are Plaintiffs’ proposed

22 remedial plans, along with Defendants’ Motion to Stay the Court’s

23 July 3, 2018 orders. Plaintiffs oppose the Motion to Stay.

24 Having considered the papers, the Court adopts the remedial plans

25 identified below and grants Defendants’ motion to stay the

26 enforcement of the remedial plans pending appeal.

27

BACKGROUND

28

On July 3, 2018, the Court issued two orders, finding, on de

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1 novo review of the Magistrate Judge’s orders, that Defendants

2 violated the parties’ Settlement Agreement in two ways. Docket

3 Nos. 1028, 1029. First, the Court found that Defendants violated

4 the Settlement Agreement with regard to out-of-cell time. Docket

5 No. 1028 (Out-of-Cell Time Order). The Court found that

6 Plaintiffs were not receiving out-of-cell time greater than what

7 they received in the SHU or “consistent with the CDCR’s

8 regulations and practices with respect to Level IV general

9 population inmates.” Id. at 1. The Court separately found that

10 Defendants were violating the Settlement Agreement by not

11 providing certain class members with exercise and leisure

12 activities in groups in that Defendants placed these class

13 members on “walk-alone” status. Docket No. 1029 (Walk-Alone

14 Status Order) at 1. The Court ordered the parties to meet and

15 confer and attempt to agree upon joint remedial plans to rectify

16 these violations. If they did not agree, the parties were to

17 submit separate proposals for each violation, and the Court would

18 evaluate and adopt the appropriate remedial plans.

19

On July 31, 2018, Defendants filed their notice of appeal of

20 these July 3, 2018 orders, and a motion to stay further

21 proceedings to the extent they related to these orders, pending

22 appeal. Docket No. 1054. On August 16, 2018, the Court denied

23 Defendants’ motion to stay, finding that Defendants would not

24 suffer irreparable harm because the orders merely required

25 proposals for remedies at the time. Docket No. 1070 (Order

26 Denying Stay) at 2-3. In its Order Denying Stay, the Court noted

27 that, upon receiving the remedial plan proposals, it might “delay

28 implementation of any remedial plan until after the Ninth Circuit

2

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1 rules on Defendants’ appeals.” Id. at 3. At the parties’

2 request, the Court granted extensions of the deadline to submit

3 the proposals until November 9, 2018. Docket Nos. 1083, 1092.

4

Plaintiffs moved to dismiss Defendants’ appeal for lack of

5 jurisdiction. On October 19, 2018, the Ninth Circuit denied

6 Plaintiffs’ motion without prejudice, noting that Plaintiffs can

7 re-raise their jurisdiction argument in their briefs. Docket No.

8 1091. On October 30, 2018, Defendants filed their current motion

9 to stay these proceedings, arguing that the Ninth Circuit’s

10 denial of Plaintiffs’ motion to dismiss without prejudice and

11 acceptance of the case on the merits means that the Court has

12 been stripped of its jurisdiction and must stay any matters

13 related to the July 3, 2018 orders. Docket No. 1097. Defendants

14 also moved to continue the November 9, 2018 deadline to submit

15 remedial plans. Docket No. 1098. The Court denied Defendants’

16 motion to continue the November 9, 2018 deadline. Docket No.

17 1102. On November 9, 2018, Plaintiffs submitted their proposals.

18 Docket No. 1106 (Plaintiffs’ Proposed Remedial Plans).

19 Defendants declined to submit proposed remedial plans because

20 they believed the Court has been stripped of its jurisdiction.

21 Docket Nos. 1104, 1105 (Defendants’ Statements). In this Court’s

22 view, Defendants’ appeal was premature and burdensome, given that

23 this Court had not yet decided on remedies. Accordingly, the

24 Court will provide its decision on remedies at this time, without

25 the benefit of proposed plans from Defendants, so that the Court

26 of Appeals will have the option to review them in a single

27 proceeding and the remedies can be effected more quickly, if

28 affirmed.

3

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1

DISCUSSION

2 I. Defendants’ Failure to Provide Remedial Plans Defendants’ reason for violating the Court’s July 3, 2018
3 orders requiring the parties to submit proposed remedial plans is
4 unavailing. “If a person to whom a court directs an order
5 believes that order is incorrect[,] the remedy is to appeal, but
6 absent a stay, he must comply promptly with the order pending
7 appeal. Persons who make private determinations of the law and
8 refuse to obey an order generally risk . . . contempt even if the
9 order is ultimately ruled incorrect.” Britton v. Co-op Banking
10 Group, 916 F.2d 1405, 1410 (9th Cir. 1990), quoting Maness v.
11 Meyers, 419 U.S. 449, 458 (1975). Further, “the rule that a
12 notice of appeal will divest a court of jurisdiction is not
13 absolute. For example, a trial court retains jurisdiction to
14 take actions that preserve the status quo during the pendency of
15 an appeal . . . . And absent a stay or supersedeas, the court
16 also retains jurisdiction to implement or enforce the judgment or
17 order but may not alter or expand upon the judgment.” In re
18 Rains, 428 F.3d 893, 904 (9th Cir. 2005) (holding that a
19 bankruptcy court had jurisdiction to enforce a settlement
20 agreement and judgment while the order approving the settlement
21 agreement was on appeal) (internal citations and quotations
22 omitted). Here, the Court ordered Defendants to submit remedial
23 plans for the Court’s consideration. Defendants’ subsequent
24 appeal of these orders did not strip the Court of jurisdiction to
25 enforce the orders, which were made before the appeal.
26 Defendants’ argument that the Ninth Circuit’s denial of
27 Plaintiffs’ motion to dismiss for lack of jurisdiction signaled
28

4

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1 that Defendants need no longer obey the Court’s orders does not

2 change this result. In any event, the Ninth Circuit denied

3 Plaintiffs’ motion to dismiss without prejudice, and explicitly

4 noted that it would consider the jurisdictional argument at the

5 merits stage. Thus, the jurisdictional issue has not been

6 addressed by the Ninth Circuit.

7

Defendants also argue that the Court’s July 3, 2018 orders

8 merely found that Defendants breached the Settlement Agreement

9 but did not specifically find “material noncompliance” with the

10 Agreement. Thus, Defendants argue, the Court was not entitled to

11 issue remedial orders. Docket Nos. 1104 at 3 & 1105 at 4. This

12 also fails. Although the Court used the words “violation” and

13 “does not comply,” instead of “material noncompliance” or

14 “substantial noncompliance,” the Court found violations of the

15 Settlement Agreement under paragraphs fifty-two and fifty-three.

16 However, for purposes of clarification, the Court notes that the

17 breach found in its Out-of-Cell Time Order was materially

18 noncompliant pursuant to paragraphs fifty-two and fifty-three of

19 the Settlement Agreement, and the breach found in its Walk-Alone

20 Status Order was substantially noncompliant pursuant to paragraph

21 fifty-three.

22 II. Evaluation of the Proposed Remedial Plans

23

Because Defendants have failed to abide by the Court’s

24 orders and have refused to submit their own proposed remedial

25 plans, the Court will rule based on Plaintiffs’ plans and its own

26 familiarity with this litigation.

27

28

5

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1

A. Out-of-Cell Time Remedial Plan

2

Defendants argue there were no allegations or findings of

3 federal rights violations. This argument fails. Plaintiffs

4 raised in their out-of-cell time motion that Defendants breached

5 the Settlement Agreement by not allowing more out-of-cell time

6 than when Plaintiffs were in the SHU, see Docket No. 424-2

7 (Settlement Agreement), ¶¶ 25, 52, in violation of the Eighth

8 Amendment. Paragraph fifty-two of the Settlement Agreement

9 provides that if Plaintiffs demonstrate material noncompliance

10 with the terms of the Agreement, then for the purposes of

11 Plaintiffs’ enforcement motion only, Plaintiffs will have also

12 demonstrated a violation of a federal right. The Court found

13 material noncompliance pursuant to paragraph fifty-two of the

14 Settlement Agreement. A plan to remedy a violation of a federal

15 right must be consistent with the Prison Litigation Reform Act

16 (PLRA), requiring “that such relief is narrowly drawn, extends no

17 further than necessary to correct the violation of the Federal

18 right, and is the least intrusive means necessary to correct the

19 violation of the Federal right.” Armstrong v. Brown, 768 F.3d

20 975, 983 (9th Cir. 2014) (quoting 18 U.S.C. § 3626(a)(1)).

21 Plaintiffs also seek relief under paragraph fifty-three, which

22 would allow them to seek enforcement of the Agreement upon proof

23 of substantial noncompliance.

24

Plaintiffs propose the following remedial plan:

25

“All class members who have been transferred to General

26

Population prisons and remain there must be accorded an amount of time out of their cells that is meaningfully

27

greater than when they were in the SHU, consistent with

CDCR’s legitimate security needs. CDCR shall have

28

discretion as to how to implement this general remedy,

6

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 7 of 12

United States District Court Northern District of California

1

with Plaintiffs and Plaintiffs’ expert entitled to at least one year of monitoring and documentation.”

2 Plaintiffs’ Proposed Remedial Plans at 1. Plaintiffs proposed a

3 few suggestions for more out-of-cell time, including meals in the

4 dining hall, or work, educational or vocational programs, but did

5 not propose that these be required as part of the plan. Instead,

6 they asked the Court to allow Defendants discretion on how best

7 to provide more out-of-cell time for Plaintiffs while balancing

8 legitimate security concerns. The Court finds that this proposal

9 is narrowly tailored, extends no further than necessary to remedy

10 the violation and is the least intrusive remedy.

11

Plaintiffs also propose that CDCR provide documentation and

12 monitoring of out-of-cell time. CDCR would be ordered to produce

13 (1) a list of all class members assigned to Level IV prisons,

14 including the date of placement and current location; (2)

15 individualized logs, movement sheets, or other documentation that

16 would provide information on the location and activity of the

17 out-of-cell time of each class member, to be provided daily for

18 the first two months of implementation, and thereafter reduced to

19 once a month; (3) for each Level IV prison where class members

20 are housed, monthly documentation of any lockdowns or

21 modifications and the reasons for the lockdown or modification;

22 (4) for each Level IV prison where class members are housed,

23 monthly documentation for each elimination or restriction of yard

24 or day room time and the reasons for it;1 and, (5) no interference

25 with Plaintiffs’ counsel’s documentation efforts. Id. at 4.

26

27 1 Plaintiffs’ request here does not specify Level IV prisons
28 where class members are housed; however, the Court assumes that was the intent and so limits it.
7

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 8 of 12

United States District Court Northern District of California

1

Plaintiffs have also proposed a monitoring system overseen

2 by Plaintiffs’ counsel. Id. at 3-4. The monitoring system would

3 require (1) Defendants’ and Plaintiffs’ counsel to participate in

4 a conference call every three months during the time of the

5 monitoring;2 (2) counsel to meet with Magistrate Judge Illman

6 every six months, starting six months from the date of the Order,

7 to assess the progress; (3) CDCR to facilitate quarterly calls

8 between Plaintiffs’ counsel and class representatives to discuss

9 the progress of implementing the out-of-cell time remedial plan;

10 and (4) monitoring for one year, with Plaintiffs having the right

11 to seek extensions, each not to exceed twelve months. Id. at 3.

12

Plaintiffs also propose to retain an expert on prison

13 systems and out-of-cell time for prisoners in high security

14 units, in order to monitor Defendants’ compliance consistent with

15 security concerns. Id. at 4-5. Plaintiffs propose that the

16 expert would be authorized to conduct visits with reasonable

17 notice, or without notice in exigent circumstances, to speak with

18 staff and inmates, and to have access to relevant data and

19 documentation. Id. Plaintiffs also propose a provision to

20 prohibit Defendants from retaliating against class

21 representatives, class members, or other prisoners due to their

22 participation in the remedial process. Id. at 5.

23

The Court finds Plaintiffs’ proposed documentation and

24 monitoring system, and their request for an expert and a

25 retaliation provision, to be minimally intrusive, narrowly

26

27 2 Plaintiffs also propose that class representatives be
28 present on these calls. The Court does not adopt this requirement.
8

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 9 of 12

United States District Court Northern District of California

1 tailored and consistent with the requirements of the Settlement

2 Agreement. Settlement Agreement, ¶¶ 37-39 (provisions outlining

3 the data and documents to be provided), id. ¶ 54 (retaliation

4 provision). The plan would require Defendants to incur some

5 additional costs to implement the remedy, including time spent

6 producing necessary documentation and paying expert fees, but

7 these requirements are not overly burdensome. For these reasons,

8 the Court adopts and will order the enforcement of Plaintiffs’

9 out-of-cell time remedial plan as stated in the Order Adopting

10 Out-of-Cell Time Plan filed concurrently herewith.

11

B. Walk-Alone Status Remedial Plan

12

Pursuant to the Settlement Agreement, the Court can also

13 enforce a remedy for substantial noncompliance with the

14 Agreement. Settlement Agreement, ¶ 53. The Court found a

15 violation of the Settlement Agreement under paragraph fifty-three

16 with regard to walk-alone status. Defendants were in substantial

17 noncompliance when they placed “a substantial percentage of

18 Plaintiffs” in the Restricted Custody General Population (RCGP)

19 on walk-alone status, which deprived them of the mandated

20 “increased opportunities for positive social interaction”

21 including “[time] in small group yards . . . and leisure time

22 activity groups.” See Settlement Agreement, ¶ 28. The Court,

23 like Plaintiffs, defines a “group” as consisting of more than one

24 person.

25

The Court finds reasonable Plaintiffs’ proposal that

26 individuals may choose to opt into walk-alone status. Their

27 proposal allows individuals opting in the opportunity to reassess

28 their decision every six months by requiring voluntary walk-alone

9

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 10 of 12

United States District Court Northern District of California

1 prisoners to re-sign the waiver every six months to be retained

2 in walk-alone status.

3

However, Plaintiffs’ walk-alone status remedial plan is

4 unacceptable to the extent it apparently would not allow

5 Defendants to place any class member in walk-alone status for any

6 length of time unless the prisoner voluntarily chose walk-alone

7 status. This fails to provide CDCR sufficient discretion to

8 determine whether a prisoner should be categorized as a walk-

9 alone if reasonably necessary for safety purposes.

10

In order to allow Defendants discretion to determine if

11 walk-alone status is necessary, the Court will require the

12 Institution Classification Committee (ICC) to determine whether a

13 RCGP prisoner should be in walk-alone status. For each prisoner

14 placed without a waiver in walk-alone status, the ICC will

15 provide to the prisoner and to Plaintiffs’ counsel, to the extent

16 possible without disclosing information that could create a

17 security breach, its reasons for the finding. Currently,

18 Defendants have only three groups with seven to nine inmates in

19 each group. Defendants have not shown why smaller groups could

20 not be established for certain individuals. Thus, the ICC’s

21 decision should explain why a walk-alone prisoner cannot exercise

22 or recreate in any group, even a group of two, if necessary. The

23 ICC must produce its finding to the prisoner and Plaintiffs’

24 counsel for review within seven days of the ICC’s determination.

25 The prisoner may challenge the ICC’s finding and have it reviewed

26 by the Departmental Review Board (DRB). Prior to the DRB

27 proceedings, a staff assistant shall be provided to help the

28 prisoner prepare and present his case. The DRB will also provide

10

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 11 of 12

United States District Court Northern District of California

1 to Plaintiffs’ counsel and the prisoner a separate statement with

2 its review of the ICC decision and its own finding, within seven

3 days of the DRB’s determination.

4

Because Defendants have stated that walk-alone status is

5 merely temporary, to allow them to determine which group is most

6 suitable to place a prisoner, the decision to place a prisoner in

7 walk-alone status must be reassessed by the ICC and the DRB every

8 two months.

9

Plaintiffs’ walk-alone status remedial plan would require

10 Defendants to ensure that walk-alone prisoners, whether voluntary

11 or otherwise, have “ordinary General Population privileges, and

12 have alternatives for social contact.” Plaintiffs suggest

13 alternative social interaction with non-inmate individuals like

14 teachers or volunteers if an inmate cannot be placed into an RCGP

15 group. These alternative social contacts are consistent with

16 paragraph twenty-eight of the Settlement Agreement. However,

17 unlike their out-of-cell time remedial plan proposal, Plaintiffs

18 do not clarify that these were intended as suggestions.

19 Nonetheless, the Court takes these proposals as suggestions.

20 Defendants shall have discretion on implementing the alternative

21 social interactions, consistent with safety concerns.

22

Lastly, Plaintiffs seek to monitor the status of each RCGP

23 prisoner for one year, with Plaintiffs having the right to seek

24 extensions, each not to exceed twelve months.

25

The Court finds that, with modifications, Plaintiffs’ walk-

26 alone status remedial plan is narrowly tailored, minimally

27 intrusive and reasonable based on the finding that prisoners

28 subject to walk-alone status were denied time in small group

11

Case 4:09-cv-05796-CW Document 1113 Filed 12/07/18 Page 12 of 12

United States District Court Northern District of California

1 yards and leisure time activity groups. The Court ADOPTS the

2 walk-alone status plan as modified in the Order Adopting Walk-

3 Alone Status Plan filed concurrently herewith.

4 III. Defendants’ Motion to Stay

5

The Court GRANTS Defendants’ motion to stay implementation

6 of the remedial plans until after the Ninth Circuit’s decision on

7 Defendants’ pending appeal. See Order Denying Stay at 3.

8

CONCLUSION

9

For the foregoing reasons, the Court hereby orders the

10 following:

11

(1) The Court adopts Plaintiffs’ Out-of-Cell Time remedial

12

plan and ORDERS Defendants to take all steps necessary to implement and comply with the plan as set forth in

13

the Court’s order filed concurrently herewith; and,

14

(2) The Court adopts Plaintiffs’ walk-alone status remedial

plan as modified and ORDERS Defendants to take all

15

steps necessary to implement and comply with the plan

as set forth in the Court’s order filed concurrently

16

herewith; and,

17

(3) The Court GRANTS Defendants’ motion to stay the

18

enforcement of these remedial plans pending appeal.

19

IT IS SO ORDERED.

20 21 Dated: December 7, 2018 22

CLAUDIA WILKEN United States District Judge

23

24

25

26

27

28

12

 
 Ashker v. Newsom, 968 F.3d 939 (2020) 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051

968 F.3d 939 United States Court of Appeals, Ninth Circuit.
Todd Lewis ASHKER; Danny Troxell; George Ruiz; Jeffrey Anthony Franklin; George Franco; Gabriel Ralph Reyes; Richard K. Johnson; Paul A. Redd, Jr.; Luis Esquivel; Ronnie N. Dewberry,
Plaintiffs-Appellees, v.
Gavin NEWSOM,* Governor of the State of California; Matthew Cate; Anthony Chaus, Chief, Office of Correctional Safety, CDCR; Greg Lewis,
Warden, Defendants-Appellants.
No. 18-16427 |
Argued and Submitted May 12, 2020 San Francisco, California | Filed August 3, 2020
Synopsis Background: State prisoners filed civil rights class action challenging California Department of Corrections and Rehabilitation’s practice of housing prisoners in solitary confinement based only upon their gang affiliation. After parties entered into settlement agreement, prisoners moved to enforce agreement. The United States District Court for the Northern District of California, Claudia Wilken, Senior District Judge, granted motions, and state appealed.
Holdings: The Court of Appeals, Gwin, District Judge, sitting by designation, held that:
Department did not violate settlement agreement by placing some class members into housing where they received less out-of-cell time than they received in security housing;
provision requiring Department to provide “increased opportunities for positive social interaction with other prisoners and staff” did not oblige state to provide inmates on walk-alone status with small group yard-time and other group activities; and
Department substantially complied with that provision.
Reversed, vacated, and remanded.

Procedural Posture(s): On Appeal; Motion to Enforce Settlement.
Attorneys and Law Firms
*941 Jeffrey T. Fisher (argued), Deputy Attorney General; Jay C. Russell, Adriano Hrvatin, and Neah Huynh, Supervising Deputy Attorneys General; Monica Anderson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellants.
Samuel Miller (argued), Jules Lobel, and Rachel Meeropol, Center for Constitutional Rights, New York, New York; Carmen E. Bremer, Bremer Law Group PLLC, Seattle, Washington; Anne Cappella, Weil Gotshal & Manges LLP, Redwood Shores, California; Charles F.A. Carbone, Law Offices of Charles Carbone, San Francisco, California; Anne Butterfield Weills, Siegel Yee & Brunner, Oakland, California; Matthew Strugar, Law Office of Matthew Strugar, Los Angeles, California; for Plaintiffs-Appellees.
David C. Fathi, Amy Fettig, and Jennifer Wedekind, ACLU National Prison Project, Washington, D.C.; Danielle C. Jefferis and Nicole B. Godfrey, Student Law Office—Civil Rights Clinic, University of Denver College of Law, Denver, Colorado; Daniel M. Greenfield, Roderick & Solange Macarthur Justice Center, Chicago, Illinois; David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Amici Curiae Former Corrections Officials.
Appeal from the United States District Court for the Northern District of California, Claudia Wilken, District Judge, Presiding, D.C. No. 4:09-cv-05796-CW
Before: J. Clifford Wallace and Ryan D. Nelson, Circuit Judges, and James S. Gwin,** District Judge.
OPINION
GWIN, District Judge:
This appeal stems from a prison conditions civil rights class action settlement. Earlier, the Defendant California

Ashker v. Newsom, 968 F.3d 939 (2020) 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051
Department *942 of Corrections and Rehabilitation (“California”) housed the Plaintiff Prisoners (the “Prisoners”) in solitary confinement based only upon their gang affiliation. California settled the case, agreeing to several reforms as memorialized in a settlement agreement (“Settlement Agreement”).
The Prisoners argue that California did not comply with the Settlement Agreement. The Settlement Agreement required California to move class members from solitary confinement to a General Population level IV facility. California did this. Even so, the inmates say there was an implied requirement that the prison give these inmates greater out-of-cell time.
The Settlement Agreement also made special provisions for inmates leaving solitary confinement who would not be safe in the general population. The Settlement Agreement allowed these inmates to be placed in small groups housed in a separate unit that would be given privileges commensurate with General Population level IV privileges. For some of these inmates, California was unable to find a group that would accept the inmates without conflict. These inmates received yard-time, but their yard-time was in fenced yards that are limited to one inmate per unit. The Prisoners say this practice also violated the Settlement Agreement.
The Prisoners moved to enforce the Settlement Agreement. They contended that California breached the Settlement Agreement when it transferred some prisoners from Security Housing to General Population but did not give those prisoners increased out-of-cell time. The Prisoners also said that California broke the Settlement Agreement when it limited another inmate group’s direct physical contact during yard time.
The district court granted the Prisoners’ motions to enforce. California appealed. We hold that California did not violate the Settlement Agreement and reverse.
I.
A.
For many years, California housed gang members and associates in Security Housing Units (“Security Housing”), a type of solitary confinement. In many cases,

California based this Security Housing placement solely on the prisoner’s gang affiliation.1
In December 2009, Plaintiff Prisoners sued in a prisoner civil rights action challenging this policy and the conditions in the Pelican Bay Security Housing Unit. In September 2012, the Prisoners filed a second amended complaint raising class claims on behalf of other inmates at Pelican Bay.
In August 2015, the parties settled the case. While the Settlement Agreement included many reforms, only two substantive sections of the Settlement Agreement are relevant to this case.
First, in Paragraph 25, California agreed to review the cases of inmates in Security Housing and transfer these inmates from solitary confinement to “a General Population level IV 180-design facility.”
Second, in Paragraph 28, the parties agreed to a new type of housing: Restricted Custody General Population (“Restricted Custody”). The parties intended Restricted Custody to house inmates who, for their own safety, could not be safely housed in the general population.
*943 In the Settlement Agreement, California agreed to provide these Restricted Custody inmates “increased opportunities for positive social interaction ... including ... yard/out of cell time commensurate with Level IV [General Population] in small group yards, in groups as determined by the Institution Classification Committee.”
The district court approved the Settlement Agreement in January 2016.
B.
After the Settlement Agreement, California began implementing the Settlement Agreement’s policy reforms. California moved most Security Housing gang members to general population.
For threatened inmates, California created the Restricted Custody housing units and instituted new security policies for that unit. When an inmate arrives at Restricted Custody, California places them on “walk-alone” status to observe their interaction with other Restricted Custody inmates. After staff observation and evaluation, staff reach out to groups within Restricted Custody to ask if those groups would accept the new inmate and would

Ashker v. Newsom, 968 F.3d 939 (2020) 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051
commit to avoid trouble with the new inmate. If both the inmate and the group agree to avoid problems, the prison places the inmate with the compatible group. But some inmates remain on walk-alone status indefinitely because no compatible group has agreed to accept the inmate.
Inmates on walk-alone status have more restricted opportunities for physical contact with other inmates when on yard time. Walk-alone status inmates go to fenced individual yards that are twenty-feet long by ten-feet wide. Other yards adjoin the walk-alone yards and walk-alone inmates can interact with other walk-alone inmates or groups through the fences.
Walk-alone inmates also have more restricted access to leisure-time activities and social interaction. While in the day room, walk-alone status inmates can speak with inmates in front of their cells but cannot be released into the group. However, walk-alone inmates do have regular access to phones, visitors, and educational programming.
C.
In October 2017, the Prisoners filed two motions to enforce the Settlement Agreement.
In the first motion, the Prisoners claimed California violated Paragraph 25 of the Settlement Agreement. The Prisoners argued that some of the individuals transferred from Security Housing to the General Population were “spending the same or more time isolated in their cells.” The Prisoners contended that the Settlement Agreement required transfer to “General Population” conditions and claimed the Settlement Agreement required Defendant “to ... provide sufficient yard, day room, programming, jobs, and other means of social interaction and environmental stimulation to meet the obligation of housing these class members in actual general population conditions.”
In the second motion, the Prisoners argued that California violated Paragraph 28 of the Settlement Agreement. The Prisoners reasoned that prisoners on walk-alone status do not receive access to increased opportunities for positive social interaction even compared to the former Security Housing. The Prisoners argued that the walk-alone conditions differ from those suggested in the Settlement Agreement and that California breached the settlement agreement.
The district court referred both motions to a magistrate judge under 28 U.S.C. § 636(b)(1)(B). In March 2018, the

magistrate judge recommended that both motions be denied. About two weeks later, the *944 Prisoners moved for the district judge to review the motions’ recommended denials.
In July 2018, the district court rejected the magistrate judge’s recommendations and granted Plaintiffs’ two motions to enforce the Agreement. California then timely appealed both orders.
In December 2018, the district court adopted remedial plans, but stayed enforcement of the plans pending this appeal. California then amended its appeal to include the district court’s orders adopting the remedial plans. On appeal, California argues that it breached neither Paragraph 25 nor 28.2
II. Under California law,3 “[a] settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts.”4
We review the interpretation of a settlement contract de novo.5 “We defer to any factual findings made by the district court in interpreting the settlement agreement unless they are clearly erroneous.”6
“We review the district court’s enforcement of a settlement agreement for abuse of discretion.”7 Under this standard, “we will reverse only if the district court made an error of law, or reached a result that was illogical, implausible, or without support in the record.”8
III.
A. The Prisoners argue that California violated Paragraph 25 of the Settlement Agreement by placing some class members into housing where they receive less out-of-cell time than they received in Security Housing.

Ashker v. Newsom, 968 F.3d 939 (2020)
20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051
California does not contest the district court’s finding that some inmates receive limited out-of-cell time. Instead, California argues that Paragraph 25 requires inmate transfer from Security Housing to General Population but does not control General Population conditions. We agree.
“The fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties.”9 “[I]n the absence of fraud or mistake, the intention of the parties as expressed in the agreement is controlling, and courts are not empowered under the guise of construction or explanation to depart from the plain meaning of the writing and insert a term or limitation not found therein.”10
The plain meaning of the Settlement Agreement controls here. Paragraph 25 *945 provides that certain eligible inmates “shall be released from [Security Housing] and transferred to a General Population level IV 180-design facility, or other general population institution consistent with his case factors.”
Paragraph 25 only requires that California transfer inmates out of Security Housing to a different facility. Paragraph 25 does not limit California’s discretion regarding out-of-cell time for the inmates removed from Security Housing to General Population.
With this action, the Prisoners principally challenged their continued solitary confinement in Security Housing based only on gang affiliation. Having negotiated their solitary confinement release, the Prisoners do not point to any settlement language requiring any specific out-of-cell time. California made no agreement regarding the out-of-cell conditions for inmates leaving Security Housing for General Population under the settlement.
Elsewhere in the Settlement Agreement, the parties showed that they knew how to negotiate conditions. Paragraph 29 requires 20 hours of out-of-cell time for inmates remaining in Security Housing after the Settlement Agreement. The parties failed to include any similar Paragraph 25 out-of-cell requirement for inmates transferred from Security Housing to the general population.
We therefore conclude that California has complied with Paragraph 25’s requirements.

1.
The Prisoners argue that Paragraph 28 of the Settlement Agreement requires California to provide Restricted Custody inmates on walk-alone status with small group yard-time and other group activities.
Paragraph 28 states:
Programming for those inmates transferred to or retained in the Restricted Custody Group will be designed to provide increased opportunities for positive social interaction with other prisoners and staff, including but not limited to: Alternative Education Program and/or small group education opportunities; yard/out of cell time commensurate with Level IV GP in small group yards, in groups as determined by the Institution Classification Committee; ... and leisure time activity groups.
Two aspects of Paragraph 28 undercut the Prisoners’ argument. First, the paragraph strikes an aspirational tone by stating that the programming “will be designed to provide increased opportunities for positive social interaction.” This is not, as the Prisoners contend, a strict requirement that there will be more social interaction, but instead a programming goal.
Second, Paragraph 28 refers to “small group yards” but does not say how many, or if any, other prisoners need be in the same group yard. Further, the paragraph gives the Institutional Classification Committee power to determine the groups. The plain meaning of this clause suggests the parties intended to give the Institutional Classification Committee discretion to limit the number of inmates in a small group yard. The Prisoners cannot now complain about how the Institutional Classification Committee has exercised that discretion.

B.

Ashker v. Newsom, 968 F.3d 939 (2020) 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051

2.
Paragraph 28 does not require California to do more than it already has for inmates in Restricted Custody. But even if it did, the breach would not be actionable *946 because California has substantially complied with Paragraph 28’s requirements.

while in group activities or in the yard, they are still able to interact. Given the institution’s safety concerns, these limitations are only minor deviations from Paragraph 28’s requirements.

As relevant here, the Prisoners argue that California failed to “substantially compl[y]” and that the breach is therefore actionable under Paragraph 53 of the Settlement Agreement. We disagree.
A party’s substantial compliance with a contract “depends primarily on whether [that party] has realized the contemplated benefits from [the contract].”11 “[I]n California a party is deemed to have substantially complied with an obligation only where any deviation is ‘unintentional and so minor or trivial as not substantially to defeat the object which the parties intend to accomplish.’ ”12

IV.
For these reasons, we reverse the district court’s ruling that California violated the Settlement Agreement, vacate the district court’s remedial orders, and remand for further proceedings consistent with this opinion.
REVERSED, VACATED, AND REMANDED. THE PARTIES SHALL BEAR THEIR OWN COSTS.
All Citations

Most inmates in Restricted Custody have access to the activities enumerated in Paragraph 28. They can also have meetings with teachers (through cell doors), job

968 F.3d 939, 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051

assignments, phone calls, and contact and no-contact

visits. And although those inmates on walk-alone status

may have limited physical contact with other inmates

Footnotes

*

Gavin Newsom is substituted for his predecessor, Edmund G. Brown, Jr., as Governor of the State of California. Fed.

R. App. P. 43(c)(2).

** The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by designation.

1

See Griffin v. Gomez, 741 F.3d 10, 12 (9th Cir. 2014) (describing California’s housing policy for gang-affiliated

inmates).

2

California also argues the district court committed error when adopting the remedial plans. But because we hold

that California did not breach the Settlement Agreement and vacate the remedial orders, California’s arguments are

now moot.

3

The Settlement Agreement includes a choice-of-law clause requiring application of California law.

4

Monster Energy Co. v. Schechter, 249 Cal.Rptr.3d 295, 444 P.3d 97, 102 (2019) (internal quotation marks and citation

omitted).

5

Parsons v. Ryan, 912 F.3d 486, 495 (9th Cir. 2018) (citation omitted).

6

Id. (quoting City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th Cir. 2010)).

7

Id. (citing Wilcox v. Arpaio, 753 F.3d 872, 875 (9th Cir. 2014)).

Ashker v. Newsom, 968 F.3d 939 (2020) 20 Cal. Daily Op. Serv. 7769, 2020 Daily Journal D.A.R. 8051

8

Id. (citing United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009)).

9

State of California v. Cont’l Ins. Co., 55 Cal.4th 186, 145 Cal.Rptr.3d 1, 281 P.3d 1000, 1004 (2012) (internal quotation

marks and citations omitted).

10 Tanner v. Title Ins. & Trust Co., 20 Cal.2d 814, 129 P.2d 383, 389 (1942) (citation omitted).

11 Cline v. Yamaga, 97 Cal.App.3d 239, 158 Cal. Rptr. 598, 603 (1979).

12 Rouser v. White, 825 F.3d 1076, 1082 (9th Cir. 2016) (quoting Wells Benz, Inc. v. United States, 333 F.2d 89, 92 (9th Cir. 1964)). “The determination[ ] of whether there was a breach of contract ... [is a] question[ ] of fact,” Ash v. N. Am. Title Co., 223 Cal.App.4th 1258, 168 Cal. Rptr. 3d 499, 506 (2014), which we review for clear error. Jeff D. v. Otter, 643 F.3d 278, 283 (9th Cir. 2011).

 
 U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:09-cv-05796-CW

Ashker et al v. Newsom et al

Date Filed: 12/09/2009

Assigned to: Hon. Claudia Wilken

Date Terminated: 05/06/2016

Referred to: Magistrate Judge Robert M. Illman

Jury Demand: None

Relate Case Cases: 4:10-cv-01317-CW

Nature of Suit: 555 Prisoner: Prison

4:15-cv-02725-CW

Condition

Case in other court: Ninth Circuit Court of Appeals, 16- Jurisdiction: Federal Question

15982

Ninth Circuit Court of Appeals, 18-

16427

Ninth Circuit Court of Appeals, 19-

15224

Ninth Circuit Court of Appeals, 19-

15359

Cause: 42:1983 Prisoner Civil Rights

Plaintiff Todd Ashker

represented by Aaron Y Huang Weil Gotshal Manges 201 Redwood Shores Parkway Redwood Shores, CA 94065 650-802-3213 Email: aaron.huang@weil.com TERMINATED: 01/10/2018

Alexandra Azure Wheeler Center for Constitutional Rights 666 Broadway 7th Flr New York, NY 10012 212-614-6447 Email: awheeler@ccrjustice.org TERMINATED: 05/06/2019

Alexis Agathocleous Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6478 Fax: 212-614-6499 Email: aagathocleous@ccrjustice.org

TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella Weil, Gotshal & Manges Silicon Valley Office 201 Redwood Shores Parkway Redwood Shores, CA 94065 650-802-3141 Fax: 650-802-3100 Email: anne.cappella@weil.com ATTORNEY TO BE NOTICED
Anne Butterfield Weills Siegel & Yee 499 - 14th Street Suite 220 Oakland, CA 94612 510-839-1200 Fax: 510-444-6698 Email: abweills@gmail.com ATTORNEY TO BE NOTICED
Bambo Obaro Weil, Gotshal and Manges 201 Redwood Shores Parkway Redwood Shores, CA 94065 (650) 802-3083 Fax: (650) 802-3100 Email: bambo.obaro@weil.com ATTORNEY TO BE NOTICED
Carmen E. Bremer Bremer Law Group PLLC 1700 Seventh Avenue Suite 2100 Seattle, WA 98101 206-357-8442 Fax: 206-858-9730 Email: carmen.bremer@bremerlawgroup.com PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman Legal Services for Prisoners With

Children 4400 Market Street Oakland, CA 94608 415-255-7036 Fax: 415-552-3150 Email: carol@prisonerswithchildren.org TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone Law Office of Charles Carbone P.O. Box 2809 San Francisco, CA 94126 415-981-9773 Fax: 415-981-9774 Email: charles@charlescarbone.com ATTORNEY TO BE NOTICED
Daniel Mark Siegel Siegel, Yee, Brunner & Mehta 475 14th Street, Suite 500 Oakland, CA 94612 510-839-1200 Fax: 510-444-6698 Email: danmsiegel@gmail.com ATTORNEY TO BE NOTICED
EmilyRose Naomi Johns Siegel, Yee, Brunner & Mehta 475 14th Street, Suite 500 Oakland, CA 94612 (510) 839-1200 Fax: (510) 444-6698 Email: emilyrose@siegelyee.com ATTORNEY TO BE NOTICED
Evan Charles Greenberg Coleman & Balogh LLP 235 Montgomery Street Suite 1070 San Francisco, CA 94104 415.391.0440 Fax: 415.373.3901 Email: ecg@colemanbalogh.com TERMINATED: 12/07/2018

Gregory Hull Gregory D. Hull Attorney-at-Law 333 West San Carlos Street Suite 1050 San Jose, CA 95110 650-269-0094 Email: GDHtrialaw@gmail.com TERMINATED: 12/20/2013
Jules Lobel , 3900 Forbes Avenue Pittsburgh, PA 15260 412-648-1375 Fax: Email: jll4@pitt.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon PO Box 1129 2000 Allston Way Berkeley, CA 94701 510-734-3600 Email: marilyn.cpf@hotmail.com ATTORNEY TO BE NOTICED
Matthew Daniel Strugar Law Office of Matthew Strugar 3435 Wilshire Blvd., Suite 2910 Los Angeles, CA 90010 323-696-2299 Fax: (213) 252-0091 Email: matthew@matthewstrugar.com ATTORNEY TO BE NOTICED
Michael David Bell Weil, Gotshal Manges LLP 767 5th Avenue New York, NY 10153 (212) 310-8000 Fax: (212) 310-8007 Email: michael.bell@weil.com TERMINATED: 04/04/2016
Rachel Anne Meeropol

Plaintiff Danny Troxell

Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212-614-6432 Fax: 212-614-6499 Email: rachelm@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller 445 Riverside Dr., Apt. 61 New York, NY 10027 United Sta 413-717-8382 Email: samrmiller@yahoo.com ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank Center for Constitutional Rights 666 Broadway Seventh Floor New York, NY 10012 (212) 614-6483 Email: ssamuel@ccrjustice.org TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address)

ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller

Plaintiff George Ruiz

(See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeffrey Franklin

Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address)

ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address)

Plaintiff George Franco

PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gabriel Reyes

Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017

PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address)

Plaintiff Richard Johnson

ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Paul Redd

Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018

Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE

Plaintiff Luis Esquivel

ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro

(See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018
Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ronnie Dewberry

Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Aaron Y Huang (See above for address) TERMINATED: 01/10/2018
Alexandra Azure Wheeler (See above for address) TERMINATED: 05/06/2019
Alexis Agathocleous (See above for address) TERMINATED: 07/24/2017 PRO HAC VICE
Anne Marie Cappella (See above for address) ATTORNEY TO BE NOTICED
Anne Butterfield Weills (See above for address) ATTORNEY TO BE NOTICED
Bambo Obaro (See above for address) ATTORNEY TO BE NOTICED
Carmen E. Bremer (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Carol Strickman (See above for address) TERMINATED: 04/10/2019
Charles Francis-Antonio Carbone (See above for address) ATTORNEY TO BE NOTICED
Evan Charles Greenberg (See above for address) TERMINATED: 12/07/2018

V. Defendant Arnold Schwarzenegger TERMINATED: 02/14/2011
Defendant Mathew Cate Secretary, CDCR

Gregory Hull (See above for address) TERMINATED: 12/20/2013
Jules Lobel , (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Marilyn S McMahon (See above for address) ATTORNEY TO BE NOTICED
Matthew Daniel Strugar (See above for address) ATTORNEY TO BE NOTICED
Rachel Anne Meeropol (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Samuel Rand Miller (See above for address) ATTORNEY TO BE NOTICED
Somalia L Samuel-Frank (See above for address) TERMINATED: 07/24/2017
represented by Adriano Hrvatin California Department of Justice 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415-510-3577 Fax: 415-703-5843 Email: adriano.hrvatin@doj.ca.gov LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Cassandra Jean Shryock California Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 (415) 703-1680 Fax: (415) 703-5843 Email: Cassandra.Shryock@doj.ca.gov ATTORNEY TO BE NOTICED
Christine Marie Ciccotti California Attorney General's Office Civil 1300 I Street, 10th Floor Sacramento, CA 95814 916-323-4025 Fax: 916-324-5205 Email: christine.ciccotti@doj.ca.gov TERMINATED: 08/29/2019
J. Randall Andrada Andrada & Associates Professional Corporation 180 Grand Avenue, Suite 225 Oakland, CA 94612 (510) 287-4160 Fax: (510) 287-4161 Email: randrada@andradalaw.com TERMINATED: 03/15/2013
Jay Craig Russell Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 (415) 510-3517 Fax: (415) 703-5480 Email: jay.russell@doj.ca.gov TERMINATED: 08/29/2019
Jeffrey Thomas Fisher California State Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

415-510-3568 Fax: 415-703-5480 Email: jeffrey.fisher@doj.ca.gov ATTORNEY TO BE NOTICED
Jillian Renee O'Brien Office of the Maine Attorney General 6 State House Station Augusta, ME 04333 (207) 626-8582 Fax: (207) 287-3145 Email: jill.obrien@maine.gov TERMINATED: 11/27/2018
Kelly Ariana Samson Office of the Attorney General Department of Justice 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 (916) 210-7317 Fax: (916) 324-5205 Email: Kelly.Samson@doj.ca.gov TERMINATED: 09/29/2020
Le-Mai D Lyons State of California Office of the Attorney General Civil Division 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 415-510-3750 Fax: 415-703-5843 Email: lemai.lyons@doj.ca.gov ATTORNEY TO BE NOTICED
Loran Michael Simon California State Department of Justice Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 (415) 703-5744 Fax: (415) 703-1234 Email: loran.simon@doj.ca.gov TERMINATED: 08/19/2019

Defendant Roderick Q. Hickman TERMINATED: 09/10/2012
Defendant Jeanne Woodford TERMINATED: 09/10/2012

Martine Noel D'Agostino CA State Attorney General's Office 1515 Clay Street, 20th Floor P.O. Box 70550 Oakland, CA 94612 510-879-0292 Fax: 510-622-2270 Email: martine.dagostino@doj.ca.gov TERMINATED: 09/29/2020
Matthew Worchesek Roman California Department of Justice Office of the Attorney General 1300 I Street, Suite 125 PO Box 944255 Sacramento, CA 94244-2550 916-210-6239 Fax: 916-322-8288 Email: matthew.roman@doj.ca.gov TERMINATED: 03/15/2013
Nicole Lynne Roman Andrada & Associates A Professional Corporation 180 Grand Avenue, Suite 225 Oakland, CA 94612 (510) 287-4160 Fax: (510) 287-4161 Email: nroman@andradalaw.com TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman

Defendant Joe McGrath TERMINATED: 09/10/2012
Defendant Richard Kirkland TERMINATED: 09/10/2012
Defendant Robert Horel TERMINATED: 09/10/2012
Defendant Francisco Jacquez TERMINATED: 09/10/2012

(See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013

Defendant William Barlow TERMINATED: 09/10/2012
Defendant R. L. Johnson TERMINATED: 09/10/2012
Defendant D. W. Bradbury TERMINATED: 09/10/2012
Defendant

Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012

J. McKinney TERMINATED: 09/10/2012
Defendant Robert Marquez TERMINATED: 09/10/2012
Defendant R. Rice TERMINATED: 09/10/2012
Defendant John Harrison TERMINATED: 09/10/2012

represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012

Defendant B. Thornton TERMINATED: 09/10/2012
Defendant G. H. Wise TERMINATED: 09/10/2012
Defendant A. Hernandez TERMINATED: 09/10/2012
Defendant Robert Doyle TERMINATED: 09/10/2012

represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman

Defendant Susan Fisher TERMINATED: 09/10/2012
Defendant Robert Harmon TERMINATED: 09/10/2012
Defendant Hollis Gillingham TERMINATED: 09/10/2012
Defendant O. Smith TERMINATED: 09/10/2012
Defendant S. Tucker TERMINATED: 09/10/2012

(See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman

Defendant Derral Adams TERMINATED: 01/14/2011
Defendant Greg Lewis Warden, Pelican Bay State Prison

(See above for address) TERMINATED: 06/06/2012
represented by Adriano Hrvatin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Jean Shryock (See above for address) ATTORNEY TO BE NOTICED
Christine Marie Ciccotti (See above for address) TERMINATED: 08/29/2019
J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Jay Craig Russell (See above for address) TERMINATED: 08/29/2019
Jeffrey Thomas Fisher (See above for address) ATTORNEY TO BE NOTICED
Jillian Renee O'Brien (See above for address) TERMINATED: 11/27/2018
Kelly Ariana Samson (See above for address) TERMINATED: 09/29/2020
Le-Mai D Lyons (See above for address) ATTORNEY TO BE NOTICED
Loran Michael Simon

Defendant
Edmund G. Brown, Jr. Governor of the State of California TERMINATED: 01/24/2019

(See above for address) TERMINATED: 08/19/2019
Martine Noel D'Agostino (See above for address) TERMINATED: 09/29/2020
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Adriano Hrvatin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christine Marie Ciccotti (See above for address) TERMINATED: 08/29/2019
J. Randall Andrada (See above for address) TERMINATED: 03/15/2013
Jay Craig Russell (See above for address) TERMINATED: 08/29/2019
Jeffrey Thomas Fisher (See above for address) ATTORNEY TO BE NOTICED
Jillian Renee O'Brien (See above for address) TERMINATED: 11/27/2018
Kelly Ariana Samson (See above for address) TERMINATED: 09/29/2020
Loran Michael Simon

Defendant
Anthony Chaus Chief, Office of Correctional Safety, CDCR

(See above for address) TERMINATED: 08/19/2019
Martine Noel D'Agostino (See above for address) TERMINATED: 09/29/2020
Matthew Worchesek Roman (See above for address) TERMINATED: 03/15/2013
Nicole Lynne Roman (See above for address) TERMINATED: 06/06/2012
represented by Adriano Hrvatin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Jean Shryock (See above for address) ATTORNEY TO BE NOTICED
Christine Marie Ciccotti (See above for address) TERMINATED: 08/29/2019
Jay Craig Russell (See above for address) TERMINATED: 08/29/2019
Jeffrey Thomas Fisher (See above for address) ATTORNEY TO BE NOTICED
Jillian Renee O'Brien (See above for address) TERMINATED: 11/27/2018
Kelly Ariana Samson (See above for address) TERMINATED: 09/29/2020
Le-Mai D Lyons

Defendant
Gavin C. Newsom Governor, State of California

(See above for address) ATTORNEY TO BE NOTICED
Loran Michael Simon (See above for address) TERMINATED: 08/19/2019
Martine Noel D'Agostino (See above for address) TERMINATED: 09/29/2020
represented by Adriano Hrvatin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cassandra Jean Shryock (See above for address) ATTORNEY TO BE NOTICED
Jay Craig Russell (See above for address) TERMINATED: 08/29/2019
Jeffrey Thomas Fisher (See above for address) ATTORNEY TO BE NOTICED
Kelly Ariana Samson (See above for address) TERMINATED: 09/29/2020
Le-Mai D Lyons (See above for address) ATTORNEY TO BE NOTICED
Neah Huynh Attorney General's Office Correctional Law Section 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 415-510-3578 Fax: 415-703-5843 Email: neah.huynh@doj.ca.gov ATTORNEY TO BE NOTICED

V. Movant Bobby Lopez TERMINATED: 07/07/2015
Movant Marco Topete TERMINATED: 07/07/2015
Movant John Myles TERMINATED: 07/07/2015
Movant Ricardo Roldan TERMINATED: 07/07/2015
Movant John Gonzales TERMINATED: 07/07/2015
Movant Ronaldo Medrano Ayala TERMINATED: 07/07/2015
Movant C. Pfeiffer
Intervenor California Correctional Peace Officers Association

represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Mark Siegel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Le-Mai D Lyons (See above for address) ATTORNEY TO BE NOTICED
represented by Phillip A. Murray Phillip Murray

California Correctional Peace Officers Association 755 Riverpoint Drive Suite 200 West Sacramento, CA 95605 (800) 821-6443
Intervenor Louis J. Aguirre

755 Riverpoint Drive West Sacramento, CA 95605 800-821-6443 Fax: 916-340-9372 Email: phillip.murray@ccpoa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeff Dominic Price 2500 Broadway Suite 125 Santa Monica, CA 90404-3080 310-451-2222 Email: jeff.price@icloud.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/09/2009
12/09/2009 12/09/2009 12/09/2009 12/09/2009 01/12/2010

# Docket Text
1 COMPLAINT (no process) against William Barlow, D. W. Bradbury, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Roderick Q. Hickman, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, Arnold Schwarzenegger, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. Filed byDanny Troxell, Todd Ashker. (Attachments: # 1 complaint (part 2), # 2 envelope)(cp, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/17/2009)
2 CLERK'S NOTICE re completion of In Forma Pauperis affidavit or payment of filing fee due within 30 days as to Todd Ashker (cp, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/17/2009)
3 CLERK'S NOTICE re completion of In Forma Pauperis affidavit or payment of filing fee due within 30 days as to Danny Troxell (cp, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/17/2009)
4 Letter from Todd Ashker re this action is related to two cases C-04-1967CW and C-05-3286-CW. (cp, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/17/2009)
CASE DESIGNATED for Electronic Filing. (cp, COURT STAFF) (Filed on 12/9/2009) (Entered: 12/17/2009)
5 MOTION for Leave to Proceed in forma pauperis filed by Danny Troxell. (Attachments: # 1 envelope)(cp, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/15/2010)

01/12/2010 02/16/2010 03/15/2010 04/12/2010 04/14/2010 05/21/2010
05/28/2010
12/20/2010 12/20/2010

6 MOTION for Leave to Proceed in forma pauperis filed by Todd Ashker. (Attachments: # 1 envelope)(cp, COURT STAFF) (Filed on 1/12/2010) (Entered: 01/15/2010)
7 ORDER by Judge Claudia Wilken denying 5 Motion for Leave to Proceed in forma pauperis; denying 6 Motion for Leave to Proceed in forma pauperis, screening complaint pursuant to 28 USC section 1915A and dismissing complaint with leave to amend (cwlc1, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/16/2010)
Filing fee: $ 350.00, receipt number 44611004932. (cp, COURT STAFF) (Filed on 3/15/2010) (Entered: 03/16/2010)
8 MOTION for Leave to File a Motion for Reconsideration of part of the 2/16/2010 order filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Troxell Declaration, # 2 Ashker Declaration, # 3 Proof of Service, # 4 Envelope)(cp, COURT STAFF) (Filed on 4/12/2010) (Entered: 04/13/2010)
9 MOTION for Extension of Time to File First Amended Complaint filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Declaration of Todd Ashker, # 2 Declaration of Danny Troxell, # 3 envelope)(kc, COURT STAFF) (Filed on 4/14/2010) (Entered: 04/15/2010)
10 FIRST AMENDED COMPLAINT against William Barlow, D. W. Bradbury, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Roderick Q. Hickman, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, Arnold Schwarzenegger, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford, Derral Adams. Filed byDanny Troxell, Todd Ashker. (Attachments: # 1 amended complaint part 2, # 2 envelope)(cp, COURT STAFF) (Filed on 5/21/2010) (Entered: 05/24/2010)
11 ORDER by Judge Claudia Wilken GRANTING 8 Motion for Leave to File Motion for Reconsideration; GRANTING 9 Motion for Extension of Time to File Amended Complaint. Plaintiff's Amended Complaint due no later than (45) forty-five days from the date of this Order. (cwlc1, COURT STAFF) (Filed on 5/28/2010) Modified on 6/2/2010 (jlm, COURT STAFF). (Entered: 05/28/2010)
12 ORDER SCREENING FIRST AMENDED COMPLAINT UNDER 28 U.S.C. § 1915A AND GRANTING PLAINTIFFS LEAVE TO SERVE DEFENDANTS. Signed by Judge Claudia Wilken on 12/20/2010. (ndr, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)
13 CERTIFICATE OF SERVICE re 12 Order (ndr, COURT STAFF) (Filed on 12/20/2010) (Entered: 12/20/2010)

01/03/2011 01/06/2011 01/07/2011 01/07/2011
01/14/2011 02/04/2011 02/10/2011 02/14/2011 03/11/2011 03/11/2011 03/21/2011

14 RESPONSE to re 12 Order, with clarification and Request for further guidance by Todd Ashker. (Attachments: # 1 Ashker Declaration, # 2 Troxell Declaration, # 3 envelope)(cp, COURT STAFF) (Filed on 1/3/2011) (Entered: 01/04/2011)
16 CORRECTED RESPONSE to re 12 Order, with clarification and Request for further guidancere by Todd Ashker, Danny Troxell. (Attachments: # 1 Ashker Declaration, # 2 Troxell Declaration, # 3 envelope)(cp, COURT STAFF) (Filed on 1/6/2011) (Entered: 01/07/2011)
15 ORDER Regarding Plaintiff's 14 Request for Clarification. Signed by Judge Claudia Wilken on 1/6/2011. (ndr, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
17 MOTION for allowance to change warden defendant, and extend time re U.S. Marshal Service assist notification filed by Todd Ashker. (Attachments: # 1 Ashker Declaration, # 2 Troxell Declaration, # 3 Proof of service, # 4 envelope)(cp, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/11/2011)
18 ORDER by Judge Claudia Wilken GRANTING 17 PLAINTIFFS MOTION TO SUBSTITUTE DEFENDANT AND FOR EXTENSION OF TIME TO REQUEST ASSISTANCE FOR SERVICE. (ndr, COURT STAFF) (Filed on 1/14/2011) (Entered: 01/14/2011)
19 MOTION for extension of time to seek U.S. Marshal's Service of FAC filed by Todd Ashker. (Attachments: # 1 Ashker Declaration, # 2 Troxell Declaration, # 3 envelope)(cp, COURT STAFF) (Filed on 2/4/2011) (Entered: 02/04/2011)
20 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 19 MOTION FOR EXTENSION OF TIME TO SERVE DEFENDANTS. (ndr, COURT STAFF) (Filed on 2/10/2011) (Entered: 02/10/2011)
21 ORDER SUBSTITUTING GOVERNOR EDMUND G. BROWN AS DEFENDANT. Signed by Judge Claudia Wilken on 2/14/2011. (ndr, COURT STAFF) (Filed on 2/14/2011) (Entered: 02/14/2011)
22 MOTION to correct and clarify an omission in their first amended complaint filed by Todd Ashker, Danny Troxell. (Attachments: # 1 envelope)(cp, COURT STAFF) (Filed on 3/11/2011) (Entered: 03/14/2011)
23 Declarations of Todd Ashker, Danny Troxell filed byTodd Ashker, Danny Troxell. (cp, COURT STAFF) (Filed on 3/11/2011) Modified on 3/14/2011 (cp, COURT STAFF). (Entered: 03/14/2011)
24 MOTION requesting permission to preserve option of obtaining U.S. Marshal's Assistance filed by Todd Ashker, Danny Troxell. (Attachments:

03/28/2011 03/28/2011 04/04/2011 04/11/2011
04/14/2011 04/19/2011
04/25/2011 04/25/2011 04/25/2011

# 1 Ashker Declaration, # 2 Troxell Declaration, # 3 envelope)(cp, COURT STAFF) (Filed on 3/21/2011) (Entered: 03/22/2011)
25 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 24 MOTION TO PRESERVE OPTION OF REQUESTING SERVICE BY UNITED STATES MARSHAL. (ndr, COURT STAFF) (Filed on 3/28/2011) (Entered: 03/28/2011)
26 ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 22 MOTION TO CORRECT OMISSION IN FIRST AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 3/28/2011) (Entered: 03/28/2011)
27 MOTION for order permitting taped depositions of defendants and agent Hawks filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Ashker declaration, # 2 Troxell declaration, # 3 envelope)(cp, COURT STAFF) (Filed on 4/4/2011) (Entered: 04/05/2011)
28 NOTICE by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Greg Lewis, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford of Represention and Notice of Intent to File Answer (Roman, Nicole) (Filed on 4/11/2011) (Entered: 04/11/2011)
29 MOTION for relief from defendants' interference with ability to prosecute this case filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Ashker declaration, # 2 Troxell declaration, # 3 Envelope)(cp, COURT STAFF) (Filed on 4/14/2011) (Entered: 04/14/2011)
30 RESPONSE (re 27 MOTION for order permitting taped depositions of defendants and agent Hawks ) filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Greg Lewis, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Proof of Service)(Roman, Nicole) (Filed on 4/19/2011) (Entered: 04/19/2011)
31 MOTION for Court to Order Defendant's Agent to photocopy proposed SAC filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Envelope)(kc, ) (Filed on 4/25/2011) (Entered: 04/26/2011)
32 Declaration of Todd Ashker in Support of 31 MOTION for Court to Order Defendant's Agent to photocopy proposed SAC filed byTodd Ashker, Danny Troxell. (Related document(s) 31 ) (kc, COURT STAFF) (Filed on 4/25/2011) (Entered: 04/26/2011)
33 Declaration of Danny Troxell in Support of 31 MOTION for Court to Order Defendant's Agent to photocopy proposed SAC filed byTodd Ashker, Danny Troxell. (Related document(s) 31 ) (kc, COURT STAFF) (Filed on 4/25/2011) (Entered: 04/26/2011)

05/05/2011 05/05/2011 05/05/2011 05/05/2011
05/09/2011 05/09/2011 05/09/2011 05/19/2011
05/20/2011

34 ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 31 REQUEST TO ORDER PHOTOCOPYING OF SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 5/5/2011) (Entered: 05/05/2011)
35 ORDER FOR RESPONSE FROM DEFENDANTS ON PLAINTIFFS MOTION FOR RELIEF FROM INTERFERENCE. Signed by Judge Claudia Wilken on 5/5/2011. (ndr, COURT STAFF) (Filed on 5/5/2011) (Entered: 05/05/2011)
36 ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 27 MOTION FOR TAPED DEPOSITIONS AS PREMATURE. (ndr, COURT STAFF) (Filed on 5/5/2011) (Entered: 05/05/2011)
37 ANSWER to Amended Complaint and Demand for Jury Trial byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Greg Lewis, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Proof of Service)(Roman, Nicole) (Filed on 5/5/2011) (Entered: 05/05/2011)
38 REPLY Brief in Support of 27 MOTION for order permitting taped depositions of defendants and agent Hawks filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 5/9/2011) (Entered: 05/10/2011)
39 Declaration of Danny Troxell in Support of 38 Reply Brief filed byTodd Ashker, Danny Troxell. (Related document(s) 38 ) (kc, COURT STAFF) (Filed on 5/9/2011) (Entered: 05/10/2011)
40 Declaration of Todd Ashker in Support of 38 Reply Brief filed byTodd Ashker, Danny Troxell. (Related document(s) 38 ) (kc, COURT STAFF) (Filed on 5/9/2011) (Entered: 05/10/2011)
41 RESPONSE (re 29 MOTION for relief from defendants' interference with ability to prosecute this case ) DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR RELIEF FROM INTERFERENCE WITH PLAINTIFFS' ABILITY TO PROSECUTE filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Greg Lewis, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Declaration of Elizabeth McCumsey in Support of Defendans' Opposition to Plaintiffs' Motion for Relief from Interference with Plaintiffs' Ability to Prosecute)(Roman, Nicole) (Filed on 5/19/2011) (Entered: 05/19/2011)
42 Re-Submission of MOTION for order to permit taped depositions filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Troxell's Declaration,

06/02/2011 06/02/2011 06/02/2011 06/06/2011 06/06/2011 06/07/2011
06/15/2011 06/24/2011 06/24/2011

# 2 Ashker's Declaration, # 3 Envelope)(cp, COURT STAFF) (Filed on 5/20/2011) (Entered: 05/23/2011)
43 MOTION for Court Order for U.S. Marshal Assistance with Service of FAC on Defendant Kirkland filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Envelope)(kc, COURT STAFF) (Filed on 6/2/2011) (Entered: 06/03/2011)
44 Declaration of Todd Ashker in Support of 43 MOTION for Court Order for U.S. Marshal Assistance with Service of FAC on Defendant Kirkland filed byTodd Ashker, Danny Troxell. (Related document(s) 43 ) (kc, COURT STAFF) (Filed on 6/2/2011) (Entered: 06/03/2011)
45 Declaration of Danny Troxell in Support of 43 MOTION for Court Order for U.S. Marshal Assistance with Service of FAC on Defendant Kirkland filed byTodd Ashker, Danny Troxell. (Related document(s) 43 ) (kc, COURT STAFF) (Filed on 6/2/2011) (Entered: 06/03/2011)
47 REPLY (re 29 MOTION for relief from defendants' interference with ability to prosecute this case ) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Declaration - Troxell, # 2 Declaration - Ashker, # 3 Envelope)(cp, COURT STAFF) (Filed on 6/6/2011) (Entered: 06/07/2011)
48 MOTION for the court to order defendants' agent(s) to photocopy their proposed second amended complaint (SAC) filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Declaration - Ashker, # 2 Declaration - Troxell, # 3 Envelope)(cp, COURT STAFF) (Filed on 6/6/2011) (Entered: 06/07/2011)
46 OPPOSITION (re 42 MOTION for order to permit taped depositions ) OF DEFENDANTS AND AGENT HAWKES filed by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Greg Lewis, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 6/7/2011) Modified on 6/8/2011 (kc, COURT STAFF). (Entered: 06/07/2011)
49 ANSWER to Amended Complaint AND DEMAND FOR JURY TRIAL byRichard Kirkland, Robert Marquez. (Roman, Nicole) (Filed on 6/15/2011) (Entered: 06/15/2011)
50 Notice and Resubmission of REPLY (re 42 MOTION for order to permit taped depositions ) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Declaration - Troxell, # 2 Declaration - Asker, # 3 Envelope)(cp, COURT STAFF) (Filed on 6/24/2011) (Entered: 06/24/2011)
51 MOTION for emergency protective order prohibiting retaliatory acts and return of property filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Declaration - Ashker, # 2 Declaration - Troxell, # 3 Declaration -

07/11/2011
07/22/2011 08/01/2011 08/08/2011 08/09/2011 08/10/2011

Crawford, # 4 Envelope)(cp, COURT STAFF) (Filed on 6/24/2011) (Entered: 06/24/2011)
52 RESPONSE (re 51 MOTION for emergency protective order prohibiting retaliatory act and return of property ) DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATORY ACTS AND RETURN OF PROPERTY filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, B. Thornton, G. H. Wise, Jeanne Woodford. (Attachments: # 1 DECLARATION OF SERGEANT JOSHUA PIEREN IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATORY ACTS AND RETURN OF PROPERTY, # 2 Exhibits to Declaration of Sergeant Joshua Pieren, # 3 DECLARATION OF SERGEANT JEREMY FRISK IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATORY ACTS AND RETURN OF PROPERTY, # 4 Exhibits to Declaration of Sergeant Jeremy Frisk)(Roman, Nicole) (Filed on 7/11/2011) (Entered: 07/11/2011)
53 ANSWER to Amended Complaint; Demand for Jury Trial by Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, D. Smith, S. Tucker. (Roman, Nicole) (Filed on 7/22/2011) Modified on 7/25/2011 (kc, COURT STAFF). (Entered: 07/22/2011)
54 MOTION for Extension of Time to File Motion for Summary Judgment or other Dispositive Motion; and Declaration of Nicole Roman in Support Thereof filed by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 8/1/2011) Modified on 8/2/2011 (cp, COURT STAFF). (Entered: 08/01/2011)
55 MOTION for Extension of Time to File Response/Reply as to 51 MOTION for emergency protective order filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Troxell's declaration, # 2 Ashker's declaration, # 3 Envelope)(cp, COURT STAFF) (Filed on 8/8/2011) (Entered: 08/09/2011)
56 ORDER by Judge Claudia Wilken Granting Defendants' 54 Motion for Extension of Time to File Motion for Summary Judgment. (ndr, COURT STAFF) (Filed on 8/9/2011) (Entered: 08/09/2011)
57 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS MOTION FOR EXTENSION OF TIME TO FILE REPLY RE: 51 MOTION FOR

08/19/2011 10/05/2011 10/11/2011 10/11/2011 10/11/2011 10/11/2011
10/12/2011 10/19/2011 10/19/2011

PROTECTIVE ORDER.(ndr, COURT STAFF) (Filed on 8/10/2011) (Entered: 08/10/2011)
58 REPLY (re 51 MOTION for emergency protective order prohibiting retaliatory act and return of property ) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Troxell's Declaration, # 2 Ashker's Declaration, # 3 Proof of service, # 4 Envelope)(cpS, COURT STAFF) (Filed on 8/19/2011) (Entered: 08/23/2011)
59 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 48 MOTION FOR PHOTOCOPY OF SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 10/5/2011) (Entered: 10/05/2011)
60 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 43 MOTION FOR COUNSEL TO PROVIDE COURT WITH INFORMATION REGARDING DEFENDANT AND FOR SERVICE BY UNITED STATES MARSHAL. (ndr, COURT STAFF) (Filed on 10/11/2011) (Entered: 10/11/2011)
61 ORDER by Judge Claudia Wilken DENYING PLAINTIFFS 29 MOTION FOR RELIEF FROM INTERFERENCE. (ndr, COURT STAFF) (Filed on 10/11/2011) (Entered: 10/11/2011)
62 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS 42 RENEWED MOTION FOR TAPED DEPOSITIONS. (ndr, COURT STAFF) (Filed on 10/11/2011) (Entered: 10/11/2011)
63 STATUS REPORT AND RESPONSE TO COURT ORDER AT DOCKET NO. 60 by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Exhibit A, # 2 Certificate/Proof of Service)(Roman, Nicole) (Filed on 10/11/2011) (Entered: 10/11/2011)
64 ORDER FOR FURTHER BRIEFING ON PLAINTIFFS MOTION FOR PROTECTIVE ORDER PROHIBITING RETALIATORY ACTS AND FOR RETURN OF PROPERTY. Signed by Judge Claudia Wilken on 10/12/11. (ndr, COURT STAFF) (Filed on 10/12/2011) (Entered: 10/12/2011)
65 MOTION for Extension of Time to File Supplements to Submitted Motions re (1) Prohibiting Interference, and (2) Motion for Protective Order, filed by Todd Ashker. (jlm, COURT STAFF) (Filed on 10/19/2011) (Entered: 10/20/2011)
66 Declaration of Todd Ashker in Support of 65 Motion for Extension of Time to File Supplements to Submitted Motions re (1) Prohibiting Interference,

10/19/2011
10/19/2011 10/19/2011 10/21/2011
10/26/2011 10/28/2011

and (2) Motion for Protective Order, filed byTodd Ashker. (Related document(s) 65 ) (jlm, COURT STAFF) (Filed on 10/19/2011) Modified on 10/21/2011 (cp, COURT STAFF). (Entered: 10/20/2011)
67 MOTION for Leave to File Second Amended Complaint, filed by Todd Ashker. (Attachments: # 1 Proposed Second Amended Complaint, Part 1 of 10, # 2 Proposed Second Amended Complaint, Part 2 of 10, # 3 Proposed Second Amended Complaint, Part 3 of 10, # 4 Proposed Second Amended Complaint, Part 4 of 10, # 5 Proposed Second Amended Complaint, Part 5 of 10, # 6 Proposed Second Amended Complaint, Part 6 of 10, # 7 Proposed Second Amended Complaint, Part 7 of 10, # 8 Proposed Second Amended Complaint, Part 8 of 10, # 9 Proposed Second Amended Complaint, Part 9 of 10, # 10 Proposed Second Amended Complaint, Part 10 of 10)(jlm, COURT STAFF) (Filed on 10/19/2011) (Entered: 10/20/2011)
68 Declaration of Todd Ashker in Support of 67 Motion for Leave to Second Amended Complaint, filed byTodd Ashker. (Related document(s) 67 ) (jlm, COURT STAFF) (Filed on 10/19/2011) (Entered: 10/20/2011)
69 Declaration of Danny Troxell in Support of 67 Motion for Leave to File Second Amended Complaint, filed by Todd Ashker. (Related document(s) 67 ) (jlm, COURT STAFF) (Filed on 10/19/2011) (Entered: 10/20/2011)
70 RESPONSE (re 65 MOTION for Extension of Time to File ) to File Supplements to the Submitted Motions filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Certificate/Proof of Service)(Roman, Nicole) (Filed on 10/21/2011) (Entered: 10/21/2011)
71 RESPONSE to re 64 Order for Clarification Regarding Cell Search by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Certificate/Proof of Service)(Roman, Nicole) (Filed on 10/26/2011) (Entered: 10/26/2011)
72 RESPONSE (re 67 MOTION for Leave to File ) filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R.

11/07/2011
11/17/2011 11/17/2011 11/17/2011 11/17/2011 11/17/2011

Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Certificate/Proof of Service)(Roman, Nicole) (Filed on 10/28/2011) (Entered: 10/28/2011)
73 MOTION for Extension of Time to File Motion for Summary Judgment or Other Dispositive Motion; and Declaration of Nicole Roman in Support Thereof filed by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 11/7/2011) Modified on 11/8/2011 (cp, COURT STAFF). (Entered: 11/07/2011)
74 ORDER by Judge Claudia Wilken GRANTING DEFENDANTS 73 MOTION FOR EXTENSION OF TIME TO FILE DISPOSITIVE MOTION. (ndr, COURT STAFF) (Filed on 11/17/2011) (Entered: 11/17/2011)
75 MOTION for Leave to File a Motion for Reconsideration of Oct. 11, 2011 Court's Order filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Ashker declaration, # 2 Troxell declaration, # 3 Certificate/Proof of Service, # 4 Envelope)(cpS, COURT STAFF) (Filed on 11/17/2011) (Entered: 11/17/2011)
76 REPLY (re 67 MOTION for Leave to File Second Amended Complaint ) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Ashker declaration, # 2 Troxell declaration, # 3 Certificate/Proof of Service, # 4 Envelope)(cp, COURT STAFF) (Filed on 11/17/2011) (Entered: 11/18/2011)
77 REPLY to re 71 RESPONSE to re 64 Order for Clarification Regarding Cell Search by Todd Ashker, Danny Troxell. (Attachments: # 1 Troxell declaration, # 2 Ashker declaration, # 3 Certificate/Proof of Service, # 4 Envelope)(cp, COURT STAFF) (Filed on 11/17/2011) (Entered: 11/18/2011)
78 REPLY (re 67 MOTION for Leave to File a Second Amended Complaint) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 letter, # 2 Envelope)(cp, COURT STAFF) (Filed on 11/17/2011)

***DUPLICATE COPY OF DOCUMENT # 76 WITH SIGNATURE; NO SIGNATURE ON ORIGINAL DOCUMENT # 76 ***

11/29/2011

(Entered: 11/18/2011)
79 NOTICE by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez,

12/01/2011
12/01/2011 12/05/2011 12/13/2011 12/13/2011 12/13/2011 12/14/2011 12/15/2011

R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford NOTICE OF UNAVAILABILITY OF COUNSEL (Roman, Nicole) (Filed on 11/29/2011) (Entered: 11/29/2011)
80 RESPONSE (re 75 MOTION for Leave to File ) A MOTION FOR RECONSIDERATION OF COURT'S ORDER OF OCT. 11, 2011 filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 12/1/2011) Modified on 12/2/2011 (cp, COURT STAFF). (Entered: 12/01/2011)
81 MOTION to Compel defendants to answer interrogatories and produce documents filed by Todd Ashker. (Attachments: # 1 Ashker declaration, # 2 Troxell declaration, # 3 Envelope)(cp, COURT STAFF) (Filed on 12/1/2011) (Entered: 12/05/2011)
82 Letter from Todd Ashker request subpoenas. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/5/2011) (Entered: 12/07/2011)
83 ORDER OF REFERENCE TO MAGISTRATE JUDGE for Discovery purposes re 81 MOTION to Compel. Signed by Judge Claudia Wilken on 12/13/2011. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 12/13/2011) (Entered: 12/13/2011)
Magistrate Judge Nandor J. Vadas added. PSLC ECK no longer assigned to case. (ahm, COURT STAFF) (Filed on 12/13/2011) (Entered: 12/13/2011)
***Set/Clear Flags (ahm, COURT STAFF) (Filed on 12/13/2011) (Entered: 12/13/2011)
84 CLERKS NOTICE Continuing Motion Hearing, Set/Reset Deadlines as to 81 MOTION to Compel. Motion Hearing set for 1/31/2012 10:00 AM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 12/14/2011) (Entered: 12/14/2011)
85 RESPONSE (re 81 MOTION to Compel ) filed byDerral Adams, William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Roderick Q. Hickman, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, Arnold Schwarzenegger, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Attachments: # 1 Supplement

01/03/2012 01/09/2012 01/11/2012 01/11/2012
01/11/2012 02/01/2012 02/01/2012 02/06/2012
02/22/2012
02/23/2012

Request for Judicial Notice, # 2 Exhibit)(Roman, Nicole) (Filed on 12/15/2011) (Entered: 12/15/2011)
86 MOTION for Extension of Time to File Response/Reply re motion to compel discovery filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Troxell declaration, # 2 Ashker declaration, # 3 Envelope)(cp, COURT STAFF) (Filed on 1/3/2012) (Entered: 01/04/2012)
87 ORDER by Magistrate Judge Nandor J. Vadas granting 86 Motion for Extension of Time to File Response/Reply (Attachments: # 1 Certificate/Proof of Service) (njvlc2, COURT STAFF) (Filed on 1/9/2012) (Entered: 01/09/2012)
88 REPLY (re 81 MOTION to Compel ) filed by Todd Ashker, Danny Troxell. (kc, COURT STAFF) (Filed on 1/11/2012) (Entered: 01/12/2012)
89 Declaration of Danny Troxell in Support of 88 Reply filed by Todd Ashker. Danny Troxell. (Related document(s) 88 ) (kc, COURT STAFF) (Filed on 1/11/2012) Modified on 1/12/2012 (kc, COURT STAFF). Matter transcribed by Joan Columbini. Modified on 3/2/2018 (notewarelS, COURT STAFF). (Entered: 01/12/2012)
90 Declaration of Todd Ashker in Support of 88 Reply filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Envelope)(Related document(s) 88 ) (kc, COURT STAFF) (Filed on 1/11/2012) (Entered: 01/12/2012)
91 Minute Entry: Motion Hearing not held on 2/1/2012 before Nandor J. Vadas (Date Filed: 2/1/2012). Status Conference set for 2/7/2012 01:00 PM before Magistrate Judge Nandor J. Vadas. (Recording #10:23-10:39.) (glm, COURT STAFF) (Date Filed: 2/1/2012) (Entered: 02/01/2012)
92 Request for Judicial Notice pursuant to Fed. R. Evid. #201 filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 2/1/2012) (Entered: 02/03/2012)
93 CLERKS NOTICE Continuing Motion Hearing, Set/Reset Deadlines as to 81 MOTION to Compel. Motion Hearing set for 2/22/2012 10:00 AM before Magistrate Judge Nandor J. Vadas. Phone instructions included in Clerk's Notice (glm, COURT STAFF) (Filed on 2/6/2012) (Entered: 02/06/2012)
95 Minute Entry: Motion Hearing not held on 2/22/2012 before Nandor J Vadas (Date Filed: 2/22/2012). New date will be set following defense counsel's communication with plaintiffs new counsel. (Recording #10:02.) (glm, COURT STAFF) (Date Filed: 2/22/2012) Modified on 2/27/2012 (cp, COURT STAFF). (Entered: 02/24/2012)
94 NOTICE of Appearance by Charles Francis-Antonio Carbone et al. (Carbone, Charles) (Filed on 2/23/2012) (Entered: 02/23/2012)

02/24/2012

96 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-6615129.) filed by Todd Ashker, Danny Troxell. (Greenberg, Evan) (Filed on 2/24/2012) (Entered: 02/24/2012)

02/28/2012

97 (Proposed) Order and Amended MOTION for leave to appear in Pro Hac Vice as to Jules Lobel ( Filing fee $ 305, receipt number 09716615129.) Filing fee previously paid on 2/24/2012 filed by Todd Ashker, Danny Troxell. (Greenberg, Evan) (Filed on 2/28/2012) Modified on 2/29/2012 (cp, COURT STAFF). (Entered: 02/28/2012)

02/29/2012

98 ORDER by Judge Claudia Wilken Granting 97 Motion for Pro Hac Vice as to Jules Lobel. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 2/29/2012) (Entered: 02/29/2012)

03/02/2012 99 CASE MANAGEMENT STATEMENT filed by Todd Ashker, Danny Troxell. (Greenberg, Evan) (Filed on 3/2/2012) (Entered: 03/02/2012)

03/02/2012

100 STATUS REPORT Re: Motion to Compel Further Discovery Resonses Hearing by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 3/2/2012) (Entered: 03/02/2012)

03/06/2012

CLERKS NOTICE. Notice is hereby given that a Case Management Conference has been set for Wednesday, March 28, 2012, at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. Case Management Statement due by March 21, 2012.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 3/6/2012) (Entered: 03/06/2012)

03/07/2012

This is a text only docket entry. There is no document associated with this notice. CLERKS NOTICE Status Conference set for 3/20/2012 is continued until 4/10/2012 01:00 PM before Magistrate Judge Nandor J. Vadas. Parties are to call Judge Vadas' courtroom deputy for instructions if they wish to appear by phone. (njvlc2, COURT STAFF) (Filed on 3/7/2012) (Entered: 03/07/2012)

03/13/2012 101 ORDER by Judge Claudia Wilken DENYING 75 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. (ndr, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/13/2012 102 ORDER by Judge Claudia Wilken DENYING WITHOUT PREJUDICE PLAINTIFFS' 65 MOTION TO FILE SUPPLEMENTS TO

MOTIONS, 51 MOTION FOR A PROTECTIVE ORDER, 67 MOTION TO FILE SECOND AMENDED COMPLAINT AND GRANTING REQUEST FOR CASE MANAGEMENT CONFERENCE. (ndr, COURT STAFF) (Filed on 3/13/2012) (Entered: 03/13/2012)

03/21/2012

103 JOINT CASE MANAGEMENT STATEMENT filed by Todd Ashker, Danny Troxell, Edmund G. Brown, Jr., et al. (Greenberg, Evan) (Filed on 3/21/2012) Modified on 3/22/2012 (cp, COURT STAFF). (Entered: 03/21/2012)

03/26/2012

CLERKS NOTICE. Notice is hereby given that the Case Management Conference, previously set for Wednesday, March 28, 2012, at 2:00 p.m., will be heard on Wednesday, March 28, 2012, at

9:00 a.m.

, in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 3/26/2012) (Entered: 03/26/2012)

03/28/2012

104 Minute Entry and Case Management Order: Initial Case Management Conference held on 3/28/2012 before Claudia Wilken (Date Filed: 3/28/2012), CASE REFERRED to Magistrate Judge Vadas for Settlement Conference. Motions due by 10/18/2012. Responses due by 11/1/2012. Cross Motions due by 11/1/2012. Replies due by 11/15/2012. Replies due by 11/21/2012. Case Management Statement due by 11/29/2012. Further Case Management Conference set for 12/6/2012 02:00 PM. Motion Hearing set for 12/6/2012 02:00 PM before Hon. Claudia Wilken. Final Pretrial Conference set for 2/6/2013 02:00 PM. Jury Selection set for 2/19/2013 08:30 AM before Hon. Claudia Wilken. Jury Trial (14 day) set for 2/19/2013 08:30 AM before Hon. Claudia Wilken. (Court Reporter Julie Ralston.) (ndr, COURT STAFF) (Date Filed: 3/28/2012) . (Entered: 03/28/2012)

03/28/2012

109 AMENDED 104 Minute Entry and Case Management Order: Initial Case Management Conference held on 3/28/2012 before Claudia Wilken. CASE REFERRED to Magistrate Judge Vadas for Settlement Conference. Motions due by 10/18/2012. Responses due by 11/1/2012. Cross Motions due by 11/1/2012. Replies due by 11/15/2012. Replies due by 11/21/2012. Case Management Statement due by 11/29/2012. Further Case Management Conference set for 12/6/2012 02:00 PM. Motion Hearing set for 12/6/2012 02:00 PM before Hon. Claudia Wilken. Final Pretrial Conference set for 2/6/2013 02:00 PM. Jury Selection set for 2/19/2013 08:30 AM before Hon. Claudia Wilken. Jury Trial (14 day) set for 2/19/2013 08:30 AM before Hon. Claudia Wilken. (Date Filed: 3/28/2012).

(Court Reporter Julie Ralston.) (ndr, COURT STAFF) (Date Filed: 3/28/2012) (entered: 4/4/2012) (Entered: 04/04/2012)

03/29/2012

105 ORDER REFERRING CERTAIN ISSUES, AND SETTLEMENT CONFERENCE, TO MAGISTRATE JUDGE NANDOR VADAS. Signed by Judge Claudia Wilken on 3/29/2012. (ndr, COURT STAFF) (Filed on 3/29/2012) (Entered: 03/29/2012)

03/29/2012

106 CLERKS NOTICE Status Conference set for 4/2/2012 02:30 PM before Magistrate Judge Nandor J. Vadas. Telephone instructions included in Clerk's Notice (glm, COURT STAFF) (Filed on 3/29/2012) (Entered: 03/29/2012)

03/30/2012

107 CLERKS NOTICE Status Conference continued to for 4/3/2012 11:00 AM before Magistrate Judge Nandor J. Vadas. Status conference date 4/2/12 at 2:30 is VACATED. Phone instructions remain the same This is a text docket entry only. No document is associated with this notice (glm, COURT STAFF) (Filed on 3/30/2012) (Entered: 03/30/2012)

04/03/2012 108 Minute Entry: Status Conference held. Continued for further status April 9, 2012 at 10:00 a.m. (Date Filed: 4/3/2012). (Recording #11:08-11:21.) (glm, COURT STAFF) (Date Filed: 4/3/2012) (Entered: 04/03/2012)

04/03/2012

Set/Reset Hearings: Further Status Conference set for 4/9/2012 10:00 AM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 4/3/2012) (Entered: 04/03/2012)

04/10/2012

110 Minute Entry: Status Conference held. Parties will file letter briefs; Defendant"s brief due 4/11/12 4:30 p.m.; Plaintiff's response due 4/13/12 4:30 p.m. (Date Filed: 4/10/2012). (Recording #10:06-10:58.) (glm, COURT STAFF) (Date Filed: 4/10/2012) (Entered: 04/10/2012)

04/11/2012

111 Letter Brief re 110 Status Conference, filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Related document(s) 110 ) (Roman, Nicole) (Filed on 4/11/2012) (Entered: 04/11/2012)

04/13/2012 112 Letter from Plaintiffs . (Greenberg, Evan) (Filed on 4/13/2012) (Entered: 04/13/2012)

04/13/2012

113 ORDER re 111 Letter Brief, filed by Edmund G. Brown, Jr., Greg Lewis, William Barlow, Robert Marquez, John Harrison, D. Smith, R. Rice, Mathew Cate, Francisco Jacquez, S. Tucker, J. McKinney, Joe McGrath, G. H. Wise, Richard Kirkland, Robert Horel, Hollis Gillingham, Jeanne Woodford, B. Thornton, Susan Fisher, D. W. Bradbury, Robert Doyle, Robert Harmon, A. Hernandez, R. L. Johnson, 112 Letter filed by Danny

Troxell, Todd Ashker. Signed by Magistrate Judge Nandor J. Vadas on April 13, 2012. (njvlc2, COURT STAFF) (Filed on 4/13/2012) (Entered: 04/13/2012)

04/20/2012 114 Letter from Plaintiffs re contact visits for experts. (Greenberg, Evan) (Filed on 4/20/2012) (Entered: 04/20/2012)

04/27/2012

115 STIPULATION Request to Enlarge Time by Two Weeks for All Deadlines filed by Todd Ashker, Danny Troxell, Edmund G. Brown, Jr., et al. (Attachments: # 1 Declaration Declaration of Evan Greenberg supporting stipulated request)(Greenberg, Evan) (Filed on 4/27/2012) Modified on 4/30/2012 (cpS, COURT STAFF). (Entered: 04/27/2012)

04/27/2012

116 MOTION Relief from Nondispositive Pretrial Order of Magistrate Judge Pursuant to Fed.R.Civ.P.72(A) filed by William Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. Responses due by 5/11/2012. Replies due by 5/18/2012. (Attachments: # 1 Declaration of Warden G. D. Lewis, # 2 Proposed Order)(Roman, Nicole) (Filed on 4/27/2012) (Entered: 04/27/2012)

05/07/2012

117 RESPONSE (re 116 MOTION Relief from Nondispositive Pretrial Order of Magistrate Judge Pursuant to Fed.R.Civ.P.72(A) ) filed byTodd Ashker, Danny Troxell. (Attachments: # 1 Exhibit A - Pelican Bay Operational Procedures 222)(Greenberg, Evan) (Filed on 5/7/2012) (Entered: 05/07/2012)

05/10/2012 118 Proposed Order re 115 Stipulation, by Todd Ashker, Danny Troxell. (Greenberg, Evan) (Filed on 5/10/2012) (Entered: 05/10/2012)

05/14/2012

119 REPLY (re 116 MOTION Relief from Nondispositive Pretrial Order of Magistrate Judge Pursuant to Fed.R.Civ.P.72(A) ) filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Roman, Nicole) (Filed on 5/14/2012) Modified on 5/15/2012 (cp, COURT STAFF). (Entered: 05/14/2012)

05/18/2012

120 CLERKS NOTICE DEEMING OBJECTION DENIED Re 116 Motion Relief from Nondispositive Pretrial Order of Magistrate Judge Pursuant to Fed.R.Civ.P.72(A). (ndr, COURT STAFF) (Filed on 5/18/2012) (Entered: 05/18/2012)

05/18/2012 121 NOTICE of Appearance by Evan Charles Greenberg , Carol Strickman, and Marilyn McMahon (Greenberg, Evan) (Filed on 5/18/2012) (Entered: 05/18/2012)

05/18/2012

122 MOTION for leave to appear in Pro Hac Vice as to Rachel Meeropol ( Filing fee $ 305, receipt number 34611074275.) Filing fee previously paid on 5/21/2012 filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Proposed Order)(cp, COURT STAFF) (Filed on 5/18/2012) (Entered: 05/23/2012)

05/18/2012

123 MOTION for leave to appear in Pro Hac Vice as to Alexis Agathocleous ( Filing fee $ 305, receipt number 34611074276.) Filing fee previously paid on 5/21/2012 filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Proposed Order)(cp, COURT STAFF) (Filed on 5/18/2012) (Entered: 05/23/2012)

05/24/2012 124 Order granting 122 Motion for Pro Hac Vice entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 05/24/2012)

05/24/2012 125 Order granting 123 Motion for Pro Hac Vice entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 05/24/2012)

05/31/2012

126 MOTION for Leave to File Second Amended Complaint filed by Todd Ashker, Danny Troxell. (Attachments: # 1 Declaration of Jules Lobel In Support of Motion for Leave to File Second Amended Complaint, # 2 Exhibit A to Lobel Declaration, # 3 Proposed Order Granting Motion for Leave to File Amended Complaint)(Carbone, Charles) (Filed on 5/31/2012) (Entered: 05/31/2012)

05/31/2012

127 ORDER Granting 115 Stipulation to Enlarge Time by Two Weeks for All Deadlines. Motions due by 11/1/2012. Cross Motions/Response due by 11/15/2012. Replies due by 11/29/2012. Reply due by 12/5/2012. Motion Hearing set for 12/20/2012 02:00 PM before Hon. Claudia Wilken. Case Management Statement due by 12/13/2012. Further Case Management Conference set for 12/20/2012 02:00 PM. Final Pretrial Conference set for 2/20/2013 02:00 PM. Jury Selection set for 3/4/2013 08:30 AM before Hon. Claudia Wilken. Jury Trial (14 day) set for 3/4/2013 08:30 AM before Hon. Claudia Wilken. Signed by Judge Claudia Wilken on 5/31/2012. (ndr, COURT STAFF) (Filed on 5/31/2012) (Entered: 05/31/2012)

05/31/2012 128 ORDER DENYING OBJECTION TO MAGISTRATE JUDGE'S ORDER. Signed by Judge Claudia Wilken on 5/31/2012. (ndr, COURT STAFF) (Filed on 5/31/2012) (Entered: 05/31/2012)

06/04/2012

CLERKS NOTICE. Notice is hereby given that the 126 motion for leave to file, previously set for Thursday, July 5, 2012, at 10:00 a.m., will be heard

at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. Responses due by 6/14/2012. Replies due by 6/21/2012.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 6/4/2012) (Entered: 06/04/2012)

06/04/2012 129 NOTICE of Appearance by Charles Francis-Antonio Carbone AS ATTORNEY OF RECORD AND DECLARATION IN SUPPORT THEREOF (Carbone, Charles) (Filed on 6/4/2012) (Entered: 06/04/2012)

06/06/2012 130 NOTICE of Change In Counsel by Matthew Worchesek Roman (Roman, Matthew) (Filed on 6/6/2012) (Entered: 06/06/2012)

06/14/2012 131 NOTICE of Appearance by Alexis Agathocleous (Agathocleous, Alexis) (Filed on 6/14/2012) (Entered: 06/14/2012)

06/14/2012

132 RESPONSE (re 126 MOTION for Leave to File Second Amended Complaint ) to Plaintiffs' Motion for Leave to File a Second Amended Complaint filed byWilliam Barlow, D. W. Bradbury, Edmund G. Brown, Jr, Mathew Cate, Robert Doyle, Susan Fisher, Hollis Gillingham, Robert Harmon, John Harrison, A. Hernandez, Robert Horel, Francisco Jacquez, R. L. Johnson, Richard Kirkland, Greg Lewis, Robert Marquez, Joe McGrath, J. McKinney, R. Rice, D. Smith, B. Thornton, S. Tucker, G. H. Wise, Jeanne Woodford. (Roman, Matthew) (Filed on 6/14/2012) (Entered: 06/14/2012)

06/21/2012 133 REPLY (re 126 MOTION for Leave to File Second Amended Complaint ) filed byTodd Ashker, Danny Troxell. (Greenberg, Evan) (Filed on 6/21/2012) (Entered: 06/21/2012)

06/28/2012

CLERKS NOTICE. Notice is hereby given that the Court, on its own motion, shall take the 126 motion for leave to file under submission on the papers. The hearing previously scheduled for Thursday, July 5, 2012, is vacated.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 6/28/2012) (Entered: 06/28/2012)
08/14/2012 134 Order by Magistrate Judge Nandor J. Vadas denying 81 Motion to Compel without prejudice to renewing motion after pleadings are settled.(njvlc2, COURT STAFF) (Filed on 8/14/2012) (Entered: 08/14/2012)
09/10/2012 135 ORDER by Judge Claudia Wilken GRANTING 126 MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 9/10/2012) (Entered: 09/10/2012)

09/10/2012

Set Deadlines: Admissions due by 11/9/2012. Amended Pleadings due by 9/13/2012. Motions due by 11/9/2012. See Docket No. 135. (ndr, COURT STAFF) (Filed on 9/10/2012) (Entered: 09/10/2012)

09/10/2012 136 AMENDED COMPLAINT Second against All Defendants. Filed byDanny Troxell, Todd Ashker. (Greenberg, Evan) (Filed on 9/10/2012) (Entered: 09/10/2012)

10/17/2012 137 NOTICE of Appearance by Gregory Hull NOTICE OF APPEARANCE OF COUNSEL (Hull, Gregory) (Filed on 10/17/2012) (Entered: 10/17/2012)

10/18/2012 138 Letter from Gregory D. Hull Regarding Plaintiffs' Request for a Case Management Conference. (Hull, Gregory) (Filed on 10/18/2012) (Entered: 10/18/2012)

10/23/2012 139 NOTICE of Appearance by Gregory Hull Amended Notice of Appearance of Counsel (Hull, Gregory) (Filed on 10/23/2012) (Entered: 10/23/2012)

10/23/2012 140 NOTICE of Appearance by Bambo Obaro Notice of Appearance of Counsel (Obaro, Bambo) (Filed on 10/23/2012) (Entered: 10/23/2012)

10/23/2012

141 MOTION for Case Management Conference filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 10/29/2012. (Attachments: # 1 Declaration Declaration of Evan C. Greenberg, # 2 Proposed Order Proposed Order)(Hull, Gregory) (Filed on 10/23/2012) Modified on 10/24/2012 (cpS, COURT STAFF). (Entered: 10/23/2012)

10/24/2012

142 Order denying 141 Motion to set a case management conference entered by Hon. Claudia Wilken. A case management conference is not necessary to change dates. Any party aggrieved by the dates as currently set should, after meeting and conferring, file an administrative motion to change them pursuant to Local Rule 6-3 or 7-11. If both sides are aggrieved, it would be useful to address all contested dates in one motion. All discovery disputes are referred to Magistrate Judge Nandor Vadas and should be submitted to him in accordance with his standing order. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 10/24/2012)

11/01/2012

143 MOTION for Administrative Relief filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 11/15/2012. Replies due by 11/26/2012. (Attachments: # 1 Declaration, # 2 Proposed Order)(Greenberg, Evan) (Filed on 11/1/2012) Modified on 11/2/2012 (kcS, ). (Entered: 11/01/2012)

11/02/2012 144 Proposed Consent Order Granting Substitution of Counsel by Greg Lewis (Hrvatin, Adriano) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

11/02/2012 145 Proposed Consent Order Granting Substitution of Counsel by Matthew Cate (Hrvatin, Adriano) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

11/02/2012 146 Proposed Consent Order Granting Substitution of Counsel by Edmund G. Brown, Jr. (Hrvatin, Adriano) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

11/02/2012

147 MOTION for Extension of Time to File Response/Reply as to 136 Amended Complaint filed by Edmund G. Brown, Jr, Mathew Cate, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 11/2/2012) (Entered: 11/02/2012)

11/02/2012

148 Declaration of Adriano Hrvatin in Support of 147 MOTION for Extension of Time to File Response/Reply as to 136 Amended Complaint filed byEdmund G. Brown, Jr, Mathew Cate, Greg Lewis. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 147 ) (Hrvatin, Adriano) (Filed on 11/2/2012) (Entered: 11/02/2012)

11/02/2012

149 Proposed Order Granting 147 MOTION Extending Defendants' Time to Respond to Second Amended Complaint and Vacating Inconsistent Deadlines by Edmund G. Brown, Jr, Mathew Cate, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/2/2012) Modified on 11/5/2012 (kcS, ). (Entered: 11/02/2012)

11/09/2012 150 NOTICE of Appearance by Jillian Renee Weader (Weader, Jillian) (Filed on 11/9/2012) (Entered: 11/09/2012)

11/09/2012

151 MOTION for Screening of Plaintiffs' Second Amended Complaint and Waiver of Reply filed by Edmund G. Brown, Jr, Mathew Cate, Greg Lewis. Responses due by 11/26/2012. Replies due by 12/3/2012. (Hrvatin, Adriano) (Filed on 11/9/2012) Modified on 11/13/2012 (kcS, ). (Entered: 11/09/2012)

11/15/2012 152 RESPONSE (re 143 MOTION for Administrative Relief ) filed byEdmund G. Brown, Jr, Mathew Cate, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/15/2012) (Entered: 11/15/2012)

11/15/2012

153 Declaration of Adriano Hrvatin in Support of 152 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Mathew Cate, Greg Lewis. (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)(Related document(s) 152 ) (Hrvatin, Adriano) (Filed on 11/15/2012) (Entered: 11/15/2012)

11/15/2012

154 Proposed Order re 143 Motion for Administrative Relief by Edmund G. Brown, Jr, Mathew Cate, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/15/2012) Modified on 11/16/2012 (cpS, COURT STAFF). (Entered: 11/15/2012)

11/16/2012

155 ORDER by Judge Claudia WilkenAMENDING SCHEDULE AND GRANTING IN PART MOTIONS FOR ADMINISTRATIVE RELIEF re 143 ; 147 . (ndr, COURT STAFF) (Filed on 11/16/2012) (Entered: 11/16/2012)

11/16/2012

Reset Deadlines/Hearings: Motions due by 12/17/2012. Responses due by 1/17/2013. Case Management Conference set for 2/14/2013 02:00 PM. Motion Hearing set for 2/14/2013 02:00 PM before Hon. Claudia Wilken. Replies due by 1/31/2013. See Docket No. 155. (ndr, COURT STAFF) (Filed on 11/16/2012) (Entered: 11/16/2012)

11/21/2012 156 Notice of Withdrawal of Motion of Defendants' Request for Screening of Plaintiffs' Second Amended Complaint (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 11/21/2012) (Entered: 11/21/2012)

12/06/2012

157 MOTION for Preliminary Injunction ; Memorandum of Law in Support of Plaintiffs' Motion for Preliminary Injunction filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 1/10/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 12/20/2012. Replies due by 12/27/2012. (Attachments: # 1 Declaration Declaration of Todd Ashker, # 2 Exhibit Exhibits A-J - Declaration of Todd Ashker, # 3 Declaration Declaration of Jules Lobel, # 4 Declaration Declaration of Danny Troxell, # 5 Proposed Order [Proposed] Order Granting Motion for Preliminary Injunction)(Hull, Gregory) (Filed on 12/6/2012) Modified on 12/7/2012 (cp, COURT STAFF). (Entered: 12/06/2012)

12/06/2012

158 Declaration of Gregory D. Hull in Support of 157 MOTION for Preliminary Injunction filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 157 ) (Hull, Gregory) (Filed on 12/6/2012) Modified on 12/7/2012 (cp, COURT STAFF). (Entered: 12/06/2012)

12/07/2012

159 WAIVER OF SERVICE Returned Executed filed by Luis Esquivel, Danny Troxell, Todd Ashker, Gabriel Reyes, Richard Johnson, Ronnie Dewberry, Paul Redd, George Ruiz, Jeffrey Franklin, George Franco. Service waived by Anthony Chaus waiver sent on 11/16/2012, answer due 1/15/2013. (Carbone, Charles) (Filed on 12/7/2012) (Entered: 12/07/2012)

12/17/2012

160 MOTION to Dismiss Plaintiffs' Second Amended Complaint, or Alternatively, to Stay; Memorandum of Points and Authorities filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Motion Hearing set for 2/14/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 12/31/2012. Replies due by 1/7/2013. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 12/17/2012) Modified on 12/18/2012 (cpS, COURT STAFF). (Entered: 12/17/2012)

12/17/2012

161 Declaration of George Giurbino in Support of 160 MOTION to Dismiss Plaintiffs' Second Amended Complaint, or Alternatively, to Stay filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A part 1 of 5, # 2 Exhibit A part 2 of 5, # 3 Exhibit A part 3 of 5, # 4 Exhibit A part 4 of 5, # 5 Exhibit A part 5 of 5)(Related document(s) 160 ) (Hrvatin, Adriano) (Filed on 12/17/2012) Modified on 12/18/2012 (cpS, COURT STAFF). (Entered: 12/17/2012)

12/17/2012

162 Request for Judicial Notice re 160 MOTION to Dismiss Plaintiffs' Second Amended Complaint, or Alternatively, to Stay filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 160 ) (Hrvatin, Adriano) (Filed on 12/17/2012) Modified on 12/18/2012 (cpS, COURT STAFF). (Entered: 12/17/2012)

12/17/2012

163 Proposed Order re 160 MOTION to Dismiss Plaintiffs' Second Amended Complaint by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/17/2012) Modified on 12/18/2012 (cpS, COURT STAFF). (Entered: 12/17/2012)

12/20/2012

164 Declaration of Jules Lobel in Support of 157 MOTION for Preliminary Injunction Declaration of Jules Lobel in Support of Plaintiffs' Motion for Preliminary Injunction filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 157 ) (Hull, Gregory) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

165 Declaration of Todd Ashker in Support of 157 MOTION for Preliminary Injunction Declaration of Todd Ashker in Support of Plaintiffs' Motion for Preliminary Injunction filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 157 ) (Hull, Gregory) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

166 Declaration of Danny Troxell in Support of 157 MOTION for Preliminary Injunction Declaration of Danny Troxell in Support of Motion for Preliminary Injunction filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 157 ) (Hull, Gregory) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

167 Administrative Motion to File Under Seal filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012 168 Declaration of Michael Ruff in Support of 167 Administrative Motion to File Under Seal filed byEdmund G. Brown, Jr, Mathew Cate, Anthony

Chaus, Greg Lewis. (Related document(s) 167 ) (Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012 169 Proposed Order re 167 Administrative Motion to File Under Seal by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

170 RESPONSE (re 157 MOTION for Preliminary Injunction ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

171 Declaration of Jeremy Frisk in Support of 170 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 170 ) (Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/20/2012

172 Declaration of Adriano Hrvatin in Support of 170 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (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)(Related document(s) 170 ) (Hrvatin, Adriano) (Filed on 12/20/2012) (Entered: 12/20/2012)

12/27/2012 173 ORDER by Judge Claudia Wilken Granting 167 Administrative Motion to File Under Seal. (ndr, COURT STAFF) (Filed on 12/27/2012) (Entered: 12/27/2012)

12/27/2012

174 DOCUMENT E-FILED UNDER SEAL re 173 Order on Administrative Motion to File Under Seal ; Defendants Opposition to Plaintiffs Motion for Preliminary Injuction by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/27/2012) (Entered: 12/27/2012)

12/27/2012

175 DOCUMENT E-FILED UNDER SEAL re 173 Order on Administrative Motion to File Under Seal ; Declaration of J. Frisk in Support of Defndants Opposition to Plaintiffs Motion for Preliminary Injuction by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/27/2012) (Entered: 12/27/2012)

12/27/2012

176 REPLY (re 157 MOTION for Preliminary Injunction ) Class Action filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Hull, Gregory) (Filed on 12/27/2012) (Entered: 12/27/2012)

01/07/2013

177 CLERKS NOTICE The motion hearing previously scheduled for January 10, 2013, is hereby vacated. (This is a text only docket entry; there is no document associated with this notice.) (cwlc3, COURT STAFF) (Filed on 1/7/2013) (Entered: 01/07/2013)

01/17/2013

178 RESPONSE (re 160 MOTION to Dismiss Plaintiffs' Second Amended Complaint ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration Declaration of Jules Lobel)(Hull, Gregory) (Filed on 1/17/2013) Modified on 1/18/2013 (cpS, COURT STAFF). (Entered: 01/17/2013)

01/31/2013

179 REPLY (re 160 MOTION to Dismiss Plaintiffs' Second Amended Complaint, or Alternatively, to Stay ) /DEFENDANTS' REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT, OR ALTERNATIVELY, TO STAY filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Weader, Jillian) (Filed on 1/31/2013) (Entered: 01/31/2013)

01/31/2013

180 Second Request for Judicial Notice re 160 MOTION TO DISMISS PLAINTIFFS' SECOND AMENDED COMPLAINT filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit Exhibit A)(Related document(s) 179 ) (Weader, Jillian) (Filed on 1/31/2013) Modified on 2/1/2013 (cpS, COURT STAFF). (Entered: 01/31/2013)

02/01/2013

CLERKS NOTICE. Notice is hereby given that the 160 motion to dismiss and the case management conference, previously set for Thursday, Februray 14, 2013, are continued to Thursday, March 14, 2013, at 2:00 p.m., in Courtroom 2, 4th Floor, 1301 Clay Street, Oakland, CA 94612. Case Management Statement due by March 7, 2013.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 2/1/2013) (Entered: 02/01/2013)

02/05/2013

181 STIPULATION ; Stipulated Protective Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, George Ruiz, Danny Troxell, Todd Ashker. (Attachments: # 1 Certificate/Proof of Service Proof of Service)(Hrvatin, Adriano) (Filed on 2/5/2013) Modified on 2/6/2013 (cpS, COURT STAFF). (Entered: 02/05/2013)

02/06/2013 182 ORDER Granting 181 Stipulated Protective Order. Signed by Judge Claudia Wilken on 2/6/2013. (ndr, COURT STAFF) (Filed on 2/6/2013) (Entered: 02/06/2013)

03/07/2013

183 JOINT CASE MANAGEMENT STATEMENT filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund g. Brown, Jr., Mathew Cate, Anthony Chaus, Greg Lewis. (Greenberg, Evan) (Filed on 3/7/2013) Modified on 3/8/2013 (cpS, COURT STAFF). (Entered: 03/07/2013)

03/14/2013 187 Minute Entry: Motion Hearing held on 3/14/2013 before Claudia Wilken (Date Filed: 3/14/2013). (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 3/14/2013) (Entered: 03/18/2013)

03/14/2013

188 Minute Entry and Case Management Order: Initial Case Management Conference held on 3/14/2013 before Claudia Wilken (Date Filed: 3/14/2013), CASE RE-REFERRED to Magistrate Judge Vadas for Settlement Conference. Motions due by 5/2/2013. Responses due by 6/27/2013. Replies due by 7/18/2013. Replies due by 7/25/2013. Case Management Statement due by 8/1/2013. Further Case Management Conference / Motion Hearing set for 8/8/2013 02:00 PM before Hon. Claudia Wilken. (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 3/14/2013) (Entered: 03/18/2013)

03/15/2013 184 ORDER Granting 144 Substitution of Counsel. Signed by Judge Claudia Wilken on 3/15/2013. (ndr, COURT STAFF) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)

03/15/2013 185 ORDER Granting 145 Substitution of Counsel. Signed by Judge Claudia Wilken on 3/15/2013. (ndr, COURT STAFF) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)

03/15/2013 186 ORDER Granting 146 Substitution of Counsel. Signed by Judge Claudia Wilken on 3/15/2013. (ndr, COURT STAFF) (Filed on 3/15/2013) Modified on 3/18/2013 (cpS, COURT STAFF). (Entered: 03/15/2013)

03/18/2013 189 ORDER SUBSTITUTING DEFENDANTS' NAMES. Signed by Judge Claudia Wilken on 3/18/2013. (ndr, COURT STAFF) (Filed on 3/18/2013) (Entered: 03/18/2013)

03/18/2013 190 TRANSCRIPT ORDER by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis from Court Reporter Raynee Mercado. (Simon, Loran) (Filed on 3/18/2013) (Entered: 03/18/2013)

04/09/2013 191 ORDER by Judge Claudia Wilken DENYING 160 MOTION TO DISMISS. (ndr, COURT STAFF) (Filed on 4/9/2013) (Entered: 04/09/2013)

04/15/2013

192 Order Setting Settlement Conference before Magistrate Judge Vadas. Settlement Conference set for 5/24/2013 at 10:00 AM in Courtroom D, 15th Floor, San Francisco. Telephonic Status Conference set for 5/14/2013 at 01:00 PM before Magistrate Judge Nandor J. Vadas. Signed by Magistrate Judge Nandor Vadas on 4/15/13. (njvlc1, COURT STAFF) (Filed on 4/15/2013) (Entered: 04/15/2013)

04/18/2013 193 ORDER by Judge Claudia Wilken DENYING 157 MOTION FOR PRELIMINARY INJUNCTION. (ndr, COURT STAFF) (Filed on 4/18/2013) (Entered: 04/18/2013)

04/30/2013 194 Answer to Amended Complaint 136 Amended Complaint byEdmund G. Brown, Jr. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 4/30/2013) (Entered: 04/30/2013)

05/02/2013

195 MOTION to Certify Class filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 8/8/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 6/27/2013. Replies due by 7/18/2013. (Attachments: # 1 Exhibit A-F, # 2 Exhibit G-L, # 3 Exhibit M-S, # 4 Exhibit T-Y, # 5 Proposed Order)(Agathocleous, Alexis) (Filed on 5/2/2013) (Entered: 05/02/2013)

05/02/2013

196 Administrative Motion to File Under Seal Portions of the Declaration of Terry Kupers, MD, MSP, in Support of Plaintiffs' Motion for Class Certification filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Alexis Agathocleous, # 2 Proposed Order)(Agathocleous, Alexis) (Filed on 5/2/2013) (Entered: 05/02/2013)

05/02/2013 197 NOTICE of Appearance by Martine Noel D'Agostino (D'Agostino, Martine) (Filed on 5/2/2013) (Entered: 05/02/2013)

05/02/2013

The May 14, 2013 status conference scheduled before Judge Vadas is moved up to May 7, 2013. Please use the dial-in information that was provided in Doc. No. 192. Set/Reset Hearing Telephone Conference set for 5/7/2013 01:00 PM before Magistrate Judge Nandor J. Vadas. (njvlc2, COURT STAFF) (Filed on 5/2/2013) (Entered: 05/02/2013)

05/03/2013

198 Transcript of Proceedings held on March 14, 2013, before Judge Claudia Wilken. Court Reporter Raynee H. Mercado, CSR, Telephone number 510451-7530, rayneeh@hotmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/1/2013. (Related documents(s) 190 ) (rhm) (Filed on 5/3/2013) (Entered: 05/03/2013)

05/06/2013

199 RESPONSE (re 196 Administrative Motion to File Under Seal Portions of the Declaration of Terry Kupers, MD, MSP, in Support of Plaintiffs' Motion for Class Certification ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Weader, Jillian) (Filed on 5/6/2013) (Entered: 05/06/2013)

05/06/2013 200 Proposed Order Denying Administrative Motion to Seal by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Weader, Jillian) (Filed on 5/6/2013) (Entered: 05/06/2013)

05/07/2013 201 Minute Entry: Status Conference held. (Date Filed: 5/7/2013). (Recording #1:11-1:31.) (glm, COURT STAFF) (Date Filed: 5/7/2013) (Entered: 05/07/2013)

05/07/2013

Set/Reset Hearing Status Conference set for 5/14/2013 01:00 PM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 5/7/2013) (Entered: 05/07/2013)

05/08/2013

202 MOTION for leave to appear in Pro Hac Vice of Carmen Bremer ( Filing fee $ 305, receipt number 0971-7684641.) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Hull, Gregory) (Filed on 5/8/2013) (Entered: 05/08/2013)

05/08/2013

203 MOTION for Leave to File Excess Pages in a motion to compel filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Greenberg, Evan) (Filed on 5/8/2013) (Entered: 05/08/2013)

05/08/2013 204 Order granting 202 Motion for Pro Hac Vice entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 05/08/2013)

05/09/2013

205 REPLY (re 196 Administrative Motion to File Under Seal Portions of the Declaration of Terry Kupers, MD, MSP, in Support of Plaintiffs' Motion for Class Certification ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Alexis Agathocleous, # 2 Proposed Order)(Agathocleous, Alexis) (Filed on 5/9/2013) (Entered: 05/09/2013)

05/10/2013 206 Order by Magistrate Judge Nandor J. Vadas granting 203 Motion for Leave to File Excess Pages, with instructions.(njvlc2, COURT STAFF) (Filed on 5/10/2013) (Entered: 05/10/2013)

05/10/2013

207 MOTION to Compel discovery responses filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/18/2013 10:00 AM in Courtroom 205, 2nd Floor, Eureka before Magistrate Judge Nandor J. Vadas. Responses due by 5/24/2013. Replies due by 5/31/2013. (Attachments: # 1 Exhibit Exhibit A)(Greenberg, Evan) (Filed on 5/10/2013) (Entered: 05/10/2013)

05/14/2013 208 Minute Entry: Status Conference held. (Date Filed: 5/14/2013). (Recording #1:22-1:51.) (glm, COURT STAFF) (Date Filed: 5/14/2013) (Entered: 05/14/2013)

05/14/2013

Set Deadlines/Hearings: Status Conference set for 5/28/2013 01:00 PM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 5/14/2013) (Entered: 05/14/2013)

05/15/2013 209 ORDER Vacating Settlement Conference. Signed by Magistrate Judge Nandor J. Vadas on 5/15/2013. (njvlc1, COURT STAFF) (Filed on 5/15/2013) (Entered: 05/15/2013)

05/21/2013 210 ORDER by Judge Claudia Wilken DENYING 196 PLAINTIFFS MOTION TO SEAL. (ndr, COURT STAFF) (Filed on 5/21/2013) (Entered: 05/21/2013)

05/24/2013 211 RESPONSE (re 207 MOTION to Compel discovery responses ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (O'Brien, Jillian) (Filed on 5/24/2013) (Entered: 05/24/2013)

05/24/2013

212 Declaration of Adriano Hrvatin in Support of 211 Opposition/Response to Motion with Exhibits A to I filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 211 ) (O'Brien, Jillian) (Filed on 5/24/2013) (Entered: 05/24/2013)

05/24/2013

213 Declaration of S. Soderlund in Support of 211 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 211 ) (O'Brien, Jillian) (Filed on 5/24/2013) (Entered: 05/24/2013)

05/24/2013

214 Declaration of J. Prelip in Support of 211 Opposition/Response to Motion filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 211 ) (O'Brien, Jillian) (Filed on 5/24/2013) (Entered: 05/24/2013)

05/28/2013

215 Renewed Administrative Motion to File Under Seal portions of the declaration of Terry Kupers filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Alexis Agathocleous, # 2 Proposed Order)(Agathocleous, Alexis) (Filed on 5/28/2013) Modified on 5/29/2013 (cpS, COURT STAFF). (Entered: 05/28/2013)

05/28/2013

216 Minute Entry: Status Conference held. (Date Filed: 5/28/2013). Settlement Conference set for 6/19/2013 09:00 AM. at Pelican Bay State Prison. (Recording #FTR: 1:21-1:35.) (glm, COURT STAFF) (Date Filed: 5/28/2013) (Entered: 05/28/2013)

05/29/2013 217 Discovery Order requiring parties to meet and confer in person on 6/19/2013 and continuing discovery hearing on Plaintiffs' motion to

compel 207 until 6/25/2013 before Magistrate Judge Nandor J. Vadas. Signed by Magistrate Judge Nandor J. Vadas on May 29, 2013. (njvlc2, COURT STAFF) (Filed on 5/29/2013) (Entered: 05/29/2013)

05/31/2013 218 ORDER DIRECTING PLAINTIFFS TO AMEND 215 MOTION TO SEAL. (ndr, COURT STAFF) (Filed on 5/31/2013) (Entered: 05/31/2013)

05/31/2013

219 RESPONSE (re 215 Renewed Administrative Motion to File Under Seal portions of the declaration of Terry Kupers ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (O'Brien, Jillian) (Filed on 5/31/2013) (Entered: 05/31/2013)

05/31/2013 220 Proposed Order re 219 Opposition/Response to Motion by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (O'Brien, Jillian) (Filed on 5/31/2013) (Entered: 05/31/2013)

05/31/2013

221 Declaration of Terry Kupers in Support of 215 Renewed Administrative Motion to File Under Seal portions of the declaration of Terry Kupers filed by Todd Ashker. ***REDACTED VERSION*** (Related document(s) 215 ) (Siegel, Daniel) (Filed on 5/31/2013) Modified on 6/3/2013 (kcS, COURT STAFF). (Entered: 05/31/2013)

05/31/2013 222 REPLY (re 207 MOTION to Compel discovery responses ) filed byTodd Ashker. (Siegel, Daniel) (Filed on 5/31/2013) (Entered: 05/31/2013)

06/04/2013 223 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS RENEWED 215 MOTION TO SEAL. (ndr, COURT STAFF) (Filed on 6/4/2013) (Entered: 06/04/2013)

06/04/2013

224 DOCUMENT E-FILED UNDER SEAL re 223 Order on Administrative Motion to File Under Seal Kupers Declaration (Exhibit U to Plaintiffs' Motion for Class Certification) by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Agathocleous, Alexis) (Filed on 6/4/2013) (Entered: 06/04/2013)

06/06/2013 225 TRANSCRIPT ORDER by Todd Ashker for Court Reporter Raynee Mercado. (Siegel, Daniel) (Filed on 6/6/2013) (Entered: 06/06/2013)

06/10/2013 226 First MOTION for Extension of Time to File Response/Reply as to 195 MOTION to Certify Class filed by Edmund G. Brown, Jr. (D'Agostino, Martine) (Filed on 6/10/2013) (Entered: 06/10/2013)

06/10/2013

227 Declaration of Adriano Hrvatin in Support of 226 First MOTION for Extension of Time to File Response/Reply as to 195 MOTION to Certify Class filed byEdmund G. Brown, Jr. (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)(Related document(s) 226 ) (D'Agostino, Martine) (Filed on 6/10/2013) (Entered: 06/10/2013)

06/10/2013

228 Proposed Order re 226 First MOTION for Extension of Time to File Response/Reply as to 195 MOTION to Certify Class by Edmund G. Brown, Jr. (D'Agostino, Martine) (Filed on 6/10/2013) (Entered: 06/10/2013)

06/12/2013

229 Statement of Non-Opposition re 226 First MOTION for Extension of Time to File Response/Reply as to 195 MOTION to Certify Class filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 226 ) (Hull, Gregory) (Filed on 6/12/2013) (Entered: 06/12/2013)

06/19/2013

230 ORDER by Judge Claudia Wilken Granting 226 Motion for Extension of Time to File Response/Reply re 195 MOTION to Certify Class . Responses due by 7/18/2013. Replies due by 8/8/2013. (ndr, COURT STAFF) (Filed on 6/19/2013) (Entered: 06/19/2013)

06/19/2013

See Order, Docket No. 230 . Reset Deadlines as to 195 MOTION to Certify Class . Motion Hearing set for 8/22/2013 02:00 PM before Hon. Claudia Wilken. Set Deadline/Hearing: Case Management Statement due by 8/15/2013. Case Management Conference set for 8/22/2013 02:00 PM. (ndr, COURT STAFF) (Filed on 6/19/2013) Modified on 6/20/2013 (kcS, COURT STAFF). (Entered: 06/19/2013)

06/24/2013 231 Letter from Carmen Bremer regarding status of meet and confer efforts. (Hull, Gregory) (Filed on 6/24/2013) (Entered: 06/24/2013)

06/24/2013 232 Letter from Jillian R. O'Brien In re Meet and Confer. (Attachments: # 1 Certificate/Proof of Service)(O'Brien, Jillian) (Filed on 6/24/2013) (Entered: 06/24/2013)

06/25/2013

234 Minute Entry: Discovery Hearing held on 6/25/2013 before Nandor J. Vadas (Date Filed: 6/26/2013). Parties to meet by 7/3/13. Joint letter brief due 7/9/13. Settlement Conference set for 7/26/2013 10:00 AM. (Recording #1:18-1:59.) (glm, COURT STAFF) (Date Filed: 6/25/2013) Modified on 6/27/2013 (cpS, COURT STAFF). (Entered: 06/26/2013)

06/26/2013

233 MOTION to Intervene filed by California Correctional Peace Officers Association. Motion Hearing set for 8/29/2013 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 7/10/2013. Replies due by 7/17/2013. (Attachments: # 1 Proposed Order Proposed Order, # 2 Supplement Memorandum of Points and Authorities, # 3 Declaration Declaration of Charles Alexander, # 4 Supplement Table of Contents, # 5 Certificate/Proof of Service Proof of Service)(Murray, Phillip) (Filed on 6/26/2013) (Entered: 06/26/2013)

06/28/2013 235 ORDER requiring further settlement conference statements. Signed by Magistrate Judge Nandor J. Vadas on June 28, 2013. (njvlc2, COURT STAFF) (Filed on 6/28/2013) (Entered: 06/28/2013)

07/01/2013 236 Statement of Non-Opposition re 233 MOTION to Intervene filed byEdmund G. Brown, Jr. (Related document(s) 233 ) (Hrvatin, Adriano) (Filed on 7/1/2013) (Entered: 07/01/2013)

07/09/2013

237 Joint Discovery Letter Brief filed by Todd Ashker, Edmund G. Brown, Jr, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bremer, Carmen) (Filed on 7/9/2013) (Entered: 07/09/2013)

07/10/2013

238 RESPONSE (re 233 MOTION to Intervene ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Hull, Gregory) (Filed on 7/10/2013) (Entered: 07/10/2013)

07/12/2013

239 ORDER by Magistrate Judge Nandor J. Vadas granting in part and denying in part 207 Motion to Compel; terminating 237 Discovery Letter Brief (njvlc2, COURT STAFF) (Filed on 7/12/2013) (Entered: 07/12/2013)

07/15/2013

240 CLERKS NOTICE The settlement conference scheduled for July 26, 2013 will take place in Courtroom D. This is a text-only docket entry. No document is associated with this Notice. (glm, COURT STAFF) (Filed on 7/15/2013) (Entered: 07/15/2013)

07/17/2013

241 REPLY (re 233 MOTION to Intervene ) to Plaintiff's Opposition to CCPOA's Motion to Intervene filed byCalifornia Correctional Peace Officers Association. (Attachments: # 1 Exhibit "STG" Memorandum, # 2 Exhibit CCPOA and CDCR "STG" Agreement, # 3 Declaration Declaration of Steve Weiss, # 4 Declaration Declaration of Phillip Auzins)(Murray, Phillip) (Filed on 7/17/2013) (Entered: 07/17/2013)

07/18/2013

242 RESPONSE (re 195 MOTION to Certify Class ) ; Opposition to Plaintiffs' Motion for Class Certification filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service Proof of Service)(Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

243 Declaration of Robert D. Morgan in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013 244 Declaration of K. Harrington in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus,

Greg Lewis. (Attachments: # 1 Exhibit A)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

245 Declaration of R. Swift in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

246 Declaration of S. Hubbard in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A - part 1 of 3, # 2 Exhibit A - part 2 of 3, # 3 Exhibit A - part 3 of 3, # 4 Exhibit B)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

247 Declaration of T. Ruggles in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

248 Declaration of J. Zubiate in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

249 Declaration of J. Bryan Elrod in Support of 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 242 ) (Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

250 Administrative Motion to File Under Seal Pursuant to Local Rule 795 filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration Hrvatin Declaration, # 2 Declaration Frisk Declaration, # 3 Proposed Order [Proposed] Order)(Hrvatin, Adriano) (Filed on 7/18/2013) (Entered: 07/18/2013)

07/18/2013

251 Emergency Discovery Letter Brief requesting order for depositions filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bremer, Carmen) (Filed on 7/18/2013) Modified on 7/19/2013 (cpS, COURT STAFF). (Entered: 07/18/2013)

07/19/2013 252 Letter from Adriano Hrvatin, Deputy Attorney General . (Attachments: # 1 Notice of Deposition)(Hrvatin, Adriano) (Filed on 7/19/2013) (Entered: 07/19/2013)

07/19/2013 253 Minute Entry: Discovery Hearing held on 7/19/2013 before Nandor J Vadas (Date Filed: 7/19/2013). (Recording #11:37-11:58.) (glm, COURT STAFF) (Date Filed: 7/19/2013) (Entered: 07/19/2013)

07/26/2013 254 CLERKS NOTICE, Set/Reset Deadlines as to Status Conference set for 8/12/2013 10:00 AM before Magistrate Judge Nandor J. Vadas. (njvlc2, COURT STAFF) (Filed on 7/26/2013) (Entered: 07/26/2013)

07/26/2013

255 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE filed by Edmund G. Brown, Jr. Responses due by 8/9/2013. Replies due by 8/16/2013. (Attachments: # 1 Certificate/Proof of Service)(O'Brien, Jillian) (Filed on 7/26/2013) Modified on 7/29/2013 (cpS, COURT STAFF). (Entered: 07/26/2013)

07/26/2013

256 Proposed Order re 255 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE by Edmund G. Brown, Jr. (O'Brien, Jillian) (Filed on 7/26/2013) Modified on 7/29/2013 (cpS, COURT STAFF). (Entered: 07/26/2013)

07/26/2013 257 Minute Entry: Settlement Conference held (Date Filed: 7/26/2013). (ls, COURT STAFF) (Date Filed: 7/26/2013) (Entered: 07/29/2013)

07/29/2013

258 CLERKS NOTICE. Notice is hereby given that the Court, on its own motion, shall take the 233 motion to intervene under submission on the papers. The hearing previously scheduled for Thursday, August 29, 2013, is vacated.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 7/29/2013) (Entered: 07/29/2013)

08/02/2013 259 ORDER by Judge Claudia Wilken GRANTING IN PART DEFENDANTS 250 MOTION TO SEAL (ndr, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)

08/06/2013

260 DOCUMENT E-FILED UNDER SEAL re 259 Order on Administrative Motion to File Under Seal DECLARATION OF J. ZUBIATE IN SUPPORT OF DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A)(Hrvatin, Adriano) (Filed on 8/6/2013) (Entered: 08/06/2013)

08/06/2013

261 DOCUMENT E-FILED UNDER SEAL re 259 Order on Administrative Motion to File Under Seal DECLARATION OF J. BRYAN ELROD IN SUPPORT OF DEFENDANTS' OPPOSITION TO MOTION FOR CLASS CERTIFICATION by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A through B)(Hrvatin, Adriano) (Filed on 8/6/2013) (Entered: 08/06/2013)

08/06/2013

262 Declaration of J. Bryan Elrod in Support of 259 Order on Administrative Motion to File Under Seal, 242 Opposition/Response to Motion, filed byEdmund G. Brown, Jr. (Attachments: # 1 Exhibit A through B)(Related document(s) 259 , 242 ) (Hrvatin, Adriano) (Filed on 8/6/2013) (Entered: 08/06/2013)

08/08/2013

263 REPLY (re 195 MOTION to Certify Class ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A (Strickman Decl.), # 2 Exhibit B (Weills Decl.), # 3 Exhibit C (McMahon Decl.))(Agathocleous, Alexis) (Filed on 8/8/2013) (Entered: 08/08/2013)

08/09/2013

264 RESPONSE (re 255 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE ) and cross-motion to strike declarations of J. Zubiate and J. Bryan Elrod filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order granting cross-motion to strike)(Bremer, Carmen) (Filed on 8/9/2013) (Entered: 08/09/2013)

08/12/2013

265 Minute Entry: Status Conference held(Date Filed: 8/12/2013). Settlement Conference set for 8/16/2013 09:00 AM. in chambers, San Francisco. Settlement Conference set for 8/26/2013 10:30 AM. at Pelican Bay State Prison.(Recording #10:06-10:12.) (glm, COURT STAFF) (Date Filed: 8/12/2013) (Entered: 08/12/2013)

08/15/2013

266 JOINT CASE MANAGEMENT STATEMENT filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr., et al. (Greenberg, Evan) (Filed on 8/15/2013) Modified on 8/16/2013 (cpS, COURT STAFF). (Entered: 08/15/2013)

08/16/2013

267 CLERKS NOTICE. In light of the settlement discussions set for 8/26/2013, the Court sua sponte continues the hearing on the motion for class certification and the further case management conference to 9/26/2013 at 02:00 PM before Hon. Claudia Wilken. Case Management Statement due by 9/19/2013.

(This is a text only docket entry, there is no document associated with this notice.)

(ndr, COURT STAFF) (Filed on 8/16/2013) (Entered: 08/16/2013)
08/16/2013 268 Minute Entry: Status Conference (Date Filed: 8/16/2013). Court met with representatives for CDCR and the AG's Office in chambers(Court Reporter none.) (dt, COURT STAFF) (Date Filed: 8/16/2013) (Entered: 08/16/2013)

08/23/2013

269 RESPONSE (re 264 plaintiffs' cross motion to strike filed byEdmund G. Brown, Jr. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 8/23/2013) Modified on 8/26/2013 (cpS, COURT STAFF). (Entered: 08/23/2013)

08/23/2013

270 Declaration of A. Hrvatin in Support of 269 Opposition/Response to Motion, filed byEdmund G. Brown, Jr. (Attachments: # 1 Exhibit A through D)(Related document(s) 269 ) (Hrvatin, Adriano) (Filed on 8/23/2013) (Entered: 08/23/2013)

08/30/2013

271 REPLY (re 264 Cross-Motion to Strike Elrod and Zubiate Declarations ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 8/30/2013) Modified on 8/30/2013 (cpS, COURT STAFF). (Entered: 08/30/2013)

08/30/2013

272 DECLARATION of Carmen E. Bremer in Support of Reply in Support of Plaintiffs' Cross Motion to Strike Elrod and Zubiate Declarations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bremer, Carmen) (Filed on 8/30/2013) Modified on 8/30/2013 (cpS, COURT STAFF). (Entered: 08/30/2013)

09/03/2013

273 Declaration of Carmen E. Bremer in Support of 271 Reply to Opposition/Response, [Corrected] filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 271 ) (Bremer, Carmen) (Filed on 9/3/2013) (Entered: 09/03/2013)

09/19/2013

274 JOINT CASE MANAGEMENT STATEMENT filed by Edmund G. Brown, Jr., Todd Ashker (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 9/19/2013) Modified on 9/20/2013 (cpS, COURT STAFF). (Entered: 09/19/2013)

09/26/2013

275 Minute Entry: Motion Hearing held on 9/26/2013 before Claudia Wilken (Date Filed: 9/26/2013). ***Motions terminated: 255 MOTION FOR RELIEF FROM NONDISPOSITIVE PRETRIAL ORDER OF MAGISTRATE *** (Court Reporter Raynee Mercado.) (ndr, COURT STAFF) (Date Filed: 9/26/2013) (Entered: 10/01/2013)

10/01/2013 276 TRANSCRIPT ORDER by Edmund G. Brown, Jr for Court Reporter Raynee Mercado. (Hrvatin, Adriano) (Filed on 10/1/2013) (Entered: 10/01/2013)

10/03/2013 277 Supplemental RESPONSE (re 195 MOTION to Certify Class ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis.

(O'Brien, Jillian) (Filed on 10/3/2013) Modified on 10/4/2013 (kcS, COURT STAFF). (Entered: 10/03/2013)

10/07/2013 278 TRANSCRIPT ORDER by Todd Ashker for Court Reporter Raynee Mercado. (Siegel, Daniel) (Filed on 10/7/2013) (Entered: 10/07/2013)

11/18/2013

279 CLERKS NOTICE, Settlement Conference set for 11/19/2013 01:30 PM in Courtroom D, 15th Floor, San Francisco, or telephonically (see instructions in notice). (njvlc2, COURT STAFF) (Filed on 11/18/2013) (Entered: 11/18/2013)

11/19/2013 280 ORDER regarding access to clients. Signed by Magistrate Judge Nandor J. Vadas on November 19, 2013. (njvlc2, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)

11/19/2013

281 Minute Entry: Settlement Conference held with Judge Vadas on 11/19/2013. Further Settlement Conference set for 1/2/2014 01:00 PM in Courtroom D, 15th Floor, San Francisco. (FTR: 1:35pm - 2:04pm.) (lmh, COURT STAFF) (Date Filed: 11/19/2013) (Entered: 11/20/2013)

12/15/2013

282 Transcript of Proceedings held on September 26, 2013, before Judge Claudia Wilken. Court Reporter Raynee H. Mercado, CSR, Telephone number 510-502-6175, cacsr8258@gmail.com, raynee_mercado@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/17/2014. (Related document(s) 278 ) (rhm) (Filed on 12/15/2013) (Entered: 12/15/2013)

12/17/2013

283 MOTION to Compel PLAINTIFFS TO PRODUCE DOCUMENTS filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Responses due by 12/31/2013. Replies due by 1/7/2014. (Attachments: # 1 Declaration MARTINE D'AGOSTINO, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Proposed Order)(D'Agostino, Martine) (Filed on 12/17/2013) Modified on 1/2/2014 (cpS, COURT STAFF). (Entered: 12/17/2013)

12/20/2013

284 NOTICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell of Notice of Withdrawal of Attorney Gregory D. Hull (Obaro, Bambo) (Filed on 12/20/2013) (Entered: 12/20/2013)

12/27/2013

Set/Reset Hearing Telephone Conference set for 1/3/2014 10:30 AM before Magistrate Judge Nandor J. Vadas. Parties shall dial 1-888-6848852 and enter 1868782# as the access code. (njvlc2, COURT STAFF) (Filed on 12/27/2013) (Entered: 12/27/2013)

12/30/2013 285 NOTICE of Appearance by Anne Marie Cappella (Cappella, Anne) (Filed on 12/30/2013) (Entered: 12/30/2013)

12/31/2013

286 RESPONSE (re 283 MOTION to Compel PLAINTIFFS TO PRODUCE DOCUMENTS ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Bremer, Carmen) (Filed on 12/31/2013) (Entered: 12/31/2013)

01/02/2014

287 MOTION to Compel PLAINTIFFS TO PRODUCE DOCUMENTS (CORRECTION OF DOCKET # 283 ) filed byEdmund G. Brown, Jr. Motion Hearing set for 1/28/2014 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 12/31/2013, Reply due by 1/7/2014. (Attachments: # 1 Certificate/Proof of Service proof of service)(D'Agostino, Martine) (Filed on 1/2/2014) Modified on 1/2/2014 (cpS, COURT STAFF). (Entered: 01/02/2014)

01/02/2014

288 Declaration of Martine D'Agostino in Support of 287 MOTION to Compel filed byEdmund G. Brown, Jr. (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, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Related document(s) 287 ) (D'Agostino, Martine) (Filed on 1/2/2014) Modified on 1/3/2014 (cpS, COURT STAFF). (Entered: 01/02/2014)

01/02/2014 289 Proposed Order re 287 MOTION to Compel by Edmund G. Brown, Jr. (D'Agostino, Martine) (Filed on 1/2/2014) Modified on 1/3/2014 (cpS, COURT STAFF). (Entered: 01/02/2014)

01/03/2014

290 Minute Entry: Telephonic Discovery Conference held. Plaintiff's counsel to submit proposed Order to Court for review. (Date Filed: 1/3/2014). (Recording #:Not Recorded.) (rmm2S, COURT STAFF) (Date Filed: 1/3/2014) Modified on 1/7/2014 (cpS, COURT STAFF). (Entered: 01/06/2014)

01/06/2014 291 Discovery Order. Signed by Magistrate Judge Nandor J. Vadas on January 6, 2014. (njvlc2, COURT STAFF) (Filed on 1/6/2014) (Entered: 01/06/2014)

01/07/2014 292 REPLY (re 287 MOTION to Compel ) filed byEdmund G. Brown, Jr. (Attachments: # 1 Certificate/Proof of Service)(D'Agostino, Martine)

(Filed on 1/7/2014) Modified on 1/8/2014 (cpS, COURT STAFF). (Entered: 01/07/2014)

01/08/2014

293 CLERKS NOTICE Telephonic Status Conference set for 1/8/2014 02:00 PM before Magistrate Judge Nandor J. Vadas. Parties are instructed to dial 888.684.8852 and enter access code 1868782 to make their appearances. This is a text-only docket entry. No document is associated with this Notice. (glm, COURT STAFF) (Filed on 1/8/2014) (Entered: 01/08/2014)

01/08/2014

294 Minute Entry: Status Conference held (Date Filed: 1/8/2014). Scheduling Conference set for 1/28/2014 01:00 PM before Magistrate Judge Nandor J. Vadas. (Recording #2:05-2:07.) (glm, COURT STAFF) (Date Filed: 1/8/2014) Modified on 1/9/2014 (cpS, COURT STAFF). (Entered: 01/09/2014)

01/23/2014 295 NOTICE of Appearance by Aaron Y Huang (Huang, Aaron) (Filed on 1/23/2014) (Entered: 01/23/2014)

01/28/2014

296 Minute Entry: Motion Hearing held on 1/28/2014 before Nandor J. Vadas (Date Filed: 1/28/2014) Parties ordered to meet and confer in person and further briefing is ordered. (Recording #1:38-1:49.) (glm, COURT STAFF) (Date Filed: 1/28/2014) Modified on 1/29/2014 (cpS, COURT STAFF). (Entered: 01/29/2014)

01/29/2014

297 CLERKS NOTICE The Telephonic Scheduling Conference scheduled for 1/28/14 was vacated and a Telephonic Scheduling Conference was set for 2/4/2014 at 01:00 PM before Magistrate Judge Nandor J. Vadas. Appropriate parties necessary for scheduling a further settlement conference are to be present on the call. This is a text-only docket entry. No document is associated with this Notice. (glm, COURT STAFF) (Filed on 1/29/2014) (Entered: 01/29/2014)

01/29/2014 298 Order by Magistrate Judge Nandor J. Vadas granting 287 Motion to Compel.(njvlc2, COURT STAFF) (Filed on 1/29/2014) (Entered: 01/29/2014)

02/04/2014

299 Minute Entry: Scheduling Conference held. (Date Filed: 2/4/2014). Settlement Conference set for 2/26/2014 11:00 AM in Courtroom D, 15th Floor, San Francisco. (Recording #1:07-1:12.) (glm, COURT STAFF) (Date Filed: 2/4/2014) (Entered: 02/04/2014)

02/11/2014

300 MOTION to Compel Responses to Plaintiff Ruiz's Interrogatories filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 3/18/2014 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 2/25/2014. Replies due by 3/4/2014. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Compel,

# 2 Exhibit A-E)(Bremer, Carmen) (Filed on 2/11/2014) (Entered: 02/11/2014)

02/13/2014 301 NOTICE of Change In Counsel by Bambo Obaro Withdrawal of Attorney Carmen E. Bremer (Obaro, Bambo) (Filed on 2/13/2014) (Entered: 02/13/2014)

02/25/2014 302 Notice of Withdrawal of Motion Plaintiffs' Motion To Compel Responses To Plaintiff Ruiz's Interrogatories (Huang, Aaron) (Filed on 2/25/2014) (Entered: 02/25/2014)

02/26/2014 304 Amended Minute Entry: Settlement Conference (Date Filed: 2/26/2014). () (lrcS, COURT STAFF) (Date Filed: 2/26/2014) Modified on 3/3/2014 (cpS, COURT STAFF). (Entered: 02/28/2014)

02/27/2014 303 Minute Entry: Settlement Conference (Date Filed: 2/27/2014). (Court Reporter Not Reported.) (lrcS, COURT STAFF) (Date Filed: 2/27/2014) (Entered: 02/27/2014)

03/05/2014

305 CLERKS NOTICE Telephonic Conference, at the parties request, re settlement issues is set for 2/7/2014 09:30 AM before Magistrate Judge Nandor J. Vadas. This is a text-only docket entry. No document is associated with this Notice. (glm, COURT STAFF) (Filed on 3/5/2014) (Entered: 03/05/2014)

03/05/2014

Set/Reset Hearing re 305 Clerks Notice, Telephone Conference set for 3/7/2014 09:30 AM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 3/5/2014) (Entered: 03/05/2014)

03/05/2014

306 MOTION for leave to appear in Pro Hac Vice Carmen Bremer ( Filing fee $ 305, receipt number 0971-8428009.) Filing fee previously paid on 03/05/2014 filed by Todd Ashker. (Attachments: # 1 Exhibit A)(Bremer, Carmen) (Filed on 3/5/2014) Modified on 3/6/2014 (cpS, COURT STAFF). (Entered: 03/05/2014)

03/07/2014 307 Minute Entry: Status Conference held. (Date Filed: 3/7/2014). (Recording #9:38-9:49.) (glm, COURT STAFF) (Date Filed: 3/7/2014) (Entered: 03/07/2014)

03/07/2014 308 Order granting 306 Motion for Pro Hac Vice entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 03/07/2014)

03/13/2014

309 STIPULATION WITH PROPOSED ORDER Staying Discovery filed by Edmund G. Brown, Jr., Todd Ashker, et al (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 3/13/2014) Modified on 3/14/2014 (cpS, COURT STAFF). (Entered: 03/13/2014)

03/14/2014 310 Order granting 309 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 03/14/2014)

04/22/2014 311 NOTICE of Change of Address by Carmen E. Bremer (Bremer, Carmen) (Filed on 4/22/2014) (Entered: 04/22/2014)

04/29/2014

312 CLERKS NOTICE Telephonic Status Conference set for 4/30/2014 02:30 PM before Magistrate Judge Nandor J. Vadas. Parties should dial 888.684.8852 and enter access code 1868782 to make their appearances. This is a text-only docket entry. No document is associated with this Notice. (glm, COURT STAFF) (Filed on 4/29/2014) (Entered: 04/29/2014)

04/30/2014

313 Minute Entry: Status Conference held. Case not settled. (Date Filed: 4/30/2014). (Recording #2:34-2:38.) (glm, COURT STAFF) (Date Filed: 4/30/2014) Modified on 5/5/2014 (cpS, COURT STAFF). (Entered: 05/02/2014)

05/14/2014

314 STIPULATION WITH PROPOSED ORDER Re Case Status and Requesting Further Case Management Conference filed by Edmund G. Brown, Jr., Todd Askher (Hrvatin, Adriano) (Filed on 5/14/2014) Modified on 5/15/2014 (cpS, COURT STAFF). (Entered: 05/14/2014)

05/16/2014 315 Order granting 314 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 05/16/2014)

05/28/2014

316 FURTHER JOINT CASE MANAGEMENT STATEMENT filed by Edmund G. Brown, Jr., Todd Ashker (Hrvatin, Adriano) (Filed on 5/28/2014) Modified on 5/29/2014 (cpS, COURT STAFF). (Entered: 05/28/2014)

06/02/2014

317 ORDER by Judge Claudia Wilken GRANTING IN PART 195 MOTION FOR CLASS CERTIFICATION; DENYING 233 MOTION TO INTERVENE. (ndr, COURT STAFF) (Filed on 6/2/2014) (Entered: 06/02/2014)

06/04/2014

318 Minute Entry and Case Management Order: Further Case Management Conference held on 6/4/2014 before Claudia Wilken (Date Filed: 6/4/2014). Motions due by 7/2/2015; Responses due by 7/30/2015; Replies due by 8/20/2015; Replies due by 8/27/2015; Motion Hearing set for 9/17/2015 02:00 PM before Hon. Claudia Wilken; Pretrial Conference set for 11/18/2015 02:00 PM before Hon. Claudia Wilken. Bench Trial (10 day) set for 12/7/2015 08:30 AM before Hon. Claudia Wilken. (Court Reporter Diane Skillman.) (ndr, COURT STAFF) (Date Filed: 6/4/2014) (Entered: 06/05/2014)

06/06/2014

***See document # 318 . Set/Reset Hearing. Further Case Management Conference set for 9/17/2015 02:00 PM. (cpS, COURT STAFF) (Filed on 6/6/2014) (Entered: 06/06/2014)

08/13/2014 319 Letter . (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 8/13/2014) Modified on 8/15/2014 (cpS, COURT STAFF). (Entered: 08/15/2014)

09/30/2014 320 Joint Letter Re Time-Sensitive Discovery Dispute . (O'Brien, Jillian) (Filed on 9/30/2014) Modified on 10/1/2014 (cpS, COURT STAFF). (Entered: 09/30/2014)

09/30/2014

322 ORDER REFERRING CASE FOR RELATED CASE DETERMINATION RE: C 10-1317 SI. Signed by Judge Susan Illston on 9/30/2014. (ndr, COURT STAFF) (Filed on 9/30/2014) (Entered: 10/01/2014)

10/01/2014

321 CLERK'S NOTICE Status Conference set for 10/2/2014 01:00 PM before Magistrate Judge Nandor J. Vadas. Parties shall make their appearances by telephone by dialing 888-684-8852 and entering access code 1868782. This is a text-only docket entry. No document is associated with this notice. (njvlc2, COURT STAFF) (Filed on 10/1/2014) (Entered: 10/01/2014)

10/02/2014

323 ORDER re 321 Clerk's Notice, 320 Letter filed by Anthony Chaus, Edmund G. Brown, Jr., Greg Lewis, Mathew Cate. Discovery Hearing set for October 2, 2014 at 1:00 p.m., is VACATED; Plaintiff's request for third party presence at Rule 35 examinations is DENIED. Signed by Judge Nandor J. Vadas on 10/02/2104. (njvlc2, COURT STAFF) (Filed on 10/2/2014) (Entered: 10/02/2014)

10/07/2014 324 ORDER RELATING CASE TO C 10-1317 SI (pr). Signed by Judge Claudia Wilken on 10/7/2014. (ndr, COURT STAFF) (Filed on 10/7/2014) (Entered: 10/07/2014)

11/05/2014

325 Joint Discovery Letter Brief Re Plaintiffs Motion to Compel Written Discovery Responses filed by Todd Ashker. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bremer, Carmen) (Filed on 11/5/2014) (Entered: 11/05/2014)

11/06/2014

326 CLERK'S NOTICE Discovery Hearing set for 11/18/2014 at 1:00 pm before Magistrate Judge Nandor J. Vadas. Parties are instructed to dial 888-684-8852 and enter access code 1868782 to make their appearances. This is a text-only docket entry. No document is associated with this notice. (glm, COURT STAFF) (Filed on 11/6/2014) (Entered: 11/06/2014)

11/10/2014

327 CLERK'S NOTICE Discovery Hearing set for 11/18/2014 at 10:00 a.m. before Magistrate Judge Nandor J. Vadas. Time change from 1:00 pm to 10:00 am Phone instructions remain the same. (glm, COURT STAFF) (Filed on 11/10/2014) (Entered: 11/10/2014)

11/10/2014

328 MOTION for leave to appear in Pro Hac Vice Michael D. Bell ( Filing fee $ 305, receipt number 0971-9061406.) filed by Todd Ashker. (Attachments: # 1 Certificate of Good Standing)(Bell, Michael) (Filed on 11/10/2014) (Entered: 11/10/2014)

11/12/2014 329 ORDER by Judge Claudia Wilken Granting 328 Motion for Pro Hac Vice Michael D. Bell (ndr, COURT STAFF) (Filed on 11/12/2014) (Entered: 11/12/2014)

11/13/2014 330 NOTICE of Appearance by Christine Marie Ciccotti Co-Counsel for Defendants (Ciccotti, Christine) (Filed on 11/13/2014) (Entered: 11/13/2014)

11/13/2014

331 MOTION for Extension of Time to Complete Discovery Fact and Expert, MOTION for Extension of Time to File Plaintiffs' Motion for Summary Judgment and Defendants' Opposition/Cross-Motion, and Plaintiffs' Reply/Opposition, MOTION to Continue Further Case Management Conference and all Case-Dispositive Motions filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order Granting Plaintiffs Motion for Entry of Amended Scheduling Order)(Huang, Aaron) (Filed on 11/13/2014) (Entered: 11/13/2014)

11/13/2014

332 Declaration of Carmen Bremer in Support of 331 MOTION for Extension of Time to Complete Discovery Fact and Expert MOTION for Extension of Time to File Plaintiffs' Motion for Summary Judgment and Defendants' Opposition/Cross-Motion, and Plaintiffs' Reply/Opposition MOTION to Continue Further Case Management Conference and all Case-Dispositive Motions filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (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, # 13 Exhibit M)(Related document(s) 331 ) (Huang, Aaron) (Filed on 11/13/2014) (Entered: 11/13/2014)

11/13/2014 333

***FILED IN ERROR, SEE DOCUMENT # 336 ***

Declaration of Michael Bell in Support of 331 MOTION for Extension of Time to Complete Discovery Fact and Expert MOTION for Extension of Time to File Plaintiffs' Motion for Summary Judgment and Defendants' Opposition/Cross-Motion, and Plaintiffs' Reply/Opposition MOTION to Continue Further Case Management Conference and all Case-Dispositive Motions filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A)(Related document(s) 331 ) (Huang, Aaron) (Filed on 11/13/2014) Modified on 11/17/2014 (cpS, COURT STAFF). (Entered: 11/13/2014)

11/13/2014

334 MOTION for Leave to File Partial Summary Judgment filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Huang, Aaron) (Filed on 11/13/2014) Modified on 11/14/2014 (cpS, COURT STAFF). (Entered: 11/13/2014)

11/13/2014

335 Declaration of Alexis Agathocleous in Support of 334 MOTION for Leave to File Partial Summary Judgment filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 334 ) (Huang, Aaron) (Filed on 11/13/2014) Modified on 11/14/2014 (cpS, COURT STAFF). (Entered: 11/13/2014)

11/14/2014

336 Declaration of Michael Bell in Support of 331 MOTION for Extension of Time to Complete Discovery Fact and Expert MOTION for Extension of Time to File Plaintiffs' Motion for Summary Judgment and Defendants' Opposition/Cross-Motion, and Plaintiffs' Reply/Opposition MOTION to Continue Further Case Management Conference and all Case-Dispositive Motions CORRECTION OF DOCKET # 333 filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A)(Related document(s) 331 ) (Huang, Aaron) (Filed on 11/14/2014) (Entered: 11/14/2014)

11/17/2014

337 RESPONSE (re 334 MOTION for Leave to File Partial Summary Judgment ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/17/2014) (Entered: 11/17/2014)

11/18/2014

338 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Discovery Hearing held on 11/18/2014. Plaintiff's attorney to prepare Proposed Order and submit to defense counsel for review. Proposed Order due 11/21/14 4:00 pm(Date Filed: 11/18/2014)FTR Time 10:09-10:56. Plaintiff Attorney Carmen Bremer by phone. Defendant Attorney Audriano Hrvatin and Jay Russell both by phone and Simone Renteria for CDCR. This is a text only Minute Entry (glm, COURT STAFF) Modified on 11/20/2014 (cpS, COURT STAFF). (Entered: 11/19/2014)

11/20/2014

339 ORDER by Judge Claudia Wilken GRANTING IN PART PLAINTIFFS 331 MOTION TO AMEND THE SCHEDULE AND DENYING PLAINTIFFS 334 MOTION FOR LEAVE TO FILE A MOTION FOR PARTIAL SUMMARY JUDGMENT. (ndr, COURT STAFF) (Filed on 11/20/2014) (Entered: 11/20/2014)

11/21/2014 340 ORDER by Judge Nandor J. Vadas granting in part and denying in part 325 Discovery Letter Brief (njvlc2S, COURT STAFF) (Filed on 11/21/2014) (Entered: 11/21/2014)

12/05/2014

341 Joint Letter Brief filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Ciccotti, Christine) (Filed on 12/5/2014) Modified on 12/8/2014 (cpS, COURT STAFF). Modified on 12/12/2014 (rcsS, COURT STAFF). (Entered: 12/05/2014)

12/08/2014

342 ORDER Discovery Hearing set for 12/9/2014 at 11:00 before Magistrate Judge Nandor J. Vadas. Signed by Judge Nandor Vadas on 12/8/2014. (njvlc1, COURT STAFF) (Filed on 12/8/2014) (Entered: 12/08/2014)

12/09/2014

344 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Discovery Hearing held on 12/9/2014. Defense counsel to prepare Order.FTR Time 11:00-11:08. Plaintiff Attorney Carmen Bremer by phone. Defendant Attorney Christine Cicotti, Martine D'Agostino by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 12/09/2014) Modified on 12/11/2014 (cpS, COURT STAFF). (Entered: 12/10/2014)

12/10/2014

343 Proposed Order re 341 Letter Brief re Defendants' Request to Videotape Haney Interviews by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Ciccotti, Christine) (Filed on 12/10/2014) (Entered: 12/10/2014)

12/12/2014

345 MOTION for Leave to File Supplemental Complaint filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A: Proposed Supplemental Complaint, # 2 Proposed Order)(Meeropol, Rachel) (Filed on 12/12/2014) (Entered: 12/12/2014)

12/12/2014 346 ORDER by Judge Nandor J. Vadas granting 341 Motion for Discovery (njvlc2, COURT STAFF) (Filed on 12/12/2014) (Entered: 12/12/2014)

12/12/2014

347 STIPULATION WITH PROPOSED ORDER Extending Briefing Schedule filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr. (Huang, Aaron) (Filed on 12/12/2014) Modified on 12/15/2014 (cpS, COURT STAFF). (Entered: 12/12/2014)

12/12/2014

348 Declaration of Carmen Bremer in Support of 347 STIPULATION WITH PROPOSED ORDER Extending Briefing Schedule filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 347 ) (Huang, Aaron) (Filed on 12/12/2014) (Entered: 12/12/2014)

12/15/2014 349 Order granting 347 Stipulation entered by Hon. Claudia Wilken. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 12/15/2014)

12/15/2014

Reset Deadlines as to 345 MOTION for Leave to File Supplemental Complaint (see docket no. 349 ): Responses due by 1/15/2015; Replies due by 1/29/2015; Motion Hearing set for 2/12/2015 02:00 PM before Hon.

Claudia Wilken. (ndr, COURT STAFF) (Filed on 12/15/2014) (Entered: 12/15/2014)

12/19/2014

350 Ex Parte Discovery Letter Brief re Plaintiffs' Motion to Compel Further Discovery Responses filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' December 19, 2014 Motion to Compel Written Discovery Responses)(Bremer, Carmen) (Filed on 12/19/2014) (Entered: 12/19/2014)

12/19/2014 351 Discovery Letter Brief filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/19/2014) (Entered: 12/19/2014)

12/22/2014

352 ORDER by Judge Nandor J. Vadas granting in part and denying in part 350 Discovery Letter Brief; granting in part and denying in part 351 Discovery Letter Brief (njvlc2, COURT STAFF) (Filed on 12/22/2014) (Entered: 12/22/2014)

12/23/2014

353 MOTION to Amend/Correct 339 Order on Motion for Extension of Time to Complete Discovery, Order on Motion for Extension of Time to File, Order on Motion to Continue, Order on Motion for Leave to File filed by Todd Ashker. Responses due by 1/6/2015. Replies due by 1/13/2015. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 12/23/2014) (Entered: 12/23/2014)

12/29/2014

354 Response re 353 MOTION to Amend/Correct 339 Order on Motion for Extension of Time to Complete Discovery, Order on Motion for Extension of Time to File, Order on Motion to Continue, Order on Motion for Leave to File byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service)(D'Agostino, Martine) (Filed on 12/29/2014) (Entered: 12/29/2014)

12/29/2014

355 Declaration of Martine N. D'Agostino in Support of 354 Response, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A)(Related document(s) 354 ) (D'Agostino, Martine) (Filed on 12/29/2014) (Entered: 12/29/2014)

12/30/2014

356 Letter Brief Joint filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 12/30/2014) Modified on 1/7/2015 (msr, COURT STAFF). Modified on 1/30/2015 (msr, COURT STAFF). (Entered: 12/30/2014)

12/31/2014

357 ORDER Discovery Hearing set for 1/5/2015 at 1:00 pm in Courtroom D before Magistrate Judge Nandor J. Vadas. Signed by Judge Nandor Vadas on 12/31/2014. (njvlc1, COURT STAFF) (Filed on 12/31/2014) (Entered: 12/31/2014)

01/05/2015

358 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Discovery Hearing held on 1/5/2015. FTR Time 1:10-1:31 p.m. Plaintiff Attorney Bambo Obaro. Defendant Attorney Adriano Hrvatin, Jay C. Russell. (mklS, COURT STAFF) (Date Filed: 1/5/2015) Modified on 1/7/2015 (kcS, COURT STAFF). (Entered: 01/06/2015)

01/07/2015 359 ORDER by Judge Nandor J. Vadas granting in part and denying in part 356 Motion for Discovery (njvlc2, COURT STAFF) (Filed on 1/7/2015) (Entered: 01/07/2015)

01/12/2015

360 MOTION for Leave to File Supplemental Brief in Support of Plaintiff's Motion for Entry of Amended Scheduling Order filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A: Supplemental Brief in Support of Plaintiff's Motion for Entry of Amended Scheduling Order, # 2 Exhibit B: Declaration of Carmen E. Bremer in Support of Supplemental Brief in Support of Plaintiffs' Motion to Amend Scheduling Order, # 3 Proposed Order)(Bremer, Carmen) (Filed on 1/12/2015) (Entered: 01/12/2015)

01/15/2015 361 NOTICE of Appearance by Gregory Hull as Attorney of Record (Hull, Gregory) (Filed on 1/15/2015) (Entered: 01/15/2015)

01/15/2015

362 RESPONSE (re 345 MOTION for Leave to File Supplemental Complaint ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 1/15/2015) (Entered: 01/15/2015)

01/16/2015

363 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Enforce the Court's December 22, 2014 Discovery Order filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 1/16/2015) (Entered: 01/16/2015)

01/16/2015

364 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Compel filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 1/16/2015) (Entered: 01/16/2015)

01/16/2015

365 Declaration of Carmen E. Bremer in Support of 364 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Compel, 363 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Enforce the Court's December 22, 2014 Discovery Order filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 364 , 363 ) (Bremer, Carmen) (Filed on 1/16/2015) (Entered: 01/16/2015)

01/16/2015

366 RESPONSE (re 360 MOTION for Leave to File Supplemental Brief in Support of Plaintiff's Motion for Entry of Amended Scheduling Order ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 1/16/2015) (Entered: 01/16/2015)

01/16/2015

367 Proposed Order re 360 MOTION for Leave to File Supplemental Brief in Support of Plaintiff's Motion for Entry of Amended Scheduling Order by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 1/16/2015) Modified on 1/20/2015 (kcS, COURT STAFF). (Entered: 01/16/2015)

01/20/2015

368 CLERK'S NOTICE Discovery Hearing set for 1/28/2015 at 10:00 a.m. before Magistrate Judge Nandor J. Vadas. Counsel for the parties shall, on or before 1/23/15, meet IN PERSON, in a good faith attempt to resolve the disputes. Defendants' response to disputes is due no later than 4:00 pm on 1/26/15. Parties should make their appearances by dialing 888-684-8852 and entering access code 1868782. This is a text-only docket entry. (glm, COURT STAFF) (Filed on 1/20/2015) (Entered: 01/20/2015)

01/21/2015

369 ORDER by Judge Claudia Wilken AMENDING SCHEDULE and GRANTING ( 353 , 360 ) MOTION FOR LEAVE TO FILE A SUPPLEMENTAL BRIEF. (ndr, COURT STAFF) (Filed on 1/21/2015) (Entered: 01/21/2015)

01/21/2015

370 Supplemental Brief in Support of Plaintiffs' Motion for Entry of Amended Scheduling Order [Motion for Leave to File granted 1/21/15] filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 1/21/2015) (Entered: 01/21/2015)

01/21/2015

371 Declaration of Carmen E. Bremer in Support of 370 Supplemental Brief, in Support of Plaintiffs' Motion for Entry of Amended Scheduling Order filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 370 ) (Bremer, Carmen) (Filed on 1/21/2015) (Entered: 01/21/2015)

01/23/2015 372 Letter from CRD to Mr. Gresham. (ndr, COURT STAFF) (Filed on 1/23/2015) (Entered: 01/23/2015)

01/26/2015

373 MOTION for Extension of Time to File Defendants Response Plaintiffs' Discovery Motions per 368 Court Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 1/26/2015) (Entered: 01/26/2015)

01/27/2015 374 ORDER by Judge Nandor J. Vadas granting 373 Motion for Extension of Time to File (njvlc2, COURT STAFF) (Filed on 1/27/2015) (Entered: 01/27/2015)

01/27/2015

375 RESPONSE (re 364 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Compel, 363 Ex Parte Discovery Letter Brief re Plaintiffs Motion to Enforce the Court's December 22, 2014 Discovery Order ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 1/27/2015) (Entered: 01/27/2015)

01/28/2015

376 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Discovery Hearing held on 1/28/2015.FTR Time 10:12-11:00. Plaintiff Attorney Carmen Bremer and Carol Strickman by phone. Defendant Attorney Jay Russell and Martine D'Agostino by phone. Attachment Minutes.(glm, COURT STAFF) (Date Filed: 1/28/2015) (Entered: 01/28/2015)

01/29/2015

377 REPLY (re 345 MOTION for Leave to File Supplemental Complaint ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A)(Meeropol, Rachel) (Filed on 1/29/2015) (Entered: 01/29/2015)

01/30/2015

378 ORDER by Judge Nandor J. Vadas granting in part and denying in part 363 Discovery Letter Brief; granting in part and denying in part 364 Discovery Letter Brief (njvlc2, COURT STAFF) (Filed on 1/30/2015) (Entered: 01/30/2015)

02/05/2015 379 Mail sent to Michael Ishmael Gresham returned as undeliverable re 372 Letter. (cpS, COURT STAFF) (Filed on 2/5/2015) (Entered: 02/05/2015)

02/12/2015

380 Minute Entry for proceedings held before Hon. Claudia Wilken. Time: 2:08-2:57 p.m. Court Reporter: Kathy Wyatt. Plaintiff Attorney: Jules Lobel, Carol Strickman, Marilyn McMahon. Defendant Attorney: Adriano Hrvatin, Martine D. Agostino. Motion Hearing held on 2/12/2015 re 345 MOTION for Leave to File Supplemental Complaint filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. The Court indicates it is inclined to grant the Motion for Leave to File Supplemental Complaint. Defendant may submit three pages of additional briefing by Friday, February 20, 2015; Plaintiffs may file a one page response by Tuesday, February 24, 2015. The motion is argued and submitted by the parties, and by the Court. Written order to follow. Defendants shall file any Motion to Dismiss the supplemental complaint within 28 days on a normal briefing schedule.

(This is a text only minute entry, there is no document associated with this entry.)

(mklS, COURT STAFF) (Date Filed: 2/12/2015) (Entered: 02/13/2015)

02/13/2015

381 TRANSCRIPT ORDER by Todd Ashker, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell for Court Reporter Katherine Wyatt. (Meeropol, Rachel) (Filed on 2/13/2015) (Entered: 02/13/2015)

02/18/2015 382 TRANSCRIPT ORDER by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis for Court Reporter Katherine Wyatt. (Hrvatin, Adriano) (Filed on 2/18/2015) (Entered: 02/18/2015)

02/20/2015

383 Supplemental Opposition (re 345 MOTION for Leave to File Supplemental Complaint ) filed byEdmund G. Brown, Jr. (Hrvatin, Adriano) (Filed on 2/20/2015) Modified on 2/23/2015 (cpS, COURT STAFF). (Entered: 02/20/2015)

02/24/2015

384 Supplemental REPLY (re 345 MOTION for Leave to File Supplemental Complaint ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Agathocleous, Alexis) (Filed on 2/24/2015) Modified on 2/25/2015 (cpS, COURT STAFF). (Entered: 02/24/2015)

02/24/2015

385 Transcript of Proceedings held on 2-12-15, before Judge Claudia Wilken. Court Reporter/Transcriber Katherine Wyatt, Telephone number 925-2125224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/26/2015. (kpw, COURT STAFF) (Filed on 2/24/2015) (Entered: 02/24/2015)

03/03/2015 386 NOTICE of Appearance by Samuel Rand Miller (Miller, Samuel) (Filed on 3/3/2015) (Entered: 03/03/2015)

03/09/2015 387 ORDER by Judge Claudia Wilken granting 345 Motion for Leave to File a Supplemental Complaint. (mklS, COURT STAFF) (Filed on 3/9/2015) (Entered: 03/09/2015)

03/11/2015

388 AMENDED COMPLAINT (Supplemental) against Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Filed byLuis Esquivel, Danny Troxell, Todd Ashker, Gabriel Reyes, Richard Johnson, Ronnie Dewberry, Paul Redd, George Ruiz, Jeffrey Franklin, George Franco. (Agathocleous, Alexis) (Filed on 3/11/2015) (Entered: 03/11/2015)

03/23/2015

389 Unopposed MOTION for Extension of Time to File Respond to Plaintiffs' Supplemental Complaint filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 3/23/2015) Modified on 3/24/2015 (cpS, COURT STAFF). (Entered: 03/23/2015)

03/23/2015

390 Declaration of Adriano Hrvatin in Support of 389 MOTION for Extension of Time to File Respond to Plaintiffs' Supplemental Complaint filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 389 ) (Hrvatin, Adriano) (Filed on 3/23/2015) Modified on 3/24/2015 (cpS, COURT STAFF). (Entered: 03/23/2015)

03/23/2015

391 Proposed Order re 389 MOTION for Extension of Time to File Respond to Plaintiffs' Supplemental Complaint by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 3/23/2015) Modified on 3/24/2015 (cpS, COURT STAFF). (Entered: 03/23/2015)

03/24/2015

392 ORDER AMENDING SCHEDULE. The deadline for expert discovery is amended to May 29, 2015. Signed by Judge Claudia Wilken on 3/23/2015. (mklS, COURT STAFF) (Filed on 3/24/2015) (Entered: 03/24/2015)

03/24/2015

393 ORDER by Judge Claudia Wilken granting 389 Defendants' Unopposed Motion for Extension of Time to Respond to Plaintiffs' Supplemental Complaint. (mklS, COURT STAFF) (Filed on 3/24/2015) (Entered: 03/24/2015)

04/09/2015

394 MOTION to Amend/Correct the Scheduling Order, or in the Alternative, Motion to Strike filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Motion Hearing set for 5/14/2015 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/23/2015. Replies due by 4/30/2015. (Attachments: # 1 Declaration Martine D'Agostino, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Proposed Order)(D'Agostino, Martine) (Filed on 4/9/2015) Modified on 4/10/2015 (cpS, COURT STAFF). (Entered: 04/09/2015)

04/17/2015 395 CLERK'S NOTICE Settlement Conference set for 5/28/2015 09:00 AM in Courtroom D, 15th Floor, San Francisco. (glm, COURT STAFF) (Filed on 4/17/2015) (Entered: 04/17/2015)

04/23/2015

396 RESPONSE (re 394 MOTION to Amend/Correct the Scheduling Order, or in the Alternative, Motion to Strike ) or, in the alternative, motion to strike, and cross motion to further amend scheduling order filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 4/23/2015) (Entered: 04/23/2015)

04/23/2015

397 Declaration of Carmen E. Bremer in Support of 396 Opposition/Response to Motion, filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related

document(s) 396 ) (Bremer, Carmen) (Filed on 4/23/2015) (Entered: 04/23/2015)

04/30/2015

398 RESPONSE (re 394 MOTION to Amend/Correct the Scheduling Order, or in the Alternative, Motion to Strike ) filed byEdmund G. Brown, Jr. (Attachments: # 1 Certificate/Proof of Service)(D'Agostino, Martine) (Filed on 4/30/2015) (Entered: 04/30/2015)

04/30/2015

399 Declaration of Martine D'Agostino in Support of 398 Opposition/Response to Motion, filed byEdmund G. Brown, Jr. (Attachments: # 1 Exhibit A)(Related document(s) 398 ) (D'Agostino, Martine) (Filed on 4/30/2015) (Entered: 04/30/2015)

05/07/2015 400 Order by Hon. Claudia Wilken granting 394 Motion to Amend the Scheduling Order,.(tmi, COURT STAFF) (Filed on 5/7/2015) (Entered: 05/07/2015)

05/07/2015 401 ORDER Granting 396 Plaintiffs' Cross Motion to Further Amend Scheduling Order. Signed by Judge Claudia Wilken on 05/07/2015. (tmi, COURT STAFF) (Filed on 5/7/2015) (Entered: 05/07/2015)

05/15/2015 402 ***DOCUMENT TEMPORARY LOCK PER CHAMBERS AND COUNSEL'S REQUEST***

Letter from Stewart Manago re moves for judicial intervention. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 5/15/2015) Modified on 5/20/2015 (cpS, COURT STAFF). (Entered: 05/20/2015)

05/22/2015

403 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Pursuant to requests of the parties, the settlement conference previously set for 5/28/2015 is VACATED. Telephonic Status Conference set for 6/9/2015 01:45 PM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 5/22/2015) (Entered: 05/22/2015)

06/09/2015

404 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference held on 6/9/2015. Settlement Conference set for 6/16/2015 09:00 AM. Parties will meet in courtroom D. Defense counsel will assist the court in making arrangements with the prison where Plaintiff's are housed for two Plaintiffs to be present for the conference by phone.FTR Time 1:48-1:53. Plaintiff Attorney Jules Lobel and Carmen Bremer both by phone. Defendant Attorney Audriano Hrvatin by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 6/10/2015) (Entered: 06/10/2015)

06/16/2015 405 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 6/16/2015.FTR Time: Not Recorded. Plaintiff Attorney(s): Jules Lobel; Gregory D. Hull; Carol

Strickman. Defendant Attorney(s): Adriano Hrvatin; Benjamin T. Rice; Jay C. Russell. Interpreter: None Needed.Attachment: Minutes of Settlement Conference; Further Settlement Conference scheduled for 6/29/2015 @ 10:00 A.M. by Video Conferencing; See Minutes for further Instructions.(rmm2S, COURT STAFF) (Date Filed: 6/17/2015) Modified on 6/18/2015 (cpS, COURT STAFF). (Entered: 06/17/2015)

06/17/2015

Set/Reset Hearing re 405 Settlement Conference: Further Settlement Conference by Video Conferencing set for 6/29/2015 10:00 AM, before Magistrate Judge Nandor J. Vadas. (rmm2S, COURT STAFF) (Filed on 6/17/2015) (Entered: 06/17/2015)

06/26/2015

406 MOTION for Leave to File Excess Pages filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order and Stipulation)(Bremer, Carmen) (Filed on 6/26/2015) (Entered: 06/26/2015)

06/29/2015 407 Order by Hon. Claudia Wilken granting 406 Stipulated Motion for Leave to File Excess Pages.(tmiS, COURT STAFF) (Filed on 6/29/2015) (Entered: 06/29/2015)

06/29/2015

408 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 6/29/2015. Parties appeared by video conference and by phone. Parties will continue settlement discussions, and defense counsel will report status to Judge Vadas by email. Plaintiff Attorneys Carol Strickman, Jules Lobel and Greg Hull. Defendant Attorneys Audriano Hrvatin, Jay Russell, Secretary Beard for CDCR, Ben Rice for CDCR and Simone Reneria for CDCR. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 6/29/2015) Modified on 6/30/2015 (cpS, COURT STAFF). (Entered: 06/30/2015)

07/02/2015

409 STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Summary Judgment Motion filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 7/2/2015) (Entered: 07/02/2015)

07/02/2015 410 ORDER by Judge Claudia Wilken granting 409 Stipulation that Plaintiffs motion for summary judgment shall be filed on 7/16/2015. (ig, COURT STAFF) (Filed on 7/2/2015) (Entered: 07/02/2015)

07/06/2015 411 MOTION to Relate Case filed by Bobby Lopez, Marco Topete, John Myles, Ricardo Roldan, John Gonzales, Ronaldo Medrano Ayala. (Siegel, Daniel) (Filed on 7/6/2015) (Entered: 07/06/2015)

07/06/2015 412 Declaration of Dan Siegel in Support of 411 MOTION to Relate Case filed byRonaldo Medrano Ayala, John Gonzales, Bobby Lopez, John Myles,

Ricardo Roldan, Marco Topete. (Related document(s) 411 ) (Siegel, Daniel) (Filed on 7/6/2015) (Entered: 07/06/2015)

07/08/2015 413 Proposed Order re 411 MOTION to Relate Case by Ronaldo Medrano Ayala, John Gonzales, Bobby Lopez, John Myles, Ricardo Roldan, Marco Topete. (Siegel, Daniel) (Filed on 7/8/2015) (Entered: 07/08/2015)

07/08/2015 414 RESPONSE (re 411 MOTION to Relate Case ) filed byEdmund G. Brown, Jr. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Ciccotti, Christine) (Filed on 7/8/2015) (Entered: 07/08/2015)

07/13/2015

415 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 7/13/2015. Plaintiff Attorney Jules Lobel by phone. Defendant Attorney Audriano Hrvatin by phone. Parties to inform the court of their progress the week of July 27, 2015 while Judge Vadas is in San Francisco.This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 7/13/2015) Modified on 7/15/2015 (cpS, COURT STAFF). (Entered: 07/14/2015)

07/15/2015

416 STIPULATION WITH PROPOSED ORDER Regarding Summary Judgment Briefing Schedule filed by Edmund G. Brown, Jr., Todd Ashker (Hrvatin, Adriano) (Filed on 7/15/2015) Modified on 7/16/2015 (cpS, COURT STAFF). (Entered: 07/15/2015)

07/16/2015 417 ORDER by Judge Claudia Wilken granting 416 Stipulation Regarding Summary Judgment Briefing Schedule. (mklS, COURT STAFF) (Filed on 7/16/2015) (Entered: 07/16/2015)

07/20/2015

418 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Further Settlement Conference set for 7/30/2015 01:00 PM in Courtroom D, 15th Floor, San Francisco. (glm, COURT STAFF) (Filed on 7/20/2015) (Entered: 07/20/2015)

07/30/2015

419 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 8/3/2015.FTR Time: Not Recorded. Plaintiff Attorney: Jules Lobel; Sam Miller. Defendant Attorney: Jay C. Russell; Adriano Hrvatin. Interpreter: None Needed.Attachment: Settlement Conference minutes; Case did not settle. Further Settlement Conference to be scheduled.(rmm2S, COURT STAFF) (Date Filed: 7/30/2015) Modified on 8/4/2015 (cpS, COURT STAFF). (Entered: 08/03/2015)

08/17/2015

420 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The parties are hereby notified that the September 17, 2015 case management conference is continued to September 22, 2015 at 2:30 p.m. Joint Case Management Statement due by 9/15/2015. Case Management Conference set for 9/22/2015 02:30 PM in Courtroom 2, 4th Floor, Oakland. (This is a text-only entry generated by the court. There is

no document associated with this entry.) (napS, COURT STAFF) (Filed on 8/17/2015) (Entered: 08/17/2015)

08/17/2015 421 RELATED CASE ORDER by Judge Claudia Wilken granting 411 Motion to Relate Case. (napS, COURT STAFF) (Filed on 8/17/2015) (Entered: 08/17/2015)

08/19/2015

422 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Telephonic Status Conference set for 9/8/2015 10:00 AM before Magistrate Judge Nandor J. Vadas. Parties should dial 888-684-8852 and enter access code 1868782 to make their appearances. (glm, COURT STAFF) (Filed on 8/19/2015) (Entered: 08/19/2015)

08/31/2015

423 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 8/31/2015. Plaintiff Attorney Jules Lobel by phone. Defendant Attorneys Adriano Hrvatin and Jay Russell both by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 8/28/2015) (Entered: 08/31/2015)

09/01/2015

424 Joint MOTION for : (1) Conditional Certification of Settlement Class; (2) Preliminary Approval of Settlement Agreement; (3) Stay of the Proceedings; (4) Notice to Class Members; (5) Schedule Setting Fairness Hearing for Final Approval filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/6/2015 02:00 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/15/2015. Replies due by 9/22/2015. (Attachments: # 1 Declaration of Jules Lobel in Support of Joint Motion, # 2 Exhibit 1 to Lobel Decl. (Part 1 of 2), # 3 Exhibit 1 to Lobel Decl. (Part 2 of 2), # 4 Exhibit 2 to Lobel Decl., # 5 Exhibit 3 to Lobel Decl., # 6 Proposed Order)(Agathocleous, Alexis) (Filed on 9/1/2015) Modified on 9/2/2015 (cpS, COURT STAFF). (Entered: 09/01/2015)

09/02/2015

425 STIPULATION WITH PROPOSED ORDER Vacating September 22, 2015 Case Management Conference filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Askher, et al. (Hrvatin, Adriano) (Filed on 9/2/2015) Modified on 9/3/2015 (cpS, COURT STAFF). (Entered: 09/02/2015)

09/03/2015

426 CLERK'S NOTICE The Status Conference previously set for 9/8/15 is continued to 9/16/2015 02:00 PM before Magistrate Judge Nandor J. Vadas in Courtroom 14 on the 18th Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 9/3/2015) (Entered: 09/03/2015)

09/08/2015 427 STIPULATION AND ORDER VACATING SEPTEMBER 22, 2015 CASE MANAGEMENT CONFERENCE by Hon. Claudia Wilken

granting 425 Stipulation.(napS, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/08/2015)

09/08/2015 428 Letter from Kenneth Lee Taylor re final decision of settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/8/2015) (Entered: 09/09/2015)

09/11/2015 429 Letter from Kenneth Lee Taylor re supplemental information in support of previous letter. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/11/2015) (Entered: 09/11/2015)

09/14/2015 430 Letter from Kenneth Lee Tayor re third and final letter regarding settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/14/2015) (Entered: 09/14/2015)

09/16/2015

431 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference held on 9/16/2015. Status Conference re: Preliminary Approval of Settlement set for 10/26/2015 03:00 PM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas.FTR Time Not Reported. (klhS, COURT STAFF) (Date Filed: 9/16/2015) (Entered: 09/16/2015)

09/18/2015 432 Letter from Robert Cole re settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/18/2015) (Entered: 09/21/2015)

09/21/2015 433 Letter from Johneil Bailey re objections to the settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/21/2015) Modified on 9/22/2015 (cpS, COURT STAFF). (Entered: 09/22/2015)

09/25/2015

434 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-9866521.) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit Certificate of Good Standing)(Samuel-Frank, Somalia) (Filed on 9/25/2015) (Entered: 09/25/2015)

09/25/2015

435 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 0971-9866979.) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit Certificate of Good Standing)(Wheeler, Alexandra) (Filed on 9/25/2015) (Entered: 09/25/2015)

09/28/2015 436 Order by Hon. Claudia Wilken granting 434 Motion for Pro Hac Vice for Somalia L. Samuel-Frank.(napS, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)

09/28/2015 437 Order by Hon. Claudia Wilken granting 435 Motion for Pro Hac Vice for Alexandra Azure Wheeler.(napS, COURT STAFF) (Filed on 9/28/2015) (Entered: 09/28/2015)

10/02/2015 438 ORDER. Signed by Judge Claudia Wilken on 10/2/15. (napS, COURT STAFF) (Filed on 10/2/2015) (Entered: 10/02/2015)

10/05/2015

439 CLERK'S NOTICE. Notice is hereby given that the Court has approved attorney Jules Lobel and Samuel Miller's request to appear by telephone. Counsel shall contact CourtCall at (866) 582-6878 to make arrangements for the telephonic appearances no later than close of business on 10/5/15. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jebS, COURT STAFF) (Filed on 10/5/2015) Modified on 10/5/2015 (jebS, COURT STAFF). (Entered: 10/05/2015)

10/05/2015

441 MOTION for Judicial Intervention, and Temporary Restraining Order filed by Stewart Manago. Responses due by 10/19/2015. Replies due by 10/26/2015. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/5/2015) (Entered: 10/09/2015)

10/06/2015

440 Minute Entry for proceedings held before Hon. Claudia Wilken: Joint Motion for Preliminary Approval of Settlement held on 10/6/2015 re 424 Joint MOTION for : (1) Conditional Certification of Settlement Class; (2) Preliminary Approval of Settlement Agreement; (3) Stay of the Proceedings; (4) Notice to Class Members; (5) Schedule Setting Fairness Hearing for Final Approval. Final Hearing set for 1/26/2016 at 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Court Reporter Diane Skillman. (jebS, COURT STAFF) (Date Filed: 10/6/2015) (Entered: 10/08/2015)

10/08/2015 444 Letter from Andrew R. Lopez re comments on settlement fairness. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/8/2015) (Entered: 10/14/2015)

10/09/2015

Pretrial Conference and Jury Trial Terminated re 440 Motion Hearing. (jebS, COURT STAFF) (Filed on 10/9/2015) (Entered: 10/09/2015)

10/09/2015

442 Joint Brief re 424 Joint MOTION for : (1) Conditional Certification of Settlement Class; (2) Preliminary Approval of Settlement Agreement; (3) Stay of the Proceedings; (4) Notice to Class Members; (5) Schedule Setting Fairness Hearing for Final Approval filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Related document(s) 424 ) (Hrvatin, Adriano) (Filed on 10/9/2015) Modified on 10/13/2015 (cpS, COURT STAFF). (Entered: 10/09/2015)

10/09/2015 443 Declaration of Adriano Hrvatin in Support of 442 Brief, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (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)(Related document(s) 442 ) (Hrvatin, Adriano) (Filed on 10/9/2015) (Entered: 10/09/2015)

10/14/2015

445 ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT by Judge Claudia Wilken re 424 Motion for Settlement. (jebS, COURT STAFF) (Filed on 10/14/2015) (Entered: 10/14/2015)

10/15/2015

***See order 445 . Set/Reset Hearing. Final Fairness Hearing set for 1/26/2016 02:30 PM. (cpS, COURT STAFF) (Filed on 10/15/2015) (Entered: 10/15/2015)

10/19/2015

446 NOTICE of Class Member Concern Regarding Defendants' Failure to Address and Correct Due Process Aspects of Settlement filed by Daniel Treglia (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/19/2015) (Entered: 10/20/2015)

10/22/2015 447 Letter from Derrick Sims re opposition/comments re: fairness of setttlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 10/22/2015) (Entered: 10/22/2015)

10/29/2015 448 NOTICE of Change In Counsel by Carmen E. Bremer (Bremer, Carmen) (Filed on 10/29/2015) (Entered: 10/29/2015)

11/02/2015 449 Letter from Richard Salazar re settlement agreement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/04/2015)

11/02/2015 450 Letter from Michael J. Payan re settlement agreement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/04/2015)

11/02/2015 452 Letter from Moises Osuna re Settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/2/2015) (Entered: 11/04/2015)

11/04/2015 451 Letter from Richard Salazar re settlement agreement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/4/2015) (Entered: 11/04/2015)

11/09/2015 453 Letter from Benito Aguilar re settlement terms. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/9/2015) (Entered: 11/10/2015)

11/10/2015

454 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 11/10/2015. Judge Vadas will attend Coleman tour visit to Pelican Bay State Prison on December 2, 2015. Defense counsel will attempt to facilitate a visit for one member of plaintiff's counsel with said tour. Status Conference hearing set for 11/18/2015 02:00 PM before Magistrate Judge Nandor J. Vadas. Counsel to report to the court availability for regular

monthly meeting as soon as possible. FTR Time 2:06-2:58. Plaintiff Attorney Jules Lobel, Carmen Bremmer and Carol Strickman all by phone. Defendant Attorney Audriano Hrvatin and Jay Russell both by phone with Simone Renteria from CDCR by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 11/10/2015) (Entered: 11/10/2015)

11/16/2015 455 Letter from Sahan Zagsow re settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/16/2015) (Entered: 11/17/2015)

11/18/2015 457 Letter from Jose Velasqquez re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/18/2015) (Entered: 11/19/2015)

11/19/2015 456 Declaration of Sandra Alfaro Regarding Posting of Class Notices and Placement of Documents in Prison Libraries filed byEdmund G. Brown, Jr. (Hrvatin, Adriano) (Filed on 11/19/2015) (Entered: 11/19/2015)

11/19/2015

458 CLERK'S NOTICE The Status Conference that was scheduled for 11/18/2015 was cancelled because the Judge was unavailable. This hearing regarding the implementation of the settlement agreement is rescheduled. Hearing set for 11/20/2015 01:00 PM before Magistrate Judge Nandor J. Vadas.. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 11/19/2015) (Entered: 11/19/2015)

11/19/2015 459 Letter from Ray Dale re settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/19/2015) (Entered: 11/19/2015)

11/19/2015 460 Letter from Jesus K. Faraj re settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 11/19/2015) (Entered: 11/19/2015)

11/20/2015

464 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 11/20/2015. Further Conference set for 12/28/2015 11:00 AM.FTR Time 1:00-1:30. Plaintiff Attorney Carmen E Bremer, Jules Lobel and Carol Strickman all by phone. Defendant Attorney Audriano Hrvatine and Simone Renteria both by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 11/20/2015) (Entered: 11/24/2015)

11/23/2015 461 Letter from Victor Garcia re comments regarding settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/23/2015) (Entered: 11/24/2015)

11/23/2015 462 Letter from Arthur Garcia re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/23/2015) (Entered: 11/24/2015)

11/23/2015 463 Letter from Ramon Mendoza. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/23/2015) (Entered: 11/24/2015)

11/25/2015 465 Letter from Thomas Bliss. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/25/2015) (Entered: 11/30/2015)

12/01/2015 466 OBJECTIONS to the settlement filed by Stewart Manago. (Attachments: # 1 attachments_Part 1, # 2 attachments_Part 2, # 3 Envelope)(cp, COURT STAFF) (Filed on 12/1/2015) (Entered: 12/01/2015)

12/01/2015 467 Letter from Gabriel S. Reyna re comment on the settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/1/2015) (Entered: 12/01/2015)

12/03/2015 468 Letter from Stewart Manago. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/3/2015) (Entered: 12/03/2015)

12/04/2015 470 Letter from Annabelle Parker re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/4/2015) (Entered: 12/14/2015)

12/07/2015 473 Letter from Annabelle Parker on behalf of Tyrone Robinson re settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/7/2015) (Entered: 12/15/2015)

12/07/2015 474 Letter from Tyrone Robinson re settlement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/7/2015) (Entered: 12/15/2015)

12/11/2015

469 TRANSCRIPT ORDER by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell for Court Reporter Diane Skillman. (Cappella, Anne) (Filed on 12/11/2015) (Entered: 12/11/2015)

12/14/2015 471 Letter from Raymund S. Manzanillo re settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/14/2015) Modified on 12/16/2015 (cpS, COURT STAFF). (Entered: 12/15/2015)

12/15/2015 472 Letter from Gilbert Gonzales re M.C. Sayre's response to security checks. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/15/2015) (Entered: 12/15/2015)

12/15/2015 475 Letter from Eric Robles re C.E. Ducart's response to security checks. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 12/15/2015) (Entered: 12/15/2015)

12/16/2015 476 Letter from Robert Spangler. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/16/2015) (Entered: 12/17/2015)

12/22/2015

477 Transcript of Proceedings held on October 6, 2015, before Judge Claudia Wilken. Court Reporter Diane E. Skillman, telephone number 510-4512930, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court

Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 469 Transcript Order ) Release of Transcript Restriction set for 3/21/2016. (Related documents(s) 469 ) (Skillman, Diane) (Filed on 12/22/2015) (Entered: 12/22/2015)

12/23/2015 478 Letter from Anthony R. Barron re comments on the settlement fairness. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/23/2015) (Entered: 12/23/2015)

12/23/2015 479 TRANSCRIPT ORDER by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis for Court Reporter Diane Skillman. (Hrvatin, Adriano) (Filed on 12/23/2015) (Entered: 12/23/2015)

12/24/2015 480 Letter from Misael Corral re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/24/2015) Modified on 12/29/2015 (cpS, COURT STAFF). (Entered: 12/28/2015)

12/28/2015

481 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference held on 12/28/2015.FTR Time: Not Recorded. Plaintiff Attorney(s): Anne B. Weills; Carmen E. Bremer; Jules Lobel. Defendant Attorney(s): Adriano Hrvatin; Patricia J. Lee; Simone Renteira; Jay C. Russell. Attachment: Minutes of Status Conference re Enforcement of Settlement; A further Telephonic Status Conference to be held; Parties to contact Judge Vadas' Courtroom Deputy, Gloria Knudson, to set date in January 2016.(rmm2S, COURT STAFF) (Date Filed: 12/28/2015) (Entered: 12/28/2015)

01/05/2016

482 CLERK'S NOTICE Further Settlement Conference set for 1/28/2016 09:30 AM in Courtroom D, 15th Floor, San Francisco. Court to appear by video conference from Eureka. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 1/5/2016) (Entered: 01/05/2016)

01/06/2016

483 MOTION for Relief from Defendants' Retaliation Against Ashker's Class Action Member Stewart Manago filed by Stewart Manago. Responses due by 1/20/2016. Replies due by 1/27/2016. (Attachments: # 1 Motion (Part 2), # 2 Exhibit A_Part 1, # 3 Exhibit A_Part 2, # 4 Exhibit A_Part 3, # 5 Exhibit A_Part 4, # 6 Exhibit B_Part 1, # 7 Exhibit B_Part 2, # 8 Exhibit B_Part 3, # 9 Exhibit B_Part 4, # 10 Exhibit B_Part 5, # 11 Exhibit C_Part 1, # 12 Exhibit C_Part 2, # 13 Envelope)(cpS, COURT STAFF) (Filed on 1/6/2016) (Entered: 01/06/2016)

01/11/2016 484 Letter from M. Balint re the Ashker Agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 1/11/2016) (Entered: 01/12/2016)

01/12/2016

485 NOTICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell of Joint Motion and Motion for Final Approval of Settlement Agreement (Attachments: # 1 Proposed Order, # 2 Declaration of Jules Lobel, # 3 Exhibit A, Part 1, # 4 Exhibit A, Part 2)(Cappella, Anne) (Filed on 1/12/2016) (Entered: 01/12/2016)

01/13/2016

Electronic filing error. Incorrect event used. Re: 485 Notice (Other), filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker.

The correct event code is: MOTION. Re-posting is required to correct this CM/ECF entry. This correction must be completed no later than 24 hours from receipt of the notification. Please re-file in its entirety.

(cpS, COURT STAFF) (Filed on 1/13/2016) (Entered: 01/13/2016)

01/13/2016

486 Joint Motion and Motion for Final Approval of Settlement Agreement: CORRECTION OF DOCKET # 485 filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order, # 2 Declaration of Jules Lobel, # 3 Exhibit A, Part 1, # 4 Exhibit A, Part 2)(Cappella, Anne) (Filed on 1/13/2016) Modified on 1/14/2016 (cpS, COURT STAFF). (Entered: 01/13/2016)

01/25/2016

487 BRIEF of Amici Curiae in Opposition to Settlement by Phillip A. Murray on behalf of California Correctional Peace Officers Association. (Murray, Phillip) (Filed on 1/25/2016) Modified on 1/26/2016 (cpS, COURT STAFF). (Entered: 01/25/2016)

01/26/2016

488 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT re 486 Brief. Signed by Judge Claudia Wilken on 1/26/16. (jebS, COURT STAFF) (Filed on 1/26/2016) (Entered: 01/27/2016)

01/26/2016

490 Minute Entry for proceedings held before Hon. Claudia Wilken: Motion Hearing held on 1/26/2016. Total Time in Court: 5 Minutes. Court Reporter: Vickie Valine. (jebS, COURT STAFF) (Date Filed: 1/26/2016) (Entered: 02/04/2016)

01/28/2016

489 TRANSCRIPT ORDER by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell for Court Reporter Victoria Valine. (Cappella, Anne) (Filed on 1/28/2016) Modified on 1/28/2016 (oh, COURT STAFF). (Entered: 01/28/2016)

01/28/2016

495 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held by videoconference on 1/28/2016. Plaintiff Attorneys Carmen Bremer, Anne B Weills, Jules Lobel. Defendant Attorney Jay Russell. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 1/28/2016) (Entered: 03/01/2016)

02/05/2016

491 CLERK'S NOTICE Status Conference set for 2/11/2016 01:00 PM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 2/5/2016) (Entered: 02/05/2016)

02/11/2016

492 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference held on 2/11/2016.FTR Time 1:06 - 2:06. Plaintiff Attorney Carmen E. Bremer, Anne Butterfield Weills, Carol Strickman, Jules Lobel. Defendant Attorney Jay C. Russell. (afmS, COURT STAFF) (Date Filed: 2/11/2016) (Entered: 02/11/2016)

02/17/2016

493 Transcript of Proceedings held on January 26, 2016 before Judge Wilken. Court Reporter/Transcriber Victoria L. Valine, CSR, RMR, CRR, victoriavalinecsr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 489 Transcript Order, ) Redaction Request due 3/9/2016. Redacted Transcript Deadline set for 3/21/2016. Release of Transcript Restriction set for 5/17/2016. (Related documents(s) 489 ) (vlv, COURT STAFF) (Filed on 2/17/2016) Modified on 2/18/2016 (cpS, COURT STAFF). (Entered: 02/17/2016)

02/23/2016 494 Letter from Raymund S. Manzanillo re enforcement of terms of the settlement agreement. (Attachments: # 1 Envelope)(cp, COURT STAFF) (Filed on 2/23/2016) (Entered: 02/24/2016)

02/29/2016 499 Letter from Carlos Gueyger re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/29/2016) (Entered: 03/09/2016)

03/01/2016 496 Letter from Raymund S. Manzanillo re enforcement of terms of the settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/1/2016) (Entered: 03/01/2016)

03/03/2016

497 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: In Camera Review Hearing held on 3/3/2016.Defendant Attorneys Jay C. Russell, Patricia J. Lee, Suzan L. Hubbard, and Sandra Alfaro. This is a text only Minute Entry (glm, COURT

STAFF) (Date Filed: 3/3/2016) Modified on 3/9/2016 (cpS, COURT STAFF). (Entered: 03/08/2016)

03/07/2016

500 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 3/7/2016. Further Settlement Conference set for 4/25/2016 10:00 AM. Plaintiff Attorneys Anne Weills, Carol Strickland, Carmen BremerDefendant Attorneys Adriano Hrvatin, Jay Russell and Patricia Lee. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 3/7/2016) (Entered: 03/11/2016)

03/08/2016 498 Letter from Ben Toscano re status of case. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/8/2016) (Entered: 03/09/2016)

03/17/2016 502 Letter from Ralph Avalos re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/17/2016) (Entered: 03/22/2016)

03/18/2016

501 CLERK'S NOTICE At the parties' request, the court resets the time for the Settlement Conference which is set for 4/25/2016 to 11:00 AM. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 3/18/2016) (Entered: 03/18/2016)

03/18/2016 503 Letter from Santos Saldana re Corcoran State Prison has not fulfilled the settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/18/2016) (Entered: 03/22/2016)

03/18/2016 506 Letter from Floyd Nelson re 3A Programming. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/18/2016) (Entered: 03/25/2016)

03/23/2016

504 STIPULATION WITH PROPOSED ORDER for Extension of Time To File Fee Application filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Attachments: # 1 Declaration of Samuel Miller)(Miller, Samuel) (Filed on 3/23/2016) Modified on 3/23/2016 (cpS, COURT STAFF). (Entered: 03/23/2016)

03/24/2016 510 Letter from Guillermo Panameno re in justice and inhumane conditions. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/24/2016) (Entered: 04/05/2016)

03/25/2016

505 STIPULATION AND ORDER FOR EXTENSION OF TIME TO FILE FEE APPLICATION by Hon. Claudia Wilken granting 504 Stipulation. Deadline for Plaintiffs to file their application for attorneys fees and costs is hereby extended up to and including April 27, 2016. (jebS, COURT STAFF) (Filed on 3/25/2016) (Entered: 03/25/2016)

04/04/2016

507 NOTICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell of Withdrawal of Attorney Michael D. Bell (Cappella, Anne) (Filed on 4/4/2016) (Entered: 04/04/2016)

04/04/2016

508 CLERK'S NOTICE At the request of Plaintiff's counsel, a Further Settlement Conference set for 4/6/2016 11:00 AM in Courtroom D, 15th Floor, San Francisco.. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 4/4/2016) (Entered: 04/04/2016)

04/04/2016 511 Letter from Daniel Bartosh re failure to comply with the terms stipulated in the settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 4/4/2016) (Entered: 04/05/2016)

04/05/2016

509 CLERK'S NOTICE Settlement Conference set for 4/6/2016 01:00 PM in Courtroom D, 15th Floor, San Francisco. Pursuant to the request of Plaintiff's counsel and with the agreement of Defense counsel, the emergency further settlement conference will be held at 1:00 pm rather than 11:00 am. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 4/5/2016) (Entered: 04/05/2016)

04/06/2016

512 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference /Status conference held on 4/6/2016. (FTR Time 1:19-2:29) (ahm, COURT STAFF) (Date Filed: 4/6/2016) Modified on 4/6/2016 (ahm, COURT STAFF). (Entered: 04/06/2016)

04/12/2016

513 MOTION to Compel Compliance with Stipulation filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 5/17/2016 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 4/26/2016. Replies due by 5/3/2016. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Motion to Compel, # 2 Exhibit A to Declaration, # 3 Exhibit B to Declaration, # 4 Exhibit C to Declaration, # 5 Proposed Order Granting Motion to Compel)(Bremer, Carmen) (Filed on 4/12/2016) (Entered: 04/12/2016)

04/25/2016

514 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 4/25/2016. Parties to convene to determine next meet date and advise CRD. Plaintiff Attorneys Carmen Bremer by video and Jules Lobel by phone. Defendant Attorneys Audriano Hrvatin, Patricia Lee and Jay Russell all by video. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 4/25/2016) (Entered: 04/25/2016)

04/26/2016 515 STIPULATION WITH PROPOSED ORDER For Extension of Time to File Fee Application filed by Todd Ashker, Ronnie Dewberry, Luis

Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller)(Miller, Samuel) (Filed on 4/26/2016) (Entered: 04/26/2016)

04/26/2016

516 STIPULATION AND ORDER FOR EXTENSION OF TIME TO FILE FEE APPLICATION by Hon. Claudia Wilken granting 515 Stipulation.(napS, COURT STAFF) (Filed on 4/26/2016) (Entered: 04/26/2016)

04/26/2016

517 RESPONSE (re 513 MOTION to Compel Compliance with Stipulation ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 4/26/2016) (Entered: 04/26/2016)

04/29/2016 518 ORDER DENYING REQUEST TO RELATE CASES. Signed by Judge Haywood S. Gilliam, Jr. on 4/29/2016. (ndrS, COURT STAFF) (Filed on 4/29/2016) (Entered: 04/29/2016)

04/29/2016 520 MOTION to Intervene filed by Seavon Pierce. Responses due by 5/13/2016. Replies due by 5/20/2016. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 4/29/2016) (Entered: 05/03/2016)

05/03/2016

519 REPLY (re 513 MOTION to Compel Compliance with Stipulation ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 5/3/2016) (Entered: 05/03/2016)

05/05/2016

521 CLERK'S NOTICE Further Settlement Conference set for 6/1/2016 08:00 AM in Courtroom D, 15th Floor, San Francisco. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 5/5/2016) (Entered: 05/05/2016)

05/06/2016 522 CLERK'S JUDGMENT. (mklS, COURT STAFF) (Filed on 5/6/2016) (Entered: 05/06/2016)

05/10/2016

523 Administrative Motion to File Under Seal MOTION TO ENJOIN AND EXHIBITS A, B & C TO DECL IN SUPPORT THEREOF filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 REDACTEDPUBLIC VERSION OF MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU, # 4 UNREDACTED-CONFIDENTIAL VERSION OF MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU, # 5 Exhibit A - REDACTED-PUBLIC VERSION, # 6 Exhibit A - PART 1 - CONFIDENTIAL UNREDACTED VERSION, # 7 Exhibit A PART 2 - CONFIDENTIAL UNREDACTED VERSION, # 8 Exhibit A PART 3 - CONFIDENTIAL UNREDACTED VERSION, # 9 Exhibit B -

REDACTED-PUBLIC VERSION, # 10 Exhibit B - CONFIDENTIAL UNREDACTED VERSION, # 11 Exhibit C - REDACTED-PUBLIC VERSION, # 12 Exhibit C - CONFIDENTIAL UNREDACTED VERSION, # 13 Certificate/Proof of Service)(Bremer, Carmen) (Filed on 5/10/2016) (Entered: 05/10/2016)

05/10/2016

524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU [REDACTED-PUBLIC VERSION] filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/14/2016 10:00 AM in Eureka before Magistrate Judge Nandor J. Vadas. Responses due by 5/24/2016. Replies due by 5/31/2016. (Bremer, Carmen) (Filed on 5/10/2016) Modified on 5/11/2016 (cpS, COURT STAFF). (Entered: 05/10/2016)

05/10/2016

525 Proposed Order re 524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 5/10/2016) Modified on 5/11/2016 (cpS, COURT STAFF). (Entered: 05/10/2016)

05/10/2016

526 Declaration of Carmen E. Bremer in Support of 524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A (Redacted), # 2 Exhibit B (Redacted), # 3 Exhibit C (Redacted))(Related document(s) 524 ) (Bremer, Carmen) (Filed on 5/10/2016) Modified on 5/11/2016 (cpS, COURT STAFF). (Entered: 05/10/2016)

05/11/2016

527 ORDER ON MOTION TO INTERVENE by Hon. Claudia Wilken denying 520 Motion to Intervene. (Certificate of Service Attached)(napS, COURT STAFF) (Filed on 5/11/2016) (Entered: 05/11/2016)

05/11/2016

528 CLERK'S NOTICE Further Settlement Conference is reset to 6/2/2016 02:00 PM in Courtroom D, 15th Floor, San Francisco. The previously scheduled meeting June 1, 2016 is vacated. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 5/11/2016) (Entered: 05/11/2016)

05/11/2016

529 CLERK'S NOTICE Continuing Motion Hearing previously set for 5/17/2016 to 6/2/2016 at 2:00 pm, Courtroom D, San Francisco. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 5/11/2016) (Entered: 05/11/2016)

05/12/2016 530 Letter to Magistrate Nandor J. Vadas from David Tamez re settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/12/2016) (Entered: 05/16/2016)

05/16/2016

531 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule and Hearing on Plaintiffs' Motion To Enjoin CDCR From Continuing To Retain Five Prisoners in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Bremer, Carmen) (Filed on 5/16/2016) Modified on 5/17/2016 (cpS, COURT STAFF). (Entered: 05/16/2016)

05/18/2016 532 Letter from Javier Marquez re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)

05/18/2016 533 Declaration of Anthony Marvell Semien re status progress of the settlement filed by Anthony Marvell Semien (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)

05/18/2016

534 CLERK'S NOTICE Regarding June 2, 2016 Settlement Conference and motions. Courtroom Location Change. Parties should meet in Courtroom C. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 5/18/2016) (Entered: 05/18/2016)

05/20/2016

535 CLERK'S NOTICE The time for further Settlement Conference and motions on 6/2/2016 is advanced to 01:00 PM in Courtroom C, 15th Floor, San Francisco.. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 5/20/2016) Modified on 5/20/2016 (glm, COURT STAFF). (Entered: 05/20/2016)

05/24/2016

536 RESPONSE (re 524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 5/24/2016) (Entered: 05/24/2016)

05/24/2016

537 Declaration of G. Giurbino in Support of 536 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 536 ) (Hrvatin, Adriano) (Filed on 5/24/2016) (Entered: 05/24/2016)

05/26/2016

541 MOTION for Preliminary Injunction, Temporary Restraining Order, etc. filed by Savon Pierce. Responses due by 6/9/2016. Replies due by 6/16/2016. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/26/2016) Modified on 5/31/2016 (cpS, COURT STAFF). (Entered: 05/31/2016)

05/26/2016

542 NOTICE OF APPEAL to the 9th Circuit Court of Appeals. Appeal of Order on Motion to Intervene 527 filed by Seavon Pierce (Appeal fee FEE NOT PAID.) (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/31/2016)

05/26/2016 543 CERTIFICATE OF SERVICE re 541 MOTION for Preliminary Injunction, 542 Notice of Appeal (cpS, COURT STAFF) (Filed on 5/26/2016) (Entered: 05/31/2016)

05/26/2016

545 REQUEST for Review of Validation Package of Robert Ramirez per Class Action Settlement Agreement filed by Robert Ramirez. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/26/2016) (Entered: 06/02/2016)

05/27/2016

538 Administrative Motion to File Under Seal Plaintiffs' Reply In Support of Motion to Enjoin CDCR From Continuing to Retain Five Prisoners in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Reply, # 4 CONFIDENTIAL SEALED Reply)(Bremer, Carmen) (Filed on 5/27/2016) (Entered: 05/27/2016)

05/27/2016 539

*******FILED IN ERROR. NO REDACTED VERSION PER ATTORNEY CARMEN BREMER

REPLY (re 524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 5/27/2016) Modified on 5/31/2016 (cpS, COURT STAFF). Modified on 5/31/2016 (cpS, COURT STAFF). (Entered: 05/27/2016)

05/27/2016

540 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 539 Reply to Opposition/Response, In Support of Motion to Enjoin CDCR From Continuing to Retain Five Prisoners in SHU (Bremer, Carmen) (Filed on 5/27/2016) (Entered: 05/27/2016)

05/31/2016 544 Mailed request for payment of docket fee to appellant re: 542 Notice of Appeal (cc to USCA) (cpS, COURT STAFF) (Filed on 5/31/2016) (Entered: 05/31/2016)

05/31/2016

Copy of Notice of Appeal and Docket sheet mailed to appellant Seavon Pierce (cpS, COURT STAFF) (Filed on 5/31/2016) (Entered: 05/31/2016)

06/01/2016 546 USCA Case Number 16-15982 Ninth Circuit Court of Appeals for 542 Notice of Appeal. (cjlS, COURT STAFF) (Filed on 6/1/2016) (Entered: 06/02/2016)

06/02/2016

547 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status re Motion Hearing held on 6/2/2016. Status Conference held on 6/2/2016. Motion to Compel Compliance and Motion to Enforce CDCR From Continuing To Retain Five Prisoners in Shu Hearing set for 6/10/2016 at 9:00 AM in Eureka before Magistrate Judge Nandor J. Vadas. Further Status Conference set for July 19, 2016 at 1:00 p.m. at 450 Golden Gate Avenue, 15th Floor, Courtroom D, San Francisco, CA. (Digital FTR Recording: 2:17-4:10; 4:10-4:47 (Under Seal). Counsel of record in attendance at this hearing may obtain a transcript of the under seal record.)

Plaintiff Attorney: Carmen E. Bremer, Anne Butterfield Weills, Carol Strickman, Alexandra Azure Wheeler, Jules Lobel and Carole Joan Travis.

Defendant Attorney: Patricia J. Lee, Adriano Hrvatin and Jay C. Russell.

This is a text only Minute Entry. (ls, COURT STAFF) (Date Filed: 6/2/2016) (Entered: 06/03/2016)

06/03/2016

Set/Reset Hearing: Status Conference set for 7/19/2016 at 1:00 PM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. (ls, COURT STAFF) (Filed on 6/3/2016) (Entered: 06/03/2016)

06/03/2016

548 TRANSCRIPT ORDER for proceedings held on June 2, 2016 before Magistrate Judge Nandor J. Vadas by Ronnie Dewberry, Luis Esquivel, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 6/3/2016) (Entered: 06/03/2016)

06/03/2016

549 Unopposed MOTION for Attorneys' Fees and Costs, Notice to Class Members, and a Scheduling Order; Memorandum of Points and Authorities filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 6/17/2016. Replies due by 6/24/2016. (Miller, Samuel) (Filed on 6/3/2016) Modified on 6/6/2016 (cpS, COURT STAFF). (Entered: 06/03/2016)

06/03/2016

550 Declaration of Samuel Miller in Support of 549 Unopposed Motion for Attorneys' Fees and Costs, Notice to Class Members, and a Scheduling Order filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit 1 in Support of

Decl of Samuel Miller, # 2 Exhibit 2 in Support of Decl of Samuel Miller, # 3 Exhibit 3 in Support of Decl of Samuel Miller)(Related document(s) 549 ) (Miller, Samuel) (Filed on 6/3/2016) Modified on 6/6/2016 (cpS, COURT STAFF). (Entered: 06/03/2016)

06/06/2016

551 TRANSCRIPT ORDER for proceedings held on 6/2/16 before Magistrate Judge Nandor J. Vadas by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - Oakland. (Hrvatin, Adriano) (Filed on 6/6/2016) (Entered: 06/06/2016)

06/07/2016

552 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Exhibit A - REDACTED, # 4 Exhibit A - SEALED, # 5 Exhibit B REDACTED, # 6 Exhibit B - SEALED)(Bremer, Carmen) (Filed on 6/7/2016) (Entered: 06/07/2016)

06/07/2016

553 MOTION to Compel Compliance with Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 7/12/2016 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 6/21/2016. Replies due by 6/28/2016. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A - REDACTED, # 3 Exhibit B REDACTED, # 4 Proposed Order)(Bremer, Carmen) (Filed on 6/7/2016) (Entered: 06/07/2016)

06/07/2016

554 ORDER ON 541 MOTION FOR PRELIMINARY INJUNCTION, TEMPORARY RESTRAINING ORDER AND OTHER REQUESTED FORMS OF RELIEF. The Motion is DENIED. Signed by Judge Claudia Wilken on 6/7/2016. (afmS, COURT STAFF) (Filed on 6/7/2016) (Entered: 06/07/2016)

06/07/2016

555 ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS' UNOPPOSED 549 MOTION FOR ATTORNEYS' FEES. Signed by Judge Claudia Wilken on 6/7/2016. (afmS, COURT STAFF) (Filed on 6/7/2016) (Entered: 06/07/2016)

06/07/2016

556 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 552 Administrative Motion to File Under Seal Exhibits A and B to the Declaration of Carmen E. Bremer In Support of Motion to Compel Compliance with Settlement Agreement (Bremer, Carmen) (Filed on 6/7/2016) (Entered: 06/07/2016)

06/07/2016 558 Letter from Victor Martinez requesting contact information of attorneys monitoring CDCR case review.. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 6/7/2016) (Entered: 06/08/2016)

06/08/2016 557 CLERK'S CERTIFICATE OF SERVICE re 554 Order on Motion for Preliminary Injunction (cpS, COURT STAFF) (Filed on 6/8/2016) (Entered: 06/08/2016)

06/09/2016 559 ORDER of USCA as to 542 Notice of Appeal re: payment of filing fee (kk, COURT STAFF) (Filed on 6/9/2016) (Entered: 06/09/2016)

06/10/2016

560 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Motion Hearing held on 6/10/2016. re 524 MOTION TO ENJOIN CDCR FROM CONTINUING TO RETAIN FIVE PRISONERS IN SHU filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker, 538 Administrative Motion to File Under Seal Plaintiffs' Reply In Support of Motion to Enjoin CDCR From Continuing to Retain Five Prisoners in SHU filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes, 523 Administrative Motion to File Under Seal MOTION TO ENJOIN AND EXHIBITS A, B & C TO DECL IN SUPPORT THEREOF filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes, 552 Administrative Motion to File Under Seal filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes, 513 MOTION to Compel Compliance with Stipulation filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes ; denying 513 Motion to Compel; granting 523 Administrative Motion to File Under Seal; denying 524 Motion ; granting 538 Administrative Motion to File Under Seal; granting 552 Administrative Motion to File Under SealFTR Time 10:38 to 11:03 is SEALED. FTR Time 9:12-11:32. Attachment Minutes.(glm, COURT STAFF) (Date Filed: 6/10/2016) Modified on 8/1/2016: Matter transcribed by Tara Bauer (Echo Reporting). (rjdS, COURT STAFF). (Entered: 06/10/2016)

06/13/2016

561 Transcript of Proceedings of the official sound recording held on 06/02/16, before Magistrate Judge Nandor Vadas. FTR/Transcriber Echo Reporting, Inc., telephone number 8584537590. Tape Number: FTR 2:17 - 4:10. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 551 Transcript Order )

Redaction Request due 7/5/2016. Redacted Transcript Deadline set for 7/14/2016. Release of Transcript Restriction set for 9/12/2016. (Related documents(s) 551 ) (tgb, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)

06/13/2016

562 Sealed Transcript of Proceedings held on 06/02/16, before Magistrate Judge Nandor Vadas. Court Reporter/Transcriber Echo Reporting, Inc., Telephone number 8584537590. Tape Number: FTR 4:10 - 4:47. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 7/1/2016. Redacted Transcript Deadline set for 7/11/2016. (tgb, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/13/2016)

06/13/2016 563 REQUEST for Emergency Injunction filed by Richard Salazar. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 6/13/2016) (Entered: 06/14/2016)

06/16/2016 564 ORDER 563 Request ON REQUEST FOR EMERGENCY INJUNCTION. Signed by Judge Claudia Wilken on 6/16/2016. (ndrS, COURT STAFF) (Filed on 6/16/2016) (Entered: 06/16/2016)

06/16/2016 565 CERTIFICATE OF SERVICE Re 564 Order. (ndrS, COURT STAFF) (Filed on 6/16/2016) (Entered: 06/16/2016)

06/16/2016

566 TRANSCRIPT ORDER for proceedings held on June 10, 2016 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 6/16/2016) (Entered: 06/16/2016)

06/16/2016

567 ADMINISTRATIVE MOTION for access to sealed portions of transcripts filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 6/20/2016. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 6/16/2016) (Entered: 06/16/2016)

06/16/2016 568 ORDER by Judge Nandor J. Vadas granting 567 Administrative Motion access to sealed portions of transcript. (glm, COURT STAFF) (Filed on 6/16/2016) (Entered: 06/16/2016)

06/20/2016

569 TRANSCRIPT ORDER for proceedings held on 6/10/16 before Magistrate Judge Nandor J. Vadas by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - Oakland. (Hrvatin, Adriano) (Filed on 6/20/2016) (Entered: 06/20/2016)

06/21/2016 570 RESPONSE (re 553 MOTION to Compel Compliance with Settlement Agreement ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus,

Greg Lewis. (Russell, Jay) (Filed on 6/21/2016) Modified on 6/22/2016 (cpS, COURT STAFF). (Entered: 06/21/2016)

06/21/2016

571 Declaration of S. Alfaro in Support of 570 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 570 ) (Russell, Jay) (Filed on 6/21/2016) (Entered: 06/21/2016)

06/23/2016

572 Sealed Transcript of Proceedings held on 06/10/16, before Magistrate Judge Nandor Vadas. FTR/Transcriber Echo Reporting, Inc., Telephone number 8584537590. Tape Number: FTR 10:38 - 11:03. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 7/11/2016. Redacted Transcript Deadline set for 7/21/2016. (tgb, COURT STAFF) (Filed on 6/23/2016) (Entered: 06/23/2016)

06/23/2016

573 Transcript of Proceedings of the official sound recording held on 06/10/16, before Magistrate Judge Nandor Vadas. FTR/Transcriber Echo Reporting, Inc., telephone number 8584537590. Tape Number: FTR 9:12 10:37/11:04 - 11:32. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 566 Transcript Order, ) Redaction Request due 7/14/2016. Redacted Transcript Deadline set for 7/25/2016. Release of Transcript Restriction set for 9/21/2016. (Related documents(s) 566 ) (tgb, COURT STAFF) (Filed on 6/23/2016) (Entered: 06/23/2016)

06/28/2016

574 CLERK'S NOTICE Status Conference previously set for 7/19/2016 will be heard 7/20/2016. Status Conference set for 7/20/2016 02:00 PM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 6/28/2016) (Entered: 06/28/2016)

06/28/2016

575 Administrative Motion to File Under Seal Portions of Exhibits B, C, and D to the Bremer Declaration in Support of Plaintiffs' Reply in Support of Motion to Compel Compliance with Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Exhibit B - Redacted, # 4 Exhibit B - Unredacted, # 5 Exhibit C Redacted, # 6 Exhibit C - Unredacted, # 7 Exhibit D - Redacted, # 8 Exhibit D - Unredacted)(Bremer, Carmen) (Filed on 6/28/2016) (Entered: 06/28/2016)

06/28/2016

576 REPLY (re 553 MOTION to Compel Compliance with Settlement Agreement ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A-E)(Bremer, Carmen) (Filed on 6/28/2016) (Entered: 06/28/2016)

06/28/2016

577 Revised Unopposed Notice of Motion and Motion For Attorneys' Fees and Costs, Notice to Class Members, and a Scheduling Order; Memorandum of Points and Authorities filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 6/28/2016. Replies due by 6/28/2016. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-a through 7, # 3 Declaration of Jules Lobel)(Miller, Samuel) (Filed on 6/28/2016) Modified on 6/29/2016 (kcS, COURT STAFF). (Entered: 06/28/2016)

06/29/2016

578 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 576 Reply to Opposition/Response, Unredacted Exhibits B, C, and D to the Declaration of Carmen E. Bremer In Support of Reply In Support of Motion to Compel Compliance (Bremer, Carmen) (Filed on 6/29/2016) (Entered: 06/29/2016)

07/01/2016

579 ORDER re 577 Unopposed Motion for Attorney Fees and Costs, Notice to Class Members, and a Scheduling Order. Signed by Judge Claudia Wilken on 7/1/16. (napS, COURT STAFF) (Filed on 7/1/2016) (Entered: 07/01/2016)

07/07/2016

580 ORDER Denying Plaintiffs' Motion to Compel Compliance and Plaintiffs' Motion to Enjoin CDCR. Signed by Judge Nandor J. Vadas on 7/7/2016. (njvlc1, COURT STAFF) (Filed on 7/7/2016) (Entered: 07/07/2016)

07/11/2016 581 Order by Magistrate Judge Nandor J. Vadas granting 575 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 7/11/2016) (Entered: 07/11/2016)

07/12/2016

582 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Motion Hearing held on 7/12/2016. re 553 MOTION to Compel Compliance with Settlement Agreement filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Court took up matter of Plaintiffs' Motion to Compel. [Doc. 553.] After hearing the arguments of the parties, court took the matter under submission. Defense Counsel ordered to provide statistics to the court and opposing counsel. FTR Time 10:21-11:13. Plaintiff Attorney Carmen Bremer, Azure Wheeler by vtc. Defendant Attorney Jay Russell, Audriano Hrvatin, Patricia Lee by vtc. This is a text only

Minute Entry (glm, COURT STAFF) (Date Filed: 7/12/2016) Modified on 7/27/2016: Matter transcribed by Tara Bauer / Echo Reporting. (rjdS, COURT STAFF). (Entered: 07/14/2016)

07/14/2016

583 *** DISREGARD - DOCUMENT HAS INCORRECT HEARING DATE - SEE DOCKET #584 *** TRANSCRIPT ORDER for proceedings held on July 12, 2016 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Bremer, Carmen) (Filed on 7/14/2016) Modified on 7/14/2016 (rjdS, COURT STAFF). (Entered: 07/14/2016)

07/14/2016

584 TRANSCRIPT ORDER for proceedings held on July 12, 2016 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 7/14/2016) (Entered: 07/14/2016)

07/18/2016 585 MOTION to Relate Case C-15-5756-HSG filed by Maher Suarez. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 7/18/2016) (Entered: 07/20/2016)

07/20/2016

587 *Please disregard. Refer to Amended Minute Entry at Docket No. 591 .* Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 7/20/2016. Further Status/Settlement Conference set for 8/17/2016 02:00 PM in Courtroom D, 15th Floor, San Francisco. (FTR Time 2:13-2:58; 3:133:33; 3:40-4:19 Sealed FTR 2:59-3:12.) (mklS, COURT STAFF) (Date Filed: 7/20/2016) Modified on 7/22/2016 (mklS, COURT STAFF). (Entered: 07/21/2016)

07/20/2016

591 AMENDED Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 7/20/2016. Further Status/Settlement Conference set for 8/17/2016 02:00 PM in Courtroom D, 15th Floor, San Francisco. (FTR Time 2:13-2:58; 3:133:33; 3:40-4:19 Sealed FTR 2:59-3:12.). (Attachment amended to reflect the correct date of 8/17/2016 for next hearing date.) (mklS, COURT STAFF) (Filed on 7/20/2016) Modified on 8/2/2016: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 07/22/2016)

07/21/2016

586 Transcript of Proceedings of the official sound recording held on 07/12/16, before Magistrate Judge Nandor Vadas. FTR/Transcriber Echo Reporting, Inc., telephone number 8584537590. Tape Number: FTR 10:25 - 11:13. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained

through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 584 Transcript Order, ) Redaction Request due 8/11/2016. Redacted Transcript Deadline set for 8/22/2016. Release of Transcript Restriction set for 10/19/2016. (Related documents(s) 584 ) (tgb, COURT STAFF) (Filed on 7/21/2016) (Entered: 07/21/2016)

07/21/2016

588 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Interpretation of Recruitment Offense filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 8/30/2016 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 8/4/2016. Replies due by 8/11/2016. (Attachments: # 1 Proposed Order, # 2 Declaration of Carmen E. Bremer, # 3 Exhibit A - C of the Bremer Declaration, # 4 Declaration of Jules Lobel, # 5 Exhibit A of the Lobel Declaration)(Bremer, Carmen) (Filed on 7/21/2016) Modified on 7/22/2016 (cpS, COURT STAFF). (Entered: 07/21/2016)

07/21/2016

589 Administrative Motion to File Under Seal Portions of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Exhibit REDACTED Motion for De Novo Determination, # 4 Exhibit UNREDACTED Motion for De Novo Determination, # 5 Exhibit REDACTED Exhibit 1A, # 6 Exhibit UNREDACTED Exhibit 1A, # 7 Exhibit REDACTED Exhibit 1B, # 8 Exhibit UNREDACTED Exhibit 1B, # 9 Exhibit REDACTED Exhibit 2, # 10 Exhibit UNREDACTED Exhibit 2, # 11 Exhibit REDACTED Exhibit 3, # 12 Exhibit UNREDACTED Exhibit 3, # 13 Exhibit REDACTED Exhibit 4A, # 14 Exhibit UNREDACTED Exhibit 4A, # 15 Exhibit REDACTED Exhibit 4B, # 16 Exhibit UNREDACTED Exhibit 4B, # 17 Exhibit REDACTED Exhibit 4C, # 18 Exhibit UNREDACTED Exhibit 4C, # 19 Exhibit REDACTED Exhibit 5, # 20 Exhibit UNREDACTED Exhibit 5)(Bremer, Carmen) (Filed on 7/21/2016) (Entered: 07/21/2016)

07/21/2016

590 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 8/30/2016 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 8/4/2016. Replies due by 8/11/2016. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit Exhibits 1 to 5,

# 3 Proposed Order)(Bremer, Carmen) (Filed on 7/21/2016) Modified on 7/22/2016 (cpS, COURT STAFF). (Entered: 07/21/2016)

07/21/2016 594 Letter from Derrick Sims re RCGP Program. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 7/21/2016) (Entered: 07/22/2016)

07/22/2016

592 ERRATA re 590 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 7/22/2016) (Entered: 07/22/2016)

07/22/2016

593 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 589 Administrative Motion to File Under Seal Portions of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU (Bremer, Carmen) (Filed on 7/22/2016) (Entered: 07/22/2016)

07/22/2016 595 Copies of all administrative appeals and documents filed by Victor De La Cruz (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 7/22/2016) (Entered: 07/22/2016)

07/22/2016 596 RESPONSE (re 585 MOTION to Relate Case ) filed byMathew Cate. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 7/22/2016) (Entered: 07/22/2016)

07/22/2016

597 TRANSCRIPT ORDER for proceedings held on 7-12-2016 before Magistrate Judge Nandor J. Vadas by Mathew Cate, for Court Reporter FTR - San Francisco. (Attachments: # 1 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 7/22/2016) (Entered: 07/22/2016)

07/25/2016 598 Letter from Santos Saldana re In Camera Review of Santos Saldana K77891 Asker review. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 7/25/2016) (Entered: 07/26/2016)

07/26/2016

599 ADMINISTRATIVE MOTION Release of Sealed Portions of Transcripts of Proceedings Held on June 10 and July 20, 2016 filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Responses due by 8/1/2016. (Hrvatin, Adriano) (Filed on 7/26/2016) (Entered: 07/26/2016)

07/26/2016

600 Proposed Order re 599 ADMINISTRATIVE MOTION Release of Sealed Portions of Transcripts of Proceedings Held on June 10 and July 20, 2016 by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 7/26/2016) (Entered: 07/26/2016)

07/27/2016

601 Declaration of J. Jacquez Regarding Posting of Class Notices and Placement of Documents in Prison Libraries by Edmund G. Brown, Jr. (Hrvatin, Adriano) (Filed on 7/27/2016) Modified on 7/28/2016 (cpS, COURT STAFF). (Entered: 07/27/2016)

07/28/2016

602 ADMINISTRATIVE MOTION for Release of Sealed Portions of July 20, 2016 Transcript of Hearing filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 8/1/2016. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 7/28/2016) (Entered: 07/28/2016)

07/28/2016 603 ORDER DENYING MOTION TO RELATE CASES by Hon. Claudia Wilken denying 585 Motion. (Certificate of Service Attached)(dtmS, COURT STAFF) (Filed on 7/28/2016) (Entered: 07/28/2016)

08/01/2016

604 TRANSCRIPT ORDER for proceedings held on July 20, 2016 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 8/1/2016) (Entered: 08/01/2016)

08/01/2016

605 STIPULATION WITH PROPOSED ORDER Regarding Briefing and Hearing on Plaintiffs' Two Motions Seeking De Novo Review of Magistrate Judge Vadas's Orders filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 8/1/2016) Modified on 8/2/2016 (cpS, COURT STAFF). (Entered: 08/01/2016)

08/01/2016

606 Order by Magistrate Judge Nandor J. Vadas granting 599 Administrative Motion for release of sealed transcripts.(njvlc1, COURT STAFF) (Filed on 8/1/2016) (Entered: 08/01/2016)

08/02/2016

607 Order by Magistrate Judge Nandor J. Vadas granting 602 Administrative Motion release of sealed transcript.(njvlc1, COURT STAFF) (Filed on 8/2/2016) (Entered: 08/02/2016)

08/03/2016 608 Order by Magistrate Judge Nandor J. Vadas denying 553 Motion to Compel.(njvlc1, COURT STAFF) (Filed on 8/3/2016) (Entered: 08/03/2016)

08/04/2016

609 STIPULATION AND ORDER REGARDING BRIEFING AND HEARING ON PLAINTIFFS TWO MOTIONS SEEKING DE NOVO REVIEW OF MAGISTRATE JUDGE VADAS' ORDERS by Hon. Claudia Wilken granting 605 Stipulation.(dtmS, COURT STAFF) (Filed on 8/4/2016) Modified on 8/4/2016 (dtmS, COURT STAFF). Modified on 8/5/2016 (dtmS, COURT STAFF). (Entered: 08/04/2016)

08/04/2016

Set/Reset Deadlines as to 590 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU , 588 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Interpretation of Recruitment Offense . Responses due by 8/9/2016. Replies due by 8/16/2016. (dtmS, COURT STAFF) (Filed on 8/4/2016) (Entered: 08/04/2016)

08/09/2016

610 Administrative Motion to File Under Seal Exhibits B & D to the Hrvatin Declaration filed in Support of Defendants' Consolidated Opposition to Plaintiffs' Motions for De Novo Determination (Attachments: # 1 Declaration, # 2 Exhibit B (filed Underseal), # 3 Exhibit D (filed Underseal), # 4 Proposed Order)(Hrvatin, Adriano) (Filed on 8/9/2016) Modified on 8/10/2016 (cpS, COURT STAFF). Modified on 8/10/2016 (cpS, COURT STAFF). Modified on 8/10/2016 (cpS, COURT STAFF). Modified on 8/10/2016 (cpS, COURT STAFF). (Entered: 08/09/2016)

08/09/2016

611 RESPONSE (re 588 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Interpretation of Recruitment Offense , 590 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 8/9/2016) (Entered: 08/09/2016)

08/09/2016

612 Declaration of S. Alfaro in Support of 611 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Related document(s) 611 ) (Hrvatin, Adriano) (Filed on 8/9/2016) (Entered: 08/09/2016)

08/09/2016

613 Declaration of A. Hrvatin in Support of 611 Opposition/Response to Motion, filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Exhibit A, # 2 Exhibit C)(Related document(s) 611 ) (Hrvatin, Adriano) (Filed on 8/9/2016) (Entered: 08/09/2016)

08/09/2016

614 MOTION to File Supplemental Briefing and Continue the Hearing on Motions for De Novo Determination of Magistrate Judge Vadas's Order Denying Plaintiffs' Two Alleged Enforcement Motion filed by Edmund G. Brown, Jr. (Attachments: # 1 Declaration Declaration of J. Russell, # 2 Proposed Order Proposed Order Granting Def's' Motion to File, # 3 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 8/9/2016) Modified on 8/10/2016 (cpS, COURT STAFF). (Entered: 08/09/2016)

08/10/2016

615 RESPONSE (re 614 MOTION to File Supplemental Briefing and Continue the Hearing on Motions for De Novo Determination of Magistrate Judge Vadas's Order Denying Plaintiffs' Two Alleged Enforcement Motion ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny

Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A to Declaration of Carmen E. Bremer, # 3 Exhibit B to Declaration of Carmen E. Bremer)(Bremer, Carmen) (Filed on 8/10/2016) (Entered: 08/10/2016)

08/12/2016

616 Sealed Transcript of Proceedings held on July 20, 2016, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, Telephone number joan.columbini.csr@gmail.com 510-367-3043. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 8/30/2016. Redacted Transcript Deadline set for 9/9/2016. (Columbini, Joan) (Filed on 8/12/2016) (Entered: 08/12/2016)

08/12/2016

617 Transcript of Proceedings held on July 20, 2016, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, telephone number joan.columbini.csr@gmail.com 510-367-3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (597 in 4:09-cv-05796-CW) Transcript Order, (604 in 4:09-cv-05796-CW) Transcript Order, ) Redaction Request due 9/2/2016. Redacted Transcript Deadline set for 9/12/2016. Release of Transcript Restriction set for 11/10/2016. (Columbini, Joan) (Filed on 8/12/2016) (Entered: 08/12/2016)

08/16/2016

618 REPLY (re 588 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Interpretation of Recruitment Offense ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 8/16/2016) (Entered: 08/16/2016)

08/16/2016

619 ORDER REGARDING SUPPLEMENTAL BRIEFING AND VACATING AUGUST 30, 2016 HEARING, granting in part and denying in part 614 MOTION to File Supplemental Briefing and Continue the Hearing on Motions for De Novo Determination of Magistrate Judge Vadas' Order. Signed by Judge Claudia Wilken on 8/16/16. (dtmS, COURT STAFF) (Filed on 8/16/2016) (Entered: 08/16/2016)

08/16/2016

620 Administrative Motion to File Under Seal Portions of Plaintiffs' Reply In Support of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes,

George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Reply In Support of Motion for De Novo Determination, # 4 UNREDACTED Reply In Support of Motion for De Novo Determination, # 5 Exhibit REDACTED Exhibit A to the Declaration of Carmen E. Bremer, # 6 Exhibit UNREDACTED Exhibit A to the Declaration of Carmen E. Bremer)(Bremer, Carmen) (Filed on 8/16/2016) (Entered: 08/16/2016)

08/16/2016

621 REPLY (re 590 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer In Support of Reply, # 2 Exhibit A to the Declaration of Carmen E. Bremer)(Bremer, Carmen) (Filed on 8/16/2016) (Entered: 08/16/2016)

08/16/2016

622 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 620 Administrative Motion to File Under Seal Portions of Plaintiffs' Reply In Support of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU (Bremer, Carmen) (Filed on 8/16/2016) (Entered: 08/16/2016)

08/17/2016

623 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 8/17/2016. Further Settlement Conference set for 10/7/2016 02:00 PM in Courtroom D, 15th Floor, San Francisco. FTR Time 02:00 - 02:50. Plaintiff Attorneys: Anne Butterfield Weills, Carmen E. Bremer. Defendant Attorneys: Adriano Hrvatin, Jay C. Russell, Patricia J. Lee. (afmS, COURT STAFF) (Date Filed: 8/17/2016) Modified on 3/18/2019: Matter transcribed by Tara Bauer (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 08/17/2016)

08/22/2016

624 Administrative Motion to File Under Seal filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Certificate/Proof of Service, # 4 Unredacted version of Exhibit B)(Hrvatin, Adriano) (Filed on 8/22/2016) (Entered: 08/22/2016)

08/22/2016

625 SUPPLEMENTAL BRIEF SUPPORTING DEFENDANTS CONSOLIDATED OPPOSITION TO PLAINTIFFS MOTIONS FOR DE NOVO DETERMINATION OF MAGISTRATE JUDGE VADASS ORDERS DENYING PLAINTIFFS TWO ALLEGED ENFORCEMENT MOTIONS filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration Hrvatin, # 2 Exhibit A,

# 3 Declaration Alfaro, # 4 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 8/22/2016) Modified on 8/23/2016 (cpS, COURT STAFF). (Entered: 08/22/2016)

08/24/2016

626 Administrative Motion to File Under Seal Portions of Plaintiffs' Supplemental Brief in Support of Motions for De Novo Determination of Dispositive Matters Referred to Magistrate Judge filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Supplemental Brief, # 4 UNREDACTED Supplemental Brief, # 5 Exhibit REDACTED Exhibit C, # 6 Exhibit UNREDACTED Exhibit C)(Bremer, Carmen) (Filed on 8/24/2016) (Entered: 08/24/2016)

08/24/2016

627 Supplemental Brief in Support of re 588 Motions for De Novo Determination of Dispositive Matters Referred to Magistrate Judge filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Related document(s) 588 ) (Bremer, Carmen) (Filed on 8/24/2016) Modified on 8/25/2016 (cpS, COURT STAFF). (Entered: 08/24/2016)

08/24/2016

628 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 627 Supplemental Brief,,, (Bremer, Carmen) (Filed on 8/24/2016) (Entered: 08/24/2016)

08/26/2016

629 MOTION Final Approval of Motion for Attorneys' Fees and Costs re 577 MOTION for Attorney Fees and Costs, Notice to Class Members, and a Scheduling Order filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 8/26/2016. Replies due by 8/26/2016. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 8/26/2016) (Entered: 08/26/2016)

08/26/2016

630 Declaration of Samuel Miller in Support of 629 MOTION Final Approval of Motion for Attorneys' Fees and Costs re 577 MOTION for Attorney Fees and Costs, Notice to Class Members, and a Scheduling Order filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit 1)(Related document(s) 629 ) (Miller, Samuel) (Filed on 8/26/2016) (Entered: 08/26/2016)

08/30/2016

631 ORDER GRANTING APPROVAL OF PLAINTIFFS UNOPPOSED REVISED MOTION FOR ATTORNEYS FEES AND COSTS. Signed by Judge Claudia Wilken on 8/30/16. (dtmS, COURT STAFF) (Filed on 8/30/2016) (Entered: 08/30/2016)

09/06/2016

632 ORDER ON PLAINTIFFS MOTION FOR DE NOVO REVIEW OF RETENTION OF FOUR CLASS MEMBERS IN SHU AND SEALING MOTIONS by Judge Claudia Wilken granting 589 Administrative Motion to File Under Seal; granting 610 Administrative Motion to File Under Seal; granting 620 Administrative Motion to File Under Seal; granting 624 Administrative Motion to File Under Seal; granting 626 Administrative Motion to File Under Seal. (napS, COURT STAFF) (Filed on 9/6/2016) (Entered: 09/06/2016)

09/08/2016

633 ORDER by Judge Nandor J. Vadas denying 441 Motion for Judicial Intervention and Temporary Restraining Order; denying 483 Motion for Relief from Defendants' Retaliation. (njvlc1, COURT STAFF) (Filed on 9/8/2016) (Entered: 09/08/2016)

09/14/2016

634 ORDER ON PLAINTIFFS MOTION FOR DE NOVO REVIEW OF MAGISTRATE JUDGES RULING ON RECRUITMENT OFFENSE re 588 by Hon. Claudia Wilken.(dtmS, COURT STAFF) (Filed on 9/14/2016) Modified on 9/14/2016 (cpS, COURT STAFF). (Entered: 09/14/2016)

09/19/2016

636 MOTION Requesting Court Order to Direct CDCR Officials to Provide Legal Property and Personal Property filed by Pablo Pina. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 9/19/2016) Modified on 10/5/2016 (cpS, COURT STAFF). (Entered: 10/05/2016)

09/22/2016

635 ORDER of USCA: DENYING appellants supplemented motion to proceed in forma pauperis; If appellant wishes to pursue this appeal despite the courts finding that it is frivolous then, within 21 days after the date of this order, appellant shall pay $505.00 to the district court as the docketing and filing fees for this appeal as to 542 Notice of Appeal (cpS, COURT STAFF) (Filed on 9/22/2016) (Entered: 09/22/2016)

10/07/2016

637 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 10/7/2016. Further dates to be set by the court. FTR Time 2:06-3:32. Plaintiff Attorneys Carmen E. Bremer, Carole Travis, Jules Lobel (video) and Azure Wheeler (video). Defendant Attorneys Adriano Hrvatin and Jay C. Russell with Melissa Bentz from CDCR. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 10/7/2016) Modified on 3/18/2019: Matter transcribed by Tara Bauer (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 10/12/2016)

10/18/2016 638 MANDATE of USCA: appeal is dismissed for failure to pay the docketing/filing fees in this case as to 542 Notice of Appeal (cpS, COURT STAFF) (Filed on 10/18/2016) (Entered: 10/18/2016)

10/18/2016 639 MOTION to Review case from the RCGP filed by Vicente Garcia. Responses due by 11/1/2016. Replies due by 11/8/2016. (Attachments:

# 1 Envelope)(cp, COURT STAFF) (Filed on 10/18/2016) Modified on 10/20/2016 (cpS, COURT STAFF). (Entered: 10/19/2016)

10/24/2016

640 CLERK'S NOTICE Next meeting set for 12/7/2016 01:00 PM. Parties appearing from San Francisco will meet in Courtroom 14. (This is a textonly entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 10/24/2016) (Entered: 10/24/2016)

11/16/2016

641 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 11/16/2016.FTR Time not recorded. Plaintiff Attorneys Jules Lobel and Carmen Bremer both by phone. Defendant Attorney Audriano Hrvatin by phone. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 11/16/2016) (Entered: 11/17/2016)

11/21/2016 642 Letter from Ricky Huarta re High Desert Detention Center is in violation of the Ashker v. Brown Settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 11/21/2016) (Entered: 11/22/2016)

12/07/2016

643 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 12/7/2016. Further Settlement Conference set for 1/26/2017 01:00 PM in Courtroom 15, 18th Floor, San Francisco. Judge Vadas will appear via videoconference. All parties to appear in San Francisco. Last half hour of transcript SEALED. Total FTR Time 12:15 - 2:50. Plaintiff Attorneys: Carmen E. Bremer, Anne Butterfield Weills, Jules Lobel, Azure Wheeler (phone). Defendant Attorneys: Christine Ciccotti, Jay C. Russell, Patricia Lee, Melissa Bentz, Patrick McKinney II. This is a text only Minute Entry. There is no pdf image associated with this entry. (afmS, COURT STAFF) (Date Filed: 12/7/2016) Modified on 1/5/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 12/07/2016)

12/12/2016

645 Letter from Raul M. Chavez to Judge Vadas regarding failure of Settlement Agreement (Attachments: # 1 Envelope)(msr, COURT STAFF) (Filed on 12/12/2016) (Additional attachment(s) added on 12/14/2016: # 2 Rescanned envelope) (cp, COURT STAFF). (Entered: 12/13/2016)

12/13/2016 644 Order by Hon. Claudia Wilken denying 639 Motion to Review Case. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 12/13/2016) (Entered: 12/13/2016)

12/15/2016 646 Letter from CRD in Response to 645 Letter from Raul Chavez. (dtmS, COURT STAFF) (Filed on 12/15/2016) Modified on 12/15/2016 (dtmS, COURT STAFF). (Entered: 12/15/2016)

12/19/2016 647 Letter from Mark McKibben re settlement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 12/19/2016) (Entered: 12/19/2016)

12/27/2016 648 Letter from CRD in Response re 647 Letter from Mark McKibben. (dtmS, COURT STAFF) (Filed on 12/27/2016) (Entered: 12/27/2016)

12/27/2016 649 Mail sent to Ricky Huerta returned as undeliverable. (cpS, COURT STAFF) (Filed on 12/27/2016) (Entered: 12/27/2016)

12/27/2016 652 Letter to Judge Vadas from Guillermo Solorio regarding failure of Settlement Agreement (Attachments: # 1 Envelope)(msr, COURT STAFF) (Filed on 12/27/2016) (Entered: 01/04/2017)

12/29/2016

650 TRANSCRIPT ORDER for proceedings held on 12/07/2016 before Magistrate Judge Nandor J. Vadas by Edmund G. Brown, Jr, for Court Reporter FTR - San Francisco. (Hrvatin, Adriano) (Filed on 12/29/2016) (Entered: 12/29/2016)

12/29/2016

651 ADMINISTRATIVE MOTION For Release of Sealed Portion of Transcript filed by Edmund G. Brown, Jr. Responses due by 1/3/2017. (Attachments: # 1 Proposed Order)(Hrvatin, Adriano) (Filed on 12/29/2016) (Entered: 12/29/2016)

01/04/2017

653 ADMINISTRATIVE MOTION for Release of Sealed Portion of December 7, 2016 Transcript of Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 1/9/2017. (Attachments: # 1 Proposed Order)(Cappella, Anne) (Filed on 1/4/2017) (Entered: 01/04/2017)

01/04/2017 654 ORDER by Judge Nandor J. Vadas granting 651 Administrative Motion ; granting 653 Administrative Motion. (njvlc2, COURT STAFF) (Filed on 1/4/2017) (Entered: 01/04/2017)

01/05/2017 655 Letter from CRD re 652 Letter from Guillermo Solorio. (dtmS, COURT STAFF) (Filed on 1/5/2017) (Entered: 01/05/2017)

01/05/2017 656 ORDER Re Plaintiffs' Motion for De Novo Determination of Dispositive Matter. Signed by Judge Nandor J. Vadas on 1/5/2017. (njvlc1, COURT STAFF) (Filed on 1/5/2017) (Entered: 01/05/2017)

01/10/2017 657 Letter from David Edeza to Judge Vadas. (Attachments: # 1 Envelope)(cjlS, COURT STAFF) (Filed on 1/10/2017) Modified on 1/10/2017 (cjlS, COURT STAFF). (Entered: 01/10/2017)

01/11/2017 658 Letter from CRD re 657 Letter from David Edeza. (dtmS, COURT STAFF) (Filed on 1/11/2017) (Entered: 01/11/2017)

01/19/2017 659 Transcript of Proceedings held on December 7, 2016, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR,

telephone number joan.columbini.csr@gmail.com 510-367-3043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 650 Transcript Order ) Redaction Request due 2/9/2017. Redacted Transcript Deadline set for 2/21/2017. Release of Transcript Restriction set for 4/19/2017. (Related documents(s) 650 ) (Columbini, Joan) (Filed on 1/19/2017) (Entered: 01/19/2017)

01/19/2017 660 ORDER Re Letters Regarding Conflict Counsel. Signed by Judge Nandor J. Vadas on 1/19/2017. (njvlc1, COURT STAFF) (Filed on 1/19/2017) (Entered: 01/19/2017)

01/20/2017

661 STIPULATION WITH PROPOSED ORDER Regarding Supplemental Briefing Addressing January 5, 2017 Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Hrvatin, Adriano) (Filed on 1/20/2017) Modified on 1/23/2017 (cpS, COURT STAFF). (Entered: 01/20/2017)

01/23/2017 662 Order by Magistrate Judge Nandor J. Vadas granting 661 Stipulation.(njvlc1, COURT STAFF) (Filed on 1/23/2017) (Entered: 01/23/2017)

01/26/2017

664 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 1/26/2017. Parties shall meet and confer in person in San Francisco on 2/16/2017. The next further settlement conference shall be held 3/23/2017 at 1:30 pm in Courtroom D, 15th Floor, San Francisco.FTR Time 1:15-2:27. Plaintiff Attorneys Jules Lobel by video conference from Pittsburgh and Azure Wheeler by video from New York. Defendant Attorneys Adriano Hrvatin, Jay Russell and Patricia Lee each from Courtroom 15 in San Francisco. This is a text only Minute Entry (glm, COURT STAFF) (Date Filed: 1/26/2017) Modified on 3/2/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 02/01/2017)

01/30/2017 663 ORDER Granting Further Extension of Time to File Supplemental Briefing. Signed by Judge Nandor J. Vadas on 1/20/2017. (njvlc1, COURT STAFF) (Filed on 1/30/2017) (Entered: 01/30/2017)

02/01/2017

Set/Reset Hearing re 664 Settlement Conference,, Further Settlement Conference set for 3/23/2017 01:30 PM in Courtroom D, 15th Floor, San Francisco. (glm, COURT STAFF) (Filed on 2/1/2017) (Entered: 02/01/2017)

02/03/2017 665 CLERK'S NOTICE. Defendants' Supplemental Brief is due no later than February 10, 2017. Plaintiffs' Response is due no later than February 24,

2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (njvlc1, COURT STAFF) (Filed on 2/3/2017) (Entered: 02/03/2017)

02/09/2017

666 CLERK'S NOTICE The Further Settlement Conference set for 3/23/2017 in this matter will begin at 02:00 PM (and not at the previously scheduled 1:30). The parties are responsible for obtaining permission from the CRD for video conferencing and should update their IT contacts of the rescheduled time if necessary. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 2/9/2017) (Entered: 02/09/2017)

02/10/2017 667 ***ATTACHMENT 7 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -1***

Administrative Motion to File Under Seal Defendants' Supplemental Brief and Supporting Documents Addressing January 5, 2017 Order on Plaintiffs' Motion Regarding Retention of Four Class Members in SHU filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin Supporting Defendants Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 Exhibit A to A. Hrvatin to Declaration Supporting Defendants' Supplemental Brief, # 4 Declaration of J. Jacquez Supporting Defendants' Supplemental Brief, # 5 Exhibit A to J. Jacquez Declaration, # 6 Declaration of A. Hrvatin Supporting Defendants' Supplemental Brief, # 7 Defendants' Supplemental Brief and Supporting Documents Addressing January 5, 2017 Order on Plaintiffs Motion Regarding Retention of Four Class Members in SHU, # 8 Defendants Supplemental Brief and Supporting Documents Addressing January 5, 2017 Order on Plaintiffs Motion Regarding Retention of Four Class Members in SHU (SEAL))(Hrvatin, Adriano) (Filed on 2/10/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 7 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 02/10/2017)

02/13/2017 668 Order by Magistrate Judge Nandor J. Vadas granting 667 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 2/13/2017) (Entered: 02/13/2017)

02/24/2017

669 Administrative Motion to File Under Seal Portions of Plaintiffs' Supplemental Brief Addressing January 5, 2017 Order Regarding Retention of Four Class Members in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Supplemental Brief Addressing January 5, 2017 Order Regarding Retention of Four Class Members in SHU, # 4 UNREDACTED Plaintiffs' Supplemental Brief Addressing January 5,

2017 Order Regarding Retention of Four Class Members in SHU)(Bremer, Carmen) (Filed on 2/24/2017) (Entered: 02/24/2017)

02/24/2017

670 Supplemental Brief re 656 Order Plaintiffs' Supplemental Brief Addressing January 5, 2017 Order Regarding Retention of Four Class Members in SHU filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 656 ) (Bremer, Carmen) (Filed on 2/24/2017) (Entered: 02/24/2017)

02/24/2017

671 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 669 Administrative Motion to File Under Seal Portions of Plaintiffs' Supplemental Brief Addressing January 5, 2017 Order Regarding Retention of Four Class Members in SHU (Bremer, Carmen) (Filed on 2/24/2017) (Entered: 02/24/2017)

03/01/2017 672 Order by Magistrate Judge Nandor J. Vadas granting 669 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 3/1/2017) (Entered: 03/01/2017)

03/02/2017

673 TRANSCRIPT ORDER for proceedings held on 01/26/2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - San Francisco. (Cappella, Anne) (Filed on 3/2/2017) (Entered: 03/02/2017)

03/09/2017 675 Letter from Devlin Stringfellow requesting the court to intervene. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 3/9/2017) Modified on 3/15/2017 (cpS, COURT STAFF). (Entered: 03/14/2017)

03/14/2017

674 Transcript of Proceedings held on January 26, 2017, before Judge Nandor J. Vadas. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 4/4/2017. Redacted Transcript Deadline set for 4/14/2017. Release of Transcript Restriction set for 6/12/2017. (Columbini, Joan) (Filed on 3/14/2017) (Entered: 03/14/2017)

03/20/2017 676 Order by Magistrate Judge Nandor J. Vadas denying 590 Motion for De Novo Determination.(njvlc1, COURT STAFF) (Filed on 3/20/2017) (Entered: 03/20/2017)

03/20/2017 677 Letter from CRD re 675 Letter from Devlin Stringfellow. (dtmS, COURT STAFF) (Filed on 3/20/2017) (Entered: 03/20/2017)

03/23/2017

678 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 3/23/2017. Further Settlement Conference set for 5/4/2017 at 02:00 PM in Courtroom D, 15th Floor, San Francisco. Total Time in Court: 1 Hour. Not Reported.

Plaintiff Attorneys: Carmen Bremer, Carol Strickman; Jules Lobel and Azure Wheeler (by videoconference). Defendant Attorneys: Jay Russell, Adriano Hrvatin, Melissa Bentz, Patricia Lee.

This is a text only Minute Entry. There is no pdf image associated with this entry. (afmS, COURT STAFF) (Date Filed: 3/23/2017) (Entered: 03/23/2017)

03/27/2017

679 *** DISREGARD - FILED IN ERROR (HEARING WAS NOT REPORTED OR RECORDED) *** TRANSCRIPT ORDER for proceedings held on March 23, 2017 before Magistrate Judge Nandor J. Vadas by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - San Francisco. (Hrvatin, Adriano) (Filed on 3/27/2017) Modified on 3/27/2017 (rjdS, COURT STAFF). (Entered: 03/27/2017)

04/03/2017

680 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Juge Regarding Retention of Four Class Mambers in SHU, # 4 UNREDACTED Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Juge Regarding Retention of Four Class Mambers in SHU, # 5 Exhibit REDACTED 1 to the Bremer Declaration, # 6 Exhibit UNREDACTED 1 to the Bremer Declaration, # 7 Exhibit REDACTED 2 to the Bremer Declaration, # 8 Exhibit UNREDACTED 2 to the Bremer Declaration, # 9 Exhibit REDACTED 3 to the Bremer Declaration, # 10 Exhibit UNREDACTED 3 to the Bremer Declaration, # 11 Exhibit REDACTED 4 to the Bremer Declaration, # 12 Exhibit UNREDACTED 4 to the Bremer Declaration, # 13 Exhibit REDACTED 5 to the Bremer Declaration, # 14 Exhibit UNREDACTED 5 to the Bremer Declaration, # 15 Exhibit REDACTED 6 to the Bremer Declaration, # 16 Exhibit UNREDACTED 6 to the Bremer Declaration, # 17 Exhibit REDACTED 7 to the Bremer Declaration, # 18 Exhibit UNREDACTED 7 to the Bremer Declaration, # 19 Exhibit REDACTED 8 to the Bremer Declaration, # 20 Exhibit UNREDACTED 8 to the Bremer Declaration, # 21 Exhibit REDACTED 9 to the Bremer Declaration, # 22 Exhibit UNREDACTED 9 to the Bremer Declaration, # 23 Exhibit

REDACTED 10 to the Bremer Declaration, # 24 Exhibit UNREDACTED 10 to the Bremer Declaration)(Bremer, Carmen) (Filed on 4/3/2017) (Entered: 04/03/2017)

04/03/2017

681 MOTION De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 5/16/2017 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 4/17/2017. Replies due by 4/24/2017. (Attachments: # 1 Declaration Declaration of Carmen E. Bremer, # 2 Exhibit 1 through 10 to the Declaration of Carmen E. Bermer, # 3 Proposed Order)(Bremer, Carmen) (Filed on 4/3/2017) Modified on 4/4/2017 (cpS, COURT STAFF). (Entered: 04/03/2017)

04/03/2017

682 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 680 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 4/3/2017) (Entered: 04/03/2017)

04/06/2017

683 CLERK'S NOTICE. You are hereby notified that the hearing on 5/16/2017 re 681 Motion for De Novo Determination of Dispositive Matter is VACATED. The motion will be decided on the pleadings. (This is a textonly entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 4/6/2017) (Entered: 04/06/2017)

04/06/2017 684 Order by Hon. Claudia Wilken granting 680 Administrative Motion to File Under Seal.(dtmS, COURT STAFF) (Filed on 4/6/2017) (Entered: 04/06/2017)

04/17/2017 685 ***ATTACHMENT 1 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -2***

Administrative Motion to File Under Seal Defendants' Opposition and Supporting Documents to Plaintiffs' Motion for De Novo Review filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Redacted Version of Defs' De Novo Opposition, # 2 Unredacted Version of Defs' De Novo Opposition, # 3 Declaration of A. Hrvatin Supporting Admin. Motion to Seal, # 4 Declaration of J. Jacquez Supporting Defs' Supplemental Brief (SEALED), # 5 Exhibit A to J. Jacquez Supporting Defs' Supplemental Brief (SEALED), # 6 Proposed Order Granting Admin. Motion to File Under Seal)(Hrvatin, Adriano) (Filed on 4/17/2017) Modified on 7/24/2019 (cpS, COURT STAFF).

Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 1 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 04/17/2017)

04/24/2017 686 Order by Hon. Claudia Wilken granting 685 Defendants' Administrative Motion to File Under Seal.(dtmS, COURT STAFF) (Filed on 4/24/2017) (Entered: 04/24/2017)

04/24/2017

687 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Redacted Version of Reply ISO Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU, # 4 Unredacted Version of Reply ISO Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU)(Bremer, Carmen) (Filed on 4/24/2017) (Entered: 04/24/2017)

04/24/2017

688 REPLY (re 681 MOTION De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Retention of Four Class Members in SHU ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Certificate/Proof of Service)(Bremer, Carmen) (Filed on 4/24/2017) (Entered: 04/24/2017)

04/28/2017

689 CLERK'S NOTICE : The Settlement Conference previously scheduled for 5/4/2017 is continued to 5/24/2017 at 1:30 PM. Parties participating from San Francisco should meet in Courtroom 14 on the 18th Floor. Up to three separate video conference appearances may be scheduled with the court's IT Department. The parties should confer promptly to agree on video conference requests before contacting the IT Department. (This is a textonly entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 4/28/2017) (Entered: 04/28/2017)

05/03/2017

690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/13/2017 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 5/17/2017. Replies due by 5/24/2017. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Declaration of Anne Cappella, # 3 Declaration of Gregg Hull, # 4 Declaration of Jules Lobel, # 5 Declaration of Rachel Meeropol, # 6 Declaration of Marilyn McMahon, # 7 Declaration of Samuel Miller, # 8 Exhibit 1 to 25 of Miller Declaration, # 9 Declaration of Rebecca Rabkin, # 10 Declaration of Carol Strickman, # 11 Declaration of Carole Travis, # 12 Declaration of Anne Weills, # 13 Declaration of Todd Ashker, # 14 Declaration of Amy Fettig,

# 15 Declaration of Margo Schlanger, # 16 Proposed Order)(Miller, Samuel) (Filed on 5/3/2017) (Entered: 05/03/2017)

05/08/2017 691 Order by Hon. Claudia Wilken granting 687 Administrative Motion to File Under Seal.(dtmS, COURT STAFF) (Filed on 5/8/2017) (Entered: 05/08/2017)

05/16/2017

692 STIPULATION WITH PROPOSED ORDER Modifying Briefing and Hearing Schedule on Plaintiffs' Motion for Attorneys' Fees and Costs for Monitoring and Enforcement of Settlement Agreement filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 5/16/2017) (Entered: 05/16/2017)

05/16/2017 693 Order by Hon. Claudia Wilken granting 692 Stipulation Modifying Briefing and Hearing Schedule on Motion for Attorney Fees.(dtmS, COURT STAFF) (Filed on 5/16/2017) (Entered: 05/16/2017)

05/16/2017

Set/Reset Deadlines as to 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement. Responses due by 6/28/2017. Replies due by 7/18/2017. Motion Hearing set for 8/1/2017 02:30 PM before Hon. Claudia Wilken. (dtmS, COURT STAFF) (Filed on 5/16/2017) (Entered: 05/16/2017)

05/23/2017 694 Letter from Richard Shines Winson Jr. (Attachments: # 1 Envelope)(cjlS, COURT STAFF) (Filed on 5/23/2017) (Entered: 05/24/2017)

05/24/2017

695 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Settlement Conference held on 5/24/2017. Settlement Conference/Monitoring Meeting set for 8/1/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco.FTR Time 1:34-2:45. Plaintiff Attorneys Azure Wheeler, Jules Lobel, Carmen Bremer, Carol Strickman. Defendant Attorneys Adriano Hrvatin, Patrick McKinney CDCR, Patricia Lee CDCR, Melissa Bentz CDCR, Natasha Machado CDCR. This is a text-only Minute Entry (glm, COURT STAFF) (Date Filed: 5/24/2017) Modified on 7/7/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 05/25/2017)

05/26/2017 696 Letter from CRD re 694 Letter from Richard Winson. (dtmS, COURT STAFF) (Filed on 5/26/2017) (Entered: 05/26/2017)

06/07/2017

697 CLERK'S NOTICE At the request of Plaintiff's counsel, a telephonic phone conference is scheduled for 6/8/2017 01:30 PM. The parties may appear by dialing 888-684-8852/Access Code 1868782. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 6/7/2017) (Entered: 06/07/2017)

06/08/2017

704 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Further Settlement Conference held on 6/8/2017. CDCR will provide update in no more than two weeks. Plaintiff will file a motion no later than 6/14/2017. Opposition is due by 6/21/2017. Hearing

scheduled for 6/22/2017 at 10:00 AM. Parties may appear by phone by dialing 888-684-8852/Access Code 1868782. FTR Time Unsealed 1:351:39 / Sealed 1:39-1:52 / Unsealed 1:52-1:59. Plaintiff Attorney Carmen Bremer and Jules Lobel both by phone. Defendant Attorneys Audriano Hrvatin, Jay Russell, Patricia Lee (CDCR), Marissa Bentz (CDCR) and Deputy Director Connie Gibson all by phone. This is a text-only Minute Entry (glm, COURT STAFF) (Date Filed: 6/8/2017) Modified on 6/9/2017 (glm, COURT STAFF). Modified on 7/7/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 06/09/2017)

06/08/2017

Set/Reset Hearing re 704 Settlement Conference, Motion Hearing set for 6/22/2017 10:00 AM before Magistrate Judge Nandor J. Vadas. (glm, COURT STAFF) (Filed on 6/8/2017) (Entered: 06/09/2017)

06/09/2017 698 NOTICE by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis of Unavailability of Counsel for Defendants (Russell, Jay) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/09/2017

699 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Exhibit A & B REDACTED, # 4 Exhibit A & B UNREDACTED, ***(DISREGARD. RE-FILED AT DKT. # 701 1)***, # 5 Proposed Order Granting Motion to Compel REDACTED, ***(DISREGARD. RE-FILED AT DKT. # 701 -2)***, # 6 Proposed Order Granting Motion to Compel UNREDACTED)(Bremer, Carmen) (Filed on 6/9/2017) Modified on 6/12/2017 (cpS, COURT STAFF). (Entered: 06/09/2017)

06/09/2017 700

***FILED IN ERROR. RE-FILED AT DKT. #S 701 -3 & 701 -4***

Supplemental Administrative Motion to File Under Seal [Dkt. 699] Attaching Redacted and Unredacted Versions of Plaintiffs' Motion to Compel Production of Disciplinary Documents filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Plaintiffs' Motion to Compel Production of Disciplinary Documents UNREDACTED)(Bremer, Carmen) (Filed on 6/9/2017) Modified on 6/12/2017 (cpS, COURT STAFF). Modified on 6/12/2017 (cpS, COURT STAFF). (Entered: 06/09/2017)
06/09/2017 701 EXHIBITS re 699 Administrative Motion to File Under Seal filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell.

(Attachments: # 1 Proposed Order Corrected and Redacted, # 2 Proposed Order Corrected and Unredacted, # 3 Plaintiffs' Motion to Compel Production of Disciplinary Documents Redacted, # 4 Plaintiffs' Motion to Compel Production of Disciplinary Documents Unredacted)(Related document(s) 699 ) (Bremer, Carmen) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/09/2017

702 MOTION to Compel Production of Disciplinary Documents filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 7/18/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 6/23/2017. Replies due by 6/30/2017. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A & B Redacted, # 3 Proposed Order Granting Plaintiffs' Motion to Compel Production of Disciplinary Documents)(Bremer, Carmen) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/09/2017

703 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 701 Exhibits to an Administrative Motion to File Under Seal,, 699 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/09/2017

705 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Motion to Enjoin CDCR Redacted, # 4 Plaintiffs' Motion to Enjoin CDCR Unredacted, # 5 Declaration of Carmen E. Bremer in Support of Motion to Enjoin Redacted, # 6 of Carmen E. Bremer in Support of Motion to Enjoin Unredacted, # 7 Exhibit A-G of Bremer Declaration Redacted, # 8 Exhibit A-G of Bremer Declaration Unredacted, # 9 Proposed Order Granting Motion to Enjoin Redacted, # 10 Proposed Order Granting Motion to Enjoin Unredacted)(Bremer, Carmen) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/09/2017

706 MOTION TO ENJOIN CDCR FROM RETAINING CLASS MEMBERS IN THE SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 8/8/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 6/23/2017. Replies due by 6/30/2017. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A-G of the Bremer Declaration, # 3 Proposed Order)(Bremer, Carmen) (Filed on 6/9/2017) Modified on 6/12/2017 (cpS, COURT STAFF). (Entered: 06/09/2017)

06/09/2017

707 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 705 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 6/9/2017) (Entered: 06/09/2017)

06/14/2017

708 STIPULATION WITH PROPOSED ORDER to Change Time on Briefing and Hearing Schedule on Plaintiffs Motion to Enjoin CDCR From Retaining Class Members in the SHU filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Russell, Jay) (Filed on 6/14/2017) Modified on 6/15/2017 (cpS, COURT STAFF). (Entered: 06/14/2017)

06/14/2017

709 MOTION for Extension of Time to File Response to Plaintiffs Motion to Compel filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration Jay C. Russell, # 2 Exhibit A to Declaration of Jay C. Russell, # 3 Proposed Order)(Russell, Jay) (Filed on 6/14/2017) (Entered: 06/14/2017)

06/14/2017

710 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Motion to Enjoin CDCR From Retaining Ashker in Administrative Segregation and for Order to Show Cause, # 4 UNREDACTED Plaintiffs' Motion to Enjoin CDCR From Retaining Ashker in Administrative Segregation and for Order to Show Cause, # 5 Exhibit A to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause (Exs. A-D of Askher Decl) - REDACTED, # 6 Exhibit A to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause (Exs. A-D of Askher Decl) - UNREDACTED, # 7 Exhibit B to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause - REDACTED, # 8 Exhibit B to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause UNREDACTED, # 9 Exhibit C to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause - REDACTED, # 10 Exhibit B to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation and for Order to Show Cause UNREDACTED)(Bremer, Carmen) (Filed on 6/14/2017) (Entered: 06/14/2017)

06/14/2017

711 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 710 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 6/14/2017) (Entered: 06/14/2017)

06/14/2017

712 MOTION to Enjoin CDCR From Retaining Ashker in Administrative Segregation and for Order to Show Cause filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/22/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 6/21/2017. (Attachments: # 1 Declaration of Carmen E. Bremer In Support of Plaintiffs' Motion to Enjoin CDCR From Retaining Ashker in Administrative Segregation and for Order to Show Cause, # 2 Exhibit A to the Bremer Declaration, # 3 Exhibit B to the Bremer Declaration, # 4 Exhibit C to the Bremer Declaration, # 5 Exhibit D to the Bremer Declaration, # 6 Exhibit E to the Bremer Declaration, # 7 Exhibit F to the Bremer Declaration, # 8 Proposed Order)(Bremer, Carmen) (Filed on 6/14/2017) Modified on 6/15/2017 (cpS, COURT STAFF). (Entered: 06/14/2017)

06/16/2017

713 ORDER by Judge Nandor J. Vadas granting 708 Stipulation. Motion Hearing Re Doc. 706 is reset for 8/22/2017 10:00 AM in Eureka before Magistrate Judge Nandor J. Vadas. (njvlc1, COURT STAFF) (Filed on 6/16/2017) (Entered: 06/16/2017)

06/19/2017

714 *** DISREGARD - FILED IN ERROR (HEARING WAS NOT REPORTED OR RECORDED) *** TRANSCRIPT ORDER for proceedings held on 03/23/2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - San Francisco. (Cappella, Anne) (Filed on 6/19/2017) Modified on 6/19/2017 (rjdS, COURT STAFF). (Entered: 06/19/2017)

06/19/2017

715 OPPOSITION/RESPONSE (re 709 MOTION for Extension of Time to File Response to Plaintiffs Motion to Compel ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 6/19/2017) (Entered: 06/19/2017)

06/21/2017

716 Administrative Motion to File Under Seal Defendants' Response to Magistrate Judge Vadas's June 8, 2017 Minute Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Letter Brief, # 3 Exhibit A-F to Hrvatin Declaration, # 4 Proposed Order)(Hrvatin, Adriano) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017

717 Order by Magistrate Judge Nandor J. Vadas granting 709 Motion for Extension of Time to File Response to Plaintiffs' Motion to Compel.(njvlc1, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017

Set/Reset Hearing re 702 MOTION to Compel Production of Disciplinary Documents Motion Hearing reset for 8/1/2017 10:00 AM before Magistrate Judge Nandor J. Vadas. (njvlc1, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017 718 Order by Magistrate Judge Nandor J. Vadas granting 705 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017 719 Order by Magistrate Judge Nandor J. Vadas granting 710 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017 720 Order by Magistrate Judge Nandor J. Vadas granting 699 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/21/2017 721 Order by Magistrate Judge Nandor J. Vadas granting 716 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 6/21/2017) (Entered: 06/21/2017)

06/22/2017

Per order 717 . Set/Reset Deadlines as to 702 MOTION to Compel Production of Disciplinary Documents. Responses due by 7/11/2017. Replies due by 7/18/2017. Motion Hearing set for 8/1/2017 at 10:00 AM before Magistrate Judge Nandor J. Vadas. (cpS, COURT STAFF) (Filed on 6/22/2017) (Entered: 06/22/2017)

06/22/2017

722 Order by Magistrate Judge Nandor J. Vadas denying 712 Motion to Enjoin CDCR from Retaining Ashker in Administrative Segregation.(njvlc1S, COURT STAFF) (Filed on 6/22/2017) (Entered: 06/22/2017)

06/22/2017

724 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Motion Hearing held on 6/22/2017. Court will prepare Order. FTR Time Unsealed 10:14-10:15/Sealed 10:15-10:35. Plaintiff Attorneys Carmen Bremer and Jules Lobel by phone. Defendant Attorneys Jay Russell, Audriano Hrvatin both by phone with Patricia Lee (CDCR), Melissa Bentz (CDCR) and Deputy Director Connie Gibson all by phone. This is a text-only Minute Entry (glm, COURT STAFF) (Date Filed: 6/22/2017) Modified on 7/7/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 06/23/2017)

06/23/2017 723 STIPULATION WITH PROPOSED ORDER Extending Defendants' Deadline to Oppose Plaintiffs' Motion for Attorneys' Fees and Costs for

Monitoring and Enforcement of Settlement Agreement filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Hrvatin, Adriano) (Filed on 6/23/2017) Modified on 6/26/2017 (cpS, COURT STAFF). (Entered: 06/23/2017)

06/26/2017

725 Order by Hon. Claudia Wilken granting 723 STIPULATION EXTENDING DEFENDANTS DEADLINE TO OPPOSE PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS FOR MONITORING AND ENFORCEMENT OF SETTLEMENT AGREEMENT.(dtmS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)

06/26/2017

Set/Reset Deadlines as to 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement. Responses due by 6/29/2017. (dtmS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)

06/29/2017

726 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Administrative Motion, # 2 Proposed Order Granting Administrative Motion, # 3 REDACTED Plaintiffs' Enforcement Motion Challenging RCGP Placement, # 4 UNREDACTED Plaintiffs' Enforcement Motion Challenging RCGP Placement, # 5 REDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion, # 6 UNREDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion, # 7 Exhibit REDACTED Exhibits A-H of the Bremer Declaration, # 8 Exhibit UNREDACTED Exhibits A-H of the Bremer Declaration, # 9 Proposed Order REDACTED Proposed Order, # 10 UNREDACTED Proposed Order)(Bremer, Carmen) (Filed on 6/29/2017) (Entered: 06/29/2017)

06/29/2017

727 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 726 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 6/29/2017) (Entered: 06/29/2017)

06/29/2017

728 MOTION Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 8/29/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 7/13/2017. Replies due by 7/20/2017. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member - REDACTED, # 2 Exhibit REDACTED Exhibits A-H of the

Bremer Declaration, # 3 Proposed Order REDACTED Proposed Order)(Bremer, Carmen) (Filed on 6/29/2017) (Entered: 06/29/2017)

06/29/2017

729 Administrative Motion to File Under Seal Exhibit Two to G. Knapton's Declaration filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of Hrvatin, # 2 Exhibit 2 to Knapton Decln, # 3 Certificate/Proof of Service, # 4 Proposed Order)(Hrvatin, Adriano) (Filed on 6/29/2017) Modified on 6/30/2017 (cpS, COURT STAFF). (Entered: 06/29/2017)

06/29/2017

730 OPPOSITION/RESPONSE (re 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of Knapton, # 2 Exhibit 1 to 8)(Hrvatin, Adriano) (Filed on 6/29/2017) (Entered: 06/29/2017)

07/06/2017

731 OPPOSITION/RESPONSE (re 729 Administrative Motion to File Under Seal Exhibit Two to G. Knapton's Declaration ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 7/6/2017) (Entered: 07/06/2017)

07/06/2017

732 ADMINISTRATIVE MOTION for Release of Sealed Portions of Transcripts filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Responses due by 7/10/2017. (Attachments: # 1 Proposed Order)(Hrvatin, Adriano) (Filed on 7/6/2017) (Entered: 07/06/2017)

07/06/2017

733 TRANSCRIPT ORDER for proceedings held on 05/24/2017, 6/8/2017, 6/22/2017 before Magistrate Judge Nandor J. Vadas by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR San Francisco. (Hrvatin, Adriano) (Filed on 7/6/2017) Modified on 7/7/2017 (cpS, COURT STAFF). (Entered: 07/06/2017)

07/06/2017 734 ORDER Re Request for Telephonic Conference. Signed by Judge Nandor J. Vadas on 7/6/2017. (njvlc1, COURT STAFF) (Filed on 7/6/2017) (Entered: 07/06/2017)

07/06/2017

735 MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE RULING BY MAGISTRATE JUDGE REGARDING RETALIATION filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 7/7/2017 02:30 PM before Hon. Claudia Wilken. Responses due by 7/7/2017. Replies due by 7/7/2017. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 7/6/2017) Modified on 7/7/2017 (cpS, COURT STAFF). (Entered: 07/06/2017)

07/07/2017

736 CLERK'S NOTICE. You are hereby notified that the briefing schedule and hearing date scheduled in relation to 735 Motion were set in error and are terminated. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 7/7/2017) (Entered: 07/07/2017)

07/07/2017

737 MOTION for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 7/21/2017. Replies due by 7/28/2017. (Attachments: # 1 Declaration of Jules Lobel, # 2 Declaration of Dan Siegel, # 3 Exhibit 1 - 7, # 4 Proposed Order)(Miller, Samuel) (Filed on 7/7/2017) Modified on 7/10/2017 (cpS, COURT STAFF). (Entered: 07/07/2017)

07/07/2017

738 MOTION to Change Briefing and Hearing Schedule on Plaintiffs' Enforcement Motion filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order)(Hrvatin, Adriano) (Filed on 7/7/2017) Modified on 7/10/2017 (cpS, COURT STAFF). (Entered: 07/07/2017)

07/10/2017

739 Order by Hon. Claudia Wilken granting 735 MOTION RE DE NOVO DETERMINATION AND PRESERVATION OF RIGHTS REGARDING RETALIATION.(dtmS, COURT STAFF) (Filed on 7/10/2017) (Entered: 07/10/2017)

07/10/2017

740 CLERK'S NOTICE. You are hereby notified that the hearing on 8/1/2017 re 690 Motion for Attorney Fees is VACATED. The motion will be decided on the papers. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 7/10/2017) (Entered: 07/10/2017)

07/11/2017

741 Statement of Non-Opposition re 738 MOTION to Change Briefing and Hearing Schedule on Plaintiffs' Enforcement Motion filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 738 ) (Miller, Samuel) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017 742 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -3***

Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' Motion to Compel Production of Disciplinary Documents filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 Defendants' Opposition to Plaintiffs' Motion to Compel Production of Disciplinary Documents (redacted), # 4 Defendants' Opposition to

Plaintiffs' Motion to Compel Production of Disciplinary Documents (seal))(Hrvatin, Adriano) (Filed on 7/11/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 07/11/2017)

07/11/2017 743 Order by Magistrate Judge Nandor J. Vadas granting 738 Motion for Extension of Time.(njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017

Set/Reset Hearing re 728 MOTION Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member Motion Hearing reset for 9/12/2017 10:00 AM before Magistrate Judge Nandor J. Vadas. (njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017

744 Order by Magistrate Judge Nandor J. Vadas granting 732 Administrative Motion re release of sealed portions of transcripts.(njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017 745 Order by Magistrate Judge Nandor J. Vadas granting 729 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017 746 Order by Magistrate Judge Nandor J. Vadas granting 726 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/11/2017 747 Order by Magistrate Judge Nandor J. Vadas granting 742 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/14/2017

748 STIPULATION WITH PROPOSED ORDER for Extension of Time to File Reply re Motion for Attorneys' Fees and Costs for Monitoring and Enforcement of Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr. (Miller, Samuel) (Filed on 7/14/2017) Modified on 7/17/2017 (cpS, COURT STAFF). (Entered: 07/14/2017)

07/14/2017

749 Order by Hon. Claudia Wilken granting 748 STIPULATION FOR EXTENSION OF TIME TO FILE REPLY RE MOTION FOR ATTORNEYS FEES AND COSTS FOR MONITORING AND ENFORCEMENT OF SETTLEMENT AGREEMENT by Honorable Claudia Wilken.(dtmS, COURT STAFF) (Filed on 7/14/2017) (Entered: 07/14/2017)

07/14/2017

Set/Reset Deadlines as to 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement. Replies due by

7/20/2017. (dtmS, COURT STAFF) (Filed on 7/14/2017) (Entered: 07/14/2017)

07/14/2017

750 MOTION to Extend Time for Defendants to Comply with June 22, 2017 Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Responses due by 7/28/2017. Replies due by 8/4/2017. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Exhibit A to Hrvatin Decln., # 3 Proposed Order)(Hrvatin, Adriano) (Filed on 7/14/2017) (Entered: 07/14/2017)

07/17/2017 751 Order by Magistrate Judge Nandor J. Vadas granting 750 Motion Extend Time.(njvlc1, COURT STAFF) (Filed on 7/17/2017) (Entered: 07/17/2017)

07/18/2017

752 Administrative Motion to File Under Seal Portions of Plaintiffs' Reply in Support of Motion to Compel Production of Disciplinary Documents filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Reply in Support of Motion to Compel Production of Disciplinary Documents, # 4 UNREDACTED Plaintiffs' Reply in Support of Motion to Compel Production of Disciplinary Documents)(Bremer, Carmen) (Filed on 7/18/2017) (Entered: 07/18/2017)

07/18/2017

753 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Bremer, Carmen) (Filed on 7/18/2017) (Entered: 07/18/2017)

07/18/2017

754 REPLY (re 702 MOTION to Compel Production of Disciplinary Documents ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 7/18/2017) (Entered: 07/18/2017)

07/20/2017

755 REPLY (re 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1 - 13 of the Miller Declaration, # 3 Declaration of Carmen Bremer, # 4 Exhibit 1 - 5 of the Bremer Declaration, # 5 Declaration Carol Strickman, # 6 Plaintiffs' Objections and Request to Strike Testimony of G. Knapton, # 7 Proposed Order)(Miller, Samuel) (Filed on 7/20/2017) (Entered: 07/20/2017)

07/20/2017 756 Request for Interim Payment of Undisputed Attorneys' Fees filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell.

(Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 7/20/2017) Modified on 7/21/2017 (cpS, COURT STAFF). (Entered: 07/20/2017)
07/21/2017 757 NOTICE of Withdrawal of Attorney Alexis Agathocleous by Samuel Rand Miller (Miller, Samuel) (Filed on 7/21/2017) Modified on 7/24/2017 (cpS, COURT STAFF). (Entered: 07/21/2017)
07/21/2017 758 NOTICE of Change In Counsel by Samuel Rand Miller Notice of Withdrawal of Attorney Somalia L. Samuel-Frank (Miller, Samuel) (Filed on 7/21/2017) (Entered: 07/21/2017)
07/24/2017 759 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -4***

Administrative Motion to File Under Seal filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 Defendants' Opposition to Pls' Motion to Enjoin Defendants from Retaining Two Inmates in SHU (red), # 4 Defendants' Opposition to Pls' Motion to Enjoin Defendants from Retaining Two Inmates in SHU (Seal))(Hrvatin, Adriano) (Filed on 7/24/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 07/24/2017)

07/25/2017

760 Transcript of Proceedings held on June 22, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 733 Transcript Order, ) Redaction Request due 8/15/2017. Redacted Transcript Deadline set for 8/25/2017. Release of Transcript Restriction set for 10/23/2017. (Related documents(s) 733 ) (Columbini, Joan) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/25/2017

761 Transcript of Proceedings held on June 8, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 733 Transcript Order, )

Redaction Request due 8/15/2017. Redacted Transcript Deadline set for 8/25/2017. Release of Transcript Restriction set for 10/23/2017. (Related documents(s) 733 ) (Columbini, Joan) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/25/2017

762 Transcript of Proceedings held on May 24, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 733 Transcript Order, ) Redaction Request due 8/15/2017. Redacted Transcript Deadline set for 8/25/2017. Release of Transcript Restriction set for 10/23/2017. (Related documents(s) 733 ) (Columbini, Joan) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/25/2017

763 Sealed Transcript of Proceedings held on June 22, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 8/14/2017. Redacted Transcript Deadline set for 8/22/2017. (Columbini, Joan) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/25/2017

764 Sealed Transcript of Proceedings held on June 8, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 8/14/2017. Redacted Transcript Deadline set for 8/22/2017. (Columbini, Joan) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/25/2017

765 ORDER REFERRING MOTION TO MAGISTRATE JUDGE VADAS: 737 MOTION for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team. Signed by Judge Claudia Wilken on 7/25/17. (dtmS, COURT STAFF) (Filed on 7/25/2017) (Entered: 07/25/2017)

07/26/2017 766 Order by Magistrate Judge Nandor J. Vadas granting 752 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 7/26/2017) (Entered: 07/26/2017)

07/26/2017 767 Order by Magistrate Judge Nandor J. Vadas granting 759 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 7/26/2017) (Entered: 07/26/2017)

07/27/2017

768 ORDER REFERRING MOTION TO MAGISTATE JUDGE VADAS: 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement. Signed by Judge Claudia Wilken on 7/27/17. (dtmS, COURT STAFF) (Filed on 7/27/2017) (Entered: 07/27/2017)

07/27/2017

769 OBJECTIONS to Reply Evidence Submitted By Plaintiffs in Support of re 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Russell, Jay) (Filed on 7/27/2017) Modified on 7/28/2017 (cpS, COURT STAFF). (Entered: 07/27/2017)

08/01/2017

770 *** SPECIAL NOTE: FTR AUDIO EQUIPMENT FAILURE OCCURRED - NO AUDIO FILES ARE AVAILABLE FOR THIS HEARING *** Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference & Motion Hearing held on 8/1/2017 re 702 MOTION to Compel Production of Disciplinary Documents filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, & Todd Ashker held on 8/1/2017. The matter was argued, submitted, and taken under submission (FTR Time 10:36-12:20.)

Plaintiffs' Motion to Enjoin CDCR from Retaining Class Members in the Shu (Dkt. No. 706 ) remains on the Court's calendar for 8/22/2017 at 10:00 a.m. in Eureka. Defendants to respond to Plaintiff's Motion for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team (Dkt. No. 737 ) 15 days after CDCR's determination on the ban. Plaintiffs' Enforcement Motion (Dkt. No. 728 ) is continued from 9/12/2017 to 9/18/2017 at 10:00 a.m. in Courtroom D in San Francisco. The Court will also conduct a further status conference at that time.

Attorneys for Plaintiffs: Carmen Bremer; Carol Strickland; Daniel Siegel; Anne Weills; Azure Wheeler (by telephone); Jules Lobel (by telephone). Attorneys for Defendants: Adriano Hrvatin; Jay Russell; Patricia Lee; Patrick McKinney; Melissa Bentz.

This is a text-only Minute Entry (ahm, COURT STAFF) (Date Filed: 8/1/2017) Modified on 3/26/2019 (rjdS, COURT STAFF). (Entered: 08/01/2017)

08/01/2017

Set/Reset Deadlines as to 728 MOTION Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member . Motion Hearing reset for 9/18/2017 at 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. (ahm, COURT STAFF) (Filed on 8/1/2017) (Entered: 08/01/2017)

08/01/2017

Set/Reset Hearing: Further Status Conference set for 9/18/2017 at 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. (ahm, COURT STAFF) (Filed on 8/1/2017) (Entered: 08/01/2017)

08/01/2017

Remark: Please note that Judge Vadas used Courtroom F (JSC) on 8/1/2017. (ahm, COURT STAFF) (Filed on 8/1/2017) (Entered: 08/01/2017)

08/01/2017 771 Order by Hon. Claudia Wilken denying 681 Motion for De Novo Determination.(dtmS, COURT STAFF) (Filed on 8/1/2017) (Entered: 08/01/2017)

08/08/2017

772 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Reply in Support of Motion to Enjoin, # 4 UNREDACTED Plaintiffs' Reply in Support of Motion to Enjoin, # 5 Declaration REDACTED Declaration in Support of Plaintiffs' Reply, # 6 Declaration UNREDACTED Declaration in Support of Plaintiffs' Reply, # 7 Exhibit REDACTED Exhibit H, # 8 Exhibit UNREDACTED Exhibit H)(Bremer, Carmen) (Filed on 8/8/2017) (Entered: 08/08/2017)

08/08/2017

773 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 772 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 8/8/2017) (Entered: 08/08/2017)

08/08/2017

774 REPLY (re 706 MOTION TO ENJOIN CDCR FROM RETAINING CLASS MEMBERS IN THE SHU ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply in Support of Motion to Enjoin CDCR from Retaining Class Members in SHU, # 2 Exhibit H to Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply in Support of Motion to Enjoin CDCR from Retaining Class Members in SHU)(Bremer, Carmen) (Filed on 8/8/2017) (Entered: 08/08/2017)

08/09/2017

775 STIPULATION WITH PROPOSED ORDER Regarding Housing of Todd Ashker filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr. (Bremer, Carmen) (Filed on 8/9/2017) Modified on 8/10/2017 (cpS, COURT STAFF). (Entered: 08/09/2017)

08/11/2017 776 Order by Magistrate Judge Nandor J. Vadas granting 772 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 8/11/2017) (Entered: 08/11/2017)

08/15/2017 777 ORDER Taking Matter Off Calendar. Signed by Judge Nandor J. Vadas on 8/15/2017. (njvlc1S, COURT STAFF) (Filed on 8/15/2017) (Entered: 08/15/2017)

08/15/2017 778 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -5***

Administrative Motion to File Under Seal Defendants Opposition to Plaintiffs Enforcement Motion Challenging One Inmates Restricted Custody General Population Placement and Supporting Documents filed by Edmund G. Brown, Jr. (Attachments: # 1 Declaration of A. Hrvatin Supporting Defendants Administrative Motion to File Under Seal Defendants Opposition to Plaintiffs Motion Challenging One Inmates Restricted Custody General Population Placement and Supporting Documents, # 2 Proposed Order, # 3 Redacted Opposition to Plaintiffs Enforcement Motion Challenging Inmate Restricted Custody General Population Placement, # 4 UnRedacted Opposition to Plaintiffs Enforcement Motion Challenging Inmate Restricted Custody General Population Placement, # 5 Redacted J. Jacquez Declaration Supporting Defendants' Opposition to Plaintiffs' Enforcement Motion Challenging an Inmate Restricted Custody General Population Placement, # 6 Unredacted J. Jacquez Declaration Supporting Defendants' Opposition to Plaintiffs' Enforcement Motion Challenging an Inmate Restricted Custody General Population Placement, # 7 Certificate/Proof of Service)(Hrvatin, Adriano) (Filed on 8/15/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 08/15/2017)

08/21/2017 779 Order by Magistrate Judge Nandor J. Vadas granting 775 Stipulation.(njvlc1, COURT STAFF) (Filed on 8/21/2017) (Entered: 08/21/2017)

08/22/2017

780 MOTION for Rule 54(b) Certification filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/3/2017 02:30 PM before Hon. Claudia Wilken.

Responses due by 9/5/2017. Replies due by 9/12/2017. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 8/22/2017) Modified on 8/23/2017 (cpS, COURT STAFF). (Entered: 08/22/2017)

08/29/2017

781 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Reply in Support of Enforcement Motion Challenging RCGP Placement of Class Member, # 4 UNREDACTED Plaintiffs' Reply in Support of Enforcement Motion Challenging RCGP Placement of Class Member, # 5 Declaration REDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply, # 6 Declaration UNREDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply, # 7 Exhibit REDACTED Exhibit I to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply, # 8 Exhibit UNREDACTED Exhibit I to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply, # 9 Exhibit REDACTED Exhibit J to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply, # 10 Exhibit UNREDACTED Exhibit J to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply)(Bremer, Carmen) (Filed on 8/29/2017) (Entered: 08/29/2017)

08/29/2017

782 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 781 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 8/29/2017) (Entered: 08/29/2017)

08/29/2017

783 REPLY (re 728 MOTION Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit I, # 3 Exhibit J)(Bremer, Carmen) (Filed on 8/29/2017) (Entered: 08/29/2017)

08/30/2017 784 Order by Magistrate Judge Nandor J. Vadas granting 781 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 8/30/2017) (Entered: 08/30/2017)

08/30/2017 785 Order by Magistrate Judge Nandor J. Vadas denying 702 Motion to Compel.(njvlc1S, COURT STAFF) (Filed on 8/30/2017) (Entered: 08/30/2017)

08/30/2017 786 Order by Magistrate Judge Nandor J. Vadas denying 706 Motion to Enjoin CDCR from Retaining Class Members in the SHU.(njvlc1S, COURT STAFF) (Filed on 8/30/2017) (Entered: 08/30/2017)

08/31/2017 787 Order by Magistrate Judge Nandor J. Vadas granting 778 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 8/31/2017) (Entered: 08/31/2017)

08/31/2017

788 CLERK'S NOTICE At the status conference on August 1, 2017, Plaintiffs' Counsel informed the court that Plaintiffs object to the referral of Plaintiffs' Motion for Attorneys' Fees and Costs to Magistrate Judge Vadas. (This is a text-only entry generated by the court. There is no document associated with this entry.) (njvlc1, COURT STAFF) (Filed on 8/31/2017) (Entered: 08/31/2017)

09/05/2017

789 (FILED UNDER SEAL) ORDER by Magistrate Judge Nandor Vadas denying 728 Plaintiffs' Enforcement Motion Challenging RCGP Placement of a Class Member.. (msrS, COURT STAFF) (Filed on 9/5/2017) (msrS, COURT STAFF). (Entered: 09/05/2017)

09/07/2017

790 ADMINISTRATIVE MOTION to Submit Documents For In Camera Review; (Proposed) Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Responses due by 9/11/2017. (Hrvatin, Adriano) (Filed on 9/7/2017) Modified on 9/8/2017 (cpS, COURT STAFF). (Entered: 09/07/2017)

09/07/2017 791 ***MAIN DOCUMENT REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -6***

RESPONSE TO ORDER TO SHOW CAUSE Regarding Attorney Weills's Lifetime Communications Ban by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of J. Jacquez, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F through O, # 8 Proposed Order)(Hrvatin, Adriano) (Filed on 9/7/2017) Modified on 9/8/2017 (cpS, COURT STAFF). Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Main Document 791 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 09/07/2017)

09/08/2017 792 Order by Magistrate Judge Nandor J. Vadas granting 790 Administrative Motion for In Camera Review.(njvlc1S, COURT STAFF) (Filed on 9/8/2017) (Entered: 09/08/2017)

09/13/2017

793 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Production of Documents Required by Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/24/2017 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/27/2017. Replies due by 10/4/2017. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A-C,

# 3 Proposed Order)(Bremer, Carmen) (Filed on 9/13/2017) (Entered: 09/13/2017)

09/13/2017

794 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU, # 4 UNREDACTED Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU, # 5 Declaration of Carmen E. Bremer in Support of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU - REDACTED, # 6 Declaration of Carmen E. Bremer in Support of Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU - UNREDACTED, # 7 Exhibit A - F - REDACTED, # 8 Exhibit A - F - UNREDACTED, # 9 Proposed Order Granting Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU REDACTED, # 10 Proposed Order Granting Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU UNREDACTED)(Bremer, Carmen) (Filed on 9/13/2017) (Entered: 09/13/2017)

09/13/2017

795 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/24/2017 02:30 PM in Courtroom 2, 4th Floor, Oakland before Hon. Claudia Wilken. Responses due by 9/27/2017. Replies due by 10/4/2017. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU, # 2 Exhibit A - F of the Declaration of Carmen E. Bremer, # 3 Proposed Order)(Bremer, Carmen) (Filed on 9/13/2017) (Entered: 09/13/2017)

09/13/2017

796 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 794 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 9/13/2017) (Entered: 09/13/2017)

09/15/2017 797 REPLY (re 737 MOTION for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team ) filed

byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carol Strickman, # 2 Proposed Order)(Miller, Samuel) (Filed on 9/15/2017) (Entered: 09/15/2017)

09/18/2017

798 *** SPECIAL NOTE: FTR AUDIO EQUIPMENT FAILURE OCCURRED - NO AUDIO FILES ARE AVAILABLE FOR THIS HEARING *** Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Status Conference held on 9/18/2017.

FTR Time: 10:20-11:08. Total Time: 1 hr. 8 mins.

Plaintiff Attorney(s): Dan Siegel, Esq., Carmen E. Bremer, Esq., Anne Butterfield Weills, Esq., Carol Strickman, Esq., Samuel Miller, Esq. appearing by telephone.

Defendant Attorney(s): Patricia Lee, Esq., CDCR, Patrick R. McKinney II, General Counsel, CDCR, Adriano Hrvatin, Deputy Attorney General CDCR, Melissa C. Bentz, Esq., CDCR.

Attachment: Minutes of Status Conference; Status Conference held. Oral Argument on the Order to Show Cause set for October 20, 2017 at 10:00 a.m., in Courtroom D, 15th Floor, 450 Golden Gate Ave., SF. Parties shall contact the Court by way of the Courtroom Deputy, Gloria Knudson, if they feel a further Status Conference is necessary. Further Status Conference shall be by Video Conferencing.

(rmm2S, COURT STAFF) (Date Filed: 9/18/2017) Modified on 3/26/2019 (rjdS, COURT STAFF). (Entered: 09/18/2017)

09/18/2017

Set/Reset Hearing re 737 MOTION for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team Oral Argument on Order to Show Cause Hearing set for 10/20/2017, at 10:00 a.m., in Courtroom D, 15th Floor, 450 Golden Gate Avenue, SF, CA. (rmm2S, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)

09/18/2017

799 CLERK'S NOTICE. You are hereby notified that the hearing on 10/3/2017 re 780 Motion for Entry of Judgment is VACATED. The motion will be decided on the papers. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 9/18/2017) (Entered: 09/18/2017)

09/19/2017

800 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of

Administrative Motion to Seal, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Motion for De Novo Review, # 4 UNREDACTED Plaintiffs' Motion for De Novo Review, # 5 Declaration REDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion for De Novo Review, # 6 Declaration UNREDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion for De Novo Review, # 7 Exhibit REDACTED Exhibits A-B of Declaration of Carmen E. Bremer, # 8 Exhibit UNREDACTED Exhibits A-B of Declaration of Carmen E. Bremer, # 9 Proposed Order Re Plaintiffs' Motion for De Novo Review)(Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/19/2017

801 MOTION De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Class Member RCGP Placement Dkt. 789 filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/7/2017 02:30 PM in Courtroom D, 15th Floor, San Francisco before Hon. Claudia Wilken. Responses due by 10/3/2017. Replies due by 10/10/2017. (Attachments: # 1 Declaration REDACTED Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion for De Novo Review, # 2 Exhibit REDACTED Exhibits A-B of the Declaration of Carmen E. Bremer in Support of Plaintiffs' Motion for De Novo Review, # 3 Proposed Order Re: Plaintiffs' Motion for De Novo Review)(Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/19/2017

802 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 800 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/19/2017

803 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Administrative Motion to Seal, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Enforcement Motion Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation, # 4 UNREDACTED Plaintiffs' Enforcement Motion Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation, # 5 Exhibit B REDACTED, # 6 Exhibit B - UNREDACTED, # 7 Exhibit D REDACTED, # 8 Exhibit D - UNREDACTED)(Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/19/2017

804 MOTION Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for

10/24/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 10/3/2017. Replies due by 10/10/2017. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Retention of GangValidated Readmitted Inmates in Administrative Segregation, # 2 Exhibit A, # 3 Exhibit B - REDACTED, # 4 Exhibit C, # 5 Exhibit DREDACTED, # 6 Exhibit E, # 7 Proposed Order)(Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/19/2017

805 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 803 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 9/19/2017) (Entered: 09/19/2017)

09/26/2017

806 ORDER re 804 MOTION Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing reset for 10/20/2017 10:30 AM before Nandor J. Vadas. Signed by Judge Nandor J. Vadas on 0/26/2017. (njvlc1, COURT STAFF) (Filed on 9/26/2017) (Entered: 09/26/2017)

09/27/2017

807 OPPOSITION/RESPONSE (re 793 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Production of Documents Required by Settlement Agreement ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 9/27/2017) (Entered: 09/27/2017)

09/27/2017 808 ***ATTACHMENTS 3 & 5 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -7 & 8***

Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' De Novo Motion for Review of Order Denying Plaintiffs' Motion to Enjoin CDCR from Retaining Two Inmates in SHU filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin in Support of Admin. Mtn. to File Underseal, # 2 Proposed Order, # 3 Opposition to Plaintiffs' De Novo Motion, # 4 Opposition to Plaintiffs' De Novo Motion (SEALED), # 5 Declaration of A. Hrvatin in Support of Defendants' Opposition to Plaintiffs' De Novo Motion, # 6 Declaration of A. Hrvatin in Support of Defendants' Opposition to Plaintiffs' De Novo Motion (SEALED), # 7 Exhibit A to A. Hrvatin Decln. in Support of Defendants' Opposition to Plaintiffs' De Novo Motion, # 8 Exhibit B to A. Hrvatin Decln. in Support of Defendants' Opposition to Plaintiffs' De Novo Motion, # 9 Exhibit C to A. Hrvatin Decln. in Support of Defendants' Opposition to Plaintiffs' De Novo

Motion, # 10 Exhibit D to A. Hrvatin Decln. in Support of Defendants' Opposition to Plaintiffs' De Novo Motion)(Hrvatin, Adriano) (Filed on 9/27/2017) Modified on 7/29/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Attachment 5 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 09/27/2017)

09/28/2017

809 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration in Support of Motion to Seal, # 2 Proposed Order re Motion to Seal, # 3 REDACTED Plaintiffs' Notice of Motion and Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker, # 4 UNREDACTED Plaintiffs' Notice of Motion and Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker, # 5 Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker REDACTED, # 6 Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker - UNREDACTED, # 7 Exhibit A - L to Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 8 Exhibit A - L to Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker UNREDACTED)(Miller, Samuel) (Filed on 9/28/2017) (Entered: 09/28/2017)

09/28/2017

810 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 809 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 9/28/2017) (Entered: 09/28/2017)

09/28/2017

811 Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/10/2017 10:00 AM in Courtroom D, 15th Floor, San Francisco before Magistrate Judge Nandor J. Vadas. Responses due by 10/4/2017. Replies due by 10/6/2017. (Attachments: # 1 Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 2 Exhibit A - L to Declaration of Samuel Miller in Support of Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 3 Proposed Order)(Miller, Samuel) (Filed on 9/28/2017) Modified on 9/29/2017 (cpS, COURT STAFF). (Entered: 09/28/2017)

09/28/2017

812 MOTION to Shorten Time Pursuant to Local Rule 6-3 for Hearing and Briefing on Plaintiffs' Enforcement Motion Regarding Placement and Retaliation re Todd Ashker filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller in Support of Plaintiffs' Motion to Shorten Time Pursuant to Local Rule 6-3 for Hearing and Briefing on Plaintiffs' Enforcement Motion Regarding Placement and Retaliation re Todd Askher, # 2 Proposed Order)(Miller, Samuel) (Filed on 9/28/2017) (Entered: 09/28/2017)

09/29/2017

813 Order by Magistrate Judge Nandor J. Vadas granting in part and denying in part 812 Motion to Shorten Time. Replies due by 10/17/2017. Responses due by 10/10/2017. Motion Hearing set for 10/20/2017 10:30 AM before Magistrate Judge Nandor J. Vadas.(njvlc1, COURT STAFF) (Filed on 9/29/2017) (Entered: 09/29/2017)

10/02/2017 814 Order by Magistrate Judge Nandor J. Vadas granting 803 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 10/2/2017) (Entered: 10/02/2017)

10/03/2017

815 OPPOSITION/RESPONSE (re 804 MOTION Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 10/3/2017) (Entered: 10/03/2017)

10/03/2017

816 *** DOCUMENT REMOVED PER ORDER, DKT. # 855 . RE-FILE AT DOCKET # 819 . *** STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for De Novo Determination Regarding Class Member in RCGP filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 10/3/2017) Modified on 10/3/2017 (ewn, COURT STAFF). (Main Document 816 replaced on 10/19/2017) (napS, COURT STAFF). Modified on 10/19/2017 (cpS, COURT STAFF). (Entered: 10/03/2017)

10/03/2017 817

***FILED IN ERROR. RE-FILED AT DKT. # 819 ***

STIPULATION WITH PROPOSED ORDER CORRECTED Stipulation and [Proposed] Order Regarding Plaintiffs' Moton for De Novo Determination Regarding Class Member in RCGP filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer,

Carmen) (Filed on 10/3/2017) Modified on 10/4/2017 (cpS, COURT STAFF). (Entered: 10/03/2017)

10/03/2017

818 ADMINISTRATIVE MOTION to Remove Incorrectly Filed Document re 816 STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for De Novo Determination Regarding Class Member in RCGP filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 10/10/2017. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 10/3/2017) (Entered: 10/03/2017)

10/03/2017

819 CORRECTED STIPULATION WITH PROPOSED ORDER Regarding Plaintiffs' Motion for De Novo Determination Regarding Class Member in RCGP (CORRECTION OF DOCKET # 816 AND # 817 ) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 10/3/2017) Modified on 10/4/2017 (cpS, COURT STAFF). (Entered: 10/03/2017)

10/04/2017

820 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion for De Novo Review - REDACTED, # 4 Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion for De Novo Review - UNREDACTED, # 5 Exhibit A to the Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion for De Novo Review - REDACTED, # 6 Exhibit A to the Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion for De Novo Review - UNREDACTED)(Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/04/2017

821 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 820 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/04/2017

822 REPLY (re 793 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding Production of Documents Required by Settlement Agreement ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion for De Novo Review REDACTED, # 2 Exhibit A to the Declaration of Carmen E. Bremer In

Support of Plaintiffs' Reply In Support of Motion for De Novo Review REDACTED)(Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/04/2017

823 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Reply In Support of De Novo Motion Regarding CDCR Retaining Class Members in the SHU - REDACTED, # 4 Plaintiffs' Reply In Support of De Novo Motion Regarding CDCR Retaining Class Members in the SHU - UNREDACTED)(Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/04/2017

824 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 823 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/04/2017

825 REPLY (re 795 MOTION for De Novo Determination of Dispositive Matter Referred to Magistrate Judge Regarding CDCR Retaining Class Members in the SHU ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 10/4/2017) (Entered: 10/04/2017)

10/05/2017

826 STIPULATION AND ORDER REGARDING PLAINTIFFS' MOTION FOR DE NOVO DETERMINATION REGARDING CLASS MEMBER IN RCGP by Judge Claudia Wilken granting 819 Stipulation. Plaintiffs' motion for de novo determination (Docket No. 801 ) is hereby denied without prejudice.(tlS, COURT STAFF) (Filed on 10/5/2017) Modified on 10/6/2017 (cpS, COURT STAFF). (Entered: 10/05/2017)

10/10/2017

827 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Reply In Support of Enforcement Motion Regarding Retention of Gang-Validated Readmitted Prisonsers In Administrative Segregation-REDACTED, # 4 Plaintiffs' Reply In Support of Enforcement Motion Regarding Retention of Gang-Validated Readmitted Prisonsers In Administrative Segregation-UNREDACTED)(Bremer, Carmen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017 828 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 827 Administrative Motion

to File Under Seal Plaintiffs' Reply In Support of Enforcement Motion Regarding Retention of Gang-Validated Readmitted Prisoners In Administrative Segregation (Bremer, Carmen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017

829 REPLY (re 804 MOTION Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer In Support of Plaintiffs' Reply In Support of Motion Regarding Retention of GangValidated Readmitted Prisoners in Administrative SegregationREDACTED, # 2 Exhibit A)(Bremer, Carmen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017

830 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-REDACTED, # 4 Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-UNREDACTED, # 5 Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-REDACTED, # 6 Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety ConcernsUNREDACTED, # 7 Exhibit A-B to the Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-REDACTED, # 8 Exhibit A-B to the Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety ConcernsUNREDACTED)(Bremer, Carmen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017

831 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 830 Administrative Motion to File Under Seal Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns (Bremer, Carmen) (Filed on 10/10/2017) (Entered: 10/10/2017)

10/10/2017

832 ENFORCEMENT MOTION Regarding Class Members Retained in Administrative Segregation for Safety Concerns filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion

Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/24/2017. Replies due by 10/31/2017. (Attachments: # 1 Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-REDACTED, # 2 Exhibit A-B to the Declaration of Carmen E. Bremer In Support of Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns-REDACTED, # 3 Proposed Order)(Bremer, Carmen) (Filed on 10/10/2017) Modified on 10/11/2017 (cpS, COURT STAFF). (Entered: 10/10/2017)
10/10/2017 833 ***ATTACHMENTS 2 & 4 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -9 & 10***

Administrative Motion to File Under Seal Defendants Opposition to Plaintiffs Motion Alleging a Violation of The Settlements Paragraph 34 Regarding Inmate Ashkers Housing filed by Edmund G. Brown, Jr. (Attachments: # 1 Declaration of A. Hrvatin Supporting Defendants Administrative Motion to File Under Seal Defendants Opposition to Plaintiffs Motion Alleging a Violation of the Settlements Paragraph 34 Regarding Inmate Ashkers Housing, # 2 Defendants Opposition to Plaintiffs Enforcement Motion Alleging a Violation of The Settlements Paragraph 34 Regarding Inmate Ashkers Housing, # 3 Defendants Opposition to Plaintiffs Enforcement Motion Alleging a Violation of The Settlements Paragraph 34 Regarding Inmate Ashkers Housing, # 4 Declaration of K. Allison Supporting Defendants Opposition to Plaintiffs Motion Alleging a Violation of the Settlements Paragraph 34 Regarding Inmate Ashkers Housing, # 5 of K. Allison Supporting Defendants Opposition to Plaintiffs Motion Alleging a Violation of the Settlements Paragraph 34 Regarding Inmate Ashkers Housing, # 6 Exhibit Ex A to Allison Declaration, # 7 Exhibit Ex B to Allison Declaration, # 8 Exhibit Ex C to Allison Declaration, # 9 Exhibit Ex D to Allison Declaration, # 10 Proposed Order)(Hrvatin, Adriano) (Filed on 10/10/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 7/29/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 2 replaced on 8/16/2019) (napS, COURT STAFF). (Attachment 4 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 10/10/2017)

10/11/2017

834 ADMINISTRATIVE MOTION To Set Hearing Date or for Reassignment to Magistrate Judge, and for Interim Award filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 10/16/2017. (Attachments: # 1 Declaration of Samuel R.

Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 10/11/2017) Modified on 10/12/2017 (cpS, COURT STAFF). (Entered: 10/11/2017)
10/11/2017 835 ***MAIN DOCUMENT REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -11***

OPPOSITION/RESPONSE (re 737 MOTION for Order to Show Cause as to Defendants Client Communications Ban on Members of Plaintiffs' Legal Team ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Exhibit A of A. Hrvatin Declaration)(Hrvatin, Adriano) (Filed on 10/11/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Main Document 835 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 10/11/2017)

10/13/2017

836 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 4 Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED, # 5 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 6 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED, # 7 Exhibit A-E to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 8 Exhibit A-E to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED)(Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

837 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 836 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

838 Enforcement Motion Challenging RCGP Placement of Class Member filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2018 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 2 Exhibit A-E to the Declaration of Carmen E.

Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 3 Proposed Order)(Bremer, Carmen) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). (Entered: 10/13/2017)

10/13/2017

839 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 4 Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED, # 5 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 6 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED, # 7 Exhibit A-E to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 8 Exhibit A-E to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-UNREDACTED)(Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

840 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 839 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

841 Enforcement Motion Challenging RCGP Placement of Class Member filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 2 Exhibit A-E to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member-REDACTED, # 3 Proposed Order)(Bremer, Carmen) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). (Entered: 10/13/2017)

10/13/2017

842 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Enforcement Motion Regarding RCGP Prisoners on WalkAlone Status-REDACTED, # 4 Plaintiffs' Enforcement Motion Regarding

RCGP Prisoners on Walk-Alone Status-UNREDACTED, # 5 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status-REDACTED, # 6 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding RCGP Prisoners on Walk-Alone StatusUNREDACTED, # 7 Exhibit B-D to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status-REDACTED, # 8 Exhibit B-D to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status-UNREDACTED)(Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

843 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 842 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

844 Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017. (Attachments: # 1 Declaration of Carmen E. Bremer REDACTED, # 2 Exhibit A to the Declaration of Carmen E. Bremer, # 3 Exhibit B-D to the Declaration of Carmen E. Bremer - REDACTED, # 4 Exhibit E to the Declaration of Carmen E. Bermer, # 5 Declaration of Carol Strickman, # 6 Exhibit A-B to the Declaration of Carol Stickman, # 7 Proposed Order)(Bremer, Carmen) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). (Entered: 10/13/2017)

10/13/2017

845 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-REDACTED, # 4 Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-UNREDACTED, # 5 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-REDACTED, # 6 Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification ReviewsUNREDACTED, # 7 Exhibit B to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-REDACTED, # 8 Exhibit B to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-UNREDACTED, # 9 Exhibit C to

the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-REDACTED, # 10 Exhibit C to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-UNREDACTED, # 11 Exhibit D-R to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews-REDACTED, # 12 Exhibit D-R to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification ReviewsUNREDACTED)(Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

846 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 845 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 10/13/2017) (Entered: 10/13/2017)

10/13/2017

847 Enforcement Motion Regarding Inadequate RCGP Verification Reviews filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017. (Attachments: # 1 Declaration of Carmen E. Bremer REDACTED, # 2 Exhibit A to the Declaration of Carmen E. Bremer, # 3 Exhibit B to the Declaration of Carmen E. Bremer - REDACTED, # 4 Exhibit C to the Declaration of Carmen E. Bremer - REDACTED, # 5 Exhibit D-R to the Declaration of Carmen E. Bremer - REDACTED, # 6 Proposed Order)(Bremer, Carmen) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). (Entered: 10/13/2017)

10/13/2017

848 Enforcement Motion Regarding CDCR's Regulations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A-E to the Declaration of Carmen E. Bremer, # 3 Proposed Order)(Bremer, Carmen) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). Modified on 2/16/2018 (msrS, COURT STAFF). (Entered: 10/13/2017)

10/13/2017

849 Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 11/28/2017 02:30 PM before Judge Claudia Wilken. Responses due by 10/27/2017. Replies due by 11/3/2017.

(Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-11 to the Declaration of Samuel Miller, # 3 Declaration of Eldon Vail, # 4 Exhibit to the Declaration of Eldon Vail, # 5 Declaration of Daryn Reicherter, # 6 Exhibit to the Declaration of Daryn Reicherter, # 7 Proposed Order)(Miller, Samuel) (Filed on 10/13/2017) Modified on 10/16/2017 (cpS, COURT STAFF). (Entered: 10/13/2017)

10/16/2017

850 EXHIBIT C (CD) re 845 -9 to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Review filed byTodd Ashker. (Related document(s) 845 ) (cpS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)

10/16/2017

851 EXHIBITS C (CD) re 847 -4 to the Declaration of Carmen E. Bremer in Support of Plaintiffs' Enforcement Motion Regarding Inadequate RCGP Verification Reviews filed byTodd Ashker. (Related document(s) 847 ) (cpS, COURT STAFF) (Filed on 10/16/2017) (Entered: 10/16/2017)

10/17/2017

852 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration Samuel Miller, # 2 Proposed Order, # 3 Plaintiffs' Reply Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 4 Plaintiffs' Reply Regarding Placement and Retaliation Re Todd Ashker - UNREDACTED, # 5 Declaration of Terry A. Kupers In Support of Plaintiffs' Reply Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 6 Declaration of Terry A. Kupers In Support of Plaintiffs' Reply Regarding Placement and Retaliation Re Todd Ashker UNREDACTED)(Miller, Samuel) (Filed on 10/17/2017) (Entered: 10/17/2017)

10/17/2017

853 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 852 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 10/17/2017) (Entered: 10/17/2017)

10/17/2017 854

***FILED IN ERROR. DOCUMENTS SOUGHT TO BE SEALED IN ITS ENTIRETY. SEE DKT. # 852 ***

REPLY (re 811 Plaintiffs' Enforcement Motion Regarding Placement and Retaliation Re Todd Ashker ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Terry A. Kupers In Support of Plaintiffs' Reply Regarding Placement and Retaliation Re Todd Ashker -

REDACTED)(Miller, Samuel) (Filed on 10/17/2017) Modified on 10/18/2017 (cpS, COURT STAFF). (Entered: 10/17/2017)

10/18/2017 855 Order by Judge Claudia Wilken granting 818 Administrative Motion to Remove Document 816.(dtmS, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)

10/18/2017

856 ORDER REFERRING CERTAIN DUTIES AND MOTIONS TO JUDGE ILLMAN. MOTIONS 690 , 756 , 830 , 832 , 836 , 838 , 839 , 841 , 842 , 844 , 845 , 847 , 848 , and 849 . Signed by Judge Claudia Wilken on 10/18/17. (dtmS, COURT STAFF) (Filed on 10/18/2017) (Entered: 10/18/2017)

10/20/2017 857 Minute Entry for proceedings held before Magistrate Judge Nandor J. Vadas: Motion Hearings held on 10/20/2017, Show Cause Hearing held on 10/20/2017.

FTR Time: 10:22-11:14; 11:28-11:52. Total Time: 2 hours

Plaintiff Attorney(s): Dan Siegel, Esq.; Anne Butterfield Weills, Esq.; Carmen E. Bremer, Esq.; Jules Lobel, Esq.

Defendant Attorney(s): Adriano Hrvatin Deputy Atty. General; Melissa C. Bentz, Atty.; Jay C. Russell, Deputy Atty. General; Patricia J. Lee, Atty. III.

Attachment: Minutes of Order to Show Cause; Motion hearings. All matters held. Taken under submission, Court to issue Order re rulings.

(rmm2S, COURT STAFF) (Date Filed: 10/20/2017) Modified on 10/23/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 10/20/2017)

10/20/2017

858 CLERK'S NOTICE. You are hereby notified that the hearing on 10/24/2017 re Motions 793 and 795 is hereby VACATED. The Court will make a ruling on the papers. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 10/20/2017) (Entered: 10/20/2017)

10/23/2017

859 TRANSCRIPT ORDER for proceedings held on October 20, 2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - San Francisco. (Cappella, Anne) (Filed on 10/23/2017) (Entered: 10/23/2017)

10/23/2017

860 Proposed Order Concerning Plaintiffs' Counsel's Continued Access to Inmates Covered By Agreement by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 10/23/2017) (Entered: 10/23/2017)

10/25/2017 861 OBJECTIONS to re 860 Proposed Order, by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 10/25/2017) (Entered: 10/25/2017)

10/26/2017

862 RESPONSE to re 861 Objection to Plaintiffs' [Proposed] Order Concerning Plaintiffs' Counsel's Access to Inmates by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 10/26/2017) (Entered: 10/26/2017)

10/30/2017

863 MOTION to Change Time and Set Revised Briefing and Hearing Schedule on Plaintiffs' Seven Enforcement Motions filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Exhibit A to Hrvatin Decln, # 3 Exhibit B to Hrvatin Decln, # 4 Exhibit C to Hrvatin Decln, # 5 Proposed Order)(Hrvatin, Adriano) (Filed on 10/30/2017) Modified on 10/31/2017 (cpS, COURT STAFF). (Entered: 10/30/2017)

10/30/2017 864 Order by Magistrate Judge Nandor J. Vadas granting 809 Administrative Motion to File Under Seal.(njvlc1, COURT STAFF) (Filed on 10/30/2017) (Entered: 10/30/2017)

10/31/2017 865 Order by Magistrate Judge Nandor J. Vadas granting 833 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017 866 Order by Magistrate Judge Nandor J. Vadas granting 852 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

867 ORDER re 860 Proposed Order Concerning Plaintiffs' Counsel's Continued Access to Inmates Covered by the Agreement filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Signed by Judge Nandor J. Vadas on 10/31/2017. (njvlc1S, COURT STAFF) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)

10/31/2017

868 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Rachel Meeropol, # 2 Proposed Order, # 3 Plaintiffs' Response to Defendants' Administrative Motion to Change

Time and Set Revised Briefing Schedule, # 4 Declaration of Rachel Meeropol in Support of Plaintiffs' Response to Defendants' Administrative Motion to Change Time and Set Revised Briefing Schedule, # 5 Exhibit REDACTED Version of Exhibits A-D, # 6 Exhibit UNREDACTED Version of Exhibits A-D, # 7 Proposed Order, # 8 Certificate/Proof of Service)(Meeropol, Rachel) (Filed on 10/31/2017) (Entered: 10/31/2017)

10/31/2017

869 OPPOSITION/RESPONSE (re 863 MOTION to Change Time and Set Revised Briefing and Hearing Schedule on Plaintiffs' Seven Enforcement Motions ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1*** DECLARATION FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. RE-FILED AT DKT. # 871 *** Declaration of Rachel Meeropol, # 2 Exhibit A-D, # 3 Proposed Order)(Meeropol, Rachel) (Filed on 10/31/2017) Modified on 10/31/2017 (fff, COURT STAFF). Modified on 11/1/2017 (cpS, COURT STAFF). Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)

10/31/2017 870

***DOCUMENT LOCKED PER FILER'S REQUEST. RE-FILED AT DKT. # 871 ***

REDACTED DECLARATION of Rachel Meeropol in Support of re 869 Opposition/Response to Motion,, filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 869 ) (Meeropol, Rachel) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)

10/31/2017

871 REDACTED Version of Declaration of Rachel Meeropol in Support of Plaintiffs' Response to Defendants' Administrative Motion to Change Time and Set Revised Briefing Schedule on Plaintiffs' Seven Enforcement Motions and Cross Motion to Change Time and Set Revised Briefing Schedule on Plaintiffs' Motion for Extension of Settlement filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Meeropol, Rachel) (Filed on 10/31/2017) Modified on 11/1/2017 (cpS, COURT STAFF). (Entered: 10/31/2017)

10/31/2017

872 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 871 Declaration in Support,, (Meeropol, Rachel) (Filed on 10/31/2017) (Entered: 10/31/2017)

11/01/2017 873

DOCUMENT LOCKED. SEE ORDER, DKT.# 884

Transcript of Proceedings held on October 20, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 859 Transcript Order, ) Redaction Request due 11/22/2017. Redacted Transcript Deadline set for 12/4/2017. Release of Transcript Restriction set for 1/30/2018. (Related documents(s) 859 ) (Columbini, Joan) (Filed on 11/1/2017) Modified on 11/8/2017 (cpS, COURT STAFF). Modified on 11/8/2017 (cpS, COURT STAFF). (Entered: 11/01/2017)

11/02/2017 874 Order by Magistrate Judge Nandor J. Vadas denying 737 Application for Order to Show Cause.(njvlc1, COURT STAFF) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/02/2017

875 Order by Magistrate Judge Nandor J. Vadas denying 804 Motion Regarding Retention of Gang-Validated Readmitted Inmates in Administrative Segregation.(njvlc1, COURT STAFF) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/02/2017

876 MOTION for Leave to File Motion for Reconsideration Re Reassignment of Fees Motion to Magistrate Judge filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 11/2/2017) (Entered: 11/02/2017)

11/02/2017

877 Order by Magistrate Judge Nandor J. Vadas denying 811 Motion Regarding Placement and Retaliation Re Todd Ashker.(njvlc1, COURT STAFF) (Filed on 11/2/2017) (njvlc1, COURT STAFF). (Additional attachment(s) added on 11/2/2017: # 1 Exhibit) (njvlc1, COURT STAFF). (Entered: 11/02/2017)

11/02/2017

878 OPPOSITION to Plaintiffs' Administrative Cross-Motion to Change Time and Set Revised Briefing and Hearing Schedule on Plaintiffs' Motion to Extend Jurisdiction by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/2/2017) Modified on 11/3/2017 (cpS, COURT STAFF). (Entered: 11/02/2017)

11/03/2017 879 STIPULATION WITH PROPOSED ORDER Regarding Sealing of Portions of Hearing re 873 Transcript filed by Todd Ashker, Ronnie

Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 11/3/2017) Modified on 11/6/2017 (cpS, COURT STAFF). (Entered: 11/03/2017)

11/03/2017 880 Order by Magistrate Judge Nandor J. Vadas granting 863 Motion to Change Time and Set Revised Briefing Schedule.(njvlc1S, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017

881 ORDER re 869 Cross Motion filed with Opposition/Response to Motion filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Signed by Judge Nandor J. Vadas on 11/3/2017. (njvlc1S, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017 882 Order by Magistrate Judge Nandor J. Vadas granting 868 Administrative Motion to File Under Seal.(njvlc1S, COURT STAFF) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/03/2017 883 Notice of Withdrawal of Motion Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member (Dkt. 836) (Bremer, Carmen) (Filed on 11/3/2017) (Entered: 11/03/2017)

11/07/2017 884 Order by Magistrate Judge Robert M Illman granting 879 Stipulation.(njvlc1, COURT STAFF) (Filed on 11/7/2017) (Entered: 11/07/2017)

11/09/2017

885 STIPULATION Regarding Extension of Time for Plaintiffs to File Extension Motion Under Paragraph 41 filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr., et al . (Bremer, Carmen) (Filed on 11/9/2017) Modified on 11/12/2017 (cpS, COURT STAFF). (Entered: 11/09/2017)

11/09/2017

886 ADMINISTRATIVE MOTION To Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr. Responses due by 11/13/2017. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 11/9/2017) Modified on 11/12/2017 (cpS, COURT STAFF). (Entered: 11/09/2017)

11/10/2017

887 Sealed Transcript of Proceedings held on October 20, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 11/28/2017. Redacted

Transcript Deadline set for 12/8/2017. (Columbini, Joan) (Filed on 11/10/2017) (Entered: 11/10/2017)

11/10/2017

888 Transcript of Proceedings held on October 20, 2017, before Judge Nandor J. Vadas. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 859 Transcript Order, ) Redaction Request due 12/1/2017. Redacted Transcript Deadline set for 12/11/2017. Release of Transcript Restriction set for 2/8/2018. (Related documents(s) 859 ) (Columbini, Joan) (Filed on 11/10/2017) (Entered: 11/10/2017)

11/13/2017

889 OPPOSITION/RESPONSE (re 886 ADMINISTRATIVE MOTION To Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of Adriano Hrvatin, # 2 Exhibit A to Declaration of Adriano Hrvatin, # 3 Exhibit B to Declaration of Adriano Hrvatin, # 4 Exhibit C to Declaration of Adriano Hrvatin)(Hrvatin, Adriano) (Filed on 11/13/2017) (Entered: 11/13/2017)

11/14/2017

890 ORDER re 832 ENFORCEMENT MOTION Regarding Class Members Retained in Administrative Segregation for Safety Concerns filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 12/19/2017 10:00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/14/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017

891 ORDER re 841 Enforcement Motion Challenging RCGP Placement of Class Member filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 12/19/2017 10:00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/14/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017 892 ORDER re 844 Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status filed by Paul Redd, Richard Johnson, Jeffrey

Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 1/30/2018 10:.00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/14/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017

893 ORDER re 847 Enforcement Motion Regarding Inadequate RCGP Verification Reviews filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 1/30/2018 10:00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/14/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017

894 ORDER re 848 Enforcement Motion Regarding CDCR's Regulations filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 2/20/2018 10:00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/14/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017

895 REPLY (re 886 ADMINISTRATIVE MOTION To Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer in Support of Plaintiffs' Reply in Support of Administrative Motion to Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement, # 2 Exhibit A to the Declaration of Carmen E. Bremer)(Bremer, Carmen) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/14/2017 896 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -12***

> Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' Enforcement Motion Challenging One Inmate's Restricted Custody General Population Placement filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 Defendants' Opposition to Plaintiffs' Enforcement Motion, # 4 Defendants' Opposition to Plaintiffs'

Enforcement Motion (UNDERSEAL))(Hrvatin, Adriano) (Filed on 11/14/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 11/14/2017)

11/14/2017

897 OPPOSITION/RESPONSE (re 832 ENFORCEMENT MOTION Regarding Class Members Retained in Administrative Segregation for Safety Concerns ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 11/14/2017) (Entered: 11/14/2017)

11/20/2017

898 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Proposed Order, # 3 Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations - REDACTED, # 4 Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations - UNREDACTED, # 5 Declaration of Carmen Bremer In Support of Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations REDACTED, # 6 Declaration Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations - UNREDACTED, # 7 Exhibit a - m to the Declaration of Carmen Bremer - REDACTED, # 8 Exhibit a - m of the Declaration of Carmen Bremer - UNREDACTED, # 9 Exhibit n - o of the Declaration of Carmen Bremer - REDACTED, # 10 Exhibit n - o of the Declaration of Carmen Bremer - UNREDACTED, # 11 Exhibit t - u of the Declaration of Carmen Bremer - REDACTED, # 12 Exhibit t - u of the Declaration of Carmen Bremer - UNREDACTED, # 13 Exhibit w of the Declaration of Carmen Bremer - REDACTED, # 14 Exhibit w of the Declaration of Carmen Bremer - UNREDACTED, # 15 Exhibit y of the Declaration of Carmen Bremer - REDACTED, # 16 Exhibit y of the Declaration of Carmen Bremer UNREDACTED)(Bremer, Carmen) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

899 Declaration of Rachel Meeropol (Continuation) to re 898 Administrative Motion to File Under Seal filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Rachel Meeropol In Support of Plaintiffs' Motion to Extend the Settlement Agreement - UNREDACTED, # 2 Exhibit A - J to the Declaration of Rachel Meeropol - REDACTED, # 3 Exhibit A - J to the Declaration of Rachel Meeropol - UNREDACTED, # 4 Exhibit K - T to the Declaration of Rachel Meeropol - REDACTED, # 5 Exhibit K - T to the Declaration of Rachel Meeropol - UNREDACTED, # 6 Exhibit U - RR to the Declaration of Rachel Meeropol - REDACTED, # 7 Exhibit U - RR to the Declaration of Rachel Meeropol - UNREDACTED)(Related

document(s) 898 ) (Bremer, Carmen) (Filed on 11/20/2017) Modified on 11/21/2017 (cpS, COURT STAFF). (Entered: 11/20/2017)

11/20/2017

900 Declaration of Samuel Miller (Continuation) to re 898 Administrative Motion to File Under Seal filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller In Support of Plaintiffs' Motion to Extend the Settlement Agreement - UNREDACTED, # 2 Exhibit 39 - 54 to the Declaration of Samuel Miller In Support of Plaintiffs' Motion to Extend the Settlement Agreement - REDACTED, # 3 Exhibit 39 - 54 to the Declaration of Samuel Miller In Support of Plaintiffs' Motion to Extend the Settlement Agreement - UNREDACTED)(Related document(s) 898 ) (Bremer, Carmen) (Filed on 11/20/2017) Modified on 11/21/2017 (cpS, COURT STAFF). (Entered: 11/20/2017)

11/20/2017 901 Order by Magistrate Judge Robert M. Illman granting 896 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

902 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 900 Exhibits to an Administrative Motion to File Under Seal,, 898 Administrative Motion to File Under Seal , 899 Exhibits to an Administrative Motion to File Under Seal,,, (Bremer, Carmen) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

903 ORDER re 849 Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Motion Hearing set for 2/20/2018 10:00 AM before Magistrate Judge Robert M. Illman. Signed by Judge Robert M. Illman on 11/20/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 904 Order by Magistrate Judge Robert M. Illman granting 839 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 2/6/2018 02:30 PM before Judge Claudia Wilken. Responses due by 12/4/2017. Replies due by 12/11/2017. (Attachments: # 1 Declaration of Carmen Bremer - REDACTED, # 2 Exhibit a-m to the Bremer Declaration -

REDACTED, # 3 Exhibit m-o to the Bremer Declaration - REDACTED, # 4 Exhibit p-s to the Bremer Declaration, # 5 Exhibit t-u to the Bremer Declaration - REDACTED, # 6 Exhibit v to the Bremer Declaration, # 7 Exhibit w to the Bremer Declaration - REDACTED, # 8 Exhibit x to the Bremer Declaration, # 9 Exhibit y to the Bremer Declaration REDACTED, # 10 Proposed Order)(Bremer, Carmen) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 906 Order by Magistrate Judge Robert M. Illman granting 886 Administrative Motion to Expand Page Limit.(rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

907 Declaration of Rachel Meeropol in Support of 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A-J to the Declaration of Rachel Meeropol - REDACTED, # 2 Exhibit K-T to the Declaration of Rachel Meeropol - REDACTED, # 3 Exhibit U-RR to the Declaration of Rachel Meeropol - REDACTED)(Related document(s) 905 ) (Bremer, Carmen) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017

908 Declaration of Samuel Miller in Support of 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit 1-38 to the Declaration of Samuel Miller, # 2 Exhibit 39-54 to the Declaration of Samuel Miller)(Related document(s) 905 ) (Bremer, Carmen) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 909 Order by Magistrate Judge Robert M. Illman granting 842 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/20/2017 910 Order by Magistrate Judge Robert M. Illman granting 845 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)

11/21/2017

911 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order, # 3 Plaintiffs' Motion for De Novo Determination of Enforceemnt Order By Magistrate Judge Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 4 Plaintiffs' Motion for De Novo Determination of Enforceemnt Order By Magistrate Judge Regarding Placement and Retaliation Re Todd Ashker - UNREDACTED, # 5 Declaration of Samuel Miller In Support of Plaintiffs' De Novo Motion Regarding Placement Re

Todd Ashker - UNREDACTED, # 6 Exhibit A-P to the Declaration of Samuel Miller In Support of Plaintiffs' De Novo Motion Regarding Placement Re Todd Ashker - UNREDACTED)(Miller, Samuel) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/21/2017

912 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 911 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/21/2017

913 MOTION for De Novo Determination of Enforcement Order By Magistrate Judge Regarding Placement and Retaliation Re Todd Ashker REDACTED filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 1/9/2018 02:30 PM before Judge Claudia Wilken. Responses due by 12/5/2017. Replies due by 12/12/2017. (Attachments: # 1 Declaration of Samuel Miller In Support of Plaintiffs' De Novo Motion Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 2 Exhibit A-P to the Declaration of Samuel Miller In Support of Plaintiffs' De Novo Motion Regarding Placement and Retaliation Re Todd Ashker - REDACTED, # 3 Proposed Order)(Miller, Samuel) (Filed on 11/21/2017) (Entered: 11/21/2017)

11/28/2017

914 REPLY (re 832 ENFORCEMENT MOTION Regarding Class Members Retained in Administrative Segregation for Safety Concerns ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 11/28/2017) (Entered: 11/28/2017)

11/28/2017

915 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Proposed Order, # 3 Reply in Support of Enforcement Motion Challenging the RCGP Placement of an Ashker Class Member - REDACTED, # 4 Reply in Support of Enforcement Motion Challenging the RCGP Placement of an Ashker Class Member - UNREDACTED)(Bremer, Carmen) (Filed on 11/28/2017) (Entered: 11/28/2017)

11/28/2017

916 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 915 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 11/28/2017) (Entered: 11/28/2017)

11/28/2017 917 REPLY (re 841 Enforcement Motion Challenging RCGP Placement of Class Member ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel,

George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 11/28/2017) (Entered: 11/28/2017)

11/28/2017

918 MOTION to Change Time and Set Revised Briefing and Hearing Schedule on Plaintiffs' Motion to Extend the Court's Jurisdiction and to File an Oversized Opposition Brief filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order)(Hrvatin, Adriano) (Filed on 11/28/2017) Modified on 11/29/2017 (cpS, COURT STAFF). (Entered: 11/28/2017)

11/29/2017

919 OPPOSITION/RESPONSE (re 918 MOTION to Change Time and Set Revised Briefing and Hearing Schedule on Plaintiffs' Motion to Extend the Court's Jurisdiction and to File an Oversized Opposition Brief ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 11/29/2017) (Entered: 11/29/2017)

11/30/2017 920 Order by Magistrate Judge Robert M. Illman granting 898 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)

11/30/2017 921 Order by Magistrate Judge Robert M. Illman granting 915 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)

11/30/2017

922 Order by Magistrate Judge Robert M. Illman granting 918 Motion Administrative Motion to Change Time and Set Revised Briefing Schedule and to File and Oversized Opposition Brief. Opposition due by 3/20/18, reply due by 4/10/2018. Motion Hearing set for 5/8/2018 02:30 PM before Magistrate Judge Robert M. Illman.(rmilc1s, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)

11/30/2017

923 ORDER REGARDING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION REGARDING REASSIGNMENT OF FEES MOTION TO MAGISTRATE JUDGE ILLMAN AND REASSIGNMENT OF MOTIONS FOR ATTORNEYS' FEES by Judge Claudia Wilken. (dtmS, COURT STAFF) (Filed on 11/30/2017) (Entered: 11/30/2017)

12/04/2017 924 ORDER re: Chambers Copies. Signed by Judge Maria-Elena James on 12/4/2017. (mejlc2S, COURT STAFF) (Filed on 12/4/2017) (Entered: 12/04/2017)

12/05/2017

926 ORDER, Document sealed. Signed by Judge Robert M. Illman on 12/5/2017. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 12/5/2017) (rmilc1, COURT STAFF). (Additional attachment(s)

added on 12/5/2017: # 1 Exhibit) (rmilc1, COURT STAFF). (Entered: 12/05/2017)
12/05/2017 927 ***ATTACHMENTS 3 & 8 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -13 & 14***
Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' Enforcement Motion re Inmates Assigned to Walk-Alone Status in CDCR's Restricted Custody General Population Unit and Supporting Documents filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin Supporting Defs' Mtn. to File Underseal, # 2 Proposed Order, # 3 Defs' Opposition re WalkAlone Motion, # 4 (SEAL) Defs' Opposition re Walk-Alone Motion, # 5 Declaration of A. Hrvatin Defs' Opposition re Walk-Alone Motion, # 6 Exhibit A to A. Hrvatin Defs' Opposition re Walk-Alone Motion, # 7 Exhibit B (SEAL) Defs' Opposition re Walk-Alone Motion, # 8 Declaration of J. Berg re Defs' Opposition re Walk-Alone Motion, # 9 Declaration of J. Berg (SEAL) Defs' Opposition re Walk-Alone Motion)(Hrvatin, Adriano) (Filed on 12/5/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Attachment 8 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 12/05/2017)
12/05/2017 928 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -15***
Administrative Motion to File Under Seal Defendants' Opposition to Motion for De Novo Review of Order Denying Plaintiff's Enforcement Motion Regarding Inmate Ashker's Housing filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 RedactedDefendants' Opposition to Motion for De Novo Review of Order Denying Plaintiff's Enforcement Motion Regarding Inmate Ashker's Housing, # 4 Unredacted-Defendants' Opposition to Motion for De Novo Review of Order Denying Plaintiff's Enforcement Motion Regarding Inmate Ashker's Housing, # 5 Declaration of A. Hrvatin in Support of Defendants' Opposition to Motion for De Novo Review and Exhibit A)(Hrvatin, Adriano) (Filed on 12/5/2017) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 12/05/2017)
12/07/2017 929 NOTICE of Errata by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel

Reyes, George Ruiz, Danny Troxell re 849 Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population N (Miller, Samuel) (Filed on 12/7/2017) Modified on 12/8/2017 (cpS, COURT STAFF). (Entered: 12/07/2017)

12/07/2017

930 Corrected Plaintiffs' Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population (CORRECTION OF DOCKET 849 ) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 2/20/2018 10:00 AM in Eureka before Magistrate Judge Robert M. Illman. Responses due by 1/23/2018. Replies due by 2/5/2018. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 111: CORRECTION OF DOCKET [849-2], # 3 Declaration of Eldon Vail: CORRECTION OF DOCKET [849-3], # 4 Exhibit 1 to the Declaration of Eldon Vail, # 5 Declaration of Daryn Richerter, # 6 Exhibit 1-2 to the Delcaration of Daryn Richerter, # 7 Proposed Order CORRECTION OF DOCKET [849-7])(Miller, Samuel) (Filed on 12/7/2017) Modified on 12/8/2017 (cpS, COURT STAFF). (Entered: 12/07/2017)

12/11/2017 931 Order by Magistrate Judge Robert M. Illman granting 927 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 12/11/2017) (Entered: 12/11/2017)

12/11/2017

932 Administrative Motion to File Under Seal Defendants' Response to the Court's December 5, 2017 Order Regarding Plaintiffs' Motion Challenging One Inmate's Restricted Custody General Population Placement filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin re Admin. Mtn. to File Underseal, # 2 Proposed Order, # 3 Defendants Response to Dec. 5, 2017 Order, # 4 Declaration of A. Hrvatin to Defendants Response to Dec. 5, 2017 Order, # 5 Exhibit A to Q to Hrvatin's Declaration)(Hrvatin, Adriano) (Filed on 12/11/2017) (Entered: 12/11/2017)

12/11/2017 933 Order by Magistrate Judge Robert M. Illman granting 932 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 12/11/2017) (Entered: 12/11/2017)

12/12/2017

934 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order, # 3 Plaintiffs' Reply re Motion for De Novo Determination of Dispositive Ruling by Magistrate Judge Regarding Retaliation and Placement of Todd Ashker - REDACTED, # 4 Plaintiffs' Reply re Motion for De Novo Determination of Dispositive Ruling by Magistrate Judge Regarding Retaliation and Placement of Todd Ashker - UNREDACTED)(Miller, Samuel) (Filed on 12/12/2017) (Entered: 12/12/2017)

12/12/2017

935 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 934 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 12/12/2017) (Entered: 12/12/2017)

12/12/2017

936 REPLY (re 913 MOTION for De Novo Determination of Enforcement Order By Magistrate Judge Regarding Placement and Retaliation Re Todd Ashker -REDACTED ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 12/12/2017) (Entered: 12/12/2017)

12/12/2017

937 ADMINISTRATIVE MOTION for One Day Extension of Time re Motion for De Novo Determination of Dispositive Ruling by Magistrate Judge Regarding Retaliation and Placement of Todd Ashker re 913 MOTION for De Novo Determination of Enforcement Order By Magistrate Judge Regarding Placement and Retaliation Re Todd Ashker -REDACTED filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 12/18/2017. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 12/12/2017) (Entered: 12/12/2017)

12/18/2017

938 CLERK'S NOTICE Motion Hearing on December 19, 2017, before Magistrate Judge Illman will be telephonic. The parties shall attend the telephonic hearing by using the telephone number and access code previously provided. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 12/18/2017) (Entered: 12/18/2017)

12/18/2017

939 OPPOSITION/RESPONSE (re 937 ADMINISTRATIVE MOTION for One Day Extension of Time re Motion for De Novo Determination of Dispositive Ruling by Magistrate Judge Regarding Retaliation and Placement of Todd Ashker re 913 MOTION for De Novo Determination of Enforcement Order By ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 12/18/2017) (Entered: 12/18/2017)

12/18/2017 940 NOTICE by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis of Unavailability of Defendants' Counsel (Hrvatin, Adriano) (Filed on 12/18/2017) (Entered: 12/18/2017)

12/19/2017

941 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Proposed Order, # 3 Reply In Support of Plaintiffs' Enforcement Motion Regarding Prisoners Assigned to Walk-Alone Status in CDCR's Restricted Custody

General Population Unit - REDACTED, # 4 Reply In Support of Plaintiffs' Enforcement Motion Regarding Prisoners Assigned to Walk-Alone Status in CDCR's Restricted Custody General Population Unit - UNREDACTED, # 5 Exhibit A to the Declaration of Carmen Bremer In Support of Plaintiffs' Reply In Support of Enforcement Motion Regarding RCGP Prisoners On Walk-Alone Status - UNREDACTED)(Bremer, Carmen) (Filed on 12/19/2017) (Entered: 12/19/2017)

12/19/2017

942 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 941 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 12/19/2017) (Entered: 12/19/2017)

12/19/2017

943 REPLY (re 844 Enforcement Motion Regarding RCGP Prisoners on WalkAlone Status ) REDACTED filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Exhibit A to the Declaration of Carmen Bremer REDACTED)(Bremer, Carmen) (Filed on 12/19/2017) (Entered: 12/19/2017)

12/19/2017

944 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Motion Hearing held on 12/19/2017 re 841 Enforcement Motion Challenging RCGP Placement of Class Member filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker, 832 ENFORCEMENT MOTION Regarding Class Members Retained in Administrative Segregation for Safety Concerns filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes. Court takes the matters under submission, ruling to follow. The parties are to meet and confer, by phone if they choose, prior to 1/15/2018 and attempt to narrow the issues. If the parties would like assistance from Judge Illman, they may contact his courtroom deputy, and a video conference will be arranged. FTR Time: 10:11-10:38. Sealed at 10:38 to 10:56 (end of hearing). Plaintiff Attorneys: Carmen Bremer and Azure Wheeler both by phone. Defendant Attorneys: Audriano Hrvatin and Jay Russell both by phone with CDCR legal counsel Patricia Lee and Melissa Bentz. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 12/19/2017) (Entered: 12/19/2017)

12/19/2017 945 OPPOSITION/RESPONSE (re 847 Enforcement Motion Regarding Inadequate RCGP Verification Reviews ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration

of D. Bradbury)(Hrvatin, Adriano) (Filed on 12/19/2017) (Entered: 12/19/2017)

12/21/2017

946 Order by Magistrate Judge Robert M. Illman denying 832 Plaintiffs' Enforcement Motion Regarding Class Members Retained in Administrative Segregation for Safety Concerns.(rmilc1s, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/21/2017 947 Order by Magistrate Judge Robert M. Illman granting 827 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/21/2017 948 Order by Magistrate Judge Robert M. Illman granting 830 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 12/21/2017) (Entered: 12/21/2017)

12/21/2017

949 Order by Magistrate Judge Robert M. Illman denying 841 Plaintiffs' Enforcement Motion Challenging RCGP Placement of Class Member.(rmilc1s, COURT STAFF) (Filed on 12/21/2017) (rmilc1s, COURT STAFF). (Entered: 12/21/2017)

01/03/2018

950 CLERK'S NOTICE. You are hereby notified that the hearing on 1/9/2018 re 913 Motion for DeNovo Determination is VACATED. The Court takes the motion under submission and will rule on the papers. (This is a textonly entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 1/3/2018) (Entered: 01/03/2018)

01/05/2018

951 STIPULATION WITH PROPOSED ORDER Regarding Extension of Time for the Parties to Meet and Confer on Plaintiffs' Enforcement Motions filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Bremer, Carmen) (Filed on 1/5/2018) Modified on 1/8/2018 (cpS, COURT STAFF). (Entered: 01/05/2018)

01/08/2018 952 Order by Magistrate Judge Robert M. Illman granting 951 Stipulation.(rmilc1, COURT STAFF) (Filed on 1/8/2018) (Entered: 01/08/2018)

01/09/2018

953 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Reply In Support of Plaintiffs' Motion Regarding Inadequate RCGP Verification Reviews - REDACTED, # 4 Reply In Support of Plaintiffs' Motion Regarding Inadequate RCGP Verification Reviews UNREDACTED, # 5 Exhibit A-B to the Declaration of Carmen E. Bremer In Support of Reply In Support of Plaintiffs' Motion Regarding Inadequate

RCGP Verification Reviews - REDACTED, # 6 Exhibit A-B to the Declaration of Carmen E. Bremer In Support of Reply In Support of Plaintiffs' Motion Regarding Inadequate RCGP Verification Reviews UNREDACTED)(Bremer, Carmen) (Filed on 1/9/2018) (Entered: 01/09/2018)

01/09/2018

954 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 953 Administrative Motion to File Under Seal (Bremer, Carmen) (Filed on 1/9/2018) (Entered: 01/09/2018)

01/09/2018

955 REPLY (re 847 Enforcement Motion Regarding Inadequate RCGP Verification Reviews ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Exhibit A-B to the Declaration of Carmen E. Bremer)(Bremer, Carmen) (Filed on 1/9/2018) (Entered: 01/09/2018)

01/10/2018

956 NOTICE of Withdrawal of Attorney Aaron Y. Huang by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Cappella, Anne) (Filed on 1/10/2018) Modified on 1/11/2018 (cpS, COURT STAFF). (Entered: 01/10/2018)

01/11/2018

957 STIPULATION WITH PROPOSED ORDER to Change Time Regarding the Briefing and Hearing Schedule on Two of Plaintiffs' Pending Motions filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Hrvatin, Adriano) (Filed on 1/11/2018) Modified on 1/12/2018 (cpS, COURT STAFF). (Entered: 01/11/2018)

01/11/2018

958 Order by Magistrate Judge Robert M. Illman granting in part and denying in part 957 Stipulation. Motion Hearing reset for 2/23/2018 01:00 PM before Magistrate Judge Robert M. Illman.(rmilc1, COURT STAFF) (Filed on 1/11/2018) (Entered: 01/11/2018)

01/12/2018

***See order 958 . Set/Reset Deadlines as to 848 Enforcement Motion Regarding CDCR's Regulations. Responses due by 1/23/2018. Replies due by 2/6/2018. Motion Hearing set for 2/23/2018 01:00 PM before Magistrate Judge Robert M. Illman in San Francisco. (cpS, COURT STAFF) (Filed on 1/12/2018) (Entered: 01/12/2018)

01/19/2018 959 ORDER ON PLAINTIFFS MOTION FOR RULE 54(B) CERTIFICATION by Judge Claudia Wilken.(dtmS, COURT STAFF) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/19/2018 960 Letter from Bobey Hairston. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 1/19/2018) (Entered: 01/22/2018)

01/23/2018

961 OPPOSITION/RESPONSE (re 930 Corrected Plaintiffs' Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration A. Hrvatin)(Hrvatin, Adriano) (Filed on 1/23/2018) (Entered: 01/23/2018)

01/26/2018

Set/Reset Deadlines as to 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations . Motion Hearing set for 5/8/2018 02:30 PM before Magistrate Judge Robert M. Illman. The hearing on 2/6/2018 before Judge Wilken is vacated. (dtmS, COURT STAFF) (Filed on 1/26/2018) (Entered: 01/26/2018)

01/26/2018

962 STIPULATION WITH PROPOSED ORDER Resolving Plaintiffs' Enforcement Motion Concerning CDCR'S Regulations, Withdrawing Motion, and Vacating Hearing filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Bremer, Carmen) (Filed on 1/26/2018) Modified on 1/29/2018 (cpS, COURT STAFF). (Entered: 01/26/2018)

01/29/2018 963 Order by Magistrate Judge Robert M. Illman granting 962 Stipulation.(rmilc1, COURT STAFF) (Filed on 1/29/2018) (Entered: 01/29/2018)

01/29/2018

964 STIPULATION WITH PROPOSED ORDER to Change Time Regarding the Hearings Scheduled for Two of Plaintiffs' Pending Motions filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 1/29/2018) Modified on 1/30/2018 (cpS, COURT STAFF). (Entered: 01/29/2018)

01/30/2018

965 STIPULATION AND ORDER as modified re 964 STIPULATION WITH PROPOSED ORDER to Change Time Regarding the Hearings Scheduled for Two of Plaintiffs' Pending Motions filed by Anthony Chaus, Todd Ashker, Edmund G. Brown, Jr., Greg Lewis, Mathew Cate Motion Hearing set for 2/13/2018 01:00 PM in McKinleyville before Magistrate Judge Robert M. Illman. Parties may appear by phone. Signed by Judge Robert M. Illman on 1/30/2018. (glm, COURT STAFF) (Filed on 1/30/2018) (Entered: 01/30/2018)

02/01/2018

968 Letter to Judge Vadas from P. Botello re: sexual assault & threats of future assault by Lt. Ronda Amis, ISU and IGI Units. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/1/2018) (Entered: 02/02/2018)

02/02/2018

966 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Status Conference set for 2/2/2018 10:00 AM before Magistrate Judge Robert M. Illman. The parties should use the telephone number previously provided to call into the status

conference. (rmilc1, COURT STAFF) (Filed on 2/2/2018) (Entered: 02/02/2018)

02/02/2018

967 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Settlement Conference held on 2/2/2018. The parties resolved their dispute regarding plaintiff's counsel's contact with client. FTR Time: not recorded. Plaintiff Attorney: Jules Lobel. Defendant Attorneys: Audriano Hrvatin and Jay Russell. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 2/2/2018) (Entered: 02/02/2018)

02/05/2018

969 REPLY (re 930 Corrected Plaintiffs' Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller In Support of Plaintiffs' Reply Re Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population, # 2 Exhibit A-B)(Miller, Samuel) (Filed on 2/5/2018) (Entered: 02/05/2018)

02/06/2018

970 ORDER REGARDING PLAINTIFFS' MOTION FOR DE NOVO DETERMINATION OF DISPOSITIVE MATTER REFERRED TO MAGISTRATE JUDGE REGARDING PRODUCTION OF DOCUMENTS REQUIRED BY SETTLEMENT AGREEMENT by Judge Claudia Wilken.(dtmS, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)

02/13/2018 971 Order by Magistrate Judge Robert M. Illman granting 953 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 2/13/2018) (Entered: 02/13/2018)

02/13/2018

972 Plaintiffs' Statement of Recent Decision re Request for Interim Award of Undisputed Attorneys' Fees re 756 REQUEST for Interim Payment of Undisputed Attorneys' Fees by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Attachments: # 1 Exhibit A)(Miller, Samuel) (Filed on 2/13/2018) Modified on 2/14/2018 (cpS, COURT STAFF). (Entered: 02/13/2018)

02/13/2018

973 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Motion Hearing held on 2/13/2018 re 844 Enforcement Motion Regarding RCGP Prisoners on Walk-Alone Status filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker, 847 Enforcement Motion Regarding Inadequate RCGP Verification Reviews filed by Paul Redd, Richard Johnson, Jeffrey

Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Todd Ashker, Gabriel Reyes. The parties will continue to meet and confer and advise the court no later than ten days prior to the next-scheduled hearing on these motions of their progress and remaining issues, if any. Motion Hearing set for 3/16/2018 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Parties may appear by phone. FTR Time: 1:08-1:22. Plaintiff Attorney: Carmen Bremer and Azure Wheeler by phone. Defendant Attorney: Audriano Hrvatin, Jay Russell and Melissa Bentz and Patricia Lee. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 2/13/2018) (Entered: 02/14/2018)

02/16/2018

974 STIPULATION WITH PROPOSED ORDER to Change Time Regarding February 6, 2018 Order and for Referral to Magistrate Judge Illman filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 2/16/2018) Modified on 2/18/2018 (cpS, COURT STAFF). (Entered: 02/16/2018)

02/21/2018

975 STIPULATION AND ORDER TO CHANGE TIME REGARDING FEBRUARY 6, 2018 ORDER AND FOR REFERRAL TO MAGISTRATE JUDGE ILLMAN by Judge Claudia Wilken granting 974 Stipulation.(napS, COURT STAFF) (Filed on 2/21/2018) (Entered: 02/21/2018)

02/23/2018

976 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Motion Hearing held on 2/23/2018 re 849 Enforcement Motion Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Argument heard. Matter is taken under submission. (FTR Time: 1:16-2:04.)

Attorneys for Plaintiffs: Jules Lobel; Carol Strickman. Attorneys for Defendants: Adriano Hrvatin; Jay Russell.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date Filed: 2/23/2018) Matter transcribed by Joan Columbini. Modified on 3/2/2018 (notewarelS, COURT STAFF). (Entered: 02/23/2018)
02/26/2018 977 Letter from Victor Padilla. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 2/26/2018) (Entered: 02/27/2018)
02/28/2018 978 ORDER ON PLAINTIFFS' MOTION FOR DE NOVO REVIEW OF MAGISTRATE JUDGES DECISION ON RETENTION OF CLASS

MEMBERS IN THE SHU by Judge Claudia Wilken.(dtmS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)

03/02/2018

979 TRANSCRIPT ORDER for proceedings held on 02/23/2018 before Magistrate Judge Robert M. Illman by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - San Francisco. (Hrvatin, Adriano) (Filed on 3/2/2018) (Entered: 03/02/2018)

03/16/2018

980 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Motion Hearing held on 3/16/2018. Motions #844 and #847 taken under submission. FTR Time: 10:03-10:51. Plaintiff Attorneys: Azure Wheeler and Jules Lobel. Defendant Attorneys: Audriano Hrvatin, Jay Russell with CDCR Counsel Patricia Ferguson and Melissa Bentz. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 3/16/2018) Modified on 8/24/2018: Matter transcribed by Gina Colin. (rjdS, COURT STAFF). (Entered: 03/16/2018)

03/16/2018

981 Transcript of Proceedings held on February 23, 2018, before Judge Robert M. Illman. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 979 Transcript Order ) Redaction Request due 4/6/2018. Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/14/2018. (Related documents(s) 979 ) (Columbini, Joan) (Filed on 3/16/2018) (Entered: 03/16/2018)

03/20/2018

982 STIPULATION WITH PROPOSED ORDER Further Extending Briefing Schedule on Plaintiffs' Extension Motion filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr, et al. (Bremer, Carmen) (Filed on 3/20/2018) Modified on 3/21/2018 (cpS, COURT STAFF). (Entered: 03/20/2018)

03/20/2018

983 TRANSCRIPT ORDER for proceedings held on 02/23/2018 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter Joan Columbini. (Wheeler, Alexandra) (Filed on 3/20/2018) (Entered: 03/20/2018)

03/23/2018 984 Order by Magistrate Judge Robert M. Illman granting 982 Stipulation.(rmilc1, COURT STAFF) (Filed on 3/23/2018) (Entered: 03/23/2018)

03/23/2018 985 ***ATTACHMENTS 3 & 5 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -16 & 17***
Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' Motion to Extend Jurisdiction and Supporting Documents filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of Adriano Hrvatin, # 2 Proposed Order, # 3 Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 4 Declaration of S. Alfaro Supporting Defendants' Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 5 Declaration of J. Berg Supporting Defendants' Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 6 Declaration of Adriano Hrvatin Supporting Defendants' Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 7 Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 8 Declaration of J. Berg Supporting Defendants' Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 9 Exhibit A to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 10 Exhibit B to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 11 Exhibit C to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 12 Exhibit D to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 13 Exhibit E to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 14 Exhibit F to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 15 Exhibit G to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 16 Exhibit H to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 17 Exhibit I to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 18 Exhibit J to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 19 Exhibit K to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 20 Exhibit L to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 21 Exhibit M to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 22 Exhibit N to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 23 Exhibit O to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction, # 24 Exhibit P to Adriano Hrvatin's Declaration in Support of Opposition to Plaintiffs' Motion to Extend Jurisdiction)(Hrvatin, Adriano) (Filed on 3/23/2018) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 7/29/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3

replaced on 8/16/2019) (napS, COURT STAFF). (Attachment 5 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 03/23/2018)

03/29/2018

986 Order by Magistrate Judge Robert M. Illman denying 930 Motion Regarding Settlement Agreement Provision Requiring Release of Class Members to General Population.(rmilc1, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)

03/29/2018 987 Order by Magistrate Judge Robert M. Illman denying 844 Motion Regarding RCGP Prisoners on Walk-Alone Status.(rmilc1, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)

03/29/2018

988 ORDER by Judge Maria-Elena James denying 756 Motion Interim Payment of Fees; ORDER for Supplemental Briefing. Plaintiffs' Response due by 4/19/2018. Defendants' Reply due by 4/26/2018. (mejlc2S, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)

03/29/2018 989 Order by Magistrate Judge Robert M. Illman denying 847 Motion Regarding RCGP Verification Reviews.(rmilc1, COURT STAFF) (Filed on 3/29/2018) (Entered: 03/29/2018)

03/30/2018 990 Order by Magistrate Judge Robert M. Illman granting 941 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 3/30/2018) (Entered: 03/30/2018)

04/10/2018 991 Order by Magistrate Judge Robert M. Illman granting 985 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 4/10/2018) (Entered: 04/10/2018)

04/12/2018

992 MOTION For De Novo Determination of Dispositive Ruling By Magistrate Judge Regarding Violation of Settlement Agreement Provision Regarding RCGP Prisoners on Walk-Alone Status re 987 Order on Motion for Miscellaneous Relief filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 5/22/2018 02:30 PM before Judge Claudia Wilken. Responses due by 4/26/2018. Replies due by 5/3/2018. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 4/12/2018) (Entered: 04/12/2018)

04/12/2018

993 MOTION for De Novo Determination of Dispositive Ruling By Magistrate Judge Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population re 986 Order on Motion for Miscellaneous Relief filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 5/22/2018 02:30 PM before Judge Claudia Wilken. Responses due by 4/26/2018. Replies due by 5/3/2018. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-13 to the Declaration of Samuel Miller, # 3 Declaration of Daryn Reicherter, # 4 Exhibit 1-2 to the Declaration of

Daryn Reicherter, # 5 Declaration of Eldon Vail, # 6 Exhibit 1 to the Declaration of Eldon Vail, # 7 Proposed Order)(Miller, Samuel) (Filed on 4/12/2018) (Entered: 04/12/2018)

04/13/2018

994 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.), Set/Reset Deadlines as to 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations . Motion Hearing currently set for 5/8/2018 is reset for 8/21/2018 10:00 AM in San Francisco, Courtroom D, 15th Floor before Magistrate Judge Robert M. Illman. (rmilc1, COURT STAFF) (Filed on 4/13/2018) (Entered: 04/13/2018)

04/16/2018

Set/Reset Hearing re 994 Clerk's Notice, Set Motion and Deadlines/Hearings. (rmilc1, COURT STAFF) (Filed on 4/16/2018) (Entered: 04/16/2018)

04/19/2018

995 Supplemental Brief re 690 MOTION for Attorney Fees and Costs for Monitoring and Enforcement of Settlement Agreement filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-2 of the Declaration of Samuel Miller)(Related document(s) 690 ) (Miller, Samuel) (Filed on 4/19/2018) (Entered: 04/19/2018)

04/20/2018

996 CLERK'S NOTICE. You are hereby notified that the hearing on 5/22/2018 re Motions 992 and 993 is vacated. The Court takes the matters under submission and will issue a written ruling. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 4/20/2018) (Entered: 04/20/2018)

04/26/2018

997 OBJECTIONS to re 995 Supplemental Brief Regarding Plaintiffs' Motion for Attorneys' Fees and Costs by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 4/26/2018) Modified on 4/27/2018 (cpS, COURT STAFF). (Entered: 04/26/2018)

04/26/2018

998 OPPOSITION/RESPONSE (re 993 MOTION for De Novo Determination of Dispositive Ruling By Magistrate Judge Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population re 986 Order on Motion for Miscellaneous Relief ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 4/26/2018) (Entered: 04/26/2018)

04/26/2018 999 ***ATTACHMENTS 3 & 5 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -18 & 19***

Administrative Motion to File Under Seal Defendants' Opposition to

Plaintiffs' Request for De Novo Review of Order Denying Plaintiffs' Motion Regarding Inmates Assigned to Walk-Alone Status in CDCR's Restricted Custody General Population Unit filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin Supporting Defendants Administrative Motion to File Under Seal Defendants Opposition to Plaintiffs Request for De Novo Review of Order Denying Plaintiffs Motion Regarding Inmates Assigned to Walk-Alone Status in CDCRs Restricted Custody General Population Unit, # 2 Proposed Order, # 3 Defendants' Opposition to Plaintiffs' Request for De Novo Review of Order Denying Plaintiffs' Motion Regarding Inmates Assigned to Walk-Alone Status in CDCR's Restricted Custody General Population Unit, # 4 Defendants' Opposition to Plaintiffs' Request for De Novo Review of Order Denying Plaintiffs' Motion Regarding Inmates Assigned to Walk-Alone Status in CDCR's Restricted Custody General Population Unit, # 5 Declaration of J. Jacquez Decl. Supporting Defendants Opposition to Plaintiffs Request for De Novo Review of Order Denying Plaintiffs Motion Regarding Inmates Assigned to Walk-Alone Status in CDCRs Restricted Custody General Population Unit, # 6 Declaration of J. Jacquez Decl. Supporting Defendants Opposition to Plaintiffs Request for De Novo Review of Order Denying Plaintiffs Motion Regarding Inmates Assigned to Walk-Alone Status in CDCRs Restricted Custody General Population Unit)(Hrvatin, Adriano) (Filed on 4/26/2018) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Attachment 5 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 04/26/2018)
04/27/2018 1000 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement - REDACTED, # 4 Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement - UNREDACTED, # 5 Declaration of Jules Lobel In Support of Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement - REDACTED, # 6 Declaration of Jules Lobel In Support of Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement - UNREDACTED, # 7 Exhibit A-C to the Declaration of Jules Lobel In Support of Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement UNREDACTED)(Bremer, Carmen) (Filed on 4/27/2018) (Entered: 04/27/2018)
04/27/2018 1001 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1000 Administrative

Motion to File Under Seal (Bremer, Carmen) (Filed on 4/27/2018) (Entered: 04/27/2018)

04/27/2018 1002 REPLY (re 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Jules Lobel In Support of Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement REDACTED, # 2 Exhibit A to C to the Declaration of Jules Lobel In Support of Plaintiffs' Reply In Support of Motion for Extension of Settlement Agreement - REDACTED)(Bremer, Carmen) (Filed on 4/27/2018) (Entered: 04/27/2018)

05/03/2018 1003 NOTICE by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis of Unavailability of Defendants' Counsel (Hrvatin, Adriano) (Filed on 5/3/2018) (Entered: 05/03/2018)

05/03/2018 1004 REPLY (re 993 MOTION for De Novo Determination of Dispositive Ruling By Magistrate Judge Regarding Violation of Settlement Agreement Provision Requiring Release of Class Members to General Population re 986 Order on Motion for Miscellaneous Relief ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 5/3/2018) (Entered: 05/03/2018)

05/03/2018 1005 REPLY (re 992 MOTION For De Novo Determination of Dispositive Ruling By Magistrate Judge Regarding Violation of Settlement Agreement Provision Regarding RCGP Prisoners on Walk-Alone Status re 987 Order on Motion for Miscellaneous Relief ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carol Strickman In Support of Plaintiffs' Motion Regarding RCGP Prisoners on Walk-Alone Status)(Miller, Samuel) (Filed on 5/3/2018) (Entered: 05/03/2018)

05/14/2018 1006 Letter from Gilbert Cabrera dated 5/5/18 re PBSP - RCGP Placement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/14/2018) (Entered: 05/15/2018)

05/15/2018 1007 MOTION for Leave to File Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 5/15/2018) Modified on 5/16/2018 (cpS, COURT STAFF). (Entered: 05/15/2018)

05/16/2018

Electronic filing error. Please submit a proposed order pursuant to Local Rule 5-1(g). Re: 1007 MOTION for Leave to File Plaintiffs Request for

Leave and Supplemental Submi ssion Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker (dtmS, COURT STAFF) (Filed on 5/16/2018) (Entered: 05/16/2018)
05/16/2018 1008 Proposed Order re 1007 MOTION for Leave to File Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 5/16/2018) (Entered: 05/16/2018)
05/17/2018 1009 STIPULATION WITH PROPOSED ORDER Further Extending Briefing Schedule on Plaintiffs' Extension Motion filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Miller, Samuel) (Filed on 5/17/2018) Modified on 5/18/2018 (cpS, COURT STAFF). (Entered: 05/17/2018)
05/17/2018 1010 Letter from Shawn Beavers re placed in administrative segregation in violation of the settlement agreement. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 5/17/2018) (Entered: 05/18/2018)
05/23/2018 1011 Order by Judge Claudia Wilken granting 1007 Motion for Leave to File Supplemental Submission.(dtmS, COURT STAFF) (Filed on 5/23/2018) (Entered: 05/23/2018)
06/05/2018 1012 Letter from Gilbert Cabrera dated 5/31/2018. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 6/5/2018) (Entered: 06/08/2018)
06/08/2018 1013 Order by Magistrate Judge Robert M. Illman granting 1009 Stipulation.(rmilc1, COURT STAFF) (Filed on 6/8/2018) (Entered: 06/08/2018)
06/14/2018 1014 Order by Judge Claudia Wilken granting 937 Motion for One Day Extension of Time.(dtmS, COURT STAFF) (Filed on 6/14/2018) (Entered: 06/14/2018)
06/15/2018 1015 CLERK'S NOTICE. You are hereby notified that the following Administrative Motions to File Under Seal are referred to Magistrate Judge Robert Illman for ruling: 794 , 808 , 820 , 823 , 911 , 928 , 934 , 999 , and 1000 . (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 6/15/2018) (Entered: 06/15/2018)
06/15/2018 1017 ORDER REQUIRING DEFENDANTS TO SUBMIT DEPARTMENT REVIEW BOARD DECISION REGARDING PLACEMENT OF

TODD ASHKER. Signed by Judge Claudia Wilken on 6/15/18. (dtmS, COURT STAFF) (Filed on 6/15/2018) (Entered: 06/15/2018)
06/18/2018 1018 Administrative Motion to File Under Seal Defendants' Response to June 15, 2018 Order re: Departmental Review Board Decision with Exh. A filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of J. Russell in Support of Admin. Motion, # 2 Proposed Order, # 3 Defendants' Response to June 15, 2018 Order re: Departmental Review Board Decision with Exhibit A)(Russell, Jay) (Filed on 6/18/2018) (Entered: 06/18/2018)
06/19/2018 1019 Order by Judge Claudia Wilken granting 1018 Administrative Motion to File Under Seal.(dtmS, COURT STAFF) (Filed on 6/19/2018) (Entered: 06/19/2018)
06/20/2018 1020 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order, # 3 Unredacted Version of Plaintiffs' Request for Leave and Second Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker, # 4 Exhibit Unredacted Version of Exhibit A to the Declaration of Samuel Miller In Support of Plaintiffs' Second Supplemental Submission Re Placement and Retaliation Re Todd Ashker, # 5 Exhibit Unredacted Version of Exhibit B to the Declaration of Samuel Miller In Support of Plaintiffs' Second Supplemental Submission Re Placement and Retaliation Re Todd Ashker)(Miller, Samuel) (Filed on 6/20/2018) (Entered: 06/20/2018)
06/20/2018 1021 MOTION for Leave to File Second Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller In Support of Plaintiffs' Second Supplemental Submission Regarding Placement and Retaliation Re Todd Ashker, # 2 Exhibit Redacted Version of Exhibit A to the Declaration of Samuel Miller, # 3 Exhibit Redacted Version of Exhibit B to the Declaration of Samuel Miller, # 4 Proposed Order)(Miller, Samuel) (Filed on 6/20/2018) Modified on 6/21/2018 (cpS, COURT STAFF). (Entered: 06/20/2018)
06/20/2018 1022 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1020 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 6/20/2018) (Entered: 06/20/2018)

06/25/2018 1023 ORDER by Judge Maria-Elena James granting in part and denying in part 690 Motion for Attorney Fees. (mejlc2S, COURT STAFF) (Filed on 6/25/2018) (Entered: 06/25/2018)
06/25/2018 1024 OPPOSITION/RESPONSE (re 1021 MOTION for Leave to File Second Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Russell, Jay) (Filed on 6/25/2018) (Entered: 06/25/2018)
07/03/2018 1025 Administrative Motion to File Under Seal Plaintiffs' Supplemental Brief In Support Of Motion For Extension Of Settlement Agreement Based On Systemic Due Process Violations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 REDACTED Version Of Plaintiffs Supplemental Brief In Support Of Motion For Extension Of Settlement Agreement Based On Systemic Due Process Violations, # 4 UNREDACTED Version Of Plaintiffs Supplemental Brief In Support Of Motion For Extension Of Settlement Agreement Based On Systemic Due Process Violations, # 5 Declaration REDACTED Version Of Supplemental Declaration Of Rachel Meeropol In Support Of Plaintiffs Supplemental Brief In Support Of Motion To Extend The Settlement Agreement, # 6 Declaration UNREDACTED Version Of Supplemental Declaration Of Rachel Meeropol In Support Of Plaintiffs Supplemental Brief In Support Of Motion To Extend The Settlement Agreement, # 7 Exhibit REDACTED Version Of Exhibits 1-35, # 8 Exhibit UNREDACTED Version Of Exhibits 1-10, # 9 Exhibit UNREDACTED Version Of Exhibits 11-20, # 10 Exhibit UNREDACTED Version Of Exhibits 21-35)(Bremer, Carmen) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/03/2018 1026 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1025 Administrative Motion to File Under Seal Plaintiffs' Supplemental Brief In Support Of Motion For Extension Of Settlement Agreement Based On Systemic Due Process Violations (Bremer, Carmen) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/03/2018 1027 Supplemental Brief re 905 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration REDACTED Version Of Supplemental Declaration Of Rachel Meeropol In Support Of Plaintiffs' Supplemental Brief In Support Of Motion To Extend The Settlement Agreement, # 2 Exhibit REDACTED Version Of Exhibits 1-35)(Related

document(s) 905 ) (Bremer, Carmen) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/03/2018 1028 ORDER by Judge Claudia Wilken GRANTING PLAINTIFFS' 993 MOTION REGARDING VIOLATION OFSETTLEMENT AGREEMENT PROVISION REQUIRING RELEASE OF CLASS MEMBERS TO GENERAL POPULATION.(ndrS, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/03/2018 1029 ORDER by Judge Claudia Wilken granting 992 Motion Regarding Violation of Settlement agreement provision regarding RCGP Prisoners on Walk Alone status. (sisS, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/03/2018 1030 ORDER by Judge Claudia Wilken deferring ruling on 913 Motion regarding placement of and retaliation against Todd Ashker; granting 1020 Administrative Motion to File Under Seal. (sisS, COURT STAFF) (Filed on 7/3/2018) (Entered: 07/03/2018)
07/05/2018 1031 MOTION for Leave to File for Reconsideration of the June 25, 2018 Order Regarding Fees and Costs for Monitoring and Enforcement of Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 7/5/2018) Modified on 7/6/2018 (cpS, COURT STAFF). (Entered: 07/05/2018)
07/06/2018 1032 Order by Magistrate Judge Robert M. Illman granting 794 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1033 Order by Magistrate Judge Robert M. Illman granting 808 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1034 Order by Magistrate Judge Robert M. Illman granting 820 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1035 Order by Magistrate Judge Robert M. Illman granting 823 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1036 Order by Magistrate Judge Robert M. Illman granting 911 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)

07/06/2018 1037 Order by Magistrate Judge Robert M. Illman granting 928 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1038 Order by Magistrate Judge Robert M. Illman granting 934 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1039 Order by Magistrate Judge Robert M. Illman granting 999 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1040 Order by Magistrate Judge Robert M. Illman granting 1000 Administrative Motion to File Under Seal.(rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/06/2018 1041 ORDER re 1028 Order on Motion for Miscellaneous Relief, 1030 Order on Motion for Miscellaneous Relief, Order on Administrative Motion to File Under Seal, 1029 Order on Motion for Miscellaneous Relief. Meet and Confer set for 8/21/2018 09:30 AM in San Francisco, Courtroom D, 15th Floor before Magistrate Judge Robert M. Illman. Settlement Conference set for 8/21/2018 01:00 PM. or as soon as possible following meet and confer. Signed by Judge Robert M. Illman on 7/6/2018. (rmilc1, COURT STAFF) (Filed on 7/6/2018) (Entered: 07/06/2018)
07/09/2018 1042 ORDER by Judge Maria-Elena James granting 1031 Motion for Leave to File Motion for Reconsideration re: Dkt. No. 1023 (cdnS, COURT STAFF) (Filed on 7/9/2018) (Entered: 07/09/2018)
07/09/2018 1043 OPPOSITION/RESPONSE (re 1021 MOTION for Leave to File Second Supplemental Submission Re Motion for De Novo Determination Re Placement and Retaliation Re Todd Ashker ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 7/9/2018) (Entered: 07/09/2018)
07/11/2018 1044 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference. Signed by Judge Robert M. Illman on 7/11/2018. (rmilc1, COURT STAFF) (Filed on 7/11/2018) (Additional attachment(s) added on 7/11/2018: # 1 Certificate/Proof of Service) (rmilc1, COURT STAFF). (Entered: 07/11/2018)
07/18/2018 1045 MOTION for Reconsideration re 1023 Order on Motion for Attorney Fees filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order)(Miller, Samuel) (Filed on 7/18/2018) (Entered: 07/18/2018)

07/18/2018

Set/Reset Deadlines as to 1045 MOTION for Reconsideration re 1023 Order on Motion for Attorney Fees . Motion Hearing set for 8/23/2018 10:00 AM before Magistrate Judge Maria-Elena James. (hdjS, COURT STAFF) (Filed on 7/18/2018) (Entered: 07/18/2018)

07/23/2018 1049 Letter from Benjamin Toscano requesting the court and defendants to give walk alone inmates access to the small group yard everyday. (Attachments: # 1 Envelope)(cpS, COURT STAFF) (Filed on 7/23/2018) (Entered: 07/26/2018)

07/25/2018 1046 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference. Signed by Judge Robert M. Illman on 7/25/2018. (Attachments: # 1 Certificate/Proof of Service)(rmilc1, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)

07/25/2018 1047 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference. Signed by Judge Robert M. Illman on 7/25/2018. (Attachments: # 1 Certificate/Proof of Service)(rmilc1, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)

07/25/2018 1048 WRIT of habeas corpus ad testificandum issued for presence of Plaintiff at settlement conference. Signed by Judge Robert M. Illman on 7/25/2018. (Attachments: # 1 Certificate/Proof of Service)(rmilc1, COURT STAFF) (Filed on 7/25/2018) (Entered: 07/25/2018)

07/27/2018 1050 STIPULATION WITH PROPOSED ORDER to Change Time Regarding Defendants' Supplemental Briefing Deadline filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker. (Hrvatin, Adriano) (Filed on 7/27/2018) Modified on 7/30/2018 (cpS, COURT STAFF). (Entered: 07/27/2018)

07/27/2018 1051 Order by Magistrate Judge Robert M. Illman granting 1050 Stipulation.(rmilc1, COURT STAFF) (Filed on 7/27/2018) (Entered: 07/27/2018)

07/27/2018 1052 NOTICE of Appearance by Jeffrey Thomas Fisher (Fisher, Jeffrey) (Filed on 7/27/2018) (Entered: 07/27/2018)

07/31/2018 1053 NOTICE OF APPEAL to the 9th Circuit Court of Appeals. Appeal of order 1028 , order 1029 filed by Mathew Cate, Anthony Chaus, Greg Lewis, Edmund Brown, Jr.. (Appeal fee: NOT PAID.) (Attachments: # 1 Exhibit)(Fisher, Jeffrey) (Filed on 7/31/2018) Modified on 7/31/2018 (cpS, COURT STAFF). Modified on 7/31/2018 (cpS, COURT STAFF). (Entered: 07/31/2018)

07/31/2018 1054 MOTION to Stay Pending Appeal; Supporting Memorandum filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Motion Hearing set for 9/4/2018 02:30 PM before Judge Claudia Wilken. Responses due by 8/14/2018. Replies due by 8/21/2018. (Fisher, Jeffrey)

(Filed on 7/31/2018) Modified on 7/31/2018 (cpS, COURT STAFF). (Entered: 07/31/2018)
07/31/2018 1055 Mailed request for payment of docket fee to appellant re 1053 NOTICE OF APPEAL to the 9th Circuit Court of Appeals. (cc to USCA) (cpS, COURT STAFF) (Filed on 7/31/2018) (Entered: 07/31/2018)
08/01/2018 1056 USCA Case Number 18-16427 Ninth Circuit Court of Appeals for 1053 Notice of Appeal, filed by Anthony Chaus, Edmund G. Brown, Jr., Greg Lewis, Mathew Cate. (cjlS, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)
08/01/2018 1057 OPPOSITION/RESPONSE (re 1045 MOTION for Reconsideration re 1023 Order on Motion for Attorney Fees ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 8/1/2018) (Entered: 08/01/2018)
08/03/2018 1058 USCA Appeal Fees received $ 505 receipt number 44611015555 re 1053 Notice of Appeal, filed by Anthony Chaus, Edmund G. Brown, Jr., Greg Lewis, Mathew Cate (cpS, COURT STAFF) (Filed on 8/3/2018) (Entered: 08/03/2018)
08/06/2018 1059 REPLY (re 1045 MOTION for Reconsideration re 1023 Order on Motion for Attorney Fees ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 8/6/2018) (Entered: 08/06/2018)
08/07/2018 1060 CLERK'S NOTICE Status Conference set for 8/7/2018 01:30 PM in McKinleyville before Magistrate Judge Robert M. Illman. The parties should dial 888-684-8852/Access Code 1867872 to participate. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 8/7/2018) (Entered: 08/07/2018)
08/07/2018 1061 PDF with attached Audio File. Court Date & Time [ 8/7/2018 1:36:39 PM ]. File Size [ 12024 KB ]. Run Time [ 00:25:03 ]. (courtspeak). (Entered: 08/07/2018)
08/07/2018 1062 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 8/7/2018. The hearings scheduled for 8/21/2018 remain on calendar as set. FTR Time: 1:36-2:01. Plaintiff Attorney: Jules Lobel by phone. Defendant Attorneys: Audriano Hrvatin, Melissa Bentz (CDCR) and Patricia Ferguson (CDCR) all by phone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 8/7/2018) (Entered: 08/07/2018)
08/09/2018 1063 STIPULATION WITH PROPOSED ORDER for Shortened Briefing Schedule and to Expedite Ruling re 1054 MOTION to Stay Pending

Appeal filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 8/9/2018) Modified on 8/10/2018 (cpS, COURT STAFF). (Entered: 08/09/2018)

08/09/2018 1065 Order by Judge Claudia Wilken granting 1063 Stipulation for Shortened Briefing Schedule. The 9/4/2018 hearing is vacated.(dtmS, COURT STAFF) (Filed on 8/9/2018) (Entered: 08/09/2018)

08/09/2018

Set/Reset Deadlines as to 1054 MOTION to Stay Pending Appeal. Responses due by 8/13/2018. Replies due by 8/14/2018. (dtmS, COURT STAFF) (Filed on 8/9/2018) (Entered: 08/09/2018)

08/09/2018 1066 ORDER by Judge Maria-Elena James granting in part and denying in part 1045 Motion for Reconsideration. (cdnS, COURT STAFF) (Filed on 8/9/2018) (Entered: 08/09/2018)

08/10/2018 1067 WRIT of Habeas Corpus ad Testificandum issued for presence of Plaintiff at settlement conference. Signed by Judge Robert M. Illman on 8/10/2018. (rmilc1, COURT STAFF) (Filed on 8/10/2018) (Entered: 08/10/2018)

08/13/2018 1068 OPPOSITION/RESPONSE (re 1054 MOTION to Stay Pending Appeal ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1)(Miller, Samuel) (Filed on 8/13/2018) (Entered: 08/13/2018)

08/14/2018 1069 REPLY (re 1054 MOTION to Stay Pending Appeal ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Proposed Order)(Fisher, Jeffrey) (Filed on 8/14/2018) (Entered: 08/14/2018)

08/16/2018 1070 Order by Judge Claudia Wilken denying 1054 Motion to Stay.(dtmS, COURT STAFF) (Filed on 8/16/2018) (Entered: 08/16/2018)

08/20/2018 1071 NOTICE of Change of Address by Carol Strickman (Strickman, Carol) (Filed on 8/20/2018) (Entered: 08/20/2018)

08/21/2018 1072 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Further Status Conference held on 8/21/2018. Meet and confer facilitated by Judge Illman. Four prisoners present and shackled.

Total Time in Court: 3 hours 12 minutes. Plaintiff Attorney: Jules Lobel, Carol Strickman, Marilyn McMahon, Sam Miller, Rebecca Rabkin. Defendant Attorney: Jay Russell, Adriano Hrvatin; Melissa Bentz, Patrick McKinney, and Patricia Ferguson for CDCR.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (tlhS, COURT STAFF) (Date Filed: 8/21/2018) (Entered: 08/22/2018)
08/21/2018 1076 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Further Settlement Conference held on 8/21/2018. Defendants will provide a response to Plaintiff's settlement proposal within one week. Plaintiff Attorneys: Carol Strickman, Marilyn S. McMahon, Jules Lobel, Sam Miller, and Rebecca Rabkin. Defendant Attorneys: Melissa C. Bentz, Audriano Hrvatin, Jay C. Russell, Kathleen Allison, Patrick R. McKinney II, and Patricia Ferguson. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 8/21/2018) (Entered: 08/24/2018)
08/23/2018 1073 STIPULATION WITH PROPOSED ORDER Extending Defendants' Supplemental Briefing Deadline filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 8/23/2018) Modified on 8/23/2018 (cpS, COURT STAFF). (Entered: 08/23/2018)
08/23/2018 1074 MOTION for De Novo Determination of Magistrate Judge Orders Regarding Attorneys' Fees and Costs for Monitoring and Enforcement of Settlement Agreement re 1066 Order on Motion for Reconsideration, 1023 Order on Motion for Attorney Fees filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 10/2/2018 02:30 PM before Judge Claudia Wilken. Responses due by 9/6/2018. Replies due by 9/13/2018. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-2 of the Declaration of Samuel Miller, # 3 Proposed Order)(Miller, Samuel) (Filed on 8/23/2018) (Entered: 08/23/2018)
08/24/2018 1075 TRANSCRIPT ORDER for proceedings held on 3/16/2018 before Magistrate Judge Robert M. Illman by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - Eureka. (Hrvatin, Adriano) (Filed on 8/24/2018) (Entered: 08/24/2018)
08/24/2018 1077 STIPULATION WITH PROPOSED ORDER Regarding July 3, 2018 Orders and Related Deadlines Following Meet-and-Confer Sessions and Settlement Conference filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, Todd Ashker, et al. (Hrvatin, Adriano) (Filed on 8/24/2018) Modified on 8/27/2018 (cpS, COURT STAFF). (Entered: 08/24/2018)
08/27/2018 1078 Order by Magistrate Judge Robert M. Illman granting 1073 Stipulation. Defendants' Response due by 9/14/2018.(rmilc1, COURT STAFF) (Filed on 8/27/2018) (Entered: 08/27/2018)

08/30/2018 1079 Order by Judge Claudia Wilken granting 1077 Stipulation re 7/3/18 Orders and Related Deadlines. Status Report due by 9/12/2018.(dtmS, COURT STAFF) (Filed on 8/30/2018) (Entered: 08/30/2018)
09/10/2018 1080 Transcript of Proceedings held on March 16, 2018, before Judge Robert Illman. Court Reporter/Transcriber Gina Galvan Colin, telephone number 408-888-6697. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1075 Transcript Order ) Redaction Request due 10/1/2018. Redacted Transcript Deadline set for 10/11/2018. Release of Transcript Restriction set for 12/10/2018. (Related documents(s) 1075 ) (ggc, COURT STAFF) (Filed on 9/10/2018) (Entered: 09/10/2018)
09/12/2018 1081 Joint Notice Re De Novo Determination Of Enforcement Order By Magistrate Judge Regarding Placement And Retaliation Re Todd Ashker by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr., et al (Miller, Samuel) (Filed on 9/12/2018) Modified on 9/13/2018 (cpS, COURT STAFF). (Entered: 09/12/2018)
09/13/2018 1082 STIPULATION WITH PROPOSED ORDER Extending Notification Date Regarding Walk-Alone And General Population Orders filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Edmund G. Brown, Jr.. (Miller, Samuel) (Filed on 9/13/2018) Modified on 9/14/2018 (cpS, COURT STAFF). (Entered: 09/13/2018)
09/14/2018 1083 Order by Judge Claudia Wilken granting 1082 Stipulation Extending Notification Date.(dtmS, COURT STAFF) (Filed on 9/14/2018) (Entered: 09/14/2018)
09/14/2018 1084 ***ATTACHMENT 3 REMOVED PER ORDER OF THE COURT AT DOCKET 1204 . RE-FILED AT DOCKET 1199 -20***
Administrative Motion to File Under Seal Defendants' Response to Plaintiffs' Supplement Regarding Confidential Information in Disciplinary Proceedings filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 Defs' Response to Plaintiffs Supplement Regarding Confidential Information in Disciplinary Proceedings, # 4 Defs Response to Plaintiffs Supplement Regarding Confidential Information in Disciplinary Proceedings)(Hrvatin, Adriano) (Filed on 9/14/2018) Modified on 7/24/2019 (cpS, COURT STAFF). Modified on 8/16/2019 (cjlS, COURT

STAFF). (Attachment 3 replaced on 8/16/2019) (napS, COURT STAFF). (Entered: 09/14/2018)
09/19/2018 1085 CLERK'S NOTICE. The Court finds that the Motion for De Novo Determination 1074 is appropriate for resolution without oral argument pursuant to L.R. 7-1(b). Accordingly, the 10/2/2018 hearing is vacated and the Court will issue a written ruling. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 9/19/2018) (Entered: 09/19/2018)
09/19/2018 1086 Notice Of Withdrawal Without Prejudice Of De Novo Motion Re Fees And Costs For First Four Periods Of Monitoring And Enforcement Of Settlement Agreement (Miller, Samuel) (Filed on 9/19/2018) Modified on 9/19/2018 (cpS, COURT STAFF). (Entered: 09/19/2018)
09/26/2018 1088 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Telephonic Further Settlement Conference, Plaintiff's Counsel Jules Lobel, held on 9/26/2018.FTR Time: Not recorded. (This is a textonly entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 9/26/2018) Modified on 10/3/2018 (glm, COURT STAFF). (Entered: 10/03/2018)
09/26/2018 1089 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Further Telephonic Settlement Conference held, Audriano Hrvatin and Jay Russell on 9/26/2018. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Date Filed: 9/26/2018) (Entered: 10/03/2018)
10/03/2018 1087 NOTICE of Appearance by Kelly Ariana Samson (Samson, Kelly) (Filed on 10/3/2018) (Entered: 10/03/2018)
10/12/2018 1090 STIPULATION for Second Extension of Notification Date Regarding Walk-Alone and General Population Orders filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis., Todd Ashker, Danny Troxell, George Ruiz, Gabriel Reyes, Paul Redd, Richard Johnson, Jeffrey Franklin, George Franco, Luis Esquivel and Ronnie Dewberry. (Samson, Kelly) (Filed on 10/12/2018) Modified on 10/15/2018 (jmlS, COURT STAFF). (Entered: 10/12/2018)
10/19/2018 1091 ORDER of USCA. (cjlS, COURT STAFF) (Filed on 10/19/2018) (Entered: 10/19/2018)
10/23/2018 1092 Order by Judge Claudia Wilken granting 1090 Stipulation for Second Extension of Notification Date.(dtmS, COURT STAFF) (Filed on 10/23/2018) (Entered: 10/23/2018)
10/26/2018 1093 CLERK'S NOTICE Status Conference set for 10/30/2018 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. The parties may appear by phone by dialing 888-684-8852/Access Code 1868782. (This is a

text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)
10/26/2018 1094 Joint Report Providing the Parties' Positions Regarding the Court's July 3, 2018 Orders by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Hrvatin, Adriano) (Filed on 10/26/2018) Modified on 10/29/2018 (cpS, COURT STAFF). (Entered: 10/26/2018)
10/30/2018 1095 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 10/30/2018. By November 5, 2018, the parties shall file a one-page statement informing the court as to whether or not there are any overlap issues between the motion for extension and the issues on appeal. FTR Time: 10:03-10:19. Plaintiff Attorneys: Jules Lobel and Samuel Miller both by phone. Defendant Attorneys: Audriano Hrvatin, Jay Russell and Kelly Samson each by phone with Melissa Bentz and Patricia Ferguson each appearing by phone for CDCR. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 10/30/2018) Modified on 3/4/2019: Matter transcribed by Peggy Schuerger (AdHoc Reporting). (rjdS, COURT STAFF). (Entered: 10/30/2018)
10/30/2018 1096 PDF with attached Audio File. Court Date & Time [ 10/30/2018 10:03:31 AM ]. File Size [ 7944 KB ]. Run Time [ 00:16:33 ]. (courtspeak). (Entered: 10/30/2018)
10/30/2018 1097 MOTION to Stay The Courts July 3, 2018 Orders filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Motion Hearing set for 12/4/2018 02:30 PM in Oakland, Courtroom 6, 2nd Floor before Judge Claudia Wilken. Responses due by 11/13/2018. Replies due by 11/20/2018. (Attachments: # 1 Proposed Order)(Samson, Kelly) (Filed on 10/30/2018) Modified on 10/31/2018 (cpS, COURT STAFF). (Entered: 10/30/2018)
10/30/2018 1098 MOTION to Change the November 9, 2018 Deadline filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Attachments: # 1 Declaration of Kelly A. Samson, # 2 Proposed Order)(Samson, Kelly) (Filed on 10/30/2018) Modified on 10/31/2018 (cpS, COURT STAFF). (Entered: 10/30/2018)
11/02/2018 1099 OPPOSITION/RESPONSE (re 1098 MOTION to Change the November 9, 2018 Deadline ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller)(Miller, Samuel) (Filed on 11/2/2018) (Entered: 11/02/2018)
11/02/2018 1100 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd,

Gabriel Reyes, George Ruiz, Danny Troxell re 1099 Opposition/Response to Motion, to Change November 9, 2018 Deadline (Miller, Samuel) (Filed on 11/2/2018) (Entered: 11/02/2018)
11/05/2018 1101 Letter from Counsel (Joint Letter to the Honorable Robert M. Illman) . (Samson, Kelly) (Filed on 11/5/2018) Modified on 11/5/2018 (cpS, COURT STAFF). (Entered: 11/05/2018)
11/07/2018 1102 Order by Judge Claudia Wilken denying 1098 Motion for Extension of Deadline.(dtmS, COURT STAFF) (Filed on 11/7/2018) (Entered: 11/07/2018)
11/07/2018 1103 CLERK'S NOTICE. The Court finds that the Motion to Stay 1097 is appropriate for resolution without oral argument pursuant to L.R. 7-1(b). Accordingly, the 12/4/2018 hearing is vacated and the Court will issue a written ruling. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 11/7/2018) (Entered: 11/07/2018)
11/09/2018 1104 DEFENDANTS STATEMENT REGARDING THE COURTS JULY 3, 2018 ORDER CONCERNING LEVEL IV GENERAL POPULATION OUT-OF CELL TIME re 1028 Order on Motion for Miscellaneous Relief by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Samson, Kelly) (Filed on 11/9/2018) Modified on 11/13/2018 (cjlS, COURT STAFF). (Entered: 11/09/2018)
11/09/2018 1105 DEFENDANTS STATEMENT REGARDING THE COURTS JULY 3, 2018 ORDER CONCERNING THE RESTRICTED CUSTODY GENERAL POPULATION UNIT re 1029 Order on Motion for Miscellaneous Relief by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Samson, Kelly) (Filed on 11/9/2018) Modified on 11/13/2018 (cjlS, COURT STAFF). (Entered: 11/09/2018)
11/09/2018 1106 Plaintiffs Submission of Proposals Regarding General Population and RCGP Walk-Alone Orders of July 3, 2018 by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit 1-3, # 3 Proposed Order re General Population, # 4 Proposed Order re WalkAlone)(Miller, Samuel) (Filed on 11/9/2018) Modified on 11/13/2018 (kcS, COURT STAFF). (Entered: 11/09/2018)
11/13/2018 1107 OPPOSITION/RESPONSE (re 1097 MOTION to Stay The Courts July 3, 2018 Orders ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 11/13/2018) (Entered: 11/13/2018)

11/16/2018 1108 ***FILED IN ERROR. RE-FILED AT DKT. # 1109 ***. Transcript Designation Form (Fisher, Jeffrey) (Filed on 11/16/2018) Modified on 11/21/2018 (cpS, COURT STAFF). (Entered: 11/16/2018)
11/20/2018 1109 Transcript Designation Form re 1053 Notice of Appeal, Transcript due by 12/20/2018. (Attachments: # 1 Transcript Designation Form (2of3), # 2 Transcript Designation Form (3of3))(Fisher, Jeffrey) (Filed on 11/20/2018) (Entered: 11/20/2018)
11/20/2018 1110 REPLY (re 1097 MOTION to Stay The Courts July 3, 2018 Orders ) filed byEdmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. (Samson, Kelly) (Filed on 11/20/2018) (Entered: 11/20/2018)
11/27/2018 1111 NOTICE by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis of Withdrawal of Attorney Jillian R. O'Brien (Hrvatin, Adriano) (Filed on 11/27/2018) (Entered: 11/27/2018)
12/07/2018 1112 NOTICE of Withdrawal of Attorney Evan C. Greenberg by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Carbone, Charles) (Filed on 12/7/2018) Modified on 12/10/2018 (cpS, COURT STAFF). (Entered: 12/07/2018)
12/07/2018 1113 ORDER ADOPTING REMEDIAL PLANS AND GRANTING 1097 STAY OF ENFORCEMENT OF REMEDIAL PLANS PENDING APPEAL by Judge Claudia Wilken. (ig, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
12/07/2018 1114 ORDER ADOPTING OUT-OF-CELL TIME PLAN per 1113 . Signed by Judge Claudia Wilken on 12/7/18. (ig, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
12/07/2018 1115 ORDER ADOPTING WALK-ALONE STATUS PLAN per 1113 . Signed by Judge Claudia Wilken on 12/7/18. (ig, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
12/13/2018 1116 Clerk's Notice to Clerk of Court, U.S. Court of Appeals for the 9th Circuit re the District Court has entered the attached orders as to USCA #1816427. (Attachments: # 1 Document #1113, # 2 Document #1114, # 3 Document #1115)(cp, COURT STAFF) (Filed on 12/13/2018) Modified on 12/13/2018 (cp, COURT STAFF). (Entered: 12/13/2018)
12/19/2018 1117 AMENDED NOTICE OF APPEAL by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis . Appeal Record due by 1/18/2019. (Attachments: # 1 Exhibit A to E to Def's Amended Notice of Appeal)(Fisher, Jeffrey) (Filed on 12/19/2018) (Entered: 12/19/2018)
01/15/2019 1148 SEALED ORDER (No. 1118) ON PLAINTIFFS' MOTION FOR DE NOVO REVIEW OF MAGISTRATE JUDGE'S ORDER REGARDING PLACEMENT OF TODD ASHKER re 913 . Signed by

Judge Claudia Wilken on 1/15/19. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 3/13/2019) Modified on 3/13/2019 (dtmS, COURT STAFF). Modified on 3/13/2019 (dtmS, COURT STAFF). (Entered: 03/13/2019)
01/22/2019 1119 Mail sent to Loran Michael Simon returned as undeliverable re 1118 Sealed Document. (cpS, COURT STAFF) (Filed on 1/22/2019) (Entered: 01/22/2019)
01/24/2019 1120 CLERK'S NOTICE Status Conference (Re: Dkt. #1118) set for 1/29/2019 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Parties should dial 888-684-8852/Access Number 1868782 to make their appearances. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 1/24/2019) (Entered: 01/24/2019)
01/24/2019 1121 ORDER SUBSTITUTING GOVERNOR GAVIN C. NEWSOM AS A DEFENDANT. Signed by Judge Claudia Wilken on 1/24/19. (dtmS, COURT STAFF) (Filed on 1/24/2019) (Entered: 01/24/2019)
01/25/2019 1122 Order by Magistrate Judge Robert M. Illman granting 905 Motion to Extend the Settlement Agreement. (rmilc2, COURT STAFF) (Filed on 1/25/2019) (Entered: 01/25/2019)
01/29/2019 1123 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 1/29/2019. The parties shall meet and confer by February 28, 2019. Status Conference set for 3/5/2019 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. The parties may appear by phone at the 3/5/2019 Status Conference by dialing 888-684-8852/Access Code 1868782. Plaintiff Attorneys: Jules Lobel, Samuel Miller, Carmen Bremmer and Rachel Meeropol all by phone. Defendant Attorneys: Audriano Hrvatin, Jay Russell, Kelly Samson all by phone and CDCR counsel Patricia Ferguson and Melissa Bentz both by phone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 1/29/2019) (Entered: 01/29/2019)
01/29/2019 1124 Order by Magistrate Judge Robert M. Illman granting 1025 Administrative Motion to File Under Seal. The Court has received Plaintiffs Administrative Motion to File Under Seal, and the Declaration of Carmen E. Bremer in support of the same. Pursuant to Civil Local Rule 79-5(a), Plaintiffs have shown that the portions of the documents to be sealed are entitled to protection under the law because they contain confidential information that Defendants claim could harm CDCR institutional safety and security if disclosed. Thus, Plaintiffs have met the good cause standard for sealing portions of Plaintiffs Supplemental Brief, portions of the Supplemental

Declaration of Rachel Meeropol in Support of Plaintiffs Supplemental Brief, as well as Exhibits 1 through 35 to said declaration, (collectively, the Confidential Material). Having considered Plaintiffs Administrative Motion to File Under Seal and the Declaration of Carmen E. Bremer in support, and good cause appearing therefor, Plaintiffs Motion is hereby GRANTED. (rmilc2, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
01/29/2019 1125 Order by Magistrate Judge Robert M. Illman granting 1084 Administrative Motion to File Under Seal. Pursuant to Civil Local Rules 7-11 and 79-5, and General Order 62, Defendants seek to file under seal an unredacted version of Defendants' Response to Plaintiffs' Supplemental Brief. The Court has considered Defendants' Motion, the declaration supporting it, and all other relevant papers on file. Defendants have established that there are compelling reasons to file the information at issue under seal; and, Defendants' request, as required, is narrowly tailored. Accordingly, the Court GRANTS Defendants' motion for administrative relief. The Clerk is instructed to file under seal the unredacted version of Defendants' response to Plaintiffs supplemental brief.(rmilc2, COURT STAFF) (Filed on 1/29/2019) (Entered: 01/29/2019)
02/06/2019 1126 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Appeal fee FEE NOT PAID.) (Attachments: # 1 Exhibit 1 to Notice of Appeal, # 2 Exhibit 2 to Notice of Appeal)(Fisher, Jeffrey) (Filed on 2/6/2019) (Entered: 02/06/2019)
02/06/2019 1127 USCA Appeal Fees received $ 505.00 receipt number 44611016889 re 1126 Notice of Appeal, filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate (cpS, COURT STAFF) (Filed on 2/6/2019) (Entered: 02/06/2019)
02/07/2019 1128 USCA Case Number 19-15224 Ninth Circuit Court of Appeals for 1126 Notice of Appeal, filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate. (cjlS, COURT STAFF) (Filed on 2/7/2019) (Entered: 02/07/2019)
02/08/2019 1129 JOINT NOTICE Regarding Parties Consent to Magistrate Judges Jurisdiction Concerning Order on Plaintiffs Extension Motion by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, Todd Ashker, Danny Troxell, et al (Samon, Kelly) (Filed on 2/8/2019) Modified on 2/10/2019 (cpS, COURT STAFF). (Entered: 02/08/2019)
02/08/2019 1130 AMENDED NOTICE OF APPEAL by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom . Appeal Record due by 3/11/2019. (Fisher, Jeffrey) (Filed on 2/8/2019) (Entered: 02/08/2019)

02/25/2019 1131 NOTICE OF CROSS APPEAL as to 1122 Order on Motion for Miscellaneous Relief by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Appeal fee of $505 receipt number 0971-13120206 paid.) Appeal Record due by 3/27/2019. (Attachments: # 1 Exhibit 1-Representation Statement)(Miller, Samuel) (Filed on 2/25/2019) (Entered: 02/25/2019)
02/26/2019 1132 MOTION to Stay re 1122 Order filed by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis. Motion Hearing set for 4/2/2019 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Responses due by 3/12/2019. Replies due by 3/19/2019. (Attachments: # 1 Declaration of Kelly A. Samson)(Samson, Kelly) (Filed on 2/26/2019) Modified on 3/8/2019 (cpS, COURT STAFF). (Entered: 02/26/2019)
03/01/2019 1133 USCA Case Number 19-15359 9th Circuit for 1131 Notice of Cross Appeal to the Ninth Circuit, filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. (cpS, COURT STAFF) (Filed on 3/1/2019) (Entered: 03/01/2019)
03/04/2019 1134 TRANSCRIPT ORDER for proceedings held on 10/30/2018 before Magistrate Judge Robert M. Illman by Edmund G. Brown, Jr, Mathew Cate, Anthony Chaus, Greg Lewis, for Court Reporter FTR - Eureka. (Fisher, Jeffrey) (Filed on 3/4/2019) (Entered: 03/04/2019)
03/05/2019 1135 PDF with attached Audio File. Court Date & Time [ 3/5/2019 10:06:40 AM ]. File Size [ 17344 KB ]. Run Time [ 00:36:08 ]. (courtspeak). (Entered: 03/05/2019)
03/05/2019 1136 TRANSCRIPT ORDER for proceedings held on 10/30/2018 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 3/5/2019) (Entered: 03/05/2019)
03/05/2019 1137 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 3/5/2019. Plaintiff's brief regarding the asserted right to discovery and an evidentiary hearing is due 3/26/2019. Defendants' response is due 4/16/2019. Plaintiffs reply is due 4/26/2019. The Parties are ordered to meet and confer regarding the documentation that Plaintiff's counsel requests from Defense Counsel on behalf of Mr. Ashker and his declaration prior to April 1, 2019. FTR Time: 10:06-10:42. Plaintiff Attorneys: Jules Lobel, Samuel Miller and Rachel Meeropol all by phone. Defendant Attorneys: Audriano Hrvatin by phone. CDCR counsel Patricia Ferguson and Melissa Bentz also appearing by phone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 3/5/2019) Modified on

3/6/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 03/05/2019)
03/06/2019 1138 TRANSCRIPT ORDER for proceedings held on 3/5/19 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Hrvatin, Adriano) (Filed on 3/6/2019) (Entered: 03/06/2019)
03/06/2019 1139 TRANSCRIPT ORDER for proceedings held on 3/5/2019 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 3/6/2019) (Entered: 03/06/2019)
03/07/2019 1140 Transcript of Proceedings held on 10/30/2018, before Magistrate Judge Robert M. Illman. Court Reporter/Transcriber Peggy Schuerger/Ad Hoc Reporting, telephone number (619) 228-3774/adhocreporting@aol.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1134 Transcript Order ) Redaction Request due 3/28/2019. Redacted Transcript Deadline set for 4/8/2019. Release of Transcript Restriction set for 6/5/2019. (Related documents(s) 1134 ) (pls, COURT STAFF) (Filed on 3/7/2019) (Entered: 03/07/2019)
03/07/2019 1141 Proposed Order re 1132 MOTION to Stay re 1122 Order by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Samson, Kelly) (Filed on 3/7/2019) Modified on 3/8/2019 (cpS, COURT STAFF). (Entered: 03/07/2019)
03/07/2019 1142 MOTION to Relate Case 4:19-cv-01144-SBA filed by Todd Ashker. Responses due by 3/11/2019. (Attachments: # 1 Proposed Order)(Johns, EmilyRose) (Filed on 3/7/2019) Modified on 3/8/2019 (cpS, COURT STAFF). (Entered: 03/07/2019)
03/08/2019 1143 Defendants' Notice and [Proposed] Order Entering On the Court's Docket Its January 15, 2019 Under Seal Order Granting in Part and Denying in Part Plaintiffs' De Novo Motion Regarding Inmate Ashker's Housing by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom (Samson, Kelly) (Filed on 3/8/2019) Modified on 3/11/2019 (cpS, COURT STAFF). (Entered: 03/08/2019)
03/11/2019 1144 TRANSCRIPT ORDER for proceedings held on 6/22/2017 and 10/20/2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court

Reporter Joan Columbini. (Cappella, Anne) (Filed on 3/11/2019) (Entered: 03/11/2019)
03/11/2019 1145 OPPOSITION/RESPONSE (re 1142 MOTION to Relate Case 4:19-cv01144-SBA ) filed byMathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Samson, Kelly) (Filed on 3/11/2019) (Entered: 03/11/2019)
03/12/2019 1146 CLERK'S NOTICE re 1142 Motion to Relate Case. The Court has determined that Cases 09-cv-5796 CW and 19-cv-1144 SBA are not related.(dtmS, COURT STAFF) (Filed on 3/12/2019) Modified on 3/13/2019 (cpS, COURT STAFF). (Entered: 03/12/2019)
03/12/2019 1147 OPPOSITION/RESPONSE (re 1132 MOTION to Stay re 1122 Order ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Exhibit A-B)(Miller, Samuel) (Filed on 3/12/2019) (Entered: 03/12/2019)
03/14/2019 1149 ADMINISTRATIVE MOTION for Release of Sealed Portions of June 22, 2017 and October 20, 2017 Transcripts of Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 3/18/2019. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 3/14/2019) (Entered: 03/14/2019)
03/18/2019 1150 Transcript Designation Form re 1130 Amended Notice of Appeal Transcript due by 4/8/2019. (Attachments: # 1 Transcript Designation Form (2 of 2))(Fisher, Jeffrey) (Filed on 3/18/2019) (Entered: 03/18/2019)
03/18/2019 1151 TRANSCRIPT ORDER for proceedings held on 3/7/2016, 4/25/2016, 8/17/2016, and 10/7/2016 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 3/18/2019) (Entered: 03/18/2019)
03/18/2019 1152 NOTICE of Appearance by Matthew Daniel Strugar for Plaintiffs (Strugar, Matthew) (Filed on 3/18/2019) (Entered: 03/18/2019)
03/19/2019 1153 REPLY (re 1132 MOTION to Stay re 1122 Order ) filed byGavin C. Newsom. (Russell, Jay) (Filed on 3/19/2019) (Entered: 03/19/2019)
03/20/2019 1154 ORDER re 1149 ADMINISTRATIVE MOTION for Release of Sealed Portions of June 22, 2017 and October 20, 2017 Transcripts of Proceedings filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. Defendants are herewith ORDERED to file a response to Plaintiff's Administrative Motion (dkt.

1149) on or before Friday, March 22, 2019. Signed by Judge Robert M. Illman on 03/20/2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
03/21/2019 1155 OPPOSITION/RESPONSE (re 1149 ADMINISTRATIVE MOTION for Release of Sealed Portions of June 22, 2017 and October 20, 2017 Transcripts of Proceedings ) filed byMathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Samson, Kelly) (Filed on 3/21/2019) (Entered: 03/21/2019)
03/22/2019 1156 ORDER re 1149 ADMINISTRATIVE MOTION for Release of Sealed Portions of June 22, 2017 and October 20, 2017 Transcripts of Proceedings filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker, 1155 Opposition/Response to Motion, filed by Anthony Chaus, Greg Lewis, Gavin C. Newsom, Mathew Cate. Plaintiff are herewith ORDERED to file a Reply on or before Tuesday, March 26, 2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2, COURT STAFF) (Filed on 3/22/2019) (Entered: 03/22/2019)
03/25/2019 1157 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule on Plaintiffs' Request for Discovery Concerning Retaliation Allegations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Gavin C. Newsom. (Bremer, Carmen) (Filed on 3/25/2019) Modified on 3/26/2019 (cpS, COURT STAFF). (Entered: 03/25/2019)
03/26/2019 1158 *** DISREGARD - ORDER CANCELLED DUE TO AUDIO EQUIPMENT FAILURE ON BOTH REQUESTED HEARING DATES *** TRANSCRIPT ORDER for proceedings held on 8/1/2017 and 9/18/2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 3/26/2019) Modified on 3/26/2019 (rjdS, COURT STAFF). (Entered: 03/26/2019)
03/26/2019 1159 Transcript of Proceedings of the official sound recording held on 08/17/16, before Judge Nandor J. Vadas. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 2:00 - 2:46. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than

5 business days from date of this filing. Redaction Request due 4/16/2019. Redacted Transcript Deadline set for 4/26/2019. Release of Transcript Restriction set for 6/24/2019. (tgb, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1160 Transcript of Proceedings pf the official sound recording held on 10/07/16, before Judge Nandor J. Vadas. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 2:06 - 3:32. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1151 Transcript Order, ) Redaction Request due 4/16/2019. Redacted Transcript Deadline set for 4/26/2019. Release of Transcript Restriction set for 6/24/2019. (Related documents(s) 1151 ) (tgb, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1161 REPLY (re 1149 ADMINISTRATIVE MOTION for Release of Sealed Portions of June 22, 2017 and October 20, 2017 Transcripts of Proceedings ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1162 Order by Magistrate Judge Robert M. Illman granting 1157 Stipulation. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1163 ADMINISTRATIVE MOTION for Release of Sealed Portion of June 8, 2017 Transcript of Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 4/1/2019. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1164 TRANSCRIPT ORDER for proceedings held on 6/8/2017 before Magistrate Judge Nandor J. Vadas by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter Joan Columbini. (Cappella, Anne) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/26/2019 1165 Order by Magistrate Judge Robert M. Illman granting 1149 Administrative Motion.(rmilc1, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)

03/26/2019 1166 Order by Magistrate Judge Robert M. Illman granting 1163 Administrative Motion.(rmilc1, COURT STAFF) (Filed on 3/26/2019) (Entered: 03/26/2019)
03/27/2019 1167 Transcript Designation Form for proceedings held on 6/2/16; 7/20/16; 8/17/16; 12/7/16 before Judge Vadas, re 1131 Notice of Cross Appeal to the Ninth Circuit, Transcript due by 4/26/2019. (Miller, Samuel) (Filed on 3/27/2019) (Entered: 03/27/2019)
04/02/2019 1168 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Telephone Conference held on 4/2/2019.FTR Time: 10:04 10:46. Plaintiff Attorney: Rachel Meeropol, Samuel Miller, Jules Lobel. Defendant Attorney: Kelly Samson, Melissa Bentz, Jay Russell, Adriano Hrvatin. (mllS, COURT STAFF) (Date Filed: 4/2/2019) Modified on 4/16/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 04/02/2019)
04/02/2019 1169 Administrative Motion to File Under Seal filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller, # 2 Proposed Order, # 3 REDACTED Plaintiffs' Motion for Retaliation Discovery, # 4 UNREDACTED Plaintiffs' Motion for Retaliation Discovery, # 5 REDACTED Declaration of Jules Lobel in Support of Motion for Retaliation Discovery, # 6 UNREDACTED Declaration of Jules Lobel in Support of Motion for Retaliation Discovery, # 7 REDACTED Exhibits AO, # 8 UNREDACTED Exhibits A-O)(Miller, Samuel) (Filed on 4/2/2019) (Entered: 04/02/2019)
04/02/2019 1170 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1169 Administrative Motion to File Under Seal (Miller, Samuel) (Filed on 4/2/2019) (Entered: 04/02/2019)
04/02/2019 1171 MOTION for Retaliation Discovery (REDACTED) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/4/2019 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Responses due by 4/16/2019. Replies due by 4/23/2019. (Attachments: # 1 REDACTED Declaration of Jules Lobel in Support of Motion for Retaliation Discovery, # 2 REDACTED Exhibits AO, # 3 Proposed Order)(Miller, Samuel) (Filed on 4/2/2019) Modified on 4/3/2019 (cpS, COURT STAFF).
***ENTIRE MOTION, DECLARATION & EXHIBITS ARE SOUGHT TO BE SEALED. SEE DKT. # 1169 ***

(Entered: 04/02/2019)
04/02/2019 1177 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Motion Hearing held on 4/2/2019. FTR Time: 10:04 10:46. Plaintiff Attorney: Rachel Meeropol, Samuel Miller, Jules Lobel. Defendant Attorney: Kelly Samson, Melissa Bentz, Jay Russell, Adriano Hrvatin. (mllS, COURT STAFF) (Date Filed: 4/2/2019) (Entered: 04/17/2019)
04/05/2019 1172 CLERK'S NOTICE: Parties appearing for the June 4, 2019 hearing before Magistrate Judge Illman may appear by phone by dialing 888-6848852/Access Code 1868782. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 4/5/2019) (Entered: 04/05/2019)
04/10/2019 1173 NOTICE of Withdrawal of Attorney Carol Strickman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Strickman, Carol) (Filed on 4/10/2019) Modified on 4/11/2019 (cpS, COURT STAFF). (Entered: 04/10/2019)
04/10/2019 1174 Order by Magistrate Judge Robert M. Illman denying as moot 1132 Motion to Stay. (rmilc2, COURT STAFF) (Filed on 4/10/2019) (Entered: 04/10/2019)
04/15/2019 1175 TRANSCRIPT ORDER for proceedings held on 4/2/2019 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 4/15/2019) (Entered: 04/15/2019)
04/16/2019 1176 Correction of Opposition/Response or Reply Deadlines pertaining to 1171 MOTION for Retaliation Discovery (Reason: Correcting an error) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 4/30/2019. Replies due by 5/14/2019. (Miller, Samuel) (Filed on 4/16/2019) (Entered: 04/16/2019)
04/19/2019 1178 Transcript of Proceedings held on March 5, 2019, before Judge Robert M. Illman. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1139 Transcript Order, 1138 Transcript Order ) Redaction Request due 5/10/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript

Restriction set for 6/19/2019. (Related documents(s) 1139 , 1138 ) (Columbini, Joan) (Filed on 3/21/2019) Modified on 4/19/2019 (rjdS, COURT STAFF). (Entered: 04/19/2019)
04/19/2019 1179 Transcript of Proceedings held on April 2, 2019, before Judge Robert M. Illman. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1175 Transcript Order, ) Redaction Request due 5/10/2019. Redacted Transcript Deadline set for 5/20/2019. Release of Transcript Restriction set for 7/18/2019. (Related documents(s) 1175 ) (Columbini, Joan) (Filed on 4/19/2019) (Entered: 04/19/2019)
04/24/2019 1180 MOTION for De Novo Determination of Ruling by Magistrate Judge Regarding District Court's Jurisdiction Pending Appeal re 1174 Order on Motion to Stay filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 6/4/2019 02:30 PM in Oakland, Courtroom 6, 2nd Floor before Judge Claudia Wilken. Responses due by 5/8/2019. Replies due by 5/15/2019. (Attachments: # 1 Proposed Order)(Meeropol, Rachel) (Filed on 4/24/2019) (Entered: 04/24/2019)
04/25/2019 1181 ADMINISTRATIVE MOTION to Change Time and Set Revised Briefing Schedule on Plaintiffs Discovery Motion filed by Gavin C. Newsom. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order)(Hrvatin, Adriano) (Filed on 4/25/2019) Modified on 4/26/2019 (cpS, COURT STAFF). (Entered: 04/25/2019)
04/26/2019 1182 OPPOSITION/RESPONSE (re 1181 ADMINISTRATIVE MOTION to Change Time and Set Revised Briefing Schedule on Plaintiffs Discovery Motion ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller)(Miller, Samuel) (Filed on 4/26/2019) (Entered: 04/26/2019)
04/26/2019 1183 Order by Magistrate Judge Robert M. Illman granting 1181 Administrative Motion for Extension of Time. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2, COURT STAFF) (Filed on 4/26/2019) (Entered: 04/26/2019)
05/03/2019 1184 STIPULATION WITH PROPOSED ORDER Regarding Briefing and Hearing Schedule Regarding Retaliation Discovery Motion filed by Todd

Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Gavin C. Newsom. (Miller, Samuel) (Filed on 5/3/2019) Modified on 5/6/2019 (cpS, COURT STAFF). (Entered: 05/03/2019)
05/06/2019 1185 NOTICE of Withdrawal of Attorney Alexandra Azure Wheeler by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell (Meeropol, Rachel) (Filed on 5/6/2019) Modified on 5/6/2019 (cpS, COURT STAFF). (Entered: 05/06/2019)
05/06/2019 1186 Order by Magistrate Judge Robert M. Illman granting in part and denying in part 1184 Stipulation. Defendants' Opposition brief is due on May 14, 2019; Plaintiffs' Reply Brief is due on June 11, 2019. The hearing currently set for June 4, 2019, is hereby VACATED. The court will determine after the completion of briefing whether a hearing is warranted. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2, COURT STAFF) (Filed on 5/6/2019) (Entered: 05/06/2019)
05/08/2019 1187 OPPOSITION/RESPONSE (re 1180 MOTION for De Novo Determination of Ruling by Magistrate Judge Regarding District Court's Jurisdiction Pending Appeal re 1174 Order on Motion to Stay ) filed byMathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Samson, Kelly) (Filed on 5/8/2019) (Entered: 05/08/2019)
05/08/2019 1188 MOTION to Appear by Telephone at the June 4, 2019 Hearing filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Samson, Kelly) (Filed on 5/8/2019) (Entered: 05/08/2019)
05/09/2019 1189 CLERK'S NOTICE. The Court finds that the Motion for DeNovo Determination 1180 is appropriate for resolution without oral argument pursuant to L.R. 7-1(b). Accordingly, the 6/4/2019 hearing date is vacated and the Court will issue a written ruling. The motion to appear by phone 1188 is deemed moot. (This is a text-only entry generated by the court. There is no document associated with this entry.) (dtmS, COURT STAFF) (Filed on 5/9/2019) (Entered: 05/09/2019)
05/14/2019 1190 Administrative Motion to File Under Seal Defendants' Opposition to Plaintiffs' Motion for Discovery Regarding Plaintiff Ashker's Retaliation Allegations filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Declaration of A. Hrvatin, # 2 Proposed Order, # 3 (redac) Oppo. to Pl's Motion, # 4 Declaration of A. Hrvatin Supp. Defs' Oppo. (redac), # 5 Exhibit (redac) Exh. A to D to Hrvatin Decl, # 6 (seal) Oppo. to Pl's Motion, # 7 Declaration of A. Hrvatin Supp. Defs' Oppo. (seal), # 8 Exhibit A to Hrvatin Decln (seal), # 9 Exhibit B to Hrvatin Decln (seal), # 10 Exhibit C to Hrvatin Decln (seal), # 11 Exhibit

D to Hrvatin Decln (seal))(Hrvatin, Adriano) (Filed on 5/14/2019) (Entered: 05/14/2019)
05/15/2019 1191 REPLY (re 1180 MOTION for De Novo Determination of Ruling by Magistrate Judge Regarding District Court's Jurisdiction Pending Appeal re 1174 Order on Motion to Stay ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Rachel Meeropol, # 2 Exhibit 1)(Meeropol, Rachel) (Filed on 5/15/2019) (Entered: 05/15/2019)
06/06/2019 1192 ORDER PERMITTING ADDITIONAL BRIEFING ON PLAINTIFFS MOTION FOR REVIEW OF ORDER ON DEFENDANTS MOTION FOR A STAY. Signed by Judge Claudia Wilken on 6/6/19. (dtmS, COURT STAFF) (Filed on 6/6/2019) (Entered: 06/06/2019)
06/10/2019 1193 TRANSCRIPT ORDER for proceedings held on 04/02/2019 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter Joan Columbini. (Samson, Kelly) (Filed on 6/10/2019) (Entered: 06/10/2019)
06/11/2019 1194 Administrative Motion to File Under Seal Unredacted Version Of Reply In Support Of Plaintiffs' Motion For Retaliation Discovery filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen E. Bremer, # 2 Proposed Order, # 3 Unredacted Version Of Reply In Support Of Plaintiffs Motion For Retaliation Discovery, # 4 Certificate/Proof of Service)(Bremer, Carmen) (Filed on 6/11/2019) (Entered: 06/11/2019)
06/11/2019 1195 ***NOTE: NO REDACTED VERSION. DOCUMENT SOUGHT TO BE SEALED, SEE DKT. # 1194 ***
REPLY (re 1171 MOTION for Retaliation Discovery ) Redacted Version filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 6/11/2019) Modified on 6/12/2019 (cpS, COURT STAFF). Modified on 6/12/2019 (cpS, COURT STAFF). Modified on 6/12/2019 (cpS, COURT STAFF). (Entered: 06/11/2019)
06/13/2019 1196 SUPPLEMENTAL OPPOSITION (re 1180 MOTION for De Novo Determination of Ruling by Magistrate Judge Regarding District Court's Jurisdiction Pending Appeal re 1174 Order on Motion to Stay ) filed byGavin C. Newsom. (Samson, Kelly) (Filed on 6/13/2019) Modified on 6/14/2019 (cpS, COURT STAFF). (Entered: 06/13/2019)

06/20/2019 1197 REPLY re 1196 SUPPLEMENTAL OPPOSITION (re 1180 MOTION for De Novo Determination of Ruling by Magistrate Judge Regarding District Court's Jurisdiction Pending Appeal re 1174 Order on Motion to Stay ) ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Meeropol, Rachel) (Filed on 6/20/2019) Modified on 6/21/2019 (cpS, COURT STAFF). (Entered: 06/20/2019)
06/26/2019 1198 ORDER GRANTING MOTION FOR DE NOVO DETERMINATION OF RULING REGARDING DISTRICT COURTS JURISDICTION PENDING APPEAL AND MOTION TO STAY 1180 by Judge Claudia Wilken. (dtmS, COURT STAFF) (Filed on 6/26/2019) (Entered: 06/26/2019)
08/02/2019 1199 MOTION to Remove Incorrectly Filed Document and NOTICE of Replacement of Documents as Exhibits A-T by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom (Attachments: # 1 Exhibit A ECF No. 667-7, # 2 Exhibit B ECF No. 685-1, # 3 Exhibit C ECF No. 742-3, # 4 Exhibit D ECF No. 759-3, # 5 Exhibit E ECF No. 778-3, # 6 Exhibit F ECF No. 791, # 7 Exhibit G ECF No. 808-3, # 8 Exhibit H ECF No. 808-5, # 9 Exhibit I ECF No. 833-2, # 10 Exhibit J ECF No. 833-4, # 11 Exhibit K ECF No. 835, # 12 Exhibit L ECF No. 896-3, # 13 Exhibit M ECF No. 927-3, # 14 Exhibit N ECF 927-8, # 15 Exhibit O ECF 928-3, # 16 Exhibit P ECF 985-3, # 17 Exhibit Q ECF 985-5, # 18 Exhibit R ECF 999-3, # 19 Exhibit S ECF 999-5, # 20 Exhibit T ECF 1084-3, # 21 Proposed Order)(Hrvatin, Adriano) (Filed on 8/2/2019) Modified on 8/4/2019 (cpS, COURT STAFF). (Entered: 08/02/2019)
08/09/2019 1200 Order by Magistrate Judge Robert M. Illman granting 1169 Administrative Motion to File Under Seal. (rmilc2, COURT STAFF) (Filed on 8/9/2019) (Entered: 08/09/2019)
08/09/2019 1201 Order by Magistrate Judge Robert M. Illman granting 1190 Administrative Motion to File Under Seal. (rmilc2, COURT STAFF) (Filed on 8/9/2019) (Entered: 08/09/2019)
08/09/2019 1202 Order by Magistrate Judge Robert M. Illman granting 1194 Administrative Motion to File Under Seal. (rmilc2, COURT STAFF) (Filed on 8/9/2019) (Entered: 08/09/2019)
08/09/2019 1203 Sealed Order re: 1171 by Magistrate Judge Robert M. Illman.(rmilc1s, COURT STAFF) (Filed on 8/9/2019) (Additional attachment(s) added on 8/9/2019: # 1 Certificate/Proof of Service) (rmilc1s, COURT STAFF). Modified on 8/9/2019 (msrS, COURT STAFF). (Entered: 08/09/2019)
08/15/2019 1204 Order by Judge Claudia Wilken granting 1199 Motion to Remove Incorrectly Filed Documents.(dtmS, COURT STAFF) (Filed on 8/15/2019) (Entered: 08/15/2019)

08/27/2019 1205 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Settlement Conference held on 8/27/2019. Settlement Conference set for 10/3/2019 12:30 PM in San Francisco, Courtroom D, 15th Floor. Plaintiffs will make arrangements to appear by video conference. FTR Time: NA. Plaintiff Attorneys: Jules Lobel and Sam Miller both by phone. Defendant Attorneys: Audriano Hrvatin and Kelly Sampson both by phone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 8/27/2019) (Entered: 08/27/2019)
08/29/2019 1206 NOTICE of Withdrawal of Attorneys for Defendants by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Hrvatin, Adriano) (Filed on 8/29/2019) Modified on 8/29/2019 (cjlS, COURT STAFF). (Entered: 08/29/2019)
09/26/2019 1207 Administrative Motion to File Under Seal the Parties' Stipulation and [Proposed] Order Regarding the Court's August 9, 2019 Under Seal Order (ECF NO. 1203) filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Declaration of Kelly Samson, # 2 Proposed Order Granting Admin. Motion to File Under Seal, # 3 (Redacted) Stipulation and [Prop] Order Regarding Joint Discovery and Scheduling Proposal Regarding the Court's Aug. 9, 2019 Under Seal Order (ECF NO. 1203), # 4 (Under Seal) Stipulation and [Proposed] Order)(Samson, Kelly) (Filed on 9/26/2019) (Entered: 09/26/2019)
09/27/2019 1208 Order by Magistrate Judge Robert M. Illman granting 1207 Administrative Motion to File Under Seal.(rmilc1s, COURT STAFF) (Filed on 9/27/2019) (Entered: 09/27/2019)
09/30/2019 1209 ORDER. Signed by Judge Robert M. Illman on 09/30/2017. (rmilc1s, COURT STAFF) (Filed on 9/30/2019) (rmilc1s, COURT STAFF). Modified on 10/1/2019 (cjlS, COURT STAFF). (Entered: 09/30/2019)
10/03/2019 1210 Minute Entry for proceedings held on 10/3/2019 before Magistrate Judge Robert M. Illman. Discussion held. The next meeting shall occur in early December 2019. Magistrate Judge Illman's courtroom deputy clerk shall confer with the parties before selecting the date for the next meeting.
FTR Time: Not Recorded.
Plaintiff Attorneys: Rachel Meeropol, Samuel Miller, and Jules Lobel.
Defendant Attorneys: Adriano Hrvatin and Kelly Samson.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (shyS, COURT STAFF) (Date Filed: 10/3/2019) (Entered: 10/03/2019)

10/16/2019 1211 CLERK'S NOTICE Status Conference Monitoring Meeting set for 12/3/2019 11:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Parties may appear by phone by dialing 888-684-8852/Access Code 1868782. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 10/16/2019) Modified on 10/17/2019 (glmS, COURT STAFF). (Entered: 10/16/2019)
10/21/2019 1212 ORDER of USCA as to 1126 Notice of Appeal, filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate, 1131 Notice of Cross Appeal to the Ninth Circuit, filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. (cjlS, COURT STAFF) (Filed on 10/21/2019) (Entered: 10/21/2019)
10/29/2019 1213 Administrative Motion to File Under Seal Declaration of Carmen Bremer in Support of Plaintiffs' Enforcement Motion Regarding Unauthorized ShuEligible Offense of "Participation in a Rout with an STG Nexus" filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 Declaration of Carmen Bremer in Support of Plaintiffs' Enforcement Motion Regarding Unauthorized Shu-Eligible Offense of Participation in a Rout with an STG Nexus REDACTED, # 4 Declaration of Carmen Bremer in Support of Plaintiffs' Enforcement Motion Regarding Unauthorized ShuEligible Offense of Participation in a Rout with an STG Nexus UNREDACTED, # 5 Exhibit A UNREDACTED, # 6 Exhibit B REDACTED, # 7 Exhibit B UNREDACTED)(Bremer, Carmen) (Filed on 10/29/2019) (Entered: 10/29/2019)
10/29/2019 1214 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1213 Administrative Motion to File Under Seal Declaration of Carmen Bremer in Support of Plaintiffs' Enforcement Motion Regarding Unauthorized Shu-Eligible Offense of "Participation in a Rout with an STG Nexus" (Bremer, Carmen) (Filed on 10/29/2019) (Entered: 10/29/2019)
10/29/2019 1215 Plaintiffs' Enforcement Motion Regarding Unauthorized Shu-Eligible Offense of "Participation in a Rout with an STG Nexus" filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 12/3/2019 11:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Responses due by 11/12/2019. Replies due by 11/19/2019. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Enforcement Motion Regarding Unauthorized ShuEligible Offense of "Participation in a Rout with an STG Nexus"

REDACTED, # 2 Exhibit A REDACTED, # 3 Exhibit B REDACTED, # 4 Proposed Order)(Bremer, Carmen) (Filed on 10/29/2019) Modified on 10/30/2019 (cjlS, COURT STAFF). (Entered: 10/29/2019)
11/12/2019 1216 NOTICE of Appearance by Le-Mai D Lyons as Defendants' Counsel (Lyons, Le-Mai) (Filed on 11/12/2019) (Entered: 11/12/2019)
11/12/2019 1217 OPPOSITION/RESPONSE (re 1215 Plaintiffs' Enforcement Motion Regarding Unauthorized Shu-Eligible Offense of "Participation in a Rout with an STG Nexus" ) filed byMathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Lyons, Le-Mai) (Filed on 11/12/2019) (Entered: 11/12/2019)
11/12/2019 1218 MOTION for Injunctive Relief by Pro Se Litigant for Settlement Agreement Violation filed by Benny Caranchini. Responses due by 11/26/2019. Replies due by 12/3/2019. (Attachments: # 1 letter, # 2 Envelope)(cpS, COURT STAFF) (Filed on 11/12/2019) (Entered: 11/19/2019)
11/19/2019 1219 REPLY (re 1215 Plaintiffs' Enforcement Motion Regarding Unauthorized Shu-Eligible Offense of "Participation in a Rout with an STG Nexus" ) filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 11/19/2019) (Entered: 11/19/2019)
11/19/2019 1220 Order by Judge Claudia Wilken denying 1218 Request for Injunction. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 11/19/2019) (Entered: 11/19/2019)
11/25/2019 1221 CLERK'S NOTICE resetting time of hearing for 12/3/2019 Status on monitoring meeting from 11:00 AM to 1:00 PM and CLERK'S NOTICE Continuing Plaintiff's Enforcement Motion Hearing (time) on Dkt. 1215 from 11:00 AM to to 1:00 PM : Motion Hearing reset for 12/3/2019 01:00 PM in McKinleyville before Magistrate Judge Robert M. Illman. Status Conference reset for 12/3/2019 01:00 PM in McKinleyville before Magistrate Judge Robert M. Illman. Telephone appearance information remains as previously provided. (Related documents(s) 1215 ) (glmS, COURT STAFF) (Filed on 11/25/2019) (Entered: 11/25/2019)
12/03/2019 1225 AMENDED Minute Entry (to reflect FTR time) for proceedings held before Magistrate Judge Robert M. Illman: Further Settlement Conference and motion hearing (dkt. 1215) held on 12/3/2019. Parties to confer and provide the court a date range for the next monitoring meeting. Parties to prepare and submit proposed order to the court. Plaintiff Attorneys: Rachel Meeropol, Carmen Bremmer, Jules Lobel, Sam Miller and Brittany Thomas, all by phone. Defendant Attorneys: Audriano Hrvatin, Kelly Sampson, Kristen Moose and Patricia Ferguson, all by phone. (This is a text-only entry generated by the

court. There is no document associated with this entry.) FTR Time: 1:10 - 2:21. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 12/3/2019) Modified on 12/19/2019: Matter transcribed by Tara (Bauer) Jauregui (ECHO Reporting). (rjdS, COURT STAFF). (Entered: 12/17/2019)

12/04/2019 1222 Erroneous Entry. See Docket # 1225 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Further Settlement Conference and motion hearing (dkt. 1215) held on 12/3/2019. Parties to confer and provide the court a date range for the next monitoring meeting. Parties to prepare and submit proposed order to the court. FTR Time: Not Recorded. Plaintiff Attorneys: Rachel Meeropol, Carmen Bremmer, Jules Lobel, Sam Miller and Brittany Thomas, all by phone. Defendant Attorneys: Audriano Hrvatin, Kelly Sampson, Kristen Moose and Patricia Ferguson, all by phone. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 12/4/2019) Modified on 12/11/2019 (glmS, COURT STAFF). Modified on 12/17/2019 (glmS, COURT STAFF). (Entered: 12/04/2019)

12/04/2019

Set/Reset Hearing (glmS, COURT STAFF) (Filed on 12/4/2019) (Entered: 12/04/2019)

12/10/2019 1223 ORDER Granting Parties' Joint Proposed Order. Signed by Judge Robert M. Illman on 12/10/2019. (rmilc1s, COURT STAFF) (Filed on 12/10/2019) (Entered: 12/10/2019)

12/12/2019 1224 CLERK'S NOTICE Status Conference Monitoring Meeting set for 2/20/2020 01:00 PM in San Francisco, Courtroom D, 15th Floor before Magistrate Judge Robert M. Illman. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 12/12/2019) (Entered: 12/12/2019)

12/18/2019 1226 Order by Magistrate Judge Robert M. Illman denying 1215 Enforcement Motion. (rmilc2S, COURT STAFF) (Filed on 12/18/2019) (Entered: 12/18/2019)

12/18/2019 1227 TRANSCRIPT ORDER for proceedings held on 12/3/2019 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Hrvatin, Adriano) (Filed on 12/18/2019) (Entered: 12/18/2019)

12/18/2019 1228 Order by Magistrate Judge Robert M. Illman granting 1213 Administrative Motion to File Under Seal. (rmilc2S, COURT STAFF) (Filed on 12/18/2019) (Entered: 12/18/2019)

12/18/2019 1229 ORDER regarding 12/3/19 monitoring meeting. Signed by Judge Robert M. Illman on 12/18/2019. (rmilc1s, COURT STAFF) (Filed on 12/18/2019) (Entered: 12/18/2019)
12/19/2019 1230 TRANSCRIPT ORDER for proceedings held on 12/3/2019 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 12/19/2019) (Entered: 12/19/2019)
12/24/2019 1231 Administrative Motion to File Under Seal Defendants' Motion to Exclude Plaintiffs' Experts on Todd Ashker's Retaliation Claim filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Declaration of Le-Mai Lyons, # 2 Proposed Order, # 3 Motion to Exclude Plaintiffs' Experts on Todd Ashker's Retaliation Claim, # 4 Declaration of Kelly Samson In Support of Defendants' Motion to Exclude Plaintiffs' Experts on Todd Ashker's Retaliation Claim, # 5 Exhibit A to Samson Declaration, # 6 Exhibit B to Samson Declaration, # 7 Exhibit C to Samson Declaration, # 8 Exhibit D to Samson Declaration, # 9 Exhibit E to Samson Declaration, # 10 Proposed Order)(Lyons, Le-Mai) (Filed on 12/24/2019) (Entered: 12/24/2019)
12/24/2019 1232 Application for Refund, Receipt Number 0971-13992165 Audio Recordings of Court Proceedings Held on 12/3/19 by Gavin C. Newsom. (Hrvatin, Adriano) (Filed on 12/24/2019) (Entered: 12/24/2019)
12/24/2019 1233 Application for Refund, Receipt Number 0971-13992276 Audio Recordings of Court Proceedings Held on 12/3/19 by Gavin C. Newsom. (Hrvatin, Adriano) (Filed on 12/24/2019) (Entered: 12/24/2019)
12/24/2019 1234 Application for Refund, Receipt Number 0971-13992453 Audio Recordings of Court Proceedings Held on 12/3/19 by Gavin C. Newsom. (Hrvatin, Adriano) (Filed on 12/24/2019) (Entered: 12/24/2019)
01/06/2020 1235 Transcript of Proceedings of the official sound recording held on 12/03/19, before Magistrate Judge Robert M. Illman. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 1:10 - 2:21. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (1227 in 4:09-cv-05796-CW) Transcript Order ) Redaction Request due 1/27/2020. Redacted Transcript Deadline set for 2/6/2020. Release of Transcript Restriction set for 4/6/2020. (tgj, COURT STAFF) (Filed on 1/6/2020) (Entered: 01/06/2020)

01/08/2020 1236 STIPULATION WITH [PROPOSED] ORDER for Extension of Time re Defendants' Motion to Exclude Experts filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 1/8/2020) Modified on 1/8/2020 (cjlS, COURT STAFF). (Entered: 01/08/2020)
01/08/2020 1237 Order by Magistrate Judge Robert M. Illman granting 1236 Stipulation for Extension of Time. (rmilc2S, COURT STAFF) (Filed on 1/8/2020) (Entered: 01/08/2020)
01/10/2020 1238 Plaintiffs' Notice re Expert Designations and Motion to Exclude Expert Testimony by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 1/10/2020) Modified on 1/13/2020 (cjlS, COURT STAFF). (Entered: 01/10/2020)
01/14/2020 1239 Notice of Withdrawal of 1231 Motion to Exclude Plaintiffs' Experts on Todd Ashker's Retaliation Claim. (Lyons, Le-Mai) (Filed on 1/14/2020) Modified on 1/15/2020 (cjlS, COURT STAFF). (Entered: 01/14/2020)
01/14/2020 1240 AMENDED CERTIFICATE OF SERVICE by Gavin C. Newsom re 1239 Notice of Withdrawal of Motion. (Lyons, Le-Mai) (Filed on 1/14/2020) Modified on 1/15/2020 (cjlS, COURT STAFF). (Entered: 01/14/2020)
01/27/2020 1241 Letter from Benjamin Toscano. (Attachments: # 1 Envelope)(jjbS, COURT STAFF) (Filed on 1/27/2020) (Entered: 01/27/2020)
01/30/2020 1242 STIPULATION WITH [PROPOSED] ORDER to Stay Discovery and Vacate Briefing Schedule filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, Todd Ashker. (Samson, Kelly) (Filed on 1/30/2020) Modified on 1/30/2020 (cjlS, COURT STAFF). (Entered: 01/30/2020)
01/31/2020 1243 Order by Magistrate Judge Robert M. Illman granting 1242 Stipulation. (rmilc1s, COURT STAFF) (Filed on 1/31/2020) (Entered: 01/31/2020)
02/03/2020 1244 ORDER DENYING REQUEST FOR ACCESS TO THE LAW LIBRARY re 1241 Letter filed by Benjamin Toscano. Signed by Judge Claudia Wilken on 2/3/2020. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 2/3/2020) (Entered: 02/03/2020)
02/07/2020 1245 CLERK'S NOTICE The Status Conference Monitoring Meeting scheduled for 1:00 PM on 2/20/2020 is advanced to 10:00 AM on the same date in San Francisco, Courtroom D, 15th Floor before Magistrate Judge Robert M. Illman. (This is a text-only entry generated by the court. There is no

document associated with this entry.) (glm, COURT STAFF) (Filed on 2/7/2020) (Entered: 02/07/2020)
02/20/2020 1246 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference Monitoring Meeting held on 2/20/2020. Counsel for the plaintiffs and defendants to prepare and submit written order for approval by the Court. Status Conference Monitoring Meeting set for 4/21/2020 at 10:00 AM in San Francisco, Courtroom D, 15th Floor before Magistrate Judge Robert M. Illman.
FTR Time: 10:05 - 11:22. Plaintiff Attorney: Anne Weills, Carmen Bremer, Jules Lobel, Rebecca Rabakin. Defendant Attorney: Adriano Hrvatin, Le-Mai Lyons, Patricia Ferguson, Kristen Moose, Kira Cohen.
Matter transcribed by Tara Jauregui/Echo Reporting.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (tvnS, COURT STAFF) (Date Filed: 2/20/2020) Modified on 2/20/2020 (notewarelS, COURT STAFF). (Entered: 02/20/2020)
02/20/2020 1247 TRANSCRIPT ORDER for proceedings held on 2/20/2020 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - San Francisco. (Hrvatin, Adriano) (Filed on 2/20/2020) (Entered: 02/20/2020)
02/20/2020 1248 TRANSCRIPT ORDER for proceedings held on 2/20/2020 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - San Francisco. (Cappella, Anne) (Filed on 2/20/2020) (Entered: 02/20/2020)
02/26/2020 1249 Transcript of Proceedings of the official sound recording held on 02/20/20, before Magistrate Judge Robert M. Illman. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 10:05 - 11:22. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1247 Transcript Order ) Redaction Request due 3/18/2020. Redacted Transcript Deadline set for 3/30/2020. Release of Transcript Restriction set for 5/26/2020. (Related documents(s) 1247 ) (tgj, COURT STAFF) (Filed on 2/26/2020) (Entered: 02/26/2020)

03/03/2020 1250 Order granting the Parties Joint Proposed Order re: 2/20/20 status conference. Signed by Judge Robert M. Illman on 03/03/2020. (rmilc1s, COURT STAFF) (Filed on 3/3/2020) (Entered: 03/03/2020)
03/06/2020 1251 CLERK'S NOTICE: Parties appearing for the Status Conference/monitoring meeting scheduled for 4/21/2020 shall either appear from Courtroom D, SF or by phone at 888-684-8852/Access Code 1868782. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glm, COURT STAFF) (Filed on 3/6/2020) (Entered: 03/06/2020)
03/06/2020 1252 Administrative Motion to File Under Seal Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Rachel Meeropol in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order REDACTED, # 4 Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order UNREDACTED, # 5 Declaration of Rachel Meeropol in Support of Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order REDACTED, # 6 Declaration of Rachel Meeropol in Support of Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order UNREDACTED, # 7 Exhibit A-C UNREDACTED)(Meeropol, Rachel) (Filed on 3/6/2020) (Entered: 03/06/2020)
03/06/2020 1253 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1252 Administrative Motion to File Under Seal Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order (Meeropol, Rachel) (Filed on 3/6/2020) (Entered: 03/06/2020)
03/06/2020 1254 MOTION Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order REDACTED filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 4/21/2020 10:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Responses due by 3/20/2020. Replies due by 3/27/2020. (Attachments: # 1 Declaration of Rachel Meeropol in Support of Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order REDACTED, # 2 Exhibit A-C REDACTED, # 3 Proposed Order)(Meeropol, Rachel) (Filed on 3/6/2020) (Entered: 03/06/2020)
03/20/2020 1255 Administrative Motion to File Under Seal Defendant's Opposition to Plaintiff's Motion to Lift Redactions Under Paragraph 6 of the Protective Order filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C.

Newsom. (Attachments: # 1 Declaration of Le-Mai D. Lyons Supporting Defs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 UNREDACTED - Defs' Opposition to Plf's Motion to Lift Redactions Under Paragraph 6 of the Protective Order)(Lyons, Le-Mai) (Filed on 3/20/2020) (Entered: 03/20/2020)
03/27/2020 1256 Administrative Motion to File Under Seal Plaintiffs' Reply in Support of Motion to Lift Redactions under Paragraph 6 of the Protective Order filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Rachel Meeropol in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 REDACTED - Plaintiffs' Reply in Support of Motion to Lift Redactions under Paragraph 6 of the Protective Order, # 4 UNREDACTED - Plaintiffs' Reply in Support of Motion to Lift Redactions under Paragraph 6 of the Protective Order)(Meeropol, Rachel) (Filed on 3/27/2020) (Entered: 03/27/2020)
03/27/2020 1257 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1256 Administrative Motion to File Under Seal Plaintiffs' Reply in Support of Motion to Lift Redactions under Paragraph 6 of the Protective Order (Meeropol, Rachel) (Filed on 3/27/2020) (Entered: 03/27/2020)
03/27/2020 1258 REDACTED REPLY (re 1254 MOTION Plaintiffs' Motion to Lift Redactions under Paragraph 6 of the Protective Order) filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Meeropol, Rachel) (Filed on 3/27/2020) Modified on 3/30/2020 (cjlS, COURT STAFF). (Entered: 03/27/2020)
04/16/2020 1259 CLERK'S NOTICE Update to Dkt. 1251 regarding the status conference/monitoring meeting set for 4/21/2020. Parties shall appear by phone using the phone number previously provided. There will be no inperson appearances. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 4/16/2020) (Entered: 04/16/2020)
04/21/2020 1260 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference/monitoring meeting held on 4/21/2020. Status Conference/monitoring meeting set for 5/20/2020 12:30 PM before Magistrate Judge Robert M. Illman.AT&T Conference Time: 10:00-11:08. Plaintiff Attorneys: Carmen Bremer, Jules Lobel, Rachel Meeropol and Rebecca Rabkin all by phone. Defendant Attorneys: Audriano Hrvatin, Le-mai Lyons, and Cassandra Shyrock all by phone. Patricia Ferguson and Kristen Moose appeared for CDCR by phone. (This is a text-only entry generated by the court. There is no

document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 4/21/2020) Modified on 4/22/2020: Matter transcribed by Tara Jauregui (Echo Reporting, Inc.) (rjdS, COURT STAFF). (Entered: 04/21/2020)
04/21/2020 1261 TRANSCRIPT ORDER for proceedings held on 4/21/2020 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 4/21/2020) (Entered: 04/21/2020)
04/22/2020 1262 TRANSCRIPT ORDER for proceedings held on 4/21/2020 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Lyons, LeMai) (Filed on 4/22/2020) (Entered: 04/22/2020)
04/28/2020 1263 Transcript of Proceedings of the official sound recording held on 04/21/20, before Magistrate Robert M. Illman. FTR/Transcriber Echo Reporting, Inc., telephone number (858) 453-7590. Tape Number: FTR 10:00 - 11:08. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1261 Transcript Order, ) Redaction Request due 5/19/2020. Redacted Transcript Deadline set for 5/29/2020. Release of Transcript Restriction set for 7/27/2020. (Related documents(s) 1261 ) (tgj, COURT STAFF) (Filed on 4/28/2020) (Entered: 04/28/2020)
04/30/2020 1264 CLERK'S NOTICE The status conference/monitoring meeting scheduled for 5/20/2020 will be held by phone. Parties shall dial 888-6848852/Access Code 1868782 to make their appearances. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 4/30/2020) (Entered: 04/30/2020)
05/05/2020 1265 ORDER regarding April 21, 2020 monitoring meeting. Signed by Judge Robert M. Illman on 05/05/2020. (rmilc1s, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
05/05/2020 1266 Order by Magistrate Judge Robert M. Illman granting 1252 Administrative Motion to File Under Seal. (rmilc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
05/05/2020 1267 Order by Magistrate Judge Robert M. Illman granting 1255 Administrative Motion to File Under Seal. (rmilc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)

05/05/2020 1268 Order by Magistrate Judge Robert M. Illman granting 1256 Administrative Motion to File Under Seal. (rmilc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
05/05/2020 1269 Order by Magistrate Judge Robert M. Illman denying 1254 Motion to Lift Redactions. (rmilc2S, COURT STAFF) (Filed on 5/5/2020) (Entered: 05/05/2020)
05/20/2020 1270 TRANSCRIPT ORDER for proceedings held on 5/20/2020 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Lyons, LeMai) (Filed on 5/20/2020) (Entered: 05/20/2020)
05/20/2020 1273 Erroneous Entry. Please see Docket #1277 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference/Monitoring Meeting held on 5/20/2020. Status Conference/Monitoring Meeting set for 7/8/2020 10:00 AM before Magistrate Judge Robert M. Illman. Proposed Order due 6/29/2020.FTR Time: AT&T Teleconference Recording, partially sealed. Attachment: Minutes. (glmS, COURT STAFF) (Date Filed: 5/20/2020) Modified on 5/21/2020 (glmS, COURT STAFF). Modified on 5/21/2020: Matter transcribed by Marla Knox. (rjdS, COURT STAFF). Modified on 5/26/2020 (glmS, COURT STAFF). (Entered: 05/21/2020)
05/20/2020 1277 Amended Minute Entry (to correct proposed order due date to May 29, 2020) for proceedings held before Magistrate Judge Robert M. Illman: Status Conference/Monitoring Meeting held on 5/20/2020.FTR Time: AT&T Teleconference Recording, partially sealed. Attachment: Amended Minutes. (glmS, COURT STAFF) (Date Filed: 5/20/2020) (Entered: 05/26/2020)
05/21/2020 1271 ADMINISTRATIVE MOTION for Release of Sealed Portion of May 20, 2020 Transcript of Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 5/26/2020. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 5/21/2020) (Entered: 05/21/2020)
05/21/2020 1272 TRANSCRIPT ORDER for proceedings held on 5/20/2020 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 5/21/2020) (Entered: 05/21/2020)
05/21/2020 1274 Order by Magistrate Judge Robert M. Illman granting 1271 Administrative Motion release of sealed portion of record.(glmS, COURT STAFF) (Filed on 5/21/2020) (Entered: 05/21/2020)

05/22/2020 1275 MOTION Release of Sealed Portion of Transcript From May 20, 2020 Status Conference filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. Responses due by 6/5/2020. Replies due by 6/12/2020. (Attachments: # 1 Proposed Order)(Lyons, Le-Mai) (Filed on 5/22/2020) (Entered: 05/22/2020)
05/22/2020 1276 Order by Magistrate Judge Robert M. Illman granting 1275 Motion for release of sealed portion of transcript.(glmS, COURT STAFF) (Filed on 5/22/2020) (Entered: 05/22/2020)
06/04/2020 1278 Transcript of Electronic Proceedings held on May 20, 2020, before Judge Robert Illman. Transcribed by Court Reporter, Marla F. Knox, RPR, CRR, RMR, telephone number (602) 391-6990. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1270 Transcript Order ) Release of Transcript Restriction set for 9/2/2020. (Related documents(s) 1270 ) (mfk, COURT STAFF) (Filed on 6/4/2020) (Entered: 06/04/2020)
06/04/2020 1279 Sealed Transcript of Electronic Proceedings held on May 20, 2020, before Judge Robert Illman. Transcribed by Court Reporter Marla F. Knox, RPR, CRR, RMR, Telephone number (602) 391-6990. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (mfk, COURT STAFF) (Filed on 6/4/2020) (Entered: 06/04/2020)
06/15/2020 1280 Administrative Motion to File Under Seal Joint Letter Brief re Plaintiffs' Motion for Access to Recordings of Confidential Interviews filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Samuel Miller in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 UNREDACTED - Joint Letter Brief re Plaintiffs' Motion for Access to Recordings of Confidential Interviews)(Miller, Samuel) (Filed on 6/15/2020) (Entered: 06/15/2020)
06/15/2020 1281 CERTIFICATE OF SERVICE re 1280 Administrative Motion to File Under Seal Joint Letter Brief re Plaintiffs' Motion for Access to Recordings of Confidential Interviews by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 6/15/2020) Modified on 6/16/2020 (cjlS, COURT STAFF). (Entered: 06/15/2020)

07/02/2020 1282 ORDER Regarding May 20, 2020 Monitoring Meeting. Signed by Judge Robert M. Illman on 7/2/2020. (glmS, COURT STAFF) (Filed on 7/2/2020) (Entered: 07/02/2020)
07/08/2020 1283 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 7/8/2020. Status Conference set for 7/30/2020 10:00 AM before Magistrate Judge Robert M. Illman.FTR Time: AT&T Teleconference Recordings. Sealed at second portion of hearing between 11:03 and 11:32. Plaintiff Attorneys: Carmen Bremmer, Jules Lobel, and Rachel Meeropol. Defendant Attorneys: Adriano Hrvatin, Cassandra Shyrock and Le-Mai Lyons with Kristen Moose, Patricia Ferguson, and Kira Cohen from CDCR. (This is a textonly entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 7/8/2020) Modified on 7/8/2020: Matter transcribed by Belle Ball. (rjdS, COURT STAFF). (Entered: 07/08/2020)
07/08/2020 1284 ADMINISTRATIVE MOTION for Release of Sealed Portion of July 8, 2020 Transcript of Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 7/13/2020. (Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 7/8/2020) (Entered: 07/08/2020)
07/08/2020 1285 TRANSCRIPT ORDER for proceedings held on 7/8/2020 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 7/8/2020) (Entered: 07/08/2020)
07/08/2020 1286 Order by Magistrate Judge Robert M. Illman granting 1284 Administrative Motion for release of sealed portion of record.(glmS, COURT STAFF) (Filed on 7/8/2020) (Entered: 07/08/2020)
07/09/2020 1287 MOTION for Release of Sealed Portion of Transcript from July 8, 2020 Status Conference filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. Responses due by 7/23/2020. Replies due by 7/30/2020. (Attachments: # 1 Proposed Order)(Lyons, Le-Mai) (Filed on 7/9/2020) (Entered: 07/09/2020)
07/09/2020 1288 Order by Magistrate Judge Robert M. Illman granting 1287 Motion for release of sealed transcript.(glmS, COURT STAFF) (Filed on 7/9/2020) (Entered: 07/09/2020)
07/09/2020 1289 Order by Magistrate Judge Robert M. Illman granting 1280 Administrative Motion to File Under Seal.(glmS, COURT STAFF) (Filed on 7/9/2020) (Entered: 07/09/2020)

07/09/2020 1290 TRANSCRIPT ORDER for proceedings held on 07/08/2020 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Lyons, LeMai) (Filed on 7/9/2020) (Entered: 07/09/2020)
07/15/2020 1291 STIPULATION WITH [PROPOSED] ORDER for Extension of Time re Plaintiffs' Motion to Extend Jurisdiction filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Gavin C. Newsom. (Miller, Samuel) (Filed on 7/15/2020) Modified on 7/15/2020 (cjlS, COURT STAFF). (Entered: 07/15/2020)
07/16/2020 1292 ORDER by Judge Claudia Wilken Granting 1291 STIPULATION FOR EXTENSION OF TIME RE PLAINTIFFS' MOTION TO EXTEND JURISDICTION. Motion due 9/25/2020. Opposition due 12/4/2020. Reply due 1/21/2021. Hearing to be set for 2/3/2021 at 2:30 p.m.(amgS, COURT STAFF) (Filed on 7/16/2020) (Entered: 07/16/2020)
07/16/2020 1293 Transcript of Proceedings held telephonically on July 8, 2020, before Judge Robert M. Illman. Transcriber Belle Ball, CSR, telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1285 Transcript Order, 1290 Transcript Order ) Release of Transcript Restriction set for 10/14/2020. (Related documents(s) 1285 , 1290 ) (ballbb15S, COURT STAFF) (Filed on 7/16/2020) (Entered: 07/16/2020)
07/16/2020 1294 Sealed Transcript of Proceedings held on July 8, 2020, before Judge Robert Illman. Transcriber Belle Ball, CSR, Telephone number (415)373-2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy,any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 8/3/2020. Redacted Transcript Deadline set for 8/13/2020. (ballbb15S, COURT STAFF) (Filed on 7/16/2020) (Entered: 07/16/2020)
07/23/2020 1295 Joint Status Report Re: Confidential Recordings by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, Todd Ashker. (Hrvatin, Adriano) (Filed on 7/23/2020) Modified on 7/24/2020 (cjlS, COURT STAFF). (Entered: 07/23/2020)
07/24/2020 1296 MOTION to Strike 1295 Status Report filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. Responses due by 8/7/2020. Replies due by 8/14/2020. (Hrvatin, Adriano) (Filed on 7/24/2020) (Entered: 07/24/2020)

07/24/2020 1297 NOTICE of Appearance by Cassandra Jean Shryock (Shryock, Cassandra) (Filed on 7/24/2020) (Entered: 07/24/2020)

07/24/2020 1298 Order by Magistrate Judge Robert M. Illman granting 1296 Motion to Strike 1295 Status Report. Because Defendants have inadvertently filed a version of a status report that contains sensitive information that could jeopardize institutional security, Defendants' motion to strike that document from the record is GRANTED. The Clerk of Court is DIRECTED to remove the document from public view. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc2S, COURT STAFF) (Filed on 7/24/2020) (Entered: 07/24/2020)

07/24/2020 1299 Administrative Motion to File Under Seal Joint Status Report filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Declaration of Shryock, # 2 Proposed Order, # 3 (Under Seal) Joint Status Report re: Confidential Recordings)(Shryock, Cassandra) (Filed on 7/24/2020) (Entered: 07/24/2020)

07/27/2020

Electronic filing error. Case Caption should Reflect the Correct Office Oakland. [err102] Re: 1295 Status Report filed by Anthony Chaus, Gavin C. Newsom, Todd Ashker, Greg Lewis, Mathew Cate, 1299 Administrative Motion to File Under Seal Joint Status Report filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate. (cjlS, COURT STAFF) (Filed on 7/27/2020) (Entered: 07/27/2020)

07/30/2020 1300 ORDER memorializing rulings at July 8, 2020 hearing. Signed by Judge Robert M. Illman on 7/30/2020. (glmS, COURT STAFF) (Filed on 7/30/2020) (Entered: 07/30/2020)

07/30/2020 1301 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Status Conference held on 7/30/2020. Parties to file status update within 30 days. FTR Time: SEALED AT&T Teleconference Recording. Counsel in this matter shall have access to the transcript of this hearing without further court order. Plaintiff Attorneys: Carmen Bremer, Jules Lobel and Rachel Meeropol. Defendant Attorneys: Lemai Lyons, Adriano Hrvatin, Cassandra Shryock. Patricia Ferguson, Kristen Moose and Kira Cohen for CDCR. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date Filed: 7/30/2020) Modified on 7/30/2020 (glmS, COURT STAFF). Modified on 7/30/2020: Matter transcribed by Ana Dub. (rjdS, COURT STAFF). (Entered: 07/30/2020)

07/30/2020 1302 ADMINISTRATIVE MOTION for Release of Sealed Transcript of July 30, 2020 Proceedings filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 8/3/2020.

(Attachments: # 1 Proposed Order)(Bremer, Carmen) (Filed on 7/30/2020) (Entered: 07/30/2020)
07/30/2020 1303 TRANSCRIPT ORDER for proceedings held on 7/30/2020 before Magistrate Judge Robert M. Illman by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, for Court Reporter FTR - Eureka. (Cappella, Anne) (Filed on 7/30/2020) (Entered: 07/30/2020)
07/31/2020 1304 Order by Magistrate Judge Robert M. Illman granting 1302 Administrative Motion release of sealed transcript.(glmS, COURT STAFF) (Filed on 7/31/2020) (Entered: 07/31/2020)
07/31/2020 1305 MOTION for Release of Sealed Transcript From July 30, 2020 Status Conference filed by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. Responses due by 8/14/2020. Replies due by 8/21/2020. (Attachments: # 1 Proposed Order)(Lyons, Le-Mai) (Filed on 7/31/2020) (Entered: 07/31/2020)
07/31/2020 1306 TRANSCRIPT ORDER for proceedings held on 07/30/2020 before Magistrate Judge Robert M. Illman by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom, for Court Reporter FTR - Eureka. (Lyons, LeMai) (Filed on 7/31/2020) (Entered: 07/31/2020)
08/03/2020 1307 Order by Magistrate Judge Robert M. Illman granting 1305 Motion for release of sealed transcript.(glmS, COURT STAFF) (Filed on 8/3/2020) (Entered: 08/03/2020)
08/03/2020 1308 OPINION of USCA as to 1053 Notice of Appeal, filed by Anthony Chaus, Edmund G. Brown, Jr., Greg Lewis, Mathew Cate. (18-16427) REVERSED, VACATED, AND REMANDED. THE PARTIES SHALL BEAR THEIR OWN COSTS. (cjlS, COURT STAFF) (Filed on 8/3/2020) Modified on 8/3/2020 (cjlS, COURT STAFF). (Entered: 08/03/2020)
08/03/2020 1309 ORDER of USCA as to 1126 Notice of Appeal, filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate, 1131 Notice of Cross Appeal to the Ninth Circuit, filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. (19-15224 AND 19-15359) DISMISSED FOR LACK OF JURISDICTION AND REMANDED WITH INSTRUCTIONS. THE PARTIES SHALL BEAR THEIR OWN COSTS). (cjlS, COURT STAFF) (Filed on 8/3/2020) Modified on 8/3/2020 (cjlS, COURT STAFF). (Entered: 08/03/2020)
08/04/2020 1310 Order by Magistrate Judge Robert M. Illman granting 1299 Administrative Motion to File Under Seal. (rmilc1s, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/04/2020)

08/11/2020 1311 Ex Parte Application for Order Granting Attorney-Client Telephone Call filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Proposed Order)(Miller, Samuel) (Filed on 8/11/2020) (Entered: 08/11/2020)
08/11/2020 1312 Order by Magistrate Judge Robert M. Illman granting 1311 Ex Parte Application.(glm, COURT STAFF) (Filed on 8/11/2020) (Entered: 08/11/2020)
08/17/2020 1313 Administrative Motion to File Under Seal Proposed Order Regarding July 30, 2020 Monitoring Meeting filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 SEALED - Proposed Order Regarding July 30, 2020 Monitoring Meeting)(Bremer, Carmen) (Filed on 8/17/2020) (Entered: 08/17/2020)
08/17/2020 1314 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1313 Administrative Motion to File Under Seal Proposed Order Regarding July 30, 2020 Monitoring Meeting (Bremer, Carmen) (Filed on 8/17/2020) (Entered: 08/17/2020)
08/18/2020 1315 Order by Magistrate Judge Robert M. Illman granting 1313 Administrative Motion to File Under Seal.(glmS, COURT STAFF) (Filed on 8/18/2020) (Entered: 08/18/2020)
08/19/2020 1317 MOTION to Intervene and to Modify Protective Order (ECF No. 182) filed by Louis J. Aguirre. Motion Hearing set for 9/23/2020 02:30 PM in Oakland, Chambers before Judge Claudia Wilken. Responses due by 9/2/2020. Replies due by 9/9/2020. (Attachments: # 1 Proposed Order Granting Louis J. Aguirre's motion to intervene and to modify the Protective Order)(Price, Jeff) (Filed on 8/19/2020) Modified on 9/4/2020 (bnsS, COURT STAFF). (Entered: 08/19/2020)
08/20/2020 1318 ORDER REFERRING TO JUDGE ILLMAN 1317 MOTION TO INTERVENE. Signed by Judge Claudia Wilken on 8/20/2020. (amgS, COURT STAFF) (Filed on 8/20/2020) (Entered: 08/20/2020)
08/21/2020 1319 MOTION to Consider Whether Cases Should be Related ; Defendants' Opposition to Relation of Cases filed by C. Pfeiffer. Responses due by 9/4/2020. Replies due by 9/11/2020. (Lyons, Le-Mai) (Filed on 8/21/2020) (Entered: 08/21/2020)
08/24/2020 1320 ORDER REGARDING SERVICE OF 1319 MOTION TO CONSIDER WHETHERCASES ARE RELATED. Signed by Judge

Claudia Wilken on 8/24/2020. (amgS, COURT STAFF) (Filed on 8/24/2020) (Entered: 08/24/2020)
08/24/2020 1321 CERTIFICATE OF SERVICE Certifying Compliance with Civil Local Rule 5-1(b) by C. Pfeiffer. (Lyons, Le-Mai) (Filed on 8/24/2020) Modified on 8/25/2020 (cjlS, COURT STAFF). (Entered: 08/24/2020)
08/25/2020 1322 MANDATE of USCA as to 1126 Notice of Appeal, filed by Anthony Chaus, Gavin C. Newsom, Greg Lewis, Mathew Cate, 1131 Notice of Cross Appeal to the Ninth Circuit, filed by Paul Redd, Richard Johnson, Jeffrey Franklin, Ronnie Dewberry, George Ruiz, Luis Esquivel, George Franco, Danny Troxell, Gabriel Reyes, Todd Ashker. (cjlS, COURT STAFF) (Filed on 8/25/2020) (Entered: 08/26/2020)
09/02/2020 1323 STIPULATION WITH PROPOSED ORDER re 1318 Order Referring Motion, 1317 MOTION to Intervene and to Modify Protective Order (ECF No. 182) filed by Gavin C. Newsom, Todd Ashker. (Hrvatin, Adriano) (Filed on 9/2/2020) Modified on 9/2/2020 (cjlS, COURT STAFF). (Entered: 09/02/2020)
09/03/2020 1324 Order by Magistrate Judge Robert M. Illman granting 1323 Stipulation.(glmS, COURT STAFF) (Filed on 9/3/2020) (Entered: 09/03/2020)
09/03/2020 1325 Notice of Withdrawal of Motion Pursuant to Agreement of the Parties and Stipulation and Order (ECF No. 1324) (Price, Jeff) (Filed on 9/3/2020) (Entered: 09/03/2020)
09/03/2020 1327 PLAINTIFFS' REPLY TO DEFENDANTS' OPPOSITION TO RELATION OF CASES; PLAINTIFF MOVES FOR CASES TO BE RELATED (Per Order of 8/24/20) filed by Todd Ashker. (cjlS, COURT STAFF) (Filed on 9/3/2020) (Entered: 09/04/2020)
09/04/2020 1326 Order by Magistrate Judge Robert M. Illman denying as moot 1317 Motion to Intervene. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 9/4/2020) (Entered: 09/04/2020)
09/08/2020 1328 ORDER RE: 1319 MOTION to Consider Whether Cases Should be Related. Case is not related to 18-cv-6350-WHA Ashker v. Beard. Signed by Judge Claudia Wilken on 9/8/2020. (amgS, COURT STAFF) (Filed on 9/8/2020) (Entered: 09/08/2020)
09/09/2020 1329 ORDER REGARDING 1308 & 1309 NINTH CIRCUIT'S RULINGS. Objections no more than five pages due by 9/23/2020. Response no more than seven pages due by 9/30/2020. Reply no more than five pages due by 10/7/2020. Signed by Judge Claudia Wilken on 9/9/2020. (amgS, COURT STAFF) (Filed on 9/9/2020) (Entered: 09/09/2020)

09/09/2020 1330 Administrative Motion to File Under Seal Joint Status Report filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 SEALED - Joint Status Report)(Bremer, Carmen) (Filed on 9/9/2020) (Entered: 09/09/2020)
09/09/2020 1331 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1330 Administrative Motion to File Under Seal Joint Status Report (Bremer, Carmen) (Filed on 9/9/2020) (Entered: 09/09/2020)
09/11/2020 1332 STIPULATION WITH [PROPOSED] ORDER >Expanding Page Limit for Joint Discovery Letter Regarding Transcript Redactions filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell, Gavin C. Newsom. (Bremer, Carmen) (Filed on 9/11/2020) Modified on 9/14/2020 (cjlS, COURT STAFF). (Entered: 09/11/2020)
09/11/2020 1333 Order by Magistrate Judge Robert M. Illman granting 1332 Stipulation.(glmS, COURT STAFF) (Filed on 9/11/2020) (Entered: 09/11/2020)
09/15/2020 1334 Administrative Motion to File Under Seal Joint Discovery Letter Regarding Transcript Redactions filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 SEALED - Joint Discovery Letter Regarding Transcript Redactions)(Bremer, Carmen) (Filed on 9/15/2020) (Entered: 09/15/2020)
09/15/2020 1335 CERTIFICATE OF SERVICE re 1334 Administrative Motion to File Under Seal Joint Discovery Letter Regarding Transcript Redactions by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Bremer, Carmen) (Filed on 9/15/2020) Modified on 9/16/2020 (cjlS, COURT STAFF). (Entered: 09/15/2020)
09/15/2020 1336 ADMINISTRATIVE MOTION to Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Responses due by 9/21/2020. (Attachments: # 1 Declaration of Carmen Bremer in Support of Plaintiffs' Administrative Motion to Expand Page Limit for Plaintiffs Motion to Extend the Settlement Agreement,

# 2 Proposed Order)(Bremer, Carmen) (Filed on 9/15/2020) (Entered: 09/15/2020)
09/16/2020 1337 ORDER REFERRING TO JUDGE ILLMAN FORTHCOMING MOTION FOR AN EXTENSION OF THE SETTLEMENT AGREEMENT. Signed by Judge Claudia Wilken on 9/16/2020. (amgS, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)
09/16/2020 1338 ORDER DIRECTING THE PARTIES TO MEET AND CONFER FURTHER RE: DISCOVERY DISPUTE. Signed by Judge Robert M. Illman on 09/16/2020. (rmilc2S, COURT STAFF) (Filed on 9/16/2020) (Entered: 09/16/2020)
09/21/2020 1339 Joint STATUS REPORT on Discovery Dispute by Gavin C. Newsom and Todd Ashker. (Lyons, Le-Mai) (Filed on 9/21/2020) Modified on 9/21/2020 (jmlS, COURT STAFF). (Entered: 09/21/2020)
09/21/2020 1340 OPPOSITION/RESPONSE (re 1336 ADMINISTRATIVE MOTION to Expand Page Limit for Plaintiffs' Motion to Extend the Settlement Agreement ) filed byGavin C. Newsom. (Lyons, Le-Mai) (Filed on 9/21/2020) (Entered: 09/21/2020)
09/22/2020 1341 STIPULATION WITH [PROPOSED] ORDER Permitting Parties to Submit Certain Exhibits In Camera In Connection With Plaintiffs' Second Motion to Extend the Courts Jurisdiction filed by Gavin C. Newsom, Todd Ashker. (Lyons, Le-Mai) (Filed on 9/22/2020) Modified on 9/23/2020 (cjlS, COURT STAFF). (Entered: 09/22/2020)
09/22/2020 1342 Pursuant to the Parties joint status report (dkt. 1339), Defendants are directed to submit the materials at issue to the court for in camera review. The submission should be made in electronic format and submitted to the deputy clerk. Defendants are instructed to contact Ms. Knudson via email for instructions. Signed by Judge Robert M. Illman on 09/22/2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (rmilc1, COURT STAFF) (Filed on 9/22/2020) (Entered: 09/22/2020)
09/22/2020 1343 Order by Magistrate Judge Robert M. Illman granting 1341 Stipulation.(glmS, COURT STAFF) (Filed on 9/22/2020) (Entered: 09/22/2020)
09/22/2020 1344 Order granting in part and denying in part 1336 Administrative Motion to exceed page limitations: Plaintiffs' motion shall not exceed 65 pages; Defendants' response shall not exceed 65 pages; and Plaintiffs' reply shall not exceed 25 pages. entered 9/22/2020, by Magistrate Judge Robert M. Illman. (This is a text-only entry generated by the court. There is no document associated with this entry.) (Entered: 09/22/2020)

09/23/2020 1345 Defendants' Objections to 1122 the Findings and Recommendation of the Magistrate Judge by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Attachments: # 1 Declaration of J. Shaffer ISO)(Shryock, Cassandra) (Filed on 9/23/2020) Modified on 9/23/2020 (cjlS, COURT STAFF). (Entered: 09/23/2020)
09/25/2020 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 REDACTED - Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 4 UNREDACTED - Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 5 Declaration REDACTED - Declaration of Carmen Bremer in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 6 Declaration UNREDACTED Declaration of Carmen Bremer in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 7 Exhibit SEALED a-o, # 8 Exhibit SEALED r-w, # 9 Exhibit SEALED y-z, # 10 Exhibit SEALED ee-ccc)(Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1347 DECLARATION OF SAMUEL MILLER re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration UNREDACTED - Declaration of Samuel Miller in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 2 Exhibit SEALED 1-18, # 3 Exhibit SEALED 20-21)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)
09/25/2020 1348 DECLARATION OF RACHEL MEEROPOL re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration SEALED - Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations, # 2 Exhibit SEALED B-N)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) Modified on 9/28/2020 (cjlS, COURT STAFF). (Entered: 09/25/2020)

09/25/2020 1349 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits O-R to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1350 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits S-Z to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1351 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits AB-AK to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1352 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits AL-AZ to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1353 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibit BB to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit SEALED BD-BF, # 2 Exhibit SEALED

BG, # 3 Exhibit SEALED BH, # 4 Exhibit SEALED BI, # 5 Exhibit SEALED BK, # 6 Exhibit SEALED BL)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1354 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits BM-BP to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit SEALED BQ, # 2 Exhibit SEALED BR, # 3 Exhibit SEALED BS, # 4 Exhibit SEALED BU, # 5 Exhibit SEALED BW, # 6 Exhibit SEALED BY-CA)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1355 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibits CC-CK to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit SEALED CL-CR)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1356 EXHIBITS re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations SEALED Exhibit CS to Declaration of Rachel Meeropol in Support of Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit SEALED CT-CV)(Related document(s) 1346 ) (Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/25/2020 1357 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. Motion Hearing set for 2/2/2021 11:00 AM in McKinleyville before Magistrate Judge Robert M. Illman. Responses due by 12/4/2020. Replies due by 1/12/2021. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Exhibit a-o, # 3 Exhibit q, # 4 Exhibit r-w, # 5 Exhibit x, # 6 Exhibit y-z, # 7 Exhibit aa-dd, # 8 Exhibit ee-ccc, # 9 Declaration of Samuel Miller, # 10 Exhibit 1-18,

# 11 Exhibit 19, # 12 Exhibit 20-21, # 13 Exhibit 22, # 14 Proposed Order)(Bremer, Carmen) (Filed on 9/25/2020) (Entered: 09/25/2020)
09/26/2020 1358 Declaration of Rachel Meeropol in Support of 1357 MOTION for Extension of Settlement Agreement Based on Systemic Due Process Violations filed byTodd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Exhibit A, # 2 Exhibit BN, # 3 Exhibit O-R, # 4 Exhibit S-Z, # 5 Exhibit AA, # 6 Exhibit AB-AK, # 7 Exhibit AL-AZ, # 8 Exhibit BA, # 9 Exhibit BB, # 10 Exhibit BC, # 11 Exhibit BD-BF, # 12 Exhibit BG, # 13 Exhibit BH, # 14 Exhibit BI, # 15 Exhibit BJ, # 16 Exhibit BK, # 17 Exhibit BL, # 18 Exhibit BM-BP, # 19 Exhibit BQ, # 20 Exhibit BR, # 21 Exhibit BS, # 22 Exhibit BT, # 23 Exhibit BU, # 24 Exhibit BV, # 25 Exhibit BW, # 26 Exhibit BX, # 27 Exhibit BY-CA, # 28 Exhibit CB, # 29 Exhibit CC-CK, # 30 Exhibit CL-CR, # 31 Exhibit CS, # 32 Exhibit CT-CV)(Related document(s) 1357 ) (Bremer, Carmen) (Filed on 9/26/2020) (Entered: 09/26/2020)
09/26/2020 1359 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1346 Administrative Motion to File Under Seal Plaintiffs' Second Motion for Extension of Settlement Agreement Based on Systemic Due Process Violations (Bremer, Carmen) (Filed on 9/26/2020) (Entered: 09/26/2020)
09/29/2020 1360 CLERK'S NOTICE Telephone Conference set for 9/29/2020 03:00 PM before Magistrate Judge Robert M. Illman. Telephone appearance instructions provided to counsel by email. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Filed on 9/29/2020) (Entered: 09/29/2020)
09/29/2020 1361 NOTICE of Withdrawal of Attorneys for Defendants by Mathew Cate, Anthony Chaus, Greg Lewis, Gavin C. Newsom. (Hrvatin, Adriano) (Filed on 9/29/2020) Modified on 9/30/2020 (cjlS, COURT STAFF). (Entered: 09/29/2020)
09/29/2020 1362 Minute Entry for proceedings held before Magistrate Judge Robert M. Illman: Telephone Conference held on 9/29/2020. Plaintiff's supplemental material due 10/1/2020. Defendant's response due October 6, 2020. FTR Time: SEALED AT&T Teleconference Recording. Counsel present at hearing shall have access to this sealed recording without further order of the court. Plaintiff Attorneys: Rachel Meeropol, Carmen Bremmer, Samuel Miller, Jules Lobel. Defendant Attorneys: Le-Mai Lyons, Cassandra Shryock, Adriano Hrvatin. (This is a text-only entry generated by the court. There is no document associated with this entry.) (glmS, COURT STAFF) (Date

Filed: 9/29/2020) Modified on 9/29/2020 (glmS, COURT STAFF). (Entered: 09/29/2020)
09/30/2020 1363 Plaintiffs' Response and Cross-Objection re First Extension of Settlement Agreement re 1345 Objection by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Miller, Samuel) (Filed on 9/30/2020) Modified on 10/1/2020 (cjlS, COURT STAFF). (Entered: 09/30/2020)
10/01/2020 1364 Administrative Motion to File Under Seal Plaintiffs' October 1, 2020 Letter Brief Regarding Redactions in Response to Minute Entry 1362 filed by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell. (Attachments: # 1 Declaration of Carmen Bremer, # 2 Proposed Order, # 3 SEALED - Plaintiffs' October 1, 2020 Letter Brief Regarding Redactions in Response to Minute Entry 1362 , # 4 Exhibit A SEALED, # 5 Exhibit B SEALED)(Bremer, Carmen) (Filed on 10/1/2020) (Entered: 10/01/2020)
10/01/2020 1365 CERTIFICATE OF SERVICE by Todd Ashker, Ronnie Dewberry, Luis Esquivel, George Franco, Jeffrey Franklin, Richard Johnson, Paul Redd, Gabriel Reyes, George Ruiz, Danny Troxell re 1364 Administrative Motion to File Under Seal Plaintiffs' October 1, 2020 Letter Brief Regarding Redactions in Response to Minute Entry 1362 (Bremer, Carmen) (Filed on 10/1/2020) (Entered: 10/01/2020)

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4:09-cv05796-CW
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 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.

Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF TERRY J. COLLINS

1. I am the retired Director of the Ohio Department of Rehabilitation and Correction. I hold a Bachelor’s degree in Sociology with Emphasis in Corrections (1977) from Morehead State University, Morehead, Kentucky and a Master’s degree in Correctional Administration (1980) from Xavier University, Cincinnati, Ohio.
2. I began my career with the Ohio Department of Rehabilitation and Correction in 1977 as a social worker at the Southern Ohio Correctional Facility. In 1980, I transferred to the London Correctional Institution where I served in various capacities to include social services director, labor relations officer, administrative assistant to the warden, and deputy warden of programs. I was appointed to the position of warden in 1991 at the Lorain Correctional Institution. I also served as warden at the Southern Ohio Correctional Facility and Ross Correctional Institution before being promoted to South Regional Director at Central Office in 1999, Deputy Director of Institutions in 2000, and Assistant Director in 2005. In May 2006, Governor Taft appointed me as Director of the Department of Rehabilitation and Correction and Governor Ted Strickland reappointed me in February 2007. On January 31, 2010, I retired from the agency, with over 32 years of service to the State of Ohio. My resume is attached as Exhibit A.
3. As Director of DRC, I was responsible for approximately 12,000 employees and an inmate population of nearly 51,000, and over 34,000 offenders under supervision of the Adult Parole Authority. I also managed a department budget of over $1.7 Billion.
4. I am a member of various organizations including the American Correctional Association (ACA), the Ohio Correctional and Court Services Association, the National Association of Wardens and Superintendents, the Ohio Wardens Association, the Correctional Accreditation Association of Ohio, the National Association of Blacks in Criminal Justice, the Midwest Directors Association (past member), the National Association of Correctional Record Administrators & Supervisors (past member), and the Association of State Correctional Administrators (Associate Member).
5. Since February 2011 I have worked as a corrections consultant on various correctional issues and projects across the nation. For Management Training Corporation (MTC) based in Centerville, Utah, I have conducted security audits, developed training in Incident Command System, Back to Basics, and served on MTC's committee to develop policy on Restrictive Housing. My work with Union Supply based in Rancho Dominguez, CA, includes advising on inmate sundry/food packages and commissary operations. I previously served on the Board of Managers of TouchPay, LLC based in Irving, TX and continue to consult with them in their inmate banking operation.
6. I have conducted training sessions for the American Correctional Association (ACA) on correctional operations to representatives from Saudi Arabia. In addition for ACA I traveled to

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EXPERT REPORT OF TERRY J. COLLINS

C.A. NO. 4:09-cv-05796-CW

the United Arab Emirates (UAE) on two occasions to provide training to UAE prison officials on prison operations.
7. I have been retained by plaintiff attorneys to provide an opinion on the management of high security inmates based of my extensive and continuing corrections career and experience.
8. I will provide an overview of the Ohio Department of Rehabilitation and Corrections management of high security inmates held at the Ohio State Penitentiary (OSP) in Youngstown, Ohio. This information will be provided for the Court in consideration of changes in operational practices at issue in the plaintiff's lawsuit involving Pelican Bay State Prison.
9. I am being compensated at the rate of $150.00 an hour plus expenses for my work in this matter.
10. I have not testified before as an expert witness.
11. I reserve the right to supplement or amend the report if other information becomes available.
12. I have a great deal of experience and knowledge about the situation at OSP due to my former positions with the ODRC. To refresh my knowledge, on February 24, 2015 I met with officials at the Ohio State Penitentiary (OSP) in Youngstown, Ohio and toured cellblock pods and the visiting room. The purpose of this meeting was to define, clarify, and ensure full understanding of the programs and privileges granted to inmates at this facility since my retirement. I met with the Warden, Deputy Wardens, and Assistant to the Northeast Regional Director.
13. In 1998 the Ohio Department of Rehabilitation and Correction opened the Ohio State Penitentiary in Youngstown, Ohio. This prison houses inmates that are classified as having the need for the highest security level. Inmates confined at OSP are classified as either level 4 commonly referred to as maximum security or level 5 commonly referred to as Administrative/Supermax. Level 5 is the highest security in the department. It should be noted that this prison undertook massive reforms during and after a class action lawsuit on conditions in the mid 2000's. As a result, Level 4 inmates must in essence agree to be housed at OSP and must be moved if they request such via the established procedures. In addition NO inmate with serious mental health issues can be housed at OSP. Each level of security has privilege levels defined as A or B. The initial assignment to level 5 starts at 5B and progresses downward to level to 5A, 4B, 4AT, 4A, and transfer to other prison for lower security housing. The status of 4AT is a transition to 4A from 4B. Finally the prison also has inmates assigned as Level 1 (the lowest level of security) who perform facility cleaning and yard work in/on prison grounds. They are housed separately from all others but are inside the main complex of OSP.

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EXPERT REPORT OF TERRY J. COLLINS

C.A. NO. 4:09-cv-05796-CW

14. I was the Deputy Director of Institutions when Ohio undertook major reforms to super maximum confinement at OSP and supervised those reforms. The Director of ODRC developed a committee to review, revise, create and implement policies for OSP and the agency as a whole. I was the highest ranking member of the committee and reported progress to the Director. Our work on this committee resulted in three major initiatives: a dramatic reduction in population at OSP, new procedures which were affirmed by the courts, and the development of substantive criteria which limited who could be placed in long term supermax confinement commonly referred to as "restrictive housing". While these reforms were partially the result of the lawsuit brought by inmates, Ohio recognized the need to reform its procedures and policies. I agreed with these reforms and was instrumental in implementing them; first as Deputy Director of Institutions, then Assistant Director, and finally as Director. The reforms resulted in a dramatic reduction in overall inmate population at OSP security level 5. I believe that the new procedures and criteria were working well when I was Director and continue to work well. I believe that the reforms improved our system for the inmates and staff.
15. How many inmates are housed at OSP:
The prison has capacity for 504 total inmates. On 2-24-15 the prison reported a total of 409 inmates: 66 in 5B, 64 in 5A, 206 in 4B, 62 in 4A, 7 in level 1, 4 in 5A long term (described below).
16. How many Level 5 inmates at OSP:
134 inmates at OSP are classified as level 5. The department population as reported on weekly count of February 23 was 50,101. This makes Ohio the state with the 6th or 7th largest prison population. Having this low a number of inmates at the highest level of security is remarkable in a system this large, but it should not be. I believe this is a growing trend, and I am aware of other state prison systems such as Colorado, Wisconsin, and Mississippi that have undertaken similar reforms to their high security prisons to successfully reduce the number of inmates in restrictive housing.
17. Who goes to OSP Level 5:
Placement in level 5 is controlled by policy 53-CLS-04 Level 5 Classification1. This policy limits placement at level 5 to certain demonstrated behavior criteria. Inmates must engage in seriously dangerous behavior such as murder, assault, riot, or escape to be placed in level 5. Simple gang membership or affiliation would not allow placement at level 5. Level 5 is reserved for those individuals who by their actions have proven to be predatory, assaultive and

1 The policy is available on the department website at www.drc.ohio.gov. Dropdown tab agency policies and click on DRC policies.

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EXPERT REPORT OF TERRY J. COLLINS

C.A. NO. 4:09-cv-05796-CW

disruptive to overall prison security. Placement in level 5 requires a thorough investigation along with a guilty finding of an established rule violation.
18. Security Threat Group (gang) members in Level 5:
I was advised that the entire Ohio Department of Rehabilitation and Corrections has approximately 8,500 inmates profiled with Security Threat Group (STG)/gang affiliations. On the day of my visit ONLY five (5) of the 134 level 5 inmates were placed there for STG related disruptive activities. Based on their involvement in an incident or an investigation of illegal activity inmates can be issued a conduct report sent to the Rules Infraction Board and be referred for level 5 placement. Level 5 placement for STG/gang activity is controlled by the above mentioned policy 53-CLS-04 paragraph C.5 which states "the inmate functions as a leader, enforcer, or recruiter of a security threat group, which is actively involved in violent or disruptive behavior."
The Ohio system manages and monitors STG/gang activity by the level of participation defined as passive, active, or disruptive. These levels mean:
• Passive participants are those identified as STG/gang but are not continuing activity. • Active participants are those identified in the past twenty-four months having STG
photos, tattoos, or possession of STG contraband (alphabet, codes, insignias) or notification by law enforcement that substantiates STG/gang membership. Documentation shall include a guilty finding at the Rules Infraction Board. • Disruptive participants are those identified in the past twenty-four months who function as a leader, enforcer, recruiter actively involved in violent, disruptive behavior, i.e. threats or assault of staff or inmate, encouraging/creating an uprising to disrupt normal operations, convey or attempt to convey major contraband, possession of weapon, cell phone or device to aide escape, and or committed disruptive acts such as extortion, threats, robberies. Documentation shall include a guilty finding at the Rules Infraction Board.
Those inmates who demonstrate violent and disruptive actions are placed at level 5.
19. How long do inmates stay in level 5:
The OSP officials provided a chart which I have provided as Exhibit B. The chart was developed in December 2014 so not current the day of my visit but is within an acceptable time to be valid. The chart listed 128 inmates however I eliminated the four (4) long termers so total defined as 124 inmates. I note the following regarding the 124 inmates:
• 32 inmates, or 25.8%, did 0-12 months

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EXPERT REPORT OF TERRY J. COLLINS

C.A. NO. 4:09-cv-05796-CW

• 34 inmates, or 27.4%, did 13-24 months • 23 inmates, or 18.5%, did 25-36 months • 35 inmates, or 28.2%, are doing 37 to 97+ months • 71.8% do less than 3 years in level 5
During the discussion on length of stay in level 5 the OSP officials allowed me to inquire about those doing the longest times. I picked out six (6) cases of those inmates who had been continuous level 5 ranging from 7 to 14 years. I found all had continued disruptive actions with numerous conduct reports. Their failure to change their behavior requires they continue level 5. My years of experience also tells me that some of these inmates may continue to act out knowing it will keep them in level 5, in essence a self-imposed protective control. Some inmates who have been housed on level 5 have a generalized fear to be placed in lesser custody. They fear being housed in a large dormitory or two man cell. Their fear is generalized and not specific to a person or incident that would warrant protective control placement.
20. Privilege levels for inmates confined at OSP:
OSP has defined privileges depending on the level of security. I have attached a copy provided by the prison that defines the various privileges allowed at each level (Exhibit C). Of special interest to me are the extended privileges granted to the "long termers" in level 5. There are four (4) inmates assigned to this privilege level who have been confined at OSP since 1998. These are the inmates who are considered the most dangerous in the Ohio system based on their involvement in the 1993 riot and the 1997 death row disturbance. All are under death penalty. While I was Director I believed and currently believe that dangerous inmates in long term segregation could be given additional privileges which would approximate some of the conditions that they would have in the general population or on death row. I found that it reinforces positive behavior, gave inmates something to work toward, helped break up their time and created hope. Subsequently, these prisoners were given additional privileges. The addition privileges are:
• Phone calls for 1 hour per day, sometimes longer, via the cordless phones used at OSP.
• Recreation and out of cell time either on the pod floor area, pod indoor recreation room or enclosed outside recreation area for a 1 hour 45 minutes session (7 days a week) plus they generally are granted an additional 1 hour 45 minutes session (2 days per week). In recreation area they are provided hand ball, jump rope, exercise ball, dip bar, exercise wheel, and basketball if they go to outside area.

5
EXPERT REPORT OF TERRY J. COLLINS

C.A. NO. 4:09-cv-05796-CW

EXHIBIT B

EXHIBIT C

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,

Case No.: 4:09-cv-05796-CW

CLASS ACTION v.

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF ANDREW COYLE, PhD

I. II.
A. B. C.
D. E. F. G. H. I. J. K. L. M. N. O. P. Q. R. S. T.

TABLE OF CONTENTS

Page(s)

EXPERT QUALIFICATIONS ....................................................................... 1 NATURE AND BASIS OF EXPERT OPINION ........................................... 5
International and regional standards relevant to confinement in a SHU....... 6 England and Wales: An alternative model ................................................ 10 The principles of good operational management in respect of prisoners who require to be held in conditions of the highest security.............................. 12 Humane treatment .................................................................................... 12 Minimum number .................................................................................... 12 Individual assessment of risk.................................................................... 13 Regular review of security level ............................................................... 15 Only necessary restrictions ....................................................................... 15 The balance of security............................................................................. 15 Specially trained staff............................................................................... 16 Management of prisoners in special maximum security conditions ........... 17 The situation in Pelican Bay..................................................................... 18 Humane treatment .................................................................................... 18 Minimum number .................................................................................... 18 Individual assessment of risk.................................................................... 19 Regular review of security level ............................................................... 20 Only necessary restrictions ....................................................................... 20 The balance of security............................................................................. 20 Specially trained staff............................................................................... 20 Management of prisoners in special maximum security conditions ........... 21

i

I, Andrew Coyle, PhD FKC, declare I. EXPERT QUALIFICATIONS
1. I have a PhD degree from the Faculty of Law in the University of Edinburgh awarded in 1986 for a thesis on the organisational development of the Scottish Prison Service with particular reference to the role and influence of the prison officer. This thesis charted the development of the Scottish Prison Service from its earliest days and identified the key role which has been played by prison personnel in the humane management of prisoners. I am a Fellow of King’s College in the University of London (FKC); this Fellowship was awarded in recognition of “exceptional achievement and academic service.”
2. Prior to becoming a full-time academic, I spent 24 years as a governor (warden) in the prison services of the United Kingdom. Between 1973 and 1991, I was a governor in the Scottish Prison Service, during which time I commanded three major prisons, including Peterhead Prison which held the most dangerous and difficult prisoners in the system and also Shotts Prison, the main prison for convicted prisoners serving long sentences. I also spent five years in the national prison headquarters, where I was responsible for the development of security policies at a national level. Between 1991 and 1997, I was governor of Brixton Prison in London which held up to 1,000 prisoners including some 300 who were being held for psychiatric observation and some 60 prisoners who were in the highest security category, including a number facing charges for terrorist crimes.
3. Between 1997 and 2005, I was Director of the International Centre for Prison Studies (ICPS) within the School of Law in King's College of the University of London, and from 2003, I was Professor of Prison Studies in the same School of Law. ICPS was founded in 1997 for the purposes of conducting research on prisons and imprisonment, developing and disseminating knowledge about how imprisonment should be used, and contributing to improved policy and practice in prisons across the world. Since then, it has contributed to
1

prison reform and advised on good prison management in countries in all regions of the world. As Director of ICPS and Professor of Prison Studies, I have been closely involved in advising on prison management and the reform of prison systems in all regions of the world. I have served as a consultant on prison matters to numerous governments including Brazil, Chile and Colombia; Russia, China and Cambodia; Poland, Sweden and Spain; South Africa, Uganda and Mozambique; Australia and New Zealand. From 1997 to 2000, I was an adviser on prison issues to the UK Secretary of State for Home Affairs. At various points during that time, I was also special adviser to UK Parliament’s Select Committee on Northern Ireland for its inquiry into prisons in Northern Ireland and also to the Select Committee on Education and Skills for its inquiry into education in prisons in England and Wales. Since 2002, I have been a member of the UK Secretary of State for Foreign Affairs’ Advisory Group on Torture Prevention. This group of experts meets on a regular basis to assist the Secretary of State to develop strategies for encouraging countries around the world to reduce the use of and ultimately to eliminate the use of torture within their jurisdictions. Between 2005 and 2010, I was one of the three panel members of the Public Inquiry into the murder of Billy Wright inside Maze Prison in Northern Ireland. This inquiry was set up under the terms of the Northern Ireland Peace Agreement to inquire into any possible collusion by state authorities in the murder of a loyalist prisoner by republican prisoners. My Curriculum Vitae is attached as Exhibit 1.
4. I have provided expert opinions and reports in numerous cases in the United Kingdom relating to prisoners and prison issues. In 2002, I provided an expert report for the Inter American Court of Human Rights in the case of Hilaire, Constantine and Benjamin et al v- The Republic of Trinidad and Tobago and in 2004 I provided a report for the same court in the case of Winston Caesar -v- The Republic of Trinidad and Tobago. In 2007, I gave expert evidence before the Inter American Court of Human Rights in Costa Rica in the case of
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Boyce et al -v- Barbados. In 2013, I gave expert evidence in Toronto, Canada, in the coronial inquiry into the death of prisoner Ashley Smith while in federal prison custody. My evidence focussed on the use of extended solitary confinement by the Correctional Service of Canada and described international good prison management practices in the treatment of prisoners who required special treatment. A complete list of the cases in which I have contributed testimony is included in my attached CV.
5. I have published numerous scholarly articles and book chapters on topics related to the use of imprisonment and prison management. These include Governing, Leadership and Change (2007), Change management in prisons (2007) and The Prison: Its contribution to punishment, rehabilitation and public safety (2013). Among the books I have published are The Prisons We Deserve (Harper Collins, 1994), Managing Prisons in a Time of Change (International Centre for Prison Studies, 2002) and Understanding Prisons: Key issues in policy and practice (Open University Press, 2005). My text book A Human Rights Approach to Prison Management: Handbook for Prison Staff (International Centre for Prison Studies, 2002 and 2009) has been translated into 16 languages and is an acknowledged international reference book on its subject. A list of the articles and books I have authored or edited is included in my attached CV.
6. In the course of my academic work I have lectured and given addresses in many countries and in a wide range of academic settings on criminal justice matters and on prison management. Most recently I have been invited to lecture on the new challenges in the management of extremist and terrorist prisoners and on the use of maximum security in prisons.
7. I have also advised and been an expert on prison issues for several intergovernmental organisations including the UN Office on Drugs and Crime, the UN Latin American Institute, the Organisation of American States, the Council of Europe and the
3

International Committee of the Red Cross. I was one of the main drafters of what became the European Prison Rules 2006 and was expert adviser to the United Nations on the review of the UN Standard Minimum Rules for the Treatment of Prisoners. These are standards agreed at regional and international levels respectively for the management of prisoners. The United States is an active participant in the United Nations on the review of the Standard Minimum Rules. I was the main drafter of what is now the European Code of Ethics for Prison Staff (2012). This Code sets out a recommended standard of professional behaviour for prison staff. I have been an expert member of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its prison inspection missions to several member states including Russia, Turkey and Armenia. The CPT has the right to inspect with complete independence all places of detention in the 47 member states of the Council of Europe. I was an expert member of the CPT’s first two missions to Russia and had unhindered inspection access to numerous prisons and penitentiaries in large cities and in remote Siberia. My inspections with the CPT in Turkish prisons focussed on the management of terrorist and other maximum security prisoners. Details of all of this work are included in my attached CV.
8. During my time as a governor (warden) I served on a wide variety of commissions and groups developing operational standards for the management of high security prisoners. Most recently I have worked with the United Nations Interregional Crime and Justice Research Institute and the International Centre for Counter-Terrorism in developing strategies for the management of terrorist and violent extremist prisoners.
9. I have visited the United States on many occasions to speak at academic conferences and for consultations with bodies such as the American Correctional Association. I have visited federal, state and county prisons, jails and correctional institutions in Illinois, New York, North Carolina, Pennsylvania and Texas. I have not visited Pelican Bay or any
4

other correctional facility in California. II. NATURE AND BASIS OF EXPERT OPINION
10. I have been retained by counsel for the plaintiffs in Ashker v. Brown to provide expert opinions on international and professional standards relating to confinement in Security Housing Units and equivalent confinement. I have also been asked to express opinions on the situation in which the prisoners are detained in the Pelican Bay Security Housing Unit (SHU) and specifically on:
• Proper identification / limitation of those prisoners for whom some form of solitary confinement or restrictive housing is justified
• Conditions of such housing, including duration, out-of-cell time, access to social interaction, programming, and rehabilitative plan
• Proper review of the continued need for such housing. 11. I am providing testimony in this case on a pro bono basis. I will be compensated by Plaintiffs for actual expenses incurred. 12. My opinions on these topics are based on a number of sources. In addition to my professional experience of managing prisoners who require the highest level of supervision, I have drawn on my international work with intergovernmental bodies including the United Nations, the Council of Europe, the International Committee of the Red Cross and the World Health Organisation. I have also made use of my experience in advising prison services in many countries, often in maximum security settings. I have extensive academic knowledge of issues to do with solitary confinement and the management of extremist and violent prisoners. All of these sources are listed in my attached CV. The Plaintiffs have supplied me with a set of documents that pertain to the use of solitary confinement at the Pelican Bay SHU. The documents that I reviewed include the Class Action Complaint for Injunctive and Declaratory Relief in Ashker v. Brown; the State of California Office of
5

Administrative Law Notice of Approval of Regulatory Action dated 10.17.2014 and the attached CDCR Regulations on Security Threat Groups; the Notices of Classification Hearings for Plaintiffs Cervantes B, Franklin J, Johnson R, Juarez A and Troxell D; and the Declarations of Dr. Terry Kupers and Professor Craig Haney.
A. International and regional standards relevant to confinement in a SHU 13. The use and nature of imprisonment in all jurisdictions are governed primarily by domestic legislation. In addition there are a range of standards which have been agreed upon either at an international level by bodies such as the United Nations or at regional levels by bodies such as the Inter American Commission on Human Rights and the Council of Europe. Some of these standards have treaty status and are accordingly binding on those states which have ratified them. Others are in the form of recommendations agreed by representatives of constituent member states. 14. The key standard in terms of general treatment of prisoners is
Article 10 of the International Covenant on Civil and Political Rights1 All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. 15. This standard is reaffirmed in Principle I of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas2 All persons subject to the jurisdiction of any Member State of the Organization of American States shall be treated humanely, with unconditional respect for their inherent dignity, fundamental rights and
1 International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976 2 Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas. Approved by the Inter-American Commission on Human Rights during its 131st regular period of sessions, March 3-14, 2008
6

guarantees, and strictly in accordance with international human rights instruments. 16. The following standards have more direct relevance to SHU confinement: UN Basic Principles for the Treatment of Prisoners, Principle 73 Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged. UN Standard Minimum Rules for the Treatment of Prisoners, Rule 274 Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life. UN Standard Minimum Rules for the Treatment of Prisoners, Rule 57 Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation. Principle XXII of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas: The law shall prohibit solitary confinement in punishment cells. Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time, when it is evident that it is necessary to ensure legitimate interests relating to the institution’s internal security, and to protect fundamental rights, such as the right to life and integrity of persons deprived of liberty or the personnel.
3 Basic Principles for the Treatment of Prisoners. Adopted and proclaimed by UN General Assembly resolution 45/111 of 14 December 1990 4 Standard Minimum Rules for the Treatment of Prisoners. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the UN Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
7

In all cases, the disposition of solitary confinement shall be authorized by the competent authority and shall be subject to judicial control, since its prolonged, inappropriate or unnecessary use would amount to acts of torture, or cruel, inhuman, or degrading treatment or punishment. In cases of involuntary seclusion of persons with mental disabilities it shall be ensured that the measure is authorized by a competent physician; carried out in accordance with officially approved procedures; recorded in the patient’s individual medical record; and immediately notified to their family or legal representatives. Persons with mental disabilities who are secluded shall be under the care and supervision of qualified medical personnel. 17. The European Court of Human Rights in a number of judgements has found violations of the European Convention for the Protection of Human Rights and Fundamental Freedoms in respect of the use of solitary confinement in several member states.5 In a case against France in 20096 the Court found that in that case: “Solitary confinement was not a disciplinary measure and mere reference to organised crime or some unsubstantiated risk of escape was insufficient. Likewise, the classification of a detainee as a dangerous prisoner, or his committing even a serious disciplinary offence did not justify placing him in solitary confinement.” 18. The Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe (CPT) has the right to visit all places of detention in 47 member states of the Council of Europe spread geographically from Portugal to Russia and Norway to Turkey in order to assess how persons deprived of their liberty are
5 For example, Labita v. Italy Application no. 26772/95, Indelicato v. Italy Application no. 31143/96, Messina v. Italy Application no. 25498/94
6 Khider v. France Application no. 39364/05. European Court of Human Rights. Information Note on the
Court’s case-law No. 121. July 2009
8

treated. CPT delegations have unlimited access to all places of detention and the right to
move inside such places without any restriction. After each country visit the CPT sends a
detailed report to the State concerned with findings, recommendations, comments and
requests for information. Reports are confidential in the first instance but with the approval of
the State concerned they are subsequently published along with the State’s response. The
CPT has commented critically on arrangements in respect of the use of solitary confinement in a number of country reports; for example, on the Netherlands7 and on the United Kingdom.8
19. In its second General Report on its activities9 the CPT stated, “Solitary
confinement can, in certain circumstances, amount to inhuman and degrading treatment: in
any event, all forms of solitary confinement should be as short as possible.”
20. The CPT has published a composite set of standards based on the findings of its State visits.10 In respect of solitary confinement it has this to say:
53. Solitary confinement of prisoners is found, in some shape or form, in every prison system. The CPT has always paid particular attention to prisoners undergoing solitary confinement, because it can have an extremely damaging effect on the mental, somatic and social health of those concerned. This damaging effect can be immediate and increases the longer the measure lasts and the more indeterminate it is.... 54. The CPT understands the term ‘solitary confinement’ as meaning whenever a prisoner is ordered to be held separately from other prisoners, for example, as a result of a court decision, as a disciplinary sanction imposed within the prison system, as a preventative administrative measure or for the protection of the prisoner concerned. A prisoner subject to such a measure will
7 CPT/Inf (2002) 30 Report to the Authorities of the Kingdom of the Netherlands on the visits carried out to the Kingdom in Europe and to the Netherlands Antilles by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in February 2002. Strasbourg, 15 November 2002. CPT Response of the Authorities of the Kingdom of the Netherlands (CPT/Inf (2003) 39). 8 CPT Reports to the Government of the United Kingdom CPT/Inf (2002) 6 and CPT/Inf (2003) 18 9 CPT/Inf (92) 3 2nd General Report on the CPT's activities covering the period 1 January to 31 December 1991. Strasbourg 10 CPT/Inf/E (2002) 1 - Rev. 2013. Strasbourg
9

usually be held on his/her own; however, in some States he/she may be accommodated together with one or two other prisoners, and this section applies equally to such situations. 21. The United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment submitted an interim report on torture and other cruel, inhuman or degrading treatment or punishment to the General Assembly of the United Nations in 2008.11 In the exercise of his mandate, particularly in the course of visits to places of detention as well as by responding to allegations brought to his attention, the Special Rapporteur has expressed concern at the use of solitary confinement (i.e. physical isolation in a cell for 22 to 24 hours per day, and in some jurisdictions being allowed outside for up to one hour). In the opinion of the Special Rapporteur, the prolonged isolation of detainees may amount to cruel, inhuman or degrading treatment or punishment and, in certain instances, may amount to torture. In the opinion of the Special Rapporteur, the use of solitary confinement should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort. 22. If the definitions offered by the CPT and the Special Rapporteur are accepted, the detention of prisoners in Pelican Bay SHU can accurately be described as solitary confinement. The international and regional standards relevant to such confinement as described above can be summarised in the terms of Principle XXII of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, “Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time.” Solitary confinement in Pelican Bay is clearly not a ‘disposition of last resort’ nor is it used ‘for a strictly limited time.’ It therefore fails to meet international and regional standards. B. England and Wales: An alternative model
11 General Assembly 28 July 2008 Sixty third session Item 67 A/63/175
10

23. In England and Wales all prisons are administered by the National Offender Management Service (NOMS) within the United Kingdom Ministry of Justice. There are 118 prisons overall (equivalent to jails, prisons, penitentiaries and correctional institutions in the
US), with a total of just over 84,000 prisoners, including pre-trial and convicted. Following individual assessment, all convicted prisoners are assigned to a security category which determines the degree of supervision to which they will be subjected. The security categories are A to D, with A being the highest. All prisoners in security category A are held in high security prisons. The vast majority of these prisoners are in general population. They are allowed to move within their living units and will be engaged during the day in organised work, education and cultural activities, always under direct staff supervision.
24. There are five Close Supervision Centres (CSC) with a total of 56 places for prisoners who have been identified as being too dangerous or disruptive to be in general population. NOMS describes the Close Supervision Centres as follows:
The overall aim of the CSC system is to remove the most significantly disruptive, challenging, and dangerous prisoners from ordinary location, and manage them within small and highly supervised units; to enable an assessment of individual risks to be carried out, followed by individual and/or group work to try to reduce the risk of harm to others, thus enabling a return to normal or a more appropriate location as risk reduces.12 25. The decision to admit any prisoner to a CSC is taken by the CSC Management Committee based in the national headquarters and is subject to approval by a senior Director. When such a decision is made the prisoner is advised of the fact and the reasons for it. He or his legal adviser have 14 days within which to submit representations about the decision. If the decision is confirmed, the prisoner is again advised in writing. On first admission to a CSC the prisoner is individually assessed by a range of specialists, usually over a four month period. Thereafter a structured care and management plan is drawn up and this is reviewed
every three months. The CSC Management Committee reviews each case monthly and also
12 National Offender Management Service High Security Prisons Group. October 2013. The full text of the Manual is attached as Exhibit 2.
11

receives the three monthly reports. The reports are disclosed to the prisoner who has the opportunity to make representations. Once a decision is made to move a prisoner out of a CSC back to the general high security population his progress continues to be monitored by the CSC Management Committee for a further six months. The work and decisions of the CSC Management Committee are overseen by a CSC Advisory Panel, chaired by an independent person and including a number of academics, psychiatrists, psychologists and others. This group meets three times a year and among other matters considers the monthly reviews of each prisoner’s case.
C. The principles of good operational management in respect of prisoners who require to be held in conditions of the highest security
26. Extrapolating from my extensive personal experience as a governor (warden) with responsibility for the care of prisoners who require to be held in conditions of the highest security and from visiting high security prisons in almost 60 countries as detailed in my CV, as well as from my knowledge of the relevant international and regional standards described above, I am able to list the principles of good operational management in respect of prisoners who require to be held in the conditions of the highest security.
D. Humane treatment 27. In many prison systems there are likely to be a number of prisoners who will require to be held in conditions of the highest security. The management of these prisoners presents an important challenge to prison authorities, which have to achieve a balance between the threat that such prisoners would present to the public if they were to escape, the threat that they may pose to good order inside prisons, and the obligation that the state has to treat all prisoners in a decent and humane manner. It is sometimes said that the manner in which a society treats its prisoners is a reflection of its deepest values. This principle applies particularly to the management of prisoners in the highest security category. E. Minimum number
12

28. The number of prisoners held under high security conditions should be kept to a minimum for several reasons. As a general rule prisoners should only be confined in high security conditions where their behaviour has demonstrated that they pose such a degree of threat to safety and security that they cannot be managed in any other way. High security prisoners require to be kept under close supervision at all times and their freedom of movement and contact with other people is likely to be kept under close surveillance. When implemented in a proper manner, high security supervision will be very resource intensive in financial, technical and staffing terms. In addition, staff are more likely to be able to provide the appropriate level of intense supervision if the label of high security prisoner is not applied indiscriminately. Prison systems which keep a smaller number of prisoners in high security conditions are likely to be safer for both prisoners and staff. Where the numbers are small, staff will be able to identify the prisoners who need to be kept in conditions of high security and to ensure they are properly supervised. If the number of prisoners in this group is too great, then it may be that staff will not be able to provide close enough supervision of those prisoners who are most likely to attempt to escape or to provoke disorder. The arrangements in England and Wales described above are an example of a system which attempts to keep the number of prisoners subject to the highest security to the essential minimum.
F. Individual assessment of risk 29. There should be a clear, well-defined system for identifying which prisoners require to be held in high security conditions. The degree of risk which they pose should be assessed individually on a continuing and regular basis. Individual assessment of risk can help to identify those prisoners who present a serious threat to staff, to other prisoners and to the wider community. In the absence of proper individual assessment, general criteria may be applied. This often leads to inappropriate assessment of the level of risk posed by an individual. One example of the consequences of applying generic criteria is to be found in the
13

Turkish prison system where all prisoners who were convicted under terrorism legislation were automatically classified as very high risk prisoners requiring close supervision. The legislation had a very broad definition of terrorism which extended from the most extreme acts of violence to shouting slogans in the street or pasting literature on public walls. When I inspected prisons in Turkey as an expert with the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in the early 2000s, almost 20 percent of all prisoners in Turkey were categorized as terrorists and were held in groups separate from other prisoners. There were two immediate operational consequences. In the first place, the task of identifying those who were actually the leaders of this group and who did indeed need very close supervision was made much more difficult. Secondly, those who were initially on the periphery of the group and who with proper management could have been encouraged to leave it were on the contrary sucked further into the group which paradoxically increased their risk.
30. Criteria for assessing the security risk posed by an individual have been developed in many countries. Issues to be taken into account will include:
• the potential threat to public if the prisoner were to escape • any previous history of attempting to escape • access to external assistance for escape • in the case of pre-trial prisoners, any potential threat to witnesses • the nature of the crime for which the prisoner was convicted • length of sentence, which usually reflects the nature of the crime • the potential for threat to other prisoners • the potential for threat to the good order of the institution. Care needs to be taken when assessing the extent and nature of an individual’s involvement in groups which may constitute a threat to the institution. The example from Turkey
14

demonstrates this and parallels can be drawn with involvement of prisoners in SHUs who have gang affiliation. Low-level or historic involvement need not of itself be a determining feature.
G. Regular review of security level 31. Security levels for individual prisoners should be reviewed at regular intervals throughout the sentence. Prisoners who are classified as being high security risks early in their sentences may become less so as a result of good management during the sentence. The prospect of progressing to a lower security category during the sentence can also act as an incentive for good behaviour. The English practice of reviewing prisoners held in Close Supervision Centres on one monthly and three monthly cycles is an example of good practice. H. Only necessary restrictions 32. It is the responsibility of a prison system to detain all prisoners in conditions which are decent and humane, regardless of the crimes of which they have been convicted or accused. This obligation also applies to the treatment of high security prisoners and the restrictions which are imposed on these prisoners should be no more than are necessary to ensure that they are detained securely and safely. I. The balance of security 33. Security in a prison or correctional institution has three main elements: • Physical security includes the architecture of the prison buildings, the strength of
the walls of those buildings, the bars on the windows, the doors of the accommodation units, the specifications of the perimeter wall and fences, watchtowers and so on. They also include the physical aids to security such as locks, cameras, alarm systems, radios and such like. • Procedural security refers to the variety of procedures which have to be in place to ensure that prisoners are supervised appropriately. They include regular searching, both of physical spaces and of individuals. There should be procedures
15

for regularly searching all places where prisoners live, work or congregate. These should include searches of living accommodation, such as cells and dormitories, to make sure that security features, including doors and locks, windows and grilles, have not been tampered with. Depending on the security category of the prisoner, his or her personal property should also be subject to search from time to time. There should also be procedures which govern the regularity of checking prisoner numbers and how these checks are carried out. The same applies to arrangements from movements of prisoners from one area of the prison to another. • Dynamic security is based on what it sometimes called direct supervision. It is provided by staff who are alert, who interact with prisoners, who have a direct awareness of what is going on in the prison and who are experienced in working with prisoners. This kind of security is much more qualitative than static security measures of physical and procedural security. Where there is regular contact between staff and prisoners, an alert guard will be responsive to situations which are different from the norm and which may present a threat to security or good order. The strength of dynamic security is that it is likely to be proactive in a way which recognises a threat to security at a very early stage. It will operate best when staff are professional and well-trained. 34. In a well-managed prison there will be a balance between physical, procedural
and dynamic security and the three elements will complement each other. This needs to be
borne in mind when making arrangements for the management of high security prisoners. A
system which uses the dynamic security which comes from staff interactions and intelligence
is likely to be more effective than one which relies exclusively on very restrictive hardware,
technology, conditions and procedures. When staff work directly with prisoners in a positive
manner, they are more likely to be alert to changes in atmosphere in a unit and to changes in
the behaviour or attitude of individuals. This is less likely to be the case when staff come into
direct contact with prisoners in a formal or perfunctory manner.
J. Specially trained staff 35. Working with high security prisoners requires a special degree of
professionalism and staff who work in this environment need to be given special training and
16

continuing support. The prison administration in England and Wales has developed a High Security Staff Well Being Strategy.13
K. Management of prisoners in special maximum security conditions 36. There are two general models for the management of prisoners in maximum security conditions. The first involves placing them in isolated conditions, either on their own or with one or two other prisoners. Under this arrangement, prisoners spend all day and night in their living accommodation. In the most extreme of these conditions, prisoners have no access to any activity or external stimulation and have nothing at all to do. They may be allowed an hour of solitary recreation in an empty outdoor exercise cage. They are stripsearched and shackled every time they leave their cell. In some jurisdictions prisoners can spend years in this kind of regime. This method of dealing with prisoners often arises from an absence of proper management techniques and will undermine any attempts at the reform or rehabilitation of individuals. 37. A much more positive model is that of housing this type of prisoner in small units of up to ten prisoners, based on the premise that it is possible to provide a positive regime for maximum security prisoners by confining them in small groups away from the general prison population rather than in individual segregation. The principle on which these units operate is that it should be possible for a professionally trained staff to develop a positive and active regime for even the most dangerous prisoners. The intention is that, within a secure perimeter, prisoners should be able to move relatively freely within the units and to have a normal prison routine. In such an environment, prisoners will only be placed in isolation when all else fails and then only for a short period of time. One of the best examples of this type of regime is the system of small units which were set up within the Scottish Prison Service with the following objectives:
13 Confer the CSC Operating Manual
17

1. To provide an additional option for the location of prisoners who present management problems, or the potential for management problems, within the mainstream prison system. 2. To hold such prisoners securely. 3. To provide a range of additional opportunities geared to the personal development of such prisoners within a small supportive environment. 4. To return prisoners to the mainstream better able to cope and to make progress towards release. 5. To provide settings within which it is possible to test alternative approaches towards the relationship between prisoners and prison officers, from which lessons may be drawn for the mainstream of the prison system.14 L. The situation in Pelican Bay 38. I have been shown the notice of regulatory action approved by the State of California Office of Administrative Law in October 2014. This action makes permanent a previous pilot project pertaining to the “management, disciplinary actions and housing of inmates and parolees found to be members, associates or suspects of security threat groups, as specified.” I have also been shown a number of notices of classification hearings and related documents concerning several of the plaintiffs in this case. I have assessed these documents
in terms of what I have described above as the principles of good operational management in respect of prisoners who require close supervision.
M. Humane treatment 39. The treatment of prisoners over such a long period of time as described in the official documents with which I have been provided falls far short of the obligations of Article 10 of the International Covenant on Civil and Political Rights. I note that the United
States has chosen to ratify this treaty. N. Minimum number 40. From the documents which have been made available to me, it appears highly
14 Scottish Prison Service. 1990. Opportunity and Responsibility: Developing new approaches to the management of the long term prison system in Scotland. Edinburgh: Scottish Prison Service
18

unlikely that any real attempt is made by the California Department of Corrections and Rehabilitation to keep the number of prisoners held in the Pelican Bay SHU to the minimum necessary to guarantee good order and control in the Department’s penitentiaries. The fact that the number of prisoners in the SHU is so large is likely to make it more difficult for staff to treat them in a humane and decent manner.
O. Individual assessment of risk 41. My conclusion from reading the various documents which have been made available to me is that in broad terms the Department of Corrections and Rehabilitation has applied a generic assessment in respect of gang affiliation, with the presumption that where there is any evidence of such affiliation, either current or historic, a prisoner will be held in the SHU. This has led to the situation where the proportion of prisoners held in such units in California is very high. There would appear to be a parallel here with the situation in Turkish prisons as described above. One of the important objectives of the Close Supervision Centres in England and Wales is to prepare prisoners to “return to normal or a more appropriate location as risk reduces.” In other words, allocation to a CSC is not seen as permanent. The CDCR Regulations of October 2014 continue to apply a generic assessment of gang affiliation rather than an individual assessment of a prisoner’s behaviour. 42. I understand that in October 2014 CDCR established a Departmental Review Board to consider the classification of all prisoners held in the SHU. While recognising that this is a positive step towards individual risk assessment, my reading of the new Regulatory Action is that it falls far short of what would normally be regarded as a proper assessment of the individual in terms of good correctional management. In particular, the definition of ‘Security Threat Group’ is so wide as to make it virtually impossible for anyone who has at some point been found to belong to such a group subsequently to demonstrate that this is no longer the case or that he as an individual is no longer a threat to security. It also appears that
19

one of the main routes out of such a group is for an individual to submit to what is described as “debriefing.” “Debriefing” is defined in the Regulatory Action as “the process by which a STG gang coordinator/investigator determines whether an inmate/parolee (subject) has dropped out of a STG gang.” The first step in this process is an interview, the purpose of which ‘is to provide staff with information about the STG’s gang’s structure, activities and affiliates.’ In other words, the key element in assessing an individual’s future risk is that he should be prepared to act as an informer. This is an inappropriate criteria to use.
P. Regular review of security level 43. The documents relating to the departmental review process describes the Step Down process for eventual transfer to general population. It does not appear to include any provision for regular reviews of individuals who have refused to enter the Step Down process. Q. Only necessary restrictions 44. The restrictions placed on those held in the SHU go far beyond what is necessary in the interests of security and good order. In the Close Supervision Units in England and Wales, provision is made for family and legal visits (which are usually direct contact visits), telephone calls to family and friends, access to education, gym facilities, payment for work, association with other prisoners and in-cell activities. These do not appear to be provided for in the Pelican Bay SHU. R. The balance of security 45. Security in the SHU is delivered by a combination of physical and procedural security which is far in excess of what is necessary to achieve the required outcomes. There is a very limited input of dynamic security. S. Specially trained staff 46. It is not known to me whether the staff who work in the SHU are given specific training for their work. This contrasts with the situation in England and Wales where
20

staff working in CSUs are specially selected, provided with specific training and ongoing support.
T. Management of prisoners in special maximum security conditions 47. It would appear that management of the prisoners in the SHU can be described at best as reactive rather than proactive. The fact that so many individuals have been held for so many years in conditions which fail to meet basic standards of humanity betrays an absence of professional prison management. The documents which have been shown to me indicate that the Department of Corrections and Rehabilitation has made little if any effort to provide incentives to prisoners to reform themselves, even as they grow from middle age to old age. In my professional experience, when dealing with the most problematic prisoners there is an onus on prison management to create and develop an environment in which such prisoners will over the course of time be encouraged to begin the process of 'correction' and 'rehabilitation.' There is no evidence of such an approach in the Pelican Bay Security Housing Unit.
Andrew Coyle, PhD Dated: March 12, 2015
21

Exhibit 2

Close Supervision Centre’s (CSC)
Operating Manual
October 2013
© High Security Prisons Group –October 2013

Contents Section 1 1 Role of the CSC system
Background Aims of the CSC system 2 Legislative requirements - Prison Rule 46 3 Structure of the system Management and Managerial Oversight – National Local Management 4 Meeting Structure 5 Case Management Group (CMG) 6 Close Supervision Centre Accommodation HMP Woodhill – House Unit 6 HMP Wakefield - F wing HMP Full Sutton HMP Whitemoor - F Wing HMP Manchester – E Wing 7 Designated Rule 46 Cells Temporary designation of a Rule 46 Cell 8 High Control cells Application of the CSC System 9 Referral to the CSC Pre-transfer forms and pre-transfer visits Pre-admission Case conference Pre-Selection Assessment Local Assessment Case Conference (LACC) Potential changes to the decision making timeframes Selection into the CSC following assessment
Section 2 - Management of prisoners subject to Prison Rule 46 10 Communication
Meaningful Interactions 11 Care and Management Planning – General 12 Crisis Planning 13 First Care and Management Plan 14 On-going Care and Management Planning 15 Progression
Weekly reports Monthly reports Close Supervision Centre’s Operating Manual, High Security Prisons Group

Page
4 4 4 5 5 5 6 7 8 8 9 11 12 12 13 14 16 17 19 19 20 20 21 22 23 24
25 25 25 26 26 27 29 30 30
1

Annual Reviews

30

16 Pre-transfer Arrangements

30

17 Behavioural Monitoring

31

18 Regime and Interventions

31

19 Movement of prisoners

33

Escorts

33

20 Sentence Planning and OASys Reviews

34

21 Categorisation reviews

35

Category A

35

Category B

35

22 Visiting Arrangements

36

Location of visits

36

23 Accumulated Visits

36

24 Inter-Prison Visits

36

25 Complaints

37

26 CSC Pay Policy

37

27 CSC Behavioural Management System

38

Behaviour Management - IEP scheme

38

Regime Risk Assessment

40

Unlock Levels

40

IEP reviews

40

Appeal Process

40

28 Adjudications

41

29 Mental Health Transfers

41

Returns from secure mental health services

41

Returns from prison based DSPD services

43

30 CSC Personality Disorder Strategy

43

31 De-Selection

44

Process

44

32 Staff Well-being: Selection, Training, IPD and Tour of Duty

46

Staff Selection

46

Staff Training

46

Individual Professional Development

47

Staff Briefings

48

Tour of Duty

48

33 Programmes and courses

50

34 1:1 Work and the Multi-Disciplinary Team

50

CSC Mental health team

51

Close Supervision Centre’s Operating Manual, High Security Prisons Group

2

Forensic Psychology

51

Seconded Probation Officer/Offender Supervisor

52

Chaplaincy

52

Education

52

Security

53

Discipline staff

53

35 Managing Challenging Behaviour Strategy and Central Case Management

54

36 Applicability of National and Local Policies

54

Security

54

37 Population Management

55

38 Safer Custody – Management of Prisoners at Risk of Suicide and Self-Harm

55

Constant Supervision

55

The Need for Constant Supervision

55

ACCT Case Reviews

56

Emergency Access Plan

56

Interaction

57

Access to Regime Activities

57

In-cell CCTV for Prisoners at Risk of Suicide and/or Self-harm

57

Chapter 8 Enhanced case management

57

Attendance at an Enhanced Case Review

58

General Points

58

39 Public Protection Procedures

58

40 Parole

58

Section 3

41 Internal Management

59

42 Monitoring Data

59

43 Role of the Independent Monitoring Board (IMB)

59

44 Audit and Compliance

60

45 European Committee for the Prevention of Torture

60

46 Her Majesty’s Inspectorate of Prisons (HMIP)

60

47 Prisons and Probation Ombudsman (PPO)

60

48 Advisory Panel

61

49 Links with Other Service Providers – High Secure Hospitals

61

50 Correspondence and Legal Challenge

61

51 Policy Monitoring and Review Arrangements

61

Links to Other Policies

63

Glossary

64

Annexes

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Section 1
Role of the CSC within the High Security Estate
Background
Prison Rule 46 provides the authority for prisoners to be held in a Close Supervision Centre (CSC). CSC units have been in operation since 1998 and are administered and managed under a national management strategy by the High Security Estate. The CSC system has continuously developed to provide a multi-disciplinary risk management approach to deal with highly disruptive and high risk prisoners who have demonstrated, or evidenced a propensity to demonstrate, violent and/or highly disruptive behaviour. The system integrates existing prison processes with others, such as the Care Programme Approach, for prisoners requiring such coordinated management, and works in liaison with other partner agencies.
Referrals are accepted both from within and outside of the high security estate, thus providing a service to the whole prison estate.
The principle behind the establishment of the CSC system is to enable prisoners an opportunity to develop a more settled and acceptable pattern of behaviour through a robust care and management approach.
Aims of the CSC system
The overall aim of the CSC system is to remove the most significantly disruptive, challenging, and dangerous prisoners from ordinary location, and manage them within small and highly supervised units; to enable an assessment of individual risks to be carried out, followed by individual and/or group work to try to reduce the risk of harm to others, thus enabling a return to normal or a more appropriate location as risk reduces. Referrals will be submitted following a single serious incident, on-going or escalating violence, or when prisoners have not responded to attempts to manage those using existing processes, or under the Managing Challenging Behaviour Strategy (MCBS) (High Security Estate only).
Prisoners referred to, and located within, CSC units will often present with a range of complex and diverse behavioural, psychological, psychiatric, or security needs, and the decision to re-locate a prisoner to the CSC system is designed to provide an opportunity:
To identify risks and develop risk management strategies for prisoners through psychological services;
To diagnose and provide support and intervention for prisoners with mental health needs, referring on to suitable treatment providers where necessary;
To encourage prisoners to address their disruptive and anti-social behaviour;
To work with prisoners to motivate them to address their offending and/or custodial behaviour;
To provide long term containment for those prisoners whose actions pose a significant threat to the safety of others, and/or the good order or discipline of an establishment;
To disrupt an individual prisoner’s activities where the activities are judged to pose a significant risk to others or the good order of the establishment, including where the risk has not materialised but is evidenced by substantial intelligence;
To stabilise factors relevant to risk, evidence a reduction in risk, and prepare for a return to normal location where the provision of Close Supervision is no longer required

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It should be noted that any one or more of the aims detailed above will relate to different prisoners at different times during the CSC process.

Legislative requirements - Prison Rule 46
Prison rule 46 states:
1. Where it appears desirable, for the maintenance of good order or discipline or to ensure the safety of officers, prisoners or any other person, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Secretary of State may direct the prisoner's removal from association accordingly and his placement in a Close Supervision Centre of a prison.
2. A direction given under paragraph (1) shall be for a period not exceeding one month, but may be renewed from time to time for a like period, and shall continue to apply notwithstanding any transfer of a prisoner from one prison to another.
3. The Secretary of State may direct that such a prisoner as aforesaid shall resume association with other prisoners, either within a close supervision centre or elsewhere.
4. In exercising any discretion under this rule, the Secretary of State shall take account of any relevant medical considerations that are known to him.
5. A close supervision centre is any cell or other part of a prison designated by the Secretary of State for holding prisoners who are subject to a direction given under paragraph (1).

Structure of the system

Management and Managerial Oversight – National
The CSC system operates as a national management strategy for managing some of the most challenging and dangerous prisoners within the Prison Service. The system operates under the authority of the Secretary of State, delegated to the Deputy Director of Custody (DDC), High Security Estate. The DDC has responsibility for the delivery of the system, which is overseen and managed on a daily basis by the Population and Specialist Unit manager working as part of High Security Prisons Group.

Key roles of the operational manager include;

Writing and updating the CSC policies, Standard and audit baselines

Managing the allocation of the population within designated Rule 46 accommodation, advising and coordinating essential moves around the system in response to procedural, operational, and treatment/intervention needs

Ensuring quality care plans are in place for all prisoners held under Prison Rule 46
Make decisions and arrangements to transfer CSC prisoners at short notice, outside of the CSCMC planned process, where operational factors necessitate such action

Advising and supporting establishments in the management of CSC prisoners

Checking compliance with the policy and audit requirements

Liaising with internal and external partners and stakeholders to improve communication and service provision

Responding to legal challenges and correspondence in respect of policy and selection or de-selection decisions

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Liaising with providers to ensure adequate clinical provision is in place to meet the needs of CSC prisoners
Developing and supporting a proactive regime within the CSC units
Working as part of a central Case Management Group which receives referrals to the CSC system and referrals for de-selection
Making recommendations on the selection, management, and de-selection of prisoners
Complete the Equality Impact Assessment for the CSC policies
Monitor and take necessary action in respect of the developing needs of the CSC system.
The Population Strategy and Specialist Unit manager carries out regular visits to the three CSC units to provide managerial oversight and support as part of the responsibilities detailed above, and to speak to all prisoners located within the CSC units. A brief report will be provided to the local CSC manager and feedback will be given to the Governor or Deputy Governor at the end of the visit as necessary.
The CSC system is a national management system which requires a multi-disciplinary approach across the high security estate to ensure effective decision making, case management and information sharing. It is essential that all staff working within the CSC system consider their role as part of a national ‘team’ that collectively cares for and manages this difficult group of prisoners. A national collaborative approach seeks to assist the work of all high security prisons whilst maintaining a risk and evidenced based management strategy for prisoners held within the CSC system.
Local Management
Each of the CSC units will have a designated operational manager. The manager will be responsible for the management of the CSC unit, and/or designated cells, and all work and procedures required within it, and will either report to a member of, or form part of, the establishments’ senior management team. The operational manager from each establishment must attend the monthly CSC Management Committee (CSCMC) meeting and be given sufficient authority to act on behalf of their Governor to enable them to make and agree decisions at the meeting. In the event that the manager is unable to attend an appropriate and well briefed deputy should attend in their place.
The local CSC manager is responsible for quality checking the content and accuracy of reports and information submitted to the CSCMC meeting. The manager attending the CSCMC must ensure that individual feedback is given to prisoners regarding the decisions made by the CSCMC related to their individual management within three working days, and to staff regarding operational matters influencing and/or affecting overall and local management. They are responsible for ensuring actions are taken forward and information shared with the appropriate people.

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Meeting Structure
For the purpose of Rule 46, the CSC Management Committee (CSCMC) will act in the place and with the delegated authority of the Secretary of State. All meetings will be minuted to record the decisions and the reasons for decisions, and actions points to take forward. Meeting minutes will refer to, and should be read in conjunction with, reports submitted for consideration by the attendees.
The CSCMC meeting is held monthly to:
Decide whether a prisoner meets the criteria for assessment for CSC in accordance with the criteria set out in the CSC Referral Manual (PSI 42/2012);
Decide, following assessment, whether a prisoner requires placement within the CSC system;
Review and determine whether the legislative criteria continue to be satisfied to decide on the continued placement, or otherwise, of CSC prisoners, authorising the movement of prisoners between designated CSC accommodation as necessary;
Consider the future management options for prisoners within the CSC system as informed by local multi-disciplinary teams;
Review the cases of prisoners at the two year point from selection and every two years thereafter to review current management arrangements, responsiveness to intervention work and future plans;
Make decisions regarding the de-selection of prisoners from the CSC system;
Review and approve policy development for the CSC;
Consider broader service wide factors that may influence and impact on the delivery and management of the CSC system;
Monitor training provision and quality, and,
Staff well-being measures to ensure the ongoing support of staff within discrete units.
The CSCMC is also responsible for reviewing and agreeing the Managing Challenging Behaviour Strategy (MCBS), and monitoring and making decisions regarding prisoners identified for management under the Managing Challenging Behaviour Strategy (MCBS).
Where an internal investigation or police enquiries are taking place with regards to an incident that resulted in a referral to the CSC there may be a delay in the ability or appropriateness of the CSCMC in reaching a decision regarding placement under Prison Rule 46. In such cases a decision may be deferred to await the outcome of enquiries or the submission of further information. During this period a prisoner may continue to be held within a segregation unit, designated Rule 46 cell, or CSC unit as appropriate and as agreed by the CSCMC. In the event of a significant delay in reaching a decision regarding selection it is important that the multi-disciplinary team consider the prisoners’ physical and mental well-being, agreeing short term targets and reviewing the regime available to him at the monthly meeting. Any concerns regarding a decline in either physical or mental health must be referred to the medical staff locally, and reported through the CSCMC. Any immediate concerns should be reported to the Population Strategy and Specialist Units manager.

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Case Management Group (CMG)
CMG, which consists of an operational manager, senior Chartered forensic psychologist and a specialist mental health nurse, meet monthly to consider all referrals to the CSC for assessment or de-selection, and cases referred to CMG for central management under the MCBS. CMG ensure that all relevant information is provided with the referrals and draft recommendation reports for the CSC/MCBS Management Committee meeting (CSCMC). CMG also provide an outline of essential prisoner transfers for discussion at the CSCMC meeting to meet individual and operational requirements.
Arrangements are in place for CMG to attend Section 117 (Mental Health Act) meetings for CSC (and centrally managed MCBS) prisoners who are returning to prison in order to manage the return process, identifying a suitable location and ensuring an appropriate care plan is put in place.
CMG liaise directly with the prison based DSPD units to aid decision making in respect of prisoners referred to the CSC or CMG, or where CSC or centrally managed MCBS cases are transferred for treatment to ensure a handover of both behavioural and clinical information, and in particular current medication regimes, to ensure a safe and informed transfer.

Close Supervision Centre Accommodation

The CSC system is designed to provide accommodation for prisoners from the point of referral, through selection, to de-selection from the system to a mainstream or more suitable environment such as personality disorder (PD) services, Dangerous and Severe Personality Disorder Services (DSPD), a Therapeutic Community, PIPE (Psychologically Informed Planned Environment) unit, or high secure hospital.
Prisoners are allocated to CSC accommodation by the CSCMC; however, on occasions it is necessary for moves to take place outside of the formal meeting structure to address operational, clinical, and procedural or care planning needs. These moves will be managed by the Population and Specialist Units Manager and will be formally discussed at the next scheduled CSCMC meeting.
The CSC units are designed to accommodate small numbers of high risk and problematic prisoners who are deemed to be unsuitable for management within mainstream location. The smaller unit size and higher levels of staffing jointly provide a highly supervised protective environment to counter some of the risks that exist in a less restricted environment. This enables the delivery of individually tailored regimes that are designed to assess and work towards reducing the risks that lead to the selection of each prisoner into the CSC.
Following selection into the CSC each prisoner will have a care plan devised which identifies work required to reduce and manage the risk of harm to others that lead to the referral to the CSC, and other behaviours identified during the assessment process. The care plan will seek to provide short and long term goals and estimate the likely length of time the prisoner is anticipated to remain in the CSC, based on the work required. The care plan will be reviewed quarterly to monitor any progress, review targets and the initial anticipated timeframe for completion of the targets, which may change for a number of reasons.
For some prisoners de-selection may be an unlikely or long term prospect resulting in a care and management plan which focuses on long term containment which is decent, humane and constructive, providing opportunities for meaningful interactions and activities.

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Alternative accommodation is available to locate CSC prisoners within high security segregation units when it becomes necessary to temporarily remove them from the main CSC units. These cells are termed Designated Cells as they are designated by the DDC with the delegated authority of the Secretary of State for the purpose of holding Rule 46 prisoners only. Whilst the aim of the system is to accommodate CSC prisoners within the units to carry out the work identified for them; if behaviour or risk becomes problematic to a level at which continued location within a unit is no longer appropriate, i.e. having a detrimental impact on others or the regime, he may be transferred to a Designated Rule 46 cell until a return to a CSC unit is possible and/or appropriate.
All prisoners held within the CSC system, whether in a CSC unit or a designated cell, will be held under Prison Rule 46. This includes those prisoners under-going pre-selection assessment and those waiting to transfer to a CSC unit to commence assessment.

HMP Woodhill – House Unit 6
‘A' wing – Core role - Assessment and Management unit – capacity 10, normal operating level 8.
Statement of Purpose:
“To both carry out thorough assessments of risks and needs in respect of the areas of concern that lead to a referral to the CSC, taking into consideration past information, to inform future care and management options, and to manage those prisoners post selection who require a more controlled regime”
Woodhill operates as the primary assessment centre for prisoners who are referred to the CSC for pre-selection assessment. Accommodation consists of normal cells equipped with standard prison issue furniture, high control cells (described in more detail on pages 15-16), a gated cell for constant supervision, and special accommodation. Prisoners allocated to Woodhill ‘A’ wing will undertake a formal structured assessment period either lasting a total of 4 months for a full assessment, or shorter if a compressed assessment is recommended (See CSC Referral Manual PSI 42/12) during which time the prisoner will be expected to attend interviews with the multi-disciplinary team to enable a series of assessments to be completed. Reports are disclosed to the prisoner at the end of the assessment period when a Local Assessment Case Conference is held to discuss the content of the reports and to make a recommendation to the CSC Management Committee (CSCMC) regarding selection into the CSC (more details on the assessment process is contained in section 1, page 21). If a prisoner does not engage with the assessment process the reports will be completed based on collateral information, interactions and observations. A refusal to engage will not prevent the assessment from being completed but will not include the prisoners perspective on the content of the report.
Woodhill ‘A’ wing, (and sometimes ‘B’ wing), assesses prisoners who are transferred from the Exceptional Risk Management Unit. Prior to leaving the ERMU the Multi Disciplinary Team (MDT) at Wakefield will carry out a risk assessment to consider the suitability of a transfer from the ERMU, making necessary changes to the regime and management arrangements as part of the preparation process. Following transfer to Woodhill the MDT will assess and monitor the prisoner’s behaviour and interactions, carrying out any specific work identified in the ERMU assessment and reintegration plan, in order to assess whether his risk level enables continued management within the mainstream CSC units. Reporting, care planning and risk assessment will continue in line with routine CSC processes. ‘A’ wing also accommodates prisoners who have been selected into the CSC who require a higher level of supervision than that provided on ‘B’ wing and those prisoners who may

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have been managed within Designated Cells for a period of time who require further assessment to inform decisions on future placement. The regime has to regularly change to meet the varying risks and needs of the prisoners located there at any time. Individual and group risk assessments will inform the regime that can be delivered both individually and collectively within the framework of the planned overall regime. More details on the CSC regime are provided in section 2, page 31.
‘B’ wing – Core Role - Management Unit – capacity 8, normal operating level 8.
Statement of Purpose:
“To take forward actions relating to risk and behaviour management identified during the CSC Assessment period in order to work towards a reduction in the prisoners’ risk of harm, to enable progression through the CSC system.”
Prisoners will be allocated to the unit primarily from the two assessment units, located at Woodhill and Wakefield. ‘B’ wing accommodates prisoners who have been selected into the CSC under Prison Rule 46 following assessment. The CSCMC may also allocate prisoner to be assessed for suitability for placement within the CSC system to B wing where it is appropriate to do so. Prisoners who are not fully engaged with the regime at other CSC sites or whom have been located in designated cells and require a review may also be allocated to the unit. Allocation to the unit will normally be through the CSCMC, as recommended by the Population Strategy and Specialist Units Manager; however, some moves may take place outside of the CSCMC process due to operational needs.
Following selection into the CSC a care and management plan is produced which details the work that needs to be carried out to reduce the risk posed to others (more details regarding care and management planning is contained in section 2, pages 25-29). The purpose of the unit is to work with prisoners on the areas of risk identified in the assessment reports, or following changes to their risk levels requiring a review, to enable them to progress within the CSC system or to a more suitable treatment provider. The regime delivered on ‘B’ wing is structured to provide a broader range of activities reflecting the anticipated likelihood of prisoners being able to mix. Regime activities provided will comprise individual and group based activities aimed at improving motivation and engagement, providing meaningful engagement and supporting risk reduction work. Access to specific regime activities will be based on individual risk assessments and informed by care planning targets. The regime will also need to be flexible in order to enable the CSC system to respond to the dynamics and operational needs of the population at any given time, restricting or expanding the regime accordingly. Daily changes to the regime in response to individual changes in risk levels will need to be agreed and managed by local managers, ensuring, where possible, that the regime provided to the remaining prisoners is not unduly restricted. Where risk levels indicate the need to contract the regime over a longer period of time this should be discussed with the Population Strategy and Specialist Units manager to consider management options including the transfer of an individual where it is considered appropriate to do so, taking into account the individual needs of the prisoner and the operational management of the unit.
The pathway for progression from Woodhill would be to either Full Sutton or Whitemoor CSC units.

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HMP Wakefield - F wing
Core Roles:
Exceptional Risk Management Unit capacity – 8 Assessment unit - capacity - 4*
The CSC unit at Wakefield operates with a dual function, with an Exceptional Risk Management Unit (ERMU), housing the most dangerous, problematic, and/or high risk prisoners within the CSC system presenting with acute levels of risk, as well as conducting CSC pre-selection assessments following referral. Prisoners requiring a higher level of supervision during assessment will normally be allocated to Wakefield for the assessment period although prisoners will be allocated according to spaces available and other relevant factors. The regime and the management of prisoners held within the ERMU will take into account the long term containment requirements for particularly high risk cases, those who do not appear likely to progress from the CSC in the long term, the acute risk levels requiring intensive interventions and support, as well as the need for regime activities for those under CSC assessment.
Statement of purpose for the ERMU:
“The ERMU provides a secure and highly supervised environment for those CSC prisoners whom, by virtue of their risk, and/or behaviour within the CSC system, are unsuitable for location within a main CSC unit at any given time, whilst conducting assessments for those prisoners referred to the CSC system. The regime is focused on supporting the assessment process, working to reduce short term high risk, and providing a decent regime for those for whom a return to a mainstream CSC unit is deemed unlikely in the long term”.
Exceptional Risk Management Unit (ERMU)
The ERMU consists of 8 spaces identified for ERMU prisoners. The accommodation, facilities, pay structures and regime for those held within the ERMU take into consideration the long term and highly restricted nature of the unit, ensuring humane and decent living conditions are provided.
Prisoners located on the ERMU do not routinely come into direct physical contact with other prisoners but have access to a regime on a singular unlock basis, including 1:1 therapeutic interventions. Unlock levels reflect the level of harm that the individuals present to others. The decision to transfer a prisoner to the ERMU will be made by the CSCMC as with all planned moves. Individual prisoners will be considered on the basis of risk assessment and will have demonstrated continued or escalating high risk and highly problematic behaviour whilst located within the CSC system; or been identified as presenting too significant a risk of harm to others during the assessment process or through care planning to enable allocation to a CSC unit where the regime provides for physical interactions with other prisoners. Each prisoner will have an individual risk assessment regarding unlock levels. When risk is reduced to a level that can be managed within mainstream CSC units prisoners can and will be transferred to continue work to address risk.

Assessment Unit
F wing provides a total of 4 cells for the purpose of carrying out pre-selection assessments. Resources permit two assessments to take place at any one time. Consequently the two remaining cells may be accommodated by prisoners waiting to commence assessment, awaiting onward allocation following assessment, or to facilitate accumulated visits or court visits. The 4 places available are dependent on the number of prisoners held in the designated cells located within the segregation unit to ensure that the overall capacity does not exceed 12.

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Intervention
Prisoners located within the ERMU are able to undertake the Violence Reduction Programme on a 1:1 basis as part of the work to reduce risk. The suitability of VRP will be discussed with prisoners as part of their care planning arrangements.
* The overall capacity for Wakefield is 12 prisoners comprising any combination of up to 8 ERMU plus four others located either in the F wing unit or within the designated cells in the segregation unit.

HMP Full Sutton
Core Role – Management Unit – Capacity 10, Normal operating level 10
The CSC unit at Full Sutton operates as a management unit, accommodating prisoners who have been selected into the CSC system and who need to undertake 1:1 and group based work to reduce risk and enable progression within and from the CSC system. Prisoners may be progressed from Full Sutton to Whitemoor CSC unit or, if suitable, may be de-selected from the CSC system at Full Sutton. The layout of the unit enables prisoners to be managed on separate regimes if required thus providing flexibility in the management of prisoners allocated to the unit. The unit also has provision for segregation within the unit, thus enabling prisoners to remain within the confines of the unit where segregation is required for a short period of time. Where segregation is required for a longer period or where the continued location of the prisoner within the unit is deemed unsuitable due to risk, behaviour or non-compliance with the regime, and their behaviour is having a detrimental impact on the running of the unit, a prisoner may be transferred to a designated Rule 46 cell within the segregation unit at Full Sutton in the first instance to enable the CSC staff to continue work to re-engage him, or to provide a short period of respite. In such circumstances the options for location will be discussed with the Population Strategy and Specialist Units manager and any move will be agreed at the CSCMC or by the Population Strategy and Specialist Units Manager where a move is required to take place sooner.

HMP Whitemoor - F Wing

Core Role - Progression and Intervention Unit – Capacity 10, Normal operating level 10

Whitemoor operates as the progressive unit within the CSC system providing a more open regime through which prisoners will normally be de-selected, if suitable. The more open regime provides a step towards a more integrated environment, and enhanced opportunities to test prisoners’ progress towards de-selection. Allocation to the unit is normally made where compliance with the rules and regime and a reduction in risk are evident but prisoners may also be allocated to Whitemoor where the individual risk levels indicate that the prisoner can mix more freely with others. Evidence of a reduction in risk is provided through a review of the original VRS assessment completed during the CSC assessment phase which should be reviewed annually. This review will be used to inform decisions regarding progression and management. Prisoners who disengage from the regime or become problematic can continue to be managed at Whitemoor to attempt to re-engage or stabilise to enable continued location there. Where prisoners behaviour becomes too de-stabilising for the unit he may be transferred to Woodhill Management unit or temporarily to a designated cell. The CSC unit at Whitemoor has provision for segregation within the unit, thus enabling prisoners to remain within the confines of the unit where segregation is required for a short period of time. Where segregation is required for a longer period or where the continued location of the prisoner within the unit is deemed unsuitable due to risk, behaviour or noncompliance with the regime, a prisoner may be transferred to a designated Rule 46 cell within the segregation unit at Whitemoor in the first instance to enable the CSC staff to

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continue work to re-engage him, or to provide a short period of respite. In such circumstances the options for location will be discussed with the Population Strategy and Specialist Units Manager and any move will be agreed at the CSCMC or by the Population Strategy and Specialist Units Manager where a move is required to take place sooner.
Intervention – Violence Reduction Programme
A key aspect of the CSC unit at Whitemoor is delivery of the Violence Reduction Programme1, a high intensity programme which is designed specifically for high risk and highly complex violent offenders. The programme operates as a hybrid programme within the CSC unit offering places for prisoners managed centrally under the MCBS in addition to those managed within the CSC system. Centrally managed MCBS prisoners will be allocated to the VRP according to need and will be located on a signed consent basis. The overall regime and ethos of the unit is tailored towards a violence reduction model for prisoners on the programme and those located alongside programme members. The programme is a three phase framework with the first three month phase entitled, ‘Looking in the Mirror’, followed by eight months core programme work entitled, ‘Breaking the Cycle’, and followed by a three month relapse prevention phase. De-selection from the CSC does not automatically follow completion of the programme as it is necessary to observe the skills learned by the participants. However, the VRP aims to enable prisoners to demonstrate a reduction in risk that can inform the de-selection process. The VRP can be tailored to meet the specific needs of the group, hence actual delivery schedules may vary. More details on the VRP are available from the treatment team at Whitemoor or from the CMG psychologist.
HMP Manchester – E Wing
Specialist Intervention Unit (SIU) – Capacity 6, Normal operating level 6.
The SIU is available to CSC prisoners for whom specific care and management targets cannot, or are not suited to be, carried out within a mainstream CSC unit. The unit, which operates as part of the CSC system and the Managing Challenging Behaviour Strategy has up to 4 cells designated for the purpose of holding prisoners held under Prison Rule 46 to enable specific 1:1 work to be carried out in a highly supervised and constructive environment with high levels of staff support. Prisoners subject to central case management under the Managing Challenging Behaviour Strategy may be allocated to the unit alongside CSC prisoners. The authority for associating those prisoners subject to Prison Rule 46 and those not subject to Prison Rule 46 is permitted within the wording of paragraphs 3 and 5 of Prison Rule 46.
Statement of Purpose:
“The Specialist Intervention Unit aims to support the High Security Estate by providing individualised, time bounded, and risk based care and management for prisoners, subject to MCBS or CSC management, with specific needs that would be more suitably addressed and managed within a small and highly supervised environment. The SIU work with internal and external providers and staff across the Estate, to provide a range of assessment and treatment options, and to ensure continuity of care”
Allocation to the SIU is based on an agreed care plan that is time bounded in order to carry out specific work to reduce risk of harm to others. CSC prisoners will either return to the unit they transferred from or may be able to progress to an alternative CSC unit according to recommendations made on conclusion of the agreed work plan.

1 Stephen Wong and Audrey Gordon

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Designated Rule 46 Cells
Designated Rule 46 cells in High Security segregation units are available for the temporary management of CSC prisoners. The CSCMC will authorise a prisoners’ removal from a CSC unit to a CSC designated cell under Prison Rule 46 at the monthly CSCMC where moves are planned and agreed each month; however, the Population Strategy and Specialist Units Manager may authorise the transfer to a designated cell to address operational needs outside of the formal meeting arrangements. Such moves will be referred to the next CSCMC for review and formal confirmation.
The purposes of the designated Rule 46 cells throughout the high security estate are to provide temporary accommodation for prisoners:
1. Who within CSC units, either through disruptive, subversive, manipulative, or violent behaviour, refuse to comply with any regime or intervention offered to them, including passive refusal, and/or is disrupting the regime to the detriment of other prisoners located on the unit;
2. For whom a move would be in the best interests of their, or another prisoners’ physical and/or mental well-being;
3. Who request a transfer due to difficulties with other prisoners;
4. For adjudication;
5. For punishment following a guilty finding at an adjudication;
6. For compassionate reasons;
7. To facilitate the reasonable management of prisoners within the system;
8. To enable a period of accumulated or inter-prison visits;
9. To complete assessments or preparatory work for particular courses or, programmes;
10. To facilitate attendance at court
Facilitating the ‘reasonable management’ of prisoners may include the need to transfer a prisoner due to conflicts with individual prisoners, or to enable another prisoner to be brought into the CSC system for assessment, treatment, or progression, to address staff well-being, to enable cells to be allocated to another prisoner where a priority need is identified, pending allocation to a CSC unit, or to manage witness conflicts where an offence has been committed within the CSC. Aside from the operational management basis of a move to designated cells, time allocated to designated cells may provide an environment in which prisoners can reflect upon their refusal to co-operate, or their behaviour, or seek temporary respite from cycles of disruptive and/or violent behaviour.
Establishments with prisoners in designated cell accommodation for periods extending beyond one month will assume responsibility for that prisoner’s management.
When a prisoner is allocated to a designated cell the sending establishment will provide a full brief on the prisoners’ situation in a fully completed pre-transfer form (Annex 1), which explains the reason for the transfer. The reasons for the transfer and specific actions required by the receiving establishment will be discussed at the CSCMC and with the Population Strategy and Specialist Units Manager. Key information, such as ‘Know-your-prisoner’ summaries, referral and/or assessment reports, and the first and most recent care plans, will be forwarded to the establishment.

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In line with the information provided and the reason for transfer, staff will:

Assess, monitor and review the risks and behaviours that the individual presents,
Provide a regime in consultation with the sending establishment and the prisoners’ regime level,
Actively encourage prisoners to participate positively with their agreed management plan,
Complete weekly behaviour monitoring,
Complete monthly reports for the CSCMC,
Complete quarterly Care and Management Plans in line with timeframes required,
Monitor the mental health and physical well-being of prisoners in designated cells,
Make recommendations to the CSCMC about the future management of prisoners held in designated cells,
Inform the Population Strategy and Specialist Units Manager of any concerns regarding his continued location in a designated cell,
Plan a return to the mainstream CSC units in liaison with the Population Strategy and Specialist Units Manager.

Where regime restrictions have been put in place by the sending establishment they must be discussed with the receiving establishment to ensure consistency and continuity of decision making.

There is no upper limit on the time prisoners may be held in designated cells. However, the CSCMC will, on a monthly basis, review each prisoner located in a designated cell and seek to locate the prisoner within a CSC unit as soon as is operationally possible. Where a prisoner refuses to engage with the CSC process and is located in a designated cell, he may be returned to a CSC unit to recommence efforts to engage him for an agreed period of time, after which it may be necessary to return him to a designated cell if operational factors dictate that his space is needed for another prisoner. If local managers feel that a prisoner should be returned to a CSC from a designated cell, or have concerns about the prisoners’ continued location within a designated cell, outside the normal process of the CSCMC they should contact the Population Strategy and Specialist Units Manager or, in their absence, the Chair of the CSCMC.

When the period of time a prisoner is allocated to a designated cell becomes extended i.e. beyond three months, and with no clear timeframe for a return to a unit or an inability to locate within a main unit for a specified reason, a local risk assessment should take place to determine a suitable regime that can be offered to lessen the impact of an extended period of segregation by virtue of placement under Prison Rule 46. Any regime activities should take into account the reason for placement under Prison Rule 46 and ensure adherence to the basis of the rule, its’ aims and principles.

A prisoner will usually return from a designated cell to his previous location at the end of any period of punishment or following attendance at court etc, unless a recommendation to move him to a different location has been accepted by the CSCMC. Whilst segregated in a designated R46 cell, prisoners remain subject to R46 and all relevant processes for review and management. Prisoners held in designated cells will not move without the prior authority of the CSCMC, DDC High Security Estate, or the Population Strategy and Specialist Units Manager save in exceptional circumstances where an urgent transfer is necessary. In such instances the Population Strategy and Specialist Units Manager must be informed of the move as soon as is practicable.

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Establishments that operate designated cells should include in their segregation unit policy document a section which covers the use of designated cells and the management of CSC prisoners. CSC issues should also be a standing agenda item for all local Segregation Monitoring and Review Group (SMARG) meetings.
Management of Prisoners held within Designated Cells – Key points:
Prisoners are held under Prison Rule 46 and will be accommodated within cells designated for that purpose and clearly identified as such
Decisions regarding their overall management are made by the CSCMC
The reason for the move, anticipated timescale and specific care and management arrangements will be discussed with key people prior to the move taking place
Day-to-day management is the responsibility of the holding prison
Weekly reports should be completed and disclosed to the prisoner
A Monthly report must be submitted to the CSCMC to inform on placement and management, disclosed to the prisoner
If a Quarterly Care and Management Plan is scheduled for a review this must be completed by the establishment unless an alternative arrangement has been agreed with the previous establishment or the Population Strategy and Specialist Units Manager i.e. to delay the review if a return to the host establishment unit is expected within a month of transfer into a designated cell. If a prisoner is held for an extended period within a designated cell a local risk assessment should be completed to consider options for regime activities that the prisoner can access to limit the impact of a segregated regime, pending transfer to a CSC unit.
Temporary designation of a Rule 46 Cell
In exceptional circumstances it may become necessary to temporarily designate a cell for the purpose of holding a prisoner who is held under R46. For example, damage caused to existing R46 cells which reduce the overall capacity at that establishment, concerted indiscipline, facilitate Category A cell moves, evacuation, treatment as an in-patient within the prison healthcare unit, police investigation where a cell is sealed etc.
In such an instance the in-charge Governor should be contacted to authorise the temporary designation of a Rule 46 cell. The Population Strategy and Specialist Units Manager must also be contacted, (or in their absence, the DDC High Security Estate), to inform them of the need to temporarily designate an alternative cell and the location of the cell. If required the Population Strategy and Specialist Units Manager will arrange for the transfer of the individual to another prison where the temporary designation of a cell is not possible or a transfer is more appropriate.
The local in-charge Governor will provide written notification of the temporary designation to the DDC High Security Estate who must confirm his authority for the use of the cell(s) for the purpose of holding a Rule 46 prisoner. This authority may be delegated where appropriate to facilitate the provision of cells when required.
A signed and dated authorisation notice must be displayed outside the cell identifying that the cell has been designated for the purpose of holding a R46 prisoner.
As soon as the temporary need for the cell has ended, the cell will return to ‘normal’ use.

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High Control Cells

High Control cells are provided within the high security estate for the management of highly problematic prisoners or those prisoners considered posing a high risk of harm to others, thus requiring additional management arrangements. Some of the Designated Rule 46 Cells within high security segregation units, (and some cells within the main CSC units), are equipped as High Control cells. Consequently they can be used for holding CSC prisoners for routine purposes i.e. court appearances, CC punishment, accumulated visits etc where the full capabilities of a High Control cell are not required to be employed, or alternatively for refractory or high risk of harm prisoners whereby the High Control cell is utilised in its full capacity to manage and mitigate the risk of harm to others, namely through the use of the hatch in the door.

When a prisoner becomes refractory it may be necessary to locate him initially in special accommodation for a short period of time, during which time de-escalation methods will be employed to try to facilitate a return to normal cellular accommodation as soon as it is safe to do so. Special accommodation is when one or more of the following items are removed:
Furniture
Bedding
Sanitation

The Duty Governor must authorise the placement of a prisoner in special accommodation and record the authority on form OT013. The IMB must be informed and attend within 24 hours. Healthcare must also be informed and attend to complete the relevant paperwork. Use of special accommodation must be assessed every 60 minutes and the prisoner must be observed 5 times per hour at irregular intervals. A full search should not routinely be carried out on location to special accommodation but be based on risk. Prisoners removed to special accommodation must be managed in line with PSO’s 1600 and 1700, whilst also taking into consideration any suicide and self-harm risk as detailed within PSI 64/2011. Special accommodation should be used to manage refractory behaviour prior to consideration of the need to use a body belt.

However, some prisoners’ behaviour is persistently refractory with frequent threats towards others; attempted assaults or actual assaults or disruptive behaviour, or their risk of harm to others is deemed to be significant such that the decision is taken to locate the prisoner within a High Control cell. A multi-disciplinary risk assessment must be in place to determine the need to locate a prisoner within a High Control cell (Annex 3) and signed by an operational manager minimum grade F/Band 7 to provide the authority for its use. The Duty Governor must be informed when a prisoner is moved into high control conditions. A full search should not routinely be carried out on allocation to a high control cell but be based on an assessment of risk; with the reasons for the decision regarding the need, or otherwise, for a full search to be carried out to be clearly documented. The risk assessment authorising placement within a high control cell must be reviewed no later than every 7 days. The removal from high control conditions must be accompanied by a signed multi-disciplinary risk assessment that sets out the reasons why High Control conditions are no longer required and the Duty Governor must be informed when the prisoner is removed from high control conditions.

High Control cells provide an opportunity to manage persistently refractory and/or high risk prisoners in a safe, controlled and risk managed way over a longer period of time, or where temporary, additional measures, such as handcuffing, are necessary to manage the risk; therefore providing essentially ‘normal’ accommodation with sanitation, furniture etc along with the use of the hatch to manage the risk presented. Thus where a prisoner is initially located in special accommodation and at the 24 hour review it is considered that the

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prisoner may require a prolonged period of time in special accommodation in order to manage risk, consideration should be given to the use of a high control cell as a measure to aid the safe unlocking and management of high risk and refractory prisoners.
Where the cell is used in its’ capacity as a High Control cell, the High control cell risk assessment (Annex 3) must be completed and signed authorising its use, and a sign displayed outside the cell stating that the prisoner is being managed in high control conditions.
If a prisoner is located within a designated Rule 46 cell that is equipped as a high control cell, but does not require the additional measures of a high control cell thus is used a normal accommodation, a sign must be displayed outside the cell stating that the cell is not being used as a high control cell but for the purpose of holding a prisoner subject to Prison Rule 46.
At times, and based on the specific risks of the individual, high control cells may also constitute special accommodation when it is deemed necessary to remove one of the three items listed above as well as the use of the hatch in the door. In such instances both High Control cell documentation and special accommodation documentation must be completed for the period that the hatch is used and one or more of the three items listed above are removed.
High control cells are normally equipped with: Bed and mattress Sink Toilet Furniture (table and chair) – risk assessed whether wooden or cardboard furniture
Any items removed due to self-harm or suicide concerns must be recorded in the prisoners ACCT document.

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Application of the CSC System

Referral to the CSC
The CSC Referral Manual (PSI 42/2012) provides the necessary information on which to base a decision whether to refer a prisoner to the CSC system and should be read in conjunction with this manual.

Prisoners referred to the CSC system would normally be those who have carried out a single serious act of violence, or those demonstrating (or threatening to demonstrate), behaviours that are significantly dangerous to others, and as such they are deemed unsuitable to be managed on normal location or in a segregation environment. The decision whether to refer a prisoner to the CSC will take into account the need to protect others from the risk of serious harm posed by some prisoners. Previously he may have demonstrated violence and/or other control problems, and not responded sufficiently to alternative methods of control. Attempts to manage problematic prisoners using existing processes are usually required to evidence compliance with the requirements of PSO 1810, paragraph 2.5 and section 8. But all cases are judged on their individual merits, and there can be circumstances where CSC referral is appropriate without a history of such behaviours or failure to respond to other measures.

A prisoner may be referred to the CSC if any one or more of the following are evident:

Referral Criteria:
Demonstrating repeated or escalating violence towards others;
Carried out, or orchestrated, a single serious or significant act of violence or disorder, e.g. hostage taking, murder, attempted murder, serious assault, concerted indiscipline etc;
Causing significant day-to-day management difficulties by undermining the good order of the establishment i.e. through bullying, coercion, intimidation, threats, regime disruption and subversive activity Involvement in such activities may not always be overt but be supported by significant intelligence indicating that individual’s involvement;
Seriously threatening and/or intimidating behaviour, directed at staff and/or prisoners;
A long history of disciplinary offences indicative of persistent problematic behaviour;
Repeated periods of segregation under Prison Rule 45 - Good Order or Discipline;
A continuous period of segregation exceeding six months (3 months for non-high security prisons) due to refractory behaviour;
Failure to respond to attempts to manage his risk and behaviour using existing processes, or under the MCBS (high security estate only), and his risk to others or the safe operation of an establishment is deemed to be significant.

Referral to the CSC does not bypass the use of appropriate existing management tools already available in all establishments.

If the CSC Management Committee selects a prisoner for assessment within the CSC system he will be notified of the decision in writing with reasons for the decision and will transfer to a CSC Assessment centre as soon as is operationally possible to commence his assessment to determine suitability for placement under Prison Rule 46. Where operational, or other, factors determine that the prisoner cannot transfer and will remain in a Designated Rule 46 cell awaiting assessment, he will remain under Rule 46 and be reviewed monthly by the CSCMC. If at any point during the assessment his continued

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placement under Rule 46 appears to no longer be necessary the CSCMC can decide, at their monthly meeting, to remove a prisoner from management under Rule 46. That decision will be documented within the minutes of the CSCMC meeting.
Pre-transfer forms and pre-transfer visits
To ensure the adequate handover of key information relevant to the prisoners’ management a pre-transfer form must be completed and sent to the receiving establishment no later than 48 hours prior to the escort taking place. The purpose of the pre-transfer form is to ensure that key information such as unlock levels, medication, key risks, reason for transfer, expected actions, known triggers, de-escalation techniques, key dates, outstanding adjudications etc are communicated to the receiving establishment to ensure a briefing can take place with the multi-disciplinary team regarding the prisoners’ management prior to his arrival. Decisions such as cell location, association group, unlock levels, prescriptions etc can be made in preparation for his arrival. It is also intended to avoid situations whereby a prisoner transfers on a medication regime that cannot be fulfilled at the receiving establishment thus resulting in practical difficulties, potential clinical concerns, a reduction in well-being, and potential elevation of risk to self and/or others in the days following transfer, and to ensure staff are not put at risk due to not having access to the information necessary to manage a prisoner. Pre-transfer reports should be completed as fully as possible, including risk pertinent medical information as required on the form.
Prior to a transfer taking place a member of the receiving team should visit the prisoner to introduce themselves and to explain the routines at the new establishment. The outcome of the visit should be shared with colleagues on return e.g. his response to the transfer. To enable a thorough handover between multi-disciplinary teams it is advised that video link facilities be employed to enable key disciplines to attend and discuss the prisoner concerned thus negating the need to incur travelling expenses whilst broadening the multidisciplinary input.
CSC transfers involve the movement of both Category A and B prisoners. Discretion regarding the move and prisoner details is essential in ensuring the safety and security of the escort, staff and prisoners. However, it is also essential that key staff involved in the care and management of complex and high risk prisoners have the information they require to make informed decisions regarding risk and management prior to discharging or receiving them.
Prisoners will be aware of a transfer and the location of the transfer due to the preadmission/pre-transfer processes. The specific date of transfer must not be disclosed to the prisoner.
Pre-admission Case Conference
Prior to the arrival of a prisoner to commence CSC assessment a pre-admission case conference will be held by the receiving establishment to review the referral paperwork to ensure all relevant information is identified and shared with the staff who will be working with the prisoner. The meeting should consist of the CSC unit manager, psychology, mental health, security, offender management, a member of the wing staff and any other relevant person or department who may be involved in their care or management such as primary healthcare, chaplain. The case conference provides an opportunity for the multi-disciplinary team to identify key concerns or issues that will affect the prisoners’ management, plan his unlock levels and regime, identify where he will be located on arrival, clarify and organise any medication where necessary, allocate key workers, and structure the assessment period. The pre-transfer report should be available along with feedback from the pretransfer visit. As good practice the receiving team should liaise with staff who previously

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worked with the prisoner to improve continuity of care and information sharing. This can be achieved efficiently through the use of video conferencing.
Pre-admission case conferences should also be held prior to receiving a CSC prisoner who has already been selected to review assessment reports, care plans and any current risk assessments and to plan as detailed above.
The Population Strategy and Specialist Units Manager will liaise with establishments to ensure all information relevant to the prisoners’ management is handed over, e.g. specific risks, court dates etc and to direct where specific risk assessments are required as identified at the point of referral or during a subsequent care plan. If the prisoner concerned is a Category A prisoner, discretion must be maintained to ensure that the fact of his transfer and the date of his transfer is not disclosed beyond those directly involved in the management of CSC prisoners.

Pre-selection Assessment
Following a routine or urgent referral to the CSC, and prior to full selection into the CSC, a prisoner will undergo a period of assessment to determine whether placement within the CSC system is required in order to manage the risk that he presents to others and to prevent further harm. During that time he will be held under Prison Rule 46 and will continue to be reviewed as regards continuation of his allocation to a CSC at monthly intervals in accordance with Prison Rule 46 and will be held in accordance with that rule.

The assessment period will either be a full assessment, comprising a 4 month period during which a series of tailored assessments will be carried out, or a compressed assessment where the recommendation is made that specified assessments are completed during a reduced period as a result of previous assessments having been completed. A compressed assessment period may be agreed by the CSCMC where the prisoner has been previously assessed within the CSC, has been re-referred for further, or review of, assessments, or managed centrally under the MCBS and formal risk and/or diagnostic assessments have been completed that would otherwise have been completed during the CSC assessment process. The Population Strategy and Specialist Units Manager will write to the Governor of the relevant establishment and members of the multi-disciplinary team to formally request the CSC assessment reports and to inform the team of the proposed date for the local assessment case conference. The prisoner will also be informed of the date of the case conference.

Reports are required from the following:

A1

Unit manager

A2

Wing staff/personal officer

A3

Psychology

A4

Mental health/psychiatrist

A5

Security

A6

Offender supervisor

A-Add Other e.g. primary healthcare, chaplain, education, court reports.

Guidance for completing the reports and templates for the reports are provided in Annex 6.

The assessment period provides an opportunity for the disciplines listed above to observe and monitor the prisoner’s behaviour towards staff and prisoners on a 1:1 basis and within

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a group setting, where appropriate. The multi-disciplinary team can assess his cognitive abilities and social interactions, and establish his level of engagement, all of which must be documented in a report for the end of the assessment period. Reports must be sent to the Population Strategy and Specialist Units Support Manager via the functional mailbox CloseSupervisioncent@hmps.gsi.gov.uk no later than three working days prior to the case conference and in line with the dates set out in the report request letter.
For cases requiring a four month assessment the first 12 weeks (three months) are set aside for interviews, engagement and observations. The last month is used to complete and disclose the reports to the prisoner, affording him an opportunity to comment on the report, and for a Local Assessment Case Conference (LACC) to be convened. The establishment must inform the prisoner that he may make representations to the CSCMC in respect of his assessment within the CSC directly or via his legal representative. Disclosure must be made to the prisoner, and, if requested, the prisoner’s legal advisor, with the requisite authority. The recommendation of the LACC must also be disclosed to the prisoner, and his legal advisor if requested. Legal representations should be sent to the Population Strategy and Specialist Units Manager via the functional mailbox in time for the next CSCMC. Representations made by the prisoner should be delivered to the Population Strategy and Specialist Units Manager. A period of 14 days from disclosure is normally provided for representations to be submitted unless an extension is sought and agreed. The Population Strategy and Specialist Units Manager will raise any representations at the CSCMC and will reply to the prisoner and/or legal representative on behalf of the CSCMC.

Local Assessment Case Conference (LACC)
At the end of the formal assessment period a LACC will be convened, chaired by the Population Strategy and Specialist Units Manager, to discuss in detail the content of the reports with the report authors in order to evaluate the risk that prisoner presents and form a recommendation for the CSCMC to consider regarding the need and suitability of selection into the CSC. Recommendations will be made regarding management either within the CSC if selection is recommended, or outside the CSC where selection is not recommended. All reports required as part of the assessment must be completed, signed and disclosed to the prisoner prior to the LACC, sanitised where necessary and with the appropriate protective marking added to the reports.
‘Sanitising’ is the process by which the provenance of the source of the information is protected, whether it is a human source or technical equipment. This allows intelligence defined as evaluated information for management action - to be shared with others who have a genuine need to know the product of intelligence gathering. Sanitising generally takes the form of:

i) Repeating the source content in the report but removing direct and indirect references to the source of the information; or
ii) Redacting - defined as blocking out information on a document leaving only information that can be shared with others.

Members of the CMG will attend along with those from the local establishment who have provided a report for the case conference. Where the report author is not able to attend the LACC they should discuss their report with the Population Strategy and Specialist Units Manager prior to the LACC to highlight specific areas of concern or risk, and brief a colleague who can represent their department and speak with authority on the content of the report at the Case Conference.
If the psychiatrist has provided a report but is unable to attend the case conference a member of the CSC mental health team may present their report. This person must be

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familiar with the report contents. Other staff may attend the LACC where they have a direct knowledge regarding the case that will assist the decision making process.
Further clinical assessments which are identified as necessary but were not completed during the assessment period, for example to clarify the existence or absence of neurological damage affecting the prisoner’s functioning, or personality disorder assessments as they may take longer to complete, need to be noted and investigated at a suitable agreed time. Additional advice can be sought from the case management group psychologist or mental health nurse, or CSC mental health team. In such circumstances the LACC will form a recommendation for the CSCMC based on the information provided and any outstanding actions must be carried forward to the prisoners’ care and management plan either within the CSC or under the MCBS to ensure relevant actions are not omitted from his overall care and management arrangements. The CSCMC will decide whether to proceed with a decision or defer pending further assessment.
Potential changes to the decision making timeframes
Occasionally it may not be possible to reach a decision whether to select into the CSC system within the four month period. Examples may include;
the illness of the prisoner involved,
a refusal to engage in the assessment process, therefore requiring additional time or alternative specialist input,
violent behaviour restricting assessment ability,
delays with legal proceedings,
The outcome of Police investigations, internal HMPS investigations, court cases, or obtaining past reports etc).
In these, or similar circumstances (this list is not exhaustive), the Population Strategy and Specialist Units Manager may authorise an extension to the assessment period, ratified by the CSCMC.
Equally, if a prisoner is so refractory or persists in his refusal to engage in the assessment process, the timeframe may be shortened and the case considered on written documentation and observations sooner than the four month period where it is considered necessary for the good order of the prison or CSC unit. The need for a shortened assessment period must be discussed with the Population Strategy and Specialist Units Manager who will authorise the change and will present the change to the CSCMC for discussion and ratification.
Where the prisoners’ legal representative, or the prisoner himself, wishes to submit representations in respect of the decision making process they must be submitted to the CSC Functional Mailbox – CloseSupervisionCent@hmps.gsi.gov.uk or directly to the Population Strategy and Specialist Units Manager respectively in time for the CSCMC at which the case is scheduled to be decided. A period of 14 days from disclosure is normally provided for representations to be submitted unless an extension is sought and agreed

Selection into the CSC following assessment

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If, following the assessment period, the CSCMC decides that a prisoner should be selected into the CSC he will be informed in writing of the decision of the CSCMC, including reasons for the decision, which will be authorised by the Deputy Director of Custody, High Security Estate. The prisoner will receive his letter as soon as is practicable following the decision.
He may remain in his present establishment unless the CSCMC decides that an alternative location is more appropriate to his care and management.
He will be provided with a copy of the local regime document that details the routines and regime that he will have access to. The local regime document must also be displayed within the CSC unit in an area that is accessible to prisoners. Where the prisoner cannot read, or understand English, arrangements will be made to ensure either that:
He is provided with documentation in his own language, or,
He is provided with information in an alternative format to ensure he is aware and understands the routines and entitlements, or
A member of the wing staff will explain key aspects of the rules and processes to the prisoner. Staff should ensure that the prisoner is regularly informed of rules and processes to aid understanding.
In all such circumstances a written record will be made in his NOMIS case notes to record the fact that he has received a copy of the regime document.
Within four weeks of the decision to select into the CSC the prisoner will have an initial care and management planning meeting at which targets will be set to work to reduce risk. Details regarding the care planning process are provided in the following section.

Section 2 - Management of prisoners subject to Prison Rule 46

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Communication
Prisoners who are being referred to the CSC will be informed of the referral by disclosure of the referral reports when the referral is submitted to the central Case Management Group (CMG). The referral will be disclosed to the prisoner by the referring establishment (or holding establishment if it has been necessary to transfer him whilst compiling reports), sanitised where necessary. When the referral is disclosed to the prisoner he should also be issued with the Prisoner Information Leaflet (Annex 6). If he is located within a segregation unit his Rule 45 paperwork must be updated to record that he has been referred to the CSC under Prison Rule 46 and a decision is awaited regarding future management.
The holding establishment should inform the prisoner of the recommendation made by CMG and the date the case will be considered by the CSCMC. The establishment where the prisoner is held must also inform the prisoner that he may make representations to the CSCMC in respect of his referral to the CSC. Representations will also be accepted from his legal advisor. Prisoners will have a period of 14 days within which to submit representations. Following the CSCMC the prisoner will receive a letter informing him of the outcome of the referral.
Following the Assessment period the CSCMC will make a decision regarding selection into the CSC. The prisoner will be informed in writing of the decision, including reasons, of the CSCMC. Feedback should be given verbally to the prisoner within 3 working days of the meeting. Written notification will normally be provided within 7 working days. Prisoners who are being considered for recall to the CSC will also be informed of the intention to recall by the holding establishment, who will submit a recall report for consideration by the CSCMC which must be disclosed to the prisoner prior to submission to CMG.
Meaningful Interactions
The CSC system is an intensive environment which is heavily controlled. For some prisoners the only contact they have with others is with staff. Staff play a vital role in providing a pro-social role model, in setting clear boundaries, being professional and working closely with prisoners to try to reduce their risk. Staff and managers within CSC units should provide opportunities for interactions with staff and prisoners (where risk assessed as suitable) and activities that are meaningful and engaging. More is covered in the section on Regimes.

Care and Management Planning – General

Prisoners are selected into the CSC due to the risk of harm they are considered to present to others, and for whom a restricted and highly supervised environment is necessary to manage that risk; and to provide an environment within which appropriate work can be carried out to try to reduce the risk to enable reintegration to mainstream or other suitable location. Thus from the point of selection into the CSC the focus of the management of that prisoner within the CSC system is to translate the information contained in the CSC assessment reports, and gathered in on-going reports, into a bespoke care and management plan that identifies the risks and needs of the prisoner, and what work is required to reduce the risk to enable a decision to be made to de-select and return him to mainstream location or to a more suitable treatment provider. Targets will be set according to the individual needs of each prisoner; for example, following selection a period of motivational work to build relationships and engage with staff and prisoners, setting consistent boundaries, or crisis

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management may be necessary before any formal intervention work can commence. Developing appropriate social interactions within an environment underpinned by the need for safety is essential to enable intervention work to be carried out. Intervention work may take the form of 1:1 or group work such as A-Z, Good Lives Model, more formal clinical assessment, diagnostic, support or intervention sessions. Target setting needs to focus on the overall plan to reduce risks, identifying specific work and an anticipated timeframe for work to be undertaken, with progress against the targets reviewed quarterly. The anticipated timeframe helps to structure both staff and the prisoners’ expectations. Timeframes will be reviewed quarterly and as part of the on-going management of the prisoner. It is important that the risks and behaviours are documented in order to support decisions that need to be made. It is important that those involved in the care and management of CSC prisoners record positive and negative developments in order to inform the current and future management plan for that prisoner.

Crisis Planning
The care planning process should include the provision of a Crisis Plan which enables the team to discuss, during a settled period, how to manage a prisoner or situation when his risk elevates or the risk to him increases. Planning when the prisoner is settled will assist staff during a period of crisis as there will be a plan of things that may help and an agreed way of handling a situation, thus removing some of the emotional impact of a crisis and providing staff with a process that has been agreed by the wider multi-disciplinary team. Such plans are a guide as one plan will not always suit every incident. Crisis plans, as with care plans, should be readily available for staff in the event of an incident.

First Care and Management Plan
Within four weeks of the decision to select a prisoner into the CSC, or following a return from high secure hospital, an initial care and management planning meeting must be convened, chaired locally, to which the prisoner must be invited to attend. The first care planning meeting will draw on the information contained within the referral and assessment reports and should be attended by those who assessed or worked with the prisoner during the assessment period. The first care plan must set out a series of targets, which will be a mixture of short, medium and long term targets as well as identifying current unmet needs, with reasons why they cannot be met at present or within the CSC system, which aim to manage and reduce the risk of harm to others, along with any further assessments recommended. Targets must aim to address behavioural and risk concerns according to the specific needs of each individual prisoner, and an anticipated timeframe for completing the identified work should be documented to set initial expectations for both the prisoner and staff working with CSC prisoners. The quarterly review process reviews progress against the targets due during the previous quarter, making amendments to any targets and timeframes where necessary.
The multi-disciplinary team need to consider the following when setting targets and summarising behaviour at the first meeting:
Key risks as detailed within the assessment reports;
Triggers and protective factors;
Any additional assessments that need to be completed;
Any physical health needs;

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Key dates that may affect his behaviour and management i.e. anniversary of a traumatic event, court dates;
Self-harm or suicide risk and coping strategies in place or needed;
How he has settled into the CSC environment, reviewing the period spent under assessment;
His response to his selection;
His interactions with staff;
His interactions with prisoners;
How he has engaged with the regime;
General behaviour and measures required to manage daily behaviour or risk e.g. type of accommodation used, unlock levels, use of Personal Protective Equipment;
Ways to encourage the prisoner to reduce his risk of violent and/or disruptive behaviour including the Violence Reduction Programme and other interventions;
Necessity/intention for referral to high secure hospital or personality disorder services within the NHS or Prison Service where a referral may be considered necessary but unsuitable at present due to risk;
Long term goals should also be included to ensure they are set out on the initial plan to outline overall risk reduction needs; His comments and any representations.

On-going Care and Management Planning

Care and management plans are the tool with which risks and needs are recorded, managed and monitored to evidence a reduction in risk and are reviewed quarterly or sooner if there is a need to do so to reflect a change in circumstances. Meetings should be chaired by the local CSC manager, or a suitable nominated person, attended by the multi-disciplinary team, and including all relevant personnel involved in the care and management of the prisoner, such as;
Psychology
Mental heath
Primary Healthcare
Wing staff
Unit manager
Chaplaincy
Education
Offender Manager or Supervisor
Security
Legal representative, (if requested or invited)

At the care plan review the current care plan should be available to those attending to enable progress of each target to be discussed and recorded; a new care plan for the next quarter should be produced and a copy given to the prisoner.
A prisoners’ family may be invited to attend a care plan review where it is deemed beneficial to the overall care and management process. Such decisions will be made locally by the multi-disciplinary team, taking into account security considerations.

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Each risk or need should have a corresponding action that is aimed at addressing the risk or behaviour. The care and management planning process provides a structure for both staff and prisoners with regards to managing the prisoners’ time effectively.
CSC targets should reflect sentence planning targets, where appropriate and equally the sentence plan targets should be updated to reflect the change to Rule 46 status, ensuring the two processes are suitably aligned.
Prisoners should be invited to attend and contribute to quarterly reviews and the setting of targets, and must be given a copy of their care plan completed after each review. If they decline to contribute the fact should be recorded on the care and management plan form. If prisoners do not wish to attend in person they may be permitted to submit written contributions. However, a failure to attend and/or engage in the care planning process may be reflected in the IEP status of the prisoner as the prisoner has a responsibility to work towards reducing his risk of harm towards others.
Prisoners may request that their legal representative makes representations or attends his care and management plan reviews. Equally the MDT may feel that inviting the legal advisor to a review could help with the overall planning and communication process, thus potentially reducing unnecessary and misunderstood correspondence. Care plan reviews should not be unnecessarily delayed to facilitate the attendance of legal advisors. Written contributions from legal advisors are acceptable.
All High Security prisons are responsible for completing care and management plans for CSC prisoners held within their establishment, irrespective of whether they are located in a main CSC unit or within designated cells, and within the timescales required.
Things to consider during subsequent Care and Management Plan meetings:
• What is known about what works with regard to the prisoner’s management?
• What has worked in the past? What has not worked in the past?
• What motivates the prisoner to do well?
• What prevents the prisoner from behaving dangerously?
• What is likely to trigger a negative reaction?
• What are the prisoner’s areas of risk and what currently constitutes a high risk for him?
• What further assessments may be required?
• What does the prisoner have in terms of motivators, successful management styles, goals, plans, personal support, and contacts with outside?
• What behaviours and thoughts may indicate deterioration and trigger a review of the prisoner’s risk?
• Any changes to sentence or conviction, including additional charges or convictions.
Further things to consider when setting targets:
Break risks and needs down into simple, easy to understand targets for both staff and the prisoner. Complicated language, acronyms or terminology may make it difficult for all disciplines, including the prisoner, to understand what is required;
Detail the specific work that needs to take place i.e. 6 week session looking at emotional coping. Stating ‘work with psychology’, or ‘engage with staff’ is not sufficient as it doesn’t explain what the work is, why, how it relates to reducing risk, supporting or managing him, or how long it will take;

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Set realistic timeframes and include work that may not be met this quarter as the care planning process is essentially a developing ‘story’ detailing what has and will be done to manage and reduce risk. On-going monitoring will inform the length of time a prisoner spends in the CSC;
Identify who will be doing which targets;
Ensure regime activities are identified that enable the prisoner to be occupied when unlocked and during lock up periods;
Consider activities that give staff an opportunity to interact with the prisoner and monitor for specific behaviours that will inform his overall management; for example, if a prisoner struggles to accept the views of others, structured activities that provide opportunities to learn skills and for staff to observe behaviour, i.e. a discussion group, will be beneficial.
Copies of care and management plans must be sent to the Population Strategy and Specialist Units support manager via the CSC functional mailbox when complete to ensure a central record can be maintained and a quality check carried out.
Wherever possible, prisoners should not be transferred when their quarterly review is imminent, although in some circumstances this may be unavoidable. Alternative arrangements should be made to complete the review sooner than planned if a planned transfer has to take place; alternatively staff from the sending establishment may attend the new location to take part in a care and management plan review with the receiving prison to ensure the review is relevant, meaningful, and contains an up-to-date summary of the previous quarter. The Population Strategy and Specialist Units Manager will monitor care and management plans to ensure they are completed on time and to a good standard.
A care and management plan template is provided in Annex 2.
Tracking of completed targets
When MDT’s are reviewing progress and considering suitability for de-selection it is important that completed targets are available at a glance in order to inform the risk assessment process. In order to maintain a log of all targets that have been completed, (and subsequently removed from the current care plan), completed targets must be copied and pasted onto the Completed Target Log form at the back of the Care Plan document. This way a running record is maintained for ease of reference to CSC teams when considering and setting targets without needing to read through all previous care plans.

Progression
When deciding whether a prisoner is suitable to progress between CSC units the local multi-disciplinary team will need to review existing information to consider the individual circumstances indicating risk reduction or a need to progress. A review of the VRS assessment completed during CSC assessment should be carried out annually to inform decision making, particularly where it is deemed appropriate to progress a prisoner from Wakefield or to Whitemoor. The outcome of the risk assessment should be discussed at the CSCMC as part of the establishment feedback and discussion on prisoners to inform overall management and transfer arrangements, and as part of the care planning process with the prisoner.

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Reporting
Weekly reports
Weekly reports provide essentially the on-going record of the prisoners’ attitude, behaviour and progress. They should draw together the daily observations made by staff on the behaviour monitoring sheets, (which are produced to reflect the care plan targets), and feedback from staff following 1:1 or group sessions, where appropriate. Weekly reports should be compiled by a personal officer who should meet with their allocated prisoners each week to provide feedback on conduct during that week. The weekly report and meeting provides an opportunity for the prisoner to discuss any issues with his personal officer in a structured way and for any concerns to be raised in a timely manner. Weekly reports are used to inform the monthly report.
Monthly reports
A monthly report is completed for each prisoner for submission to the monthly CSCMC meeting. The purpose of the monthly report is to provide information to the CSCMC to enable the committee to review and make decisions regarding location, placement and de-selection of each prisoner in line with Prison Rule 46. The report essentially explains to the CSCMC why continued placement within the CSC is necessary, or otherwise, by highlighting areas of risk, progress, concerns regarding continued placement, and any relevant factor on which a decision can be based. Monthly reports should be disclosed to the prisoner prior to the CSCMC to enable him to make comments on the report. Following the CSCMC the report should be updated to reflect any feedback from the CSCMC and an updated copy provided to the prisoner. Abusive or inappropriate remarks will not be accepted.
Annual Reviews
Annual reviews should take place every 12 months from selection into the CSC following assessment. The purpose of the annual review is to review key aspects of the prisoner’s management such as any on-going referrals, re-categorisation reviews, parole hearings, outstanding charges, outstanding treatment, any changes in circumstances, and to consider the long term plans for the prisoner. It is essentially a checklist for CSC teams as opposed to a report and as such does not need to be disclosed. Annual reviews must be completed by the holding establishment and forwarded to the Population Strategy and Specialist Units Support manager via the functional mailbox for discussion at the next scheduled CSCMC following the review, central filing and any follow up action. It is the responsibility of the holding establishment to ensure annual reviews are completed on time. The Population Strategy and Specialist Units Manager will prompt and check completion during operational visits.

Pre-transfer Arrangements

As detailed on page 20, a pre-transfer form must be completed prior to the transfer of all CSC prisoners. Where a transfer has to be completed urgently to meet operational needs a verbal handover of key information must take place with the receiving establishment covering key issues at point of transfer or during the first 24 hours such as:
Reason for transfer
Current unlock risk assessment and recommended unlock levels
Current medication
Overall risk of harm to others

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Suicide and self-harm considerations including details of current or recent ACCT’s
Any current physical health considerations
A member of the healthcare staff should discuss any key clinical considerations with the receiving healthcare team to ensure relevant information necessary to manage the prisoner is handed over. If the prisoner is prescribed medication or a regime that is not concordant with the formulary or dispensing regime at the receiving establishment, sufficient quantities of the current medication must be sent with the escort to ensure the prisoner continues with his current medication regime until such point as a review of his medication can be made and a decision reached regarding continuation of the current treatment regime or a suitable alternative where necessary.

Behavioural Monitoring
Prisoners are selected into the CSC due to their risk of harm to others and/or persistently disruptive behaviour. In order to monitor those risks and identify any progression or escalation, staff need to know what those risks are and then record their observations and interactions with the prisoner to inform decisions regarding the prisoner’s management. It is also important that each prisoner knows what risks he is considered to present to others, and what is required to work towards reducing that risk, including how any reduction, or increase will be monitored and recorded. A Behaviour Monitoring system is in place to guide staff in monitoring specific behavioural and risk concerns, and to ensure that observations made each day on the wing and within sessions are fed back into the targets set and reviewed at the quarterly care plan review. Key risks and concerns will be identified at the care and management planning meeting. From that meeting specific behaviours and/or risks that need to be monitored will be agreed and documented in the behaviour monitoring sheets. Staff will then record and score interactions and observations on those sheets which will be reviewed at the monthly review meeting to inform the CSCMC on risk matters, and at the quarterly care plan review meeting to review targets. Details of the use of the Behaviour Monitoring system are provided in Annex 8.

Regime and Interventions

All areas designated as part of the CSC System will operate in accordance with published regimes, approved by the Deputy Director of Custody, High Security Estate.

The regime offered in the CSC system is designed to provide a range of activities centred on positive and meaningful contact and engagement, breaking down barriers, building relationships, improving social skills, and support attempts to reduce risk.

The broad range of activities within the CSC system are designed to enable prisoners to engage in activities irrespective of their individual unlock and risk levels. The emphasis of the regime activities available is to:

Engage prisoners in meaningful activities to constructively occupy their time

Provide opportunities to engage with staff and others in both formal and informal settings

Provide opportunities to monitor and manage individual and group risks

Work towards reducing risk and enabling progression through the CSC system

Develop self-awareness, insight, coping strategies, and alternative ways of behaving.

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A Regime Matrix is provided at Annex 4 illustrating the type of activities available across the CSC system. Specific regime matrices will be produced and published locally by each site clearly showing the regime activities available at that site. Prisoners will be encouraged to attend/carry out activities according to their risk level to ensure they use their time within the CSC as constructively as possible. Attendance at specific activities will be paid on a sessional basis in accordance with the local pay policy. Specific activities may be included in the care and management planning process for each prisoner. Outside of the care and management planning process the wing staff, in conjunction with the wider Multi-Disciplinary team, will determine the regime that each prisoner will have access to, based on individual and collective risk, IEP level, level of engagement and operational provision. Prisoners will have access to certain activities via application such as daily exercise, daily access to the shower and the use of the telephone. Exercise is available to all prisoners daily for a minimum of thirty minutes. Time spent outdoors as part of a formal activity counts as meeting this requirement. Given the often long periods of time spent in cell or in restricted activities access to exercise will aim to exceed the minimum 30 minutes duration wherever possible. Prisoners on restricted regimes must have access to a minimum of 60 minutes of activity daily, of which at least 30 minutes must be in the open air. To ensure clear information is available for both staff and prisoners each CSC unit will publish a regime document that is available to both staff and prisoners, and will be approved and certified by the DDC, High Security Estate annually.
The regime document must make provision for:
o Showers (daily where possible, minimum of 3 times per week,)
o Exercise (60 minutes activity should be provided daily of which a minimum of 30 minutes must be in the open air. Establishments will aim to provide daily exercise in excess of the 30 minutes minimum as a matter of routine)
o Visits, domestic and legal
o Telephone calls (prisoners are able to maintain contact with family and friends whilst in the CSC system)
o Education; in-cell, group and distance learning
o Library facilities on the unit with access to order books from the main library
o Access to gym facilities located on the unit and provided on exercise yards
o Pay arrangements and employment opportunities (based on IEP level)
o Association (subject to risk assessment)
o Activities (Regime Matrix - subject to risk assessment)
o In-cell activities (subject to risk assessment)
Prisoners will be provided with written information on local regimes and entitlements within 24 hours of arrival in a CSC unit as part of his induction.
Regimes must provide for avenues for progression, and prisoners should be encouraged to take part.

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Movement of prisoners
Routinely the Population Strategy and Specialist Units Manager, as part of the central Case Management Group, will make a recommendation to the CSCMC of potential and planned prisoner movements. The CSCMC will consider the recommendations after taking all other moves and operational matters into consideration. Essentially moves will take place for one of the following main reasons:
Operational reasons such as attendance at court, to commence CSC assessment, in response to security information, cell availability, in response to an incident;
Sentence planning, progression or regression;
Compassionate transfers.
Establishments should ensure that representatives attending the CSCMC are able to advise the Committee on any operational issues regarding or affecting the movement of prisoners subject to Rule 46, and have the authority to agree any moves. Establishments should advise CMG in advance of their meeting (held on 1st Tuesday each month) of any proposed moves, including the basis of the request and any key information such as court date, care planning, or anniversary dates, to enable CMG to plan moves, where possible, across the estate. When the ‘planned moves’ list is circulated to establishments prior to the CSCMC, any factors affecting the moves indicated should be fed back to the Population Strategy and Specialist Units Manager prior to the meeting to enable consideration of alternative options to be considered prior to the CSCMC meeting and relevant contact with establishments.
Should it be necessary to move a prisoner within the CSC System where it has not been previously agreed at the CSC Management Committee the move will be authorised by the Population Strategy and Specialist Units Manager in consultation with the Governor/Deputy Governor at the receiving establishment. This move will be discussed and recorded at the next CSCMC meeting.
Escorts
All CSC prisoners, irrespective of category, will be moved in a Category A vehicle. Authority for the use of a Category A vehicle is not required for each escort of a Cat B CSC prisoner as prior authority of the DDC is provided by virtue of the CSC Operating Manual.
Staffing levels will be agreed by the sending establishment based on an assessment of risk.
More than one CSC prisoner may be transported on a vehicle where it is risk assessed as suitable.
Where a prisoner is transferred to a secure hospital under the Mental Health Act, good practice guidelines surrounding clinical care indicates the benefits of a member of the mental health team accompanying the prisoner on the vehicle during the transfer. Local risk assessments must consider the staffing arrangements in order to permit a member of the MH team to remain on the vehicle during the escort.
Category A prisoners will not be given advanced warning of an escort taking place. In the interests of the safety and security of the escort, category B prisoners may not be informed in advance of the escort taking place, or the destination, where the risk assessment indicates that prior knowledge may affect the safety and security of the escort. Any such risks must be documented on the pre-transfer form.

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However, CSC prisoners, including Category A prisoners, will often be aware of a move taking place by virtue of the fact that they are informed in writing of the decision of the CSCMC to select for assessment or select following assessment; and if selected for CSC they will transfer to a CSC assessment centre to commence assessment, and as a result of Pre-transfer visits. Equally as part of the care planning process a discussion will take place to discuss options for progression or to undertake the VRP programme. Moves may also need to take place to facilitate a court appearance or for accumulated visits. In such circumstances telephone monitoring should be considered in the run up to the escort taking place to monitor for any communication that may compromise the security of the escort.
Communication with the multi-disciplinary team is essential to plan the transfers of CSC prisoners effectively and to enable handovers to take place between multi-disciplinary teams.
A pre-transfer form will be completed for all transfers between establishments and must include comprehensive and up-to-date information to assist the receiving establishment to safely manage the prisoner, including essential medical information (Annex 1).
A Pre-transfer Discharge Pack (Annex 9) must also be completed for planned moves setting out key work or interventions been or being completed in order to aid continuity of care and management across the CSC system.
Establishments will notify Cat A section of all movements of CSC prisoners to hospital, including during Out Of Hours to ensure centralised recording and knowledge of CSC prisoner locations when outside of an establishment.
If a Category B prisoner is due for a re-categorisation review an up-to-date RC1 must be completed within the timescales required prior to transfer to ensure receiving establishments do not undertake an increased burden that may affect local performance monitoring measures or compliance with audit processes.
If it is necessary to move a prisoner during the parole window the fact must be discussed between both establishments prior to the move taking place and appropriate measures put in place to ensure the timely completion and disclosure of the Parole dossier.
In the event of an urgent or emergency move to outside hospital the establishment must follow local procedures for managing the move and inform the Population Strategy and Specialist Units Manager as soon as is practicable. In the event of the need for an urgent move out of the establishment for operational reasons or following an incident the establishment should contact the Population Strategy and Specialist Units Manager, who will assist in identifying a suitable location. If it is not possible to contact the Population Strategy and Specialist Units Manager prior to the move they should be notified as soon as possible following the move.

Sentence Planning and OASys Reviews
Prisoners held within the CSC are subject to the same sentence planning reviews as prisoners held in main locations. OASys reviews should be carried out when due and establishments should avoid transferring a prisoner when his OASys review is due, unless operational necessity takes priority. Where a move is planned ahead and coincides with an OASys review the holding establishment should seek to carry out the review prior to the move. If that is not possible the need for the OASys review must be communicated to the receiving establishment verbally to the offender management unit and through the pretransfer form. If the prisoner is temporarily moving to a designated cell i.e. for accumulated visits, the holding establishment should arrange to complete the review on his return.

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Eligible CSC prisoners will have an OASys completed which should be reviewed annually or following a significant event or milestone in line with PSO 2205. Care and Management Plans should reflect the content of OASys documents, and the risk relating to placement within the CSC must also be reflected in the OASys document. Specifically the sentence planning targets should be updated at the next scheduled OASys review following selection into the CSC or sooner if a review is more than 6 months away. In any event, Offender Supervisors and Managers must be included in the assessment and management process to ensure effective information sharing, decision making, and target setting.

Categorisation reviews

Prisoners held in the CSC are subject to categorisation reviews as with any other prisoner.

Category A
Category A reviews must take place annually and are coordinated by NOMS’ Cat A section. Establishments must ensure that Cat A reviews for CSC prisoners are carried out within the timeframes requested.

Category B
Category B CSC prisoners must be reviewed as follows: Prisoners serving indeterminate sentences will be subject to Sentence Planning and Review meetings, which must be held at least every 12 months, and in line with the OM III manual. The Indeterminate Sentence Prisoner’s security category should be considered at each meeting. (See PSO 4700, Chapter 4).

The following have a six monthly review (non Cat A):
• Prisoners serving a determinate sentence of 12 months or more but less than 4 years • Extended Sentence for Public Protection (EPP) prisoners with a custodial term of less
than four years
• Prisoners in the last 24 months of their sentence

The following have an annual review (non Cat A): • Determinate sentence prisoners with a sentence of 4 years or more • EPP prisoners with a custodial term of four years or more

Prisoners may have their security category reviewed whenever there has been a significant change in their circumstances or behaviour which impacts on the level of security required, (PSI 40/11 refers) including:
• A prisoner is returned to prison custody from a medium or high secure Hospital.
• there is a change in circumstances or behaviour which indicates an urgent threat to prison security or the good order of the establishment
• intelligence indicating involvement in ongoing serious criminality
• Further charges of a serious nature indicate that the prisoner requires a higher level of security.

Prisoners returning from medium or high secure hospital must have their security category reviewed within 4 days of receipt of all the available information.

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Any Category A prisoner returning to prison custody from Special Hospital must be reported into the HSE Category A Team at Headquarters.
Visiting Arrangements
CSC prisoners are entitled to the statutory minimum visits entitlement. Additional visits are permitted where operationally possible and in line with the prisoners IEP level.
Location of visits
Prisoners within the CSC units will have their visits within the visits area in the CSC unit and not the main visits hall within the prison. Visits will be open unless security assessments result in the decision to place the prisoner on closed or semi-closed visits. Visits will be staffed according to the individuals’ risk assessment. The exception to the above is the Exceptional Risk Management Unit where, subject to individual risk assessment, visits for prisoners presenting with significant risks to safety and good order will normally be held in semi closed conditions on the unit where bars separate the visitor from the prisoner. The semi closed arrangement is based on the fact that allocation to the CSC unit at Wakefield is based primarily on acute levels of risk towards others. Access to fully open visits in the main visits hall is not considered appropriate. Prisoners located at Wakefield under CSC assessment will be risk assessed to consider the suitability of having visits in the high risk visits area of the main visits hall.
As part of the process of progression from the ERMU the individual risk assessment may be reviewed to enable visits to take place in the high risk visits area of the main visits hall.
For prisoners held in designated cells within high security segregation units visits will normally take place in the high risk visits area within the main visits hall, or within closed visits facilities within the segregation unit where a risk assessment determines closed visits as necessary, or attendance within the main visits hall as unsuitable on the grounds of risk or operational need.
CSC prisoners will be full searched prior to and following social and legal visits due to the heightened risk of harm towards others.
Prisoners held in the SIU at Manchester will receive visits in the visits room on the category A unit located next door.

Accumulated Visits
CSC prisoners may apply for accumulated visits. Up to 26 statutory visits may be accrued during a twelve month period and prisoners may apply for accumulated visits every six months. Governors may refuse or postpone an accumulated visit if the transfer gives rise to risks to security, safety or order.

Inter-Prison Visits

Inter-prison visits are permitted between CSC prisoners in accordance with current prison service policy (PSI 16/2011). Inter-prison visits will be subject to security, availability of transport and availability of accommodation. The following will apply:

• The prisoners must be close relatives as detailed in PSI 16/2011.

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• Each prisoner must surrender a visiting order in place of the inter-prison visit.
• The visit will be risk assessed by both establishments concerned to consider the impact on security, the Good Order of the establishment, and any public protection matters, and the conduct of the visit, i.e. open or closed in accordance with local security instructions and intelligence relating to both prisoners.
• Both establishments must agree the visit following risk assessment.
• The CSC MDT must be contacted to establish whether there are any key care concerns that may affect the visit.
• A video-link visit will be considered in the first instance based on security and risk.
• If a transfer is agreed to take place to facilitate a visit the non-CSC prisoner would normally be transferred; however, security category, risks and facilities will be risk assessed to identify the specific arrangements.
• If the family member is located outside of the high security estate the visit will take place in a high security prison where a face-to-face visit is agreed.
• CSC inter-prison visits will normally be held in the CSC visits area.
Complaints
Prisoners may submit complaints as per PSI 02/2012. Where a prisoner abuses the complaints system restrictions will be put in place in accordance with PSI 02/2012, paragraph 2.1.11.
CSC Pay Policy (PSO 4460 Refers)
Pay arrangements for CSC prisoners will be determined by each establishment’s local pay policy and will be published within the local CSC Regime Document. Essentially prisoners will be paid for work carried out and for their participation in specific regime activities. Prisoners that are willing to work are risk assessed as suitable to work but for whom there are no employment opportunities will be paid the unemployment rate of pay.
When prisoners transfer between establishments their pay may be affected. As such the following arrangements are in place;
If the prisoner has temporarily moved for non-disciplinary reasons i.e. accumulated visits, appearance at court, awaiting CSC assessment etc, he may remain on the current rate of pay at his ‘home’ establishment, if the rate is higher, for a period not exceeding two months. If the rate of pay at the receiving establishment is higher he may be paid at the higher rate following transfer. On return to his ‘home’ establishment he will revert back to his previous rate of pay received prior to his temporary transfer.
If the prisoner has moved from a CSC unit for disciplinary purposes his pay will be paid at the lower of the two rates paid at the ‘home’ unit or designated cell location. If location within a designated cell extends beyond two months the prisoners’ pay will revert to the pay policy of the holding establishment, save in exceptional circumstances such as a lengthy trial or an agreed extension of accumulated visits for compassionate reasons, as agreed by the local Governor.

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CSC Behavioural Management System
The management of CSC prisoners is complex, with a need to balance the security risks, risks to self, risk to others, with the need to provide interventions and incentives for prisoners to address their behaviour, comply and progress through the CSC system in order to return to normal or other suitable location.
The CSC behaviour management system operates in three parts:
1 Behaviour Management – achieved through an IEP scheme 2 Regime Risk assessment 3 Unlock levels
The CSC system will operate an Incentives and Earned Privileges Scheme in line PSI’s 11/2011 and 30/2013.
The applicability of the requirements of PSI 30/2013 is currently being reviewed and this section will be updated shortly.
Behaviour Management - IEP scheme The scheme will operate four levels – Basic; Entry, Standard; Enhanced.

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Regime Risk Assessment
Prison Rule 46 permits the removal from association where required, thus association may be denied on the basis of risk as per selection into the CSC. However, all prisoners will be individually assessed for both suitability for activities, and for the risk they pose to themselves and others to consider the suitability for supervised and risk assessed association. Prisoners will be risk assessed as one of two levels:
1. Routine – mixed unlock 2. Restricted – singular unlock
‘Routine’ identifies that he may be unlocked with other prisoners. Further detail will be provided in the individual risk assessment carried out on arrival into the CSC and routinely after that according to individual circumstances. A restricted regime may be imposed where the risk to others is considered too high to enable him to participate in mixed association or mixed activities. The consideration of risk may not be accompanied by the deterioration in behaviour and consequently the IEP level may not always change in relation to the regime risk management level. The risk assessed regime must take into account the most suitable cellular accommodation i.e. normal or high control cell in order to minimise the risks present for staff and prisoners. The regime assessment must be reviewed regularly and as a minimum monthly at the monthly review.
Unlock Levels
An assessment of each prisoner will be carried out on arrival to determine the staffing levels required to safely unlock him. Unlock levels prior to transfer will have been discussed at the pre-admission case conference. This assessment of risk will be a dynamic assessment, carried out regularly as circumstances dictate. Staff should not wait for a formal review to change the staffing levels as risks can fluctuate quickly and significantly.
Any changes to unlock levels, regime level or IEP level must be documented on CNOMIS and staff briefed on any changes.
IEP reviews
Appeal Process

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Adjudications
Prisoners managed under Prison Rule 46 are subject to the same disciplinary procedures as those prisoners held within mainstream location. However, given the close working and complex presentations of CSC prisoners the threshold for placing a prisoner on report may, in practice, be higher than that within a mainstream location, where IEP is deemed to be more appropriate. Further, given the often persistent refractory nature of some prisoners, placing a prisoner on report for each infringement of prison discipline may be a considerably timely process and not serve much benefit to his overall management. Individual discretion should be applied, seeking advice from local managers as appropriate. The key point to note is that all behaviours should be recorded to inform risk management and reporting, irrespective of whether formal processes are employed in response to poor and/or inappropriate behaviour. Where behaviours indicate behaviour paralleling the type of behaviours seen during his index offence or the incident that led to a referral to the CSC, this should be recorded and discussed by the local CSC team. Where the behaviour is deemed to have escalated to a criminal level, the matter should be referred to the Police Liaison/Intelligence Officer for consideration and advice. Depending on the circumstances it may be advisable to log all incidences of the behaviour which may be used to support a decision whether to pursue either a charge for an offence against prison discipline or for charges by the CPS.

Mental Health Transfers
Some CSC prisoners may, either during assessment or at a subsequent point following selection, be diagnosed with a mental illness or disorder of personality requiring treatment within tertiary mental health services such as a high secure hospital. The local consultant forensic psychiatrist will make any necessary referrals to the appropriate hospital, liaising with the local multi-disciplinary team for any supporting information and to inform them of a referral being completed. Prisoners transferring to a high secure hospital will, wherever possible, be accompanied by a member of the CSC mental health team during the escort who will be present on the prison van throughout the journey. Where the risk assessment concludes that there is insufficient space on the transport to enable the nurse to be on the vehicle, arrangements will be made for the MHT member to follow behind in a car. On arrival at hospital a verbal handover can be given to the receiving team.
Prior to the transfer taking place a discharge summary will be provided for the receiving clinical team. Transfers will take place in accordance with Department of Health Guidelines for S47/S48 Transfers (Policy can be found on the Department of Health website or from the CSC/MCBS Support manager via the CSC functional mailbox).
Clinicians from tertiary mental health services should also be contacted to provide an opinion where it is not clear whether a prisoner requires a referral to tertiary services. Enhanced engagement with clinical staff at the three high secure hospitals should serve to provide a more efficient referral and decision making process.

Returns from secure mental health services

Prisoners who transfer from the CSC system to secure mental health services and are subsequently identified to be returned to custody will be subject to a Section 117 (Mental Health Act (MHA)) meeting to discuss and agree ongoing care needs. Members of the

central Case Management Group (CMG) will attend the S117 meeting to discuss the case

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and to consider a suitable location and timeframe for the prisoners’ return. Minutes of the S117 meeting will be provided to the receiving clinical team when a location is identified. Where a location is identified prior to the S117 meeting CMG will invite a member of the proposed receiving clinical team to attend the S117 meeting. CMG will consider whether a return to CSC conditions is appropriate given the reason for the return to custody, his current risks and presentation, and the length of time since his transfer to hospital, and will provide a recommendation for the next CSCMC to discuss and agree. Where a transfer is scheduled to take place prior to a CSCMC taking place the Population Strategy and Specialist Units Manager will make the necessary arrangements to allocate the prisoner to a suitable location which may include a return to a CSC unit. If a prisoner arrives back in custody without prior notification from the mental health hospital and it is known that he transferred to hospital from the CSC system the establishment must notify the Population Strategy and Specialist Units Manager who will advise on an appropriate interim management plan pending consideration of a suitable location. If the Population Strategy and Specialist Units Manager become aware of a former CSC prisoner who has returned to custody they will contact the receiving establishment to inform them and to advise on a suitable interim management plan pending consideration of the risks.

A prisoner returning to prison from secure mental health services due to increased violence, a serious incident, non engagement with treatment or after a short period of time in hospital will be returned directly to the CSC and placed under Prison Rule 46. This is the case irrespective of whether the prisoner is returning on the sentence he was previously serving at the point of transfer or whether he is returning having completed a previous sentence and is now serving a new sentence. The CSC system manages risk of harm and the prisoner’s legal status is not a relevant factor in the decision regarding the management of risk. On his return he will be placed under the authority of Prison Rule 46 due to the fact that prisoners are not de-selected from Prison Rule 46 at the point of transfer to hospital but cease to be subject to Prison Rule 46 by virtue of the issuing of the mental health warrant and transfer to NHS services. Once the mental health warrant is rescinded and he is returned to NOMS custody, his placement under Prison rule 46 will resume.

If a prisoner is returned to custody following engagement in treatment or after a lengthy period of time in hospital he may be returned to the CSC. Depending on the circumstances of the return to custody a recommendation may be made for an assessment of risks to be carried out in order to inform whether continued management within a CSC unit is necessary or whether he can be managed outside of the CSC system, where it is not clear whether his circumstances have changed in terms of risk management considerations. There is no requirement for a formal referral to be made as the previous CSC and recent hospital information and S117 minutes will provide the necessary documentation on which a decision can be based. If a risk assessment is considered necessary, CMG will recommend to the CSCMC whether a full or compressed assessment is required, with specified timeframes, as per the CSC Referral Manual (PSI 42/2012). The receiving multi-disciplinary team will review documentation from the sending mental health service as part of the assessment period. A Local Assessment Case Conference will be held and the prisoner will be able to submit representations as set out in the CSC Referral Manual. The prisoner will continue to be reviewed by the CSCMC with regards placement under Rule 46 at monthly intervals.

Category A prisoners returning to the CSC will be collected by HM Prison Service in accordance with the Department of Health Guidelines for S47/S48 Transfers.

Prisoners returning from medium or high secure hospital must have their security category reviewed within 4 days of receipt of all the available information.

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Any Category A prisoner returning to prison custody from Special Hospital must be reported into the HSE Category A Team at Headquarters.
Returns from prison based DSPD service
Prisoners who are de-selected from the CSC to facilitate assessment and/or treatment within a prison based DSPD service will be referred back to the CSCMC for review and a decision on the most suitable location for them when a return is considered necessary, as detailed in the CSC Referral Manual. CMG will attend a clinical case review along similar lines to a Section 117 meeting to discuss the circumstances that have lead to consideration for removal from the DSPD service. A recommendation will be made by CMG for the CSCMC with regards future management. The DSPD service will ensure up-dated risk assessments and reports are provided as part of the decision making process to remove a prisoner from the DSPD programme, save in exceptional circumstances where a prisoner is involved in a serious incident requiring an expedited removal from the DSPD service. In such instances the prisoner should be located in a segregation unit and the case referred to CMG for consideration.
CSC Personality Disorder (PD) Strategy
Prisoners held within the CSC system will often present with complex personalities requiring formal assessment, specialist support and management. A highly skilled multidisciplinary clinical and intervention team can carry out assessments to determine the presence or otherwise of any personality disorders, deliver 1:1 and group work to help offenders understand their PD and work towards reducing treatment blocking behaviours in order to enable progression within and from the CSC system. Referrals will be made to specialist tertiary PD services where necessary, according to clinical need. Some prisoners may have been identified as having treatment needs that are best suited within a secure hospital or within NHS or HMPS personality disorder services, but are considered too disruptive or dangerous to be admitted at that time. Consequently the CSC will work to manage the individual until such point as his transfer can be facilitated. The referring clinical team, supported by CMG where required, will liaise with the relevant agency or department to ensure that the case is re-considered at an appropriate time. Joined up working between agencies is essential to ensure the most appropriate care and management options for prisoners. In some instances some prisoners may not be ideally suited to any one particular service and may not be accepted under each of the relevant criteria for selection/admission. Where such cases exist a joint management arrangement is in place with the CSC system, NHS secure services and prison based DSPD services to review and agree on a ‘best fit’ management plan for individual cases which will then be referred back to the relevant agency to confirm selection/admission. This approach seeks to reduce delays in administrative processes and ensure prisoners are managed in the most suitable way, which may include multiple admissions with coordinated oversight to achieve the right outcome.
Details of the pathway for the identification and management of prisoners with personality disorders is contained in Annex 5.

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De-Selection
A vital element of the whole process is that the exit arrangements from the CSC system are evidenced, documented, appropriate, and safely managed, based on thorough assessments of risk. Following a referral to the CSC, the prisoners’ needs will have been identified and a structured care and management plan will have been in place to work on the risks and behaviours that led to the referral. A prisoner will progress from the CSC system if the multidisciplinary team assesses that, through the work that has been completed, the highly supervised and controlled environment and provision of multi-disciplinary support that the CSC system provides is no longer necessary. The necessity for progression may be due to a need to focus on offence based interventions, sentence planning targets, or the impending release date from custody, although an imminent release from custody will not automatically result in de-selection from the CSC where the risk to others is deemed too high to enable de-selection. A prisoner will be progressed and de-selected from the CSC system where the risk he presents to others can be assessed, as far as is possible, to have reduced to a point where he can be safely managed within a mainstream prison or more suitable environment.
Process
The local multi-disciplinary team will raise the prospect of the de-selection of a prisoner with the Population Strategy and Specialist Units Manager and the case will be discussed at the CSC Management Committee meeting, providing a general overview of the reasons for consideration. If the Committee considers the case is appropriate for consideration formal de-selection reports will be requested (as detailed below). The prisoner must be informed that deselection reports have been commissioned and that he may submit representations directly or via his legal representative. Reports must be disclosed to the prisoner once completed, sanitised where necessary. A period of 14 days is permitted for the submission of representations.
When the reports have been completed the Population Strategy and Specialist Units Manager will convene a de-selection case conference, similar to the Local Assessment Case Conference, at which the multi-disciplinary team will meet to discuss the contents of the reports which must detail;
the progression made and evidence of a reduction in risk enabling de-selection,
suggested location for the prisoner,
the suitability, appropriateness and priority of courses, training and programmes,
specific assessments for any identified programmes to be completed as part of the deselection consideration process to inform the decision,
any areas of concern regarding the de-selection, difficulties he may encounter and any measures required to be in place to support his reintegration or transfer,
remaining risks and recommendations for management, setting out why the risks can be managed outside of the CSC,
the implementation of the de-selection plan,
Any other relevant details affecting the de-selection process, including a recommendation on whether de-selection is suitable.

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The reports, case conference minutes, and recommendation will be forwarded to the CSCMC for a decision. If de-selected to a high security prison, the prisoner will be managed and supported by CMG for a period of six months, monitored by the local MCBS Panel. At the six month point he will be removed from central management, if no concerns have arisen, and he may continue to be monitored local under the MCBS.

Reports required for the de-selection process are as follows:

DS 1

-

Referral for de-selection

DS 2

-

Wing management

DS 3

-

Psychology

DS 4

-

Mental Health/Psychiatric

DS 5

-

Security and Intelligence

DS 6

-

Offender supervisor

DS-Add

-

Additional reports as necessary

De-selection report templates can be found in Annex 10.

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Staff Well-being: Selection, Training, IPD and Tour of Duty
At the end of 2005, the then Director of High Security appointed a Well Being Advisor to look at how staff working in high risk jobs could be better supported. In September 2006, the High Security Well-Being Strategy was approved and published and should be read in conjunction with this policy document. Copies can be obtained from local CSC leads and the High Security Well-being Strategy lead.
The strategy considers a variety of ways that the well-being of staff can be enhanced for example:
1. Through good selection procedures (ensuring the right staff are in the right jobs) The Discrete Units Staff Selection Manual was produced in September 2010;
2. Through high quality, targeted training (ensuring staff feel competent and skilled to do the jobs they’ve been asked to do) – Working with Challenging Behaviour Training consists of two modules, each module concentrates on a specific aspect of working in discrete units.
3. Through robust on-the-job support (to promote professional development in the job ) – See below with regard to IPD
4. Through appropriate post-event recovery protocols (aiming to provide staff with the personalised support they need in the aftermath of an incident /Post-Event Recovery)
Each of these “domains” is based on research evidence for what works in taking care of people who work in highly demanding roles.

Staff Selection
All staff working within discrete units, such as CSC units and segregation units, must meet the published staff selection criteria to work within the unit. The HSE has a published Staff Selection policy which should be used by all High Security establishments to develop their local policy for the selection of staff. Following selection the member of staff will be provided with written notification of their selection. One of the requirements for being selected to work on a CSC unit is an agreement to attend an initial IPD (Individual Professional Development) session after commencing the role, as well as regular IPD sessions and the annual health check as described in the ‘Tour of Duty’ section below. The provision of IPD (see below) is a mandatory requirement to support staff working within CSC units as a preventative strategy rather than reacting once the staff member is struggling or suffering psychological harm.

Staff Training
Staff selected to work in CSC units will be required to attend a nationally approved training course entitled, Working with Challenging Behaviour (WCB). The course is delivered in a modular format and staff must have completed one module within two months of taking up post, and have completed the second module within 12 months of taking up post. Staff can be detailed to attend the first module following selection to work in a CSC unit and before taking up post. The responsibility for booking staff onto courses lies with local management and names should be forwarded to the CSC functional mailbox to book places. Priority will be

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given to the establishments with a CSC unit to ensure compliance with audit criteria. CMG will regularly review the provision of training to ensure sufficient training places are available.
The national WCB course is delivered in 2 modules as follows:
Module 1 - Developing Personal Skills for Dealing with Challenging Behaviour – 5 days
Module 2 - Promoting Individual and Team Resilience – 5 days
Staff may complete either module first although it is recommended that module 1 be completed first.
There should be an on-going and appropriate local training programme to ensure staff are able to maintain the skills learned during national training, and feel confident and competent in carrying out their duties. Such training may consist of C&R training (mandatory including refresher training annually), including handcuffing, searching whilst under restraint, planned removals, de-escalation techniques, use of high control cells, anti-conditioning, professional standards, ACCT, VRS/ABS, ‘Know-your-prisoner’ training, understanding personality disorder and mental illness, the CSC system itself, and IEP etc. The better equipped staff are the more able they will be to work effectively within a CSC unit and may also be less likely to suffer stress.
Local records must be maintained to demonstrate that training has been undertaken.

Individual Professional Development (IPD)
The third domain of the Well Being Strategy (Practice) focuses on the “on the job” support of staff and one part of this is Individual Professional Development.
IPD has been designed to provide staff working in high risk jobs with an opportunity to discuss their work and its impact in a safe, non-judgmental and supportive environment. High risk jobs are those that have the potential to place huge emotional and psychological demands on staff because of the nature of the work. They include working in our segregation, Protected Witness, DSPD and Detainee Units, in Close Supervision Centre’s, MCBS work, with prisoners at risk of self harm or suicide, with families of those who have died in our custody and on therapeutic treatment programmes. Sometimes, despite all the training, working in a great team or extensive experience, challenges can arise that would benefit from working through with an experienced and trained colleague not involved in the situation. Take for example, the officer who’s been targeted by a prisoner but doesn’t want colleagues to know the effect it’s having; or the officer who has now encountered a third suicide attempt and feels responsible; or the officer who feels under pressure to sign for work that hasn’t been properly completed, because of pressure to meet targets. These are very real workplace scenarios that can place a tremendous burden, not just on the individual, but also on the team, because of the effect it has on the individual.
What makes IPD different from Line Management or the Care Team?
Line managers clearly have a responsibility for the professional development of their staff, and to help resolve difficult situations. But sometimes, for a variety of reasons, staff prefer to not disclose concerns about work issues to someone they also know will be reporting on them at the end of year. Much easier to tell a manager about a difficult situation and how it was resolved! Care teams are a resource to staff who may want to discuss personal issues or get emotional support through difficult times.

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IPD is expressly designed to be preventative through the provision of operational support – that is, to try and stop potentially demanding situations becoming overwhelming. It will be primarily concerned with professional skills rather than emotional support, although developing professional skills has been proved to have a beneficial effect on emotional well-being. IPD facilitators are trained to provide this specialist back-up by working alongside staff, enabling them to get a bit of a distance from the issues that may be vexing them and think through potential solutions. They provide an opportunity for staff to work out how to deal with and manage tricky situations that might otherwise escalate into unmanageable ones. They also provide a chance for colleagues to think about their work more objectively and develop professional skills based on their experience. Each IPD Facilitator will be responsible for providing individual sessions, of about an hour, to six colleagues.
IPD sessions are confidential. Facilitators have no obligation to record or report back to anyone nor is anyone expecting them to do so. The only exceptions to this are, if the facilitator considered the member of staff was a risk to their self or to another person or to prison security, then they are duty bound to pass this information on. An IPD awareness session, either one to one or group, will be mandatory for all staff working in discrete units. Further sessions will be optional and staff will normally expect to attend a session about every 6 to 8 weeks.
Each Establishment should have an IPD Lead who should ideally be a Senior Manager.
IPD leads will need to support the work of the MCBS at a local level. Challenging Behaviour Managers (MCB Manager), along with the staff working with difficult and challenging prisoners, must be aware of, and understand the role of IPD as a tool to support all members of staff. MCB Manager’s need to consider the pressures placed on staff both within the MCB Panel, and on those working directly with prisoners, when agreeing management plans for prisoners. The MCB Manager can discuss any concerns regarding the location and management of prisoners with Case Management Group to ensure the staff members, at a particular site, are not unduly burdened.
Staff Briefings
Staff will be collectively briefed at the beginning of each shift. Civilian staff must be briefed regularly on developments and should be encouraged to attend daily operational briefings. Local management must agree the most appropriate way of ensuring multi-disciplinary attendance. The briefings will cover prisoner behaviour, attitude, security and procedural matters, as well as general unit developments etc. Staff will also be de-briefed at the end of their shift by the person who is I/C the unit. Debriefings should cover changes in prisoner behaviour, risk assessments, prisoner movements, regime issues, incidents and any matters requiring follow up action during the next shift period.
Tour of Duty
All establishments operate a local staff rotation policy in order to meet the operational, security and staffing needs of their establishment. The local policy must reflect the need to select and train suitable members of staff to work in the CSC unit, segregation unit, and with prisoners held in designated cells. However, exceptionally, where insufficient numbers of staff express an interest in working within the CSC system local management will need to ensure that the correct operational staffing levels are maintained by identifying staff that are suitably skilled, resilient, and able to cope with working within a CSC unit. Additional interviews and support should be provided to ensure individual well-being.

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The HSE Well-Being strategy proposes that if the right staff are identified, selected, trained and supported, they will be able to work as part of a discrete unit without suffering detriment to their own well-being. The Individual Professional Development (IPD) model is a critical element to the well-being of staff and if fully implemented locally can provide the clear benefits of happy, healthy, committed staff that are not absent on sick leave due to stress.
Ideally staff who are selected to work on the unit will be able to commence the WCB training course prior to, or soon after starting work. With the combination of the well-being strategy and an extensive training course, the upper time limit for staff working within a CSC unit is set at four years. However, this is dependent on the following:
1. The staff selection policy is adhered to;
2. Each staff member must attend the national Working with Challenging Behaviour training course – completed within 12 months of taking up post;
3. Staff support, in the form of IPD, to be available and staff enabled to attend regular sessions (all staff working within CSC units must attend an initial IPD session as part of the selection criteria);
4. Staff agree to attending an annual ‘Health Check’ as part of the selection criteria, with their line manager and a member of the Psychology team to assess their well-being, talk through issues and/or concerns, and to ascertain whether the staff member wishes/is able to continue working on the unit. The meeting also gives the line manager an opportunity to offer support and guidance to the member of staff. The member of staff will be provided with a letter annually confirming their suitability for continued placement within the CSC unit;
5. Mandatory monthly group supervision sessions for staff in the main CSC sites, which will act as a de-briefing sessions for those staff that are on duty. Staff may exchange shifts with colleagues to enable them to attend, in agreement with local management. Managers must ensure each individual staff member attends at least four times each year.
The above requirements also apply to managers working within discrete units.

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Programmes and courses
Mainstream Offending Behaviour Programmes (OBP’s) will not be offered on CSC units for a number of reasons; firstly, the number of prisoners held within the system does not make it viable to offer the range of courses that are available within normal location. Secondly, the group size required to run the programme is unlikely to be maintained to enable delivery in accordance with programme requirements, and finally, given the risks associated with CSC prisoners it is often the case that offending behaviour programmes available within mainstream location are considered to be unsuitable for this high risk group of prisoners, and that the treatment dose may be too low, particularly for those prisoners who have previously engaged with OBP’s but have gone on to commit further acts of violence. However, it is recognised that, for some long term residents of the CSC system, their ability to address their offending behaviour is severely restricted by virtue of their location within the CSC system. It should be noted that many prisoners within the CSC would not be considered suitable for mainstream programmes on the basis of current risk towards others, thus the actual impact of not accessing mainstream OBP’s is likely to be low. Assessments for courses in preparation for de-selection can be carried out whilst located on the CSC, and preparatory 1:1 work can be started. 1:1 work will seek to achieve a reduction in risk to enable progression whereby prisoners can be de-selected and access mainstream programmes.
To address the need for programme work a specific programme, the Violence Reduction Programme (VRP) which is aimed at high risk and violent offenders, is in place and delivered at the CSC unit at HMP Whitemoor. The VRP can be delivered on a 1:1 basis for prisoners located at the remaining CSC sites where the prisoner is unlikely to be able to access the group based programme at Whitemoor. 1:1 VRP support work can be carried out for prisoners who are temporarily transferred from the programme at Whitemoor.

1:1 work and the Multi-Disciplinary Team (MDT)

The multi-disciplinary team format provides the bedrock upon which prisoners are assessed, managed and supported within the CSC system. Decisions made in a multidisciplinary way enable full consideration of the individual and their circumstances and provides support for the wider staff team when making difficult decisions that may have consequences for the prisoner and staff involved. Staff undertaking work with CSC prisoners will operate on the principle of Open Reporting and sessions will be carried out face to face with a ratio that is risk assessed locally. Open Reporting means that prisoners have access to reports written about them and those reports will be shared with the CSC multi-disciplinary team. Medical matters that are unconnected to risk management may be held ‘Medical in Confidence’. All other information that is relevant to care and management planning and risk management considerations will be shared with the CSC teams. Interviews and sessions will take place face-to-face without the facility to tape record sessions. In certain circumstances sessions will be risk assessed to take place in closed or semi-closed conditions to enable interviews to take place with the appropriate person. Tape recording is not employed within the CSC as such arrangements can inhibit the development of a therapeutic relationship, which needs to be built upon trust, and hinder the timeliness of sessions and the completion of notes and/or reports. The only exception to this is where a PCL-R assessment is being completed whereby prisoners are offered the opportunity for sessions to be video or tape recorded. Tapes are stored confidentially by psychology and are wiped on conclusion of the assessment. Where a prisoner declines to engage on a face-to-face basis, despite efforts made by the MDT, written communication can be provided for the prisoner which sets out what the session is planned to cover and may include a set of questions requiring a response. The

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prisoner can consider the information and either choose to attend, or submit responses in writing. It is not recommended that this process continues for an extended period as it is not conducive to a therapeutic working relationship and as such will be reviewed locally with regards the amount of time that this will be facilitated. A decision may be made to withdraw MDT sessions where the prisoner persistently refuses to engage. Regular offers to reengage will be made.

The following pages detail some of the roles that the key members of the MDT carry out, as guidance to the wider MDT:

CSC Mental health team 1. Psychiatric assessment and support for prisoners including referrals to tertiary services, such as medium or high secure hospitals. 2. Carry out nursing assessments. 3. Contribute to ACCT care planning and interventions. 4. Developing and reviewing clinical care plans and CPA documents where necessary. 5. Contributing to and formulating multi-disciplinary Care and Management Plans. 6. Undertaking of one-to-one work identified in Care and Management Plans. 7. Providing crisis intervention/support, focussing on harm reduction. 8. Providing advice and support to management and staff in their dealings with particular prisoners and contributing to decision making. 9. Providing general advice and training about mental health issues, including delivery of the regime or its effect on the mental well-being of the prisoners. 10. Attendance at other case conferences and Section 117 (MHA) meetings as needed. 11. Attendance at local CSC management meetings (and national meetings when required). 12. Contributing to the development of local CSC policies. 13. Provide sessions/presentations for relevant external visitors. 14. Co-facilitate supervision for discipline staff.

Forensic Psychology

1. Undertake structured risk assessments such as HCR-20, VRS, VRS-SO, IPDE, PCLr.

2. Preparation of reports, for example Sentence Plan Review’s, Cat A, parole, and CSC Assessment and De-selection reports.

3. Contribute to Care and Management Plans

4. Undertake one-to-one work identified in Care and Management Plans

5. Provide advice and support to management and staff in their dealings with particular prisoners and contribute to decision making.

6. Input into multi-disciplinary working, for example aiding wing risk assessments and prisoner level reviews.

7. Attendance at other case conferences as needed.

8. Contribute to ACCT care planning and interventions.

9. Attendance at local CSC management meetings (and national meetings when required).

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10. Contribute to the development of local CSC policies. 11. Co-facilitate monthly staff group supervision 12. Identify staff training needs and deliver monthly training to staff on the CSC.

Seconded Probation Officer/Offender supervisor
1. Contribute to Care and Management Plans ensuring sentence plan targets are aligned with CSC targets.
2. Complete OASys reviews as required.
3. Work with prisoners to meet their individual resettlement needs.
4. Contribute to Parole, Lifer and Cat A reports, and CSC assessment and de-selection reports.
5. Undertaking work required under MAPPA in relation to determinate sentenced CSC prisoners.
6. Complete additional reports as required.
7. Undertaking one-to-one work identified in Care and Management Plans
8. Attendance at other case conferences as needed.
9. Attendance at local CSC management meetings (and national meetings when required).
10. Contributing to the development of local policy with regard to the CSC.
11. Manage Offender Management phase 2 and 3 offenders according to national guidelines.

Chaplaincy 1. Provide advice, support and teachings to prisoners specific to their religious and spiritual beliefs. 2. Contribute to Care and Management Plans. 3. Complete reports as required. 4. Undertake one-to-one work identified in Care and Management Plans. 5. Attendance at other case conferences as needed. 6. Attendance at the local CSC management meetings. 7. Contributing to the development of local MCBS and CSC policies.
Education 1. Provide advice and educational work for prisoners based on individual risk assessments and need as identified in Care and Management Plans. 2. Provide managers with advice regarding the appropriate level and delivery of education. 3. Contribute to Care and Management Plans and reviews. 4. Attendance at or written contribution to other case conferences as needed. 5. Attendance at or written contribution to the Local CSC management meetings. 6. Complete reports as required.

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Security
1. Provide information to the CSC management team in order to enable risks to be managed.
2. Offer advice and support for staff working within the CSC unit regarding the reporting of and management of incidents and information.
3. Provide technical assistance following incidents,
4. Provide CSC Assessment and de-selection reports as required.
5. Attend case reviews as required.
Discipline
Discipline staff have a key role as part of the MDT, providing support, advice, control, prosocial modeling, meaningful interactions as part of their day-to-day work. The range of tasks required of discipline staff is extensive and can be a highly challenging environment in which to work. Staff will be involved in supporting prisoners at risk of self harm and suicide, responding to acts of violence and threats, applying procedures in a fair and consistent way, whilst working to engage prisoners in constructive relationships. Discipline staff are required to complete weekly and monthly reports, behaviour monitoring, contribute to ACCT, Care and Management Plan, high control and special accommodation reviews, preadmission case conferences and other reviews as necessary. Their views and experiences of the prisoner is vital in informing the decision making process.

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Managing Challenging Behaviour Strategy and Central Case Management
‘The High Security’ Estate’s Managing Challenging Behaviour Strategy (MCBS) provides a framework for the care and case management of prisoners whose behaviour is dangerous, disruptive, and/or particularly challenging to manage whilst in custody, and those considered to present a high risk of harm to others, to try to break the cycle and prevent further harm’.
The Managing Challenging Behaviour Strategy (MCBS) is a structured case management model for the management of difficult and challenging prisoners. By operating the MCBS across the high security estate some prisoners may be diverted into more appropriate treatment or management options, such as DSPD or secure hospitals, specific assessments or interventions, and may consequently address risks and difficult behaviour before they escalate to the CSC system. However, it is likely that a number of referrals to the CSC will result from Local Managing Challenging Behaviour (MCB) Panels when attempts to manage the behaviours are exhausted with no clear reduction in risk. MCBS also provides a step down management process for prisoners who are de-selected from the CSC system, providing additional support and monitoring as they reintegrate into their new location. For prisoners who have transferred to high secure hospital the CSC system, via Case Management Group (CMG), will maintain contact and attendance at CPA meetings for as long as is mutually considered appropriate by the hospital and CMG. Where a former CSC prisoner is being considered for a return to prison CMG will attend the Section 117 (MHA) meeting to establish current risk and presentation and to inform on the timeframe and location for return to prison custody.
All referrals to the CSC should be submitted via the local MCB Manager. She/he will ensure that the referral is completed correctly and with sufficient, appropriate information and will forward the paperwork to the central Case Management Group (CMG). CMG, a multi-disciplinary team who manage the MCBS across the HSE, will review the referral and provide recommendations to the CSC Management Committee regarding his management and possible selection into the CSC for assessment.
(More details regarding the selection and de-selection processes are contained earlier in this document and in the CSC Referral Manual (PSI 42/2012). A copy of the MCBS Policy is available from the MCBS lead within each high security prison or from the CSC/MCBS Support Manager via the CSC functional mailbox). The MCBS policy is published as Section three of the three part High Security Estate Population Strategy.

Applicability of National and Local Policies

National and Local policies apply except where CSC policies override the requirements as set out in the main body of the Operating Manual.

Security

All CSC units, and designated cells, will comply with the requirements of the National Security Framework.

All CSC units and designated cells will operate within their local security strategy and instructions.

All Close Supervision Centres may hold High Risk Category A prisoners.

In general, each prisoner in the CSC should be subject to the appropriate security restrictions set out in the NSF and LSS for prisoners of his category. For example, only high risk Category A prisoners in these Centres will be subject to high risk procedures.

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In certain areas, the CSC system requires common procedures for all prisoners, regardless of security category, such as hand cuffing, unlocking arrangements, recording and monitoring of information, sharing information with prisoners. These procedures are necessary to maintain order and control and should be considered as safe systems of work in each of the units.
Any temporary non-compliance or alternative procedure will form part of the establishment LSS and should be agreed with the Deputy Director of Custody, High Security Estate

Population Management
Movement of CSC prisoners will be managed by the Population Strategy and Specialist Units Manager and the CSC Management Committee. Wherever possible moves will be planned in advance and agreed at the CSCMC to take into account operational, legal, progressive, or discipline moves. Where it is necessary to transfer a prisoner urgently or for operational reasons the holding establishment must contact the Population Strategy and Specialist Units Manager or if unavailable, the Deputy Director of Custody, High Security Estate. Prisoners subject to Prison Rule 46 must not be moved without the authority of either the Population Strategy and Specialist Units Manager, the chair of the CSCMC or the DDC, save in the event of an urgent operational or the need to provide medical treatment.

Safer Custody – management of Prisoners at Risk of Suicide and Self-Harm

Prisoners held within the CSC system, either within a CSC unit or within a Designated Rule 46 cell, identified as being at risk of suicide or self-harm must be managed under the ACCT process. The following chapters of PSI 64/2011 refer to key aspects of prisoners’ management; the PSI should be read in conjunction with this section;
Chapter 5 – ACCT processes and support.
Chapter 6 – Constant Supervision
Chapter 8 – Enhanced case management
Constant Supervision
Constant supervision is where a prisoner is under constant supervision by a member of staff who provides appropriate levels of support in order to reduce the risk of suicide or potentially fatal self-harm. Constant supervision should be used for acute periods of risk and should be used for the shortest time possible. The process of being constantly supervised by a member of staff can be de-humanising which may increase risk.
The nature of the CSC population will often result in extended use of constant supervision due to persistent statements of intent to self-harm or to die, or due to persistent or escalating acts of self-harm or attempts to take his own life. The impact of extended periods of constant supervision on both the prisoner and staff, and the nature of the risks the individual prisoner presents, must be taken into consideration when carrying out ACCT reviews and staffing constant supervision duties.
The Need for Constant Supervision
Constant supervision is a response to an immediate suicidal crisis and therefore is intended to be in place for the shortest time possible. An acute suicidal crisis is often temporary.

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The following reasons for the use of constant supervision are intended as guidance only as each case should be considered individually by the Case Management Review Team and not in isolation by any one person:
• Serious attempts and/or compelling preparations for suicide e.g. making a ligature, hoarding medication and/or writing a suicide note
• Credible expression of a wish to die
• A recent and credible attempt to take own life e.g. both in prison and recently prior to imprisonment

Constant supervision may be used on an interchangeable basis. For example, a prisoner could be placed on constant supervision overnight and on less frequent observation during the day while involved in activities.

Constant supervision can only be authorised by the Daily Operational Manager or the Senior Clinical Manager after consultation with each other and the decision documented in the ACCT Plan.

During periods where the Duty Operational Manager and/or the Senior Clinical Manager are not in the prison (i.e. night state), authority for constant supervision can be given by the Night Operational Manager or Senior Nurse following consultation with each other. The Daily Operational Manager must be informed at the earliest opportunity.

Where the prisoner is already under the care of the Mental Health team, the lead clinical consultant must be notified at the earliest opportunity in order that they can engage therapeutically and advise of any clinical support needed.

ACCT Case Reviews
One aim of the case review is to reduce the level of supervision required progressively, substituting alternative supports, as the prisoner’s condition improves. When a decision is taken to place a prisoner on constant supervision, a case management review must be undertaken as soon as practicable, unless the decision was taken as part of a case management review.

For the first 72 hours, a multi-disciplinary case management review must be held daily. The review must be chaired by a competent manager who has the appropriate authority to make decisions. The Daily Operational Manager or Residential Manager and a member of the nursing staff (or senior clinical manager) must be in attendance, as well as any other relevant staff. Given the acute crisis that the prisoner will be experiencing continuity of membership of the review team will be an important consideration in order to reduce the prisoner’s distress.

If a prisoner remains on constant supervision for longer than 72 hours, the case management review team will decide upon the regularity of future reviews and record this in the ACCT document.

If a prisoner’s behaviour is particularly challenging, or is subject to constant supervision for 8 days or more, they will be managed with the additional input of an Enhanced Case Review

Emergency Access Plan
The Case Review team will provide authority, in the form of an Emergency Access Plan, for staff to intervene when a prisoner who is under constant supervision engages in potentially fatal self-harm or attempts suicide. The plan must detail actions for the supervising member

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of staff to take, including how to raise the alarm, entering the cell during the day and night, use of force to prevent self-harm and the provision of Personal Protection Equipment (PPE). Emergency Access Plans must be tailored to the individual and not provided from stock.
Interaction
The member of staff conducting supervision must actively engage with the prisoner, encouraging them to talk and participate in activities, where appropriate. Talking, playing games, accompanying the prisoner outside to the exercise yard (subject to risk assessment) should all be considered.
Access to Regime Activities
Constant Supervision does not mean that the prisoner remains locked up on an isolated regime prevented from taking part in activities or engaging with others where the risk assessment permits such engagement. The local review team must consider and document what activities the prisoner will be permitted or restricted from taking part in and record the decisions in the ACCT document.
In-cell CCTV for Prisoners at Risk of Suicide and/or Self-harm
Governors may authorise the use of overt CCTV for the constant supervision of prisoners where it is deemed necessary for:
1. the health and safety of the prisoner or any other person
2. the prevention, detection, investigation or prosecution of crime or 3. securing or maintaining prison security or good order and discipline in the prison, And,
It is proportionate to what is sought to be achieved. (Further information is detailed in Chapter 6 of PSI 64/2011.)
Chapter 8 Enhanced Case Management
When prisoners display any of the types of behaviour listed below, they should be managed under the enhanced case review process:
• Prolific, sustained and/or extreme incidents of self-harming behaviour (usually requiring medical intervention)
• Prolonged active suicidal intent - from time to time being managed on constant supervision
• Extreme and persistent demonstration or assessment of risk to staff and/or other prisoners
• Continual offences against discipline
• Managed on enhanced levels of unlock. And/or
• Have been subject to constant supervision for 8 days or more
• Have been involved in multiple incidents of fire-setting
The nature of prisoners held under Prison Rule 46 is such that the use of enhanced case reviews is likely to be employed on a frequent basis.

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Attendance at an Enhanced Case Review
• A member of the CSC mental health team or doctor (where the prisoner is already being managed by secondary mental health services, and wherever possible it should be their mental health care co-ordinator)
• The CSC unit or segregation unit Manager in which the prisoner is located
• An appropriate psychologist. Psychologists, both clinical and forensic, often have valuable expertise in assessing and managing people with personality disorder and/or in behavioural management
• All specialists (e.g. education, Offender Manager/Supervisor) who work with the prisoner including, where involved, CARATS.
• Offender Supervisor/key worker
• An appropriate member of the chaplaincy team.
• A member of the Independent Monitoring Board (IMB).
General Points Prisoners will not have direct access to a Listener due to the risks they present to others. Prisoners may be permitted access to the Samaritan’s phone; however, abuse of the phone will result in access being removed. Where use of the Samaritan’s phone is denied the decision must be recorded in the ACCT document.
Public Protection Procedures
Staff working within the CSC system will ensure that procedures pertaining to public protection measures are strictly adhered to in accordance with the Public Protection Manual.
CSC prisoners may be subject to the MAPPA process. Staff at the establishment where the prisoner resides must attend MAPP Panels where appropriate. If a prisoner is likely to transfer to another high security prison for release both the current and the future establishment should be involved in the MAPPP meetings. Where a prisoner may move frequently the Population Strategy and Specialist Units Manager will attend MAPPP meetings to assist in continuity of information and decisions.

Parole

Where possible, CSC prisoners should not be moved when they are within their parole ‘window’, (6 months prior to their parole hearing). However, given the nature of the prisoners held within the CSC restricting moves is not always possible or appropriate for operational, legal, compassionate or progressive reasons. Where a move is being considered a check of the prisoners Parole date will be made prior to the move being carried out and the information provided to the CSCMC or Population Strategy and Specialist Units Manager when planning moves. Where a prisoner needs to move, the establishment that has requested or is collating reports maintains responsibility for completing and disclosing the parole dossier. All reports must be sent to the present establishment within the timeframe required. It is advisable for the holding establishment to liaise with the originating establishment to ensure reports will be completed on time.

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Section 3
Internal Management

An operational manager must visit the CSC unit daily. This check may be carried out by the designated operational manager for the CSC, or in his or her absence, the duty governor. The operational manager must sign to say they have visited and note any concerns or issues in the wing/unit observation book.
A record of visits by an operational manager, chaplain and doctor must be maintained.
The Deputy Director of Custody, High Security Estate will visit the CSC units as part of his/her scheduled visits rota.
Governing Governors should visit the CSC unit weekly and a note recorded of the visit. In the Governors’ absence the person in charge of the prison should carry out the visit.

Monitoring Data

Data will be collected on a monthly basis from all CSC sites and submitted to the CSC/MCBS Support Manager via the CSC functional mailbox. A quarterly report will be produced by the Population Strategy and Specialist Units Manager detailing key aspects of the CSC system. This information will be discussed at the CSCMC meeting and will be used to monitor and manage the CSC system and to inform policy and procedures.

Role of the Independent Monitoring Board (IMB)

The role of the IMB is to provide independent oversight and to monitor the welfare of staff and prisoners living and working within the CSC system respectively. Members have unrestricted access to all parts of the prison, including the CSC (PR 79(2)); however given the nature of the CSC population it is imperative that IMB members liaise with CSC unit staff prior to entering the unit. The Board member should report to the wing office in the first instance in order to receive any briefings or specific security information in order to safeguard their safety. A member of the IMB should visit the CSC unit as part of their rota visits to meet with the staff and to discuss any relevant issues affecting the unit. IMB members may wish to observe the serving of a meal during their visit, or a specific activity such as exercise or a classroom based activity. This provides an opportunity for IMB members to engage with CSC prisoners. The IMB member will seek to satisfy themselves that prisoners’ welfare is being adequately maintained. However, if prisoners have specific issues they wish to raise with the Board, an application should be submitted. The rota visit is not an opportunity for prisoners to circumvent the application process. Board members will raise prisoner and staff concerns with management, the Governor, Deputy Director of Custody, High Security Estate, Headquarters or Ministers, and the Secretary of State for Justice.

A member of the local IMB should routinely be invited to attend care are management planning meetings and monthly reviews.

In the event of a serious incident in a CSC, a Board member must be invited to observe the management of the incident.

In order to offer independent oversight nationally, the IMB branches across the High

Security Estate will attend the national CSC Management Committee on an agreed rota

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basis. IMB chairs will decide on the schedule of attendance and inform the CSC/MCBS Support Manager accordingly. Relevant documents will be made available to IMB members via secure e-mail prior to the meeting. The purpose of the IMB attendance at the CSCMC is to provide independent oversight of the process, ensure correct processes are adhered to, witness the basis of decisions made at the meeting, and to raise any concerns generally or specifically regarding policies, processes or individual prisoner management.

Audit and Compliance
All CSC units will comply with the national CSC performance standard, Standard 5 which will be audited locally in line with the agreed audit programme, and by Standards Audit Unit of Audit and Corporate Assurance Unit.
All high security establishments holding CSC prisoners must adhere to the requirements of the CSC Referral Manual (PSI), the CSC Operating Manual, the National Security Framework, and Local Security Instructions.

European Committee for the Prevention of Torture
The ECPT has unfettered access to all establishments within HM Prison Service. On arrival at an establishment they must be permitted access to CSC prisoners if they request to speak to them. Staff must ensure they are briefed on essential security matters and specific issues relating to the prisoners concerned in order to safeguard their safety.

Her Majesty’s Inspectorate of Prisons (HMIP)
HMIP inspect the CSC units as part of the full inspection of an establishment and will also carry out an inspection of the CSC system as a whole. Inspections will be unannounced. HMIP also conduct thematic reviews of particular aspects of the prison service which has, in the past, included a thematic review of the CSC system (last published – ‘Extreme Custody’, 2006). It is important that high security prisons are aware of the ‘Expectations document’ set out by HMIP with regards to the management of CSC prisoners and a copy displayed in staff areas. Copies of Inspection reports, including Thematic Inspections, are available on the HMIP or MOJ websites accessed directly or via the NOMS Intranet.

The Prisons and Probation Ombudsman (PPO)

The Prisons and Probation Ombudsman investigates complaints from prisoners, those on probation and those held in immigration removal centres. The Ombudsman also investigates all deaths that occur among prisoners, immigration detainees and the residents of probation hostels.

The Ombudsman, Nigel Newcomen CBE is appointed by the Secretary of State for Justice and is completely independent of the Prison Service, the National Probation Service and the Border and Immigration Agency.

He is supported by a team of deputies, assistants, investigators and administration staff.

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Advisory Panel
In 2012 an expert Advisory Panel was established to provide independent, qualified, and professional advice on the management of the high risk group of prisoners managed within the CSC system, and under the MCB strategy. The Panel meet 3 times per year and consider the strategic management of the CSC and MCBS systems. They can also review specific issues with particular cases where appropriate and advise the High Security Estate on service developments.

Links with Other Service Providers – High Secure Hospitals

The CSC system links with other service providers such as high and medium secure hospital services to ensure effective communication and joined up management of cases. Where a referral to high secure services is required the consultant forensic psychiatrist will be responsible for submitting a referral. A prisoner will not normally be moved whilst a referral is under consideration.
Where a case essentially falls outside of the hospital criteria and the needs of the prisoner are considered to be unsuitably managed within the CSC system the case can be taken to the joint meeting of the high secure hospitals and the CSC and DSPD services to discuss and agree the most suitable treatment and management plan for him.
Former CSC prisoners returning to prison service custody from high secure hospital services will be subject to a Section 117 hearing at which Case Management Group will plan to attend to ensure an up-to-date view of the prisoner is obtained and to inform the return process. HMPS are responsible for collecting category A prisoners from high secure hospital in accordance with S47/48 guidelines issued by the Department of Health.

Correspondence and Legal Challenge

Correspondence regarding individual CSC prisoners will be dealt with by the receiving establishment and must be completed within the required timescales. Where necessary correspondence may be forwarded to the Population Strategy and Specialist Units Manager where the correspondence relates to national policy matters or matters beyond the control of the individual establishment.
Where a prisoner judicially reviews or legally challenges matters associated with his placement within the CSC system, the Population Strategy and Specialist Units Manager will respond on behalf of HM Prison Service and will liaise directly with the Treasury Solicitor to ensure they are instructed as necessary and provided with all information and documentation regarding the case. The Population Strategy and Specialist Units Manager will keep the local establishment informed regarding progress of and developments with the case.

Policy Monitoring and Review Arrangements

The CSC Operating Manual will be reviewed every four years by the Population Strategy and Specialist Units Manager, agreed by the CSCMC and Deputy Director of Custody, High Security Estate, or following a Court Judgment that requires the policy to be amended. Both the Referral Manual and Operating Manuals will be forwarded to the Trade Union Side, Governing Governors, Deputy Governors, CSC leads, IMB chairs, Advisory Panel, HMIP, and legal advisors section for consultation, along with all relevant policy leads.

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Operational Policy Group must approve the CSC Referral Manual prior to publication as a Prison Service Instruction (PSI). The Operating Manual applies to the High Security Estate only and will be published to the high security estate only.
An Equality Impact Assessment (EIA) will be completed for the National CSC Policies to consider the impact of the policy on prisoner management which will be reviewed and monitored by the CSCMC, with any relevant actions taken forward accordingly. The EIA will accompany the Operating Manual and CSC Referral Manual (PSI 42/2012) A local impact assessment will also be completed by the three main CSC sites to ensure all diversity aspects have been considered regarding the management and delivery of the regime and processes within the CSC unit at that prison.

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Links to Other Policies

In order to safely and effectively manage complex prisoners, staff must be aware of their roles and responsibilities under relevant related policies and procedures, including:

PSO 1600 PSO 1700 PSO 1810 PSO 2205 PSO 4615 PSO 6200

Use of Force Segregation Units Maintaining order in prisons Offender Assessment and Sentence Management Prolific and Priority Offenders Transfer of Prisoners

PSI 09/2011 PSI 11/2011 PSI 30/2013 PSI 40/2011 PSI 47/2011 PSI 58/2011 PSI 64/2011 PSI 75/2011 PSI 02/2012 PS Standard 5 PS Standard 25 PS Standard 53 PS Standard 55 PS Standard 57 PS Standard 60 PS Standard 61

Cell Sharing Risk Assessment Incentives and Earned privileges Incentives and Earned Privileges Categorisation and Re-categorisation of adult male offenders Prison Discipline Procedures Physical Education for Prisoners Safer Custody Residential Services Specification Prisoner Complaints Close Supervision Centres IEP Violence Reduction Segregation unit Sentence Management Suicide and Self-harm Use of Force

CSC Referral Manual (PSI 42/2012) HSE Managing Challenging Behaviour Strategy 2012 CSC Equality Impact Assessment (2012) Service Specification for Conduct of Visits National Security Framework LSI’s for individual establishments HMIP ‘Expectations’ document HMIP Thematic Review – ‘Extreme Custody’ (2006) Manchester SIU Policy Document 2012 TASA – HMP Belmarsh Woodhill MCBS Unit Policy 2011 HSE Well-being Strategy (2006) Specialist Units Specification (MOJ Website) Category A Tactical Management Protocol

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Interventions Directory – (Intranet home Page>Communities>R>Rehabilitation Services Group>National Interventions Directory)
The NOMS Practitioners Guide to Working with Personality Disordered Offenders (January 2011)

Glossary

CSC ACCT MCBS CMG CSC MC HMIP MDT ACU HSE CMP VRP PSI PSO LSI

Close Supervision Centres Assessment, Care in Custody and Teamwork Managing Challenging Behaviour Strategy Case Management Group Close Supervision Centres Management Committee Her Majesty’s Inspectorate of Prisons (in this context - Multi-Disciplinary Team) Audit and Corporate Assurance High Security Estate Care and Management Plan Violence Reduction Programme Prison Service Instruction Prison Service Order Local Security Instruction

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 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.
GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,
Defendants.

Case No.: 4:09-cv-05796-CW CLASS ACTION
Judge: Honorable Claudia Wilken

EXPERT REPORT OF LOUISE C. HAWKLEY

p. 1
1) I am a Senior Research Scientist with NORC at the University of Chicago, Chicago, Illinois. My primary responsibilities are to initiate, implement, and manage scientific research projects and to publish quantitative, statistically-based social science research. Trained at the Ohio State University as a psychologist with a psychophysiology specialty, I have been a Research Associate and then Research Scientist since 2001, first at the University of Chicago and, since 2013, at NORC. My areas of expertise include social psychology/psychophysiology and quantitative psychology, including the statistical and quantitative analysis of social science data. I am an expert in social isolation and loneliness and their effects on physical and mental health and well-being. I have published over 100 articles and chapters in peer-reviewed professional journals and books. My resume, including a list of my publications, is attached as Exhibit A.
2) I was asked by Plaintiffs’ counsel to provide an opinion on whether confinement of an individual for a prolonged period of time in the Pelican Bay Security Housing Unit (SHU) in comparison with prolonged confinement in the Pelican Bay General Population (GP) – by more than ten years in this case - would lead that individual to face an increased risk of hypertension and early mortality.
3) I am being paid $150 per hour plus all expenses for my work on this matter. 4) I have never testified as an expert in court before. 5) I had access to the following material when conducting my analyses:
a. Data files, provided by Plaintiffs’ counsel, listing all prisoners who, as of November 2014, were receiving care for at least one chronic health condition. Data include information on prisoners’ dates of birth, mental illness diagnosis, physical disabilities, learning disabilities, and chronic health conditions, including

p. 2
hypertension, as well as clinical risk classification (low, medium, high). Data were organized by prisoners’ CDCR number and security level identified as general population or SHU population. b. Data files, provided by Plaintiffs’ counsel, listing all prisoners who, as of November 2014, had been imprisoned for at least 10 years in either the GP or the SHU1. Data were organized by prisoners’ CDCR number and security level identified as general population or SHU population. c. Stata version 13, a widely used and recognized software system for data management and statistical analysis of data. 6) My opinion, set forth below, is based upon my experience and qualifications as a social scientist and statistical data analyst with extensive experience in statistical analysis. I reserve the right to supplement or amend this report if additional materials become available to me. 7) Using the data available to me, I performed two sets of analyses: (i) analyses that examined whether hypertension prevalence differed between the GP and SHU populations for the entire data set ; (ii) analyses that examined whether hypertension prevalence differed between the GP and SHU populations in only those prisoners who had been imprisoned for more than 10 years. SUMMARY My research and the research of many other scholars definitively demonstrates that, in general, people who are socially isolated and are lonely have a significantly greater risk of hypertension, cardiovascular illnesses and early mortality from heart attacks or other
1 Data consisted of current SHU prisoners who had been in the SHU for 10 years or more, and GP prisoners who had been in prison for 10 years or more and were now in the general population.

p. 3
cardiovascular illnesses. For purposes of this report Plaintiffs’ counsel asked me to assume that prisoners confined in the SHU are confined to their cell by themselves for 22-23 hours a day, had no group recreation or group congregation with other prisoners, receive few if any phone calls, and have no contact visits. I was also asked by Plaintiffs’ counsel to assume for purposes of my analysis that prisoners confined in the Pelican Bay General Population also faced very restrictive conditions but had limited (2 hours per day) group recreation, contact visits and more phone calls. Based on my and others’ research, I conclude that individuals confined in the SHU conditions for a prolonged period of time face an objectively very high degree of social isolation and I predict that they would also subjectively experience and report a very high level of social loneliness. Indeed, I was provided with the results of a survey taken by Prof. Craig Haney using the UCLA Loneliness Scale, which I also use in my research, which shows an astoundingly high degree of loneliness reported by the SHU prisoners. Based on this survey and the objective conditions of isolation, my research, and that of many other researchers, would predict a higher risk of hypertension for prisoners in the SHU than prisoners in the general prison population who are subject to many of the same conditions and routines but have a lesser degree of social isolation.
I tested the prediction that placement in the isolating conditions of the SHU as opposed to similarly restrictive but otherwise less isolating conditions in a high security general population unit would lead to an increased risk of hypertension, by evaluating data provided to Plaintiffs’ counsel by the California prison authorities and given by Plaintiffs’ counsel to me. My analysis of these data was consistent with the overall research on the effect of social isolation. While I will set forth the analysis of the data more specifically and in detail below, my general

p. 4
conclusion is that an analysis of the data provided to me demonstrates that a person placed in the SHU as opposed to the General Population has a significantly greater chance of developing hypertension, particularly at a relatively young age, with the associated serious health risks of deadly heart disease associated with hypertension. The data of Pelican Bay SHU and GP prisoners thus supports the general research in non-prison populations showing that social isolation and loneliness contribute to increased mortality due to cardiovascular illnesses.
BACKGROUND Social isolation is bad for health and shortens life. A recent review and meta-analysis of
148 studies representing more than 308,000 individuals found that smaller social networks, fewer social contacts, less frequent social activities, lack of a spouse, or simply feeling isolated or lonely increases the risk of mortality. Conversely, active social relationships were associated with significantly longer life expectancy, and even longer life expectancy for those with active relationships across all of the foregoing aspects of social integration2. In comparison to traditional risk factors, a relative lack of social relationships exerted a risk comparable to if not greater than what has been reported for smoking, alcohol consumption, physical inactivity, and overweight3. My own research has shown that feelings of loneliness predict mortality in adults over the age of 50, even after adjusting for physical inactivity and smoking. At least four additional studies conducted since then have replicated these effects, with social isolation or
2 Holt-Lunstad J, Smith TB, Layton JB (2010). Social relationships and mortality risk: A meta-analytic review. PLoS Med 7(7), e1000316 3 Ibid.; House JS, Landis KR, Umberson D (1988) Social relationships and health. Science, 241, 540–545

p. 5
loneliness predicting mortality in the US and the United Kingdom4. One of these was an especially large study that estimated the risk for mortality associated with social isolation in a representative sample of 16,849 noninstitutionalized civilian US population, and explicitly compared this risk with that of traditional clinical risk factors exhibited by the adults in the study5. Social isolation was quantified by summing the number of domains in which adults were lacking social integration: being unmarried, having infrequent social contact, participating infrequently in religious activities, and lacking club or organization affiliations. The results were clear: the greater the degree of social isolation, the worse the survival rate. Moreover, the mortality risk associated with social isolation was similar to the risk associated with smoking and greater than the risk associated with obesity, high blood pressure, and high cholesterol. In sum, research to date shows a robust association between social isolation and mortality that is at least as large as traditional risk factors that receive much clinical and epidemiological attention.
Loneliness is also associated with disruptions in the regulation of physiological systems of the body. For instance, the “stress” system responsible for regulating cortisol, a hormone necessary to mobilize the body’s energy resources, shows evidence of dysregulation in lonely
4 Holwerda TJ, Beekman AT, Deeg DJ, et al. (2012). Increased risk of mortality associated with social isolation in older men: only when feeling lonely? Results from the Amsterdam Study of the Elderly (AMSTEL). Psychological Medicine, 42, 843–53; Pantell, M., Rehkopf, D., Jutte, D., Syme, L., Balmes, J., & Adler, N. (2013). Social isolation: A predictor of mortality comparable to traditional clinical risk factors. American Journal of Public Health, 103, 20562062; Perissinotto, C. M., Cenzer, I. S., & Covinsky, K. E. (2012). Loneliness in older persons: A predictor of functional decline and death. Archives of Internal Medicine, 172, 1078-1083; Steptoe, A., Shankar, A., Demakakos, P., & Wardle, J. (2013). Social isolation, loneliness, and all-cause mortality in older men and women. PNAS, 110, 5797-5801. 5 Pantell, M., Rehkopf, D., Jutte, D., Syme, L., Balmes, J., & Adler, N. (2013). Social isolation: A predictor of mortality comparable to traditional clinical risk factors. American Journal of Public Health, 103, 2056-2062.

p. 6
relative to nonlonely individuals6. My research has shown that lonelier individuals exhibit higher
early morning and late night levels of circulating cortisol, and larger increases in salivary cortisol
during the first 30 minutes after awakening. Other research consistent with these findings has
shown that cortisol levels, which typically decrease over the weekend relative to working days,
are perpetually higher in lonely than nonlonely individuals, and do not decrease on weekend days7. Lonelier individuals also show evidence of a phenomenon known as glucocorticoid
insensitivity, however. My and others’ research has shown that the same amount of cortisol may not be as effective in lonely as in nonlonely individuals8. This is particularly important for
the regulation of inflammation in the body. Cortisol is a potent anti-inflammatory substance,
and to the extent it is relatively ineffective in dampening inflammation in the body, risk is
increased for inflammatory diseases such as hypertension, cardiac diseases, stroke, and
diabetes.
Research suggests that the cardiovascular system is especially vulnerable to the impact
of social isolation and loneliness. In my study of middle- and older-age adults, loneliness was
associated with significantly higher blood pressure at study onset, and with larger increases in
blood pressure over a 4-year follow-up, such that at the end of the follow-up period, people
with the most intense feelings of loneliness had systolic blood pressure (SBP) readings that
6 Pressman, S. D., Cohen, S., Miller, G. E., Barkin, A., Rabin, B. S., & Treanor, J. J. (2005). Loneliness, social network size, and immune response to influenza vaccination in college freshmen. Health Psychology, 24, 297-306; Adam, E. K., Hawkley, L. C., Kudielka, B. M., & Cacioppo, J. T. (2006). Day-to-day dynamics of experience-cortisol associations in a population-based sample of older adults. PNAS, 103, 17058-17063; Steptoe A, Owen N, Kunz-Ebrecht SR, Brydon L (2004). Loneliness and neuroendocrine, cardiovascular, and inflammatory stress responses in middleaged men and women. Psychoneuroendocrinology, 29(5), 593–611. 7 Okamura, H., Tsuda, A., & Matsuishi, T. (2011). The relationship between perceived loneliness and cortisol awakening responses on work days and weekends. Japanese Psychological Research, 53, 113-120. 8 Hawkley, L. C., Cole, S. W., Capitanio, J. P., Norman, G. J., & Cacioppo, J. T. (2012). Effects of social isolation on glucocorticoid regulation in social mammals. Hormones & Behavior, 62, 314-323; Cole SW. (2008). Social regulation of leukocyte homeostasis: The role of glucocorticoid sensitivity. Brain Behav Immun, 22, 1049–1055.

p. 7
were as much as 14 points higher than the least lonely individuals9. The extent of this increase can move a person from normotension to a diagnosis of hypertension in a period of five years (e.g., from an SBP of 130 to an SBP of 144, above the hypertension criterion of 140 and more). In other words, faster rates of increases in SBP translate into higher rates of clinical hypertension at a younger age.
The development of hypertension is medically important because hypertension damages blood vessels and the heart, thereby increasing risk for serious cardiovascular health problems. Indeed, others’ research has shown that social isolation and loneliness are associated not only with elevated blood pressure but also with other cardiovascular conditions, including heart disease and stroke10. In addition, although most research has examined the association between social isolation and all-cause mortality, some research has examined and found an association between social isolation and cardiovascular mortality in particular11. Thus, to the extent that social isolation increases risk for hypertension, it also increases risk for serious cardiovascular disease and mortality. Moreover, the earlier the onset of hypertension, the earlier the development of serious cardiovascular conditions and subsequent mortality.
9 Hawkley, L. C., Thisted, R. A., Masi, C. M., & Cacioppo, J. T. (2010). Loneliness predicts increased blood pressure: Five-year cross-lagged analyses in middle-aged and older adults. Psychology & Aging, 25, 132-141. 10 Thurston RC, Kubzansky LD. Women, loneliness, and incident coronary heart disease. Psychosom Med. 2009; 71: 836–842; Tomaka, J., Thompson, S., & Palacios, R. (2006). The relation of social isolation, loneliness, and social support to disease outcomes among the elderly. Journal of Aging and Health, 18, 359-384. 11 Eng, P. M., Rimm, E. B., Fitzmaurice, G., & Kawachi, I. (2002). Social ties and change in social ties in relation to subsequent total and cause-specific mortality and coronary heart disease incidence in men. American Journal of Epidemiology, 155, 700-709.

p. 8
PREDICTION Loneliness is not synonymous with objective social isolation, and the correlation
between the two is typically moderate in size. However, loneliness is strongly associated with objective social isolation in circumstances where one has limited choice in when and with whom to interact (e.g., placement in nursing homes for the elderly). Imprisonment that entails severe restrictions on social contact with the outside world and severely restricts the social interactions between prisoners would be expected to result in intense feelings of loneliness. Support for this prediction was provided by results included in the section of Dr. Craig Haney’s report forwarded to me by Plaintiffs’ counsel in which Dr. Craig Haney sets forth his use of the UCLA Loneliness Scale in two groups of long-term PBSP prisoners – those in the SHU and those in the general population – and the results that he found. In the American adult population, loneliness levels range from 30-40 (on a scale that ranges from 20-80). In the prisoners Dr. Haney interviewed, loneliness levels averaged 41.6 for prisoners in the general population and an astounding 54.9 for prisoners in the SHU. Based on my research, I would therefore predict that hypertension rates in the SHU are higher than in the general prison population (GP). However, because both groups are relatively socially isolated and the GP prisoners also reported a high degree of loneliness, although less than the SHU prisoners, the comparison of hypertension rates in these two populations is likely a conservative estimate of the effect of social isolation per se, and is instead an estimate of the effect of extreme social isolation over and above the effect of the relative social isolation experienced in the GP.

p. 9
DATA SOURCE AND ANALYTIC STRATEGY In February of 2015, Plaintiffs’ counsel forwarded to me four data files that were
provided by the California Department of Corrections and Rehabilitation (CDCR). The first two data files listed all prisoners who were receiving care for at least one chronic condition (1) in the General Population (GP; 283 prisoners) and (2) in the Security Housing Unit (SHU; 343 prisoners). The file also provided their dates of birth, illness diagnosis, whether they have a physical disability, whether they have a learning disability, and variables whether they have any of several chronic health conditions, including hypertension. The second two data files listed all prisoners who had been imprisoned for at least 10 years, regardless of their health status, (1) in the GP (315 prisoners), and (2) in the SHU (246 prisoners).
I used statistical software, Stata (version 13, StataCorp, 2013), to import and combine the four data files into a single file, aligned on prisoner identification number (i.e., CDCR number) that was then used to prepare the data for analyses. The final file contained data for 1,025 prisoners. The prisoners ranged in age from 27 to 71 years old. Preliminary analyses revealed that the SHU population is significantly older on average than the GP population (44.5 vs. 37.6 years).
Analyses proceeded in two steps. First, I examined whether hypertension prevalence differed between the GP and SHU populations in the total sample for which I had data. Second, I focused on matching the two populations more closely and re-examined hypertension prevalence in only those prisoners who had been imprisoned for more than 10 years in the GP or the SHU. Because age and some chronic health conditions increase risk for hypertension, I statistically adjusted for age and health conditions that have been associated with hypertension

p. 10
to ensure comparability of the GP and SHU populations. The three conditions for which I had data and which are related to hypertension were diabetes, hepatitis, and hyperlipidemia.
To ensure well-matched populations, all analyses excluded 78 prisoners with diagnosed mental illness; individuals with diagnosed mental illness are represented almost exclusively in the GP because they are not permitted to be housed in the SHU. In addition, analyses excluded 8 cases missing age information. This resulted in a final total sample of 939 prisoners, 425 in general population housing and 514 in the SHU.
RESULTS 1. Hypertension prevalence in the total sample is greater in the SHU than the GP population.12 In 939 prisoners, 18.4% of the GP population (78/425 prisoners) and 48.4% of the SHU
population (249/514 prisoners) have hypertension (see Table 1; tables appear at the end of this report). In other words, the SHU population has a 4.2 times greater odds of having hypertension than the GP population. This is a statistically significant population difference in hypertension prevalence. Because the SHU population is older than the GP population and hypertension prevalence increases with age, I adjusted for age differences and found that the
12 Estimates of hypertension rates in the non-imprisoned American population are not a relevant comparison for rates in the prison population. Such comparisons would not be appropriate because of differences in the environmental conditions to which the populations are exposed, health behaviors chosen versus imposed (e.g., exercise), when and how hypertension cases are ascertained, and differences in sampling (a random sample of the U.S. population versus a non-random sample of prisoners). To determine whether placing a prisoner in the SHU increases their risk of developing hypertension, the relevant comparison is between two highly similar populations, with similar environmental exposures, namely the restricted general prisoner population and the socially isolated SHU population.

p. 11
difference in hypertension prevalence between the GP and the SHU remained statistically significant. The age-corrected odds were 3.9 times greater for the SHU than the GP population.
To examine whether population differences in hypertension prevalence differed across age, I categorized prisoners by age into approximately 10-year bins: 27-35, 36-45, 46-55, and 55-71 years old. Hypertension prevalence was higher in the SHU than the GP population for each of the four age groups (see Table 2). The youngest age group (27-35 years) had the largest difference; about 63% of the SHU population in this age group had hypertension as opposed to only 18% of the GP population. A statistical test revealed that this difference was significantly larger than the difference in the 46-55 year-old age group but no other age groups differed significantly in hypertension prevalence relative to the youngest age group.
2. Hypertension prevalence in the sample imprisoned 10 or more years is greater in the SHU than the GP population. Among prisoners who have been imprisoned ten years or more, 11.2% of the GP
population (32/285) and 25.7% of the SHU population (63/245) has hypertension (see Table 3). In those imprisoned 10 years or more, the odds of hypertension are 2.7 times greater in the SHU prisoners than the GP prisoners. The age-corrected odds are 1.5 times (i.e., 50%) greater in the SHU than the GP population, a sizeable effect that, although not statistically significant from a scientific perspective (in large part because of the small sample size), is large from a practical perspective13. A 50% greater odds of hypertension associated with social isolation exceeds the
13 By way of comparison, the touted effects of aspirin for reducing the odds of subsequently suffering a heart attack or death are small by comparison; relative to placebo users, aspirin users experience only a 32% reduction in heart attack and a 15% reduction in mortality. He, J., Whelton, P. K., Vu, B., & Klag, M. J. (1998). Aspirin and risk

p. 12
risk associated with overweight, for example, and is consistent with the research described above which found that the effect of social isolation on mortality risk exceeded that of traditional risk factors such as overweight.
As part of the data set provided to me, I had information on one other factor besides age which is relevant to risk for hypertension. Hypertension is not the only health condition with which prisoners are diagnosed, and differences in their overall health status will generally affect their risk for hypertension independently of social isolation. To address whether social isolation increases risk for hypertension independently of health status, statistical adjustment must be made to equate for health status in the SHU and GP populations. I conducted such an analysis by adjusting for three conditions that are known to increase risk for hypertension. Diabetes was present in 10 prisoners, hepatitis in 48 prisoners, and hyperlipidemia in 21 prisoners. After adjusting for each of these conditions and for age, the corrected odds of hypertension are 2.2 times greater in the SHU than the GP population, a difference that is statistically significant. These results suggest that the social isolation experienced by the SHU population increases risk for hypertension over and above the risk for hypertension posed by other health conditions from which these prisoners suffer.
The SHU population had consistently higher hypertension prevalence than the GP population across all age groups. Statistical tests revealed that differences in hypertension prevalence between the SHU and GP populations were comparable in each age group. However, as shown in Table 4, some of the age groups were poorly represented by GP
of hemorrhagic stroke: A meta-analysis of randomized controlled trials. Journal of the American Medical Association, 280, 1930-1935.

p. 13
prisoners (6 who were 55-71 years old) or SHU prisoners (5 who were 27-35 years old), or were small in size overall (only 34 prisoners are 55-71 year-olds), precluding definitive conclusions.
More reliance can be placed on the findings observed in the largest age group, 243 individuals aged 36-45 years. In this age group, 20% of SHU prisoners have hypertension as opposed to 11% in the GP. This effect is substantively important - most people who get hypertension develop the condition in their 50s and 60s. That a much larger percentage of the SHU population in the 36-45 year old age group has developed hypertension suggests that social isolation itself, and not simply the aging process, is causing the increased hypertension. In fact, hypertension prevalence in the youngest age group of SHU prisoners (i.e., 20%) approaches rates observed in the older 46-55 year-old group of general population prisoners (23% have hypertension), as though the influence of social isolation prematurely ages the cardiovascular system.
Given that hypertension causes damage to the blood vessels and heart, the younger the development of hypertension, the earlier the predicted onset of more serious cardiovascular conditions such as heart disease and stroke. The substantially higher percentage of 36-45 year olds in the SHU who have hypertension therefore would predict significantly earlier and higher rates of chronic and potentially fatal cardiovascular conditions later in life for the prisoners who are subjected to the severely isolating conditions of the SHU.

p. 14
CONCLUSIONS 1) From my own work and others’, people who are socially isolated have increased rates of
hypertension, chronic cardiovascular diseases such as heart disease and stroke, and early mortality. My analyses are consistent with the overall research. The data clearly show that hypertension is more prevalent in the highly socially isolated long-term SHU prisoners (i.e., 10 years or more) than in long-term prisoners in the only slightly less restricted general prison population, even after adjusting for the age difference between the two populations. The difference in hypertension prevalence was even greater after also adjusting for general health status, and exceeded the magnitude of risk associated with overweight, physical inactivity, and smoking. 2) The analyses of the PBSP data are not only consistent with the overall research, but strengthen the hypothesized causal link between social isolation and hypertension. The gold standard for causality requires random assignment to one or another condition, where the only difference between the conditions is the presence or absence of the presumed causal factor (e.g., social isolation). In the non-prison population, it is impossible and unethical to conduct an experiment that randomly assigns individuals to social isolation for any length of time. The situation with the SHU and GP prisoners, on the other hand, constitutes a natural experiment of sorts. The SHU and GP populations have highly comparable daily experiences with the exception of the much greater absence of meaningful social contact in the SHU relative to the GP population. Assuming that prisoners assigned to the SHU have similar criminal and social backgrounds, the primary difference between the two populations is the

p. 15
extent of their social isolation. This permits inferring that extreme social isolation causes the difference in hypertension rates in the two populations. 3) There could be other differences between the populations that are associated with hypertension risk and that were not able to be considered due to the absence of data, including racial-ethnic identity, and if, when, and how long current GP prisoners had spent time in the SHU in the past. However, adjusting for the foregoing differences may well exacerbate the hypertension risk for SHU relative to GP prisoners. Moreover, the SHU prisoner disadvantage in hypertension risk persisted in analyses that adjusted for age and health differences. The persistence of the effect of social isolation on hypertension after adjusting for the factors available to me indicates that social isolation is robustly related to hypertension. 4) Hypertension was more common in the SHU than the GP population across all ages, but the difference was most pronounced in younger prisoners. By older age, normal age-related physiological changes result in increased blood pressure for all adults, which could diminish or abolish the ability to detect any additional effects of social isolation. For the SHU population, relative to the GP population, age-related physiological changes are superimposed on a higher probability of hypertension at a younger age. The fact that younger SHU prisoners are being diagnosed with hypertension at higher rates than their age-matched GP counterparts has grave implications for their future health. The long-term consequences of hypertension indicate that SHU prisoners are set on a trajectory toward early onset cardiovascular disease and mortality. Hypertension treatment, to the extent blood pressure levels are successfully controlled, ameliorates the long-term consequences

p. 16 to some extent, but by the time hypertension is diagnosed, damage to the cardiovascular system, some of it irreversible, has already begun. Thus, young SHU prisoners have more serious consequences beyond hypertension to anticipate in their future health, and their future will be upon them sooner than it would if they were not subjected to the extreme social isolation of long-term SHU housing.
________________________ Louise C. Hawkley Date: March 12, 2015

p. 17

Table 1. Hypertension prevalence by prison type.

No hypertension Hypertension Total # of prisoners

GP

SHU Total # of prisoners

347 (81.7%) 265 (51.6%)

612

78 (18.4%) 249 (48.4%)

327

425

514

939

1.1. A logistic regression showed higher odds of hypertension in the SHU than the GP, OR=4.18 (SE=0.64), p<.001, 95% CI: 3.10, 5.64.
1.2. A logistic regression that adjusted for age showed higher odds of hypertension in the SHU than the GP, OR=3.88 (SE=0.65), p<.001, 95% CI: 2.80, 5.37. Age had a nonsignificantly positive association with hypertension, OR=1.01 (SE=0.01), p=.259, 95% CI: 0.99, 1.03.

p. 18

Table 2. Hypertension prevalence, by prison type and age decade.

Age group14 Age 27-35 # of prisoners

GP 36 (17.5%)
206

SHU 35 (62.5%)
56

Total # of prisoners 262

Age 36-45 # of prisoners

24 (15.3%) 108 (44.1%)

157

245

402

Age 46-55 # of prisoners

14 (25.9%) 70 (42.9%)

54

163

217

Age 55-71 # of prisoners

4 (50.0%) 36 (72.0%)

8

50

58

Total # of prisoners

425

514

939

2.1 A logistic regression showed a significant interaction between age group and prison population type only for 46-55 year-olds relative to 27-35 year-olds, p=.007. Specifically, the population difference in hypertension rates was lower in 46-55 year-old prisoners than in their 27-35 year-old counterparts, but SHU and GP population differences in hypertension in the 3645 year-olds and 55-71 year-olds did not differ significantly from rates in the 27-35 year-olds, p’s >.16.

14 Age groups started at age 27 and ended at age 71 because the age range of prisoners in the data ranged from 27 to 71 years.

p. 19

Table 3. Hypertension prevalence in prisoners imprisoned for 10 or more years, by prison type.

Total # of

GP

SHU

prisoners

No hypertension 253 (88.8%) 182 (74.3%)

435

Hypertension

32 (11.2%) 63 (25.7%)

95

Total # of prisoners

285

245

530

3.1. A logistic regression showed significantly higher odds of hypertension in the SHU than the GP, OR=2.74 (SE=0.65), p<.001, 95% CI: 1.72, 4.36.
3.2. A logistic regression that adjusted for age showed nonsignificantly higher odds of hypertension in the SHU than the GP, OR=1.52 (SE=0.40), p=.11615, 95% CI: 0.90, 2.56. Age had a significant positive association with hypertension, OR=1.08 (SE=0.02), p<.001, 95% CI: 1.05, 1.12.
3.3. A logistic regression that adjusted for age and the presence of asthma, diabetes, hepatitis, and hyperlipidemia showed significantly higher odds of hypertension in the SHU than the GP, OR=2.22 (SE=0.69), p=.01, 95% CI: 1.21, 4.11. Age had a significant positive association with hypertension, OR=1.04 (SE=0.02), p=.036, 95% CI: 1.002, 1.08. Diabetes was perfectly correlated with hypertension; all of the individuals with diabetes also had hypertension. Hepatitis had a significant positive association with hypertension, OR=2.78 (SE=1.09), p=.009, 95% CI: 1.29, 6.01. Hyperlipidemia also had a significant and large positive association with hypertension, OR=16.02 (SE=12.9 6), p=.001, 95% CI: 3.28, 78.16.

15 p=.116 signifies that the probability of another study finding a difference in hypertension prevalence in the SHU relative to the GP population is approximately 88%, or in other words, that the likelihood that the results obtained in this data analysis were random is less than 12 percent.

p. 20

Table 4. Hypertension prevalence in prisoners imprisoned for 10 or more years, by prison type and age decade.

Age group16 Age 27-35 # of prisoners

GP 6 (5.4%)
111

SHU 1 (20.0%)
5

Total # of prisoners 116

Age 36-45

14 (11.2%) 24 (20.3%)

# of prisoners

125

118

243

Age 46-55

10 (23.3%) 23 (24.5%)

# of prisoners

43

94

137

Age 55-71

2 (33.3%) 15 (53.6%)

# of prisoners

6

28

34

Total # of prisoners

285

245

530

4.1. A logistic regression showed nonsignificant interactions between age decade and prison population type, p’s > .26. These results signify that with each older age decade, the odds of hypertension increased equivalently in the SHU and the GP. The difference between the SHU and GP lies in the greater odds of hypertension in younger SHU than GP prisoners; the physiological effects of aging are superimposed on a higher rate of hypertension at a younger age in the SHU population.

16 Age groups started at age 27 and ended at age 71 because the age range of prisoners in the data ranged from 27 to 71 years.

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.

Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF DR. DACHER KELTNER, Ph.D.

TABLE OF CONTENTS

Page(s)

I.

PROFESSIONAL BACKGROUND ........................................................ 1

II.

THE SCIENCE OF TOUCH .................................................................... 3

A.

The Tactile System: From Hand to Skin to Brain to the

Neurophysiology of Health and Well-being .......................................... 4

B.

The Sophisticated Language of Tactile Contact .................................... 4

C.

Tactile Contact Provides Social Support within Social Interactions....... 5

D.

Touch Interventions Improve Physical Health ...................................... 9

E.

Touch Deprivation Strips People of Social Support and Causes

Significant Harm ................................................................................ 10

F.

Summary and Conclusion................................................................... 14

I. PROFESSIONAL BACKGROUND 1. I am the Thomas and Ruth Ann Hornaday Chair in Positive Psychology at
the University of California Berkeley, director of the Berkeley Social Interaction Lab (http://socrates.berkeley.edu/~keltner/), and Faculty Director of the Greater Good Science Center (http://greatergood.berkeley.edu). My full curriculum vitae can be found in the Appendix to this Report.
2. I received my BA in Psychology from the University of California, Santa Barbara in 1984 and a PhD in Psychology from Stanford University in 1989. After a 3year NIMH-funded post-doctoral fellowship at the University of California, San Francisco, in 1992 I took my first academic job, at the University of Wisconsin-Madison, and joined the Department of Psychology at the University of California, Berkeley in 1996, where I am a full professor.
3. My research focuses on the biological and evolutionary origins of emotion, emotional communication, and social hierarchy. I study the mechanisms of social interactions – touch, facial expression, and human voice – and how these mechanisms contribute to the individual’s social adjustment and mental and physical health. I have published over 190 scientific articles and chapters, many of which are in the premiere journals of the field (e.g., Proceedings of the National Academy of Sciences, Journal of Personality and Social Psychology, Psychological Bulletin, Psychological Review) and have been cited hundreds, and on a few occasions, thousands, of times in the scientific literature. I have received three national awards for my research, three awards for my teaching and mentoring, and over $10,000,000 in grant support from several foundations to fund the Berkeley Social Interaction Laboratory. In the field, I served as an editor for two journals. About 20 of my former students are now professors at

colleges and universities around the world. I have authored over 35 specific articles on the human voice, facial expression, and touch, and taught this science to over ten thousand health care providers. The “Science of Happiness” Massive Online Open Course (MOOC), which I co-taught and hosted on EdX, has had over 175,000 people enroll worldwide to this date. I am also the co-author of two textbooks, as well as Born to Be Good: The Science of a Meaningful Life, and The Compassionate Instinct, and have written for the New York Times Magazine, The New York Times, The London Times, The Wall Street Journal, and Slate. A complete list of all my publications from the last ten years is included in my curriculum vitae.
4. I have been retained by counsel for the Plaintiffs in Ashker et. al. v. Governor of California to provide an expert opinion on the science of touch and, in particular, the deprivation of touch as an aspect of social isolation. My opinion on these topics is based on a number of sources. In addition to my own publications and lab work, I have reviewed the extensive published literature that addresses the importance of touch and the effects of its deprivation. In addition, I have been provided with a set of documents that pertain to the use of solitary confinement at the Pelican Bay SHU. These include: the depositions of Clark Ducart (esp. pp. 108-110, 155), Tracy Puget (esp. pp. 142-145), and Greg Lewis (esp. pp. 52-53, 105), Plaintiffs' Second Amended Complaint (Docket No. 136), Defendants' Answer to Plaintiffs' Complaint (Docket No. 194) (esp. paras. 48 and 66), CDCR Operational Procedure No. 222 (Exhibit 4 to Ducart Depo.) (esp. pages 17-21 re showering), SHU Inmate Orientation Handbook (Exhibit 8 to Ducart Depo.) (esp. page 13), COMPSTAT DAI Statistical Report (esp. pp. 129-130), California Code of Regulations, Title 15, p. 95, subsection (f), p. 102, section

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3177(b)(1)(B)(2), and p. 170, section 3343(f). 5. My rate of compensation for all work on this case is $150 per hour. 6. I have never been an expert witness or consultant in a lawsuit before.
II. THE SCIENCE OF TOUCH 7. From the first moment of life, touch – the most well-developed sensory
modality at birth – is a form of communication that enables individuals to relate to one another, form social ties, and integrate into groups and communities.1 At its core, touch communicates social support to others. Human relations, health, and well-being depend critically upon the quality of touch an individual experiences in everyday social interactions.
8. Some species of nonhuman primates spend upwards of 10 to 15% of their waking hours grooming one another. In humans, touch is just as fundamental a form of communication, and often so elemental that we can fail to notice its centrality to social interaction. Scientific studies, though, have documented universal patterns of social touch, in which one individual intentionally touches another.2 Specific patterns of touch that commonly occur throughout the day are a foundation of parent-child attachments: soothing, tickling, skin-to-skin contact, rough-and-tumble-play, and reassuring contact are building blocks of close ties between parents and children. Social touch is essential to the strength of sibling relations, for it is a basic element of play routines, conciliatory behavior following conflicts, and expressions of affection. Friends rely on tactile contact to create cooperative alliances and a sense of trust and good will. Touch is a language in

1 Linden, D. J. (2015). Touch. New York: Penguin Press. 2 Eibl-Eibesfeldt, I. (1989). Human Ethology. New York: Aldine de Gruyter.

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which we build strong relations with one another. To touch and be touched by others is perhaps the most basic way in which humans recognize the dignity of one another.
A. The Tactile System: From Hand to Skin to Brain to the Neurophysiology of Health and Well-being
9. Social touch involves a complex system that has been shaped by mammalian evolution. The human hand, more dexterous than that of our primate relatives, is remarkably suited to many kinds of touch with its flexible digits (chimpanzee hands have much shorter, less adroit fingers). When the hand touches the skin, it is making contact with the heaviest organ in the human body, weighing upwards of 6 to 8 pounds, which includes tens of millions of cells organized in three different layers.3 Underneath the surface of the skin are immunological cells, which are a first line of defense against toxins, as well as cells that encode information about the location, pressure, and speed of different forms of tactile contact. Tactile contact to the skin is processed in a large region of the cortex known as the somatosensory cortex, which represents the area on the body that has been touched. Tactile contact then triggers activation in regions of the peripheral nervous system, which is the system of neurochemical networks below the midbrain that include the vagus nerve and the hypothalamic-pituitary-adrenal axis, which regulate the human stress response, fight-orflight behaviors, digestion, and immune system function.
B. The Sophisticated Language of Tactile Contact 10. Social touch involves a complex language of tactile behaviors that structures social interactions frequently throughout the typical day. For example, studies from our Berkeley Social Interaction Laboratory find that with half-second touches to a

3 Jablonski, N. (2006). Skin: A Natural History. Berkeley, CA: UC Press.

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stranger’s forearm -- who is positioned on the other side of curtain -- an individual can communicate anger, fear, disgust, gratitude, compassion, and love. 4 This study documented over 20 kinds of tactile behavior people intuitively use to communicate emotion, with variation in pressure, timing, location, and duration. Tactile contact involves hundreds of specific behaviors, which are critical to social processes such as greeting, consolation, play, calming, soothing, encouragement, and support.
C. Tactile Contact Provides Social Support within Social Interactions 11. Touch is a fundamental aspect of social interaction, which is a fundamental human need. 5 Social touch serves three vital functions within human interaction, which together provide the recipient of touch with the sense of social support and social integration. 6 First, social touch calms the recipient of the touch during stressful experiences. For example, in one study infants’ heels were surgically cut by medical doctors.7 In one condition, infants were held by their mothers; in the other, they underwent the procedure while being swaddled in a crib. The infants who were touched during the procedure cried 82% less than the comparison infants, they grimaced 65%

4 Hertenstein, M. J., Keltner, D., App, B., Bulleit, B. A., & Jaskolka, A. R. (2006). Touch communicates distinct emotions. Emotion, 6, 528-533.
5 Baumeister, R.F. & Leary, M.R. (1995). The need to belong: Desire for interpersonal attachments as a fundamental human motivation. Psychological Bulletin, 117, 497-529.
6 Hertenstein, M., Verkamp, J.M., Kerestes, A.M., & Holmes, R.M. (2006). The communicative functions of touch in humans, nonhuman primates, and rats: A review and synthesis of empirical research. Genetic, Social, and General Psychology Monographs, 132, 5-94.
7 Keltner, D. (2009). Born To Be Good: The Science of A Meaningful Life. New York, NY: W.W. Norton & Company.

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less, and they had lower heart-rate.8 In nonhuman primates, grooming reduces heart rate and displacement activities related to stress, such as striking others. 9 Social touch reduces stress through its effects upon specific branches of the nervous system. Studies find that friendly tactile contact can reduce activation in threat-related regions of the brain. In one relevant study, participants anticipated experiencing a stressful stimulus (electric shock), which activated threat-related regions of the brain, except in participants being touched on the hand by someone close to them.10 Social touch can influence activation in the stress pathway in the nervous system, reducing levels of the stress hormones: Rat pups who are handled extensively by their mothers show reduced activity of the hypothalamic, pituitary adrenal axis, which is involved in stress responses, and reduced corticosterone, a stress-related hormone, both immediately and when they are mature.11
12. Alongside its soothing function, a second function of touch is to signal safety, that others in the environment are supportive and not threatening. This critical function of touch paves the way for exploration, cooperation, and ultimately, better health and well-being. Touch is a primary means by which parents signal to infants people or

8 Gray, L. (2000). Skin-to-skin contact is analgesic in healthy, new-borns. Pediatrics, 105, 14-20.
9 Aureli, F., Preston, S., & de Waal, F.B.M. (1999). Heart rate responses to social interactions in free-moving Rhesus Macaques (Macaca Mulatta): A pilot study. Journal of Comparative Psychology, 113, 59-65.
10 Coan, J. A., Schaefer, H. S., & Davidson, R. J. (2006). Lending a hand: Social regulation of the neural response to threat. Psychological Science, 17, 1032-1039.
11 Francis, D. & Meaney, M.J. (1999), Maternal care and the development of stress responses, Development 9, 128-34.

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contexts that are safe and those that pose peril, and even more fundamentally, a means by which parents develop strong attachments to their offspring. Outside of the familial context, one finds ample evidence of the means by which social touch signals safety, and elicits more collaborative behavior. For example, one study found that the right kind of supportive, social touch – e.g., a pat on the shoulder – from a teacher led students to be more likely to try work on problems, when compared to students in appropriate control conditions.12
13. Once again, we can understand these safety-signaling effects of social touch by turning to scientific studies of the neurophysiological effects of touch. Supportive social touch can activate the vagus nerve, the largest bundle of nerves in the human body. The vagus nerve originates in the brain stem and wanders through the body, connecting with muscles in the throat and head, reducing cardiovascular arousal, and regulating digestive and immune processes. The vagus nerve – a focus in scientific inquiry in the Berkeley Social Interaction Laboratory – enables communication, trust, cooperation, sharing, and strong social connections. 13 When friendly social touch activates the vagus nerve, the individual is predisposed to feel calm, supported, and engaged in the social environment.
12 Gueguen, N. (2004). Nonverbal encouragement of participation in a course: The effect of touching. Social Psychology of Education, 7, 89-98. 13 Keltner, D., & Lerner, J. (2010). Emotion. In The Handbook of Social Psychology (pp. 312-347). S. Fiske & D.Gilbert Eds. New York, NY: McGraw Hill Publishers. Keltner, D., Kogan, A., Piff, P., & Saturn, S. (2014). The Sociocultural Appraisal, Values, and Emotions (SAVE) Model of Prosociality: Core Processes from Gene to Meme. Annual Review of Psychology, 65, 425-460.

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14. There are many studies establishing a third function of positive touch, that it increases cooperation. This thesis was first explored in studies of grooming in nonhuman primates, which various species do throughout the day and with surprising regularity. Nonhuman primates groom to facilitate cooperation. For example, chimpanzees are more likely to share food with other chimpanzees who groomed them earlier in the day, suggesting that touch is a medium in which chimpanzees, and other primates, form relationships defined by reciprocal assistance. 14 The same is true of humans: the right kind of social touch increases cooperation.15 In one study, participants were asked to sign a petition in support of a particular issue of importance locally.16 Those participants who were touched when asked to sign were much more likely to comply (81%) than participants who were not touched during the request (55%).
15. Once again we can understand these benefits of touch – increasing levels of cooperation – by considering the neurophysiological effects of tactile contact. Pleasing social touch increases activation in the orbitofrontal cortex, a region of the frontal lobes that is involved in the experience of social rewards (e.g., being esteemed by others), and that helps coordinate social behavior with others.17 Pleasing social touch has been found to stimulate the release of oxytocin, a neuropeptide produced in the

14 de Waal, F. B. M. (1996). Good Natured: The Origins of Right and Wrong in Humans and Other Animals. Cambridge, MA: Harvard University Press.
15 Kurzban, R. (2001) The social psychophysics of cooperation: Nonverbal communication in a public goods game, Journal of Nonverbal Behavior, 25, 241-259.
16 Willis, F.N.& Hamm, H.K. (1980) The use of interpersonal touch in securing compliance, Journal of Nonverbal Behavior 5, no. 1, 49-55.
17 Rolls, E. (2005). Emotions Explained. Oxford: Oxford University Press.

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hypothalamus and that is distributed through the brain and peripheral nervous system. 18 Elevated levels of oxytocin are associated with increased trust, cooperative behavior, sharing with strangers, the more effective reading of others’ emotions, and more constructive conflict resolution.19 Social touch – the right kind, i.e. supportive human touch – shifts the neurophysiology of the individual in profound ways, and in ways that make for stronger and more trusting social ties, and the enduring sense that one is supported by others.
D. Touch Interventions Improve Physical Health 16. Given how central social touch is to human relations and the direct effects touch has upon the HPA axis, the vagus nerve, and the release of oxytocin, touch interventions have been developed and tested within several settings.20 Dozens of studies have now systematically assessed the benefits of massage therapies for preterm babies. Premature birth is accompanied by lower birth weight, which is one of the most significant predictors of long-term health problems, and a multi-billion dollar problem for the United States. Premature birth is often accompanied by little social touch with the mother, which in part accounts for its influences upon poor health. Studies comparing massage therapies for preterm babies to appropriate controls have found that massage leads to significant gains in weight (47% in an early study), increased insulin, better

18 Morberg, K.U. (2003). The Oxytocin Factor. Cambridge, MA: Cambridge University Press.
19 Keltner, D., Kogan, A., Piff, P., & Saturn, S. (2014). The Sociocultural Appraisal, Values, and Emotions (SAVE) Model of Prosociality: Core Processes from Gene to Meme. Annual Review of Psychology, 65, 425-460.
20 Field, T. (2001). Touch. Cambridge, MA: Cambridge University Press.

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gastric motility, increases in activation of the vagus nerve, and observations that the preterm baby is more attentive and less fussy.21
17. Touch interventions are being used with pregnant women, who are vulnerable to forms of chronic pain and higher rates of depression. These studies have yielded impressive results. Studies find that compared to appropriate controls, massage therapy leads to less depression, anxiety, and back pain in preterm women, and across studies, a 31% drop in the stress hormone cortisol. 22
18. More generally, touch interventions are increasingly being used to respond to different health complications, including immune problems, asthma, and various kinds of cancer. The results of the studies are consistent and robust: Touch therapies for people enduring different diseases have been found to lead to reduced pain, migraines, fibromyalgia, and inflammation markers, and increases in natural killer cells, a critical part of the immune response.23 Supportive, caring social touch is a direct contributor to the physical and mental health of the individual.
E. Touch Deprivation Strips People of Social Support and Causes Significant Harm
19. Social touch is a physical manifestation of social support, which refers to the perception that one is cared for, has assistance available from other people, and is

21 Hertenstein, M. & Weiss, S (2011). The Handbook of Touch: Neuroscience, Behavioral, and Applied Perspectives. New York: Springer Publications.

22 Field, T. (2011). Massage therapy: A review of recent research. In M. Hertenstein & S. Weiss Eds (2011). The handbook of touch: Neuroscience, Behavioral, and Applied Perspectives. New York: Springer Publications.

23 Field, T. (2011). Massage therapy: A review of recent research. In M. Hertenstein & S. Weiss Eds (2011). The Handbook of touch: Neuroscience, Behavioral, and Applied Perspectives. New York: Springer Publications.

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integrated into a social network. Through social touch people communicate in the most basic way that they support other individuals. The absence of social support has been found to be a primary trigger of chronic stress, which produces hypertension, chronic pain, hopelessness, the sense of little control, depression and anxiety, diabetes, the acceleration of the effects of disease, weight gain, sleep disruption, digestive problems, and the premature aging of DNA. 24 The absence of social support amplifies the problematic effects of isolation and rejection, which include increased body pain, aggression, compromised intellectual function, reduced self-esteem, feelings of humiliation, and increased likelihood of mortality.25 Given these patterns of findings, social touch, the physical manifestation of support, has been found to yield benefits for physical and mental health. These benefits of social touch are readily understood in terms of the neurophysiological effects of touch considered earlier in this report. The extreme deprivation of social touch, it follows, will reliably produce marked physical and mental health problems.

24 Dickerson, S.S., & Kemeny, M.E. (2004). Acute stressors and cortisol response: A theoretical integration and synthesis of laboratory research. Psychological Bulletin, 130, 355-391. Coriell, M., & Adler, N.E. (2001). Social ordering and health. In B. S. McEwen (Volume Editor) and H.H. Goodman (Section Editor), Handbook of Physiology: Section 7: The Endocrine Section (pp. 533-546). New York: American Physiological Society and Oxford University Press. Dickerson, S.S. ,Gruenewald, T.L., & Kemeny, M.E. (2011). Physiological Effects of Social Threat: Implications for Health. In J. Cacioppo & J. Decety (Eds.), Handbook of Social Neuroscience, 787-803. New York: Oxford University Press. Epel ES, Lithgow GJ. (2014). Stress biology and aging mechanisms: toward understanding the deep connection between adaptation to stress and longevity. Journal of Gerontology and Biological Science, 69:S10-6.
25 Williams, K.D. (2007). Ostracism. Annual Review of Psychology, 58, 425-452. Pantell M, Rehkopf D, Jutte D, Syme SL, Balmes J, Adler N. (2013). Social isolation: a predictor of mortality comparable to traditional clinical risk factors. American Journal of Public Health.103(11):2056-62.

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20. Studies do indeed find that when individuals from infancy through old age experience a notable lack of social touch, they are vulnerable to various physical and mental problems. An early study found, for example, that babies raised in an orphanage and lacking in human contact compared to those raised in a prison nursery who were regularly held by their mothers lagged significantly behind in basic development – they had difficulties with language, walking, and social engagement, and showed less robust physical health.26 Harry Harlow’s studies shortly thereafter found that monkeys raised in social isolation developed in profoundly abnormal ways, unable to interact with peer monkeys when given the chance.27 More recent studies of orphans who were raised in touch-deprived, isolated conditions in Romanian orphanages are finding that those orphans are disturbingly vulnerable to stunted physical maturation, troubles with language, social dysfunction and a lack of ability to engage with others, and, in some cases, reduced development of the frontal lobes.28
21. In other institutions, where touch has been stripped away, the experience lacks social support and is disorienting, isolating, and damaging. For example, it has been recognized that elderly adults living in nursing homes can often be touch-deprived, and health practitioners have made the case that this touch deprivation contributes to the

26 Spitz, R. (1945). Hospitalism. Psychoanalytic Study of the Child, 1, 53-74.
27 Harlow, H.F. (1959). Love in infant monkeys. Scientific American, 200.
28 Chugani, H.T., Behen, M.E., Muzik, O., Juhasz,C., Nagy, F., Chugani, D.C. (2001). Local brain functional activity following early deprivation: A study of postinstitutionalized Romanian orphans. Neuroimage, 14, 1290-1301.

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mental and physical health problems that can be pervasive in these institutions.29 As a result, touch interventions are now increasingly part of everyday care in many hospitals and nursing homes, and other forms of touch that occur in normal socializing can produce the same improvements.30 In addition, there are numerous studies that have examined the efficacy of touch interventions in people suffering from dementia in institutionalized settings.31 This work finds that brief forms of tactile contact can reduce the agitation and negative emotion associated with dementia. These therapies have also been found to improve cognitive function and reduce biomarkers of stress.
22. Additional recent studies highlight the problems associated with touch deprivation, even of a less severe kind than the nearly absolute touch deprivation that characterizes certain institutions. Children who are touched less by their parents tend to show patterns of insecure attachment, showing less confidence in their ties to their parents, which in turn is associated with an increase likelihood of anxiety, depression, aggression, and vulnerability to drug abuse and antisocial behavior. 32 Studies with

29 Gleeson, M., & Timmons, F. (2004). The use of touch to enhance nursing care of older person in long-term mental health care facilities. Journal of Psychiatric Mental Health Care Nursing, 11, 541-545.
30 Field, T. (2001). Touch. Cambridge, MA: Cambridge University Press. Field, T. (2011). Massage therapy: A review of recent research. In M. Hertenstein & S. Weiss Eds (2011). The Handbook of Touch: Neuroscience, Behavioral, and Applied Perspectives. New York: Springer Publications.
31 Suzuki, M., Tatsumi, A., Otsuka, T., Kikuchi, K., Mizuta, A., Makino, K., Kimoto, A., Fujiwara, K., Abe, T., Nakagomi, T., Hayashi, T., & Saruhara, T. (2010). Physical and psychological effects of 6-week tactile massage on elderly patients with severe dementia. American Journal of Alzheimer's Disease and Other Dementias, 25(8), 680-686.

32 Feldman, R. (2011). Maternal touch and the developing infant. In M. Hertenstein

& S. Weiss Eds (2011). The Handbook of Touch: Neuroscience, Behavioral, and

Applied Perspectives. New York: Springer Publications. Main, M., & Stadtman, J.

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nonhuman species find that touch-deprived rats show reduced growth hormone and are
disrupted in their social relations with conspecifics. 33 Adolescent experiences with
impoverished touch are associated with increased aggression and antisocial behavior later
in life as adults.34 Without healthy levels of supportive touch, humans and nonhumans
are more vulnerable to problems in social adjustment and physical and mental health.
F. Summary and Conclusion
23. This robust science of touch now numbers in the hundreds of rigorous,
peer-reviewed studies. It spans different ages, cultures, class backgrounds, ethnicities,
and mammalian species, and has assessed psychological functioning at multiple levels of
analysis, from self-reports to biomarkers of stress, immune system strength, and brain
response. This literature converges on the general claim that through influences upon the
nervous system, touch soothes during stress, signals safety, and is a trigger of social
cooperation. Touch is a medium of strong relationships, and as a direct physical
manifestation of social support, promotes health and well-being.
(1981). Infant response to rejection of physical contact by the mother. Journal of the American Academy of Child Psychiatry, 20, 292-307. Mikulincer, M., & Shaver, P. (2007). Attachment in adulthood: Structure, Dynamics, and Change. New York: Guilford Press.
33 Cascio, C.J. (2011). Tactile dysfunction in neurodevelopmental disorders. In M. Hertenstein & S. Weiss Eds (2011). The Handbook of Touch: Neuroscience, Behavioral, and Applied Perspectives. New York: Springer Publications.
34 Field, T. (2004). Touch deprivation and aggression against self among adolescents. In D. M. Stoff & E. Susman (Eds.), Developmental Psychology of Aggression (pp. 117140). Bethesda, MD: National Institute of Mental Health. Field, T., Violence and Touch Deprivation in Adolescents, Adolescence, 37, 735-749 (2002); Field, T., (2005) Deprivation and Aggression Against Self Among Adolescents, in D. Stoff & E. Susman(Eds.), Developmental Psychobiology of Aggression (pp. 117-140). New York: Cambridge.

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24. The science is clear: depriving humans of the ability to touch another human being denies them a basic form of social interaction critical to the functions of soothing in response to stress, creating a sense of safety, and fostering cooperation. Denying people the opportunity for caring touch deprives them of one of the most ennobling sources of purpose and meaning in human social life – contact and affection with family and community. Deprivation of this essential bonding opportunity strips individuals of their sense of social support, setting in motion patterns of chronic stress and distrust, which in turn often directly contribute to greater ill will and hostility. These cumulative effects of touch deprivation – the physical manifestation of social support – will contribute to chronically high levels of stress and cortisol, which have wellestablished links to the acceleration of multiple health problems and disease, as well as mental health difficulties.35 Touch deprivation only amplifies the pronounced problems of social isolation.
Respectfully submitted,
March 11, 2015
____________________ Dacher Keltner, Ph.D.

35 Sapolsky, R. M. (2004). Why Zebras Don’t Get Ulcers. 3rd Edition. New York: Holt

Publishing.

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APPENDIX

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.

Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF MATTHEW D. LIEBERMAN

1

TABLE OF CONTENTS Page(s)
I. STATEMENT OF EXPERT QUALIFICATIONS...........................................................1 II. EXPERT OPINION.........................................................................................................2
A. Is social interaction/connection a basic/fundamental human need? What does neuroscientific research reveal about the human need for social interaction/connection? Is it a need as basic as sleep, exercise or food? ................2
B. What kinds of social interactions or connections are necessary/important to meet these needs? .........................................................................................................5
C. What is the relationship between how the brain processes “social pain” and “physical pain”?...................................................................................................6
III. SUMMARY ..................................................................................................................10
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I. STATEMENT OF EXPERT QUALIFICATIONS 1. I am a Professor of Psychology, Psychiatry and Biobehavioral Sciences at
University of California, Los Angeles (UCLA). I am also Director of the Social Cognitive Neuroscience Laboratory at UCLA. I have published more than 160 book chapters and peerreviewed articles, including many at the most prestigious scientific journals. I have also recently published the award-winning book Social: Why Our Brains are Wired to Connect. I have won several major awards in my field and my university for both research and teaching. I am the founding and current editor-in-chief of the scientific journal Social Cognitive and Affective Neuroscience. I received my B.A. from Rutgers University in 1992. I received my Ph.D. from Harvard University in 1999. My full curriculum vitae can be found as Exhibit A to this report.
2. My work broadly focuses on the intersection of social psychology and neuroscience and my early research is often associated with the founding of the field of social cognitive neuroscience. Most of the research in my laboratory uses functional magnetic resonance imaging (fMRI) to examine individuals’ brain responses while thinking about or interacting with other people. Two lines of research in my lab pertain to the current report. First, we conduct fMRI studies examining how individuals are able to make sense of their social environments and infer what those around them are thinking and feeling. Second, in collaboration with Professor Naomi Eisenberger, I have conducted fMRI and behavioral studies examining social pain – the painful and distressing feelings that occurs when individuals are potentially or actually separated from others through rejection, exclusion, ostracism, or in response to the death of a loved one.
3. I have never testified in a court case previously. 4. I have been retained by counsel for plaintiffs in Ashker et al. v. Governor of California, et al., pending in the United States District Court for the Northern District of
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California. 5. I am charging $150 per hour plus all expenses for my work on this matter 6. The findings and conclusions presented in this Statement are based on my years
of research and analysis and the results of my review of materials pertinent to this case. As described below, I reviewed a particularly important article by Baumeister and Leary (1995). In addition, I examined more than a 1,000 articles that were published in the decade after Baumeister and Leary and cited this article.
7. I have been asked to address three issues in my testimony as follows: A. Is social interaction/connection a basic/fundamental human need? What does neuroscientific research reveal about the human need for social interaction/connection? Is it a need as basic as sleep, exercise or food? B. What kinds of social interactions or connections are necessary/important to meet these needs? What happens on the level of the brain when a person is deprived of social interaction/connection? How much deprivation of social interaction/connection triggers such a response – i.e. what does it take for the brain to register lack of social interaction/connection? C. What is the relationship between how the brain processes “social pain” and “physical pain”? Is the “social pain” that results from lack of social interaction/connection similar to “physical pain”? If so, how?
II. EXPERT OPINION A. Is social interaction/connection a basic/fundamental human need? What does neuroscientific research reveal about the human need for social interaction/connection? Is it a need as basic as sleep, exercise or food? 8. It is considered settled science within the field of psychology that humans and all
mammals have a fundamental need for social connection. The seminal paper on this issue is
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“The Need to Belong: Desire for Interpersonal Attachments as a Fundamental Human Need,” published in 1995 by Roy Baumeister and Mark Leary. This paper has been cited more than 8,300 times by other publications. It is actually the second most cited paper in the field of social psychology from the last two decades (with the first most cited paper also affirming, though not focusing, on the principle that social connection is a basic need). Unlike many seminal papers that gain notoriety by also being controversial, there has been no major objection to Baumeister and Leary’s claims. To examine this systematically, I looked up all articles and book chapters that cited this paper in the first decade after it was published. I could not find a single paper that took issue with the main claims of this paper.
9. Baumeister and Leary provide nine criteria which any fundamental human need ought to satisfy. It should “(a) produce effects readily under all but adverse conditions, (b) have affective consequences, (c) direct cognitive processing, (d) lead to ill effects (such as on health or adjustment) when thwarted, (e) elicit goal-oriented behavior designed to satisfy it (subject to motivational patterns such as object substitutability and satiation), (f) be universal in the sense of applying to all people, (g) not be derivative of other motives, (h) affect a broad variety of behaviors, and (i) have implications that go beyond immediate psychological functioning” (p. 498). The remainder of the article goes on to marshal evidence demonstrating that each of these claims has been met for belonging and social connection. Thus, the authors concluded that the need to belong is indeed a fundamental human need and scientific consensus has continued to support this conclusion. The authors characterize this need to belong as a need to form and maintain strong, stable interpersonal relationships.
10. Additional findings beyond the scope of the Baumeister and Leary article speak to the evolutionary role that social relationships have in our survival as a species. For instance,
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mammalian infants are incapable of providing for their own food and shelter and thus only through a persistent social bond with a caregiver will an individual survive beyond infancy. Many non-mammalian species do not require this social bond for survival, but all mammals, including humans, do. Because adult mammals have large brains, relatively speaking, fullgrown brains at birth would make the birthing process via the birth canal virtually impossible. Thus, mammalian infants are born immature, with less developed brains, but the trade-off is that all mammals must be cared for in infancy, making social connection a clear survival need for the species.
11. Additionally, a lack of social connection and social support have been examined as risk factors for morbidity (i.e. death) and were found to be a greater health risk than smoking 15 cigarettes a day or continuing to smoke after a diagnosis of cardiac heart disease (HoltLunstad, Smith, & Layton, 2010). Social isolation or a lack of social support has also been repeatedly associated with various deleterious mental and physical health consequences (Cohen & Wills, 1985; Hawkley & Cacioppo, 2010; House, Landis, & Umberson, 1988).
12. The scientific consensus is clear in support of the claim that social connection is a basic human need. To what extent is it comparable to other needs like food, exercise, and sleep? Each need has a different time scale depending on the physiological consequences of deprivation for each need. Without water an individual will die in a few days. For sleep, missing it for a night will clearly produce a deprived state but lack of sleep is survivable for many days. Humans have gone without sleep for 18 days though ethics concerns prevent discovery of the absolute limit in a controlled research context. Rodents have been kept alive for up to a month without sleep. Lack of exercise is unlikely to lead directly to death in most individuals, even over extended periods. However, lack of exercise is a catalyst for countless other negative
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outcomes in terms of mental and physical health, cognitive functioning, and sleep. Thus, being deprived of exercise is clearly very deleterious to an individual.
13. Social connection is more of a need like sleep and exercise than food. No one will die from lack of social contact over a few days, but people will show evidence of being in a deprived state within a short period and a lack of social connection will likely produce a wide array of negative outcomes for an individual’s mental and physical well-being before long.
14. As for the brain’s contribution to understanding social connection as a basic need, the evidence will be described below in the penultimate section of this report. The short answer is that the brain has a neural system that registers various kinds of physical pain – each linked to a potential survival threat (loss of food, water, shelter). Thus the brain is evolved such that basic needs register physical pain in this network when those needs are in a deprived state. My lab and others have observed that when individuals are in a socially deprived state, they experience social pain and this produces neural activity consistent with it being a form of pain.
B. What kinds of social interactions or connections are necessary/important to meet these needs?
15. Scientific research has largely focused on whether certain factors relate to physical and mental well-being, rather than if there are certain specific cut-off levels for these factors below which negative outcomes are likely and above which they are not. That said, there are some suggestions regarding the kinds of social interactions and connections that are necessary.
16. First, in their paper “Need to Belong”, Baumeister and Leary (1995) defined belonging as a combination of “frequent interaction + persistent caring” with the latter referring to an interpersonal bond marked by stability, emotional concern, and continuation into the forseeable future. Based on various pieces of evidence, they argued that the absence of either
5

one of these factors would produce a deficit in the need to belong and over time lead to negative physical and mental health outcomes.
17. Other work has specifically examined the consequences of having or not having a single stable confidant over time (Lowenthal & Haven, 1968; Miller & Ingham, 1976). A confidant is someone that one has an ongoing intimate relationship with where each party can disclose their thoughts and feelings and each party knows that they have an important place in the other’s life. These studies found that the lack of a single confident was associated with poorer mental and physical health outcomes, relative to having one confidant. Moreover, having a single confident was found to have greater significance for these variables than having a greater amount of social interaction in one’s life. An additional benefit of having a confidant, over and above the need for social connection is the well-established relationship between selfdisclosure and mental health. Keeping one’s thoughts and feelings to oneself can lead various negative physical and mental health consequences in their own right (Frattaroli, 2006; Pennebaker & Beall, 1986; Larson & Chastain, 1990). Finally, some more recent work by Sandstrom and Dunn (2014) suggests that more frequent contact with mere acquaintances can bolster well-being in addition to the benefit of contact with stronger social ties. This work does not suggest frequent contact with weak social ties replaces the need for a confidant, but it can supplement it.
C. What is the relationship between how the brain processes “social pain” and “physical pain”?
18. There is considerable evidence that has accumulated in mammalian and human research to suggest that the mammalian brain evolved to process social pain (i.e. the painful feelings associated with potential or actual social rejection, loss, or isolation) repurposing some of the same neural and neurochemical processes invoked during physical pain. One leading
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account of this overlap between social and physical pain focuses on the fact that the brain has evolved to produce a pain response when any of our fundamental human needs (e.g. food, water, shelter) is in a deprivation state (e.g. hunger, thirst, pain from extreme heat or cold temperatures). Although each pain is different from the others, they share core features and processes that all fall into the category of pain and each of these draws our attention and motivates us to alleviate the deprived state.
19. Within the human brain there are two systems that process different aspects of physical pain. One system, located in somatosensory cortex, tracks the sensory aspects of pain and is critical for registering basic sensory information about a pain signal, such as indicating where the pain is coming from on our body (e.g. one’s hands rather than one’s back). A second system, in the dorsal anterior cingulate cortex (dACC) and anterior insula (AI) register the distressing aspects of pain. In other words, the dACC and AI, register the part of pain that bothers us and motivates us to change our behavior or take pain medication.
20. There is a database of more than 9,500 neuroimaging studies (Neurosynth) that allows researchers to look at different regions of the brain and identify whether those regions are best described as being involved in a particular psychological process. This is referred to as a reverse inference analysis. When applying this analysis to the dACC and AI, Neurosynth indicates that these regions are best described in terms of pain processes.
21. Interestingly, when neurosurgeons have removed part of the dACC or disconnected it from the other parts of the brain, patients will later report that they can still feel the pain and point to where it is on their body, but will also indicate that the pain no longer bothers them (Foltz & White, 1962). In addition, the dACC is among the regions most dense with opioid receptors. Opioids are a natural painkiller within the brain and their production is
7

stimulated by taking opiates such as morphine and heroin. 22. There are several lines of research, some with humans and some with animals,
suggesting that social pain is processed by the brain as real pain, rather than as a kind of metaphorical pain. The first evidence comes from language. An analysis of more than a dozen languages around the world (MacDonald & Leary, 2005), from English to Mandarin to Inuktitut, all use the language of physical pain as the primary mode of describing social pain (e.g. “hurt feelings”, “broke my heart”). Scholars have long suggested that consistent linguistic overlaps of this nature may reflect deep commonalities in their psychological processing (Lakoff & Johnson, 1999).
23. The first biological evidence was collected by Dr. Jaak Panksepp in the 1970s. He gave non-sedating doses of morphine to canine pups that were separated from their mothers. In the absence of morphine, the pups produced high levels of separation distress calls but after morphine, the calls diminished dramatically. Human research has also shown that those with a genetic disposition (i.e. the OPRM genetic polymorphism) to need more morphine than others to manage their physical pain in the hospital also tend to show greater social pain distress after being socially rejected (Way, Taylor, & Eisenberger, 2009).
24. The lionshare of the data bearing on the hypothesis of overlap between social and physical pain comes from fMRI studies focusing on dACC and AI activity – the regions associated with physical pain distress. In collaboration with Naomi Eisenberger, I conducted the first fMRI study of social pain (Eisenberger, Lieberman, & Williams, 2003) published in the journal Science. We observed that when people played a video game that involves tossing a ball with two other people and then were excluded from the game there was selectively increased neural activity in the dACC and AI. Additionally, both of these regions showed increased
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activity proportionate to the subjective feelings of social pain felt by each participant. If an individual reported feeling high levels of social pain then they showed more activity in dACC and AI than another individual who felt low levels of social pain. This work has been cited more than 2000 times and has been replicated dozens of times in labs around the world.
25. Recently, a meta-analysis by Rotge and colleagues (2015) aggregated the results from 46 fMRI studies of social pain and found strong evidence that the dACC was involved in social pain. The specific spot in the dACC identified in this analysis is in the same location that the Neurosynth database identifies as the hotspot for physical pain processing in the brain.
26. There are other notable findings from this fMRI literature on social pain. One recent study (Kross et al., 2011) examined the neural correlates of social pain and physical pain in the same group of participants. They observed overlapping responses in both pain distress regions like the dACC but also in the sensory component of pain in somatosensory cortex.
27. One particularly compelling fMRI paper (DeWall et al., 2010) examined the effects of taking Tylenol (i.e. acetaminophen) on social pain. Tylenol is commonly taken to relieve physical pain. The researchers argued that if social pain and physical pain rely on common neural processes then Tylenol ought to relieve social pain as well. In the first study, they found that those who took a dose of Tylenol each day for three weeks reported reduced “hurt feelings” on average than those who took an inert placebo pill each day. In the second study, they examined neural responses to the ball-tossing exclusion game in the MRI scanner after participants had taken either Tylenol or placebos. They found that those on placebos showed significant activity in the dACC and AI during exclusion relative to inclusion. In contract, those who had taken Tylenol showed a diminished dACC and AI response during exclusion and the activity in these regions was not different than during inclusion in the game.
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BIBLIOGRAPHY Baumeister, R. F., & Leary, M. R. (1995). The need to belong: desire for interpersonal
attachments as a fundamental human motivation. Psychological bulletin, 117(3), 497. Cohen, S., & Wills, T. A. (1985). Stress, social support, and the buffering hypothesis.
Psychological bulletin, 98(2), 310. DeWall, C. N., MacDonald, G., Webster, G. D., Masten, C. L., Baumeister, R. F., Powell,
C., & Eisenberger, N. I. (2010). Acetaminophen reduces social pain behavioral and neural evidence. Psychological science.
Eisenberger, N. I., Lieberman, M. D., & Williams, K. D. (2003). Does rejection hurt? An fMRI study of social exclusion. Science, 302(5643), 290-292.
Foltz, E. L., & White Jr, L. E. (1962). Pain" relief" by frontal cingulumotomy. Journal of neurosurgery, 19, 89.
Frattaroli, J. (2006). Experimental disclosure and its moderators: a meta-analysis. Psychological bulletin, 132(6), 823.
Hawkley, L. C., & Cacioppo, J. T. (2010). Loneliness matters: a theoretical and empirical review of consequences and mechanisms. Annals of Behavioral Medicine, 40(2), 218-227.
Holt-Lunstad, J., Smith, T. B., & Layton, J. B. (2010). Social relationships and mortality risk: a meta-analytic review. PLoS medicine, 7(7), e1000316. House, J. S., Landis, K. R., & Umberson, D. (1988). Social relationships and health. Science, 241(4865), 540-545.
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Kross, E., Berman, M. G., Mischel, W., Smith, E. E., & Wager, T. D. (2011). Social rejection shares somatosensory representations with physical pain. Proceedings of the National Academy of Sciences, 108(15), 6270-6275.
Lakoff, G., & Johnson, M. (1999). Philosophy in the flesh: The embodied mind and its challenge to western thought. Basic books.
Larson, D. G., & Chastain, R. L. (1990). Self-concealment: Conceptualization, measurement, and health implications. Journal of Social and Clinical psychology, 9(4), 439-455.
Lowenthal, M. F., & Haven, C. (1968). Interaction and adaptation: Intimacy as a critical variable. American Sociological Review, 20-30.
MacDonald, G., & Leary, M. R. (2005). Why does social exclusion hurt? The relationship between social and physical pain. Psychological bulletin, 131(2), 202.
Miller, P. M., & Ingham, J. G. (1976). Friends, confidants and symptoms. Social Psychiatry, 11(2), 51-58.
Pennebaker, J. W., & Beall, S. K. (1986). Confronting a traumatic event: toward an understanding of inhibition and disease. Journal of abnormal psychology, 95(3), 274.
Rotge, J. Y., Lemogne, C., Hinfray, S., Huguet, P., Grynszpan, O., Tartour, E., ... & Fossati, P. (2014). A meta-analysis of the anterior cingulate contribution to social pain. Social cognitive and affective neuroscience, nsu110.
Sandstrom, G. M., & Dunn, E. W. (2014). Social Interactions and Well-Being The Surprising Power of Weak Ties. Personality and Social Psychology Bulletin, 0146167214529799.
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Way, B. M., Taylor, S. E., & Eisenberger, N. I. (2009). Variation in the µ-opioid receptor gene (OPRM1) is associated with dispositional and neural sensitivity to social rejection. Proceedings of the National Academy of Sciences, 106(35), 15079-15084.
13

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.

Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF JUAN E. MÉNDEZ

I. II. III. IV. V.
A. B. C. D. VI.

TABLE OF CONTENTS

Page(s)

INTRODUCTION ...................................................................................................1 CREDENTIALS ......................................................................................................1 METHODOLOGY ..................................................................................................3 SOLITARY CONFINEMENT IN INTERNATIONAL LAW ...............................4 CONDITIONS IN THE PELICAN BAY SHU.....................................................16
Solitary Confinement .........................................................................................16 Duration .............................................................................................................18 Rationale and Process for SHU Placement ........................................................23 Insufficient Mitigation of Conditions ................................................................24 CONCLUSIONS....................................................................................................26

i

I. INTRODUCTION 1. I respectfully submit this expert report in order to assist the Court’s deliberations.
This report explains how international law analyzes the prolonged solitary confinement experienced by the Plaintiffs and members of the certified class in this matter. II. CREDENTIALS
2. I am currently the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a position that I have held as an independent expert since November 1, 2010, after being appointed to it by the Human Rights Council of the United Nations. My mandate was renewed in October 2013. First created in 1985, the Special Rapporteurship is one of more than fifty “Special Procedures” of the United Nations, and one of its longest-standing. Mandate-holders are appointed to serve for up to two consecutive threeyear terms, on the basis of their expertise in the respective subject matter covered by the mandate.
3. I do not submit this report in my capacity as Special Rapporteur but instead as an expert witness. My involvement in this case should not be interpreted in any way as waiving, limiting or having any other effect on the immunities enjoyed by the United Nations before United States courts.
4. In my capacity as Special Rapporteur on Torture, I visit countries that invite me in order to advise them on how to meet their obligation to observe the absolute prohibition in international law of both torture and cruel, inhuman or degrading treatment or punishment (CIDT). On such missions, I always include visits to prisons, detention centers and other places where persons are deprived of freedom and I eventually make recommendations on how to bring them up to international standards. I also write thematic reports on various aspects of the international law regarding torture with recommendations to the international community and to
1

all member States of the UN on how to fulfill the various obligations that are derived from the absolute prohibition on torture and CIDT. In October 2011 I submitted a report to the UN General Assembly on the use of solitary confinement and the ways in which, depending on circumstances, it may constitute either torture or CIDT. That report is attached hereto as Exhibit A.
5. My appointment as Special Rapporteur is the result of a long career dedicated to the promotion and protection of human rights, particularly in regards to torture. I have been a Special Advisor to the Prosecutor of the International Criminal Court on prevention of the crimes under that tribunal’s jurisdiction, and co-chair of the Human Rights Institute of the International Bar Association. Between 2004 and 2007, I was Special Advisor to the UN Secretary General on the Prevention of Genocide. As a member of the Inter-American Commission on Human Rights of the Organization of American States between 2000 and 2003 and as its President in 2002, I also visited prisons in the western hemisphere and authored reports on visits and case complaints about them. Earlier, as a researcher and manager for Human Rights Watch between 1982 and 1994, and later as HRW General Counsel between 1994 and 1996, I had occasion to visit detention centers in many countries as well, and to write reports on their compliance or noncompliance with international standards.
6. I teach in the area of International Law at U.S. and foreign law schools. Since the Fall of 2009, I have been Professor of Human Rights Law in Residence at the Washington College of Law, American University in Washington, DC., where I teach courses on International Law and on International Human Rights Law. I have previously taught at Notre Dame Law School (1999-2004), Georgetown University (1990-93) and the Johns Hopkins’ School of Advanced International Studies (1994). Since 1997, I have taught regularly at summer
2

sessions of the Oxford University’s Masters Program on International Human Rights Law in the United Kingdom, and I occasionally lecture or teach short courses at other universities around the world.
7. My curriculum vitae is attached to this report as Exhibit B. III. METHODOLOGY
8. For the purpose of rendering this expert testimony, I have received and read the Plaintiff’s Second Amended Complaint in this class action, the Summary of Step-Down Regulations; Order (by this court) Granting in Part Motion for Class Certification dated 06-022013; a DRB Case-by-Case Review of Ruben Williams dated 12-11-2013; Inmate/Parolee Appeal by Mark Quiroz dated 06-10-2013, Potty Watch and Contraband Surveillance Procedures (redacted in parts) dated 03-28-2012; Final Text of Adopted Regulations by California Department of Corrections and Rehabilitation, dated 10-17-2014; Serious Rule Violation Report on Luis Esquivel dated 08-11-1999; Declaration of Luis Esquivel in Support of Motion for Class Certification, dated 05-02-2013; Declaration of Todd Ashker in Support of Motion for Class Certification, dated 05-02-2013; Deposition of Warden Clark Ducart, 11-24-2014; Ashker Abridged Responses to Interrogatories (undated); and Agreement to End Hostilities, dated 08-122012. I also visited eleven members of the Eighth Amendment class in this case (including three named Plaintiffs) on December 8 and 9, 2014 at their current place of detention in Pelican Bay prison in Crescent City, California. I also visited the premises of the Special Housing Unit (SHU) and the wing for Administrative Segregation (“AdSeg”). The persons I interviewed gave me detailed explanations of the conditions of their detention and prolonged solitary confinement in Pelican Bay and also in other California correctional institutions.
9. I wish to inform the Court that, since September 16, 2011, I have been in contact with the US Government about the use of solitary confinement in several prisons in this country.
3

My communication of that date was answered by the Permanent Mission of the US in Geneva, Switzerland on November 30, 2011. I attach copies of both those documents as Exhibit C.
10. I state for the record that I have served as an expert witness in only one other lawsuit in the last four years. That case is Russell Shoatz v. Wetzel, US District Court for the Western District of Pennsylvania. My report was filed with that Court on February 13, 2015. That case is also about prolonged solitary confinement in State prisons.
11. I also state that I am receiving no compensation for my testimony in this case. Counsel for plaintiffs have paid for my transportation and lodging when I visited the Pelican Bay facility in Northern California. IV. SOLITARY CONFINEMENT IN INTERNATIONAL LAW
12. The treatment of prisoners and detained persons is comprehensively addressed by international law.1 As described more fully below, there is an emerging consensus that, under certain circumstances, solitary confinement violates international obligations with respect to treatment of offenders. Such violations arise when the use of solitary confinement crosses a threshold into becoming cruel, inhuman or degrading treatment or punishment or even torture. The limited use of solitary confinement under proper circumstances does not violate international standards. Circumstances in which solitary confinement may be legitimately imposed require: a) a reasonable motive or purpose in isolating the inmate; b) due process in the determination of its imposition, including a meaningful opportunity to challenge it; c) adequate medical examination to prevent isolation from affecting the inmate’s health; d) an absolute prohibition of its use, for any length of time, against children, persons with mental disabilities, and pregnant women; and
1 See generally, Sir Nigel Rodley and Matt Pollard, The Treatment of Prisoners under International Law, Oxford: OUP, 3d. edition, 2009. Sources include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the UN Convention Against Torture (CAT), the Standard Minimum Rules for the Treatment of Prisoners, and the UN Basic Rules for the Treatment of Prisoners (see below for complete references).
4

e) limited duration of an inmate’s term in isolation and limited time spent in isolation per day so that it does not inflict severe pain or suffering on the inmate. An important consideration is the length of the period that an inmate spends in isolation. Under international law obligations, there is an absolute ban on “indefinite” or “indeterminate” periods of isolation.2
13. International law establishes an absolute prohibition on torture as well as on cruel, inhuman or degrading treatment or punishment (CIDT) that cannot be derogated. This prohibition is jus cogens, meaning that it is an imperative norm of international law that binds all States and that admits no repeal or exception by another treaty or custom emerging later. The prohibition likewise does not recognize any emergency or other circumstance that could warrant a suspension. The United States is bound in all its governmental functions to abide by this prohibition, as a matter of jus cogens obligation, of customary international law and of treaty law, since the United States is a party to the UN Convention Against Torture (CAT), an instrument that codifies this and several other customary international law norms. The US has been a party to this multilateral treaty since 1994, after signature by the Executive Branch and ratification by the US Senate on April 18, 1988, and October 21, 1994, respectively.3 The US did include several declarations, reservations and understandings (DRUs) but none of them relevant to the absolute nature of the prohibition on either torture or CIDT.
14. One of the DRUs inserted in the ratification by the US of the CAT is relevant to this Court’s deliberation: The US declared that, for purposes of its obligations acquired in signing the treaty, it understood the notion of “cruel, inhuman or degrading treatment or punishment” to be equivalent to the constitutional prohibition of “cruel and unusual
2 Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report of Juan E. Méndez, U.N. Doc. A/66/268 (Aug. 5, 2011). 3 United Nations Human Rights, Treaty Body Reporting Status for the United States of America, available at http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=USA&Lang=EN
5

punishment.” Note that this is not a reservation excluding US obligations with respect to
“inhuman or degrading treatment” but a clarification that the words “cruel and unusual
punishment” are meant to convey the same meaning as CIDT. Therefore, any finding of fact that
a policy or practice constitutes CIDT as applied to the plaintiffs would ipso jure breach the
constitutional prohibition, and vice-versa. Under international law, torture is defined as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.4
15. CIDT are “other acts . . . which do not amount to torture as defined in article 1,
when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”5 Both definitions require the action
of a State agent, a requirement that is amply satisfied in the facts in this case. In both torture and
CIDT, the pain and suffering involved can be either physical or mental; in other words, a person
can be the victim of torture or CIDT even if no physical assault takes place. “Mental” pain and
suffering is what more appropriately should be called “psychological” or “emotional” adverse
effects on a person’s mind.
16. For purposes of a more clear understanding of when a certain behavior constitutes
torture and when it is CIDT, the Office of the UN High Commissioner for Human Rights has
stated that:
4 Art. 1, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “CAT”), Dec. 10, 1984, 1465 U.N.T.S. 85. The “lawfulness” of the sanction is determined by reference to international, not domestic law. See Fn 22 below. 5 Ibid, Art. 16
6

Torture and cruel, inhuman and degrading treatment are concepts that might be difficult to distinguish . . . Torture is a [more] severe form of inhuman treatment, but there is no objective element of distinction between the two categories. Acts at stake are usually identical and only the level of intensity/severity of the ill-treatment, taking into account the vulnerability of the victim, may vary.6
17. The International Committee of the Red Cross (ICRC), considered an
authoritative interpreter of the Geneva Conventions and uses and customs of war as well as on
prison conditions for all categories of persons deprived of freedom, adds that:
The element that distinguishes inhuman treatment from torture is the absence of the requirement that the treatment be inflicted for a specific purpose . . . In their case-law [on inhuman treatment] human rights bodies stress[] the severity of the physical or mental pain or suffering. They have found violations of the prohibition of inhuman treatment in cases of active maltreatment but also in cases of very poor conditions of detention, as well as in cases of solitary confinement. Lack of adequate food, water or medical treatment for detained persons has also been found to amount to inhuman treatment.7
18. There are two important differences between torture and CIDT. One is that
torture requires specific intent to cause pain and suffering, while CIDT can be inflicted
intentionally or by deliberate indifference. The other difference is one of degree of the pain and
suffering; torture is a more severe form of CIDT that is inflicted with specific intent. CIDT
certainly requires a certain intensity of pain and suffering, but of a lesser severity than torture.
The threshold of severity that transforms CIDT into torture is not well defined because it
depends on both objective and subjective circumstances; the same treatment can be CIDT when
inflicted on a sane and healthy adult, and torture when the victim is infirm, under age or for other
reasons more vulnerable to pain and suffering.
19. In relation to the specific intent required for torture, it must be noted that it should
6OHCHR, UNVFVT, Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies, available at: http://www.ohchr.org/Documents/Issues/Torture/UNVFVT/Interpretation_torture_2011_EN.pdf 7 ICRC, Customary IHL Rules, available at https://www.icrc.org/customaryihl/eng/docs/v1_cha_chapter32_rule90#Fn_95_26)
7

not be confused with the purpose for which the treatment is applied. It is the deliberate and knowing intention to inflict pain and suffering that characterizes torture, regardless of whether the purpose is to coerce a confession or statement against interest, to punish the victim, to terrorize friends, relatives or acquaintances, or for any other purpose, including lofty ones such as preventing other harms.
20. There is no requirement in international law that either CIDT or torture must have lasting, diagnosable effects in order to be so classified, just like there is no need for permanent scars to decide that deliberate electrocution constitutes physical torture. Subjective considerations may be important to determine whether a certain episode constitutes CIDT or torture; but the objective test of both is the infliction of pain and suffering regardless of the ultimate way in which the victim experiences it.
21. It is very well established that CIDT and torture can result from subjecting persons to certain conditions of detention. In addition to the severity requirement, CIDT can originate in policy decisions that, for example, result in overcrowding, unsanitary conditions, insufficiency of food or medical care, etc. Certain conditions of detention can be categorized as torture if they are intentionally imposed and reach a higher degree of severity; examples are sleep deprivation, denial of medical services, and excessive use of force as a disciplinary measure to keep order in the facility. Even if standards in treaties are general, they are not necessarily vague in a manner that would preclude a court from determining that pain and suffering (depending on its intensity and on its intentional character) constitutes: a) treatment incidental to a regularly imposed penalty, in which case it is neither CIDT nor torture; b) CIDT; or c) torture.
22. In addition to the clear language of CAT, international standards of a non-binding
8

nature come to the aid of the decision-maker, in particular the UN Standard Minimum Rules for the Treatment of Prisoners (SMR).8 The SMR is a document drafted in the 1950s by the then Crime Prevention Branch of the United Nations, today called UN Organization on Drugs and Crime (UNODC), an independent organization of the UN “family” based in Vienna, Austria, in which all member States of the UN are represented. The SMR has long been considered an authoritative guide to the interpretation of customary and treaty standards that prohibit mistreatment of persons deprived of freedom, either as a result of a criminal investigation, or imposition of a sentence, or for any other reason.
23. The SMR in its present language contains only passing references to solitary confinement, mandating that persons to be put in solitary confinement must be first subjected to medical examination (understood to include a psychiatric/psychological determination of good mental health).9 SMR also states that “[t]he medical officer shall visit daily prisoners undergoing such punishments and shall advise the director if he considers the termination or alteration of the punishment necessary on grounds of physical or mental health.”10
24. It must be noted that the international community, under the auspices of UNODC, is in the process of a substantial review of the SMRs with the assistance of criminological and correctional experts from around the world and participation of many States and civil society organizations. This expert expects the revised SMRs to include more explicit rules dealing with solitary confinement, specifically regulating its duration and including a ban on its use for certain categories of prisoners.
25. A separate instrument of international law, elaborated by well-known experts in
8 United Nations Standard Minimum Rules for Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), P 19, U.N. Doc. E/3048 (Jul. 31, 1957) (amended May 13, 1977). (Hereinafter “SMR”) 9 SMR, Article 32(1) “Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it.” 10 Ibid., Article 32(3)
9

the early years of the millennium, does refer explicitly to solitary confinement: the Istanbul
Statement on the Use and Effects of Solitary Confinement.11 Like the SMRs, the Istanbul
Statement has, in only a few years, attained the status of authoritative guidance to policy-makers,
prison authorities and adjudicators. In particular, it constitutes the generally recognized
normative instrument to establish what are legitimate and illegitimate uses of isolation and
segregation of persons under any form of detention, and on the procedures and limits that are
required to keep solitary confinement within legality and legitimacy. The Istanbul Statement
ends with these words: “As a general principle solitary confinement should only be used in very
exceptional cases, for as short a time as possible and only as a last resort.” Istanbul Statement at
7. In addition, Principle 7 of the UN Basic Principles for the Treatment of Prisoners states that
“[e]fforts addressed to the abolition of solitary confinement as a punishment, or to the restriction
of its use, should be undertaken and encouraged.” 12
26. International adjudicatory bodies have ruled on solitary confinement in specific
cases as well as in thematic and country-specific reports, and their judgments help determine the
limits of legitimate uses of isolation.13 In my capacity as UN Special Rapporteur on Torture, I
issued an October 2011 thematic report to the General Assembly, attached hereto as Exhibit A.
11 Istanbul Statement on the Use and Effects of Solitary Confinement, Adopted on 9 December 2009 at the International Psychological Trauma Symposium, Istanbul (hereinafter “Istanbul Statement) available at: http://solitaryconfinement.org/uploads/Istanbul_expert_statement_on_sc.pdf. 12 UN Basic Principles for the Treatment of Prisoners, para 7, available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/BasicPrinciplesTreatmentOfPrisoners.aspx 13 See, e.g. IACHR, Rapporteurship on the Rights of Persons Deprived of Liberty, Report on the Use of Pretrial Detention in the Americas, OEA/Ser.L/V/II (Dec. 30, 2013); Velázquez-Rodríguez v. Honduras, Inter-American Court of Human Rights, Series C, No. 4, para. 156 (1988) (finding that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being.”); Gómez de Voituret v. Uruguay and Espinoza de Polay v. Peru, Human Rights Committee (HRC); European Committee for the Prevention of Torture, Second General Report (ibid., § 1346); Inter-American Court of Human Rights, Castillo Petruzzi and Others case.
10

Almost simultaneously, the Committee for the Prevention of Torture of the Council of Europe
(CPT) also called to the attention of that body its concerns as to the expanded use of solitary confinement in many of its 48 member States.14 Like the Special Rapporteur, the CPT also
called for specific regulation of solitary confinement to avoid its use in manners that breach the
prohibition on torture or CIDT.
27. The Inter-American Commission on Human Rights of the Organization of
American States (IACHR) is a treaty body of the American Convention of Human Rights and a
“principal organ” established by the Charter of the OAS (a regional organization of which the
US is a member). It is considered a highly authoritative organ of interpretation of both treaty and
customary norms in our hemisphere and it has had occasion to deal with prison conditions often
since its creation in 1959. In a document called “Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas,” approved by the Commission during its 131st
regular period of sessions, the IACHR states:
Solitary confinement shall only be permitted as a disposition of last resort and for a strictly limited time, when it is evident that it is necessary to ensure legitimate interests relating to the institution’s internal security, and to protect fundamental rights, such as the right to life and integrity of persons deprived of liberty or the personnel.
In all cases, the disposition of solitary confinement shall be authorized by the competent authority and shall be subject to judicial control, since its prolonged, inappropriate or unnecessary use would amount to acts of torture, or cruel, inhuman, or degrading treatment or punishment.15
28. As is well known, solitary confinement in the United States has also been the
14 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 21st General Report of the CPT (Nov. 10, 2011), CPT/Inf (2011) 28, available at: http://www.cpt.coe.int/en/annual/rep-21.pdf. 15 OEA/Ser.L/V/II.121, Doc. 38, Mar. 13 2008. I cited this report also in my brief amicus curiae (“parecer”) to the Supreme Court of Brazil in a constitutional challenge to prison regulations that allow for solitary confinement, see http://antitorture.org/wp-content/uploads/2013/07/Parecer-J-Mendez ENG1.pdf. That decision is pending.
11

subject of concern for legislators, prison administrators, courts and civil society, a concern that is clearly on the increase. Some States have closed down facilities designed to isolate inmates, while other States have prohibited solitary confinement of persons with mental disabilities, of children and of young inmates under 21 and replaced it with a more moderate form of segregation. In many States there are ongoing judicial challenges to the indefinite or prolonged imposition of solitary confinement.
29. State practice signals the emergence of a customary international law norm if it gathers momentum in the direction of reform and if such reform is instituted because of a sense of legal obligation (opinio juris). It is difficult to say whether such a process is under way with respect to solitary confinement in general, mostly because there is a dire lack of information or statistics on the use of solitary confinement around the world. However, there is at the present time clear and ample state practice to restrict its use, on the one hand by prohibiting it for some categories of inmates, and on the other hand to limit its duration even for those inmates for whom some isolation is legitimate and warranted.
30. In that sense, it is safe to say that indefinite solitary confinement and prolonged solitary confinement are prohibited by customary international law standards binding on all States.16 Authoritative pronouncements by international and regional bodies also consistently indicate that prolonged or indefinite isolation are strictly prohibited because they breach the international legal prohibition against torture and/or CIDT.17 Even regimes of “relative isolation”
16 Solitary confinement is indefinite when no fixed term is imposed on its use or when it can be extended for many consecutive periods; it is prolonged when it exceeds a number of days. In my Report to the UN General Assembly I mentioned 15 days as the maximum term for which unmitigated, absolute isolation can be imposed, based on medical and psychiatric literature. For regimes of solitary confinement with some mitigation, the maximum term could be longer, but certainly counted in days, not weeks, months or years. 17 See, e.g. Maritza Urrutia v. Guatemala, Judgment of November 27, 2003, Inter-Am. Ct. H.R., (Ser. C) No. 103 (2003) (restating the finding of the Inter-American Court of Human Rights that “prolonged
12

(i.e. with the use of mitigating factors), have been unambiguously declared to be improper when
imposed indefinitely.18
31. Also prohibited is the application of solitary confinement without due process of
law guarantees, or on the basis of “status” or other considerations not related to specific behavior
by the inmate. The non-binding instruments, the judicial decisions and the pronouncements of
authoritative treaty bodies that I have cited above, represent a clear trend towards the need to
regulate solitary confinement, to restrict its uses, to surround it by due process guarantees and,
principally, to prohibit its use for indefinite or prolonged durations.
32. The precedents referred to above point to a consensus that solitary confinement
must never cross the threshold of the prohibition of CIDT or of torture, and that -- for that
purpose -- it must be subject to the following conditions:
- For definitional purposes, solitary confinement is any condition of detention in which an inmate is deprived of any meaningful social contact for 22 to 24 hours each day;19 regardless of other conditions such as availability of radio, television, reading or writing material;
- It should never be imposed, for any duration, on children, pregnant women, or persons with a psycho-social disability;
- It should not be imposed as a means or modality of execution of a sentence, as in that case it would constitute cruel, inhuman or degrading (or unusual) punishment;
- It may legitimately be used as a disciplinary sanction for the more serious
isolation and deprivation of communication are in themselves cruel and inhuman treatment”); Bamaca Velazquez v. Guatemala (November 25, 2000), IAmCtHR, (finding that “the prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any detainee to respect for his inherent dignity as a human being”);Human Rights Committee, General Comment 20 (noting that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Article 7 of the ICCPR) 18 See Babar Ahmad and others v. UK (April 10, 2012), European Court of Human Rights (stating that while the Court has never specified a period of time beyond which solitary confinement will attain the minimum level of severity required by Article 3 (prohibition against torture and ill-treatment), “solitary confinement, even in cases entailing relative isolation, cannot be imposed indefinitely on a prisoner”). 19 Istanbul Statement, p. 1.
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breaches of prison discipline, and then for a definite term and after a hearing with meaningful opportunity to challenge the decision;
- It may not be imposed on the basis of an administrative determination of status of the inmate as dangerous in the absence of specific behavior by the inmate that breaches prison regulations;
- It must be subject to controls, especially of a medical nature, that are frequent, impartial, independent and professional enough to prevent serious mental or physical pain and suffering;
- It must never be imposed for an indefinite or indeterminate period;
- It must never be imposed for prolonged periods.
- Whether applied lawfully or in violation of the above rules, it should be subject to meaningful and effective judicial review.
33. Although the determination of a period beyond which solitary confinement
becomes prolonged is subject to debate, it is clear that it should be counted in days or weeks, not
in months or years. This expert has proposed a maximum of 15 days, not immediately renewed,
at least for those regimes of solitary confinement that consist of complete 24-hour isolation
without access to any amenities such as radio, television or reading or writing materials. The
medical literature suggests that maximum term because the human mind starts working differently after 15 days of total isolation, and in many cases the damage can be irreversible.20 It
follows that for a regimen of isolation surrounded by some mitigation -- as applied to members
of the plaintiff class in the Security Housing Unit of the Pelican Bay prison, i.e., 90 minutes of
exercise outside the cell, access to radio, television and reading and writing materials -- the
maximum term could be 30 days or a slightly longer period that must not exceed an established
number of days and should not be renewed without a break in between terms. Mitigating factors
20 I refer the Court to the medical literature cited in my 2011 thematic report to the UN General Assembly, attached to this testimony and to the similar literature cited in the Istanbul Statement. See also Ilascu and others v. Moldova and Russia, Application No. 48787/99, European Court of Human Rights (2004), para. 432 (stating that “complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reasons.”).
14

may temporarily limit or delay the damage to brain function involved in complete isolation, but they do not eliminate the pain and suffering that isolation causes on the inmate.
34. As stated earlier, solitary confinement can legitimately be used to prevent harm to the security of the institution, to its staff or to other inmates. It may also be used to protect inmates who would be at risk of predators if left in the general population. It is also a legitimate sanction for a well-established and proven breach of prison discipline. In all of these cases, it should be for a previously established short term and applied with due process of law requirements.21
35. Under international law it is impermissible to impose it as a prolonged measure or indefinitely, or on the basis of a “status” assigned to an inmate that does not depend on an objectively determined illegal behavior on his part.
36. The UN Human Rights Committee (HRC) has moreover made it clear that the constitutionality of a sentence or measure in a domestic jurisdiction is not sufficient to secure its compliance with the international law. Accordingly, in cases where CIDT contrary to article 7 of the ICCPR has been committed, the “permissibility of a sentence under domestic law cannot be invoked” to justify the prohibited treatment, and the State in question is obliged to abide by the relevant international legal standards.22
21 In the Case of Montero-Aranguren et al (Detention Center of Catia) v. Venezuela Judgment of July 5, 2006 (Preliminary Objection, Merits, Reparations and Costs), the Court deemed that “solitary confinement cells must be used as disciplinary measures or for the protection of persons only during the time necessary and in strict compliance with the criteria of reasonability, necessity and legality. Such places must fulfill the minimum standards for proper accommodation, sufficient space and adequate ventilation, and they can only be used if a physician certifies that that the prisoner is fit to sustain it.” Paras 93, 94. 22 See George Osbourne v. Jamaica, Communication No. 759/1997, U.N. Doc. CCPR/C/68/D/759/1997 (2000) (finding the imposition of corporal punishment, which was constitutional under domestic law, contrary to ICCPR article 7).
15

V. CONDITIONS IN THE PELICAN BAY SHU A. Solitary Confinement: 37. For purposes of this report, I use the term “solitary confinement” to describe
certain conditions of incarceration of members of the plaintiff class, regardless of whether the State of California officially uses that terminology. As stated above, solitary confinement is the detention regimen by which an inmate spends from 22 to 24 hours each day alone in a cell, with the effect of depriving him or her of meaningful social contact. For these purposes, the term applies regardless of whether the regimen is imposed as a disciplinary sanction, as a manner of execution of a penalty of imprisonment, as a specific restriction in the course of investigation of crime or during preventive detention, or as a matter of administrative discretion in management of a prison facility.
38. In the case of Pelican Bay, solitary confinement in the SHU is a discretionary measure based on the status administratively assigned to an inmate who is serving a prison term. When I visited I was told that almost 1,200 inmates were living in the SHU.
39. At Pelican Bay, inmates at the SHU spend 22 and a half hours of each day alone in a cell without windows.23 A few inmates are sometimes allowed to live in the cell with another inmate, if, for example, necessary to assist one of them in writing or other chores because of some disability. The cells measure approximately 80 square feet, and they include a bed, a toilet and a sink. They have no windows and one side of them is open to the corridor, but there are no cells facing each other. In consequence, some conversations are possible with adjoining cells -- as long as voices are not raised too high, as shouting is not permitted -- but
23 The descriptions that follow are based on my own visual impressions, the material I have read and the interviews with inmates. See also Amnesty International report at: http://www.amnestyusa.org/sites/default/files/edgeofendurancecaliforniareport.pdf. Defendants have also admitted this fact in their Answer to this Complaint.
16

without visual contact. SHU inmates are allowed reading and writing materials, radio and TV (at their cost) which they can watch or listen to at any hour of the day or night. The 90 minutes of daily exercise take place in a space adjoining each section to which each inmate is taken by himself. The SHU exercise yard consists of four cement walls, that are 20 feet high, with half of the roof open to the sky through a wire mesh.
40. The daily isolation that results from these conditions is exacerbated by the geographic remoteness of Pelican Bay; although family visits are authorized on a weekly basis, many inmates receive only a few visits each year, if at all. Family visits (as well as visits with lawyers) are held in booths that separate the inmate from the visitor with a Plexiglas window, and conversations are held by a telephone attached to the wall. Visits and conversations with family (but not with lawyers) are openly monitored by the authorities.
41. Some cells in the SHU are equipped with a transparent Plexiglas mesh that covers the whole open side of the cell. Prison authorities report that these so-called “Lexan cells” are required by occupational safety and health regulations, to protect prison staff against attempts of some inmates to throw feces or urine at them. The inmates report that such cells are deprived of adequate air flows since there are no windows, so that cell temperature becomes too warm to bear. They also report that the authorities place inmates in them without regard to their behavior and for no explained reason. Authorities confirmed to me that they use them because they need the space. Since the condition of extreme isolation for 22.5 hours each day is already extremely harsh, those who are placed in Lexan cells for indefinite periods suffer an added cruelty to their harsh prison sentences that has no valid justification in terms of prison management and thus also breaches international obligations.
42. The transportation of the inmate to and from visits is marked by a process of strip
17

searches, body cavity searches, chaining, handcuffing and escort by guards that inmates find

humiliating. Despite the existence and easy availability of X-rays and metal detectors, inmates

are forced to strip of all their clothes and to be visually examined by guards on all parts of their

bodies, including anatomical orifices; and to do so repeatedly, even if at all times they have been

in the company of guards who monitor their every movement. These strip searches and body

cavity searches are disproportionate and unnecessary to any reasonable security concern and they

have the effect -- if not the purpose -- of humiliating the inmates. International precedents have

ascertained that the very definition of “degrading” treatment or punishment in Art. 16 of the Convention Against Torture, is that action that humiliates the person subjected to it.24 For that

reason, strip searches, body cavity searches, shackling, chaining and handcuffing as applied in

Pelican Bay to SHU inmates during transfers within the facility violate U.S. obligations under

that treaty. B.

Duration:

43. Gang-validated prisoners are placed in the SHU for an indeterminate period.

Under the old system in place at the facility, inmates were reviewed for release from the SHU

every six years. Under the new system as I understand it, one must still wait for years before

receiving a review that allows release from the SHU. These periods of time do not meet the

requirements of adequate periodic review under international law. Moreover, the authorities do

not seem to consider the possibility of limiting the repetition of terms of solitary confinement.

As a result, all the inmates I interviewed appeared to be subject to both prolonged and

indefinitely-imposed periods of solitary confinement:

24 Van der Ven v. Netherlands, European Court of Human Rights (2003) (finding that the practice of weekly invasive strip-searches for three and a half years, where the application was already subjected to a great number of surveillance measures and in the absence of convincing security needs, diminished the applicant’s human dignity and amounted to inhuman or degrading treatment).
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- Todd Ashker has spent the last 25 years at the Pelican Bay SHU, plus an earlier time at the SHU in Folsom. - Luis Esquivel has been at the SHU since February 2000, i.e., 15 years, plus ten months earlier in Lancaster SHU. - George Franco has been in the Pelican Bay SHU for the last 23 years, plus an earlier period at the Corcoran SHU. - Fernando Bermudez was sent to the SHU at Folsom in 1982 and has been in isolation ever since, i.e., 33 years. - Ronnie Yandell has been at the Pelican Bay SHU for the last eleven years. - Ruben Williams has spent the last 33 years in solitary confinement, first at Folsom, then at Pelican Bay. - Apolonio Hernandez has been at the SHU for 18 years, always at Pelican Bay. - Randall Ellis has been in isolation since 1984, at San Quintin, Folsom, Corcoran and Pelican Bay; first arrested when he was 16, he has spent all but the first eighteen months of his imprisonment in solitary confinement. - Cornelio Montes has been isolated for 21 years at Calipatria, Corcoran and, since 1995, at Pelican Bay. - Antonio Guillen has been at the Pelican Bay SHU for 12 years, and had previously been isolated in Tahapachi for two years. - James Williamson was transferred to Pelican Bay in November of 1990 and has been there ever since: 24 years. 44. As set forth above, I have visited numerous prisons in many nations around the
world. Many of these nations utilize some forms of solitary confinement. What I observed at
Pelican Bay is exceptional in terms of the extraordinary length of time that these inmates have
spent in solitary confinement.
45. Moreover, Pelican Bay is also exceptional in having substantial numbers of
prisoners held in solitary confinement for over a decade because of their status as an active gang
member or affiliate without having committed either a violent crime or having had a very violent
history. I know of no other country that keeps substantial numbers of prisoners in decades-long
19

solitary confinement simply because of membership in or affiliation with groups such as gangs. 46. In addition to the extraordinary length of these SHU terms, it must be noted that,
either by regulation or de facto, no one serving a life sentence is considered for parole while being housed in the SHU. At least some of those interviewed, and perhaps many among the plaintiff class, have been eligible for parole for many years (one since 1999) after having served the requisite portion of their sentences. For them, the arbitrariness of their placement at the SHU denies them a right to be considered for early release, even though their behavior in custody does not merit such denial.
47. As a result of litigation and of the various hunger strikes, some changes are under way. The Department of Corrections has instituted a Step Down Program that establishes rules and procedures to allow inmates to leave the SHU and be returned to the general population. Presumably, the reviews of status will now be governed by more specific, objective standards, and there may be more frequent reviews. The long chronological terms between steps, i.e., between administrative decisions to ease the conditions of isolation, seem unaffected by these changes for now. The standards and burden of evidence also do not seem to be very different. At any rate, because the Step Down Program is at very early stages of implementation, it is difficult to determine whether it will make a meaningful difference.
48. Judicial precedents by international courts establish a direct relationship between the legality of a regimen of isolation and its duration. The Human Rights Committee has found that total isolation, even for a period of several days, without the possibility of recreation, violates Article 7 (prohibition of torture and ill-treatment) of the ICCPR.25 It has also found violations of Article 10 of the ICCPR (failing to respect the inherent dignity of the human person) in cases where applicants were placed in solitary confinement for periods of five to six 25 Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994).
20

years.26
49. The Committee against Torture has in its concluding observations consistently
expressed concern about the use of prolonged solitary confinement without a time limit,27 urging
States to limit its use as a “measure of last resort, for as short a time as possible under strict
supervision and with a possibility of judicial review.”28
50. The European Court of Human Rights has found that a stringent regime of
solitary confinement of approximately three years constitutes inhumane and degrading treatment
and exceeds that treatment inherently unavoidable in detention.29 The Court has expressly stated
that “even for difficult and dangerous prisoners, periods of solitary confinement should be as
short as possible,” even when prisoners are subjected to “relative social isolation,” rather than
“sensory or total social isolation,” and found a violation of Article 3 (prohibition of torture and
26 See, e.g. Xavier Evans v. Trinidad and Tobago (March 21, 2003); Charles Gurmurkh Sobhrak v Nepal (July 27, 2010); Kennedy v. Trinidad and Tobago, Communication No. 845, U.N. Doc. CCPR/C/67/D/845/1999 (31 December 1999); see also Yong Joo-Kang, 878/1999, 78th Session, July 15, 2003 (Finding a violation of Article 10, paragraph 1 of the ICCPR protecting the inherent dignity of the prisoner, and of paragraph 3, which requires the essential aim of detention to be reformation and social rehabilitation, in a case where the applicant was held in solitary confinement for 13 years on the ground of his presumed political opinion. Detention in solitary confinement for a period of 13 years “is a measure of such gravity, and of such fundamental impact on the individual in question, that it requires the most serious and detailed justification.”). 27 Japan, Concluding Observations (2013) (expressing concern about “extensively prolonged [solitary confinement] without a time limit”). See also Japan, Concluding Observations (2007) (expressing concern about the isolation of detainees for over 10 years). 28 Denmark, Concluding Observations (2007). 29 Iorgov v. Bulgaria, (Application no. 40653/98) (March 11, 2004) (involving a situation where the applicant was held in solitary confinement for approximately three years in a small cell, was allowed one hour out-of-cell time in an open yard with other inmates, spent almost 23 hours per day alone in his cell., and could receive one or two half-hour visits per month. The Court considered that “the stringent custodial regime to which the applicant was subjected and the material conditions in which he was detained must have caused him suffering exceeding the unavoidable level inherent in detention.”). See also Polay Campos v. Peru, 577/1994 (November 5, 1997) (finding that relative isolation for 23 hours a day in a small cell with only 10 minutes of sunlight per day constitutes treatment in violation of Article 7 of the ICCPR (prohibition of torture and ill-treatment).
21

ill-treatment) in solitary confinement regimes lasting less than three years.30 The European
Committee for the Prevention of Torture has stated that even when prisoners are held in
conditions akin to solitary confinement for “disciplinary purposes, or as a result of their
“dangerousness” or their “troublesomeness,” solitary confinement should be as short as
possible.31
51. Similarly, the Inter-American Court on Human Rights has held that “prolonged
isolation and deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a violation of the right of any
detainee to respect for his inherent dignity as a human being.”32 The Court held in one case that
the petitioner was subjected to CIDT after she was held in isolation for one year,33 and
exceptionally called for provisional measures in a case where the victim was “subjected to
isolation and deprived of sunlight, which facts in themselves constitute cruel and inhuman forms
of treatment, for a period of four years.”34
52. When the International Criminal Tribunal for Rwanda was presented with the
question whether the Accused could be transferred to Rwanda under Rule 11bis of its Statute,
both the Trial Chamber and the Appeals Chamber denied the transfers.35 These decisions were
30 See, e.g., Mathew v. The Netherlands (Sept. 29, 2005) (finding that the applicant was subjected to inhuman treatment by virtue of his detention “in a situation amounting to solitary confinement,” which included confinement to his cell for 23 hours a day). 31 European Committee for the Prevention of Torture, Second General Report. 32 Velázquez-Rodríguez v. Honduras, Inter-American Court of Human Rights, Judgment of 29 July 1988, Series C, No. 4, para. 156, 187 (1988). The Court found that such treatment violated Art. 5 of the American Convention on Human Rights. 33 Maria Teresa De La Cruz Flores v. Peru., IAmCtHR, Judgment of 18 November 2004, Series C, No. 115 (2004). Under this regime, the applicant could only exercise for half an hour a day, could receive family visits once every three months, had very limited access to reading materials and could only write to her family for thirty minutes once a month. . 34 IAmCtHR, Provisional Measures, Loayza Tamayo v. Peru, Resolutions of July 2 and September 13, 1996. In the latter, the full Court ordered Peru immediately to modify the conditions of Ms. Loayza’s detention, in particular with regard to solitary confinement. 35 ICTR, The Prosecutor v. Ildephonse Hategekimana, Case No. ICTR-00-55B-R11bis; ICTR, The
22

based on the likelihood that the accused could be subjected to life imprisonment in isolation
without adequate safeguards, thus violating their right not to be subjected to torture or cruel,
inhuman or degrading treatment. In order to determine what are the necessary safeguards against
such treatment, both chambers refer to decisions by the European Court of Human Rights;36 by
the Inter-American Court of Human Rights,37 as well as concluding observations by the Human
Rights Committee38 and the UN Committee Against Torture.39 In this vein, both the Trial
Chamber and the Appeals Chamber considered that solitary confinement had to be understood as
an exceptional measure, and, when applied, due regard had to be taken to the requisites of
necessity and proportionality, and to restricting its application in time.40 Moreover, in
Hategekimana the Appeals Chamber affirmed that Rwanda’s Abolition of the Death Penalty Law
permitting solitary confinement in isolation for twenty years without any of the above mentioned
safeguards could amount to a violation of the Accused’s right not to be subjected to cruel,
inhuman or degrading treatment.41
C. Rationale and Process for SHU Placement
53. My conversations with the inmates I visited, and my understanding of the
Prosecutor v. Yussuf Munyakazi, Case No. ICTR-97-36-R11bis; ICTR, The Prosecutor v. Gaspard Kanyarukiga, Case No. ICTR-2002-78-R11bis; ICTR, The Prosecutor v. Fulgence Kayishema, Case No. ICTR-01-67-RI lbis 36 Ramirez Sanchez v. France, Judgment, European Court of Human Rights, Grand Chamber, App. No. 59450/00, 4 July 2006, paras 120-150. 37 Inter-American Court of Human Rights: Case of Castillo Petruzzi et al. v. Peru, Judgment (Merits, Reparations and Costs), 30 May 1999, Series C, No. 52, paras. 194-199; Case of Miguel Castro-Castro Prison v. Peru, Judgment, 25 November 2006, Series C, No. 160, para. 315; Case of García Asto and Ramirez Rojas, Judgment, November 25 2005, Series C, No. 137, para. 221; Case of Raxacó Reyes, Judgment, 15 September 2005, Series C, No. 133, para. 95; Case of Fermín Ramírez, Judgment of 20 June 2005, Series C, No. 126, para. 118. 38 Concluding Observations of the Human Rights Committee: Denmark, 31 October 2000, UN Doc. CCPR/CO/70/DNK 39 UN Committee against Torture (CAT), Conclusions and Recommendations of the Committee against Torture: Japan, 3 August 2007, UN Doc. CAT/C/JPN/CO/1, para. 18. 40 ICTR, Kanyarukiga, Appeals Chamber, cit. par. 15 (30 October 2008) ; Hategekimana, Trial Chamber, cit., par. 25 (4 December 2008); Munyakazi, Trial Chamber, cit., par 30 (28 May 2008). 41 ICTR, Hategekimana, Appeals Chamber, cit., par. 33, 38 (4 December 2008).
23

documents I reviewed, suggest that the procedures that prisoners were afforded when they were placed and retained at the Pelican Bay SHU do not meet international standards. Problems with the procedures include: a) the infrequency of the reviews; b) the reliance on confidential informant evidence that renders the inmate helpless to rebut or challenge the assertions made; and c) reliance on books, artwork or other similar material to send to and retain someone in solitary.
54. In addition, it seemed clear to me from my interviews with the inmates that the harsh conditions at the Pelican Bay SHU are intentionally used as a form of coercion to elicit cooperation from the inmates. To the extent that such conditions involve mental pain and suffering of a certain gravity, it is coercion that meets the definition of purposes that are impermissible under Article 1 of the Convention Against Torture.
D. Insufficient Mitigation of Conditions 55. In international law, prolonged or indefinite isolation is prohibited, although what duration of a solitary confinement is prolonged may depend on various factors. For example, more than 15 days of extreme isolation (i.e., 24 hours a day without social contact, without reading or writing materials and without radio or television) constitutes prolonged solitary confinement in contravention of the prohibition of cruel, inhuman or degrading treatment. Inmates in Pelican Bay SHU do have access to reading and writing materials, to radio and television (at their expense) and to 90 minutes a day outside their cells, albeit also alone. Their cells have no windows to afford any natural light, and therefore the inmates do not have visual access to the outside world or to the sky. They have no access to calls to or from family except in emergencies, and then always on a monitored basis and for only a few minutes each time. Inmates at the SHU lack access to other forms of mitigation of the harshness of their conditions, such as programmed activities, educational opportunities, work therapy or other forms of
24

rehabilitation and reform. Since the purpose of incarceration, according to the Standard
Minimum Rules for the Treatment of Prisoners, is to contribute to the rehabilitation and eventual
social reintegration of the convicted person, the regimen that applies in Pelican Bay SHU
violates principles accepted by all civilized nations in that the harshness of isolation is not
sufficiently mitigated by factors that could alleviate the intense mental pain and suffering that the
system inflicts on the inmates.
56. That pain and suffering is inflicted in all inmates subjected to solitary
confinement is beyond dispute today.42 As the experts meeting in Istanbul in 2007 stated:
It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90 per cent of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement and the health risks rise with each additional day spent in such conditions. Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and well being.43
57. At one time or another, all the inmates that I interviewed have suffered from these
symptoms and many if not all probably experience them on a chronic basis. It must be noted
that, for purposes of the definitions of torture and CIDT in international law, pain and suffering
does not depend on the short- or long-term effects on particular individuals. On the other hand,
it stands to reason that the longer the period of isolation the higher the probability of serious
effects, both short- and long-term. Those effects determine the gravity of the practice for
42 Peter Scharff Smith, Solitary Confinement: An Introduction to the Istanbul Statement on the Use and Effect of Solitary Confinement, Torture, Vol. 18, No. 1, pp. 56 et seq.; See also, Sharon Shalev, A Sourcebook on Solitary Confinement, London: LSE, 2008. 43 Istanbul Statement, cit.
25

Exhibit A

United Nations
General Assembly

Distr.: General 5 August 2011
Original: English

A/66/268

Sixty-sixth session Item 69 (b) of the provisional agenda* Promotion and protection of human rights: human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms
Torture and other cruel, inhuman or degrading treatment or punishment
Note by the Secretary-General
The Secretary-General has the honour to transmit to the General Assembly the interim report prepared by the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, in accordance with General Assembly resolution 65/205.

* A/66/150.
11-44570 (E) 010911
*1144570*

A/66/268

Interim report of the Special Rapporteur of the Human Rights Council on torture and other cruel, inhuman or degrading treatment or punishment

Summary
In the present report, submitted pursuant to General Assembly resolution 65/205, the Special Rapporteur addresses issues of special concern and recent developments in the context of his mandate.
The Special Rapporteur draws the attention of the General Assembly to his assessment that solitary confinement is practised in a majority of States. He finds that where the physical conditions and the prison regime of solitary confinement cause severe mental and physical pain or suffering, when used as a punishment, during pre-trial detention, indefinitely, prolonged, on juveniles or persons with mental disabilities, it can amount to cruel, inhuman or degrading treatment or punishment and even torture. In addition, the use of solitary confinement increases the risk that acts of torture and other cruel, inhuman or degrading treatment or punishment will go undetected and unchallenged.
The report highlights a number of general principles to help to guide States to re-evaluate and minimize its use and, in certain cases, abolish the practice of solitary confinement. The practice should be used only in very exceptional circumstances, as a last resort, for as short a time as possible. He further emphasizes the need for minimum procedural safeguards, internal and external, to ensure that all persons deprived of their liberty are treated with humanity and respect for the inherent dignity of the human person.

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Contents

Page

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

II. Activities related to the mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

III. Solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

A. Overview of work undertaken by the mandate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

B. History and current practice of solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

C. Definition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

D. Legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

9

E. States’ rationale for the use of solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

F. Conditions of solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

G. Prolonged or indefinite solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

H. Psychological and physiological effects of solitary confinement . . . . . . . . . . . . . . . . . . . . 17

I. Latent effects of solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

J. Vulnerable individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

K. When solitary confinement amounts to torture and other cruel, inhuman or degrading treatment or punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

IV. Conclusions and recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Annex

Effects of solitary confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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A/66/268
I. Introduction
1. The present report, submitted pursuant to paragraph 39 of General Assembly resolution 65/205, is the thirteenth submitted to the General Assembly by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. It is the first report submitted by the present mandate holder.
2. The Special Rapporteur wishes to draw attention to his report to the Human Rights Council (A/HRC/16/52), in which he outlined his vision, working methods and priorities for his tenure as Special Rapporteur.
II. Activities related to the mandate
3. Below is a summary of the activities carried out by the Special Rapporteur pursuant to the mandate since the submission of his report to the Human Rights Council (A/HRC/16/52 and Add.1-6).
Communications concerning human rights violations
4. During the period from 1 December 2010 to 1 July 2011, he sent 20 letters of allegations of torture to 18 Governments, and 95 urgent appeals on behalf of persons who might be at risk of torture or other forms of ill-treatment to 48 Governments. In the same period 82 responses were received.
Country visits
5. With respect to fact-finding missions, an anticipated country visit to Kyrgyzstan for May 2011 was postponed, at the request of the Government, owing to ongoing political developments. By letter dated 28 July 2011, the Government of the Kyrgyz Republic proposed a country visit for the second half of August 2011. The Special Rapporteur welcomes this invitation; however, because of the short notice, he is discussing potential dates with the Government at the time of submitting the present report. He has accepted an invitation from the Government of Iraq to visit the country in October 2011. He has also been invited to visit Bahrain and is discussing dates with the Government. In addition to the pending country visit requests (see A/HRC/16/52, para. 6) the Special Rapporteur has requested a visit to Morocco with respect to Western Sahara.
6. The Special Rapporteur conducted a visit to Tunisia from 15 to 22 May 2011. He shared his preliminary findings with the interim Government and issued a press statement on 22 May expressing his appreciation to the Government for the full cooperation extended to him. He noted that the Government had undertaken a series of positive steps towards ensuring accountability and long-term reforms. However, he is of the view that a “wait and see attitude” in anticipation of the Constituent Assembly election may be hampering the possibility of delivering bold and aggressive steps in restoring justice for past and recent abuses. The Special Rapporteur stressed that swift, effective and independent criminal investigations against alleged perpetrators of torture and ill-treatment should be ensured and administrative programmes should be launched offering redress and reparation services to victims of past and recent violations. The report of the mission to Tunisia will be presented to the Human Rights Council at its nineteenth session in March 2012.
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Key press statements
7. The Special Rapporteur issued the following press statements (many were joint statements with other mandate holders):
• On 31 December 2010 — expressing serious concern that enforced or involuntary disappearances, arbitrary detentions, extrajudicial, summary or arbitrary executions, and acts of sexual violence may have occurred or may still be occurring in Côte d’Ivoire in relation to the presidential elections.
• On 14 January 2011 — urging the Government of Tunisia to control the use of force against peaceful demonstrations, after at least 21 deaths were officially confirmed.
• On 3 February 2011 — on public unrest in Belarus, Egypt and Tunisia and the alleged infliction of torture or cruel, inhuman or degrading treatment in connection with suppression of peaceful demonstrations.
• On 17 February — urging the transitional Government in Egypt to establish an independent inquiry to investigate human rights violations during the revolution in that country, with the powers to transmit names and evidence for prosecution to the relevant authorities.
• On 18 February — urging the Governments of Bahrain and the Libyan Arab Jamahiriya to guarantee the right to peaceful protest and immediately cease the use of excessive and lethal force.
• On 22 February — on the situation of human rights defenders expressing serious concerns about gross violations of human rights that were being committed in the Libyan Arab Jamahiriya.
• On 3 March 2011 — condemning the violent crackdown on protesters in Yemen, and urging the Government to stop the excessive use of force as a means to end ongoing protests.
• On 22 March — expressing concerns about increased incidents of serious human rights violations in the capital of Bahrain.
• On 1 April 2011 — expressing concerns about serious human rights violations in Côte d’Ivoire, including enforced disappearances, extrajudicial killings, killing and maiming of children, and sexual violence which may amount to international crimes, and expressed the full support of the Special Rapporteur and other mandate holders for Security Council resolution 1975 (2011).
• On 11 April and 12 July — expressing frustration that despite his repeated requests to visit Private First Class Bradley E. Manning, the Government of the United States of America has not granted him unmonitored access to the detainee. The question of unfettered access goes beyond this case and touches on whether the Special Rapporteur would be able to conduct private and unmonitored interviews with detainees if he were to conduct a country visit to the United States.
• On 15 April — denouncing the rising death toll and brutal crackdown on peaceful protesters, journalists and human rights defenders in the Syrian Arab Republic despite the Government’s promises of reforms and consultations to end the 48-year-old emergency rule.

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• On 1 July 2011 — urging the Government of the United States to stop the scheduled execution of Humberto Leal García in Texas.
Highlights of key presentations/consultations/training courses
8. From 8 to 9 February 2011, the Special Rapporteur participated in a meeting sponsored by Amnesty International in London to discuss “Developing International Best Practice for Inquiries and Investigations into Torture”. He also spoke at the All Party Parliamentary Group on Extraordinary Rendition.
9. On 22 February, he delivered a statement to the American Academy of Forensic Sciences at its 63rd annual meeting on “International framework and mechanisms for documenting conditions of detention, torture and ill-treatment”.
10. On 28 February, he met with high-ranking officials from the Department of State and the Department of Defense of the United States of America in Washington, D.C., and again with the Department of Defense on 22 April to discuss issues of mutual concern.
11. From 6 to 10 March 2011, the Special Rapporteur was in Geneva for the sixteenth session of the Human Rights Council and met with the Ambassadors of Iraq, Kyrgyzstan, Mexico, Thailand and the United States. He also met with all the Human Rights Council regional groups except for the Africa Group, which unfortunately could not be scheduled.
12. On 16 and 17 March, in Washington, D.C., he participated in a meeting with the Chair of the Committee against Torture, the Vice-Chair of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Rapporteur on the Rights of Persons Deprived of Liberty of the Inter-American Commission on Human Rights, a representative of the European Committee for the Prevention of Torture and the Special Rapporteur on Detained Persons of the African Commission on Human and Peoples’ Rights. The meeting was organized jointly by the Washington College of Law of American University and the Association for the Prevention of Torture to discuss ways to strengthen the working relations of those mechanisms.
13. From 18 to 20 March, the Special Rapporteur made two presentations to the annual General Meeting and the fiftieth anniversary commemoration of the United States Section of Amnesty International in San Francisco.
14. On 1 June 2011, he was the keynote speaker at an event in Washington, D.C., organized by several faith-based groups and entitled “Accountability Today: Preventing Torture Tomorrow”.
15. From 15 to 17 June, the Special Rapporteur chaired, with the support of the Government of the Netherlands, a regional consultation on torture for the Americas in Santiago, Chile. The regional consultation was organized in partnership with the Association for the Prevention of Torture, the Centro de Estudios Legales y Sociales, Corporación Humanas — Centro Regional de Derechos Humanos y Justicia de Género and Conectas Direitos Humanos, and was an opportunity for governments, national institutions and organizations of civil society from 12 countries to discuss follow-up to recommendations of country visits and to strengthen local and regional protection mechanisms against torture and illtreatment.

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16. On 20 June, he met with the Director General for Foreign Policy, Ministry of Foreign Affairs of Chile, in Santiago.
17. From 27 June to 1 July, the Special Rapporteur participated in the eighteenth annual meeting of Special Rapporteurs in Geneva. He also met with representatives of the Governments of Iraq, Kyrgyzstan, the Netherlands, the Russian Federation, Tunisia and the United States of America.
18. On 7 July 2011, he met in Brasilia with the Minister for Human Rights in the Government of Brazil.
III. Solitary confinement
A. Overview of work undertaken by the mandate
19. In his first report as Special Rapporteur (A/HRC/16/52, para. 70), he recognized that “the question as to whether ... prolonged solitary confinement” constituted “per se cruel, inhuman or degrading treatment or punishment has given rise to much debate and discussion in the Human Rights Council”, and believed that “the international community as a whole would greatly benefit from a dispassionate and rational discussion of the issues”.
20. The Special Rapporteur has received complaints that solitary confinement is used in some countries in the context of administrative detention for national security or as a method to fight organized crime, as well as in immigration detention. He undertook this study because he found the practice of solitary confinement to be global in nature and subject to widespread abuse. In particular, the social isolation and sensory deprivation that is imposed by some States does, in some circumstances, amount to cruel, inhuman and degrading treatment and even torture.
21. The Special Rapporteur’s predecessors have noted that prolonged solitary confinement may itself amount to prohibited ill-treatment or torture (E/CN.4/1999/61, para. 394, and E/CN.4/2003/68, para. 26 (m)).
22. The Istanbul Statement on the Use and Effects of Solitary Confinement was annexed to the former Special Rapporteur’s 2008 interim report to the General Assembly (A/63/175, annex). The report concluded that “prolonged isolation of detainees may amount to cruel, inhuman or degrading treatment or punishment and, in certain instances, may amount to torture. ... [T]he use of solitary confinement should be kept to a minimum, used in very exceptional cases, for as short a time as possible, and only as a last resort. Regardless of the specific circumstances of its use, effort is required to raise the level of social contacts for prisoners: prisonerprison staff contact, allowing access to social activities with other prisoners, allowing more visits and providing access to mental health services” (A/63/175, paras. 77 and 83).
B. History and current practice of solitary confinement
23. The history of the use of solitary confinement on detainees has been well documented. The practice can be traced to the 1820s in the United States of

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America, where it was believed that isolation of prisoners would aid in their rehabilitation. Under this model prisoners spent their entire day alone, mostly within the confines of their cells, including for work, in order to reflect on their transgressions away from negative external influences. Beginning in the 1830s, European and South American countries adopted this practice (A/63/175, para. 81). It must be recognized that 200 years ago this model was a socially and morally progressive way to deal with punishment, as it emphasized rehabilitation and attempted to substitute for the death penalty, limb amputations and other penalties then prevalent.
24. States around the world continue to use solitary confinement extensively (see A/63/175, para. 78). In some countries, the use of Super Maximum Security Prisons to impose solitary confinement as a normal, rather than an “exceptional”, practice for inmates is considered problematic. In the United States, for example, it is estimated that between 20,000 and 25,000 individuals are being held in isolation.1 Another example is the extensive use of solitary confinement in relation to pretrial detention, which for many years has been an integral part of the Scandinavian prison practice.2 Some form of isolation from the general prison population is used almost everywhere as punishment for breaches of prison discipline. Many States now use solitary confinement more routinely and for longer durations. For example, in Brazil, Law 10792 of 2003, amending the existing “Law of Penal Execution”, contemplates a “differentiated” disciplinary regime in an individual cell for up to 360 days, without prejudice to extensions of similar length for new offences and up to one sixth of the prison term. In 2010, the Province of Buenos Aires in Argentina instituted a Programme of Prevention of Violent Behaviour in its prisons which consists of isolation for a minimum of nine months (the initial three months in full isolation), a term that — according to prison monitors — is frequently extended.
C. Definition
25. There is no universally agreed upon definition of solitary confinement. The Istanbul Statement on the Use and Effects of Solitary Confinement defines solitary confinement as the physical isolation of individuals who are confined to their cells for 22 to 24 hours a day. In many jurisdictions, prisoners held in solitary confinement are allowed out of their cells for one hour of solitary exercise a day. Meaningful contact with other people is typically reduced to a minimum. The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, generally monotonous, and often not empathetic.
26. Solitary confinement is also known as “segregation”, “isolation”,3 “separation”, “cellular”,4 “lockdown”, “Supermax”, “the hole” or “Secure Housing
__________________
1 Alexandra Naday, Joshua D. Freilich and Jeff Mellow, “The Elusive Data on Supermax Confinement”, The Prison Journal, vol. 88, issue 1, p. 69 (2008).
2 Peter Scharff Smith, “The effects of solitary confinement on prison inmates: a brief history and review of the literature”, Crime and Justice, vol. 34 (2006), p. 441.
3 Jeffrey L. Metzner, M.D., and Jamie Fellner, “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics”, The Journal of the American Academy of Psychiatry and the Law, vol. 38, No. 1, pp. 104-108 (2010).
4 Sharon Shalev, A Sourcebook on Solitary Confinement (London, Mannheim Centre for Criminology, 2008), p. 1.
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Unit (SHU)”,5 but all these terms can involve different factors. For the purposes of this report, the Special Rapporteur defines solitary confinement as the physical and social isolation of individuals who are confined to their cells for 22 to 24 hours a day. Of particular concern to the Special Rapporteur is prolonged solitary confinement, which he defines as any period of solitary confinement in excess of 15 days. He is aware of the arbitrary nature of the effort to establish a moment in time which an already harmful regime becomes prolonged and therefore unacceptably painful. He concludes that 15 days is the limit between “solitary confinement” and “prolonged solitary confinement” because at that point, according to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible.6
D. Legal framework
27. International and regional human rights bodies have taken different approaches to address the underlying conditions of social and physical isolation of detainees, and whether such practices constitute torture or cruel, inhuman or degrading treatment or punishment. For example, while the European Court of Human Rights has confronted solitary confinement regimes with regularity, the United Nations Human Rights Committee and the Inter-American Court of Human Rights have most extensively addressed the related phenomenon of incommunicado detention. For the purposes of this report, the Special Rapporteur will highlight the work of universal and regional human rights bodies on solitary confinement only.
1. International level
General Assembly
28. In 1990, the General Assembly adopted resolution 45/111, the Basic Principles for the Treatment of Prisoners. Principle 7 states that efforts to abolish solitary confinement as a punishment, or to restrict its use, should be undertaken and encouraged.
29. In the same year, the General Assembly adopted resolution 45/113, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. In paragraph 67 the Assembly asserted that “All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including ... solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned”.
United Nations treaty bodies
30. The Human Rights Committee, in paragraph 6 of its General Comment No. 20, noted that prolonged solitary confinement of the detained or imprisoned person might amount to acts prohibited by article 7 of the International Covenant on Civil

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5 Ken Strutin, “Solitary Confinement”, LLRX.com, published on 10 August 2010. 6 Craig Haney, “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, Crime
and Delinquency”, vol. 49, No. 1, pp. 124-156.

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and Political Rights.7 In its concluding observations on Rwanda, the Human Rights Committee recommended that “The State party should put an end to the sentence of solitary confinement ...” (CCPR/C/RWA/CO/3, para. 14).
31. The Committee against Torture has recognized the harmful physical and mental effects of prolonged solitary confinement and has expressed concern about its use, including as a preventive measure during pretrial detention, as well as a disciplinary measure. The Committee has recommended that the use of solitary confinement be abolished, particularly during pretrial detention, or at least that it should be strictly and specifically regulated by law (maximum duration, etc.) and exercised under judicial supervision, and used only in exceptional circumstances, such as when the safety of persons or property is involved (A/63/175, para. 80). The Committee has recommended that persons under the age of 18 should not be subjected to solitary confinement (CAT/C/MAC/CO/4, para. 8).
32. The Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has pointed out that prolonged solitary confinement may amount to an act of torture and other cruel, inhuman or degrading treatment or punishment and recommended that solitary confinement should not be used in the case of minors or the mentally disabled (CAT/OP/PRY/1, para. 185). The Subcommittee has also recommended that a medical officer should visit prisoners held in solitary confinement every day, on the understanding that such visits should be in the interests of the prisoners’ health. Furthermore, prisoners held in solitary confinement for more than 12 hours should have access to fresh air for at least one hour each day (CAT/OP/PRY/1, para. 184). In view of the condition of solitary confinement, the Subcommittee has pointed out that beds and proper mattresses should be made available to all inmates, including prisoners held in solitary confinement (CAT/OP/HND/1, para. 227 (a), and CAT/OP/PRY/1, para. 280).
33. The Committee on the Rights of the Child, in its General Comment No. 10 (2007), emphasized that “disciplinary measures in violation of article 37 [of the Convention on the Rights of the Child] must be strictly forbidden, including ... closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned” (CRC/C/GC/10, para. 89). Moreover, the Committee has urged States parties to prohibit and abolish the use of solitary confinement against children (CRC/C/15/Add.151, para. 41; CRC/C/15/Add.220, para. 45 (d); and CRC/C/15/Add.232, para. 36 (a)).
2. Regional level
European Court of Human Rights
34. In its evaluation of cases of solitary confinement, the European Court of Human Rights considers the rationale given by the State for the imposition of social and physical isolation. The Court has found violations of article 3 of the European Convention on Human Rights where States do not provide a security-based

__________________ 7 Human Rights Committee, International Covenant on Civil and Political Rights, General Comment No. 20 (A/47/40, annex VI.A), article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992.
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justification for the use of solitary confinement.8 In circumstances of prolonged solitary confinement, the Court has held that the justification for solitary confinement must be explained to the individual and the justification must be “increasingly detailed and compelling” as time goes on.9
35. Through its jurisprudence, the European Court of Human Rights emphasizes that certain procedural safeguards must be in place during the imposition of solitary confinement, for example, monitoring a prisoner’s physical well-being,9 particularly where the individual is not in good health10 and having access to judicial review.11
36. The level of isolation imposed on an individual is essential to the European Court of Human Rights’ assessment of whether instances of physical and mental isolation constitute torture or cruel, inhuman or degrading treatment or punishment. A prolonged absolute prohibition of visits from individuals from outside the prison causes suffering “clearly exceeding the unavoidable level inherent in detention”.12 However, where the individual can receive visitors and write letters,13 have access to television, books and newspapers and regular contact with prison staff14 or visit with clergy or lawyers on a regular basis,15 isolation is “partial”, and the minimum threshold of severity — which the European Court of Human Rights considers necessary to find a violation of article 3 of the European Convention on Human Rights — is not met. Nevertheless, the Court has emphasized that solitary confinement, even where the isolation is only partial, cannot be imposed on a prisoner indefinitely.16
Inter-American System on Human Rights
37. The jurisprudence on solitary confinement within the Inter-American System on Human Rights is more conclusive than within the bodies discussed above. Since its earliest judgments, the Inter-American Court of Human Rights has found that certain elements of a prison regime and certain physical prison conditions in themselves constitute cruel and inhuman treatment, and therefore violate article 5 of the American Convention on Human Rights, which recognizes the right to the integrity of the person. For example, the Court held that “prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the
__________________
8 Iorgov v. Bulgaria, Application No. 40653/98, European Court of Human Rights, para. 84 (2004); G.B. v. Bulgaria, Application No. 42346/98, European Court of Human Rights, para. 85 (2004).
9 A.B. v. Russia, Application No. 1439/06, European Court of Human Rights, para. 108 (2010). 10 Palushi v. Austria, Application No. 27900/04, European Court of Human Rights, paras. 72 and
73 (2009). 11 A.B. v. Russia, para. 111. 12 Onoufriou v. Cyprus, Application No. 24407/04, European Court of Human Rights, para. 80
(2010). 13 Ocalan v. Turkey, Application No. 46221/99, European Court of Human Rights, para. 196
(2005). 14 Rohde v. Denmark, Application No. 69332/01, European Court of Human Rights, para. 97
(2005). 15 Ramírez Sanchez v. France, Application No. 59450/00, European Court of Human Rights,
paras. 105, 106 and 135 (2006). 16 Ibid., para. 145.
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right of any detainee to respect for his inherent dignity as a human being”.17 The Court has additionally addressed physical conditions of detention, asserting that “isolation in a small cell, without ventilation or natural light, ... [and] restriction of visiting rights ..., constitute forms of cruel, inhuman and degrading treatment”.18
38. The Court has additionally recognized that solitary confinement results in psychological and physical suffering that may contribute to treatment that constitutes torture. In at least one case, the Court has identified the physical conditions of solitary confinement, including “a small cell with no ventilation or natural light”, and a prison regime where a detained individual “is held for 23 and a half hours a day ..., [and] permitted to see his relatives only once a month, but could have no physical contact with them”, when coupled with other forms of physical and psychological aggression, in sum may constitute physical and psychological torture. 19
39. In its analysis of solitary confinement, the Court has noted that even when used in exceptional circumstances, procedural safeguards must be in place. For example, “the State is obliged to ensure that the detainee enjoys the minimum and non-derogable guarantees established in the [American] Convention and, specifically, the right to question the lawfulness of the detention and the guarantee of access to effective defense during his incarceration”.20 Similarly, the Inter-American Commission on Human Rights has consistently held that all forms of disciplinary action taken against detained persons must comport with the norms of due process and provide opportunity for judicial review.21
E. States’ rationale for the use of solitary confinement
40. The justifications provided by States for the use of solitary confinement fall into five general categories:
(a) To punish an individual (as part of the judicially imposed sentence or as part of a disciplinary regime);
(b) To protect vulnerable individuals;
(c) To facilitate prison management of certain individuals;
(d) To protect or promote national security;
(e) To facilitate pre-charge or pretrial investigations.
41. The imposition of solitary confinement as a part of an individual’s judicially imposed sentence often arises in circumstances of particularly egregious crimes or
__________________ 17 Velázquez-Rodríguez v. Honduras, Inter-American Court of Human Rights, Series C, No. 4, para. 156 (1988). 18 Loayza-Tamayo v. Peru, Inter-American Court of Human Rights, Series C, No. 33, para. 58 (1997). 19 Cantoral-Benavides v. Peru, Inter-American Court of Human Rights, Series C, No. 69, paras. 62 and 104 (2000). 20 Suárez-Rosero v. Ecuador, Inter-American Court of Human Rights, Series C, No. 35, paras. 51-56 (1997). 21 Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Mexico (OEA/Ser.L/V/II.100), para. 254 (2008).
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crimes against the State.22 For instance, in some central European States, individuals convicted and sentenced to capital punishment and to life imprisonment serve their time in solitary confinement (A/64/215, para. 53). In other States, such as in Mongolia, death sentences may be commuted to life sentences spent in solitary confinement (E/CN.4/2006/6/Add.4, para. 47). The use of solitary confinement as a disciplinary measure within prisons is also well documented and is likely the most pervasive rationale for the use of solitary confinement as a form of punishment.22 Disciplinary measures usually involve the violation of a prison rule. For instance, in Nigeria detainees are punished with solitary confinement of up to three days for disciplinary offences (A/HRC/7/3/Add.4, appendix I, para. 113). Similarly, in the Abepura Prison in Indonesia, solitary confinement for up to eight days is used as a disciplinary measure for persons who violate prison rules (A/HRC/7/3/Add.7, appendix I, para. 37).
42. Solitary confinement is also used to separate vulnerable individuals, including juveniles, persons with disabilities, and lesbian, gay, bisexual and transgender persons, for their own protection. They may be placed in solitary confinement at their own request or at the discretion of prison officials.23
43. State officials also use solitary confinement as a tool to manage certain prison populations. Individuals determined to be dangerous, such as gang members, or at high risk of escape may be placed in solitary confinement.23 Similarly, individuals determined to be at risk of injury, such as sex offenders, informants, and former correctional or law enforcement officers, are often allowed, or encouraged, to choose voluntary solitary confinement in order to protect themselves from fellow inmates.24 Prisoners may also be placed in some form of solitary confinement in the interests of prison management before, during or after transportation to and from cells and detention facilities.25 While the duration of solitary confinement when used as a management tool may vary considerably, it is notable that the motivation for its imposition is pragmatic rather than punitive.
44. Individuals determined to be terrorist suspects or national security risks are often subjected to solitary confinement as well. For instance, in Equatorial Guinea a section of the Black Beach Prison consisting of single cells is used for solitary confinement of high security prisoners (A/HRC/13/39/Add.4, appendix I). Solitary confinement can be also used as a coercive interrogation technique, and is often an integral part of enforced disappearance or incommunicado detention (A/63/175, annex). As noted within category (a) in paragraph 40 above, national security also serves as a primary reason for the imposition of solitary confinement as a result of a judicial sentence. For example, in China an individual sentenced for “unlawfully supplying State secrets or intelligence to entities outside China” was allegedly held in solitary confinement for two years of her eight-year sentence (E/CN.4/2006/6/ Add.6, appendix 2, para. 26).
45. States also use solitary confinement to isolate individuals during pre-charge or pretrial detention. In some States, such as Denmark, holding individuals in solitary
__________________
22 Shalev, op. cit., p. 25. 23 Shalev, op. cit., pp. 25 and 26. 24 Peter Scharff Smith, “Solitary Confinement: An introduction to the Istanbul Statement on the
Use and Effects of Solitary Confinement”, Journal on Rehabilitation of Torture Victims and Prevention of Torture, vol. 18 (2008), p. 56. 25 Shalev, op. cit., p. 26.
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confinement is a regular feature of pretrial detention (A/63/175, para. 78 (i)). The purposes for the use of solitary confinement in pre-charge and pretrial detention vary widely, and include preventing the intermingling of detainees to avoid demoralization and collusion, and to apply pressure on detainees to elicit cooperation or extract a confession. 26
F. Conditions of solitary confinement
46. The administration of prisons and the conditions in which prisoners are held is governed by prison regulations and national laws, as well as by international human rights law. Fundamental norms that are binding by virtue of being treaty-based or part of customary international law are supplemented and interpreted through the United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted by the Economic and Social Council in 1957. Although not directly binding, the Standard Minimum Rules are widely accepted as the universal norm for the humane treatment of prisoners.
47. The particular conditions in which detainees are held in solitary confinement vary between institutions and jurisdictions. Most, however, have a number of physical and non-physical conditions (or a prison regime) in common.
1. Physical conditions
48. The principal physical conditions relevant to solitary confinement are cell size, presence of windows and light, and access to sanitary fixtures for personal hygiene. In practice, solitary confinement cells typically share some common features, including: location in a separate or remote part of the prison; small, or partially covered windows; sealed air quality; stark appearance and dull colours; toughened cardboard or other tamperproof furniture bolted to the floor; and small and barren exercise cages or yards (E/CN.4/2006/6/Add.3, para. 47). In some jurisdictions, prisoners in solitary confinement are held in leg irons and subjected to other physical restraints (A/HRC/13/39/Add.4, para. 76 (f)).
49. There is no universal instrument that specifies a minimum acceptable cell size, although domestic and regional jurisdictions have sometimes ruled on the matter. According to the European Court of Human Rights in Ramírez Sanchez v. France, a cell measuring 6.84 square metres is “large enough” for single occupancy.27 The Court did not elaborate on why such measures could be considered adequate; the Special Rapporteur respectfully begs to differ, especially if the single cell should also contain, at a minimum, toilet and washing facilities, bedding and a desk.
50. The presence of windows and light is also of critical importance to the adequate treatment of detainees in solitary confinement. Under rule 11 of the Standard Minimum Rules for the Treatment of Prisoners, there should be sufficient light to enable the detainee to work or read, and windows so constructed as to allow airflow whether or not artificial ventilation is provided. However, State practice reveals that this standard is often not met. For example, in Georgia, window-
__________________ 26 Peter Scharff Smith, “Solitary Confinement: An introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement”, p. 41. 27 Ramírez Sanchez v. France, Application No. 59450/00, European Court of Human Rights, para. 102 (2006).
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openings in solitary confinement cells were found to have steel sheets welded to the outside bars, which restricted light and ventilation (E/CN.4/2006/6/Add.3, para. 47). In Israel, solitary confinement cells are often lit with fluorescent bulbs as their only source of light, and they have no source of fresh air.28
51. Rules 12 and 13 of the Standard Minimum Rules stipulate that detention facilities should provide sufficient sanitary fixtures to allow for the personal hygiene of the detainee. Therefore, cells used for solitary confinement should contain a lavatory and wash-basin within the cell.29 In its 2006 report on Greece, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment observed that isolation cells in the Komotini Prison failed to meet the necessary minimum standard for sanitary fixtures because detainees were forced to use the toilet for a wash-basin as well.30 Other environmental factors, such as temperature, noise level, privacy, and soft materials for cell furnishings may also be implicated in the solitary confinement setting.
2. Prison regime
52. The principal aspects of a prison regime relevant to an assessment of the conditions of solitary confinement include access to outdoor exercise and programming, access to meaningful human contact within the prison, and contact with the outside world. In accordance with rule 21 of the Standard Minimum Rules for the Treatment of Prisoners, every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits. Similarly, the European Committee for the Prevention of Torture emphasizes that all prisoners without exception should be afforded the opportunity to have one hour of open-air exercise per day.31 However, State practice indicates that these standards are not always observed. In Jordan, for example, a detainee was allowed outside of his solitary confinement cell for only one hour per week (A/HRC/4/33/Add.3, appendix, para. 21). In Poltrotsky v. Ukraine, the European Court of Human Rights found that a lack of opportunity for outdoor exercise, coupled with a lack of access to natural light, constitutes a violation of article 3 of the European Convention on Human Rights.32
53. Access to meaningful human contact within the prison and contact with the outside world are also essential to the psychological health of detainees held in solitary confinement, especially those held for prolonged periods of time. Within prisons this contact could be with health professionals, prison guards or other prisoners. Contact with the outside world could include visits, mail, and phone calls from legal counsel, family and friends, and access to reading material, television or radio. Article 17 of the International Covenant on Civil and Political Rights grants prisoners the right to family and correspondence. Additionally, the Standard Minimum Rules for the Treatment of Prisoners provide for various external stimuli
__________________
28 Solitary Confinement of Prisoners and Detainees in Israeli Prisons, Joint Project of Adalah, Al Mezan (Gaza) and Physicians for Human Rights (Israel, June 2011).
29 Shalev, op. cit., p. 42. 30 Council of Europe, Committee for the Prevention of Torture, Report to the Government of
Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 20 December 2006 (CPT/Inf (2006)), p. 41. 31 Council of Europe, “CPT Standards” (CPT/Inf/E (2002) 1 — Rev. 2010), sect. II, para. 48. 32 Poltrotsky v. Ukraine, p. 146 (European Court of Human Rights, 2006-V).
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(articles 21 on exercise and sport; 37-39 on contact with the outside world; 40 on books; 41 and 42 on religion; 71-76 on work; 77 and 78 on education and recreation; and 79-81 on social relations and after-care).
3. Social isolation
54. Solitary confinement reduces meaningful social contact to an absolute minimum. The level of social stimulus that results is insufficient for the individual to remain in a reasonable state of mental health.33
55. Research shows that deprived of a sufficient level of social stimulation, individuals soon become incapable of maintaining an adequate state of alertness and attention to their environment. Indeed, even a few days of solitary confinement will shift an individual’s brain activity towards an abnormal pattern characteristic of stupor and delirium.34 Advancements in new technologies have made it possible to achieve indirect supervision and keep individuals under close surveillance with almost no human interaction. The European Court of Human Rights has recognized that “complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason”.35
56. According to the European Court of Human Rights, States should also take steps to reduce the negative impact of solitary confinement.36 Where the damaging effects of solitary confinement on a particular individual are known, the regime cannot continue.37 The conditions of confinement are relevant in this respect, because where conditions are beyond reproach, the Court considers it unlikely that the minimum threshold of severity to find a violation of article 3 will be reached.38 Routine examination by doctors can be a factor in determining that there was no violation of article 3.39
G. Prolonged or indefinite solitary confinement
57. The use of prolonged or indefinite solitary confinement has increased in various jurisdictions, especially in the context of the “war on terror” and “a threat to national security”. Individuals subjected to either of these practices are in a sense in a prison within a prison and thus suffer an extreme form of anxiety and exclusion, which clearly supersede normal imprisonment. Owing to their isolation, prisoners held in prolonged or indefinite solitary confinement can easily slip out of sight of

__________________
33 Peter Scharff Smith, “The effects of solitary confinement on prison inmates”, Crime and Justice, vol. 34 (2006), p. 449.
34 Stuart Grassian, “Psychiatric Effects of Solitary Confinement”, Journal of Law and Policy, vol. 22 (2006), p. 325.
35 Ilaşcu and others v. Moldova and Russia, Application No. 48787/99, European Court of Human Rights (2004), para. 432.
36 Mathew v. Netherlands, Application No. 24919/03, para. 202. 37 G.B. v. Bulgaria, para. 85. 38 Valasinas v. Lithuania, Application No. 44558/98, European Court of Human Rights, para. 112
(2001); Ocalan v. Turkey, para. 193. 39 Rohde v. Denmark, para. 97.
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justice, and safeguarding their rights is therefore often difficult, even in States where there is a strong adherence to rule of law.40
58. When a State fails to uphold the Standard Minimum Rules for the Treatment of Prisoners during a short period of time of solitary confinement, there may be some debate on whether the adverse effects amount to cruel, inhuman or degrading treatment or punishment or torture. However, the longer the duration of solitary confinement or the greater the uncertainty regarding the length of time, the greater the risk of serious and irreparable harm to the inmate that may constitute cruel, inhuman or degrading treatment or punishment or even torture.
59. The feeling of uncertainty when not informed of the length of solitary confinement exacerbates the pain and suffering of the individuals who are subjected to it. In some instances, individuals may be held indefinitely during pretrial detention, increasing the risk of other forms of cruel, inhuman or degrading treatment or punishment or torture (CAT/C/DNK/CO/5, para. 14).
60. Most studies fail to specify the length of time after which solitary confinement becomes prolonged. While the term may be undefined, detainees can be held in solitary confinement from a few weeks to many years. For example, in Kazakhstan, individuals can be held in solitary confinement for more than two months (A/HRC/13/39/Add.3, para. 117). Some detainees have been held in solitary confinement facilities for years, without any charge and without trial, and in secret detention centres where isolation is used as an integral part of interrogation practices.41 In a joint report on the situation of detainees at Guantánamo Bay, experts found that although 30 days of isolation was the maximum period permissible, some detainees were returned to isolation after very short breaks over a period of up to 18 months (E/CN.4/2006/120, para. 53).
61. There is no international standard for the permitted maximum overall duration of solitary confinement. In A.B. v. Russia, the European Court of Human Rights held that detaining an individual in solitary confinement for three years constituted a violation of article 3 of the European Convention on Human Rights.42 By contrast, in the United States of America, it is reported that two prisoners have been held in solitary confinement in a Louisiana prison for 40 years after failed attempts at judicial appeal of the conditions of their confinement.43 As explained in paragraph 26 above, the Special Rapporteur finds that solitary confinement exceeding 15 days is prolonged.
H. Psychological and physiological effects of solitary confinement
62. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions. Experts who have examined the impact of solitary confinement have found three common elements that are inherently present in solitary confinement —
__________________
40 Peter Scharff Smith, “Solitary Confinement: An introduction to the Istanbul Statement on the Use and Effects of Solitary Confinement”, p. 1.
41 Shalev, op. cit., p. 2. 42 A.B. v. Russia, Application No. 1439/06, European Court of Human Rights, para. 135 (2010). 43 “USA: The Cruel and Inhumane Treatment of Albert Woodfox and Herman Wallace”, Amnesty
International (2001).
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social isolation, minimal environmental stimulation and “minimal opportunity for social interaction”.44 Research further shows that solitary confinement appears to cause “psychotic disturbances,” a syndrome that has been described as “prison psychoses”.45 Symptoms can include anxiety, depression, anger, cognitive disturbances, perceptual distortions, paranoia and psychosis and self-harm (see annex for a comprehensive list of symptoms).
63. Some individuals experience discrete symptoms while others experience a “severe exacerbation of a previously existing mental condition or the appearance of a mental illness where none had been observed before”.46 Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors.
I. Latent effects of solitary confinement
64. There is a lack of research into the latent effects of solitary confinement. While the acute effects of solitary confinement generally recede after the period of solitary confinement ends, some of the negative health effects are long term. The minimal stimulation experienced during solitary confinement can lead to a decline in brain activity in individuals after seven days. One study found that “up to seven days, the [brain activity] decline is reversible, but if deprived over a long period this may not be the case”.47
65. Studies have found continued sleep disturbances, depression, anxiety, phobias, emotional dependence, confusion, impaired memory and concentration long after the release from isolation. Additionally, lasting personality changes often leave individuals formerly held in solitary confinement socially impoverished and withdrawn, subtly angry and fearful when forced into social interaction.48 Intolerance of social interaction after a period of solitary confinement is a handicap that often prevents individuals from successfully readjusting to life within the broader prison population and severely impairs their capacity to reintegrate into society when released from imprisonment.49
J. Vulnerable individuals
1. Juveniles
66. United Nations treaty bodies consistently recommend that juvenile offenders, children or minors should not be subjected to solitary confinement (CAT/C/MAC/CO/4, para. 8; CAT/OP/PRY/1, para. 185; CRC/C/15/Add.151, para. 41; and CRC/C/15/Add.232, para. 36 (a)). Juveniles are often held in solitary confinement either as a disciplinary measure, or to separate them from the adult inmate population, as international human rights law prohibits the intermingling of
__________________ 44 Stuart Grassian, “Psychiatric Effects of Solitary Confinement” (1993), p. 1. 45 Ibid., p. 8. 46 Ibid., p. 2. 47 Ibid., p. 20. 48 Shalev, op. cit., pp. 13 and 22. 49 Stuart Grassian, “Psychiatric Effects of Solitary Confinement”, pp. 332 and 333.
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juvenile and adult prison populations.50 Regrettably, solitary confinement as a form of punishment of juvenile detainees has been prevalent in States such as Jamaica (A/HRC/16/52/Add.3, para. 211), Paraguay (A/HRC/7/3/Add.3, appendix I, para. 46) and Papua New Guinea (A/HRC/16/52/Add.5, appendix). In regard to disciplinary measures, a report has indicated that solitary confinement does not reduce violence among juvenile offenders detained in the youth prison.51
2. Persons with disabilities
67. Persons with disabilities are held in solitary confinement in some jurisdictions as a substitute for proper medical or psychiatric care or owing to the lack of other institutional housing options. These individuals may not necessarily pose danger to others or to themselves, but they are vulnerable to abuse and often regarded as a disturbance to other prisoners and prison staff.52
68. Research has shown that with respect to mental disabilities, solitary confinement often results in severe exacerbation of a previously existing mental condition.53 Prisoners with mental health issues deteriorate dramatically in isolation.54 The adverse effects of solitary confinement are especially significant for persons with serious mental health problems which are usually characterized by psychotic symptoms and/or significant functional impairments.55 Some engage in extreme acts of self-mutilation and even suicide.54
3. Lesbian, gay, bisexual and transgender
69. Lesbian, gay, bisexual and transgender individuals are often subjected to solitary confinement as a form of “protective custody”.56 Although segregation of such individuals may be necessary for their safety, lesbian, gay, bisexual and transgender status does not justify limitations on their social regime, e.g., access to recreation, reading materials, legal counsel or medical doctors.
K. When solitary confinement amounts to torture and other cruel, inhuman or degrading treatment or punishment
70. Because of the absence of witnesses, solitary confinement increases the risk of acts of torture and other cruel, inhuman or degrading treatment or punishment. Given its severe adverse health effects, the use of solitary confinement itself can amount to acts prohibited by article 7 of the International Covenant on Civil and
__________________
50 Article 37(c), Convention on the Rights of the Child; article 8(d), United Nations Standard Minimum Rules for the Treatment of Prisoners.
51 Robert Wildeboer, “The Impact of Solitary Confinement in a Youth Prison”, Inside and Out (Chicago, 2010).
52 Shalev, op. cit., p. 26. 53 Stuart Grassian, “Psychiatric Effects of Solitary Confinement”; Shalev, op. cit., p. 10. 54 American Civil Liberties Union, “Abuse of the Human Rights of Prisoners in the United States:
Solitary Confinement” (2011). 55 Jeffrey L. Metzner, M.D., and Jamie Fellner, “Solitary Confinement and Mental Illness in U.S.
Prisons: A Challenge for Medical Ethics”, The Journal of the American Academy of Psychiatry and the Law, vol. 38, No. 1, pp. 104-108 (2010). 56 Heartland Alliance National Immigrant Justice Center, letter to the Special Rapporteur on torture dated 16 June 2011.
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Political Rights, torture as defined in article 1 of the Convention against Torture or cruel, inhuman or degrading punishment as defined in article 16 of the Convention.
71. The assessment of whether solitary confinement amounts to torture and other cruel, inhuman or degrading treatment or punishment should take into consideration all relevant circumstances on a case-by-case basis. These circumstances include the purpose of the application of solitary confinement, the conditions, length and effects of the treatment and, of course, the subjective conditions of each victim that make him or her more or less vulnerable to those effects. In this section, the report discusses a few circumstances where the use of solitary confinement constitutes torture and other cruel, inhuman or degrading treatment or punishment.
72. Solitary confinement, when used for the purpose of punishment, cannot be justified for any reason, precisely because it imposes severe mental pain and suffering beyond any reasonable retribution for criminal behaviour and thus constitutes an act defined in article 1 or article 16 of the Convention against Torture, and a breach of article 7 of the International Covenant on Civil and Political Rights. This applies as well to situations in which solitary confinement is imposed as a result of a breach of prison discipline, as long as the pain and suffering experienced by the victim reaches the necessary severity.
73. While physical and social segregation may be necessary in some circumstances during criminal investigations, the practice of solitary confinement during pretrial detention creates a de facto situation of psychological pressure which can influence detainees to make confessions or statements against others and undermines the integrity of the investigation. When solitary confinement is used intentionally during pretrial detention as a technique for the purpose of obtaining information or a confession, it amounts to torture as defined in article 1 or to cruel, inhuman or degrading treatment or punishment under article 16 of the Convention against Torture, and to a breach of article 7 of the International Covenant on Civil and Political Rights.
74. Where the physical conditions of solitary confinement are so poor and the regime so strict that they lead to severe mental and physical pain or suffering of individuals who are subjected to the confinement, the conditions of solitary confinement amount to torture or to cruel and inhuman treatment as defined in articles 1 and 16 of the Convention, and constitute a breach of article 7 of the Covenant.
75. The use of solitary confinement can be accepted only in exceptional circumstances where its duration must be as short as possible and for a definite term that is properly announced and communicated. Given the harmful effects of indefinite solitary confinement, its potential use to extract information or confession during pretrial detention, and the fact that uncertainty prevents the use of remedies to challenge it, the Special Rapporteur finds that indefinite imposition of solitary confinement violates the right to due process of the concerned individual (article 9 of the Covenant, articles 1 or 16 of the Convention, and article 7 of the Covenant).
76. The Special Rapporteur asserts that social isolation is contrary to article 10, paragraph 3, of the International Covenant on Civil and Political Rights, which states that “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation” (General Assembly resolution 2200 (XXI), annex). Long periods of isolation do not aid the

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rehabilitation or re-socialization of detainees (E/CN.4/2006/6/Add.4, para. 48). The adverse acute and latent psychological and physiological effects of prolonged solitary confinement constitute severe mental pain or suffering. Thus the Special Rapporteur concurs with the position taken by the Committee against Torture in its General Comment No. 20 that prolonged solitary confinement amounts to acts prohibited by article 7 of the Covenant, and consequently to an act as defined in article 1 or article 16 of the Convention. For these reasons, the Special Rapporteur reiterates that, in his view, any imposition of solitary confinement beyond 15 days constitutes torture or cruel, inhuman or degrading treatment or punishment, depending on the circumstances. He calls on the international community to agree to such a standard and to impose an absolute prohibition on solitary confinement exceeding 15 consecutive days.
77. With respect to juveniles, the Declaration of the Rights of the Child and the Preamble of the Convention on the Rights of the Child state that, given their physical and mental immaturity, juveniles need special safeguards and care, including appropriate legal protection. Article 19 of the Convention on the Rights of the Child (General Assembly resolution 44/25) requires States Parties to “take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence …” In its General Comment No. 8, the Committee on the Rights of the Child indicated that “There is no ambiguity: ‘all forms of physical or mental violence’ does not leave room for any level of legalized violence against children” (CRC/C/GC/8, para. 18). Paragraph 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, adopted by the General Assembly in resolution 45/113 of 14 December 1990, states that “All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including ... solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned” (see also CRC/C/GC/10, para. 89). Thus the Special Rapporteur holds the view that the imposition of solitary confinement, of any duration, on juveniles is cruel, inhuman or degrading treatment and violates article 7 of the International Covenant on Civil and Political Rights and article 16 of the Convention against Torture.
78. The right of persons with mental disabilities to be treated with humanity and with respect for the inherent dignity guaranteed under article 10 of the Covenant should be interpreted in light of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the General Assembly on 17 December 1991 (resolution 46/119, annex). Given their diminished mental capacity and that solitary confinement often results in severe exacerbation of a previously existing mental condition, the Special Rapporteur believes that its imposition, of any duration, on persons with mental disabilities is cruel, inhuman or degrading treatment and violates article 7 of the Covenant and article 16 of the Convention.
IV. Conclusions and recommendations
Conclusions
79. The Special Rapporteur stresses that solitary confinement is a harsh measure which may cause serious psychological and physiological adverse

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effects on individuals regardless of their specific conditions. He finds solitary confinement to be contrary to one of the essential aims of the penitentiary system, which is to rehabilitate offenders and facilitate their reintegration into society. The Special Rapporteur defines prolonged solitary confinement as any period of solitary confinement in excess of 15 days.
80. Depending on the specific reason for its application, conditions, length, effects and other circumstances, solitary confinement can amount to a breach of article 7 of the International Covenant on Civil and Political Rights, and to an act defined in article 1 or article 16 of the Convention against Torture. In addition, the use of solitary confinement increases the risk that acts of torture and other cruel, inhuman or degrading treatment or punishment will go undetected and unchallenged.
81. Considering the severe mental pain or suffering solitary confinement may cause when used as a punishment, during pretrial detention, indefinitely or for a prolonged period, for juveniles or persons with mental disabilities, it can amount to torture or cruel, inhuman or degrading treatment or punishment. The Special Rapporteur is of the view that where the physical conditions and the prison regime of solitary confinement fail to respect the inherent dignity of the human person and cause severe mental and physical pain or suffering, it amounts to cruel, inhuman or degrading treatment or punishment.
Recommendations
82. The Special Rapporteur calls upon States to respect and protect the rights of persons deprived of liberty while maintaining security and order in places of detention. He recommends that States conduct regular reviews of the system of solitary confinement. In this context, the Special Rapporteur reiterates that States should refer to the Istanbul Statement on the Use and Effects of Solitary Confinement as a useful tool in efforts to promote the respect and protection of the rights of detainees.
83. The Special Rapporteur calls upon States to ensure that all persons deprived of their liberty are treated with humanity and respect for the inherent dignity of the human person as protected by article 10, paragraph 1, of the International Covenant on Civil and Political Rights. The Special Rapporteur refers to the Standard Minimum Rules for the Treatment of Prisoners and recommends that States increase the level of psychological, meaningful social contact for detainees while in solitary confinement.
84. The Special Rapporteur urges States to prohibit the imposition of solitary confinement as punishment — either as a part of a judicially imposed sentence or a disciplinary measure. He recommends that States develop and implement alternative disciplinary sanctions to avoid the use of solitary confinement.
85. States should take necessary steps to put an end to the practice of solitary confinement in pretrial detention. The use of solitary confinement as an extortion technique during pretrial detention should be abolished. States should adopt effective measures at the pretrial stage to improve the efficiency of investigation and introduce alternative control measures in order to segregate individuals, protect ongoing investigations, and avoid detainee collusion.

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86. States should abolish the use of solitary confinement for juveniles and persons with mental disabilities. Regarding disciplinary measures for juveniles, the Special Rapporteur recommends that States should take other measures that do not involve the use of solitary confinement. In regard to the use of solitary confinement for persons with mental disabilities, the Special Rapporteur emphasizes that physical segregation of such persons may be necessary in some cases for their own safety, but solitary confinement should be strictly prohibited.
87. Indefinite solitary confinement should be abolished.
88. It is clear that short-term solitary confinement can amount to torture or cruel, inhuman or degrading treatment or punishment; it can, however, be a legitimate device in other circumstances, provided that adequate safeguards are in place. In the opinion of the Special Rapporteur, prolonged solitary confinement, in excess of 15 days, should be subject to an absolute prohibition.
89. The Special Rapporteur reiterates that solitary confinement should be used only in very exceptional circumstances, as a last resort, for as short a time as possible. He emphasizes that when solitary confinement is used in exceptional circumstances, minimum procedural safeguards must be followed. These safeguards reduce the chances that the use of solitary confinement will be arbitrary or excessive, as in the case of prolonged or indefinite confinement. They are all the more important in circumstances of detention where due process protections are often limited, as in administrative immigration detention. Minimum procedural safeguards should be interpreted in a manner that provides the greatest possible protection of the rights of detained individuals. In this context, the Special Rapporteur urges States to apply the following guiding principles and procedural safeguards.
Guiding principles
90. Throughout the period of detention, the physical conditions and prison regime of the solitary confinement, and in particular the duration of confinement, must be proportional to the severity of the criminal or disciplinary infraction for which solitary confinement is imposed.
91. The physical conditions and prison regime of solitary confinement must be imposed only as a last resort where less restrictive measures could not achieve the intended disciplinary goals.
92. Solitary confinement must never be imposed or allowed to continue except where there is an affirmative determination that it will not result in severe pain or suffering, whether physical or mental, giving rise to acts as defined in article 1 or article 16 of the Convention against Torture.
93. All assessments and decisions taken with respect to the imposition of solitary confinement must be clearly documented and readily available to the detained persons and their legal counsel. This includes the identity and title of the authority imposing solitary confinement, the source of his or her legal attributes to impose it, a statement of underlying justification for its imposition, its duration, the reasons for which solitary confinement is determined to be appropriate in accordance with the detained person’s mental and physical health, the reasons for which solitary confinement is determined to be

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proportional to the infraction, reports from regular review of the justification for solitary confinement, and medical assessments of the detained person’s mental and physical health.
Internal safeguards
94. From the moment that solitary confinement is imposed, through all stages of its review and decisions of extension or termination, the justification and duration of the solitary confinement should be recorded and made known to the detained person. Additionally, the detained person should be informed of what he or she must do to be removed from solitary confinement. In accordance with rule 35 of the Standard Minimum Rules for the Treatment of Prisoners, the detained person must receive this information in plain language that he or she understands. This information must additionally be provided to any legal representative of the detained person.
95. A documented system of regular review of the justification for the imposition of solitary confinement should be in place. The review should be conducted in good faith and carried out by an independent body. Any change in the factors that justified the imposition of solitary confinement should immediately trigger a review of the detained person’s solitary confinement. All review processes must be documented.
96. Persons held in solitary confinement must be provided with a genuine opportunity to challenge both the nature of their confinement and its underlying justification through a process of administrative review. At the outset of the imposition of solitary confinement, detained persons must be informed of their alleged criminal or disciplinary infraction for which solitary confinement is being imposed and must immediately have an opportunity to challenge the reasons for their detention. Following the imposition of solitary confinement, detained persons must have the opportunity to file a complaint to prison management through an internal or administrative complaints system.
97. There shall be no limitations imposed on the request or complaint, such as requiring evidence of both mental or emotional suffering and physical suffering. Prison officials have an obligation to address all requests or complaints promptly, informing the detained person of the outcome. All internal administrative findings must be subject to external appeal through judicial processes.
External safeguards
98. Detained persons held in solitary confinement must be afforded genuine opportunities to challenge both the nature of their confinement and its underlying justification through the courts of law. This requires a right to appeal all final decisions by prison authorities and administrative bodies to an independent judicial body empowered to review both the legality of the nature of the confinement and its underlying justification. Thereafter, detained persons must have the opportunity to appeal these judgements to the highest authority in the State and, after exhaustion of domestic remedies, seek review by regional or universal human rights bodies.

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99. Individuals must have free access to competent legal counsel throughout the period in which they are held in solitary confinement. Where necessary to facilitate complete and open communication between a detainee and his or her legal counsel, access to an interpreter must be provided.
100. There should be a documented system of regular monitoring and review of the inmate’s physical and mental condition by qualified medical personnel, both at the initiation of solitary confinement and on a daily basis throughout the period in which the detained person remains in solitary confinement, as required by rule 32, paragraph 3, of the Standard Minimum Rules for the Treatment of Prisoners. Medical personnel monitoring detained persons should have specialized training in psychological assessment and/or the support of specialists in psychology. Additionally, medical personnel must be independent and accountable to an authority outside of the prison administration. Preferably, they should belong to the general national health structure. Any deterioration of the inmate’s mental or physical condition should trigger a presumption that the conditions of confinement are excessive and activate an immediate review.
101. Medical personnel should additionally inspect the physical conditions of the inmate’s confinement in accordance with article 26 of the Standard Minimum Rules for the Treatment of Prisoners. Relevant considerations include the level of hygiene and cleanliness of the facility and the inmate, heating, lighting and ventilation of the cell, suitability of clothing and bedding, adequate supply of food and water and observance of the rules concerning physical exercise.

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Annex

Effects of solitary confinement
Many symptoms may present themselves in individuals held in solitary confinement, both concurrent with their solitary confinement and after the period of solitary confinement has terminated. The following list prepared by Dr. Sharon Shaleva demonstrates a range of possible symptoms. Anxiety, ranging from feelings of tension to full-blown panic attacks
• Persistent low level of stress • Irritability or anxiousness • Fear of impending death • Panic attacks Depression, varying from low mood to clinical depression • Emotional flatness/blunting — loss of ability to have any “feelings” • Mood swings • Hopelessness • Social withdrawal; loss of initiation of activity or ideas; apathy; lethargy • Major depression Anger, ranging from irritability to full-blown rage • Irritability and hostility • Poor impulse control • Outbursts of physical and verbal violence against others, self and objects • Unprovoked anger, sometimes manifested as rage Cognitive disturbances, ranging from lack of concentration to confused state • Short attention span • Poor concentration • Poor memory • Confused thought processes; disorientation Perceptual distortions, ranging from hypersensitivity to hallucinations • Hypersensitivity to noises and smells • Distortions of sensation (e.g., walls closing in) • Disorientation in time and space

a Sharon Shalev, A Sourcebook on Solitary Confinement (London, Mannheim Centre for Criminology, 2008), pp. 15-17; also Peter Scharff Smith, “The effects of solitary confinement on prison inmates: a brief history and review of the literature”, Crime and Justice, vol. 34 (2006),
p. 441.

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• Depersonalization/derealization • Hallucinations affecting all five senses (e.g., hallucinations of objects or
people appearing in the cell, or hearing voices when no one is actually speaking) Paranoia and psychosis, ranging from obsessional thoughts to full-blown psychosis • Recurrent and persistent thoughts (ruminations), often of a violent and vengeful character (e.g., directed against prison staff) • Paranoid ideas — often persecutory • Psychotic episodes or states: psychotic depression, schizophrenia Self-harm, self-directed aggression • Self-mutilation and cutting • Suicide attempts

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Exhibit C

NATIONS UNIES
HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L’HOMME

UNITED NATIONS OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

Télégrammes: UNATIONS, GENEVE Téléx: 41 29 62 Internet: www.ohchr.org E-mail: urgent-action@ohchr.org
FAX

Address: Palais des Nations CH-1211 GENEVE 10

To: H.E. Mrs. Betty E. King Ambassador Permanent Representative of the United States of America to the United Nations Office at Geneva Permanent Mission of the United States of America to the United Nations Office at Geneva

From: Jane Connors Chief Special Procedures Branch OHCHR

Fax Nº: 022 749 48 80 Tel N°:
Date: 13 September 2011

Fax Nº: (+41-22) 917 9006 Tel N º: (+41-22) 917 9359
Number of pages - (this one included) : 6

Subject:

COMMUNICATION FROM SPECIAL PROCEDURES ALLEGATION LETTER AL G/SO 214 (53-24) USA 16/2011

Please find attached an allegation letter sent by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

NATIONS UNIES
HAUT COMMISSARIAT DES NATIONS UNIES AUX DROITS DE L’HOMME

UNITED NATIONS
OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

PROCEDURES SPECIALES DU CONSEIL DES DROITS DE L’HOMME

SPECIAL PROCEDURES OF THE HUMAN RIGHTS COUNCIL

Mandate of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

Téléfax: (41-22) 917 9006 Télégrammes: UNATIONS, GENEVE Téléx: 41 29 62 Téléphone: (41-22) 917 9269 Internet www.ohchr.org E-mail: urgent-action@ohchr.org
REFERENCE: AL G/SO 214 (53-24) USA 16/2011
Excellency,

Address: Palais des Nations CH-1211 GENEVE 10
13 September 2011

I have the honour to address you in my capacity as Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pursuant to General Assembly resolution 60/251 and to Human Rights Council resolution 16/23.

In this connection we would like to draw the attention of your Excellency’s Government to information received regarding the widespread practice of solitary confinement, including its prolonged and indefinite use and the imposition of solitary confinement on individuals with mental disabilities in prison system in the United States.

According to the information received there are five main issues of concern regarding the use of solitary confinement in the United States:

1. systematic use of solitary confinement in prison system;

2. the strict regime and harsh physical conditions;

3. its prolonged and indefinite use as a management strategy;

4. adverse impact of advancement in new technologies on individuals held in solitary confinement; and

…/2
Her Excellency Mrs. Betty E. King Ambassador Permanent Representative of the United States of America to the United Nations Office at Geneva 11 Route de Pregny 1292 Chambésy

5. the imposition of solitary confinement on individuals with mental disabilities.
According to the information received, between 20,000 and 25,000 individuals are being held in isolation (solitary confinement) in the United States. It was reported that over the last twenty years, long-term solitary confinement has become an integral part of correctional programme in the United States.
Regarding the physical conditions and regime of solitary confinement, it was reported that in the United States, solitary confinement, also called “supermax,” “administrative segregation”, “SHU (Secured Housing Unit)”, “SMU (Special Management Unit)”, or simply “the hole”, normally consists of locking an individual alone in a cell for 23 hours or more a day, under conditions of extreme social isolation, enforced idleness, and deprivation of meaningful environmental stimulation. For instance, individuals held in “general population” units at the Administrative Maximum United States Prison (ADX) in Florence, Colorado, spend at least 23 hours each day in cells that measure 5.9 square metres. When individuals are allowed to go outside for recreation, they are placed in 3× 3 metre metal cages alone. Each cell contains a bunk for sleeping, a desk, a stool, a shelf, and a single narrow window which does not open and provides no direct sunlight or fresh air. The cells are illuminated with fluorescent light. Individuals have to take a full strip search and are shackled before leaving and returning to their cells.
Another example is that individuals held in solitary confinement at the State of Wisconsin’s Supermax Correctional Institution in Boscobel, allegedly receive no outdoor exercise and spend all but four hours a week confined to their cells. Their personal possessions are severely restricted to one religious text, one box of legal materials and 25 personal letters. They are permitted no clocks, radios, watches, cassette players or televisions. It was reported that the door of the cell is solid except for a shutter and a trap door through which a guard may transfer items to the inmate without interacting with him. The cells are illuminated 24 hours a day. The temperature fluctuates wildly, reaching extremely high and low temperatures depending on the season. A video camera rather than a human eye monitors the inmate's movements. Visits other than with lawyers are conducted through video screens.
Regarding the allegation of prolonged solitary confinement as a management strategy, it was reported that it is typical that prisoners are placed in solitary confinement for indefinite periods, and may remain there for years and in some cases decades. According to the information received, an investigation of Tamms Correctional Center, a supermax prison in Illinois, revealed that 54 prisoners had been in continuous solitary confinement for more than 10 years. Reportedly, there are numerous examples of even longer periods of solitary confinement.
2

With regard to the allegation of adverse impact of advancement in new technologies on individuals held in solitary confinement, it was reported that new technologies, such as the development of intercoms and video surveillance cameras, have made it possible to keep individuals under close surveillance with almost no human interaction. This form of indirect supervision realizes a level of social isolation which was impossible in earlier times.
Reportedly, many mentally disabled individuals are held in solitary confinement in various prisons in the United States. It was reported that once held in solitary confinement, the situation of individuals with mental disabilities deteriorates dramatically. There have been cases that individuals with mental disabilities swallow razors or other objects, smash their heads into the wall, compulsively cut their flesh, try to hang themselves, and attempt to harm or kill themselves.
Without in any way implying any conclusion as to the allegations mentioned above, we should like to appeal to your Excellency’s Government to seek clarification of the circumstances regarding the practice of solitary confinement in prison system. We would like to stress that each Government has the obligation to protect the right to physical and mental integrity of all persons. This right is set forth inter alia in the Universal Declaration of Human Rights (UDHR), the International Convenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (CAT).In this connection, we would like to draw your Excellency’s Government’s attention to Article 10, paragraph 1 of the ICCPR, which provides that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
Concerning the allegations according to which a number of individuals have been held in solitary confinement at Tamms Correctional Center for more than 10 years, we would like to emphasize that given its severe adverse health effects, the use of solitary confinement, especially when prolonged, can amount to acts prohibited by Article 7 of the ICCPR, torture as defined in Article 1 of the CAT, or cruel, inhuman or degrading punishment as defined in Article 16 of the CAT. In this context, we would like to bring to the attention of your Excellency’s Government paragraph 6 of the General Comment No. 20 of the Human rights Committee, which notes that “prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7 (of the ICCPR)”, and principle 7 of the Basic Principles for the Treatment of Prisoners, which states that “Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.”
With regard to the allegations that individuals held in solitary confinement at the Supermax Correctional Institution in Wisconsin, are not allowed any outdoor exercise, we would like to refer your Excellency’s Government to paragraph 21(1) of the UN Standard Minimum rules for the Treatment of Prisoners, which states that “Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits”.
3

Concerning the allegations according to which individuals with mental disabilities are being held in solitary confinement, we would like to emphasize that the right of persons with mental disabilities to be treated with humanity and with respect for the inherent dignity guaranteed under Article 10 of the ICCPR should be interpreted in light of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, which was adopted by General Assembly Resolution 46/119 of 17 December 1991.
Moreover, it is my responsibility under the mandate provided to me by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected to report on these cases to the Human Rights Council, I would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged in the above summary accurate?
2. Please provide information on the use of solitary confinement, including the legal grounds and related guidelines or procedures, if there are any.
3. Please indicate whether solitary confinement is used as a last resort.
4. We would appreciate information from your Excellency’s Government clarifying how it tends to address the concerns raised in this communication, especially with regard to the pattern of prolonged solitary confinement used in prison systems.
5. Are individuals informed of the justification and the duration of their solitary confinement at the outset of the imposition?
6. Are individuals held in solitary confinement provided with an opportunity to challenge the nature of their confinement and its justification through either an internal complaint system or an independent external body?
7. Are individuals held in solitary confinement monitored by qualified and independent medical personnel? If so, please provide detailed information in this regard.
8. What is the justification for the imposition of solitary confinement on individuals with mental disabilities?
I would appreciate a response within sixty days. I undertake to ensure that your Excellency’s Government’s response to each of these questions is accurately reflected in the reports I will submit to the Human Rights Council for its consideration.
Please accept, Excellency, the assurances of my highest consideration.
4

Juan E. Méndez Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment
5

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.

Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF DR. JAMES AUSTIN, Ph.D.

I. II. III. IV.
A. B. C. V.

TABLE OF CONTENTS

Page(s)

Background ..................................................................................................1 The Purposes of Administrative Segregation ..............................................3 Trends in the Use of SHU within the CDCR ...............................................6 California’s Old Regulations for Placement of Gang Affiliates in the SHU....................................................................................................7
Inadequate Checks And Balances in CDCR’s Old Procedures ...............9 Over-Reliance on Gang Affiliation for SHU Placement .......................11 CDCR SHU Reviews .............................................................................22 Deficiencies in the Step-Down Program....................................................25

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I. BACKGROUND 1. I have been asked by counsel for Plaintiffs to review and comment on the
California Department of Corrections and Rehabilitation’s (CDCR) use of the Special Housing Units (SHU) in general and specifically the one at the Pelican Bay State Prison (PBSP).
2. To undertake this task I reviewed CDCR’s current SHU policies, the disciplinary, classification and risk assessment records of randomly selected inmates housed in the PBSP SHU, CDCR Department Review Board (DRB) Documents, Security Threat Group Regulations, CDCR Staff Orientation Booklet-Security Threat Group Step Down Program, and other relevant materials. A complete list of the materials I reviewed is attached as Exhibit A. In addition to the documents reviewed, I conducted a site visit to the PBSP and toured parts of the prison on January 14, 2015.
3. In terms of my credentials, I received my Ph.D. in sociology from the University of California at Davis in 1980. I am currently the President of JFA Institute, a corrections consulting firm. Prior to that, I was the Director of the Institute of Crime, Justice and Corrections at the George Washington University, and Executive Vice President for the National Council on Crime and Delinquency. I began my career in corrections with the Illinois Department of Corrections in 1970 at Statesville Penitentiary. A complete description of my education and experience, along with a list of all the cases in which I have testified and all my publications, is contained in my curriculum vitae, which is attached hereto as Exhibit B.
4. I have over 40 years of experience in correctional planning and research. I was appointed to the California Department of Corrections and Rehabilitation Expert Panel on Adult Offender Recidivism Reduction Programs. I am serving or have recently
1

served as director for several large research and evaluation programs, most notably: the Correctional Options Evaluation and Justice Reinvestment programs. I have served as the Chair of the National Policy Council for the American Society of Criminology.
5. I have worked in the states of Ohio, Mississippi, Colorado, Oklahoma, Kentucky, Maryland, Illinois, Indiana and the Federal Bureau of Prisons to evaluate their use of administrative segregation. I am currently retained by the Georgia Department of Corrections and the New York State Attorney General’s Office and New York Department of Corrections and Community Supervision as its consultant/expert witness in the use of administrative segregation.
6. I have been a consultant for the National Institute of Corrections on jail and prison classification systems. In that capacity I have assisted over 25 states and numerous jail systems develop and implement objective prisoner classification systems.
7. I was named by the American Correctional Association as its recipient of the Peter P. Lejin's Research Award in 1991, and I received the Western Society of Criminology Paul Tappin award for outstanding contributions in the field of criminology in 1999. I am a member of the CDCR’s Expert Panel on Adult Offender Recidivism Reduction Programs and was a key author of the Panel’s recommendations on reducing the CDCR prison population.
8. I am being compensated by Plaintiffs in the amount of $150 per hour for my work in this matter.
9. Based on my substantial experience and on my review of this matter, I intend to offer the following opinions if called to testify at trial: first, the Plaintiff class has been placed in SHU status for an excessive period of time based on incorrect or
2

inappropriate classification criteria and should be released to an appropriate Level IV or Level III general population housing unit or a protective custody unit; second, CDCR’s old procedures (which are still in use for hundreds of inmates) for reviewing and retaining inmates in the SHU are grossly inadequate and do not meet the recommended best practices articulated by the Association of State Correctional Administrators and followed in a number of major state systems (Ohio, Mississippi, Colorado, New York, Washington and the Federal Bureau of Prisons); third, the recently implemented SHU step down program is flawed in its basic structure and needs to be significantly revised so that it consists of only three steps or phases, with each phase lasting approximately six months, assuming the prisoner conforms to the program behavioral requirements such as participating in programs and positive disciplinary behavior.
10. These opinions are based on statistical analysis and comparison of CDCR’s polices and practices with other state and federal administrative segregation policies and practices. Below, I present some background information on the use of segregation, some of my own prior research and then a more specific analysis of the CDCR Special Housing Unit program as it has functioned within the CDCR. II. THE PURPOSES OF ADMINISTRATIVE SEGREGATION
11. The removal of disruptive and violent inmates from the “general population” and their placement in separate housing units has been a common practice in prison systems since their inception. 1 The modern use of segregation and solitary confinement within specialized units and facilities began to emerge in the 1970s as prison populations began to rise, spurring a series of highly publicized riots along with increased 1 C. Riveland. Supermax Prisons: Overview and General Considerations. National Institute of Corrections Technical Assistance Number 98P4002. Jan. 1999.
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prison violence and crowding.2 It was hoped that segregating the most disruptive inmates
for extensive periods of time under extreme forms of security would serve both as a
deterrent to some inmates who might become highly disruptive, and, more importantly,
would incapacitate those who disrupted prison security.
12. When implemented successfully, the practice of centralized and
specialized administrative segregation units allows the vast majority of inmates who are
conforming to the prison system’s rules and regulations to carry out their daily routines of
work, recreation and program participation without the fear of violence or intimidation by
more aggressive inmates. It also allows these other prisoners to avoid lengthy periods of
“lockdowns” or major disturbances.3
13. Nationally, and in California, three major factors influenced the rise of
segregated housing: 1) the significant increases in the nation’s state and federal prison
populations; 2) the attendant level of prison crowding; and 3) the increased presence of
organized street and prison gangs.4 More recently, the Federal Government and many
state systems have begun to move away from prolonged solitary confinement. Reflecting
this growing trend away from segregation, in 2013 the Association of State Correctional
2 J. Wooldrege. “Research Note: A State Level Analysis of Sentencing Policies and Inmate Crowding in State Prison.” Journal of Crime and Delinquency 42, no. 3, Jul. 1996: 456-466. 3 It should be noted at the outset that administrative segregation is not to be confused with disciplinary segregation. The latter is used to simply punish prisoners for violations of serious rules infractions like fighting/assaults, possession of weapons, drugs and contraband. The former is an indeterminate placement in segregation, frequently due to the potential threat the inmate poses to the overall safety of the prison system. CDCR’s STG SHU program is purportedly an administrative segregation scheme, because it involves an indeterminate SHU sentence not explicitly imposed as a disciplinary measure. Of course, the CDCR also places inmates in SHU for disciplinary segregation. 4 Mears, Daniel P. 2013. “Supermax Prisons: The Policy and the Evidence.” Criminology & Public Policy V. 12, (4): 681-720. Riveland. Chase. Supermax Prisons: Overview and General Considerations. National Institute of Corrections Technical Assistance Number 98P4002. Jan. 1999. D.P. Mears and J. Watson. “Towards a Fair and Balanced Assessment of Supermax Prisons.” Justice Quarterly 23, no. 2, Jun. 2006: 232-270.
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Administrators (ASCA) Administrative Segregation Sub-Committee examined the issues
surrounding segregation and provided recommendations regarding the use of restrictive
housing. 5 The sub-committee’s final recommendations to correctional systems and
administrators on the use of administrative segregation (as opposed to disciplinary
segregation) were published as follows:
1. Provide a process, a separate review for decisions to place an offender in restrictive status housing;
2. Provide periodic classification reviews of offenders in restrictive status housing every 180 days or less;
3. Provide in-person mental health assessments, by trained personnel within 72 hours of an offender being placed in restrictive status housing and periodic mental health assessments thereafter including an appropriate mental health treatment plan;
4. Provide structured and progressive levels that include increased privileges as an incentive for positive behavior and/or program participation;
5. Determine an offender’s length of stay in restrictive status housing on the nature and level of threat to the safe and orderly operation of general population as well as program participation, rule compliance and the recommendation of the person(s) assigned to conduct the classification review as opposed to strictly held time periods;
6. Provide appropriate access to medical and mental health staff and services; 7. Provide access to visiting opportunities; 8. Provide appropriate exercise opportunities; 9. Provide the ability to maintain proper hygiene; 10. Provide program opportunities appropriate to support transition back to a general
population setting or to the community; 11. Collect sufficient data to assess the effectiveness of implementation of these
guiding principles; 12. Conduct an objective review of all offenders in restrictive status housing by
persons independent of the placement authority to determine the offenders’ need for continued placement in restrictive status housing; and, 13. Require all staff assigned to work in restrictive status housing units receive appropriate training in managing offenders on restrictive status housing status.
5 Association of State Correctional Administrators, Administrative Segregation Sub-Committee. Final Restrictive Status Housing Policy Guidelines. Aug. 9, 2013. Secretary of the CDCR, Dr. Jeffery Beard, is a member of ASCA.
5

III. TRENDS IN THE USE OF SHU WITHIN THE CDCR 14. California opened its first stand-alone SHU at the Corcoran State Prison in
1988. This was followed by the opening of Pelican Bay in 1989. Along with these two facilities, currently there is one other major male CDCR facility that operates a SHU program - California Correctional Institution in Tehachapi. I have reviewed data on the number of inmates assigned to all California SHU programs (male and female) from 1989 to 2014.
15. Table 1 shows the rise of the California SHU population from 1989 through 2014. The bulk of these figures are for December 31st of each year as reported on the CDCR website which recorded the SHU populations via its monthly population reports up through 2011. 6 As Table 1 shows, both the CDCR and SHU populations rose steadily, with a peak SHU population of approximately 3,000 by 1997. The SHU population remained fairly stable until 2006 when it began to increase again despite significant reductions in the CDCR population due to realignment and other legislative initiatives to reduce the prison population and relieve excessive crowding. According to the CDCR COMPSTAT report, by December 2014 there were approximately 3,500 inmates in the California SHU facilities.
6 CDCR does not have available on its website monthly reports prior to 1990. Therefore, the SHU population for 1989 is derived from the Weekly Report of Population as of December 24, 1989. As of July 2011, CDCR stopped publishing SHU specific population figures in its monthly population reports. Therefore, the above 2013 and 2014 SHU populations are derived from the current COMPSTAT DAI Statistical Report - 13 Month (generated Feb. 12, 2015). The 2012 SHU population is derived from the Average Daily Prison Population Report for Calendar Year 2012 and reflects the average daily SHU population from October through December of that year. The SHU population for 2011 is derived from the CDCR Weekly Report of Population as of July 27, 2011, which is the most recent report in which CDCR provides SHU populations.
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Table 1. CDCR and SHU Populations 1990-2014

Year 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014

Inmate Population 87,409 97,309 101,808 109,496 119,951 125,605 135,133 145,565 155,276 159,563 160,687 160,655 157,142 159,695 161,785 163,939 168,035 172,528 171,444 171,085 168,830 162,821 147,578 133,285 134,249 134,433

SHU Population 1,312 1,958 1,940 2,279 2,427 2,290 2,796 2,880 2,994 2,648 2,422 2,769 2,936 2,903 2,956 2,916 2,986 3,160 3,152 3,325 3,368 3,295 3,211 3,104 3,906 3,626

% of CDCR Population 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 2% 3% 3% 3%

IV. CALIFORNIA’S OLD REGULATIONS FOR PLACEMENT OF GANG AFFILIATES IN THE SHU 16. California initiated a pilot program to change their gang affiliation system
in 2012.7 While there are significant problems with this new system, described below, it is an improvement from CDCR’s old gang regulations, which allowed for the incorrect
7 California Department of Corrections and Rehabilitation. March 1, 2012. Security Threat Group Prevention, Identification and Management Strategy. Sacramento, CA: CDCR.
7

placement of a significant population of inmates in the SHU for excessive periods of time.
17. Under the old procedures, the CDCR validated inmates into two categories of prison gang affiliates – gang associates and gang members. All prison gang-affiliates were placed in the SHU for an indeterminate term.8 This includes inmates who had not been involved in any rules violation (a 115).9 CDCR did not place in SHU prisoners affiliated with street gangs.
18. This is known as a “status based” system. The underlying rationale behind such a system posits that there are certain gangs whose presence in the prison general population poses a considerable threat to staff and inmate safety. Consequently anyone who is a member of that gang poses the same threat of violence or disruption as posed by the gang itself, regardless of the prisoner’s actual behavior. This argument is known as the “ecological fallacy,” where inferences about the nature of individuals are deduced from facts or inferences about the group to which those individuals belong.10 Status based systems are disfavored in prison management because they result in “false positives,” wrongly identifying inmates as high-risk even though their behavioral history proves they do not engage in violent behavior and are not high risk. Along with negative repercussions for the affected inmates, below I describe the way in which false positives also negate the potential effectiveness of the SHU program.
8 CAL. CODE REGS., tit. 15, § 3341.5(c)(2)(A)(2) (2012) (emphasis added) (“Except as provided at section 3335(a), section 3378(d) and subsection (c)(5), a validated prison gang member or associate is deemed to be a severe threat to the safety of others or the security of the institution and will be placed in a SHU for an indeterminate term.”) 9 Guirbino Deposition, July 18, 2014, at p. 66. 10 Freedman, D. A. (2001). Ecological inference and the ecological fallacy. International Encyclopedia for the Social and Behavioral Sciences, 6, 4027-30.
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and approves or denies validation, usually within a few months of it being received.13 21. At the OCS level, three staff must sign off on the validation assessment.
Unsurprisingly, given this linear structure, it is extremely rare (not more than 5% of the time) that the OCS will disagree with an IGI source item for a Pelican Bay inmate.14 The head IGI at Pelican Bay, Lt. Frisk, testified that he could not remember anyone at OCS ever following up with inmates themselves or asking IGI to do so to clarify information in the validation packet.15 OCS decides whether or not to approve the IGI’s validation recommendation under the old regulations without even seeing the inmate’s disciplinary history or central file. Once OCS approves the gang validation, that decision is sent to the Institutional Classification Committee (ICC) which proceeds to notify the inmate of the OCS decision via the 128-B2 form. The ICC has no authority to overturn the OCS decision, which was largely determined by the IGI validation packet. The same problematic lack of checks and balances is replicated in the six-year inactive reviews, described below.
22. This system differs significantly from other states’ validation systems. In my experience, generally SHU placement begins with an institutional classification committee that has access to complete information about the inmate, including his offense, his programming, and his disciplinary history. Information about gang affiliation is just one of many other pieces of the information considered. An initial recommendation for SHU placement by the classification committee is a group decision, not driven solely by IGI concerns. Once the classification committee makes its
13 Frisk Deposition, Sep. 12, 2014, at p. 124. 14 Frisk Deposition, Sep. 12, 2014, at p. 127-28. 15 Frisk Deposition, Sep. 12, 2014, at p. 125.
10

recommendation, generally the facility Warden (or his/her designee) will then approve or disapprove any recommendation to place an inmate in a SHU-type program. This is an independent review. Most systems I am familiar with also require review of potential SHU placement by the central office classification division, which reviews the recommendation and then makes its own recommendation, which is then signed off by the head of the correctional system or his/her designee. This type of system includes significant checks and balances, ensuring that the individual who has investigated gang involvement – who thus has a vested interest in SHU placement – does not drive the entire decision. I would expect that California’s old system, given its lack of checks and balances, would result in significant over-validation and over-placement of inmates in SHU.
B. Over-Reliance on Gang Affiliation for SHU Placement 23. While CDCR’s lack of checks and balances in validation is extremely troubling, and has almost certainly resulted in erroneous validation decisions, the central attribute of California’s old gang management approach is its total reliance on gang status over behavior. The CDCR explicitly states that inmates who have been “validated” as prison gang affiliates shall be placed in the SHU and remain there for at least six years, unless they renounce their gang affiliation. But there is no scientific basis for CDCR’s practices with respect to determining gang affiliation and the level of the affiliation (associate or member). In other words, the gang validation and SHU confinement policy has never undergone an independent reliability or validity test. 24. Reliability tests function to determine whether CDCR would get the same validation result if multiple IGI staff were asked to conduct blind and independent assessments of the same inmate. Related to reliability is the question of whether the IGIs
11

are missing some unknown number of prison gang members by their designation process. If this is occurring, efforts to reduce prison violence would be significantly weakened by such a “measurement” error in the identification process.
25. A validation test provides a distinct measure of functionality, determining whether the largely IGI driven process actually correctly identifies prisoners who, by virtue of their gang-affiliated status are likely to become involved in prison violence (either directly or indirectly), as compared to other prisoners. In other words, even if the CDCR is accurately identifying and incapacitating all CDCR prison gang affiliates, are these the prisoners who would commit or direct acts of prison violence or otherwise cause serious disruption to prison security and functioning?
26. Absent any test of CDCR’s gang identification process, one simply does not know if it works and it therefore does not qualify as an evidence-based practice.
.16 27. Gang validation under CDCR’s old regulations is based on source items like self-admission, tattoos, suspicious artwork, suspicious correspondence, confidential identification by other inmates (informants), and association with known gang members. Yet there is no CDCR research that supports that such attributes are related to gang violence or serious gang misconduct. 28. Predicting future behavior based on a status that has never been shown to
16 Ducart Deposition, Nov. 24, 2014, Exh. 13, 15.
12

correlate with prison violence or serious misconduct creates a very high risk of false positives in the SHU placement process. (A false positive is an inmate who has been predicted to be a management problem but actually does not present such a problem.)
29. CDCR’s high false positive effect is illustrated in Table 2, which shows that of the inmates identified as prison or street gang members in a 2011 CDCR classification system evaluation,17 only 30% received one or more rules violation report (“RVR”). Of the 30%, the vast majority had only a single RVR. The rates for gangaffiliated prisoners are higher than for non-gang affiliates, but only by 10%. RVRs are the single most important measure of whether an inmate poses a management problem, and for this reason all prison classification systems rely heavily upon them when classifying inmates. By this measure, the vast majority of prisoners identified by the CDCR as prison gang affiliates do not present a significant management problem beyond their affiliation with a prison gang. Consequently, policies that rely exclusively on gang affiliation will produce a large number of false positives (prisoners admitted and retained in SHU for gang-affiliation who do not require such housing). Indeed the CDCR has not only explicitly acknowledged that its pre 2012 policies “overclassified” inmates for SHU placement, 18 but the results of the post-2012 Departmental Review Board hearings unequivocally bear this out.
17 California Department of Corrections. December 2011. Expert Panel Study Of The Inmate Classification Score System. Sacramento, CA: CDCR, Office of Research and Evaluation. 18 Giurbino Deposition, July 18, 2014, at p. 74.
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Table 2. Misconduct Rates for Gang and Non-Gang Identified Inmates

RVRs NONE ONE MULTIPLE Total

Non-Gang

Inmates

%

36,455

79%

7,057

15%

2,496

5%

46,008

100%

Gang

Inmates

%

13,543 69%

4,367 22%

1,617 8%

19,527 100%

Source: CDCR Classification System Evaluation data set
30. The disconnect between gang affiliation and actual prison misbehavior is

further demonstrated by the classification and disciplinary history of the Plaintiff class.

Specifically, I reviewed the initial classification scores (documented in CDCR’s form 839) for 59 members of the due process class.19

31. Most of these inmates have very high classification scores (which will

ensure they will remain in the highest level (IV) that is allowed by the CDCR system).

The high number of points is reflective of their long sentence length and a number of

serious misconduct reports they received during the first few years of their prison terms.

32. Under the CDCR classification system there is no “forgiveness” for those

early years of disruptive behavior. Consequently it can take many years of conforming

conduct to be considered for Level III or lower custody levels. This lack of “forgiveness”

is unique to California. State systems that use the National Institute of Corrections (NIC)

objective classification system generally forgive non-violent rule violations after 12-24 months. The very serious ones that reflect violence are forgiven after 5-10 years.20 By

19 These 59 inmates included the ten named plaintiffs, 42 randomly selected Pelican Bay prisoners and 7 prisoners selected by Plaintiffs’ counsel. While all of these prisoners were initially due process class members, some of them are no longer members of the due process class
by virtue of being transferred after a DRB. 20 Austin, James and Patricia L. Hardyman. July 2004. Objective Prison Classification Systems: A
Guide for Correctional Agencies. Washington, DC: U.S. Department of Justice, National Institute

14

not allowing past behaviors to be minimized or downgraded over time, inmates will be over-classified for a substantial period of time.
33. Table 3 shows Plaintiffs’ disciplinary histories.21 In this table only the rules violations that have occurred over the past 10 ten years are reported. A total of 41 violations have occurred over this ten year period with only five being for potentially violent offenses. This is an exceptionally low rate of disciplinary infractions for a tenyear period for a high security population. And importantly, the vast majority are minor, non-violent rules violations like participation in the 2013 hunger strike (12%), promotion of gang activities (17%), unauthorized talking (24%) and disobeying a direct order (10%). A system that places such inmates in SHU for over a decade defies all logic. These are rules violations that occur in all prisons and in no way necessitate or deserve a SHU term. Of all these violations, only the very few, potentially violent offenses highlighted below would result in possibly being placed in a SHU or step down program in the other State systems with which I am familiar.
of Corrections. 21 I compiled Tables 3 and 4 based on a spreadsheet created by Plaintiffs’ counsel of all Rules Violations Reports identified in Defendants’ productions. Given the voluminous nature of this material, it is possible that my RVR analysis could be slightly over or under inclusive, in comparison to what a formal audit would reveal.
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Table 3. Disciplinary Reports Past Ten Years for Ten Plaintiffs
Violation Total Unauthorized Talking Promotion of Gang Activity Hunger Strike Disobeying a Direct Order Disrespect w/o Potential for Violence (profanity) Dangerous Contraband Inciting a Riot Mail Violation with No Security Threat Unauthorized Business Dealings Assault on Staff Plans to Disrupt Order (tries to slip letter to attorney) Recurring Failure to Meet Program Expectations Willfully Delaying a Peace Officer

Frequency 41 10 7 5 4 3 2 2 2 2 1 1 1 1

% 100%
24% 17% 12% 10%
7% 5% 5% 5% 5% 2% 2% 2% 2%

34. Table 4 repeats the analysis for 49 due process class members. These inmates have produced slightly more than 200 rule violations over the past ten years. The same pattern emerges here with most of these violations being for the hunger strikes, promoting gang activity, and disobeying a direct order. There were 26 violations involving weapons possession, assault and battery usually with no bodily injury, and attempted murder. Again, over a ten year period, this is a remarkably low number of rules violations and reflects a population of inmates who, with some very limited possible exceptions, should not be in SHU.

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Violation

Table 4. Disciplinary Reports Past Ten Years Pelican Bay Class – 49 Supplemental Inmates
Frequency

Willfully Delaying a P/O (hunger strike)

33

Promoting Gang Activities

30

Participating in Mass Disturbance (Hunger Strike)

21

Participation in a Mass Disturbance

14

Willfully Delaying a P.O. of Duties/During Emergency Count

14

Disobeying a Direct Order

13

Refusal to Obey Orders

13

Assault or Battery

12

Possession of Deadly Weapon

11

Possession of Alcohol/Controlled Substance

9

Comm. Between Offenders Evidencing STG Behavior/Act

8

Unauthorized Talking

7

Failure to Meet Program Expectations

5

Unauthorized Business Dealings

5

Possession of Contraband

4

Attempted Murder

3

Indecent Exposure

3

Mail Violations

3

Personal Possession of STG Related Material

1

Misc. Other Non-Violent

16

Total

211

%
16% 14% 10%
7% 7% 6% 6% 6% 5% 4% 4% 3% 2% 2% 2% 1% 1% 1% 0% 8% 100%

35. Finally Table 5 lists the 840 scores for this same set of 59 Pelican Bay inmates.22 Here you can see the very large total score figure recognizing that in order to
be placed in Level III, the score must be lower than 52 points. All but seven inmates have
received “favorable” points meaning that since the last annual report the inmate has not
been involved in any serious misconduct. Most of the unfavorable points are for the non-
violent behavior and participation in the 2013 hunger strike.
22 I created this table through review of the most recent form 840 identified in Defendants’ production for each of the 59 inmates I considered in this report. A key indicating the identify of each inmate is attached as Exhibit C.

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Table 5. Current 840 Classification Points for Plaintiffs and Class Members

Name Prisoner 1 Prisoner 2 Prisoner 3 Prisoner 4 Prisoner 5 Prisoner 6 Prisoner 7 Prisoner 8 Prisoner 9 Prisoner 10 Prisoner 11 Prisoner 12 Prisoner 13 Prisoner 14 Prisoner 15 Prisoner 16 Prisoner 17 Prisoner 18 Prisoner 19 Prisoner 20 Prisoner 21 Prisoner 22 Prisoner 23 Prisoner 24 Prisoner 25 Prisoner 26 Prisoner 27 Prisoner 28 Prisoner 29 Prisoner 30 Prisoner 31 Prisoner 32 Prisoner 33 Prisoner 34 Prisoner 35 Prisoner 36 Prisoner 37 Prisoner 38 Prisoner 39 Prisoner 40

Current Age 50 39 51 53 39 42 41 59 42 44 37 58 56 46 49 55 51 59 52 41 46 57 46 46 50 42 49 42 56 51 63 66 55 66 41 37 45 41 65 62

Total 840 Pts 45 52 334 105 229 189 131 112 73 136 73 173 95 119 42 169 143 170 107 157 126 125 112 141 127 256 115 253 197 155 19 72 19 77 93 268 199 137 46 252

Favorable Pts 2 2 0 4 4 2 4 2 4 4 4 2 2 2 0 2 0 2 2 2 4 2 4 2 0 2 4 0 0 4 2 2 4 2 4 2 2 2 4 2

Unfavorable Pts 6 6 18 0 0 6 0 6 0 0 0 12 10 0 14 0 10 6 6 6 0 14 10 6 10 6 0 0 0 0 0 6 0 0 0 0 10 10 6 6

18

Prisoner 41 Prisoner 42 Prisoner 43 Prisoner 44 Prisoner 45 Prisoner 46 Prisoner 47 Prisoner 48 Prisoner 49 Prisoner 50 Prisoner 51 Prisoner 52 Prisoner 53 Prisoner 54 Prisoner 55 Prisoner 56 Prisoner 57 Prisoner 58 Prisoner 59

42

319

2

0

48

187

2

6

58

105

4

0

44

170

2

6

49

84

2

6

37

61

2

6

49

37

2

6

72

19

4

0

47

85

0

30

50

76

4

0

63

19

4

0

41

106

2

6

50

317

2

10

43

81

2

6

61

127

4

0

43

93

2

0

37

237

4

0

57

195

4

0

45

73

2

10

36. The inmate classification and disciplinary conduct data all suggest that these inmates, in general, do not require SHU placement. With only a few possible exceptions that would have to be demonstrated to the author, their conduct over the past many years suggests that at a maximum they should be assigned to either a Level IV general population unit or a Level IV special needs unit, not a SHU. It is puzzling that these inmates who have been discipline free for many years or have been involved in relatively minor rules violations are placed in such restrictive units.
37. The CDCR also has its own risk assessment instrument that has been validated by the University of California at Irvine.23 Inmates are separated into the
23 Turner, Susan, James Hess, Charlotte Bradstreet, Steven Chapman, Ann Murphy. September 2013. Development of the California Static Risk Assessment (CSRA): Recidivism Risk Prediction in the California Department of Corrections and Rehabilitation. Irvine, CA: University of California, Irvine, Center for
19

following risk levels: 1. Low 2. Moderate 3. High Property 4. High Drug 5. High Violent
38. My review of the records of 41 class members (including Plaintiffs) found that over 70% were assessed by the CDCR as “low risk” meaning that they are highly unlikely to be re-arrested for a violent crime upon release and have low re-incarceration rates. Two of the key reasons why so many of these inmates are assessed as low risk are their age and lack of prior criminal record.
39. Finally, CDCR’s high false positive effect is also evidenced by the failure of CDCR’s use of administrative segregation to reduce prison violence. While it does not appear that CDCR itself has examined whether or not SHU placement of gang-affiliated inmates impacts prison violence, I undertook that review myself. Table 6 shows the relationship between the increased use of the CDCR SHU program and rates of assault on staff and inmates. Clearly, the increased use of SHU, which began in 1988, has not produced lower assault rates in the CDCR. In fact, the rate of assault has been increasing as the SHU populations have increased. The reasons for this trend have been established in this report. The CDCR is incorrectly identifying high risk inmates who require placement in the SHU and the periods of SHU confinement are excessive and nonproductive. Obviously the CDCR is “missing” a large number of other inmates and/or gangs who are engaged in assaultive behavior and are not being properly identified by the current or past CDCR SHU selection process.
Evidenced-Based Corrections.
20

25

New York Department of Corrections and Community Corrections SHU Guidelines

Offense Code

Offense Description

105.13

An inmate shall not engage in or encourage others to engage in gang activities or meetings, or display, wear, possess, distribute or use gang insignia or materials including, but not limited to, printed or hand written gang or gang related material.

SHU term for first offense
0-3 months

SHU term for second
offense 0-6 months

SHU term for third offense 6-12 months

C. CDCR SHU Reviews 41. Under California’s old policies, once a gang-validated inmate is placed in the SHU with an indeterminate sentence, retention in the SHU is still largely controlled by the OCS, but other committees do perform periodic reviews of the SHU inmates. These reviews are largely perfunctory and almost never result in releasing an inmate from SHU status. 42. The Unit Classification Committee (UCC) reviews the inmate’s security or custody classification rating on an annual basis (the 839 and 840 forms). The Institutional Classification Committee (ICC) reviews the status of the SHU inmates every 180 days. The ICC is chaired by the Warden (or Associate Warden) and can reverse any decisions made by the UCC. The ICC then reports to the Classification Services Unit located at CDCR’s central office in Sacramento. The IGIs can provide information to these two committees on specific cases at any time at their request.

25 Ducart Deposition, Nov. 24, 2014, Exh. 13, Appendix 3 at p. 24.

22

43. The UCC and ICC that are responsible for the 180-day and annual reviews are not tasked with determining whether the inmate’s past or current behavior indicates that he should remain in the SHU. CDCR’s description of its new regulations makes this explicit, noting that the new regulations “will incorporate a 2-3 year reduction in the length of time served in SHU for an STG affiliate who previously would only be considered for release during a 6 year revolving Departmental Review Board review process.”26
44. Again, this process is unique compared to other state systems where the process for progressing out of a SHU type status lies with the local institution with a final review by the central office classification office. Proper review of SHU placement requires creation of an individualized plan once the inmate is placed in SHU. This plan must involve a clear explanation of why the inmate has been placed in SHU, and exactly what he needs to do, or refrain from doing, to gain release from SHU within a set period of time. The inmate should then be reviewed every 90 days to determine if he is meeting program goals. If he succeeds in modifying his behavior for three consecutive reviews, over a 9 month period, he should be released from SHU altogether, or in the case of a step down program for offenders with very serious histories of violence, progress to a step with increased benefits.
45. California’s 180-day and annual review cannot be considered proper SHU reviews, because they appear largely pro forma, and seem to involve only an analysis of whether or not an inmate wishes to debrief. If not, he is considered to still be dangerous
26 See SDP Initial Statement of Reasons, at 6 (emphasis added).
23

and still belong in SHU. This is not a meaningful review of an inmate’s behavior (especially given the information above, showing that gang affiliation does not correspond to prison violence), and indicates to me that California, under these old regulations, was not actually trying to help inmates modify their behavior to earn their way out of the SHU.
46. Because the 180-day and annual reviews do not actually involve a substantive analysis of the inmate’s behavior, under the pre-2012 SHU system inmates were retained indefinitely until one of two conditions were met: 1) the inmate is found to be inactive at his six-year inactive review and/or 2) he agrees to debrief.
47. The quickest way for an inmate to be released from SHU is to renounce his gang affiliation and provide confidential information to the CDCR on other inmates via the debriefing process. This process takes at least 12 months and requires the inmate to be placed in a protective custody or special needs yard upon release from SHU. The only other way out of the SHU absent death, mental illness, or discharge, is to be declared “inactive.”
48. This process is contradictory to “best correctional practices” on a number of fronts. First, I know of no state or federal prison system that places and retains so many inmates in long-term segregation solely due to their gang affiliation and activities. As shown in the New York state example, there must be some documented violent or potentially violent behavior that suggests an ongoing serious threat to the overall safety of the prison system to justify placement and retention in a SHU-like program.
49. Second, the delay of six years between inactive reviews is simply unheard of in other state and federal prison systems. The longest period between meaningful
24

reviews that I am aware of in other states is a year, and it is my informed opinion that 90 day reviews are essential to truly track inmate progress. There is no scientific basis for using a six-year review timeframe.
27
50. Besides occurring too rarely, the inactive review is faulty in itself, as the basis for retention in a SHU is not related to the risk of violence to staff and other inmates. Under the old regulations inmates are found “active” and thus retained in SHU for another six years for simply having possession of artwork that the IGI identifies as containing gang symbols.28 Having artwork is not a “gang behavior” such that it could possibly justify retaining inmates in SHU for many years, even with no rules violations. V. DEFICIENCIES IN THE STEP-DOWN PROGRAM
51. In October 2012, the CDCR implemented a Security Threat Group Management Policy that, among other things, created a SHU step-down program that allows for a different route out of the SHU.29 That program has now been codified in Title 15.30 Step-down programs for administrative segregation have been in place in many jurisdictions for a number of years, with the first one being implemented in Ohio, followed by Mississippi, Colorado, Virginia, Massachusetts, Indiana, Washington State, and the Federal Bureau of Prisons. What is quite unique to the CDCR step-down program is 1) the number of phases the inmate must complete (five) and 2) the overall length of the program (at least four years).
27 Ducart Deposition, Nov. 24, 2014, Exh. 13, Appendix 3. 28 Lewis Deposition, Dec. 10, 2014 at p. 156-160. 29 Giurbino Deposition, Dec. 18, 2014, at p. 41. 30 http://www.cdcr.ca.gov/Regulations/AdultOperations/docs/NCDR/2014NCR/1402/Final_Text_of_Adopted_Regulations_STG.pdf (State of California Office of Administrative Law, Notice of Approval of Regulatory Action: CAL. CODE REGS. tit. 15 (2014).
25

52. For the plaintiff class, the CDCR step-down program actually consists of six steps, since these inmates were previously placed in the SHU for an indeterminate sentence and now must agree to participate in the step-down program. Until the inmate agrees to participate, he will remain in the SHU as a non-step-down participant. I know of no other step-down programs in other state correctional systems that require so many phases and such a long period of compliance. The typical step-down program consists of three to four phases with the opportunity to move to the next phase within 90 days. The longest step-down program I am aware of is operated by the BOP and consists of four phases that would require 18-24 months in total to complete.31 There is no scientific evidence or best practices that support the CDCR model of five phases and a minimum of four years.32 Implementation of such a program will ensure excessive and unwarranted periods of confinement within the SHU.
53. Another deficiency in the step-down program stems from the way it is being applied to SHU inmates who have already been discipline free for many years. To require them to complete a minimum of at least four more years in the SHU is unwarranted. Such inmates should be considered for immediate placement in Step 4 (the least restrictive SHU conditions) or the general population. It is recognized that some type of assistance will be required (counseling and special supervision) given the extraordinary time housed in the SHU program.
31 McGinnis, Kenneth, James Austin and Karl Becker. December 2014. Federal Bureau of Prisons: Special Housing Unit Review and Assessment. Arlington, VA: CNA. 32 For a review of segregation step-down programs see McGinnis, Kenneth, James Austin and Karl Becker. December 2014. Federal Bureau of Prisons: Special Housing Unit Review and Assessment. Arlington, VA: CNA.
26

EXHIBIT A

List of Materials Reviewed
1. Text of Proposed Regulations-Re-Notice; California Code of Regulations, Title 15, Division 3. Proposed Regulations issued in January 2014 and revised in June 2014. (June 20, 2014);
2. Initial Statement of Reasons for proposed changes to California Code of Regulations, Title 15, Division 3. Proposed Regulations issued in January 2014 (January 2014);
3. Notice of Change to California Code of Regulations, Title 15, Division 3 issued in January 2014 giving reasons for June 2014 revisions. (June 2014);
4. Chart serving as an index to Title 15 Gang Policies organized by policy area, key elements, and source references. Source references included Title 15 and CDCR Title 15 and Department Operations Manual Sections;
5. California Code of Regulations: Title 15, selected pages of Title 15 including all references to gang policies. (January 1, 2014);
6. CDCR Memorandum memo describing the Department Review Process (DRB). (August 9, 2013);
7. Letter from Defense including the results of the first 134 DRB reviews as of the date of the letter, showing step each prisoner was placed in. (February 14, 2014);
8. DRB documents for Plaintiffs Franklin, Johnson and Troxell; 9. Plaintiff’ Second Amended Complaint. Case No: 4-09-cv-05796-CW; 10. California Code of Regulations, Title 15, Division 3 Endorsed Approved by Office of
Administrative Law, October 17, 2014; 11. Plaintiff Digest of the Security Threat Group Regulations approved and adopted
October 17, 2014; 12. California Department of Corrections and Rehabilitation. Staff Orientation Booklet.
Step Down Program; 13. Form 839s and 840s for plaintiffs and 49 class members 14. A chart showing the dates of birth for plaintiffs and 49 class members 15. Defendants 2/11/15 Production, RUIZ 37518-37519 16. Pelican Bay Chronic Care List 17. Sample CDCR validation forms (CFILE003031, RUIZG013752) 18. Excel report on SHU populations between 1987 and 2014 (compiled from publicly
available CDCR reports) 19. Excel chart of plaintiffs’ and class members’ disciplinary histories, compiled from C-
Files produced by Defendants 20. STG Meeting Agenda (RUIZ037502-37511) 21. STG Survey Roll-up (RUIZ037512-37517) 22. Deposition Susan Hubbard, Oct. 29, 2014 23. Deposition of Clark Ducart, Nov. 24, 2014 & Exhibits 13, 15 24. Deposition of Greg Lewis, Dec. 10, 2014 & Exhibit 13 25. Deposition of George Guirbino, July 18, 2014 26. Deposition of George Guirbino, Dec. 18, 2014 27. Deposition of Jeremy Frisk, Sep. 12, 2014

EXHIBIT C

Exhibit C: Prisoner Pseudonyms

CONFIDENTIAL

 
 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

TODD ASHKER, DANNY TROXELL, GEORGE RUIZ, JEFFREY FRANKLIN, GEORGE FRANCO, GABRIEL REYES, RICHARD JOHNSON, PAUL REDD, LUIS ESQUIVEL, and RONNIE DEWBERRY, on their own behalf, and on behalf of a class of similarly situated prisoners,
Plaintiffs,

Case No. 4:09 CV 05796 CW
EXPERT REPORT OF CRAIG HANEY, Ph.D., J.D.
Honorable Claudia Wilken

v.

EDMUND G. BROWN, JR., Governor of the State of California, MATTHEW CATE, Secretary, California Department of Corrections and Rehabilitation (CDCR); ANTHONY CHAUS, Chief, Office of Correctional Safety, CDCR; and G.D. LEWIS, Warden, Pelican Bay State Prison,

Defendants.

Table of Contents
I. Expert Qualifications ................................................................................................1 II. Basis of Expert Opinion ........................................................................................... 5 III. Summary of Expert Opinion .................................................................................. 10 IV. The Adverse Psychological Effects of Isolation ......................................................12 V. The Nature of Solitary Confinement at the Pelican Bay SHU ............................... 38 VI. The Psychological Effects of Long-Term Solitary Confinement at the Pelican
Bay SHU (PBSHU) ................................................................................................. 44 A. The Overall Psychological Status of the Current PBSHU Population ............. 45
1. Re-Interviews with Prisoners from the Original Madrid Sample.............. 46 2. Non-Randomly Selected Sample ................................................................ 55 3. Randomly Selected Sample......................................................................... 57
a) Prevalence of Reported Stress/Trauma-Related Symptoms and Isolation-Related Pathology .................................................................. 59
b) Isolation-Related Suffering and Syndromes......................................... 63 i. The Ongoing Struggle to Maintain Sanity ................................. 63 ii. Problematic Adaptations to Prolonged Isolation and LongTerm Dysfunction ................................................................................ 68
B. Comparisons to the Pelican Bay General Population ...................................... 79 C. Pathological Levels of Loneliness.....................................................................90 D. Absence of Outlets or Viable Sources of Professional Support........................ 96 VII. Conclusion: Long-Term PBSHU Confinement Cruelly Inflicts Extreme Psychological Pain and Lasting Damage on Prisoners That Derive In Large Part From the Experience of Social Death To Which It Subjects Them ............. 102

I. Expert Qualifications 1. I am a Distinguished Professor of Psychology at the University of
California, Santa Cruz, where I also currently serve as the Director of the Legal Studies Program. My area of academic specialization is in what is generally termed “psychology and law,” which is the application of psychological data and principles to legal issues. I teach graduate and undergraduate courses in social psychology, psychology and law, and research methods. I received a bachelor's degree in psychology from the University of Pennsylvania, an M.A. and Ph.D. in Psychology and a J.D. degree from Stanford University, and I have been the recipient of a number of scholarship, fellowship, and other academic awards.
2. I have published numerous scholarly articles and book chapters on topics in law and psychology, including encyclopedia and handbook chapters on the backgrounds and social histories of persons accused of violent crimes, the psychological effects of imprisonment, and the nature and consequences of solitary or “supermax”-type confinement. In addition to these scholarly articles and book chapters, I have published two sole-authored books: Death by Design: Capital Punishment as a Social Psychological System (Oxford University Press, 2005), and Reforming Punishment: Psychological Limits to the Pains of Imprisonment (American Psychological Association Books, 2006).
3. In the course of my academic work in psychology and law, I have lectured and given invited addresses throughout the country on the role of social and institutional histories in explaining criminal violence, the psychological effects of living and working in institutional settings (typically maximum security prisons), and the psychological consequences of solitary confinement. I have
1

given these lectures and addresses at various law schools, bar associations, university campuses, and numerous professional psychology organizations such as the American Psychological Association.
4. I also have served as a consultant to numerous governmental, law enforcement, and legal agencies and organizations, including the Palo Alto Police Department, various California Legislative Select Committees, the National Science Foundation, the American Association for the Advancement of Science, and the United States Department of Justice. For example, in the summer of 2000, I was invited to attend and participated in a White House Forum on the uses of science and technology to improve crime and prison policy, and in 2001 I participated in a conference jointly sponsored by the United States Department of Health and Human Services (DHHS) concerning government policies and programs that could better address the needs of formerly incarcerated persons as they were reintegrated into their communities. I continued to work with DHHS on the issue of how best to insure the successful reintegration of prisoners into the communities from which they have come. More recently, I consulted with the Department of Homeland Security on detention-related issues, and I served as both a consultant to and an expert witness before the United States Congress. I was appointed in 2012 as a member of a National Academy of Sciences committee analyzing the causes and consequences of high rates of incarceration in the United States, and I co-authored the NAS committee’s report, published in book form as The Growth of Incarceration in the United States: Exploring the Causes and Consequences, released in April, 2014. A copy of my curriculum vitae is attached to this Expert Report as Exhibit 1.
2

5. My academic interest in the psychological effects of various prison conditions is long-standing and dates back to 1971, when I was still a graduate student. I was one of the principal researchers in what has come to be known as the “Stanford Prison Experiment,” in which my colleagues Philip Zimbardo, Curtis Banks, and I randomly assigned normal, psychologically healthy college students to the roles of either “prisoner” or “guard” within a simulated prison environment that we had created in the basement of the Psychology Department at Stanford University. The study has since come to be regarded as a “classic” study in the field of social psychology, demonstrating the power of institutional settings to change and transform the people who enter them.1
6. Since then I have been studying the psychological effects of living and working in real (as opposed to simulated) institutional environments, including juvenile facilities, mainline adult prison and jail settings, and specialized correctional housing units (such as solitary and “supermax”-type confinement). In the course of that work, I have toured and inspected numerous maximum security state prisons and related facilities (in Alabama, Arkansas, Arizona, California, Florida, Georgia, Idaho, Louisiana, Massachusetts, Montana, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Utah, and Washington), many maximum security federal prisons (including the Administrative Maximum or “ADX” facility in Florence, Colorado), as well as
1 For example, see Craig Haney, Curtis Banks & Philip Zimbardo, Interpersonal Dynamics in a Simulated Prison, 1 International Journal of Criminology and Penology 69 (1973); Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues (J. Tapp and F. Levine, eds., 1977); and Craig Haney & Philip Zimbardo, Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse, Personality and Social Psychology Bulletin, 35, 807-814 (2009).
3

prisons in Canada, Cuba, England, Hungary, Mexico, and Russia. I also have
conducted numerous interviews with correctional officials, guards, and prisoners
to assess the impact of penal confinement, and statistically analyzed aggregate
data from numerous correctional documents and official records to examine the
effects of specific conditions of confinement on the quality of prison life and the
ability of prisoners to adjust to them.2
7. I have been qualified and have testified as an expert in various
federal courts, including United States District Courts in Arkansas, California,
Georgia, Hawaii, New Mexico, Pennsylvania, South Carolina, Texas, and
Washington, and in numerous state courts, including courts in Colorado, Florida,
Montana, New Jersey, New Mexico, Ohio, Oregon, Tennessee, Utah, and
Wyoming as well as, in California, the Superior Courts of Alameda, Calaveras,
Kern, Los Angeles, Marin, Mariposa, Monterey, Orange, Sacramento, San Diego,
San Francisco, San Mateo, Santa Clara, Santa Cruz, Shasta, Tulare, Ventura, and
Yolo counties. My research, writing, and testimony have been cited by state
courts, including the California Supreme Court, and by Federal District Courts,
2 For example, Craig Haney & Philip Zimbardo, The Socialization into Criminality: On Becoming a Prisoner and a Guard, in Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223) (J. Tapp and F. Levine, eds., 1977); Craig Haney, Infamous Punishment: The Psychological Effects of Isolation, 8 National Prison Project Journal 3 (1993); Craig Haney, Psychology and Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law, Psychology, Public Policy, and Law, 3, 499-588 (1997); Craig Haney, The Consequences of Prison Life: Notes on the New Psychology of Prison Effects, in D. Canter & R. Zukauskiene (Eds.), Psychology and Law: Bridging the Gap (pp. 143-165). Burlington, VT: Ashgate Publishing (2008); Craig Haney, On Mitigation as Counter-Narrative: A Case Study of the Hidden Context of Prison Violence, University of Missouri-Kansas City Law Review, 77, 911-946 (2009); Craig Haney, Counting Casualties in the War on Prisoners, 43 University of San Francisco Law Review 87-138 (2008); Craig Haney, The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement, American Criminal Law Review, 48, 121-141 (2011) [Reprinted in: S. Ferguson (Ed.), Readings in Race, Ethnicity, Gender and Class. Sage Publications (2012)]; and Craig Haney, Prison Effects in the Age of Mass Imprisonment, The Prison Journal, 92, 1-24 (2012).
4

Circuit Courts of Appeal, and the United States Supreme Court.3 A statement of compensation and a list of the cases that I have testified in as an expert at trial or by deposition during the last four years is attached to this Expert Report as Exhibit 2. II. Basis of Expert Opinion
8. I have been retained by counsel for the Plaintiffs in Ashker et. al. v. Governor of California to provide expert opinions on two inter-related topics: a) a summary of what is known about the negative psychological consequences of confinement in isolation or “supermax” prisons; and b) based on the case-specific documents that I have been provided and reviewed, and a series of interviews that I have conducted, the extent to which prisoners housed in the Pelican Bay Security Housing Unit (PBSHU) continue to be subjected to solitary-type confinement that may place them at a serious risk of psychological harm.
9. My opinions on these topics are based on a number of sources. In addition to my own direct experience interviewing and evaluating prisoners housed in solitary confinement, I reviewed the extensive published literature that addresses the psychological effects of solitary confinement. In addition, I have been provided with a set of documents that pertain to the use of solitary confinement at the Pelican Bay SHU. The documents that I reviewed include: the Class Action Complaint for Injunctive and Declaratory Relief in Ashker v. Governor of California; a 2012 Amnesty International report on conditions in California’s SHUs entitled “The Edge of Endurance: Prison Conditions in California’s Security Housing Units”; and the Declaration of Terry Kupers, M.D.,
3 For example, see Brown v. Plata, 131 S.Ct. 1910 (2011).
5

M.S.P. in support of class certification.4 I also reviewed the Central Files of almost all of the prisoners with whom I conducted confidential inteviews in conjunction with this case, including their prison medical and mental health documents.
10. In addition to the present Expert Report, on April 30, 2013, I filed a declaration in support in support of Plaintiffs’ motion for class certification in conjunction with this case. In order to provide the Court with a comprehensive analysis and discussion of my expert opinions, I have incorporated portions of that earlier declaration into the present one.
11. As I mentioned in my earlier declaration, the PBSHU is a facility that I know well. I first toured and inspected this “supermax” prison in 1990, not long after it had opened. Many of the “pods” at the prison had not yet received their first prisoners and some of those that I toured were still empty. I returned to the prison many times in the early 1990s, as one of the experts who evaluated and testified about the impact of what was then considered “long-term” isolated confinement in Madrid v. Gomez.5 In conjunction with my work on that case, I toured and inspected the facility a number of times and conducted numerous interviews with prisoners who were housed in the PBSHU to determine its psychological effects. In July, September, and December, 1992, I conducted approximately thirty (30) interviews with PBSHU prisoners to better understand
4 I should note that although I reviewed Dr. Kupers’ earlier declaration and, as I will point out later in this Expert Report, found his observations to be consistent with my own, his opinions have not influenced or affected my own. I have known of and respected Dr. Kupers’ work for some time. However, I am adamant about reaching my own, independent conclusions, and believe that he functions in exactly the same way. I have not reviewed his Expert Report or any of the others filed in conjunction with this case. 5 889 F. Supp. 1146 (N.D. Cal. 1995).
6

their conditions of confinement and form preliminary opinions about how they were being affected by those conditions. Then, on two separate occasions (August 3-4, and August 30-September 1, 1993), I and a team of researchers that I assembled returned to the facility for several days to complete a systematic study that entailed in-depth assessments of a representative group of one hundred (100) randomly selected PBSHU prisoners. I also have returned to the prison on a number of occasions since Madrid was decided, both to tour and inspect conditions and to interview prisoners. In addition, because of my longstanding interest in the psychological effects of solitary confinement, my active participation in assessing the effects of the PBSHU, and my involvement in the Madrid lawsuit, I have remained apprised of many of the practices, policies, and conditions at the facility.
12. Recently, and directly in conjunction with the Ashker case, I have conducted additional sets of prisoner interviews and conducted an additional tour and inspection of the facility. Specifically, I traveled to the PBSHU on April 16-17, 2013, and conducted confidential in-person interviews with seven (7) prisoners who were both part of the original sample of randomly selected prisoners from my August-September, 1993 study and who were currently housed in the SHU facility. They were: Prisoner B, Prisoner GG, Prisoner D, Prisoner C, Prisoner E, Prisoner M, and Prisoner A.6 Several of these men had been transferred to other CDCR prisons in the intervening 20-year period and
6 In order to protect the confidentiality of the prisoners referred to in this Expert Report, I have identified them in the text with alphabetical designations only. The prisoners’ names and numbers are contained in Exhibit 3, filed under seal.
7

were now back at the PBSHU, and several had never left since I interviewed them
many years ago (Prisoner A, Prisoner B, Prisoner C, and Prisoner D).
13. In addition to the above interviews conducted in April, 2013, I
traveled to PBSP on four additional occasions in conjunction with the Ashker
case. Specifically, between January 17 and 21, 2014, I conducted a series of
confidential in-person interviews with two different groups of class members
(i.e., prisoners who had been housed continuously in the PBSHU for the last 10
years or more). The first group consisted of eight prisoners who were selected on
a non-random basis by Plaintiffs’ counsel.7 The second group, which consisted of
16 prisoners, was randomly selected from a roster of prisoners provided by
CDCR.8 This latter group was part of a larger group of randomly selected
prisoners, chosen in this way to ensure that a representative sample was included
in my analysis. Thus, on December 8-11, 2014, I conducted a second set of
confidential in-person interviews with 25 different randomly selected prisoners
who were members of the Plaintiff class still housed at the PBSHU.9 On
December 15-18, 2014, I interviewed a group of 25 general population (“GP”)
7 When I conducted these interviews during January 17-21, 2014, I was not aware of which interviewees had been selected non-randomly and which by random selection. 8 The random selections were accomplished through the use of a computerized random number generator, a roster of names provided by CDCR that listed all of the prisoners who had been gang validated more than ten years previously, the elimination of those who had not been in prison continuously for the ten previous years (based on the CDCR’s inmate locator), and a subsequent questionnaire set to some of them to determine the length of time that they had spent in the PBSHU. The initial sample of 17 prisoners was randomly selected from this group who had been housed in the PBSHU continuously for the last 10 years or more. A total of 24 interviews were completed in the January, 2014 round of interviews; one prisoner from the random sample refused to be interviewed. 9 Computer-generated random numbers were used to select interviewees from a roster of names provided by CDCR that listed all Plaintiff class members still housed at the PBSHU. No prisoner refused, so the entire sample of 25 randomly selected prisoners was interviewed in the December, 2014 round of interviews.
8

prisoners whom I selected from a list of prisoners who had been incarcerated in
the CDCR continuously for a period of 10 years or more.10
14. Finally, on April 11, 2014, Dr. Terry Kupers and I toured and
inspected the SHU housing units where Ashker class members are confined and
other areas of the Pelican Bay State Prison where they might be taken (e.g., the
Psychiatric Services Unit or “PSU” and the prison infirmary).
III. Summary of Expert Opinion
15. By way of summary, it is my expert opinion that being housed in
solitary or isolated confinement—especially over a long period of time—can
produce a number of negative psychological effects. It places prisoners at grave
risk of psychological harm. I believe that these effects are now well understood
and described in the scientific literature. There are numerous empirical studies
that report “robust” findings—that is, the findings have been obtained in studies
that were conducted by researchers and clinicians from diverse backgrounds and
perspectives, were completed and published over a period of many decades, and
10 The target sample of general population (“GP”) interviewees consisted of prisoners who had been incarcerated in the CDCR for 10 or more years and who were currently housed in GP at the Pelican Bay State Prison. To obtain this sample, a group of 100 prisoners was randomly selected from a roster of 315 prisoners that was provided by CDCR, containing the names of all prisoners whose entrance date into the CDCR was on or before July 31, 2004 (10 years or more ago at the time the list was generated). Each of those prisoners was sent a letter and a form asking if they were willing to be interviewed by me, and also several other questions about their prison histories. A group of 41 prisoners who agreed to be interviewed returned their form in time to be screened and to meet the CDCR deadline to inform them of our list of interviewees. I screened their forms to ensure that 1) the prisoner had, in fact, been in the CDCR continuously for the last 10 years, and 2) they were not currently on the mental health caseload (because their status as either a CCCMS or EOP prisoner would disqualify them from placement in the PBSHU). Several prisoners were eliminated because they were either on the mental health caseload or because they had not been confined continuously in the CDCR for the last 10 years. A final sample of 25 interviewees and 5 “alternates” was randomly selected from the list of “eligible” prisoners (i.e., those who had been in CDCR continuously for 10 or more years and who were not currently on the CDCR mental health caseload). I determined on site, in the course of obtaining their institutional histories, that two interviewees did not meet the criteria (i.e., they had not been housed in the CDCR continuously over the last 10 years and they were replaced by two alternates. No one refused to be interviewed and, in all, 25 GP prisoners were, in fact, interviewed.
9

are empirically very consistent.11 With remarkably few exceptions, virtually every one of these studies has documented the pain and suffering that isolated prisoners endure and the risk of psychological harm to which they are exposed.
16. In addition, the empirical conclusions are theoretically sound. That is, there are straightforward scientific explanations for the fact that long-term isolation—the absence of meaningful social contact and interaction with others— and the other severe deprivations that typically occur under conditions of isolated or solitary confinement have harmful psychological consequences. Social exclusion and isolation from others is known to produce adverse psychological effects in contexts other than prison; it makes perfect theoretical sense that this experience produces similar negative outcomes in correctional settings, where the isolation is so rigidly enforced, the social opprobrium that attaches to isolated prisoners can be extreme, and the other associated deprivations are so severe.
17. The scientific literature on isolation, as well as my own research and experience, indicate that “long-term” exposure to precisely the kinds of conditions and practices that—based on the extensive number of documents that I have reviewed and many prisoner interviews I now have conducted—clearly currently exist in the PBSHU and clearly place prisoners at grave risk of psychological harm. This is true whether or not those prisoners suffer from a preexisting mental illness.
11 Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, Crime & Delinquency, 49, 124-156 (2003); Craig Haney, The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful, Prison Service Journal, 12 (January, 2009); and Craig Haney & Mona Lynch, Regulating Prisons of the Future: The Psychological Consequences of Solitary and Supermax Confinement, New York University Review of Law and Social Change 23, 477-570 (1997).
10

18. It should be noted that “long-term” or “prolonged” exposure to prison isolation is generally used in the literature to refer to durations of solitary confinement that are much briefer than the amounts of time that Ashker class members have been subjected to it. For example, the American Psychiatric Association (APA) defined “prolonged segregation” as segregation lasting for four weeks or longer (which the APA also said “should be avoided” for the seriously mentally ill).12 Thus, Ashker class members have, as a group, been subjected to durations of isolated confinement that far exceed—by substantial orders of magnitude—the amounts typically reported in the literature, studied by researchers, and considered psychiatrically problematic.
19. I should note that the opinions I have reached in this case concerning the current use, nature, and effects of long-term isolated confinement in the PBSHU are no longer preliminary, as they were in my April 30, 2013 declaration. They are now based on an extensive amount of data, including the aforementioned interviews of samples of both long-term SHU (class members) and a comparison sample of GP prisoners, a recent tour of the PBSHU, and a substantial number of official, case-related documents. The conclusions that I reach in this Expert Report are now settled and I am confident in them. IV. The Adverse Psychological Effects of Isolation
20. “Solitary confinement” and “isolated confinement” are terms of art in correctional practice and scholarship. For perhaps obvious reasons, total and absolute solitary confinement—literally complete isolation from any form of
12 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012
PrisonerSegregation.pdf.
11

human contact—does not exist in prison and never has. Instead, the term is
generally used to refer to conditions of extreme (but not total) isolation from
others. I have defined it elsewhere, in a way that is entirely consistent with its use
in the broader correctional literature, as:
[S]egregation from the mainstream prisoner population in attached housing units or free-standing facilities where prisoners are involuntarily confined in their cells for upwards of 23 hours a day or more, given only extremely limited or no opportunities for direct and normal social contact with other persons (i.e., contact that is not mediated by bars, restraints, security glass or screens, and the like), and afforded extremely limited if any access to meaningful programming of any kind.13
21. This definition is similar to the one employed by the National
Institute of Corrections (NIC), as cited by Chase Riveland in a standard reference
work on solitary-type confinement that was sponsored and disseminated by the
United States Department of Justice. Riveland noted that the NIC itself had
defined solitary or “supermax” housing as occurring in a “freestanding facility, or
a distinct unit within a freestanding facility, that provides for the management
and secure control of inmates” under conditions characterized by “separation,
restricted movement, and limited access to staff and other inmates.”14 More
recently, the Department of Justice employed a similar definition, noting that
“the terms ‘isolation’ or ‘solitary confinement’ mean the state of being confined to
one’s cell for approximately 22 hours per day or more, alone or with other
13 Haney, The Social Psychology of Isolation, supra note 11, at footnote 1. Obviously, there is little or no difference between 22.5 hours of cell confinement, as practiced at Pelican Bay SHU, and the 23 hours referred to here. 14 Chase Riveland, Supermax Prisons: Overview and General Considerations. National Institute of Corrections. Washington DC: United States Department of Justice (1999), at p. 3, available at http://static.nicic.gov/Library/014937.pdf.
12

prisoners, that limits contact with others… An isolation unit means a unit where
all or most of those housed in the unit are subjected to isolation.”15
22. Even prisoners in “isolated confinement” who are “double-celled”
(i.e., housed with another prisoner) may nonetheless suffer many of the negative
psychological effects that are described in the paragraphs below. In fact, in some
ways, prisoners who are double-celled in an isolation unit have the worst of both
worlds: they are “crowded” in and confined with another person inside a small
cell but—and this is the crux of their “isolation”—simultaneously isolated from
the rest of the mainstream prisoner population, deprived of even minimal
freedom of movement, prohibited from access to meaningful prison programs,
and denied opportunities for any semblance of “normal” social interaction.16
23. As I noted in passing above, researchers and practitioners know
that meaningful social interactions and social connectedness can have a positive
effect on people’s physical and mental health and, conversely, that social isolation
in general is potentially very harmful and can undermine health and
psychological well-being.17 Not surprisingly, there is now a reasonably large and
15 United States Department of Justice, Letter to the Honorable Tom Corbett, Re: Investigation of the State Correctional Institution at Cresson and Notice of Expanded Investigation, May 31, 2013, at p. 5 (emphasis in original), available at http://www.justice.gov/crt/about/spl/documents/cresson_findings_5-31-13.pdf, citing also to Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005), where the United States Supreme Court described solitary confinement as limiting human contact for 23 hours per day, and; Tillery v. Owens, 907 F.2d 418, 422 (3d Cir. 1990), where the Third Circuit described it as limiting contact for 21 to 22 hours per day. 16 This is especially problematic if prisoners are involuntarily double-celled, have little or no choice over the identity of the person with whom they are double-celled, and have no practical or feasible means of changing cellmates if they become incompatible. Even under the best of circumstances, however, double-celling under conditions of otherwise isolated confinement may be difficult for prisoners to accommodate to. 17 For example, see: Brock Bastian & Nick Haslam, Excluded from Humanity: The Dehumanizing Effects of Social Ostracism, Journal of Experimental Social Psychology, 46, 107-113 (2010);
13

growing literature on the significant risk that solitary or so-called “supermax”
confinement poses for the mental health of prisoners. The long-term absence of
meaningful human contact and social interaction, the enforced idleness and
inactivity, and the oppressive security and surveillance procedures, and the
accompanying hardware and other paraphernalia that are brought or built into
these units combine to create harsh, dehumanizing, and deprived conditions of
confinement. These conditions predictably can impair the psychological
functioning of the prisoners who are subjected to them.18 For some prisoners,
these impairments can be permanent and life-threatening.
24. In the admitted absence of a single “perfect” study of the
phenomenon,19 there is a substantial body of published literature that clearly
Stephanie Cacioppo & John Cacioppo, Decoding the Invisible Forces of Social Connections, Frontiers in Integrative Neuroscience, 6, 51 (2012); DeWall, et al., Belongingness as a Core Personality Trait: How Social Exclusion Influences Social Functioning and Personality Expression, Journal of Personality, 79, 979-1012 (2011); Damiano Fiorillo & Fabio Sabatini, Quality and Quantity: The Role of Social Interactions in Self-Reported Individual Health, Social Science & Medicine, 73, 1644-1652 (2011); S. Hafner et al., Association Between Social Isolation and Inflammatory Markers in Depressed and Non-depressed Individuals: Results from the MONICA/KORA Study, Brain, Behavior, and Immunity, 25, 1701-1707 (2011); Johan Karremans, et al., Secure Attachment Partners Attenuate Neural Responses to Social Exclusion: An fMRI Investigation, International Journal of Psychophysiology, 81, 44-50 (2011); Graham Thornicroft, Social Deprivation and Rates of Treated Mental Disorder: Developing Statistical Models to Predict Psychiatric Service Utilisation, British Journal of Psychiatry, 158, 475-484 (1991).
18 For example, see: Kristin Cloyes, David Lovell, David Allen & Lorna Rhodes, Assessment of Psychosocial Impairment in a Supermaximum Security Unit Sample, Criminal Justice and Behavior, 33, 760-781 (2006); Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, supra note 11; and Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (pp. 441-528). Volume 34. Chicago: University of Chicago Press (2006).
19 No more than basic knowledge of research methodology is required to design the “perfect” study of the effects of solitary confinement: dividing a representative sample of prisoners (who had never been in solitary confinement) into two groups by randomly assigning half to either a treatment condition (say, two or more years in solitary confinement) or a control condition (the same length of time residing in a typical prison housing unit), and conducting longitudinal assessments of both groups (i.e., before, during, and after their experiences), by impartial researchers skilled at gaining the trust of prisoners (including ones perceived by the prisonerparticipants as having absolutely no connection to the prison administration). Unfortunately, no more than basic knowledge of the realities of prison life and the practicalities of conducting
14

documents the distinctive patterns of psychological harm that can and do occur
when persons are placed in solitary confinement. These broad patterns have been
consistently identified in personal accounts written by persons confined in
isolation, in descriptive studies authored by mental health professionals who
worked in many such places, and in systematic research conducted on the nature
and effects of solitary or “supermax” confinement. The studies have now spanned
a period of over four decades, and were conducted in locations across several
continents by researchers with different professional expertise, ranging from
psychiatrists to sociologists and architects.20
25. For example, mental health and correctional staff who have worked
in disciplinary segregation and isolation units have reported observing a range of
problematic symptoms manifested by the prisoners confined in these places.21
research in prisons is required to understand why such a study would be impossible to ever conduct. Moreover, any prison system that allowed truly independent, experienced researchers to perform even a reasonable approximation of such a study would be, almost by definition, so atypical as to call the generalizability of the results into question. Keep in mind also that the assessment process itself—depending on who carried it out, how often it was done, and in what manner—might well provide the solitary confinement participants with more meaningful social contact than they are currently afforded in a number of such units with which I am familiar, thereby significantly changing (and improving) the conditions of their confinement.
20 For example, see: Arrigo, B., & Bullock, J., The Psychological Effects of Solitary Confinement on Prisoners in Supermax Units: Reviewing What We Know and What Should Change, International Journal of Offender Therapy and Comparative Criminology, 52, 622-640 (2008); Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, and Haney & Lynch, Regulating Prisons of the Future, supra note 11; and Smith, The Effects of Solitary Confinement on Prison Inmates, supra note 17. The latter two citations to my own writing are included here because they contain an extensive number of references citing to the work of numerous other researchers (in lieu of reproducing those long lists of studies separately here). My own work builds on the work of those other researchers and my findings and conclusions are consistent with and corroborative of them.
21 For detailed reviews of all of these psychological issues, and references to the many empirical studies that support these statements, see, for example: Haney, Mental Health Issues in LongTerm Solitary and “Supermax” Confinement, and Haney & Lynch, Regulating Prisons of the Future, supra note 11; and Smith, The Effects of Solitary Confinement on Prison Inmates, supra note 18.
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The authors of one of the early studies of solitary confinement summarized their
findings by concluding that “[e]xcessive deprivation of liberty, here defined as
near complete confinement to the cell, results in deep emotional disturbances.”22
26. A decade later, Professor Hans Toch’s large-scale psychological
study of prisoners “in crisis” in New York State correctional facilities included
important observations about the effects of isolation.23 After he and his
colleagues had conducted numerous in-depth interviews of prisoners, Toch
concluded that “isolation panic” was a serious problem in solitary confinement.
The symptoms that Toch reported included rage, panic, loss of control and
breakdowns, psychological regression, a build-up of physiological and psychic
tension that led to incidents of self-mutilation.24 Professor Toch noted that
although isolation panic could occur under other conditions of confinement it
was “most sharply prevalent in segregation.” Moreover, it marked an important
dichotomy for prisoners: the “distinction between imprisonment, which is
tolerable, and isolation, which is not.”25
27. More recent studies have identified other symptoms that appear to
be produced by these conditions. Those symptoms include: appetite and sleep
22 Bruno M. Cormier & Paul J. Williams, Excessive Deprivation of Liberty, Canadian Psychiatric Association Journal, 11, 470-484 (1966), at p. 484. For other early studies of solitary confinement, see: Paul Gendreau, N. Freedman, G. Wilde, & George Scott, Changes in EEG Alpha Frequency and Evoked Response Latency During Solitary Confinement, Journal of Abnormal Psychology, 79, 54-59 (1972); George Scott & Paul Gendreau, Psychiatric Implications of Sensory Deprivation in a Maximum Security Prison, Canadian Psychiatric Association Journal, 12, 337341 (1969); Richard H. Walters, John E. Callagan & Albert F. Newman, Effect of Solitary Confinement on Prisoners, American Journal of Psychiatry, 119, 771-773 (1963). 23 Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Publishing Co.: Chicago (1975). 24 Id. at 54. 25 Ibid.
16

disturbances, anxiety, panic, rage, loss of control, paranoia, hallucinations, and
self-mutilations. Moreover, direct studies of prison isolation have documented an
extremely broad range of harmful psychological reactions. These effects include
increases in the following potentially damaging symptoms and problematic
behaviors: anxiety, withdrawal, hypersensitivity, ruminations, cognitive
dysfunction, hallucinations, loss of control, irritability, aggression, rage,
paranoia, hopelessness, a sense of impending emotional breakdown, self-
mutilation, and suicidal ideation and behavior.26
26 In addition to the numerous studies cited in the articles referenced supra at notes 11 and 15, there is a significant international literature on the adverse effects of solitary confinement. For example, see: Henri N. Barte, L’Isolement Carceral, Perspectives Psychiatriques, 28, 252 (1989). Barte analyzed what he called the “psychopathogenic” effects of solitary confinement in French prisons and concluded that prisoners placed there for extended periods of time could become schizophrenic instead of receptive to social rehabilitation. He argued that the practice was unjustifiable, counterproductive, and “a denial of the bonds that unite humankind.” In addition, see: Reto Volkart, Einzelhaft: Eine Literaturubersicht (Solitary confinement: A literature survey), Psychologie -Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 1-24 (1983) (reviewing the empirical and theoretical literature on the negative effects of solitary confinement); Reto Volkart, Adolf Dittrich, Thomas Rothenfluh, & Paul Werner, Eine Kontrollierte Untersuchung uber Psychopathologische Effekte der Einzelhaft (A controlled investigation on psychopathological effects of solitary confinement), Psychologie - Schweizerische Zeitschrift fur Psychologie und ihre Anwendungen, 42, 25-46 (1983) (when prisoners in “normal” conditions of confinement were compared to those in solitary confinement, the latter were found to display considerably more psychopathological symptoms that included heightened feelings of anxiety, emotional hypersensitivity, ideas of persecution, and thought disorders); Reto Volkart, et al., Einzelhaft als Risikofaktor fur Psychiatrische Hospitalisierung (Solitary confinement as a risk for psychiatric hospitalization), Psychiatria Clinica, 16, 365-377 (1983) (finding that prisoners who were hospitalized in a psychiatric clinic included a disproportionate number who had been kept in solitary confinement); Boguslaw Waligora, Funkcjonowanie Czlowieka W Warunkach Izolacji Wieziennej (How men function in conditions of penitentiary isolation), Seria Psychologia I Pedagogika NR 34, Poland (1974) (concluding that so-called “pejorative isolation” of the sort that occurs in prison strengthens “the asocial features in the criminal’s personality thus becoming an essential cause of difficulties and failures in the process of his resocialization”). See, also, Ida Koch, Mental and Social Sequelae of Isolation: The Evidence of Deprivation Experiments and of Pretrial Detention in Denmark, in The Expansion of European Prison Systems, Working Papers in European Criminology, No. 7, 119 (Bill Rolston & Mike Tomlinson eds. 1986) who found evidence of “acute isolation syndrome” among detainees that occurred after only a few days in isolation and included “problems of concentration, restlessness, failure of memory, sleeping problems and impaired sense of time an ability to follow the rhythm of day and night” (at p. 124). If the isolated confinement persisted—“a few weeks” or more—there was the possibility that detainees would develop “chronic isolation syndrome,” including intensified difficulties with memory and concentration, “inexplicable fatigue,” a “distinct emotional lability” that can include “fits of rage,” hallucinations, and the “extremely common” belief among isolated prisoners that “they have gone or are going mad” (at p. 125). See, also: Michael Bauer, Stefan Priebe, Bettina
17

28. In addition, a number of correlational studies have been done examining the relationship between housing type and various kinds of incident reports in prison. They show that self-mutilation and suicide are more prevalent in isolated, punitive housing units such as administrative segregation and security housing or SHU, where prisoners are subjected to solitary-like conditions of confinement. For example, clinical researchers Ray Patterson and Kerry Hughes attributed higher suicide rates in solitary confinement-type units to the heightened levels of “environmental stress” that are generated by the “isolation, punitive sanctions, [and] severely restricted living conditions” that exist there.27 These authors reported that “the conditions of deprivation in locked units and higher-security housing were a common stressor shared by many of the prisoners who committed suicide.”28 Similarly, a team of researchers in New York recently reported that “[i]nmates punished by solitary confinement were approximately 6.9 times as likely to commit acts of self-harm after we controlled for the length of jail stay, SMI [whether the inmate was seriously mentally ill],
Haring & Kerstin Adamczak, Long-Term Mental Sequelae of Political Imprisonment in East Germany, Journal of Nervous & Mental Disease, 181, 257-262 (1993), who reported on the serious and persistent psychiatric symptoms suffered by a group of former East German political prisoners who sought mental health treatment upon release and whose adverse conditions of confinement had included punitive isolation. 27 Raymond Patterson & Kerry Hughes, Review of Completed Suicides in the California Department of Corrections and Rehabilitation, 1999-2004, Psychiatric Services, 59, 676-682 (2008), at p. 678. 28 Ibid. See also: Lindsay M. Hayes, National Study of Jail Suicides: Seven Years Later. Special Issue: Jail Suicide: A Comprehensive Approach to a Continuing National Problem, Psychiatric Quarterly, 60, 7 (1989); Alison Liebling, Vulnerability and Prison Suicide, British Journal of Criminology, 36, 173-187 (1995); and Alison Liebling, Prison Suicide and Prisoner Coping, Crime and Justice, 26, 283-359 (1999).
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age, and race/ethnicity.”29 In addition, signs of deteriorating mental and physical
health (beyond self-injury), other-directed violence, such as stabbings, attacks on
staff, and property destruction, and collective violence are also more prevalent in
these units.30
29. The empirical consensus on the harmfulness of isolated or solitary-
type confinement is very broad. I say that despite the fact that there is one study
that has been cited for a different conclusion. The so-called “Colorado Study” of
one year in “administrative segregation,” is sometimes referenced as evidence
that isolated confinement does not pose a significant risk to the psychological
well-being of inmates. In addition to the fact that the Colorado Study focused on
one year in administrative segregation, as opposed to the core issue in the present
case—the effects of severe isolation for ten (10) years or more—there are several
other reasons why the Colorado Study is a singularly inappropriate study on
which to rely. They establish the fact that this study should not serve as the basis
for minimizing or ignoring the grave risk of “psychological damage to inmates”
that occurs in isolation units like those at issue in the Ashker case.
29 Fatos Kaba, et al., Solitary Confinement and Risk of Self-Harm Among Jail Inmates, American Journal of Public Health, 104, 442-447 (2014), at p. 445. 30 For example, see: Howard Bidna, Effects of Increased Security on Prison Violence, Journal of Criminal Justice, 3, 33-46 (1975); K. Anthony Edwards, Some Characteristics of Prisoners Transferred from Prison to a State Mental Hospital, Behavioral Sciences and the Law, 6, 131-137 (1988); Elmer H. Johnson, Felon Self-Mutilation: Correlate of Stress in Prison, in Bruce L. Danto (Ed.) Jail House Blues. Michigan: Epic Publications (1973); Anne Jones, Self-Mutilation in Prison: A Comparison of Mutilators and Nonmutilators, Criminal Justice and Behavior, 13, 286296 (1986); Peter Kratcoski, The Implications of Research Explaining Prison Violence and Disruption, Federal Probation, 52, 27-32 (1988); Ernest Otto Moore, A Prison Environment: Its Effect on Health Care Utilization, Dissertation Abstracts, Ann Arbor, Michigan (1980); Frank Porporino, Managing Violent Individuals in Correctional Settings, Journal of Interpersonal Violence, 1, 213-237 (1986); and Pamela Steinke, Using Situational Factors to Predict Types of Prison Violence, 17 Journal of Offender Rehabilitation, 17, 119-132 (1991).
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30. For one, the Colorado Study has been roundly criticized by a
number of researchers from a variety of disciplines (psychology, psychiatry,
anthropology, history, and law) as deeply flawed in its methodology. Many of
these experts have published critiques of the study in which they conclude that its
methodological problems are so severe as to render the results uninterpretable.31
31. These and other kinds of methodological problems led well-known
prison researchers David Lovell and Hans Toch to note in their critique of the
study that “[d]espite the volume of the data, no systematic interpretation of the
findings is possible.”32 Many other published criticisms of the study’s
methodology reached similar conclusions.33
31 The serious methodological problems include: the inappropriate exposure of all groups to the key treatment variable (isolation); the continued cross-contamination of the general population and administrative segregation groups throughout the study (confounding the interpretation of any differences or similarities between them); the use of a convenience and patchwork sample rather than a representative group of participants; the failure to record (and, therefore, the inability to quantify or code) the exact nature of the conditions of confinement (especially, the amount or degree of isolation) to which each participant or group of participants was exposed; employing a single, inexperienced research assistant with only a bachelor’s degree (who wore a badge identifying her to the prisoners as a department of corrections employee) to collect all of the study data; problematic instances in which the research assistant questioned the truthfulness of the prisoners’ responses and required them to “redo” the tests being administered; the total reliance on self-reported rating scales that were created through the disaggregation and reconstruction/recombination of subscales taken from other test batteries that had not been validated with prisoner populations; and the failure to utilize even a basic interview with the study participants or to make use of the behavioral observational data that were collected (that appeared at odds with the prisoner self reports).
32 David Lovell & Hans Toch, Some Observations about the Colorado Segregation Study, Correctional Mental Health Report, May/June 2011, 3-4, 14.
33 For example, see: Stuart Grassian & Terry Kupers, The Colorado Study Versus the Reality of Supermax Confinement, Correctional Mental Health Report, May/June 2011, 1-4; Lorna A. Rhodes & David Lovell, Is Adaptation the Right Question? Addressing the Larger Context of Administrative Segregation: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-9, available at http://community.nicic.gov/cfsfile.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.19/Supermax_2D00_-T-_2D00_-Rhodes-and-Lovell.pdf; Sharon Shalev & Monica Lloyd, If This Be Method, Yet There Is Madness in It: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-7, available at http://community.nicic.gov/cfs-
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32. The study’s numerous and serious methodological flaws notwithstanding, the authors of the Colorado Study have themselves repeatedly taken public positions that explicitly acknowledge the potentially harmful effects
of prolonged prison isolation; most of them have published articles, forwarded recommendations, and drafted position papers in favor of limiting the use of isolation altogether and, among other things, against housing mentally ill prisoners inside these kinds of units. For example, Maureen O’Keefe, a researcher
for the Colorado Department of Corrections and the primary author of the study, is on record as favoring significant reductions in the use of prison isolation (or “administrative segregation” as it is known in Colorado). She is also very clear about what she termed a misuse or misinterpretation of the study’s results: “[W]e
do not believe in any way and we do not promote the study as something to argue for the case of segregation… My interpretation is that people believe that this study sanctions administrative segregation for mentally ill and nonmentally ill alike… I do not believe that the conclusions lend to that and that is not the
intended use of our study.34 33. In addition, two of the study’s other authors, Jeffrey Metzner and
Jamie Fellner, have published an article concluding that “[i]solation can be harmful to any prisoner,” that the potentially adverse effects of isolation include
file.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.21/Supermax_2D00_-T-_2D00_-Shalev-and-Lloyd.pdf; and Peter Scharff Smith, The Effects of Solitary Confinement: Commentary on One Year Longitudinal Study of the Psychological Effects of Administrative Segregation, Corrections & Mental Health, June 21, 2011, 1-11, available at http://community.nicic.gov/cfsfile.ashx/__key/CommunityServer.Components.PostAttachments/00.00.05.95.22/Supermax_2D00_-T-_2D00_-Smith.pdf. 34 Deposition of Maureen O’Keefe at 96, 101 (Oct. 25, 2013), Sardakowski v. Clements, No. 1:2012cv01326 (D. Colo. filed May 21, 2012) (Civil Action No. 12-CV-01326-RBJ-KLM).
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“anxiety, depression, anger, cognitive disturbances, perceptual distortions,
obsessive thoughts, paranoia, and psychosis.”35 In fact, their deep concerns over
the harmfulness of isolated conditions of confinement led them to recommend
that professional organizations “should actively support practitioners who work
for changed segregation policies and they should use their institutional authority
to press for a nationwide rethinking of the use of isolation” in the name of their
“commitment to ethics and human rights.”36
34. Indeed, the painfulness and damaging potential of solitary
confinement is underscored by the fact that it is commonly used in so-called
“brainwashing” and certain forms of torture. In fact, many of the negative effects
of solitary confinement are analogous to the acute reactions suffered by torture
and trauma victims, including post-traumatic stress disorder (“PTSD”) and the
kind of psychiatric sequelae that plague victims of what are called “deprivation
and constraint” torture techniques.37
35 Jeffrey Metzner & Jamie Fellner, Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, Journal of the Academy of Psychiatry and Law, 38, 104-108 (2010), at p. 104, available at http://www.hrw.org/sites/default/files/related_material/Solitary%20Confinement%20and%20 Mental%20Illness%20in%20US%20Prisons.pdf.
36 Id. at p. 107. In addition to the serious methodological flaws that have been identified in the Colorado Study, and the positions that virtually all of its authors have taken acknowledging the harmful effects of isolation and opposing its use with mentally ill prisoners in particular, the Colorado Department of Corrections itself has moved over the last several years to both very significantly reduce the overall number of prisoners who are housed in isolation units (again, termed “administrative segregation” there). Memo to Wardens from Lou Archuleta, Interim Director of Prisons, Colorado DOC, December 10, 2013. See, also: Jennifer Brown, Colorado Stops Putting Mentally Ill Prisoners in Solitary Confinement, Denver Post, Dec. 12, 2013, available at http://www.denverpost.com/news/ci_24712664/colorado-wont-put-mentally-illprisoners-solitary-confinement.
37 Solitary confinement is among the most frequently used psychological torture techniques. In D. Foster, Detention & Torture in South Africa: Psychological, Legal & Historical Studies, Cape Town: David Philip (1987), Psychologist Foster listed solitary confinement among the most common “psychological procedures” used to torture South African detainees (at p. 69), and concluded that “[g]iven the full context of dependency, helplessness and social isolation common
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35. The prevalence of psychological symptoms (that is, the percentage of prisoners who are placed in these units who suffer from these and related signs of psychological distress) is often very high. For example, in the study that I alluded to in passing earlier in this Expert Report, I conducted systematic assessments of a randomly selected sample of 100 prisoners housed at the same facility that is the focus of the present litigation—the PBSHU. The sample was randomly selected to ensure that it consisted of a representative group of SHU prisoners. The representativeness of the sample allowed me to estimate the prevalence of psychological trauma and isolation-related pathology among the population of PBSHU prisoners. In fact, I found that every symptom of psychological distress that I measured but one (fainting spells) was suffered by more than half of the prisoners who were interviewed.38 Many of the symptoms were reported by two-thirds or more of the prisoners assessed in this isolated housing unit, and some were suffered by nearly everyone. Well over half of the prisoners who were isolated in the PBSHU reported a constellation of symptoms—headaches, trembling, sweaty palms, and heart palpitations—that are commonly regarded as stress-related.
to conditions of South African security law detention, there can be little doubt that solitary confinement under these circumstances should in itself be regarded as a form of torture” (at p. 136). See also: Matthew Lippman, The Development and Drafting of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 27 Boston College International & Comparative Law Review, 27, 275 (1994); Tim Shallice, Solitary Confinement—A Torture Revived? New Scientist, November 28, 1974; F.E. Somnier & I.K. Genefke, Psychotherapy for Victims of Torture, British Journal of Psychiatry, 149, 323-329 (1986); and Shaun R. Whittaker, Counseling Torture Victims, The Counseling Psychologist, 16, 272-278 (1988). 38 See Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement supra note 11.
23

36. I also found that almost all of the prisoners whom I evaluated in the PBSHU reported ruminations or intrusive thoughts, an oversensitivity to external stimuli, irrational anger and irritability, difficulties with attention and often with memory, and a tendency to socially withdraw. Almost as many prisoners reported a constellation of symptoms indicative of mood or emotional disorders—concerns over emotional flatness or losing the ability to feel, swings in emotional responding, and feelings of depression or sadness that did not go away. Finally, sizable minorities of the prisoners reported symptoms that are typically only associated with more extreme forms of psychopathology—hallucinations, perceptual distortions, and thoughts of suicide.
37. It is important to note—especially in the context of the current case—that these reported symptoms of psychological trauma and the psychopathological effects of isolation came from prisoners who, by definition, were housed at the PBSHU for a maximum of no more than three (3) or four (4) years. The facility opened in 1989, and the interviews that I conducted took place just a few years later (although it is certainly true that some of the prisoners I interviewed for the study I completed in 1993 had been in isolation units at other prisons). In contrast, the prisoners in the Ashker Plaintiff class have been housed in the PBSHU for much longer periods of time—ten (10) years or more (in addition to, in some cases, being housed in isolation units prior to coming to the PBSHU). And, as I also noted, the Plaintiff class includes some prisoners who were interviewed by me in the PBSHU in 1992 and 1993, who reported many of the symptoms of psychological distress described above, and who are still at the facility.
24

38. Although these specific symptoms of psychological stress and the psychopathological reactions to isolation are numerous and well-documented, and provide important indices of the risk of harm to which isolated prisoners are subjected, there are other significant aspects to the psychological pain and dysfunction that solitary confinement can produce, ones that extend beyond these specific and more easily measured symptoms and reactions. Depriving people of normal social contact and meaningful social interaction over long periods of time can damage or distort their social identities, destabilize their sense of self and, for some, destroy their ability to function normally in free society.
39. Psychological science has long recognized the critical role of social contact in establishing and maintaining emotional health and well-being. As one researcher put it: “Since its inception, the field of psychology emphasized the importance of social connections.”39 For example, the importance of “affiliation”—the opportunity to have meaningful contact with others—in reducing anxiety in the face of uncertain or fear-arousing stimuli is long established in social psychological literature.40 In addition, one of the ways that people determine the appropriateness of their feelings—indeed, how we establish
39 DeWall, C., Looking Back and Forward: Lessons Learned and Moving Forward, in C. DeWall (Ed.), The Oxford Handbook of Social Exclusion (pp. 301-303). New York: Oxford University Press (2013), at p. 301. 40 For example, see: Stanley Schachter, The Psychology of Affiliation: Experimental Studies of the Sources of Gregariousness. Stanford, CA: Stanford University Press (1959); Irving Sarnoff & Philip Zimbardo, Anxiety, Fear, and Social Affiliation, Journal of Abnormal Social Psychology, 62, 356-363 (1961); Philip Zimbardo & Robert Formica, Emotional Comparison and Self-Esteem as Determinants of Affiliation, Journal of Personality, 31, 141-162 (1963).
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the very nature and tenor of our emotions—is through contact with others.41
Prolonged social deprivation is painful and destabilizing in part because it
deprives persons of the opportunity to ground their thoughts and emotions in a
meaningful social context—to know what they feel and whether those feelings are
appropriate.
40. Since this early research was conducted on the importance of
affiliation, numerous scientific studies have established the psychological
significance of social contact, connectedness and belongingness. They have
concluded, among other things, that the human brain is literally “wired to
connect” to others.42 Thwarting this “need to connect” not only undermines
psychological well-being but increases physical morbidity and mortality.
41. Indeed, in part out of recognition of the importance of the human
need for social contact, connection, and belongingness, social psychologists and
others have written extensively about the harmful effects of its deprivation—what
happens when people are subjected to social exclusion and isolation. Years ago,
Herbert Kelman argued that denying persons of contact with others was a form of
dehumanization.43 More recently, others have documented the ways in which
41 For example, see: A. Fischer, A. Manstead, & R. Zaalberg, Social Influences on the Emotion Process, in M. Hewstone & W. Stroebe (Eds.), European Review of Social Psychology (pp. 171202). Volume 14. Wiley Press (2004); C. Saarni, The Development of Emotional Competence. New York: Guilford Press (1999); Stanley Schachter & Jerome Singer, Cognitive, Social, and Physiological Determinants of Emotional State, Psychological Review, 69, 379-399 (1962); L. Tiedens & C. Leach (Eds.), The Social Life of Emotions. New York: Cambridge University Press (2004); and S. Truax, Determinants of Emotion Attributions: A Unifying View, Motivation and Emotion, 8, 33-54 (1984). 42 Lieberman, M., Social: Why Our Brains Are Wired to Connect. New York: Random House (2013). 43 Kelman, H., Violence Without Restraint: Reflections on the Dehumanization of Victims and Victimizers. In G. Kren & L. Rappaport (Eds.), Varieties of Psychohistory (pp. 282-314). New York: Springer (1976).
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social exclusion is not only “painful in itself,” but also “undermines people’s sense of belonging, control, self-esteem, and meaningfulness, reduces pro-social behavior, and impairs self-regulation.”44 Indeed, the subjective experience of social exclusion results in what have been called “cognitive deconstructive states” in which there is emotional numbing, reduced empathy, cognitive inflexibility, lethargy, and an absence of meaningful thought.45
42. In fact, the editor of an authoritative Oxford Handbook of Social Exclusion concluded the volume by summarizing the “serious threat” that social exclusion represents to psychological health and well-being, including “increased salivary cortisol levels… and blood flow to brain regions associated with physical pain,” “sweeping changes” in attention, memory, thinking, and self-regulation, as well as changes in aggression and prosocial behavior. As he put it: “This dizzying array of responses to social exclusion supports the premise that it strikes at the core of well-being.”46
43. In a broader sense, the social deprivation and social exclusion imposed by solitary confinement engenders social pathology—necessary adaptations that prisoners must make to live in an environment that is devoid of normal social contact—that is, to exist and function in the absence of meaningful interaction and closeness with others. In this socially pathological environment, prisoners have no choice but to adapt in socially pathological ways. Over time,
44 Bastian & Haslam, supra note 17, at p. 107, internal references omitted. 45 Twenge, J., Catanese, K., & Baumeister, R. (2003). Social Exclusion and the Deconstructed State: Time Perception, Meaninglessness, Lethargy, Lack of Emotion, and Self Awareness. Journal of Personality and Social Psychology, 85, 409-423 (2003). 46 DeWall, supra note 38, at p. 302.
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they gradually change their patterns of thinking, acting and feeling to cope with the profoundly asocial world in which they are forced to live, accommodating to the absence of social support and the routine feedback that comes from normal, meaningful social contact.
44. There are several problematic features to the social pathologies that isolated prisoners are forced to adopt. The first is that, although these adaptations are functional—even necessary—under the isolated conditions in which they live, the fact that prisoners eventually “adjust” to the absence of others does not mean that the experience ceases to be painful. Some prisoners have told me that the absence of meaningful contact and the loss of closeness with others are akin to a dull ache or pain that never goes away. Others remain acutely aware of the relationships that have ended and the feelings that can never be rekindled.
45. Second, some prisoners cope with the painful, asocial nature of their isolated existence by paradoxically creating even more distance between themselves and others. For some, the absence of others becomes so painful that they convince themselves that they do not need social contact of any kind—that people are a “nuisance,” after all, and the less contact they have the better. As a result, they socially withdraw further from the world around them, receding even more deeply into themselves than the sheer physical isolation of solitary confinement and its attendant procedures require. Others move from initially being starved for social contact to eventually being disoriented and even frightened by it. As they become increasingly unfamiliar and uncomfortable with
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social interaction, they are further alienated from others and made anxious in their presence.47
46. Third, and finally, while these social pathological adaptations are functional and even necessary in the short-term, over time they tend to be internalized and persist long after the prisoner’s time in isolation has ended. Thus, the adaptations move from being consciously employed survival strategies or noticeable reactions to immediate conditions of confinement to becoming more deeply ingrained ways of being. Prisoners may develop extreme habits, tendencies, perspectives, and beliefs that are difficult or impossible to relinquish once they are released. Although their adaptations may have been functional in isolation (or appeared to be so), they are typically acutely dysfunctional in the social world most prisoners are expected to re-enter. In extreme cases, these ways of being are not only dysfunctional but have been internalized so deeply that they become disabling, interfering with the capacity to live a remotely normal or fulfilling social life.
47. It is also important to note that, although social deprivation is the source of the greatest psychological pain that prisoners experience in solitary confinement, and places them at the greatest risk of harm, prison isolation units deprive prisoners of many other things as well. Solitary confinement typically includes high levels of repressive control, enforced idleness, reduced environmental stimulation, and physical or material deprivations that also
47 For evidence that solitary confinement may lead to a withdrawal from social contact or an increased tendency to find the presence of people increasingly aversive or anxiety arousing, see: Cormier, B., & Williams, supra note 22; Haney, supra note 11; H. Miller & G. Young, Prison Segregation: Administrative Detention Remedy or Mental Health Problem?, Criminal Behaviour and Mental Health, 7, 85-94 (1997); Scott & Gendreau, supra note 21; Toch, supra note 22; and Waligora, supra note 25.
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produce psychological distress and can exacerbate the negative consequences of social deprivation. Indeed, most of the things that we know are beneficial to prisoners—such as increased participation in institutional programming, contact visits with persons from outside the prison, opportunities for meaningful physical exercise or recreation, and so on48—are either functionally denied or greatly restricted for prisoners who are housed in isolation units. Thus, in addition to the social pathology that is created by the experience of solitary confinement, these other stressors also can produce additional negative psychological effects.
48. For example, we know that people in general require a certain level of mental and physical activity in order to remain mentally and physically healthy. Simply put, human beings need movement and exercise to maintain normal functioning. The severe restrictions that are imposed in isolation units— typically no more than an hour or so a day out of their cells—can negatively impact prisoners’ well-being. Denying prisoners access to normal and necessary human activity places them at risk of psychological harm.
49. Similarly, apart from the profound social, mental and physical deprivations that solitary confinement can produce, prisoners housed in these units experience prolonged periods of monotony and idleness. Many of them experience a form of sensory deprivation or “reduced environmental stimulation” —there is an unvarying sameness to the physical stimuli that surround them. These prisoners exist within the same limited spaces and are subjected to the same repetitive routines, day in and day out. There is little or no external
48 J. Wooldredge, Inmate Experiences and Psychological Well-Being, Criminal Justice and Behavior, 26, 235-250 (1999).
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variation to the experiences they are permitted to have or can create for
themselves. They not only see and experience the same extremely limited
physical environment, but also have minimal, routinized, and superficial contacts
with the same very small group of people, again and again, for years on end. This
loss of perceptual and cognitive or mental stimulation may result in the atrophy
of important skills and capacities.49
50. In addition, conditions of solitary confinement in most prison
isolation units deprive prisoners of the opportunity to give and receive caring
human touch. This is certainly true of the PBSHU, where contact visits are
absolutely prohibited. In the case of Plaintiff class members, this means that they
have gone for a decade or more without ever touching another person with
affection. Yet, psychologists have long known that: “Touch is central to human
social life. It is the most developed sensory modality at birth, and it contributes to
cognitive, brain, and socioemotional development and childhood.”50 The need for
caring human touch is so fundamental that early deprivation is a risk factor for
neurodevelopmental disorders, depression, suicidality, and other self destructive
behavior.51 Later deprivation is associated with violent behavior in adolescents.52
49 For examples of this range of symptoms, see: Brodsky & Scogin, Inmates in Protective Custody: First Data on Emotional Effects, Forensic Reports, 1, 267-280 (1988); Grassian, S., Psychopathological Effects of Solitary Confinement, American Journal of Psychiatry, 140, 145054 (1983); Haney, supra note 11; Miller & Young, supra note 47; and Volkart, et al., supra note 26. 50 Hertenstein, M., Keltner, D., App, B., Bulleit, B, & Jaskolka, A., Touch Communicates Distinct Emotions. Emotion, 6, 528-533 (2006), at p. 528. See, also: Hertenstein, M., & Weiss, S. (Eds.), The Handbook of Touch: Neuroscience, Behavioral, and Health Perspectives. New York: Springer (2011). 51 For example, see: Cascio, C., Somatosensory Processes in Neurodevelopmental Disorders. Journal of Neurodevelopmental Disorders, 2, 62-69 (2010); Field, S., Touch Deprivation and Aggression Against Self Among Adolescents, in Stoff, D. & Susman, E. (Ed.), Developmental psychobiology of aggression (117-140). New York: Cambridge (2005).
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Recent theory and research now indicate that “touch is a primary platform for the development of secure attachments and cooperative relationships,” is “intimately involved in patterns of caregiving,” is a “powerful means by which individuals reduce the suffering of others,” and also “promotes cooperation and reciprocal altruism.”53
51. The uniquely prosocial emotion of compassion “is universally signaled through touch,” so that persons who live in a world without touch are denied the experience of receiving or expressing compassion in this way.54 Researchers have found that caring human touch mediates a sense of security and place, a sense of shared companionship, of being and nurturing, feelings of worth and competence, access to reliable alliance and assistance, and guidance and support in stressful situations.55 A number of experts have argued that caring human touch is so integral to our well being that it is actually therapeutic; it has been recommended to treat a host of maladies including depression, suicidality, and learning disabilities.56
52 Field, T., Violence and Touch Deprivation in Adolescents, Adolescence, 37, 735-749 (2002) 53 Goetz, J., Keltner, D., & Simon-Thomas, E., Compassion: An Evolutionary Analysis and Empirical Review, Psychological Bulletin, 136, 351-374 (2010), at p. 360. 54 Stellar, J., & Keltner, D., Compassion, in Tugade, M., Shiota, M., & Kirby, L. (Eds.), Handbook of Positive Emotions (pp. 329-341). New York: Guilford (2014) 55 Weiss, R., The Attachment Bond in Childhood and Adulthood, in C. Parkes, J. StevensonHinde, & P. Marris (Eds.), Attachment Across the Life Cycle (66-76). London: Routledge (1995). 56 For example, see: Dobson, S., Upadhyaya, S., Conyers, I., & Raghavan, R., Touch in the Care of People with Profound and Complex Needs, Journal of Learning Disabilities, 6, 351-362 (2002); Field, T., Deprivation and Aggression Against Self Among Adolescents. In D. Stoff & E. Susman(Eds.), Developmental Psychobiology of Aggression (pp. 117-140). New York: Cambridge (2005)
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52. Not every isolated prisoner will suffer all of the previously described adverse psychological reactions to their severe conditions of confinement. But the overall nature and magnitude of the negative psychological reactions that I have documented in my own research and that have been reported by others in the literature underscore the stressfulness and painfulness of this kind of confinement, the lengths to which prisoners must go to adapt and adjust to it, and the risk of harm that it creates. The potentially devastating effects of these conditions are reflected in the characteristically high numbers of suicide deaths, incidents of self-harm and self-mutilation that occur in many of these units.
53. The years of sustained research on solitary confinement, the negative outcomes that have been documented across time and locality, and the theoretical consistency of these findings with what is known more generally in the psychological literature about the harmful effects of isolation leave little doubt about its negative effects. These effects are not only painful but can do real harm and inflict real damage that is sometimes severe and can be irreversible. Indeed, for some prisoners, the attempt to cope with isolated confinement sets in motion a set of cognitive, emotional, and behavioral changes that are longlasting. They can persist beyond the time that prisoners are housed in isolation and lead to long-term disability and dysfunction.
54. Thus, the accumulated weight of the scientific evidence that I have cited and summarized above documents and confirms that isolated confinement can produce a range of adverse psychological effects. We clearly do know what happens to people in prison and elsewhere in society when they are deprived of normal social contact for extended periods of time. The evidence I have
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summarized above describes and details the risk of psychological harm that long-
term isolation creates, including mental pain and suffering and the increased
incidence of self-harm and suicide.
55. The psychological literature underscores the importance of
meaningful social contact and interaction, in essence establishing these things as
identifiable human needs. Over the long-term, they may be as essential to a
person’s psychological or mental health as adequate food, clothing, and shelter
are to his or her physical well-being.
56. In large part in response to the scientific evidence that I have
summarized above, and out of the recognition that meaningful social contact and
interaction is central to psychological health and well-being, virtually every major
human rights and mental health organization in the United States as well as
internationally have taken public stands in favor of significantly limiting solitary
or isolated confinement use (if not abandoning it altogether). These organizations
include major legal, medical, and health organizations, as well as faith
communities and international monitoring bodies.57
57 See, e.g., Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc A/66/268, ¶¶ 76-78 (Aug. 5, 2011) (asserting that solitary confinement for longer than 15 days constitutes torture, and that juveniles and people with mental illness should never be held in solitary confinement); American Academy of Child and Adolescent Psychiatry, Solitary Confinement of Juvenile Offenders (2012), available at http://www.aacap.org/AACAP/Policy Statements/2012/Solitary Confinement of _Juvenile_Offenders.aspx (opposing “the use of solitary confinement in correctional facilities for juveniles,” stating that “any youth that is confined for more than 24 hours must be evaluated by a mental health professional,” and aligning AACAP with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, which includes among “disciplinary measures constituting cruel, inhuman or degrading treatment” “closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned”); American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012), available at http://www.psych.org/File%20Library/Learn/Archives/ps2012 _PrisonerSegregation.pdf (“Prolonged segregation of adult inmates with serious mental illness, with rare exceptions, should be avoided due to the potential for harm to such inmates.”);
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57. In fact, in recognition of the adverse mental health effects of
segregated, solitary, or isolated confinement, the American Bar Association’s
Standards for Criminal Justice on the Treatment of Prisoners mandate that
“[s]egregated housing should be for the briefest term and under the least
American Public Health Association, Solitary Confinement as a Public Health Issue, Policy No. 201310 (2013), available at http://www.apha.org/advocacy/policy/policysearch/default.htm?id=1462 (detailing the publichealth harms of solitary confinement; urging correctional authorities to “eliminate solitary confinement for security purposes unless no other less restrictive option is available to manage a current, serious, and ongoing threat to the safety of others”; and asserting that “[p]unitive segregation should be eliminated”); Mental Health America, Seclusion and Restraints, Policy Position Statement 24 (2011), available at http://www.nmha.org/positions/seclusion-restraints (“urg[ing] abolition of the use of seclusion . . . to control symptoms of mental illnesses”); National Alliance on Mental Illness, Public Policy Platform Section 9.8, available at http://www.nami.org/Template.cfm?Section=NAMI_Policy_Platform&Template=/ContentMan agement/ContentDisplay.cfm&ContentID=38253 (“oppos[ing] the use of solitary confinement and equivalent forms of extended administrative segregation for persons with mental illnesses”); Society of Correctional Physicians, Position Statement, Restricted Housing of Mentally Ill Inmates (2013), available at http://societyofcorrectionalphysicians.org/resources/positionstatements/restricted-housing-of-mentally-ill-inmates (“acknowledg[ing] that prolonged segregation of inmates with serious mental illness, with rare exceptions, violates basic tenets of mental health treatment,” and recommending against holding these prisoners in segregated housing for more than four weeks); New York State Council of Churches, Resolution Opposing the Use of Prolonged Solitary Confinement in the Correctional Facilities of New York State and New York City (2012), available at https://sites.google.com/site/nyscouncilofchurches /priorities/onsolitary-confinement; Presbyterian Church (USA), Commissioners’ Resolution 11-2, On Prolonged Solitary Confinement in U.S. Prisons (2012), available at https://pcbiz.org/MeetingPapers/(S(em2ohnl5h5sdehz2rjteqxtn))/Explorer.aspx?id=4389 (urging all members of the faith to participate in work to “significantly limit the use of solitary confinement”); Rabbinical Assembly, Resolution on Prison Conditions and Prisoner Isolation (2012), available at http://www.rabbinicalassembly.org/story/resolution-prison-conditions-andprisoner-isolation?tp=377 (calling on prison authorities to end prolonged solitary confinement, and the solitary confinement of juveniles and of people with mental illness); American Bar Association, ABA Criminal Justice Standards on the Treatment of Prisoners, Standards 23-2.62.9, 23-3.8, 23-5.5 (2010), available at http://www.americanbar.org /publications/criminal justice section archive/crimjust standards treatmentprisoners.html (limiting acceptable rationales for segregated housing and long-term segregated housing, stating that no prisoners with serious mental illness should be placed in segregation, requiring monitoring of mental-health issues in segregation, and requiring certain procedures for placement in long-term segregation, generally characterizing segregated housing as a practice of last resort, and requiring social interaction and programming for those placed in segregation for their own protection); New York Bar Association, Committee on Civil Rights Report to the House of Delegates: Solitary Confinement in New York State 1-2 Resolution (2013), available at http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=26699 (calling on state officials to significantly limit the use of solitary confinement, and recommending that solitary confinement for longer than 15 days be proscribed).
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restrictive conditions practicable.”58 Moreover, the ABA requires that the mental health of all prisoners in segregated housing “should be monitored” through a process that should include daily correctional staff logs “documenting prisoners’ behavior,” the presence of a “qualified mental health professional” inside each segregated housing unit “[s]everal times a week,” weekly observations and conversations between isolated prisoners and qualified mental health professionals, and “[a]t least every [90 days], a qualified mental health professional should perform a comprehensive mental health assessment of each prisoner in segregated housing” (unless such assessment is specifically deemed unnecessary in light of prior individualized observations).59 In addition, at intervals “not to exceed [30 days], correctional authorities should meet and document an evaluation of each prisoner’s progress” in an evaluation that explicitly “should also consider the nature of the prisoner’s mental health,” and at intervals “not to exceed [90 days], a full classification review” should be conducted that addresses the prisoner’s “individualized plan” in segregation with “a presumption in favor of removing the prisoner from segregated housing.”60
58. Finally, in addition to prominent human rights, mental health, and legal organizations, distinguished expert panels that have investigated and analyzed these issues have reached similar conclusions. For example, in a 2006 published report based in part on a series of fact-finding hearings conducted in
58 American Bar Association, ABA Criminal Justice Standards on the Treatment of Prisoners, Standard 23-2.6(a) (2010), available at http://www.americanbar.org /publications/criminal_justice_section_archive/crimjust_standards_treatmentprisoners.html [hereinafter “ABA Standards”]. 59 ABA Standards, 23-2.8(b). 60 ABA Standards, 23-2.9.
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the United States, in which diverse groups of nationally recognized experts testified about a wide range of prison issues, the bipartisan Commission on Safety and Abuse in America’s Prisons concluded that solitary and “supermax”-type units were “expensive and soul destroying”61 and recommended that prison systems “end conditions of isolation.”62
59. Later that same year, an international group of prominent mental health and correctional experts meeting on psychological trauma in Istanbul, Tukey issued a joint statement on “the use and effects of solitary confinement.” In what has come to be known as the “Istanbul Statement,” they acknowledged that the “central harmful feature” of solitary confinement is its reduction of meaningful social contact to a level “insufficient to sustain health and well being.”63 Citing various statements, comments, and principles that had been previously issued by the United Nations—all recommending that the use of solitary confinement be carefully restricted or abolished altogether—the Istanbul group concluded that “[a]s a general principle solitary confinement should only be used in very exceptional cases, for as short a time as possible and only as a last resort.” Notably, the specific recommendations they made about how such a regime should be structured and operated would, if adopted, end most forms of long-term isolated confinement.
61 Gibbons, John, and Katzenbach, Nicholas. Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons. New York: Vera Institute of Justice (2006), at p. 59, available at http://www.vera.org/sites/default/files/resources/downloads/Confronting_Confinement.pdf. 62 Id. at p. 57. 63 International Psychological Trauma Symposium, Istanbul Statement on the Use and Effects of Solitary Confinement. Istanbul, Turkey (December 9, 2007), available at http://www.univie.ac.at/bimtor/dateien/topic8 istanbul statement effects solconfinment.pdf
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60. In summary, the conclusion that long-term solitary or isolated confinement subjects prisoners to significant risk of grave psychological harm is theoretically sound, has widespread empirical support, and reflects the overwhelming consensus view of human rights, mental health, and legal organizations as well as expert groups that have carefully considered the issue. V. The Nature of Solitary Confinement at the Pelican Bay SHU
61. As I noted above, the adverse psychological effects of solitary confinement are thought to vary as a function of the specific nature and duration of the isolated conditions to which prisoners are exposed. In this regard, there are better and worse isolation or supermax units, including some that have implemented practices and procedures intended to ameliorate the harsh conditions otherwise imposed and minimize the harm that they inflict on prisoners. It is also important to note that there are more and less resilient prisoners, including some who seem able to withstand the painfulness of these environments and to recover from the experience with few if any lasting effects, as well as others whose pre-existing vulnerabilities render them especially susceptible to isolation-related harm. None of these facts undermines the overall consensus that has emerged about the harmful effects of long-term isolation and the serious risk of harm that this form of confinement poses for all prisoners who are subjected to it.
62. As I noted in passing above, although my evaluation of the effects of long-term confinement in the Pelican Bay SHU was in a preliminary stage when I wrote in support of the Plaintiffs’ class certification in April, 2013, the opinions that are contained in the present Expert Report are based on a very substantial
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amount of additional data that I have collected and analyses I have conducted since then. These include an onsite inspection of current conditions of confinement at the facility, in-person confidential interviews with an additional group of eight (8) class members selected by the attorneys, a more sizable, representative sample of forty-one (41) class members (prisoners housed in the PBSHU for 10 years or more), a sample of twenty-five (25) long-term (10 years or more) current Pelican Bay GP prisoners with whom the SHU prisoners could be compared, and the review of an extensive amount of additional discovery material.
63. To reiterate something that I previously asserted, the PBSHU is very clearly built and operated as a solitary confinement or “supermax” prison. Indeed, in correctional circles it is regarded as one of the “prototypes” of the “supermax” prison form. Based on my tour of the facility in April, 2014 and the numerous interviews I conducted with prisoners, as well as the numerous passing conversations I have had with correctional staff and observations made onsite, it is clear that the PBSHU’s essential features—its form and function—are largely unchanged from the facility that I came to know very well from the time of the Madrid litigation.
64. Of course, the extensive court order issued in Madrid and the subsequent monitoring of the implementation of the order changed the make-up of the prisoner population (by excluding mentally ill prisoners) and reduced the amount of excessive force used by staff. However, architecturally and procedurally, the PBSHU is remains physically structured and operated on a dayto-day basis in ways that are designed to minimize all forms of meaningful
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human social contact for prisoners. To my knowledge, and in my experience, the facility continues to isolate prisoners in a manner and to a degree that rivals or exceeds any supermax prison in the world. Indeed, the level of isolation imposed at the PBSHU not only “may press the outer bounds of what most humans can psychologically tolerate,”64 as Judge Henderson concluded in Madrid, but also appears to press against the outer bounds of what it is practically possible for correctional officials to achieve in terms of isolated conditions of confinement. That is, it is difficult to imagine how prisoners could be isolated much more.
65. PBSHU prisoners live under severe conditions of confinement inside cells that they almost never leave. The cells are uniform in dimension, affording prisoners approximately 80 square feet of space. They must eat, sleep, and defecate within that same space. The prisoners’ regular opportunities for outof-cell time are restricted to approximately an hour and a half a day, when they are permitted to enter a concrete enclosed “yard” (where they have access to recently installed “pull up” bars but nothing else). In addition, three days a week, they are given 10 minutes out-of-cell time to shower, which includes the time walking to and from their cells to the shower in the housing pod. They have little or no access to meaningful programs (except what can be accomplished while they are confined to their cells) and are prohibited from group activity of any kind. Aside from the very limited number of them who are double-celled, they have no regular, meaningful contact with one another. Correctional officers instruct them not to talk from pod to pod, or between the walls of their outside
64 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), at 1267.
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exercise pens. Their brief contacts with correctional staff are entirely routinized and superficial, consisting of perfunctory bureaucratic exchanges (paperwork, feeding, being placed in restraints whenever they are moved elsewhere in the prison). The physical design of the prison and the housing units ensures that even these routinized and superficial contacts are minimized. For example, the pods are overseen and prisoner movement is controlled mostly through the use of electronic locking mechanisms, operated by staff who stay primarily in a central “control booth” inside the units, physically separate and apart from the pods and the prisoners.
66. The remote geographical location of the facility means that prisoners—the overwhelming majority of whom are from Southern California— have very few visitors.65 Because all of their visits (social and legal) are held on a non-contact basis—through glass and over phones—prisoners are denied the opportunity to ever physically touch another human being with affection. Until recently, all PBSHU prisoners were prohibited from ever making or receiving a phone call (except when they received bereavement calls notifying them that an immediate family member had died). This meant that they never heard the voices of those loved ones who were unable to visit them.66 As I say, it is hard to imagine
65 The one-way driving distance between the Los Angeles area (the area from which the largest group of PBSHU prisoners resided) and Crescent City is well over 700 miles and takes nearly 13 hours to drive. 66 It is my understanding that prisoners placed in Steps 1 or 2 of the Step Down Program at PBSHU are allowed one 15 minute phone call after completing a step. Steps 1 and 2 are designed as one year each but can be accomplished in a minimum of 6 months. A prisoner who is placed in the Step Down Program but who is not participating satisfactorily can “plateau” or “freeze” in Step 1 or 2 and therefore not “earn” any phone calls.
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a level of prison isolation—the extent to which the prisoners are isolated from each other and from the outside world—that is more total and complete.
67. In addition, the duration of the isolation to which Plaintiff class members are subjected is largely out of step with sound correctional practices with which I am familiar, and with current national trends (not only reducing the numbers of prisoners housed in isolation but also placing limits on the lengths of time they stay there). It is worth noting that the United Nations Special Rapporteur concluded that solitary confinement lasting for longer than 15 days can constitute torture67 and, as I mentioned earlier, the American Psychiatric Association defined “prolonged segregation” as segregation lasting for four weeks or longer (which the APA said “should be avoided” for the seriously mentally ill).68 At the time that the Ashker litigation commenced, the press reported that, based on information obtained from CDCR, there were an estimated 500 prisoners who had been continuously housed under these draconian conditions for 10 years or more.69 Approximately 78 had been at the PBSHU for 20 years or more, some since the very day the facility opened in December, 1989.
68. It is my opinion that the conditions of extreme social isolation and enforced idleness that were described in the documents that I have reviewed and the interviews that I have conducted are equivalent to (or much harsher than) the
67 United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, supra note 57. 68 American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness, supra note 57. 69 http://www.scpr.org/news/2011/08/23/28382/pelican-bay-prison-officials-say-they-lockgang-bo/
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types of isolation conditions that I have seen and studied in other correctional institutions and about which the literature I have summarized in the preceding section of this Expert Report refers. The PBSHU is what is meant by the term “supermax” prison and, if the prisoners there are not being subjected to “solitary confinement,” then solitary confinement has never existed in modern corrections history.
69. In fact, as I say, the only way in which the conditions and practices at PBSHU differ is that, as noted above, they are more extreme (i.e., more isolating) than most, and the lengths of time to which Plaintiff class members have been exposed to them are truly extraordinary. Such conditions and durations are truly harsh and severe by any measure and are precisely the kind that create a risk of substantial harm for all the prisoners who are subjected to them.
70. It is important to note also that all of the prisoners housed in the PBSHU are subjected to essentially the same harsh conditions of isolated confinement. The fact that some small number of these prisoners may be housed with cellmates (i.e., are “double-celled”) does not necessarily mitigate and may even exacerbate the psychological impact of their SHU confinement. The kind of forced and strained “interactions” that take place between prisoners who are confined nearly around-the-clock in a small cell hardly constitute meaningful social contact. In fact, under these harsh and deprived conditions, the forced presence of another person may become an additional stressor and source of tension (even conflict) that exacerbates some of the negative reactions brought about by this kind of segregated confinement.
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VI. The Psychological Effects of Long-Term Solitary Confinement at the Pelican Bay SHU (PBSHU) 71. In this section of my Expert Report I discuss the extensive Ashker-
related empirical data that I have been able to collect over the last several years. These data document many of the ways that long-term isolation adversely affects prisoners housed in the PBSHU. I have collected and analyzed several distinct kinds of evidence that I discuss separately below, before reaching overall conclusions about their combined significance.
A. The Overall Psychological Status of the Current PBSHU Population 72. The data acquired directly from PBSHU prisoners are based
primarily on a series of confidential, structured interviews that I conducted with them. The interviews consisted of several different kinds of questions to elicit the following information: demographic data (e.g., age, race/ethnicity, marital status), estimated prison sentence and time in prison (including time spent in Ad Seg and/or SHU, at Pelican Bay or elsewhere), a brief account of each prisoner’s social and institutional history, and whether or not the prisoner had recently (over the last three month period) been bothered by any of a number of very specific symptoms or reactions. The specific questions consisted of a 27-item symptom checklist that addressed indices of psychological stress or trauma as well as adverse isolation-related pathological reactions that have been reported in the literature. Those prisoners who reported suffering from a symptom were asked whether they experienced it rarely, sometimes, often, or constantly (with a corresponding range in scores from 1 to 4 for purposes of data analysis).
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1) Re-Interviews with Prisoners from the Original Madrid Sample
73. The small group of seven (7) prisoners whom I interviewed in April, 2013, represent an important starting point for understanding the effects of longterm PBSHU isolation. As I noted in my earlier declaration, each of them was a member of the original sample of a hundred (100) prisoners whom I interviewed in 1993, in conjunction with then pending Madrid litigation. At that time, I selected them randomly from the PBSHU roster and, along with the others I interviewed, they were representative of the larger group of prisoners who were then housed at the PBSHU. The results of the interviews from this original sample formed part of the basis for my testimony in Madrid.
74. In April, 2013, in conjunction with this case, I re-interviewed the seven (7) prisoners from that original sample who were currently housed at the PBSHU. I frankly did not know what to expect from this group of prisoners, some of whom had been kept in PBSHU isolation continuously, virtually since the day the facility opened, some 24 years earlier. I thought it was very possible that these men had become accustomed to their isolation. Since, by definition, they had survived the experience, it was entirely possible that they might no longer be as acutely aware of the deprivations to which they had been subjected for so long a period of time, or as sensitive to the painfulness of conditions of confinement that they had now endured for more than two decades.
75. I once wrote that “the human psyche abhors the sensation of constant pain” and, like all people, “prisoners can tolerate only so much suffering
45

before attempting to transform the experience to reduce its painfulness.”70 Most of us go to great lengths to avoid pain when we can, or to numb or desensitize ourselves to it when we cannot. Although the original group of PBSHU prisoners of which these men were members were clearly in pain at the time I interviewed them in 1993, I thought it was entirely possible that by 2013 they had become numbed or desensitized to the things that originally had caused them so much distress.
76. Remarkably, instead, the interviews I conducted in April, 2013 indicated that, twenty years later, these prisoners were still suffering. The passage of time had not significantly ameliorated their pain or dulled the men’s senses to experience it.
77. Most of the prisoners told me that relatively little had changed at the institution over the years since Madrid was decided, except for several obvious and not unimportant court-ordered remedies to the unconstitutional conditions of confinement that existed there. Specifically, as I mentioned earlier and they confirmed, pursuant to the court’s order, mentally ill prisoners had been removed from the facility, and the amount of excessive force used by staff had been reduced. Some of the prisoners felt that some of the most abusive staff members now no longer worked at the facility. In short, “things calmed down for a while” (Prisoner A). But the day-to-day level of isolation and deprivation remained more or less the same.
70 Haney, C., Reforming Punishment: Psychological Limits to the Pains of Imprisonment. Washington, DC: American Psychological Association Books (2006), at p. 164
46

78. A number of the men I interviewed from this original sample told me that they felt they had, in a sense, “gotten used to” the isolation over the many years they were confined in the PBSHU. However, it was very apparent that what they meant was that they had come to regard their conditions of deprivation and isolated confinement as “normal”; indeed, it was the only life they now knew. At the same time, most acknowledged still suffering from a large number of specific adverse symptoms and reactions. Although they had come to regard their painful condition of social deprivations as “normal,” they still suffered—felt—its effects, often very acutely.
79. Thus, as Table 1 illustrates, all or nearly all of these men described suffering from many stress- and isolation-related symptoms, including: anxiety (100%), depression (71%), ruminations (71%), irrational anger and irritability (86%), feelings of overall deterioration (71%), sleep disturbances (100%), the sense of an impending breakdown (71%), and social withdrawal (100%).71 The psychological symptoms and reactions that they acknowledged to me in 2013 were very similar to the ones that they and others had reported experiencing in my 1993 study, when I posed these questions to them and to the much larger group of PBSHU prisoners I interviewed. The symptoms they reported to me also were similar to the psychiatric observations made by Dr. Kupers in his April 10, 2013 Declaration, and they are entirely consistent with the types of symptoms and the degree of suffering that the psychological literature warns are likely to occur in prisoners housed in these extreme conditions of isolated confinement.
71 These percentages are based on a very small sample—only 7 prisoners—and are provided for purposes of illustration only.
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Table 1: PSYCHOLOGICAL SYMPTOMS OF RE-INTERVIEWED PBSHU PRISONERS, 2013 vs. 1993 ORIGINAL SAMPLE

Symptoms of Psychological Stress and Trauma 2013

1993

Anxiety, Nervousness Headaches Lethargy, Chronic Tiredness Trouble Sleeping Impending Breakdown Perspiring Hands Heart Palpitations Loss of Appetite Dizziness Nightmares Hands Trembling Tingling Sensation* Fainting

100% 100% 100% 100% 71% 71% 71% 29% 100% 71% 43% 14%
0%

[91%] [88%] [84%] [84%] [70%] [68%] [68%] [63%] [56%] [55%] [51%] [19%] [17%]

2014: N=7 Psychopathological Effects
of Prolonged Isolation

1993: N=100

2014

1993

Ruminations Irrational Anger Oversensitivity to Stimuli Confused Thinking Social Withdrawal Chronic Depression Emotional Flatness Mood Swings Overall Deterioration Talking to Self** Violent Fantasies Perceptual Distortions Hallucinations Suicidal Thoughts

71% 86% 100% 100% 100% 71% 86% 86% 71% 86% 71% 29% 0% 29%

[88%] [88%] [86%] [84%] [83%] [77%] [73%] [71%] [67%] [63%] [61%] [44%] [41%] [27%]

2014: N=7

1993: N=100

*Not necessarily a symptom of psychological stress or trauma. Included as a “control question” to provide a baseline against which to measure the significance of the trauma-related responses.

** An adaptation to isolation but not necessarily a pathological isolation-related symptom.

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80. As these data make clear, the re-interviewed prisoners from the original 1993 study remain a highly traumatized and distressed population. With only few exceptions, the prevalence of symptoms is comparable or even somewhat higher now than it was for the overall group in 1993. The exceptions involve symptoms for which, if they persisted, prisoners would likely be provided with medical or psychiatric treatment until they subsided (e.g., fainting, hallucinations), or symptoms that are unlikely to become chronic and last for two decades (e.g., a depressed appetite).
81. It is striking to me that, some twenty years later, after what was, for many of these prisoners, a period of uninterrupted isolation, they continue to experience the acute pains of their isolated confinement. They have not reached a psychological “accommodation” with their surroundings, at least not in the sense that they are no longer able to recognize and articulate the specific dimensions of their painful existence. They still feel many symptoms associated with stress and trauma, experience the pathological reactions that isolation brings about and, after all these years, are still quite capable of describing them.
82. As significant as these continued very high levels of specific stressand trauma-related reactions and isolation-related symptoms are, I also found evidence of much deeper and in many ways more significant adverse changes in this group of long-term PBSHU prisoners. The deeper psychological changes stem from the fact that these men have been forced to live without any meaningful social contact or interaction for such long periods of time—for some, as I noted, several decades—and this, in turn, has stripped most of them of any
49

meaningful social relationships of any kind. Some have lost the sense of what a meaningful social relationship, in fact, is. Although they are surrounded by other people, they are profoundly alone.
83. Because the Pelican Bay State Prison is so far from any population center where all but a tiny percent of the prisoners once lived, the geographical location of the SHU contributes to the level of isolation the prisoners experience. The infrequent visits (that must be conducted on a non-contact basis), combined with the absence of meaningful social contact in prison means that the overwhelming majority of prisoners will have essentially no one with whom to socially interact or relate to on a remotely regular or consistent basis. PBSHU prisoners have been forced to try to adjust to this way of being—being alone—in order to survive their prison terms. In by far the greatest number of cases, they have been forced to do so entirely on the basis of their status as reputed prison gang members or associates, rather than because of any other violent or even serious disciplinary infractions.
84. For example, one prisoner (Prisoner A) who had been housed continuously in the PBSHU since 1989 (except for a brief one month period) told me that he had only one visit (in 2004) during that entire 24 year period. He said that although he had not received any CDCR Rules Violation Reports (commonly referred to as “115s”) since 1997, he nonetheless remained housed on the “short corridor” with other prisoners whom the CDCR has judged to be gang members. As he put it, “Anything we do as validated gang members is interpreted as continuing evidence of gang activity.” When I asked him one of the specific symptom questions having to do with “irrational anger” (i.e., getting any over
50

insignificant things or for no reason) he answered emphatically “no,” and then explained, “I am angry a lot but I know why.” He described being depressed all the time, telling me “this is it—it gets to you. [There are] very few signs of hope or things to look forward to.” He also told me that he has become withdrawn, discourages people from coming to see him, rarely initiates conversation or contact and “I just don’t feel comfortable around people.” He also told me that “everyday I struggle with mental survival.”
85. Another prisoner (Prisoner B), who had been housed in the PBSHU continuously since June, 1990, told me that he has not had any violent 115s since being housed at the facility and that all of his write-ups have been for relatively minor things like talking in the law library or participating in the recent hunger strike. He said his last social visit from anyone from the outside world occurred about 15 years ago, when his wife came to see him sometime around 1998. He told me that he struggles against “isolation psychosis” and that “I fight against what is happening to me.” He analogized the gradual but nonetheless damaging changes that have taken place in him this way: “If they put me in Chernobyl and gave me food and a TV and left me alone it wouldn’t mean that the radioactive environment wasn’t making me sick.”
86. One of the adaptations that he told me he uses to survive in what he regards as the “toxic” SHU environment in which he lives—in addition taking refuge in his writing (which he said he does often)—is to isolate himself even further, despite the conditions of near total isolation to which he is subjected: “I don’t even take phone calls from outside. I don’t let myself get distracted by outside events. I have to control myself. You can’t worry about not hearing from
51

family or friends. You have to stay distant from them, and not let them distract you with feelings.”
87. Another one of the prisoners from this original group (Prisoner C) said: “I keep from getting too close to people because it can lead to depression. I have no intimacy in my life. I don’t have a chance to relate to people with closeness. You are only allowed to deal roughly with people. You turn off your feelings. You see things and have to shut off.” He also told me: “When I first got here, I trusted people. That’s how I was raised. [But] you see how the officers mistreat us—it changes the way you live and look at life. You distrust everyone. The anger also builds up in you. I don’t feel comfortable around people anymore.”
88. Another prisoner (Prisoner D) who had been in the PBSHU continuously since 1990, and had been in isolated confinement for several years before that, spoke at length about the asociality that had come about as a result of so many years of social deprivation. He described himself as once having been “a people person,” but now finds that there are “many times I don’t want any part of people. ‘Keep quiet and leave me alone’—that’s my motto. Don’t bother me and I will do the same.” He elaborated: “Just leave me alone. I have no wife, no children… leave me to do my time. That’s all we can do in here.” He was acutely aware of how profoundly he had been changed by the long-term social isolation to which he had been subjected. He told me: “I have not been around people for 28 years. I only knew my family for 18 [before he came to prison]. I don’t feel close to them or [to my] homeboys, as messed up as that sounds. Even if they died…” and then his voice trailed off.
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89. Some of the prisoners from this original 1993 sample told me in 2013 that they were reluctant to talk about how asocial they had become over the years they had spent in the PBSHU. One prisoner (Prisoner E) said, “I have become anti-social in here. I get irritated when people talk to me or call my name.” Then he added, “I was afraid to tell you this because it makes me sound crazy, but I decided just to tell the truth.” Another (Prisoner C) said, “it is not easy to come out here and talk about this. There are a lot of guys who are going through these things, but they are embarrassed to say or admit it. There are a lot of guys who feel the stigma, the label of being weak, and it is too much to risk.”
90. In summary, this group of men who were members of the original 1993 group of PBSHU prisoners and whom I re-interviewed in 2013 reported that they were still suffering the kind of acute pain and distress that they and members of the larger sample were experiencing some twenty years earlier. That pain and distress was manifested in the many specific symptoms that they reported suffering as well as the socially pathological adaptations to isolation that they had been forced to adopt over the last several decades.
91. Perhaps because of the high levels of tension that pervade this environment, and the corresponding hypervigilance that prisoners in isolation continue to maintain, and perhaps because the level of deprivation is so severe, these prisoners had really not “gotten used to” the stress of this kind of confinement, despite the long period of time they had spent in the SHU. And, perhaps because they had so few if any meaningful activities to serve as distractions from their pain, and so few if any meaningful social contacts from which to derive nurturing support, they remained acutely aware of the deep
53

losses they continued to suffer along the way—their withering connections to family, friends, and others, and their increasing inability to function as social beings. They understood the “social death” to which they were being subjected and it pained them.72
2) Non-Randomly Selected Sample 92. Included among the group of Plaintiff class members whom I interviewed in January, 2014, was a group of eight (8) prisoners who had been selected in advance by the attorneys (in contrast to the rest of the interviewees who were randomly selected). I did not know the status of these prisoners in advance, but interviewed them along with the others, who were part of the randomly selected group. 93. When I subsequently received the information that allowed me to distinguish the non-randomized from the randomly selected interviewees, I disaggregated the groups and calculated the results from their interviews separately. Thus, the quantitative data from the non-randomized class members have been kept separate from those of the randomly selected group; they are not included in the comparisons between the randomly selected 2014 and 1993 SHU
72 The term “social death” is used here to denote the extreme nature, magnitude, and duration of the isolation to which the Plaintiff class members have been subjected. Isolation from others this total and complete, and this punitively enforced, does not exist anywhere else in modern society. [For example, see the discussion by Harvard sociologist, Orlando Patterson, in Slavery and Social Death: A Comparative Study. Cambridge: Harvard University Press (1982).] For this reason, the long-term isolation at PBSHU is much more extreme than what researchers typically mean when they refer to “social exclusion” and “loneliness” (for example, in the research cited at footnotes 17, 39, 40-43, 45 supra, as well as footnote 77 infra) and, for this reason as well, its effects are more severe than those studied in these other, less extreme contexts.
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samples nor the comparisons between the 2014 SHU and GP samples that I will report on and discuss later.
94. The eight (8) prisoners non-randomly selected for interviews were not significantly different in terms of their levels of distress as compared to the larger randomly selected group. They reported somewhat higher prevalence rates for some symptoms and somewhat lower ones for others.73 The results for this group of interviewees are shown in Table 2 below.

Table 2:

PSYCHOLOGICAL SYMPTOMS AMONG NON-RANDOMLY SELECTED SAMPLE OF 2014 PBSHU PRISONERS
Symptoms of Psychological Stress and Trauma

Anxiety, Nervousness Headaches Lethargy, Chronic Tiredness Trouble Sleeping Impending Breakdown Perspiring Hands Heart Palpitations Loss of Appetite Dizziness Nightmares Hands Trembling Tingling Sensation* Fainting

88% 75% 88% 88% 75% 50% 75% 25% 75% 62% 63% 25% 0%

73 The sample did include two prisoners whose situations were somewhat different from others I interviewed, including one who had made several trips to the Psychiatric Services Unit (PSU) over the preceding several years, and another who was scheduled to be released from CDCR custody within several months of my interview. They are discussed separately and in passing below.
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Psychopathological Effects of Prolonged Isolation

Ruminations Irrational Anger Oversensitivity to Stimuli Confused Thinking Social Withdrawal Chronic Depression Emotional Flatness Mood Swings Overall Deterioration Talking to Self** Violent Fantasies Perceptual Distortions Hallucinations Suicidal Thoughts

63% 75% 75% 75% 88% 63% 63% 88% 88% 50% 13% 25% 0% 0%

N=8

*Not necessarily a symptom of psychological stress or trauma. Included as a “control question” to provide a baseline against which to measure the significance of the trauma-related responses.

** An adaptation to isolation but not necessarily a pathological isolation-related symptom.

95. I also noted that, in comparing this sample of prisoners to the randomly selected group (discussed below), that the non-randomly selected prisoners seemed to have slightly more stress- and trauma-related symptoms, and slightly fewer isolation-related symptoms (although neither difference was statistically significant). This may have stemmed from the fact that although the non-randomly selected prisoners were reacting slightly more to the immediate stressors in their environment, they were still capable of reaching out and making contact with the attorneys to voice some of their concerns. On the other hand, the randomly-selected prisoners, discussed below, were suffering somewhat more seriously from the isolation-related pathologies. Their suffering became apparent
56

only after they were randomly selected and questioned during my interviews. These prisoners were more likely to be suffering silently, and in ways that would not necessarily have been obvious to anyone who did not proactively inquire.
3) Randomly Selected Sample 96. As was the case with the sample of seven (7) prisoners from the original 1993 sample (discussed in paragraphs 73-91 above), and the group of eight (8) prisoners I interviewed who had been selected by Plaintiffs’ attorneys (discussed in paragraphs 92-95 above), I found that the larger group of forty-one (41) randomly selected PBSHU prisoners whom I interviewed were also suffering greatly. They were suffering at levels comparable to those found in prisoners who were confined in the same institution more than 20 years ago, when I first studied it. Again, I believe that this fact in itself is remarkable. It indicates that, even after 10 years or more in isolation, they had not acclimated fully to it but rather continued to suffer a host of painful, problematic, and potentially damaging psychological symptoms. 97. In addition, as I will discuss in some detail below, the experience had done something else to them that was not readily apparent in the case of the 1993 prisoners who, by definition had been in the PBSHU for “only” a few years. The Ashker class members had been subjected to a form of “social death” as a result of their long-term isolation. It consists of the near total the loss of meaningful contact, connections, and relationships with other human beings. The depth and dimensions of this loss were apparent to them and they were suffering as a result of it. They had also been transformed by it. They were, in a very real sense, different people because of it, people who had lost something not just in
57

the world but in themselves. Although they seemed resigned to never getting it back, they were deeply pained by this realization.
98. The suffering of these prisoners takes several forms, including the high prevalence of indices of psychological stress and trauma as well as a range of isolation-related symptoms. In addition, the suffering and adverse effects are manifested in descriptions of the prisoners’ subjective states of mind, brought about in response to their extraordinarily long periods of isolated confinement. The inevitable adaptations that they have been forced to make to this socially pathological environment have produced their own problematic consequences without alleviating much if any of these prisoners’ ongoing psychological pain.
99. As I noted, these latter conclusions are based on the interviews that I conducted with a representative sample of 41 Ashker class members, selected at random (to ensure representativeness) from a roster of PBSHU prisoners whom CDCR indicated had been confined in the facility for 10 or more years. The interviews took place in two different locations—some in one of the D Facility SHU boardrooms and some in the SHU visiting area, in January and December, 2014. As I noted earlier, I conducted a structured interview with each randomly selected PBSHU prisoner, collecting demographic information, estimated prison sentence and time in prison (including time spent in Ad Seg and/or SHU, at Pelican Bay or elsewhere), a brief account of the prisoner’s social and institutional history, and whether or not the prisoner had been bothered in the last three months by any of a number of very specific psychological symptoms or reactions (and, if so, how often). The specific questions consisted of a 27-items that yielded 25 indices of psychological stress or trauma as well as adverse
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isolation-related pathological reactions that have been reported in the literature.74
a) Prevalence of Reported Stress/Trauma-Related Symptoms and Isolation-Related Pathology
100. The representative sample of members of the Ashker Plaintiffs— prisoners who had served 10 years or more in the PBSHU—reported suffering very high rates of symptoms and indices of pathological reactions, both those associated with the experience of severe stress and trauma as well as those that have been described in the literature as having been caused by the experience of extreme isolation. The present sample suffered these symptoms at prevalence rates that were very similar to the overall rates reported by the 100 PBSHU prisoners who were interviewed in 1993 in conjunction with Madrid.
101. Not only are the actual prevalence levels of reported symptoms very similar overall, but the patterns of specific prevalence levels (i.e., ones reported by a very high percentage of prisoners versus ones very infrequently reported) are also very consistent between the two samples.
102. As these data make clear, the re-interviewed prisoners from the original 1993 study remain a highly traumatized and distressed population. With only few exceptions, the prevalence of symptoms is comparable or even somewhat higher now than it was for the overall group in 1993. The exceptions involve symptoms for which, if they persisted for years, prisoners would likely have been provided medical treatment (e.g., headaches, fainting), or ones that
74 Note that, as I have indicated, two items from the full 27 item list do not necessarily indicate a stress-related reaction (in the case of the “tingling sensation” symptom) or a pathological adjustment to isolation (in the case of “talking to self”). These items have not been included in any of the calculations or comparisons involving overall levels of suffering and distress.
59

would be unlikely to endure for a decade or more (e.g., depressed appetite,

fantasizing violent revenge, or suicidality).

Table 3:

PSYCHOLOGICAL SYMPTOMS AMONG PBSHU PRISONERS, 2014 vs. 1993 REPRESENTATIVE SAMPLES

Symptoms of Psychological Stress and Trauma

2014

1993

Anxiety, Nervousness Headaches Lethargy, Chronic Tiredness Trouble Sleeping Impending Breakdown Perspiring Hands Heart Palpitations Loss of Appetite Dizziness Nightmares Hands Trembling Tingling Sensation* Fainting

83% 71% 90% 81% 63% 51% 68% 30% 76% 30% 42% 20% 2%

[91%] [88%] [84%] [84%] [70%] [68%] [68%] [63%] [56%] [55%] [51%] [19%] [17%]

2014: N=41

1993: N=100

Psychopathological Effects of Prolonged Isolation

2014

1993

Ruminations Irrational Anger Oversensitivity to Stimuli Confused Thinking Social Withdrawal Chronic Depression Emotional Flatness Mood Swings Overall Deterioration Talking to Self** Violent Fantasies Perceptual Distortions Hallucinations Suicidal Thoughts

83% 88% 90% 98% 88% 73% 78% 68% 83% 66% 37% 20% 37% 2%

[88%] [88%] [86%] [84%] [83%] [77%] [73%] [71%] [67%] [63%] [61%] [44%] [41%] [27%]

2014: N=41 1993: N=100

*Not necessarily a symptom of psychological stress or trauma. Included as a “control question” to provide a baseline against which to gauge the trauma-related responses.

** An adaptation to isolation but not necessarily a pathological isolation-related symptom.

60

103. To put these findings in context, it is important to recall the nature of the PBSHU at the time of the Madrid litigation and, as I alluded to earlier, at the time the data were collected in my 1993 study. I believe it is fair to say that the PBSHU in 1993 was still very much in turmoil. There was still a significant number of mentally ill prisoners housed in the SHU, and their presence in the housing pods was highly disruptive to other prisoners. Some number of those mentally ill prisoners were undoubtedly represented in my randomly drawn sample and, if so, their responses would have at least modestly elevated some of the results (at least in comparison to the 2014 sample, from which mentally ill prisoners presumably had been excluded). Finally, the PBSHU was still, in many respects, a contentious “battleground” between prisoners and correctional staff. The staff’s ongoing use of excessive force became a matter of record in the course of the Madrid trial and Judge Henderson’s opinion in the case addressed it at length. Many of the participants in the 1993 study were very focused on these conflicts and the correspondingly frequent “cell extractions” that were occurring throughout the PBSHU. The prisoners I interviewed then voiced quite a bit anger and fear that they felt as a result of these contentious, physically violent encounters which, in turn, had put the prisoners under a great deal of immediate or acute stress.
104. Yet, remarkably in my opinion, the current long-term PBSHU prisoners are similarly traumatized, and in pain and distress. They have not reached an accommodation or equilibrium over the many years that they have been kept in isolation. Although they are “long-term” SHU prisoners, they look very much like the acutely traumatized group of prisoners whom I studied in
61

1993, when the prisoners at the facility were in shock over the way they were being treated, and very much in open, daily conflict with the correctional staff. On virtually every specifically measurable dimension, they are suffering nearly as much, the same, or worse, than the earlier group. Moreover, unlike this original group, who were housed under these conditions for no more than 3 or so years at the time they were assessed, the Plaintiff class members have endured this extreme form of isolated confinement for a decade or more—in many instances, much more. At the time I interviewed them, many of them held little or no hope that they would ever be free of it. Their suffering and symptomatology had changed from being “acute” to “chronic.” The prisoners’ painful existence had become a way of being, and their extreme adaptations to it had become part of them.
b) Isolation-Related Suffering and Syndromes 105. Just as with the smaller sample of prisoners whom I re-interviewed from the original 1993 sample, the larger group of PBSHU interviewees described attempts to survive their socially pathological conditions of confinement in ways that were both painful and problematic. The challenges they faced in order to survive the experience and the psychological changes that they acknowledged taking place in themselves were in many ways broader and deeper than the specific indices of trauma and other symptoms that they reported to me.
i) The Ongoing Struggle to Maintain Sanity 106. Although mentally ill prisoners are prohibited by the Madrid exclusion order from being housed at the PBSHU, many prisoners reported that
62

they were nonetheless engaged in a constant, ongoing struggle to maintain their

sanity. For example,

prisoner (Prisoner F) who had been in

the prison system continuously since he was a teenager and had been housed in

the Pelican Bay SHU for nearly 24 years told me, “You struggle to hold on to your

sanity, you feel it slipping away.” He told me that his coping mechanism involves

rigidly maintaining a daily program or regimen from which you “never deviate.”

Similarly, another prisoner (Prisoner G) told me that “every day is social, mental,

physical pain and you are always on the verge of succumbing to it.” He said he

believed people in the SHU were “losing their sanity” and that “we have so little

input, variation, it wears you down…”

107.

(Prisoner E) who had been at the

PBSHU for approximately 12 years told me that, “from the start, [it was] very,

very difficult” to live in isolation because “you don’t know what’s happening to

you.” He also said that the feeling never really left him: “To this day, it’s a

struggle to fight and reverse the damage.”

(Prisoner I),

who had been in the PBSHU for about 14 years, said: “It

is not easy. Frustration, anger, resentment. You are harassed 24/7. [You] survive

by trying hard to be human, as much as you can. It’s rough, and the longer you

are here the harder it is. It festers in your mind.”

108.

(Prisoner J) who had been in the

PBSHU continuously for nearly 14 years, told me that “in here, the ‘good’ things

are all material—a package or canteen—nothing psychological or spiritual.” He

also said that he had fought to get a visit but, “when I finally got it and they came,

I didn’t want to go.” He told me that: “Isolation never stops fighting with your

63

mind, in an everyday struggle or battle [that] you have to fight through. I draw

and I read, escaping in any way I can. Watch TV sometimes, work out in the

morning to relieve anger and stress. But it’s ‘Groundhog Day’—start over the next

day, which is the same over again. You fight every day not to lose your sanity.” He

said that one of the worst things “is not being able to have opportunities or to get

help. For example, with education. We have no release in here, nothing to get

involved in. We are surrounded by a wall in here. That bottles us up inside, a

constant struggle spiritually and mentally.”

109.

(Prisoner K) told me he had come

into the prison system while still in his teens, and had spent most of his 19 years

in prison in isolated confinement, including the last approximately 16 years

housed continuously in the PBSHU. He said, “I grew up in here. It’s all I know. I

have nothing to compare it to. It’s like time broke… I watch people lose it. I say, ‘I

don’t want to be like that.’ [It’s] a constant struggle to stay sane… The hardest

thing about this place is maintaining control of yourself against the pressure…

You are trying to control chaos in a controlled space.”

110. But he had spent so much time spent in isolation that the

experience had taken a toll, one that he clearly recognized: “I’m barely able to

associate. I don’t relate to my family. I don’t understand the world. I don’t

remember what my house looked like, what my sister looks like. I am completely

uncomfortable in the social world.” And he has learned to keep his feelings

hidden deep inside: “I feel I’m doing good when nobody knows what I’m

thinking.”

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111.

(Prisoner L) told me

that he has been in prison from the age of 20 until now, serving time

on his first and only adult conviction. He told me that the last 14 of his 23 years in

prison have been spent in the PBSHU, and that during that time he has had very

few visits from the outside world. He told me he has had very few write ups, none

of them for violent offenses. He has tried hard to adjust but constantly struggles.

He said: “The more time I’m here, the angrier I get. It isn’t good for the brain… I

feel like a caged animal… I worry about losing my mind, ask, ‘am I losing it?’ It

bothers me—every day I am waiting to hear from somebody and it never comes.”

112.

(Prisoner M) said “I

think all the guys back here are going crazy and don’t want to admit it. We don’t

talk about it because we are isolated in little boxes, and can’t hold a real

conversation without other people hearing it.”

113. I did interview one prisoner (Prisoner N) who initially reported to

me that he had suffered very few other stress- and isolation-related symptoms—

in fact, among the fewest of any of the prisoners whom I interviewed. However,

his few reported symptoms did not mean that he was not struggling in a very

serious way to maintain his mental health throughout his long period of isolation.

He very earnestly told me that he believed that he was the victim of a diabolical

plot by correctional officers, something he said he first heard them talking

about—in a code that he could not quite understand—several years ago. He said

that he finally determined what they were referring to—the fact that prison

officials were directing some kind of an electrical “energy force” at him and other

65

prisoners. The energy force or wave had very powerful effect on his mind—“it

made me confused and disrupted me.”

114. He told me that there were times when he felt he might not be able

to tolerate this torment, and he eventually informed his family about what was

happening to him. (In fact, his mother has been in contact with me and sent me

information both about a civil rights case that her son filed over this and other

issues and also included some information that he was able to acquire about

some kind of military weapon that used some form of electronic or radio waves

similar to the ones he believed the PBSHU staff was using against him.) He told

me that other prisoners also had experienced some of these same effects but that

he was the only one to have “figured it out.” In addition, he said that a prison

mental health staff member

knew what the COs were doing to the

prisoners with these electronic waves or forces and that he knowingly acquiesced

in it.

115. At one point, apparently because he voiced his concerns about this

openly to staff, or made a paranoid-sounding reference to them in a CDCR

grievance form (commonly known as a “602”) that he filed, he was forcibly

removed from his cell and taken involuntarily to the PSU for a mental health

evaluation. After a brief stay there, he said, he was given a clean bill of mental

health and returned to SHU, where he continued to be housed.75 He explicitly

75 I reviewed documents that Prisoner N’s mother sent me at his request. They indicated that he had been admitted to the PSU on three separate occasions, including once several months after I saw him in April, 2014.

66

told me that he did not want to be labeled “crazy” because these waves were “real,” but he also explicitly said that wanted to make sure that I included a description of these events and his concerns in my report. He re-iterated this when I saw him cell-front in April, 2014, during my tour of the institution.
116. In short, in addition to the high prevalence of specific symptoms from which this representative sample of prisoners who were subjected to prolonged isolation in the PBSHU reported suffering, many prisoners acknowledged an ongoing, constant struggle to remain mentally stable, a struggle in which many felt their very sanity was at stake. These prisoners certainly have not accommodated to the extraordinary level of social and other forms of deprivation that they have suffered for a decade or more, nor have they ceased to feel the mental pain that comes from being confined in this way.
ii) Problematic Adaptations to Prolonged Isolation and Long-Term Dysfunction
117. Just as with the initial sample of seven prisoners whom I had interviewed in 1993 and re-interviewed in 2013, many of the prisoners in the randomly selected group reported that they had struggled to “get used to” the long-term isolation to which they were being subjected. They, too, realized that
This document indicated that Prisoner N was to be retained on the mental health caseload at the CCCMS level of care, and therefore (as of July, 2014) was excluded from the PBSHU.
67

their tenuous “adjustment” had come at high psychological price. Many prisoners regretfully acknowledged that had lost their ability to interact with or be comfortable around people; they were acutely aware of this loss. As one prisoner (Prisoner O) put it, “I was taught to endure. So I do. But coping is not the same as not being affected or changed.” Another (Prisoner P) told me that “the worst part is being surrounded by people but you are alone. The last time I touched a loved one was in 1983. The purpose of this place is to break us. It is like quicksand. You try to climb out and sink further down.”
118. The isolation to which prisoners in the PBSHU are subjected is created by the rules, regulations, and architecture of the prison—a regime that prohibits and precludes them from having any meaningful social contact with each other. But the degree of isolation is not limited to that. Earlier I alluded to the geographical location of the prison and the way that its remoteness adds to the overall level of isolation to which PBSHU prisoners are subjected. The prison is located in Crescent City, California, over 700 miles from Los Angeles, the state’s largest population center and the geographical area from which the largest number of prisoners come. Family members from the Los Angeles area or farther south must travel a minimum of nearly 13 hours by car (one-way) in order to visit at Pelican Bay. A number of prisoners indicated that the combination of the distance and the cost of such a trip make it prohibitive for many of their families.
119. In addition to the time and expense involved, all visits are conducted on a non-contact basis, which requires visitors to speak through a thick glass barrier or partition and over a telephone. Of course, SHU prisoners are not permitted to touch their visitors during these non-contact visits (and the
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glass partition that separates them prevents them from doing so). In addition,

except for prisoners in the newly implemented stepdown program, prisoners are

prohibited even from making phone calls.76 This prohibition has been in

operation since the time the PBSHU first opened. It means that Ashker class

members who do not receive visits have not heard the voices of loved ones or

friends for a decade or more.

120. One prisoner (Prisoner Q) said that he has been prevented from

even writing to his family, and so has lost all contact with them. He said: “CDCR

won’t let me write to my daughter because I am a gang member. I haven’t been

allowed to write her. In the beginning of 2012, they stopped my mail. I’ve lost all

communication with everybody. Whenever people would write me, they [CDCR]

would say it was ‘coded’—even though they couldn’t tell you what it means. ‘You

are under investigation’ supersedes everything. The last time I had a visit was in

2002. My daughter was 6 or 7 years old… She reached out to me, to write me, but

the prison put a stop to [it]. I have no relationship with people on the outside,

nobody to write.”

121.

(Prisoner R) told me he entered

prison approximately 22 years ago on his first and only adult conviction. He has

spent most of his time since then in isolation, including about 20 years

continuously in the PBSHU. Over that two-decade period, he said that he has had

only one visit, which occurred in 2010, when his now-grown children came to see

him. He told me that he tries to write to them as much as possible, to stay close,

76 It is my understanding that prisoners in Step 1 of this program may receive a short, nonemergency phone call after six months and receive a second short phone call upon transition to Step 2.
69

but that it is hard: “What do you say? You live the same life over and over.” He also told me: “I put my kids’ pictures facing the TV and I talk to them, as if we were watching the game together. ‘Hey, did you see that?’ Maybe I’m crazy, but it makes me feel like I’m with them. Maybe someday I’ll get to hug them.” He told me that the last time he touched them—or anybody (other than when being put in mechanical restraints)—was 1993.
122. I interviewed a number of PBSHU prisoners with children whom they rarely if ever see, and grandchildren whom they have never seen.
told me, “My son is almost an adult. I haven’t seen him for years or heard his voice or him mine.” Another (Prisoner T) had a 7 year old daughter when he entered prison 20 years ago. She has since grown up, gotten married, and had children but he has not seen her or had a visit from anyone else over that period of time.
123. This near total isolation these men have from one another, and from the outside world, means that they have had to adjust to living in a state of being profoundly alone, a state that has lasted for them for a decade or more. The experience has changed them in number of fundamental ways. Among other things, their social skills have atrophied in the absence of any meaningful opportunity to use them, and they have lost the capacity for deep positive emotions or to feel human connections.
124. Indeed, there is a profound sadness to most of the men I interviewed in the PBSHU, a somberness and joylessness about them. It is almost as though they are grieving. Many of them seem to be grieving the relationships to family members and loved ones that they once had and now have lost, ones
70

that they sense will never be recaptured or recreated. In other instances, the grief

seems more generalized, as if they are grieving for a social self, a sense of who

they once were, that they know is unlikely ever to be regained. In either case, they

have experienced a form of “social death,” and they are grief-stricken over what

has been lost or taken from them.

125. In addition, the PBSHU prisoners describe their lives in ways that

indicate that they are not just “alienated” but alien, not of this social world. Many

of them are resigned to it. They say, “I’ve gotten used to it, I can tolerate it,” but

not with a sense of bravado or triumph, rather more a sense of resignation or

defeat.

126.

(Prisoner U) who had been in PBSHU

continuously for over 20 years told me that he had grown old there and that a lot

of the feelings he once had he no longer felt. He said he mostly just stays by

himself, not even bothering to go to the yard most of the time in part because, as

he said, “There is nothing in the yard. I can’t use the pull up bar. I’m too old and

infirm.” He told me he was scheduled to get out in the coming summer and was

uncertain about how he would do. “If you put a parakeet in a cage for years and

you take it out it will die. So I stay in my cage.” Many other prisoners told me that

they too self-isolated as a way of coping with their otherwise infrequent contact

with others and deteriorating social skills. One (Prisoner Q) said “sometimes I go

for days without speaking with anybody. [It’s] less trouble.”

127.

(Prisoner V) who had come to prison

nearly 40 years ago, as a teenager, and had spent most of that time in isolation

(including about 24 years in the PBSHU—“I am one of about 70 who came when

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it opened and who are still here”), said that he has very few write-ups (115s) of

any kind at PBSHU. He told me he had received an infraction for “talking in the

library” (which he said was dismissed), one for the hunger strike that he

participated in, and another for possession of reading material that included

writing by George Jackson. He has had no visits from the outside—“you are my

first visitor,” he said—and talked about the isolation: “This place affects you

socially. You don’t know how to relate to people….”

128.

who had only one visit in his

nearly 20 consecutive years in the PBSHU told me, “You get really anxious going

anywhere—even coming here [to be interviewed]. You don’t leave the section

much, so it’s scary when you do.” It the end of his interview with me he told me

our one hour or so conversation was “the most I’ve talked in years.”

129.

(Prisoner X) who had been in the

PBSHU for nearly half his life—20 continuous years—said that during that time

he had no more than a handful of visits, and none from his family. He told me, “I

think about how scary it would be to be around people, be close to them.” He

acknowledged that although “the anger and resentment is still there, it is not as

intense as it once was.” He said, “you are so used to being back here, you adjust to

it. This is your life.” But then he said, “I wouldn’t even know how to program on

the mainline. I’m so used to it here.”

130. The social death that the PBSHU prisoners have undergone has

created a sense in many of them of what might be called “ontological

insecurity”—profound concerns about whether or not they really “exist” and have

“being” in the world. This may seem like an extreme assertion, but realize that

72

these are men whose families and friends—the persons who helped shape their

identities and to whom those identities were most closely tied before coming to

prison—not only may have not interacted with them for years (or decades) but

not even seen them, and not even heard their voices over the same time period. If

the people “closest” to you throughout your life have not seen you, and have not

heard your voice, nor you theirs, do you really exist?

131. Indeed, some PBSHU prisoners described the unsettling experience

of being escorted out of their housing pod by a counselor to get a painful

bereavement call—for years, these were only kind of phone calls they were

allowed to make or receive—only to discover that they did not know who they

were talking to, or that no one at the other end of the line could recognize their

voice or believe it was really them, it had been so many years since they had

heard each other’s voices. For those who had gone into prison and into SHU as

teenagers or very young men, their voices had changed over the course of the

decade or more that had passed since anyone in the outside world had spoken to

them. They had grown up and grown old, isolated from the world and from their

family, and they now had an older man’s voice that no one in their family could

recognize or associate with them.

132. For example,

(Prisoner V) I referred

to earlier told me: “I got a 15 minute phone call when my father died. I realized I

have family I don’t really know anymore, or even their voices. You haven’t talked

to your mother, she is like a stranger, you don’t recognize each other on [the]

phone.” He felt bad that he had not been able to grant one of his father’s last

wishes: “My dad wrote asking for a picture when he was dying. I couldn’t send

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one.” He added: “All relationships are based on reciprocity and you can’t

reciprocate in here.” He said, “This is an artificial life, it is not real in here,” and

likened the SHU to “a laboratory, like a weapons lab or a place for human

experiments.”

133. I believe that the eroding sense of existence and the fear of

complete social death among PBSHU prisoners is one of the reasons that the

issue of not only access to telephone calls but also being able to take and send

photographs is so significant to them. Photographs are a way of establishing

existence, fixing ourselves in time and space. At the same time, however, many of

these men knew that the photographs they could now share would establish

them, in a sense, as someone else. One prisoner (Prisoner O) explained that the

hunger strike-related concession of being able to take photographs was

important, but that a number of prisoners were anxious about it as well. “Guys

haven’t had photos [of themselves] for 24 years. Their families haven’t seen them

in that time. But some people don’t want to take a picture—it would shock the

family members and they are embarrassed at how they look. Your family notices

changes in you—you don’t notice. You are just trying to survive, it is what you

have to do.”

134.

(Prisoner Y) was very articulate about the

depersonalization that occurs when people are isolated from others for so long a

time. He told me: “I walk into visits—I see my mother, and I know she’s my

mother, but I haven’t touched her for years, and the feeling isn’t the same. I

haven’t hugged her, I feel distant. You feel things but they don’t last or feel as

deep or full. My grandmother died and I felt bad, but I didn’t shed a tear.” He told

74

me later in the interview: “I have brothers I haven’t seen for 22 years. I know I

have them but the feeling I have is different now. I have no real relationship to or

with them.”

135. One prisoner (Prisoner Z) observed that “just because people don’t

act broken in here doesn’t mean they aren’t.” He became emotional when I asked

him how he had managed to survive. He answered by saying: “I don’t know how I

survived. Faith, maybe. As long as you have faith there might be a chance…” and

then he began to cry. He said he had not cried for decades and that my asking

him about himself had “touched a nerve.” He told me he had not had a visit in 19

years and, of course, had been denied phone calls for the entire time he was in

PBSHU (nearly 20 years). Referring to his family he said, “As the years have gone

by, you are out of sight, out of mind.” He said his letters to loved ones had

dwindled, so that he was down to letters from his father and daughter, about once

a month. Otherwise, he has no current contact with the outside world and has not

since 1995.

136.

(Prisoner AA) who told me that he was placed

in PBSHU over 20 years ago, said that he had been kept there on the basis of an

erroneous classification as a gang member. He complained about how he had

been badly deteriorating mentally and physically over years. He said that he

“came in a strong young dude and now I am a sick old guy.” He also told me that

he was a lot more bitter than he used to be and became emotional when he told

me “I don’t trust people anymore.” He, too, acknowledged being “afraid when

people are physically close.”

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137.

(Prisoner BB) told me that he had

spent approximately 27 years in prison, including two separate terms in the

PBSHU (the last one of which has lasted for 12 continuous years). He could

remember only a single 115 that he has had—when his name appeared in what

was supposedly a gang-related letter in 2005—but he nonetheless has been

retained in SHU for more than a decade, and not yet been seen by the DRB for a

stepdown review. He acknowledged having a very difficult time in SHU: “It is

traumatic to do this much isolation. On the outside we can smile, on the inside we

hurt. Deep inside, we are in pain.”

138. This prisoner told me about a specific event that he said continues

to bother him. About two years ago, when the prisoners at the PBSHU were given

a chance to take their first photos to send home, he took one to send to his father,

who was dying. But he believes that the COs at the prison failed to mail the photo,

because his father never received it before he passed away. He said, “It would

have been the only picture he ever saw of me before he died, but he never got it.

Imagine that, my family didn’t even know what I looked like.” He said the worst

thing about being at the PBSHU is the “lack of contact with outside world… not

being able to call, lack of family affection, not being able to hug or touch people.”

139. Another prisoner (Prisoner CC) told me that he had become

“desensitized” and was losing the ability to feel. He said that when his

grandparents passed away “I had no feelings or emotions” and that “I have a hard

time telling my kids and my mother that I love them—it is so at odds with how I

live.” When I asked him to describe life in the PBSHU, he said: “Isolation,

frustration, separated from family, can’t communicate with anyone freely, even to

76

your parents—you say the wrong thing and you get a 115—getting harassed by

staff, have your cell torn up, property destroyed.” He said that when he was

arrested, his children were about a year and a half old and “I’ve seen them

through glass, growing up.”

140. One older

(Prisoner DD) who had been housed in

PBSHU off and on since it opened, and continuously since 1997, told me about

being taken out of the prison only once, to go to the hospital, and being

overwhelmed by the stimulation. He said that he could not handle the sights,

sounds and smells of the outside world, and was unable to stand on his own. He

actually became sick and vomited. He said this happened to him several times

until he got accustomed to the sensory overload. He also told me that he had not

gotten any visits for 15 or more years. He said “I get letters and pictures but no

visits for 15 years. Phone calls only when people die. I haven’t heard anyone’s

voice for years and years—since ’97. I haven’t touched them of course.”

141. An older

(Prisoner EE) who had been at

PBSHU continuously for nearly 20 years told me that on the rare occasions when

he accidentally touches someone, “it freaks me out—touch.”

142. One of the few prisoners with an actual release date (Prisoner FF)

. He had been in isolation in various

prisons for over 25 years, including two separate stints in PBSHU that amounted

to 20 years in total there. As he put it: “This place makes you anti-social. You get

used to being by yourself. You beat yourself up if you can’t get used to it. But you

draw away from people. You become content being alone, thinking about being

around people. What will it be like.” Another prisoner (Prisoner T), who had not

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had a visit or a cellmate in the 20 years he had been in prison, told me that he avoids social interaction because “that way I won’t bring my troubles to other people.” Shunning social contact he said “is a daily thing.” He also said, “It is hard to connect even with the outside world. They don’t understand the world you are living in in here.”
143. One (Prisoner E) said: “they say the mind is a terrible thing to waste. I think a mind is a terrible thing to have alone. You just have your thoughts in your head, to go over and over, and the repetition is deadening. The things we read in books, the ideas we learn, we can’t use them.”
144. Remarkably, several prisoners reported that they experienced stronger emotional connections to their televisions—responding with unexpectedly strong feelings and even tears to television dramas—than to the plight of people around them or to tragedies that befell their own families. This, too, underscores the social death to which they have been subjected. In fact, because of the extraordinary conditions under which they have been kept for the last decade or more, these prisoners do actually have more meaningful “interaction” and “social engagement” with their television sets and the fictional characters displayed on them—however vicarious and virtual and “unreal”—than with other actual human beings (with whom their contact is sporadic, superficial, and constrained, under the very limited circumstances when it can take place at all).
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B. Comparisons to the Pelican Bay General Population
145. During the week of December 15, 2014, I was able to conduct a series of confidential, structured interviews with a random sample of twenty five (25) mainline prisoners who had been incarcerated for at least ten (10) continuous years and who were presently housed in the Pelican Bay general population (PBGP”) Level IV housing facility. They were selected on that basis to be as comparable as possible to the PBSHU prisoners whom I interviewed except that, instead of being housed now and for the last ten years in the PBSHU, they spent at least the last ten years in prison in CDCR and are currently housed in PBGP.
146. It is important to note that are several ways in which a comparison of these prisoners with the Plaintiff class members represents a very stringent test of the effects of long-term PBSHU confinement. For one, the conditions of confinement in the PBGP are themselves truly severe, roughly equivalent to the kind of harsh conditions that exist in some isolation units in other prison systems. For example, all PBGP prisoners are “cell fed” (i.e., they eat all of their meals in their cells rather than in the dining hall), and total amount of “out-ofcell time” afforded the typical PBGP prisoner (virtually all of whom are doublecelled) consists of between no more than about 6 hours of yard, an hour of “dayroom” every third day, and possibly a “job” (for those rare prisoners who have one). The jobs that were described to me ranged from working in the kitchen (which requires prisoners to be on the job most days from 4 AM to 9 AM), being a tier tender (which can mean as little as a half hour a day out-of-cell
79

time), and working as a barber (which consists a few hours one day a week). A very few PBGP prisoners also described having had the opportunity to take a computer class, which apparently met as a group, in a classroom, for several hours a week. But everyone said this was limited to a very small number of prisoners and that there was a long waiting list to get in.
147. Thus, PBGP prisoners are confined to their cells in their “general population” housing units almost as much as prisoners in the PBSHU, and far more than in most maximum security prisons. The main differences between them and SHU prisoners pertain to several limited but not necessarily unimportant social dimensions. That is, virtually all of the GP prisoners are double celled, they exercise in a group setting in an actual outside prison yard, have access to an evening “day room” time when they can congregate with others outside their cells for an hour several evenings a week, are eligible for some of the scarce jobs available at the facility and for some classes taught in an actual classroom setting, and they are permitted to have contact visits in the prison visiting room. Of course, the GP facility is as geographically remote a location as the SHU, so these prisoners too tend to have relatively few visits.
148. In fact, for PBGP prisoners who do not have a job and are not enrolled in a class—by far the great majority of GP prisoners at Pelican Bay (including the substantial majority of prisoners in my sample)—the main differences in terms of social interaction between them and PBSHU prisoners are relatively modest in number—essentially having cellmates, face-to-face contact with others on the yard and in evening dayroom, access to the telephone, and contact visits. It turns out, however, that these things are quite important
80

(especially in comparison to the long-term plight of prisoners who have none of them).
149. An additional factor that adds to the stringency of this comparison is that many PBGP prisoners have spent long periods (some, years) confined in one or another CDCR isolation unit, before coming to the mainline prison at Pelican Bay. For some of them, this included having spent time in the PBSHU. Many of PBGP prisoners I interviewed acknowledged the lasting aftereffects of their time in isolation, attributing at least some of their current problems and symptoms to the time they spent in SHU. Although they talked about struggling to overcome these effects once released from isolation, they acknowledged varying degrees of success in doing so. The effects of isolation certainly do not immediately disappear; even GP prisoners were in SHU for “only” a year or two, the discomfort they feel around others is something that can interfere with their current social relations and leave them “lonely” in ways that can approximate the feelings of those still in SHU.
150. Indeed, the PBGP prisoners overall were not at all reticent about voicing their displeasure about their current conditions of confinement. Some complained vehemently. A number of them volunteered that the PBGP was by far “the worst” Level IV prison they had ever been in (and some emphasized that they had been in a number of other Level IV prisons in the CDCR).
151. In short, these prisoners were suffering and in distress. Yet there was absolutely no comparison to the level of suffering and distress reported by the PBSHU prisoners. On nearly every single specific dimension I measured, the
81

PBSHU sample was in significantly more pain, were more traumatized and stressed, and manifested more isolation-related pathological reactions.
152. There are several ways in which these differences can be described and illustrated. The first is a direct comparison between the two groups in terms of whether or not they were experiencing a particular symptom (irrespective of the symptom’s frequency or intensity). Here, of the 25 specific symptoms, the currently isolated PBSHU prisoners were significantly more likely to report experiencing 18 of them, including 11 of the 13 symptoms of isolation-related pathology. These differences are depicted in Table 4 below.

Table 4:

PREVALENCE OF PSYCHOLOGICAL SYMPTOMS AMONG REPRESENTATIVE SAMPLES OF PBSHU vs. PBGP PRISONERS

Symptoms of Psychological and Emotional Trauma

SHU GP Chi Square p value

Anxiety, Nervousness Headaches Lethargy, Chronic Tiredness Trouble Sleeping Impending Breakdown Perspiring Hands Heart Palpitations Loss of Appetite Dizziness Nightmares Hands Trembling Tingling Sensation* Fainting

83% 71% 90% 81% 63% 51% 68% 30% 76% 30% 42% 20% 2%

[48%] [64%] [60%] [60%] [ 4%] [32%] [32%] [12%] [32%] [17%] [12%] [12%] [ 4%]

8.97 .324 8,5 3.29 22.7 2.3 8.25 2.8 12.2 1.42 6.83 .63 .13

.003 ns .004 .07 <.001 ns .004 .09 <.001 ns .01 ns ns

PBSHU: N=41, PBGP: N=25

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Psychopathological Effects of Prolonged Isolation

SHU GP Chi Square p value

Ruminations Irrational Anger Oversensitivity to Stimuli Confused Thinking Social Withdrawal Chronic Depression Emotional Flatness Mood Swings Overall Deterioration Talking to Self** Violent Fantasies Perceptual Distortions Hallucinations Suicidal Thoughts

83% 88% 90% 98% 88% 73% 78% 68% 83% 66% 37% 20% 37% 2%

[56%] [48%] [44%] [40%] [44%] [48%] [36%] [32%] [44%] [20%] [20%] [0%] [12%] [0%]

5.7 12.4 16.7 28.0 14.5 4.6 11.7 8.3 10.9 13.1 2.0 5.6
4.7 .62

.017 <.001 <.001 <.001 <.001
.04 .001 .004 .001 <.001 ns .018 .03 ns

PBSHU: N=41 PBGP: N=25

*Not necessarily a symptom of psychological stress or trauma. Included as a “control question” to provide a baseline against which to measure the significance of the trauma-related responses.
** An adaptation to isolation but not necessarily a pathological isolation-related symptom.

153. These differences are striking, in part because they so clearly distinguish the psychological state of prisoners housed on a long-term basis in the PBSHU versus those housed in an otherwise harsh PBGP mainline prison environment (but one that nonetheless provides a modicum of social interaction and contact). As I noted, Table 4 indicates that, overall, on 25 specific indices of stress and trauma, and isolation-related psychopathology, the PBSHU group suffered significantly higher prevalence on eighteen (18) of them. As might be expected—given the immediately stressful nature of the mainline PBGP prison environment—the symptoms on which there were no differences between the groups pertained primarily to those that were stress- and trauma-related. However, the SHU prisoners were significantly more likely to suffer fully 11 0f the
83

13 isolation-related symptoms. In fact, the only two specific isolation-related symptoms on which there were no significant differences between the groups were those with very low prevalence rates overall (violent fantasies and reported suicidality).
154. In addition to the comparisons between the two groups on each specific symptom, I calculated the overall mean number of symptoms reported by the PBSHU prisoners versus those in the PBGP—an omnibus number of symptoms each group reported experiencing—as well as calculating the differences between the groups by breaking out the stress and trauma-related symptoms and then, separately, the symptoms specifically associated with the experience of isolation.
155. The PBSHU prisoners reported significantly more symptoms overall (M=15.30 vs. 7.75, t=6.44, df=62, p<.001, Cohen's D = 1.65), including significantly more stress and trauma related symptoms (M=6.88 vs. 3.58, t=5.36, , df=62, p<.001, Cohen's D = 1.36), and significantly more isolation-related indices of pathology (M=8.44 vs. 4.24, t=6.63, , df=64, p<.001, Cohen's D = 1.66). In addition to the highly statistically significant nature of these differences, the orders of magnitude are quite large—nearly twice as many symptoms overall as well as for the two separate categories of symptoms suffered by PBSHU prisoners as opposed to those in GP.
156. A visual illustration of the differences between the two groups in terms of the mean number of symptoms reported (separating stress-related from those specifically associated with isolation) is shown in Figure 1 below.
84

158. As Table 5 depicts, the PBSHU prisoners not only experienced more symptoms but also experienced them on average with much greater intensely.

Table 5:

INTENSITY OF PSYCHOLOGICAL SYMPTOMS AMONG

REPRESENTATIVE SAMPLES OF PBSHU vs. PBGP PRISONERS

Symptoms of Psychological and Emotional Trauma

SHU GP t test

Anxiety, Nervousness Headaches Lethargy, Chronic Tiredness Trouble Sleeping Impending Breakdown Perspiring Hands Heart Palpitations Loss of Appetite Dizziness Nightmares Hands Trembling Tingling Sensation* Fainting

2.49 1.24 1.88 1.32 2.59 1.44 2.46 1.52 1.49 .04 1.32 .68 1.71 .72 .54 .20 1.61 .44 .54 .21 .95 .20 .27 .24 .05 .04

3.61 1.59 3.68 2.46 7.17 2.04 3.06 1.85 5.08 1.88 3.4 .167 .126

df^

p value

64 64 64 64 43.21^ 59.69^ 64 63.76^ 63.99^ 62.97^ 61.34^ 64 64

.001 ns <.001 .017 <.001 .045 .003 .068 <.001 .064 .001
ns ns

PBSHU: N=41, PBGP: N=25

Psychopathological Effects of Prolonged Isolation

SHU GP t test df^

p value

Ruminations Irrational Anger Oversensitivity to Stimuli Confused Thinking Social Withdrawal Chronic Depression Emotional Flatness Mood Swings Overall Deterioration Talking to Self** Violent Fantasies Perceptual Distortions Hallucinations Suicidal Thoughts

2.39 1.04 4.37 2.37 1.08 4.24 2.61 1.16 4.37 2.73 1.04 5.69 2.24 1.08 3.59 1.80 .84 3.36 1.93 .64 4.52 1.66 .56 3.96 2.12 1.00 3.89 1.34 .40 3.81 .90 .32 2.29 .27 .00 2.90 .61 .24 1.84 .02 .00 .778

64 64 40.26^ 32.75^ 42.04^ 64 64 62.99^ 64 60.59^ 63.76^ 40.00^ 58.77^ 64

<.001 <.001 <.001 <.001
.001 .001 <.001 <.001 <.001 <.001 .026 .006 .071 ns

PBSHU: N=41 PBGP: N=25

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*Not necessarily a symptom of psychological trauma. Included as a “control question” to provide a baseline against which to measure the significance of the trauma-related responses. ** An adaptation to isolation but not necessarily a pathological isolation-related symptom. ^ For symptom questions where there were unequal variances between the SHU and GP groups, unequal variances t-tests were performed, and adjusted degrees of freedom were used for these comparisons.
159. With the exception of headaches (which were reported at reasonably high levels of intensity for both groups), the only symptoms on which there were not significant difference between the SHU and GP prisoners pertained almost exclusively to symptoms that were reported very infrequently by both groups (e.g., fainting, suicidality).
160. The representative sample of prisoners confined in isolation in the PBSHU for 10 years or more reported suffering much greater stress- and traumarelated symptom intensity (M=17.7 vs. 7.79, t=5.7, df=62, p<.001, Cohen's D = 1.53), and much greater intensity of isolation-related pathology (M=21.66 vs. 9.00, t=7.46, df=64, p<.001, Cohen's D = 1.91). For these measures, the mean intensities of the reported symptoms were not only significantly different between the groups but were nearly or more than double for the PBSHU prisoners compared to those prisoners housed in GP.
161. These overall differences are illustrated in Figure 2 below.
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estimated total amount of prison time served so far, and finally adding in the interviewee’s SHU status (SHU or GP) variable. This allows for a determination of the proportion of variance in the dependent measure that is explained by each stage, with a final determination of the additional explanatory power that SHU status provides above and beyond the demographics and other variables.
163. Stage 1 of the regression (using age and dummy-coded marital status as predictors) explained 13% of the variance in intensity of isolation symptoms. Here, age was positively correlated with isolation symptom intensity, but marital status did not add additional power to the model. Next, at stage 2, whether the interviewee was serving a life sentence was added along with the estimated total prison time variable. Here, the model was significantly improved, with an additional 6% of the variance in isolation symptom intensity explained, (adj. R2 = .186, F-change[2,64] = 3.272, p = .044). After adding these two variables, age was no longer a significant predictor of isolation symptom intensity. Total prison time did not matter either. The only significant predictor of isolation symptom intensity after stage 2 was whether the interviewee had a life sentence, such that participants with a life sentence reported suffering more isolation symptom intensity than those without (t = 2.42, p = .018).
164. Lastly, in stage 3, the interviewees’ SHU status was taken into account. It had an extremely large effect, increasing the percentage of variance explained by the model from 18% to 40% (adj. R2 = .403, F-change[1,63] = 24.287, p < .001). In the final model, SHU status was by far the largest contributor to the intensity of isolation-related symptoms suffered, even when controlling for age, marital status, and estimated total time in prison.
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165. In summary, beyond the very significant differences in prevalence rates between these two groups (i.e., the rates at which they report experiencing the individual symptoms or not), the differences between them in symptom intensity are even more striking. Not only do the long-term SHU prisoners experience many more symptoms of psychological stress and trauma and indices of isolation-related pathology than the GP prisoners, but the level or degree of their suffering on these dimensions of psychological pain is far greater.
C. Pathological Levels of Loneliness 166. As I pointed out above, in my discussion of the April, 2013
interviews that I conducted with the seven prisoners whom I originally had interviewed in 1993, “adapting” to long-term PBSHU isolation required prisoners to live for years in the absence of any meaningful social contact. In many instances, the psychological accommodations they were forced to make to the harsh and painful reality of the social deprivation in SHU left prisoners with the feeling that they were losing (or had lost) the capacity to interact with others. Like all skills, this one, too, can atrophy from a lack of use.
167. The same was true for the larger group of long-term isolated PBSHU prisoners whom I interviewed in January and December, 2014. They also reported becoming uncomfortable and anxiety-ridden in the presence of others, especially in circumstances where they were expected to genuinely “interact.” For some prisoners, the absence of others, and their increasing discomfort in even minimally social situations, meant that they sought to avoid it, engaging in a form of “self isolation” in response to the already pathological levels of social isolation to which they were subjected.
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168. However, even those prisoners who “self isolated” appeared to still
acutely feel—and be pained by—the absence of others in their lives. They seemed,
in short, to be profoundly lonely, and to continue to be distressed by their
loneliness. Over the last several decades, a great deal of psychological research
has been devoted to measuring the effects of social isolation and the subjective
experience of “loneliness” in a wide range of settings and for people from many
different walks of life. We now know that social isolation and loneliness are
significantly related to a host of negative psychological and physical outcomes,
including a decline in cognitive functioning, poor executive functioning,
increased negativity and depression, a heightened sensitivity to social threats,
and even increased morbidity and mortality.77 It is also a subjectively painful
experience.
169. To measure and compare the level of loneliness within the samples
of PBSHU and PBGP prisoners that I interviewed in January and December,
2014, I administered the Revised UCLA Loneliness Scale,78 a 20 item measure
that is generally regarded as “the standard measure of loneliness” used by social
77 For example, in addition to the references cited supra at note 17, see also: John Cacioppo & Louise Hawkley, Perceived Social Isolation and Cognition, Trends in Cognitive Science, 13, 447454 (2009); John Cacioppo, Louise Hawkley, & Gary Bernston, The Anatomy of Loneliness, Current Directions in Psychological Science, 12, 71-74 (2003); Louise Hawkley & John Cacioppo, Loneliness matters: A Theoretical and Empirical Review of Consequences and Mechanisms, Annals of Behavioral Medicine, 40, 218-240 (2010); Mary Hughes, Linda Waite, Louise Hawkley, & John Cacioppo, Measuring Loneliness in Large Surveys: Results From Two Population-Based Studies, Research on Aging, 26, 655-672 (2004); Greg Norman, Louise Hawkley, Aaron Ball, Gary Berntson, & John Cacioppo, Perceived Social Isolation Moderates the Relationship Between Early Childhood Trauma and Pulse Pressure in Older Adults, International Journal of Psychophysiology, 88, 334-338 (2012). 78 Dan Russell, Letitia Peplau, & Carolyn Cutrona, The Revised UCLA Loneliness Scale: Concurrent and Discriminant Validity Evidence, Journal of Personality and Social Psychology, 39, 472-480 (1980).
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scientists.79 Respondents select one of four possible responses (always, often, rarely, never) to each of twenty (20) separate items that ask about different but related aspects of their perceived loneliness. A respondent’s loneliness score is represented by the appropriately weighted sum of their answers to the entire set of twenty questions.80
170. The mean UCLA Loneliness Scale score for the representative sample of long-term PBSHU prisoners I interviewed was 54.9, more than 10 points above the cutoff point that scale developers consider indicative of “high loneliness.” In contrast, the PBGP prisoners averaged 41.6 overall on the scale, clearly at the higher end of the distribution of scores reported in the literature, but not reaching the “high loneliness” cutoff score (of 44) and not remotely as lonely as the long-term PBSHU prisoners.
171. The differences between the two groups—the sample of PBSHU prisoners versus the PBGP group—on their UCLA Loneliness scores is highly statistically significant, t= 4.64, df=64 , p<.001, Cohen's D = 1.15. That difference is graphically depicted below in Figure 3.
79 Hughes, et al., supra note 77, at p. 657. 80 Items are appropriately counterbalanced so that, for some, “always” indicates frequent loneliness and for others it indicates the opposite, and so on.
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social contact and to participate in some semblance of normal social interaction (that includes phone calls and contact visiting)—the PBGP prisoners have not been forced to adopt the extreme survival strategies that the more profoundly isolated long-term PBSHU prisoners had. That is, despite their limited opportunities for interaction, they were virtually unanimous in expressing their desire to participate in the admittedly limited social contacts they were afforded in GP. If anything, they told me that they sought more of them. Thus, they all said they took yard, even though it was often cold and rainy outside, all went to dayroom, even though there was not much to do there, said they used the phone as much as permitted (and their family’s finances would allow), and told me they wished they could have even more contact visits.
173. In contrast, as I have noted, the PBSHU prisoners have been afforded none of these opportunities, however limited they may be. Instead, they have had to devise a set of psychologically very problematic survival strategies to exist for a decade or more within conditions of virtually complete isolation. As it turns out, attempting to survive for this long, under conditions of isolation this extreme, produces pathological levels of loneliness.
174. The degree of loneliness experienced by the PBSHU prisoners is clearly extraordinary. In fact, a literature search of the extensive number of published studies on measured levels of loneliness suggests that the SHU prisoners are among the loneliest groups ever assessed. Their mean scores are comparable to, and in most instances even more extreme than, those of groups of
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elderly nursing home patients and elderly persons institutionalized for chronic,
life-threatening illness.81
175. As I pointed out earlier, such extremely high levels of loneliness
place persons at risk of a host of serious negative psychological and physical
outcomes. In addition to these heightened loneliness-related risks to physical and
psychological well-being, the subjective experience of loneliness is itself
extremely painful. Indeed, two prominent researchers in this area have described
loneliness as “a strong sense of social pain, emptiness, isolation, sadness for lack
confidants, unimportance and worthlessness.”82
176. This brief quote provides an excellent short summary of much of
what my qualitative interview data and the more structured symptom
assessments clearly and consistently indicate. The decade or more of PBSHU
isolation has imposed a painful form of social death on these men, manifested in
part in the pathological levels of loneliness from which they now suffer, as well as
the concomitant deep sense of social pain, emptiness, and worthlessness that
they experience and report.
81 For example, see: Fessman, N., & Lester, D. (2000). Loneliness and Depression Among Elderly Nursing Home Patients. The International Journal of Aging & Human Development, 51, 137-141 (2000); Grov, C., Golub, S., Parsons, J., Brennan, M., & Karpiak, S., Loneliness and HIV-Related Stigma Explain Depression Among Older HIV-Positive Adults, AIDS Care: Psychological and Socio-medical Aspects of AIDS/HIV, 22, 630-639 (2010); Şahin, Z., & Tan, M., Loneliness, Depression, and Social Support of Patients with Cancer and Their Caregiver. Clinical Journal of Oncology Nursing, 16, 145-149 (2012); Sun, Y., Sun, L., Wu, H., Zhang, Z., Wang, B., YU, C., & Cao, H. (2009). Loneliness, Social Support and Family Function of People Living With HIV/AIDS in Anhui Rural Area, China. International Journal of STD & AIDS, 20, 255-258 (2009); Theeke, L., Goins, R., Moore, J., & Campbell, H. (2012). Loneliness, Depression, Social Support, and Quality of Life in Older Chronically Ill Appalachians. The Journal of Psychology: Interdisciplinary and Applied, 146, 155-171 (2012).
82 John Cacioppo & Stephanie Cacioppo, The Phenotype of Loneliness, European Journal of Developmental Psychology, 9, 446-452 (2012), at p. 2 [citing R. Weiss, Loneliness: The Experience of Emotional and Social Isolation. Cambridge, MA: MIT Press (1973).
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D. Absence of Outlets or Viable Sources of Professional Support 177. As I have observed at length above, the extreme social isolation and
social exclusion to which the PBSHU prisoners have been subjected, the very high levels of suffering and pathology that they continue to experience, and the almost unprecedented degrees of loneliness they now suffer are based on the extraordinary social deprivation that characterizes the SHU environment. The prisoners have been effectively prevented from having any meaningful social contact with others and, as a result, effectively precluded from developing or maintaining truly meaningful social relationships or social connections, either inside or outside the prison. In the case of the Plaintiff class members, they have been kept in this painful and damaging state for a decade or more. With those harsh facts as a backdrop, I was struck by the fact that the overwhelming majority of these men had literally no outlets through which to express or discuss their feelings, and literally no one with whom they could acknowledge or share their pain and suffering.
178. Of course, this included the correctional staff, who were uniformly regarded by the SHU prisoners as entirely “off limits” in terms of sharing feelings or admitting weakness. That was not surprising and, in itself, did not distinguish the PBSHU from virtually all of the other maximum security prison that I have studied. After more than four decades studying the dynamics of prison life, including countless conversations with correctional officers and observations made in correctional facilities throughout the country, I can unequivocally say that the dividing line between staff and inmates is nearly universally unbridgeable, in both directions. The reprisals prisoners face for crossing it rival
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or exceed the repercussions that are brought to bear on correctional officers if they are perceived by their peers as becoming too close, friendly, or caring toward prisoners. The dividing line at the PBSHU may be more inviolate than at most places, given the hardened views that both groups there have of each other, but it is in place elsewhere as well.
179. However, this unbridgeable barrier also nearly universally exists between the prisoners and the mental health staff at the PBSHU. In fact, I made a point of asking prisoners about whether they would approach mental health staff, who are supposed to come into the units on a regular basis to conduct “rounds” and monitor the mental health condition of the prisoners.83 When I asked the interviewees whether they would talk to “the psychs,” especially if they had a serious psychological problem or concern, prisoner after prisoner rejected this option out of hand. Many could not have been more vehement in expressing their disdain and mistrust, stating as well that few if any of the prisoners on their tier would ever talk in a meaningful or heartfelt way with the psychology staff.
180. Prisoners gave several kinds of reasons as the basis for their unwillingness to reach out to the mental health staff for help with their emotional problems. Many expressed doubts about whether there was any genuine caring and commitment on the part of the mental health staff members themselves, whom they described as typically engaging in no more than very brief, pro-forma walk-throughs in the units, doing no more than asking “how are you” as they quickly passed by, but really not expecting (and virtually never getting) a
83 Prisoners said that the rounds are supposed to occur on a weekly basis but that they were typically more infrequent. They all acknowledged that they do, in fact, occur.
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meaningful reply. As one of the prisoners (Prisoner S) told me: “I would not talk

to the psych staff. They are not here to help you. They are here to move the

process along, [to] look like they are trying. They don’t even say your name.

Everybody I know shines them on.” Another prisoner (Prisoner O) said, “nobody

talks to them. We know they won’t do anything for you. It’s not in their interest to

tell the truth. They go through and ask ‘are you feeling OK?’ How am I supposed

to know?… I’ve seen people lose it in here [and] they still don’t talk to the

psychs.”

181.

(Prisoner HH) concurred, saying “if I

was having psychological problems, the psych who just walk by your cell, how

would I even know to tell someone? I can’t connect to them, I wouldn’t go to

them. They just say ‘psych services’ and that’s it. They never call us out, like this

[a confidential, one-on-one interview], where they really engage.”

182.

(Prisoner II)

told me he had spent approximately 17 years continuously in the PBSHU. His

prior experience with isolation was extremely problematic. He said: “I got

paroled out of solitary

directly out of solitary. It was impossible to

describe how hard it was. I was suffering the consequences of being tortured. I

had a nervous breakdown.” He said that he continued to be affected by isolation

and that he had developed an “anxiety disorder,” for which he actually sought

psychiatric help in the PBSHU. He said that he was formally diagnosed with an

anxiety disorder, but that he had a letter from Dr. Sayer at the prison “saying he

can’t help, to breath into a paper bag when I have anxiety.” This prisoner went on

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to say, “the psychs are a joke. They spend a few minutes in each unit. They just

walk through fast, just superficially.”

183. A number of other prisoners said that they feared that anything

they said to the mental health staff—even the mere fact that they had talked to the

psychs, something that is inevitable given the physical arrangements and

procedural practices in the PBSHU units—would be used against them. Of course,

they were reluctant to have other prisoners know that they were having mental

health problems; this, too, is a widespread concern in prisons everywhere, where

strong disincentives exist for prisoners to admit weakness of any kind. One

prisoner (Prisoner JJ) summed this up when he told me that although people do

“lose it back here,” he would never consult the mental health staff. They “change

all the time” and, also, he said “you don’t want people listening to what your

problems are—so nobody talks to [the MH staff] or even acknowledges them.”

184. However, a number of the PBSHU interviewees expressed

additional concerns over sharing information about their mental health with the

staff. One prisoner (Prisoner KK) who was adamant about the distrust of the

mental health staff explained it this way. He said: “I would never go to the psychs.

They are the same as COs. I’ve seen it happen—prisoner goes to psych, psych tells

COs, and they [the COs] hassle him.”

185.

(Prisoner LL), who had spent

approximately 13 continuous years in the PBSHU, said much the same thing. He

told me that although he has done a lot of programs “to improve myself,” on his

own, people in the PBSHU are “withering away” there. And, he said, “there is

nobody to seek out here for help,” and that included the mental health staff. He

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said, “it goes without saying that we have trust issues with them, and its not really

confidential, plus we get stigmatized and shamed” by talking to the mental health

staff. Similarly, another prisoner (Prisoner MM) told me, “I doctor myself. The

mental health staff here will use what you say against you rather than help you.”

186. One prisoner (Prisoner D) noted that those few prisoners who do

see the mental health staff risk being subjected to ridicule, even by correctional

officers. He said, “For guys who are on the [mental health] list, the guard says,

‘hey, you want to go see the looney doctor?” Another prisoner (Prisoner NN)

added a somewhat different but related concern: “the psychs aren’t really

interested. [They] go through the motions. I’ve seen how they treat people who

are having issues, they don’t do anything for them.” On the other hand, he said,

contact with them comes at a price: “If a CO makes a referral—often to hassle the

prisoner—then the psychs take it seriously. [The COs] are making it look like you

are losing it [as] a way of punishing you. [It] makes you look crazy and it will lead

to your being ostracized.”

187. In addition to the generalized distrust and concerns over appearing

weak to COs as well as to other prisoners, a number of prisoners I interviewed

had stories about actually seeking help at an earlier time during their stay in the

PBSHU, only to be ignored, manipulated, or mistreated in the process. For

example,

(Prisoner OO) said that he had seen a

mental health staff member when he first came to PBSHU about 14 years ago and

was told that if he was not going to debrief he should not bother coming back. So

he never returned. But he said he learned that: “the psychs who go through the

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units each week just breeze through. Nobody trusts the psychs in here. They don’t want to help you. They work for and help the prison.”
188. One prisoner (Prisoner P) who had been in the PBSHU for more than two decades also said that he actually did go see the mental health staff in the 1990s but “they just wrote it down, didn’t help—they brush you off, that’s what I learned.” He also said, in terms that I heard voiced again and again, that “there are guys who lose it back here. The psychs come by, just pass by, every couple weeks they come in, [say] ‘psych’—they look in, don’t seem to care. I wouldn’t trust them if I had a problem.”
189. Of course, I have no way of knowing how dedicated and caring the mental health staff actually is at the PBSHU, and am not directly or indirectly commenting on the quality of care they are capable of offering prisoners. Given the level of distrust that seems to permeate these units, however, those things seem irrelevant. I do think that these comments, the fact that they are so widely held and vehemently expressed, help to explain why many of the underlying psychological problems that I have documented are so infrequently observed by and reported on by the prison’s mental health staff. Not only do they see prisoners under conditions that simply do not lend themselves to meaningful psychological assessments or allow for meaningful judgments to be made about levels of (or changes in) psychological functioning, but there is such nearly universal distrust of the staff members that it is inconceivable that any significant number of prisoners would come forward to candidly discuss what they were feeling. The staff simply does not meaningfully and proactively seek out the information and the prisoners are not going to volunteer it.
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190. And that fact leads to a conclusion that is perhaps even more

striking and problematic. It is that the Plaintiff class members are left with

absolutely no one with whom they can regularly turn for help with their

emotional problems, suffering, or psychological pain. They are, for virtually all

intents and purposes, living completely alone, and they have been living this way

for a decade or more.

VII.

Conclusion: Long-Term PBSHU Confinement Cruelly Inflicts Extreme Psychological Pain and Lasting Damage on Prisoners That Derive In Large Part From the Experience of Social Death To Which It Subjects Them.

As I have described in detail above, there is a robust scientific literature

that establishes the adverse psychological effects of solitary or isolated

confinement and the severe risk of harm to which prisoners in such units are

exposed. The risk of harm exists whether or not isolated prisoners are “double

celled” and it applies even to those prisoners who enter solitary confinement

units without any pre-existing psychiatric disorders. Isolated prisoners are placed

at risk of extremely serious and sometimes irreversible harm, including loss of

psychological stability, impaired mental functioning, self mutilation, and even

death. These empirical findings are theoretically coherent and sound, and are

directly related to a much larger literature on the extremely harmful effects of

social isolation and social exclusion, which we now know are inimical to

psychological well-being and physical health.

191. Based on the documents that I have reviewed and the interviews I

have conducted, as well as my prior knowledge of conditions, practices, and

procedures at the PBSHU, I believe that prisoners in this facility continue to be

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subjected to precisely the kind of treatment that the scientific literature indicates places them at serious risk of harm.
192. However, in this case, the harm is neither speculative nor a calculable “risk.” It is instead very palpable and real. The kind of near-total, longterm isolated confinement to which these prisoners have been subjected has produced changes in them that are in many ways qualitatively different from and more dangerous than the ones that take place during shorter-term solitary confinement. It has forced these prisoners to truly become—not just to more briefly endure being—asocial and alone. Prisoners in the PBSHU have been subjected to a form of “social death” that has undermined and even destroyed their relationships with others, and damaged their ability to function as social beings. Their identities have been transformed, and their personalities changed. These transformations and changes have occurred over a long period of time, and they have incurred significant amounts of pain and suffering along the way.
193. What is of special concern is not only that these prisoners have not “gotten used to it,” and are still suffering. It is that they are suffering in a way that is different from and much worse than the acutely traumatized prisoners who were housed in the PBSHU in the pre-Madrid days. The difference is that they have endured these harsh and painful conditions for more than a decade—in some instances for several decades—and they are still not only in pain but also transformed and profoundly lessened by the experience. The passage of time has not ameliorated or desensitized them to the pain they are experiencing but, if anything, has deepened the sense of loss and the realization that can never fully recover much of what has been taken from them. In a very real and fundamental
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way, they have undergone a transformation in their personalities as a result of the conditions of isolated confinement and social exclusion to which they have been subjected. At a basic level, they are no longer people who can comfortably and normally interact with, relate to, or care about other human beings. As I stated earlier, these experiences have adversely and fundamentally changed these men’s relationships to others and to themselves. It is hard to imagine a more basic transformation in “who” someone truly “is” than that. And it is the terrible combination of the sheer totality of the isolation and the sheer duration of the experience that has produced it.
194. Based on my knowledge and study of the human condition, I believe that meaningful social contact represents a basic human need. Its deprivation is not only painful but, depending on the length of the deprivation and the reasons for its imposition, is needlessly cruel and so harmful as to irreparably damage many of the persons who are subjected to it. Prolonged isolation changes people in negative ways that many persons are unlikely to be able to remedy or correct. It literally transforms who they are, how they function in the world, and the way relate to themselves and to others. It undermines who they are and what they are able to become.
195. The combination of the totality of the data that I have collected and discussed in the preceding paragraphs, and the related review of the literature on the consequences of the extreme form of isolated confinement that has been imposed on Plaintiff class members at the PBSHU indicate that the CDCR has pursued a policy of prolonged cruelty, one imposed with little or no evidence to suggest that it was likely to be effective in producing positive changes in
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EXHIBIT 2

Exhibit 2: A Statement of Compensation and Cases Testified in as an Expert at Trial or by Deposition in the Last Four Years. I am charging $175 per hour plus all expenses for my work on this expert report, and $200 per hour plus all expenses for testimony at trial.”
Trial/Hearing Testimony: United States v. Lujan (2011) State v. Topete (2011) United States v. Richardson (2012) State v. Gatica (2012) United States v. Northington (2013) United States v. McCluskey (2013) Coleman v. Brown (2013) United States v. Williams (2014)
Deposition Testimony: Coleman v. Brown (2013) Mitchell v. Cate (2013) Conley v. City and County of San Francisco (2013) Sardakowski v. Clements (2013) Parsons v. Ryan (2014) State v. Carreon (2014)

EXHIBIT 3

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

TODD ASHKER, et al., Plaintiffs,
v.
GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,
Defendants.

Case No.: 4:09-cv-05796-CW CLASS ACTION
Judge: Honorable Claudia Wilken

EXPERT REPORT OF TERRY A. KUPERS, M.D., M.S.P.

I. Assignment........................................................................................................... 2 II. Executive Summary.............................................................................................. 2 III. Qualifications ........................................................................................................ 5 IV. Litigation Experience ............................................................................................ 6 V. Compensation ...................................................................................................... 8 VI. Preparation ........................................................................................................... 8 VII. Research and Literature ....................................................................................... 9 VIII. Findings .............................................................................................................. 16
A. The Facility.................................................................................................... 16 B. Prisoners Who Were in SHU at the Time of My Interviews. .......................... 22
1. These prisoners suffered symptoms consistent with those identified in the literature............................................................................................. 22
2. Description: Prisoners’ reports of symptoms identified in the literature.... 26 3. More than a decade in SHU results in additional symptoms that go
beyond those identified in the literature. .................................................. 34 4. Description: Prisoners’ reports of additional symptoms of self-isolation,
emotional numbing and enlarged despair. ............................................... 38 C. Prisoners Who Were Released from PB SHU............................................... 42
1. These interviews reveal a SHU Post-Release Syndrome. ....................... 42 2. Description: Reports of former PB SHU prisoners released to other
prison settings.......................................................................................... 46 3. Description: Reports of former PB SHU prisoners now in the
community. .............................................................................................. 53 IX. Opinions ............................................................................................................. 62
A. Harm Caused by SHU Confinement ............................................................. 62 B. Additional Harm Caused by a Decade or More of SHU Confinement ........... 62 C. Harm That Surfaces After Release from SHU............................................... 63 D. The Link Between Reported Symptoms and SHU Confinement ................... 64 E. Representativeness of the Prisoners ............................................................ 65 F. Perceived Fairness ....................................................................................... 69 X. Conclusion.......................................................................................................... 71

EXPERT REPORT OF TERRY A. KUPERS

1
C.A. NO. 4:09-cv-05796-CW

I. Assignment I am a board-certified psychiatrist. The plaintiffs have retained me to interview
named plaintiffs and other prisoners, and to investigate the psychological effects of spending a decade or more in the Security Housing Unit at Pelican Bay State Prison for the purpose of testifying at trial.

II. Executive Summary Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), established, among other
things, that keeping prisoners with serious mental illness in the harsh isolative conditions at the Pelican Bay State Prison Security Housing Unit (PB SHU or SHU) would be cruel and unusual punishment. In that case, a number of experts, I among them, examined prisoners who had been in the Pelican Bay SHU for two or three years. Since the facility had opened in 1989, and the investigations for the Madrid litigation occurred in the early 1990s, the experts did not at that time investigate the effects of more prolonged confinement at the SHU.
In this case, I have been asked to help determine the harm, if any, that results from keeping prisoners in isolative confinement at PB SHU for over ten years. To determine this, I interviewed 24 prisoners or ex-prisoners who spent ten or more years at the Pelican Bay SHU. These prisoners fall into three subgroups:
• Prisoners who were still at the PB SHU when I conducted interviews in 2013 and 2014;
• Prisoners who were at the PB SHU for ten years or more but in recent years have been transferred out, mostly back to general population on Step 5 of the “Step Down Program,” the modified housing units that permit prisoners to take part in incrementally more productive and congregate activities as they spend more time in the program and demonstrate appropriate behavior;1
• Former PB SHU prisoners who have been released to the community. I interviewed 11 prisoners from the first subgroup, ten of whom are named
plaintiffs in the current matter. These prisoners suffered from very many of the

1 See Regulations concerning Security Threat Groups, effective October 17, 2014, and Title 15, section 3378, regarding the step down program.

EXPERT REPORT OF TERRY A. KUPERS

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symptoms that are well known in the literature to be caused by isolative confinement. They reported to me a significant number of symptoms that they suffered, including anxiety reaching the level of panic; distorted thinking reaching the level of paranoia; memory and concentration problems; sadness; despair; a growing number of suicidal thoughts; compulsive actions; agitation; mounting anger; the fear that the anger will get out of control and get them into even more trouble; mood swings; and severe problems sleeping. In other words, the prisoners I interviewed while they remained in the SHU consistently reported symptoms that match those reported by prisoners in isolation in a great many settings and are documented in the literature on the psychological effects of isolative confinement.
However, they also suffered additional symptoms that go beyond those symptoms that appear in prisoners who have been in isolation only months or a few years. The prisoners I interviewed, who have remained in isolation for many more years than the average prisoner involved in earlier studies, have developed further symptoms and disabilities. I found that these varied symptoms fit into three general categories: a) symptoms related to a greatly increased urge to isolate; b) a subjective sense of “numbing,” closing off all emotions that they report began as an attempt to keep a growing sense of anger at bay; and c) enlarged despair.
Inevitably, a certain number of prisoners are eventually released from their isolative confinement. All of the men I spoke to who had spent ten or more years in the Pelican Bay SHU and were then released, either to another prison setting or to the community, reported that they too experienced the list of symptoms widely reported in the literature about isolative confinement. They too had experienced a growing urge to isolate themselves, mounting despair and a numbing of all feelings during their years in the SHU. They also reported that many of the most serious problems they experience surface only after getting out of the SHU. Among the group of ex-residents of the SHU, there are universally-reported immediate experiences: a sense of being overwhelmed by sensory stimulation, massive anxiety when in crowded places, hyperawareness of every noise or change in lighting, a tendency to seek isolation in contained spaces, and difficulty expressing oneself in close relationships. That immediate reaction subsides somewhat after a period of six months or a year, but then there are residual symptoms.

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Almost all of the men I interviewed reported that they continue to avoid crowds, remain suspicious of anyone entering their vicinity, have strong startle reactions, continue to have sleep problems, and have a lot of trouble expressing themselves and their feelings, even to intimates such as a wife or girlfriend. In fact, I was able to delineate a syndrome that captures the experience of the men who had been released from the PB SHU after ten years, characterized by the following symptoms:
• Disorientation immediately following release. • Anxiety in unfamiliar places and with unfamiliar people, and the daily life events
that had been ordinary prior to SHU confinement become unfamiliar events following release from SHU. • A tendency to retreat into a circumscribed, small space, often a bedroom or cell. • A tendency to greatly limit the number of people one interacts with, usually limited to close family members and a few friends. • Hyperawareness of surroundings, for example a need to sit facing the door to a room or with one’s back to a wall. • Heightened suspicion of everyone who comes close, especially strangers. • Difficulty expressing feelings. • Difficulty trusting others, even one’s spouse or first degree relative. • Problems with concentration and memory, beginning in the period of SHU confinement and continuing after release, making it difficult to accomplish tasks and to work. • A sense of one’s personality having changed. The most often reported form of this change is a change from a relatively outgoing, friendly individual with a sense of humor prior to SHU confinement, to a more serious, guarded, and inward individual following release from the SHU. • In some, but certainly not all, cases, there is a tendency to resort to alcohol and illicit substances to lessen emotional pain and make feelings of confusion and anxiety more bearable. I describe this syndrome as a SHU Post-Release Syndrome.

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A significant number of these problems are experienced intensely for many months after release from SHU, and then continue indefinitely in somewhat less intense fashion. This set of symptoms was consistently reported whether the prisoner had been released to the community or simply transferred to a general population or “stepdown” prison setting within the California prison system. Thus, for example, one former SHU prisoner who had been released to the community reported that he stays in his room a lot of his waking hours, while a prisoner who had been released from SHU to return to general population status in prison reported he stays in his cell most of his waking hours. Both groups appear to be trying to re-establish the conditions they experienced in the SHU. It is as if they have become so habituated to life isolated in in a small cell that exposure to any larger, more populated area seems overwhelming and frightening. Both groups are suspicious of others entering their vicinity, complain of a strong startle reaction, and report great difficulty trusting and sharing feelings with others.
In addition to reporting on the symptoms and damage discovered during my interviews with prisoners who have been in the PB SHU for ten years or more in this report, I describe the facility itself and address the following issues:
• My method for assessing the reliability of prisoners’ reports; • The way to determine whether reported symptoms and problems are in fact
linked causally with SHU confinement; • How representative of the class the prisoners I interviewed are; and • How the issue of perceived fairness affects prisoners’ psychological reactions
to SHU confinement.

III. Qualifications I am a board certified psychiatrist, an Institute Professor at the Wright Institute, a
Distinguished Life Fellow of the American Psychiatric Association, and an expert on correctional mental health issues. I have testified more than two dozen times in state and federal courts about the psychiatric effects of jail and prison conditions, the quality of correctional management and mental health treatment, and sexual abuse in prison. I have served as a consultant to the U.S. Department of Justice and Human Rights Watch. I am author of Prison Madness: The Mental Health Crisis Behind Bars and

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What We Must Do About It (Jossey-Bass/Wiley, 1998), co-editor of Prison Masculinities (Temple University Press, 2001), and Contributing Editor of Correctional Mental Health Report. I have authored three other books: Public Therapy: The Practice of Psychotherapy in the Public Mental Health Clinic (Free Press, 1981); Ending Therapy: The Meaning of Termination (NYUP, 1988); and Revisioning Men’s Lives: Gender, Intimacy and Power (Guilford, 1993). I have authored and co-authored dozens of professional articles and book chapters, including "Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs" by T.A. Kupers, T. Dronet, M. Winter, et al., Criminal Justice and Behavior, October 2009; and “Isolated Confinement: Effective Method for Behavior Change or Punishment for Punishment's Sake?,” The Routledge Handbook of International Crime and Justice Studies, Eds. Bruce Arrigo & Heather Bersot, Oxford: Routledge, 2013, pp. 213-232.
I have served as consultant to the departments of mental health in several jails, and to the Ohio Department of Corrections. I was the recipient of the Exemplary Psychiatrist Award presented by the National Alliance on Mental Illness (NAMI) at the 2005 annual meeting of the American Psychiatric Association, and the William Rossiter Award at the 2009 Annual Meeting of the Forensic Mental Health Association of California. My C.V. and a list of forensic cases in which I have served as an expert over the past four years are attached to this report as Exhibit A.

IV. Litigation Experience Litigation in which I have testified at trial on similar matters includes: • Rutherford v. Pitchess, Los Angeles Superior Court, regarding conditions and mental health services in Los Angeles County Jail, 1977; • Wilson v. Deukmejian, Marin County Superior Court, regarding conditions and mental health services at San Quentin Prison, 1983; • Toussaint/Wright/Thompson v. Enomoto, federal district court in San Francisco, regarding conditions and double-celling in California State Prison security housing units, 1983; • Gates v. Deukmejian, federal district court in Sacramento, regarding conditions,

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quality of mental health services and segregation of inmates with HIV positivity or AIDS at California Medical Facility at Vacaville, 1989; • Coleman v. Wilson, federal district court in Sacramento, regarding the quality of mental health services in the California Department of Corrections' statewide prison system, 1993; • Bazetta v. McGinnis, federal district court in Detroit, regarding visiting policy and restriction of visits for substance abuse infractions, 2000; • Jones ‘El v. Litscher, federal district court in Madison, Wisconsin, regarding confinement of prisoners suffering from severe mental illness in supermax isolation, 2002; • Russell v. Johnson and Presley v. Epps, federal district court in Oxford, Mississippi, regarding conditions of confinement and treatment of prisoners with mental illness on Death Row inside supermaximum Unit 32 and regarding all prisoners in isolated confinement at Parchman, 2003 and 2006; • Austin v. Wilkinson, federal district court in Cleveland, Ohio, regarding proposed transfer of Death Row into Ohio State Penitentiary (supermax), August, 2005; • DAI, Inc. v. NY OMH, federal district court for the Southern District of New York, April 3, 2006, regarding mental health care in the New York Department of Correctional Services, with special attention to supermax confinement and its effects on vulnerable prisoners; • Presley v. Epps, federal district court in the Northern District of Mississippi, Aberdeen, No. 4:05CV148-JAD, April 4, 2007, regarding conditions and Mental Health Care on Unit 32, Parchman, Mississippi. • Hadix v. Caruso, federal district court in the Western District of Michigan, Grand Rapids, Michigan, regarding correctional mental health care, April 29, 2008. I also serve as Monitor for the consent decree in Presley v. Epps, a federal class action regarding conditions in Supermax Unit 32 at the Mississippi State Penitentiary at Parchman. This case addresses the treatment of prisoners with serious mental illness who are housed in isolated confinement.

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• Prisoners #9 and #s 18-24 at SATF/ Corcoran State Prison on January 14, 2015, for approximately 45 minutes each.2
Thus, I have interviewed 23 people who have been in the SHU at PBSP for at least ten years, and one (Prisoner #16) who was at PB SHU for slightly less than ten years. I had the opportunity to interview two of them, Prisoner #7 and Prisoner #9, twice while they were in the SHU and a third time after they had been transferred to maximum security general population facilities.
On April 11, 2014, I participated in a tour of the PBSP facility, including the SHU, the main yard, the Psychiatric Services Unit (PSU), and the SHU Infirmary.
Document review includes clinical and custody files of the eleven prisoners I interviewed who were in SHU at the time I first interviewed them, and one (Prisoner #12) being housed in Administrative Segregation at CSP-Sacramento for medical treatment, plus policies regarding the operation of the PB SHU.3

VII. Research and Literature There is a rich literature of robust research on the effects of long-term solitary
confinement or isolative confinement in prison.4 5 Long-term confinement (greater than three months) in an isolated confinement unit such as the supermaximum Security

2 Of the eight prisoners at SATF, the names of seven were obtained from a list counsel received from CDCR in Feb. 2014; the eighth is a named plaintiff (Prisoner #9) who had been transferred to SATF. All have spent at least 10 continuous years at Pelican Bay SHU. In February 2014, defendants sent Plaintiffs’ counsel a list of approximately 100 Pelican Bay SHU prisoners who have been placed on Step 5 of the Step Down Program. Of those, 15 had been transferred to SATF. In December 2014, Plaintiffs’ counsel wrote to 14 of those prisoners (one was no longer in CDCR custody) about their willingness to be interviewed by me. Seven of those prisoners spent 10 continuous years in SHU and were English-speaking. I interviewed all those prisoners for this report. 3 Including Regulations concerning Security Threat Groups adopted and effective October 17,
2014, amd Section 3378 of Title 15. 4 For an overview of supermaximum security and isolated confinement, see LORNA RHODES, TOTAL CONFINEMENT: MADNESS AND REASON IN THE MAXIMUM SECURITY PRISON, (University of California Press, 2004); and SHARON SHALEV, SUPERMAX: CONTROLLING RISK THROUGH SOLITARY CONFINEMENT, (Willan Publishing, 2009). 5 I employ the terms “solitary confinement” and “isolated confinement” interchangeably. Some correctional officials object to the use of the term solitary confinement because, they claim, individuals in their isolative confinement units have some contact with the officers who pass them their food trays, search them and escort them to appointments. I am not convinced this constitutes adequate human contact, so I continue to employ the two terms synonymously.

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Housing Unit at Pelican Bay State Prison is well known to cause severe psychiatric morbidity, disability, suffering and mortality.6 It has been known for as long as solitary confinement has been practiced that human beings suffer a great deal of pain and mental deterioration when they remain in solitary confinement for a significant length of time. Thus, in 1890, the U.S. Supreme Court found that in isolation units, “[a] considerable number of prisoners fell, after even a short confinement, into a semifatuous condition, from which it was next to impossible to arouse them, and others became violently insane; others still, committed suicide; while those who stood the ordeal better were not generally reformed, and in most cases did not recover sufficient mental activity to be of any subsequent service to the community.”7
A significant amount of research echoes the Court's findings. Prof. Hans Toch, a social psychologist and emeritus professor in the School of Criminal Justice at State University of New York at Albany, provided early narrative reports from prisoners at the highest levels of security and Isolation.8 Prof. Craig Haney, a social psychologist and Professor of Psychology at the University of California at Santa Cruz, has researched the detrimental effects of long-term isolation.9 More than four out of five of the prisoners he evaluated suffered from feelings of anxiety and nervousness, headaches, troubled sleep, and lethargy or chronic tiredness, and over half complained of nightmares, heart palpitations, and fear of impending nervous breakdowns. Equally high numbers reported obsessive ruminations, confused thought processes, an oversensitivity to stimuli, irrational anger, and social withdrawal. Well over half reported violent fantasies, emotional flatness, mood swings, chronic depression, and feelings of overall

6 For reviews of this research, see Peter Scharff Smith, The Effects of Solitary Confinement on
Prison Inmates: A Brief History and Review of the Literature, CRIME & JUST., 34 441, 488–90
(2006); and Bruce Arrigo & Jennifer Leslie Bullock, The Psychological Effects of Solitary
Confinement on Prisoners in Supermax Units: Reviewing What We Know and Recommending
What We Should Change, INT’L J. OFFENDER THER. COMP. CRIMINOLOGY 52:, 622-640 (2008). 7 In re Medley, 134 U.S. 160 (1890). 8HANS TOCH, MOSAIC OF DESPAIR: HUMAN BREAKDOWN IN PRISON, (American Psychological
Association 1975, 1992) 9Craig Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, CRIME
& DELINQUENCY, 49(2), 124-156 (2003)..

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deterioration, while nearly half suffered from hallucinations and perceptual distortions, and a quarter experienced suicidal ideation.10
Dr. Stuart Grassian, a psychiatrist and researcher, has conducted similar research.11 He describes a particular psychiatric syndrome resulting from the deprivation of social, perceptual, and occupational stimulation in solitary confinement. This syndrome has basically the features of a delirium. Among the more vulnerable population, it can result in an acute agitated psychosis, and random violence – often directed towards the self, and at times resulting in suicide. He has also demonstrated in numerous cases that the prisoners who end up in solitary confinement are generally not “the worst of the worst”; they include, instead, the sickest, most emotionally labile, impulse-ridden and psychiatrically vulnerable among the prison population. Two-thirds of the prisoners Dr. Grassian initially studied had become hypersensitive to external stimuli (noises, smells, etc.) and about the same number experienced “massive free floating anxiety.” About half of the prisoners suffered from perceptual disturbances that for some included hallucinations and perceptual illusions, and another half complained of cognitive difficulties such as confusional states, difficulty concentrating, and memory lapses. About a third also described thought disturbances such as paranoia, aggressive fantasies, and impulse control problems. Three out of the fifteen had cut themselves in suicide attempts while in isolation. In almost all instances the prisoners had not experienced any of these psychiatric reactions prior to their time in isolation. For all prisoners, long-term solitary confinement has the effect, on average, of making postrelease adjustment very problematic and worsening recidivism rates.12
An alarmingly large proportion of prisoners consigned to supermaximum security isolation in recent decades suffer from serious mental illness. Drs. Sheilagh Hudgins and Gilles Cote, psychologists at the Centre de Recherche Philippe Pinel at Universite de Montreal, performed a research evaluation of penitentiary inmates in a Supermaximum Security Housing Unit and discovered that 29% suffered from severe

10 Ibid. 11 Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion
and Solitary Confinement, INT’L J. OF LAW & PSYCHIATRY, 8(1), 49-65 (1986). 12 David Lovell, L. Clark Johnson, & Kevin Cain, Recidivism of Supermax Prisoners in
Washington, CRIME & DELINQ., 52,4, 633-56 (2007).

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mental disorders, notably schizophrenia.13 Prof. David Lovell, Professor of Nursing at
the University of Washington, has described typical disturbed behavior.14 I have
reported my own findings from litigation-related investigations.15 It is stunningly clear
that for prisoners prone to serious mental illness, time served in isolation and idleness
exacerbate their mental illness and too often result in suicide. This is the main reason
that federal courts have ruled that prisoners with serious mental illness must not be
subjected to long-term isolation.16
The ACLU of Texas recently released a report of its research on solitary
confinement. Researchers surveyed 147 prisoners and ex-prisoners who had spent
significant time in solitary confinement, and summarized their findings:
Solitary confinement can cause people’s mental health to seriously deteriorate, creating or exacerbating psychiatric symptoms that persist long after their release and impede their ability to reintegrate to society. The medical consensus is that most human beings cannot withstand the prolonged isolation and sensory deprivation that solitary confinement entails, and our survey of people incarcerated in Texas prisons produced predictable results. Ninety-five percent of respondents to our survey had developed some sort of psychiatric symptom as a result of solitary confinement; thirty percent reported having oral or physical outbursts, fifty percent reported suffering from anxiety or panic attacks, and fifteen percent reported hallucinations. Solitary confinement’s impact on the human brain is as brutal as a traumatic physical injury; prisoners of war who spent six months in solitary confinement had abnormal brain-wave patterns months after their release.17

Prisoners who are released straight out of solitary confinement to the community at the end of their prison sentence (referred to as "maxing out of the SHU") experience significant problems in adjusting to community life. The recidivism and parole violation rates for the group who "max out of the SHU," as well as for those who spent

13 Sheilagh Hodgins & Gilles Cote, The Mental Health of Penitentiary Inmates in Isolation, CANADIAN
J. OF CRIMINOLOGY, 177-182 (1991). 14 David Lovell, Patterns of Disturbed Behavior in a Supermax Population, CRIM. JUST. & BEHAVIOR, 35,8, 985-1004 (2008). 15 TERRY KUPERS, PRISON MADNESS: THE MENTAL HEALTH CRISIS BEHIND BARS AND WHAT WE MUST DO ABOUT IT, (Jossey-Bass/Wiley 1999) 16 Madrid v. Gomez , 889 F. Supp. 1146 (N.D. Cal. 1995); Jones 'El v. Berge, 164 F. Supp. 2d
1096 (W.D. Wis. 2001); Presley v. Epps, 4:05-cv-148 (JAD) (N.D. Miss. 2005 & 2007) 17 ACLU OF TEXAS, A SOLITARY FAILURE: THE WASTE, COST AND HARM OF SOLITARY
CONFINEMENT IN TEXAS (2015).

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considerable time in isolation, is extremely dire.18 Whether or not prisoners are
permitted to "max out of the SHU" (the alternative in several states is to require six
months of re-socialization in a general population unit prior to prisoners reaching their
release date), the period of isolation and idleness has very negative effects on their
chances of successfully reentering society after being released.
The Arizona Chapter of the American Friends Service Committee (AFSC) studied
the post-release course of 41 men and 3 women prisoners who had spent long periods
in isolative confinement. Discussing their post-release experience, the AFSC Report
states:
In describing his life on the outside, one participant who avoided old neighborhoods and contacts said that ‘life is way harder out here for me than it is in there.’ He is not alone in this nostalgia for prison life and for the isolation of the supermax cell. A female participant, also homeless and barely getting by at the time of the interview, said almost ashamedly, ‘The worst thing that I can honestly say about trying to get back into society is I miss my cage more and more everyday. I just can’t function out here.’ When asked, ‘Do you want to [sic] the small cage back or the big cage?’ she replied, ‘The smaller the better. I can control everything in it.’ They make repeated efforts to avoid people, for example moving to the edge of the city or living alone in a tunnel. It is strikingly reminiscent of the social withdrawal that Craig Haney describes19 as endemic to persons held in isolation for long periods, except now they are outside the supermax cell, in the great wide open of supposed freedom, which terrifies them.20
The AFSC Report points out that most of the ex-prisoners their researchers
interview tended to play down the negative effects of their years in isolative
confinement. Still, they report significant psychological damage, and even more telling
is the fact that the interviewer observed in their behaviors and presentation of self more
serious psychological disability than the interviewed ex-prisoners spontaneously

18 David Lovell, L. Clark Johnson, & Kevin Cain, Recidivism of Supermax Prisoners in Washington, CRIME & DELINQ., 52,4, 633-56 (2007). 19 Craig Haney, Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement, CRIME & DELINQ., 48(1): 124-156 (2003).
20 AMERICAN FRIENDS SERVICE COMMITTEE OF ARIZONA, LIFETIME LOCKDOWN: HOW ISOLATION
CONDITIONS IMPACT PRISONER REENTRY, 33-34 (2012) Available at http://afsc.org/sites/afsc.civicactions.net/files/documents/AFSC-Lifetime-Lockdown-Report 0.pdf

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reported. In other words, the ex-prisoners tended to downplay the damage they had incurred.
It is predictable that prisoners' mental state deteriorates in isolation. Human beings require at least some adequate or relatively normal social interactions21 and productive activities to establish and sustain a sense of identity and to maintain a grasp on reality. In the absence of adequate social interactions, unrealistic ruminations and beliefs cannot be tested in conversation with others, so they build up inside and are transformed into unfocused and irrational thoughts. Disorganized behaviors emerge. Internal impulses linked with anger, fear and other strong emotions grow to overwhelming proportions. Sensory deprivation is not total in supermax units; there is the intermittent slamming of steel doors and there is yelling (one typically has to yell in order to be heard from within one's cell), but this kind of noise does not constitute meaningful human communication. From my interviews with prisoners and tour of the facility, it is my impression that this is very much true in the SHU at Pelican Bay State Prison. Prisoners in this kind of segregation do what they can to cope. Many pace relentlessly or clean their cell repeatedly, as if the non-productive action will relieve the emotional tension. Those who can read books and write letters do so.
The tendency to suffer psychiatric breakdown and become suicidal is made even worse by sleep deprivation, which is a frequent occurrence among prisoners in isolated confinement. All prisoners are harmed by chronic sleep problems, and it is very difficult to sleep in the PB SHU. But when a prisoner suffers from a serious mental illness or is prone to mental illness, the damaging effect is greater. Loss of sleep intensifies psychiatric symptoms by interfering with the normal diurnal rhythm (the steady alternation of day and night that provides human beings with orientation as to time), and the resulting sleep loss creates fatigue and magnifies cognitive problems, memory deficits, confusion, anxiety, and sluggishness. It is under these extreme conditions that psychiatric symptoms begin to emerge in previously healthy prisoners. Toch, Haney, Grassian, Lovell and I, among many others, have described serious symptoms in

21 Of course, prisoners in the SHU can yell from their cell and be heard by other prisoners nearby, they interact with officers delivering their food trays and are accompanied by officers when they go for appointments, and when they go to the yard they pass other prisoners’ cells. But these interactions do not constitute adequate social interactions.

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prisoners who are relatively stable from a psychiatric perspective. In their amicus brief in Wilkinson v. Austin, leading mental health experts summarize the clinical and research literature about the effects of prolonged isolated confinement and conclude: “No study of the effects of solitary or supermax-like confinement that lasted longer than 60 days failed to find evidence of negative psychological effects” (p. 4).22 Of course, in less healthy prisoners there is psychosis, mania or compulsive acts of self-abuse or suicide. We know that the social isolation and idleness, as well as the near absolute lack of control over most aspects of daily life, very often lead to serious psychiatric symptoms and breakdown.
It has been known for decades that suicide is approximately twice as prevalent in prison than it is in the community, and recent research confirms that, of all successful suicides that occur in a correctional system, approximately fifty percent involve the 3 to 8 percent of prisoners who are in some form of isolated confinement at any given time.23 In California, the equivalent statistic is 60%; in other words, 60% of successful suicides occur among the 3% to 6% of the prison population confined in segregation units, including the supermax SHU at PBSP.24 This is a stunning statistical finding, and constitutes conclusive evidence that long-term consignment to segregation is a major factor in the high suicide rate among prisoners.
A huge volume of very good research on the harm of supermax solitary confinement appears in the reports and testimony of mental health experts investigating supermax facilities in preparation for testimony in class action litigation. When I investigate a correctional system, I interview dozens or even hundreds of prisoners, many in supermax units, and I report in detail to the court the harm done by their longterm solitary confinement or the quality of their mental health treatment. Prof. Haney

22 Amicus Brief to the Supreme Court of the United States. (2005). Brief of professors and
practitioners of psychology and psychiatry as amicus curiae in support of respondents. Supreme Court of the United States, No. 04-495. 23 Daniel P. Mears & Jamie Watson, Towards a Fair & Balanced Assessment of Supermax
Prisons, JUST. Q., 23,2, 232-270, (2006); Bruce Way, Richard Miraglia, Donald Sawyer, Richard Beer & John Eddy, Factors Related to Suicide in New York State Prisons, INT’L J. OF LAW & PSYCHIATRY, 28,3, 207-221 (2005). 24 Raymond F. Patterson & Kerry Hughes, Review of Completed Suicides in the California
Department of Corrections & Rehabilitation, 1999 to 2004, PSYCHIATRIC SERVICES, 59, 6, 676682 (2008)

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and Dr. Grassian, among others, do the same.25 I am very familiar with the testimony provided by mental health and correctional experts in litigation, and I rely in part on that vast literature (the expert reports, testimony and trial transcripts) in arriving at my own opinions and conclusions.
In sum, we know quite a lot from research on prisoners in “long-term” isolated confinement, where “long-term” is typically defined as longer than three months. And there has been a certain amount of research and investigation of very long-term isolated confinement (greater than ten years). I have interviewed and examined dozens of prisoners who had been in isolated confinement for over ten years in numerous states, and prisoners whose solitary confinement has lasted that long are included in the research I have summarized and in the investigations of experts preparing for testimony in litigation.
VIII. Findings A. The Facility
On April 11, 2014, I was given a tour of PBSP, in the company of counsel for Plaintiffs and Defendants, and Prof. Craig Haney. I had previously toured the facility while preparing for my testimony in Coleman v. Brown in the early 1990s. Here, I present my observations from the 2014 tour. We toured the general population yard, the SHU itself, the Psychiatric Services Unit (PSU), and the medical area.
Pelican Bay State Prison, located near California’s coastal border with Oregon, is a Maximum Security correctional facility with a capacity of approximately 3,000 prisoners. Approximately 1,000 or more of them are consigned to the Security Housing Unit (SHU) where most are single-celled and a small minority are double-celled. The SHU is described widely as a “Supermaximum Security Facility.”

25 Craig Haney, Mental Health Issues in Long-Term Solitary & “Supermax” Confinement, CRIME & DELINQ., 49(2), 124-156. (2003); Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion & Solitary Confinement, INT’L J. OF LAW & PSYCHIATRY, 8(1), 49-65 (1986).

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A Pod in the PB SHU26
Security is very strict. Prisoners remain in their cells nearly 24 hours per day. When they leave their pods, they are searched and escorted in handcuffs and/or other restraints. They are released for up to ninety minutes or less per day to go alone (or with a cell-mate) to their pod’s adjacent recreation area, a room-sized space devoid of equipment except for a pull-up bar and a small ball.27 The walls are approximately 20 feet high and there is a small space overhead left uncovered (by Lexan) through which the prisoner can see the sky. Otherwise, the prisoner has no visual connection to the outside world.

26 Photo by CDCR staff during April 11, 2014 tour 27 It is my understanding that the pull up bar and ball are recent amenities, improvements
obtained secondary to prisoner hunger strikes beginning in 2011.

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A Yard at the PB SHU28

The cells are approximately 8’ X 10’, and have no window. The front wall of the cell, including the door, is covered by a perforated (honey-comb fashion) metal sheet.

28 Photo by Robert Gumpert available at http://www.taptas.com/pelican-bay-prison/.

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The effect is to distort the prisoner’s perception as he gazes out of the cell. The only thing he sees most of the time gazing out of the cell is a bare wall on the other side of the walkway, as cells do not face each other.

Front of a cell with perforated metal sheet, as viewed from inside cell29
Doors are opened and closed by remote control from a control booth at one end of the pod. There are four cells on each of two floors in each pod. Prisoners are cellfed and are permitted showers where they are locked into a shower stall for a short period. Inside the cells, there is a mattress on a concrete platform, a metal toilet/sink attached to the wall, two concrete blocks for use as a seat or tabletop, and a television if the prisoner is not on restriction and can afford to purchase it. There are no areas designated for congregate activities, and the everyday practice is that prisoners are alone (a small number have cellmates) all the time.

29 Photo from Solitary Watch, available at http://solitarywatch.com/2014/07/07/worst-worst-oneyear-later-whats-changed-pelican-bays-hunger-strikers/

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Inside a cell in the SHU at PBSP30
They see mental health staff either at cell-front “rounds” or they are removed from the pod and placed in a “programming cell” or “therapeutic cubicle” to be interviewed by mental health staff. Therapeutic cubicles, called “cages” by the prisoners, are single occupancy booths wherein the prisoner is locked for the duration of a meeting with a counselor, teacher or a hearing officer.

30 Photo by Robert Gumpert available at http://www.taptas.com/pelican-bay-prison/

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A “Programming Cell” or “Therapeutic Cubicle”

We were shown the “contraband retrieval cells’” or “potty watch.” The men on contraband watch are left in a special room in their shorts. They are placed in various forms of restraints including waist chains, and they are left there to defecate on a makeshift toilet. The officers check their excrement for contraband. They remain in the room through three bowel movements. We were told that during the day the people on watch sit on the floor and at night, a mattress is placed in the room.
There is a Psychiatric Services Unit (PSU) on the prison grounds. It is operated at the Enhanced Outpatient (EOP) level of mental health treatment (an intermediate level between hospital and outpatient). There are “cages” outside the PSU, with fenced in individual exercise spaces side by side. Inside the PSU there are treatment rooms where prisoners are locked alone into “programming cells,” also called by some “therapeutic cubicles,” four or five to a room, and a therapist or teacher can enter the

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room, sit in a chair or at a desk, and work with them. There is also a room with a therapeutic cubicle for one prisoner, presumably for individual meetings with clinicians.
In PBSP’s medical facility, there is a nursing station and a number of rooms for examination and housing prisoners suffering from medical illness or psychiatric crises. There are special cells/rooms for the purpose of suicide observation and crisis intervention. Evidently, prisoners from the SHU can be transferred to this medical unit, for example for suicide observation, and then transferred back to the SHU if they seem stable and are not suffering from serious mental illness. Presumably, if they are suffering from serious mental illness, they are no longer eligible for SHU housing, and would be transferred to the PSU or another EOP facility.

B. Prisoners Who Were in SHU at the Time of My Interviews 1. These prisoners suffered symptoms consistent with those identified in the literature.
The prisoners who were in the SHU when I interviewed them exhibited all the symptoms and disabilities previously reported widely in the literature. As I will report below, in Section VIII.B.3&4, they evolved additional symptoms of severe isolation and emotional numbing as the years in SHU accumulated.
Early in the course of this litigation, I interviewed eleven prisoners the PB SHU and one in SHU at CSP-Sacramento who had been in the PB SHU for over ten years but then was transferred to CSP-Sacramento for medical treatment. Some had been at the PB SHU since it opened, and many were already in segregation at another facility for some time prior to their transfer to the PB SHU. I interviewed ten of them twice, on April 17-18, 2012, and again on April 16-17, 2013. Subsequently, some of these individuals have been transferred out of the SHU to Step 5 of a “Step Down” program and general population. While this is an important subsequent development, the interviews I conducted while they were still in the SHU provide a very rich window into the experience of individuals in the SHU and the emotional impact of over ten years of SHU confinement. Even though some members of the original group are no longer in the SHU, the experiences they recounted to me are representative of the many others who have been in the PB SHU for over ten years and remain there today.

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The eleven prisoners I interviewed in the SHU all report a significant number of symptoms long known to result from isolated confinement lasting longer than three months, including irritability, distorted thinking, paranoia, perceptual distortions, mounting anger, fear that they will not be able to control their anger and will get into more trouble, problems concentrating, problems with memory, compulsive and selfdestructive behaviors, nightmares, lethargy and chronic tiredness, agitation, wide swings of mood, depression, despair, and emotional numbing. They report a very significant amount of hyper-alertness with startle responses (e.g. jumping when they hear a door open or a light go on because they are afraid someone will "come in on them"). Most complain of severe chronic insomnia, many of headaches. They report they often feel infantilized and humiliated by staff. Several cited the implementation of “potty watch” where, in an intrusive search for contraband, prisoners are forced to defecate three times in a makeshift toilet while being watched. Several prisoners cite the existence of this particular form of humiliation even when they have not personally been subjected to it.
These men, at the time of our interviews, were all in SHU because of gang validation. They reported that the justifications for their validation are very old (i.e. alleged associations that occurred many years before) and then they have been "revalidated," in all cases based on what they report as dubious or false evidence.31 When these men approach six years without any disciplinary write-ups (termed “115’s,” the number of the form where major disciplinary write-ups are documented) and proven gang activity, they are re-validated for reasons they consider unfounded. They consider their validation entirely unfair, and believe they are denied an opportunity to show that they do not belong in the SHU. Further, their every activity is controlled by staff, who are often unfriendly and whom the prisoners consider unfair, in many cases racist. They feel they are denied adequate contact with family members (no phone calls except on rare occasions such as the death of a first degree relative, and visits are problematic because of policies as well as the geographic isolation of the facility), and some believe their mail is being destroyed. In the SHU they have little or no meaningful activities and

31 In one case, the prisoner was re-validated for a drawing of a picture copied from a book in the PBSP library, and in another case the prisoner was re-validated for saying hello to another prisoner confined in the facility.

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essentially no programs. Almost all of them complained about a lack of touching or physical contact other than being searched or transported by officers.
For these and related reasons, they all report a certain amount of anger about their situation. Earlier in their period of incarceration, many of them acted out equivalent anger by talking back to officers or getting into fights. By now, they have learned to keep their anger to themselves. Mounting anger plus dread of losing control of the anger are almost universally reported by prisoners in long-term isolated confinement.
Since all prisoners report they are under constant pressure by staff to "de-brief,” they are unable to really trust their neighbors, believing that what they say could be distorted and reported to staff during the “de-briefing” procedure. They are afraid that if they say the wrong thing to someone they will be re-validated or they will suffer some type of retaliation. It is very stunning how universal this concern is among the 24 prisoners and ex-prisoners I interviewed. Quite a few told me that when they complain about poor medical care (or even about the food) they are repeatedly told by officers that they should “de-brief” if they want better medical care (or food).
All but two of the 11 prisoners I interviewed in the SHU participated in the hunger strikes in 2011. The two who did not had health problems that precluded their participation. At the time of my interviews, all of these men maintained the firm belief they would never be released from SHU because they refused, on principle, to “de-brief” and the parole board is very unlikely to approve the parole of a prisoner in SHU. They believe that there is incredible unfairness in the way they are validated and re-validated, and yet they have no opportunity to hear the evidence against them nor to rebut it (i.e. they believe there is no fair or due process). They all believe that the health care is very poor, and most report they are told that if they want better health care they should “debrief”. These men try not to utilize mental health services, and they offer a number of explanations why that is so. Most talk about the stigma in prison towards men who seek mental health services, the dangers of being labeled a “ding” or crazy by other prisoners, and the unwritten rule that a man needs to do his time without showing weakness. Quite a few also tell me that they do not trust the mental health staff to maintain confidentiality and they do not feel that the mental health staff truly cares about them. Further, they object to the fact that they would be seen by mental health staff in a

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“therapeutic cubicle” or “programming cell,” which they call “a cage,” and they find this kind of treatment humiliating.
For the most part, while they have been forced to endure being in a cell nearly 24 hours per day, mostly idle, for ten or more years, this group of men have not fallen victim to serious mental illness,32 and that is a testament to their emotional strength and stability. However, it is important to note that some prisoners are prone to serious mental illness, many forms of which are clearly exacerbated by isolative confinement. These forms include psychotic disorders, severe depression, mood swings, Bipolar Disorder and suicide.
Suicide is a very important consideration. The eleven men I interviewed are not presently overtly suicidal, even though several told me they would not care if they died, for example from being on hunger strike. But this is not the group who are likely to commit suicide. Yet we know that 60% of completed suicides in the CDCR occur among the 3% to 6% of prisoners who are in isolated confinement.33 So there is definitely a group of prisoners in the SHU who are at very high risk of suicide, and these men are not in that group. In other words, this group of eleven actually evidences relatively much less suicidal ideation and intention than would be clearly expected in the larger group of prisoners who have been in the SHU at PBSP for over ten years.
Subsequent to my interviews with the eleven men who were in SHU at the time of the interviews, I interviewed one prisoner (#12) who had been transferred to SHU at CSP-Sacramento for medical treatment, eight prisoners (Prisoner #7 at CSPSacramento and Prisoners #9, 18-24 at SATF) who had been transferred out of the SHU, either to Step 5 of the Step Down program (general population),34 and five former prisoners who had been released to the community, either directly from SHU or from general population. Two prisoners (Prisoners #7 and #9) among the 24 total who I

32 Prisoner #12 was transferred to the Psychiatric Services Unit for treatment of major
depressive disorder several years ago, and then was determined to be in remission and transferred back to SHU. 33 Raymond F. Patterson & Kerry Hughes, Review of Completed Suicides in the California
Department of Corrections & Rehabilitation, 1999 to 2004, PSYCHIATRIC SERVICES, 59, 6, 676682 (2008). 34Several of the individuals I interviewed had been placed in Step 5 and subsequently
“graduated” to general population status. For the purpose of this discussion, Step 5 of the Step down program is similar in programming and amenities to general population.

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memory is very poor. Further, he finds he is overly sensitive to stimulation (a strong startle reaction), has lost the ability to feel things, has wide swings of emotion (he is depressed much of the time, but then feels agitated and "jumpy" at other times), feels blocked in getting things done, feels lonely and feels blue. He avers perceptual distortions, for example seeing things move on the drab walls of his pod, and then he realizes he is imagining something.
Prisoner #10 has a lot of difficulty sleeping. During the nights there are repeated noises of doors being opened and closed, and the noise causes him to waken suddenly. He becomes frightened that someone is going to enter his cell and attack him. He spends his days working out and reading as much as he can (the trouble focusing and memory loss make reading very difficult, and he tends to forget what he read a few pages back). He does not talk to mental health staff because he believes they do not care about the prisoners, and besides, he tells me, whenever prisoners talk to mental health staff there are officers present and there is no confidentiality. He looks very sad as he tells me he has not shaken the hand of a human being in 13 years. He worries that he has forgotten the feel of human contact. Once, on his way to a doctor's appointment, where he was led in shackles by officers, he caught a glimpse of a tree. That was such a contrast with the monotony of looking at the windowless walls in his pod that he felt excited about the tree. He reacts strongly whenever a door is opened or closed, always afraid "someone is going to come in on me."
Prisoner #5 complains of severe eye problems. He believes the problem stems from not seeing anything but a blank wall for years. Even to see the wall across the hallway, he has to look through a metal cell door with small holes in it, and this distorts his vision (see photo in previous section). He gets headaches frequently, and when he does eventually see colors other than the monotonous color of his cell walls, his vision gets distorted. He has a television but watches it very little because he gets headaches when he sees colors. He really misses having contact with anything natural. He never sees a tree, nor a bird. When he finds an insect in his cell, he feels like finally he has company. He suffers from prostatitis and reports medical care is very poor, but when he asks staff for better care he is told he should “de-brief” and then he would get better care in another facility. He also complains of severe insomnia, loss of appetite, chronic

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tiredness and lack of energy, talking to himself, confused thinking, and losing the ability

to feel or know what he is feeling.

Prisoner #9,

had been in

SHU for 36 years (with occasional transfers out of SHU, followed by return to SHU) at

the time of our interview, arriving at PBSP around when it opened. He avers intense

anxiety, sweating even without exertion, frequent "weird violent dreams," a strong startle

reaction especially to the sound of doors opening, perceptual distortions which he

attributes to the lack of windows in his cell and the odd experience of looking at the wall

across from his cell through the small holes in his metal cell door, a sense of losing the

ability to feel things, wide swings in emotion, constantly misplacing things, an inability to

concentrate, memory loss, worrying about getting sloppy, and irritability. He describes

irregular sleep with frequent waking whenever he hears the sound of doors opening and

closing. He explains that loud noises make him jump or induce panic attacks because

he is afraid someone will come into his cell and attack him. He is afraid that officers will

enter his cell and beat him. He avers being hyperaware, even paranoid.

He believes his validation is entirely wrong and unfair. The unfairness makes

him very resentful. He claims that far from being connected with a gang, he has served

as a mediator and negotiator for peace whenever there has been discord in the general

population. His wrongful consignment to SHU makes him very upset, but he constantly

tries to keep his anger suppressed and maintain a positive attitude. In fact, he presents

as cheerful and positive. He does not utilize mental health services. He believes the

mental health staff is very uncaring and there is no confidentiality. He reports that it is

very dangerous to let staff know about one's emotional problems. Also, the only way a

prisoner can talk to mental health staff is to be placed in a "therapeutic cubicle," which

"makes you feel like you are an animal in a cage," so he does not utilize mental health

services. He suffers frequent nightmares about violence, something that he never

experienced prior to being in SHU. In addition, the fact that medical staff are inattentive

and uncaring causes him to be very frightened that were he to suffer a life-threatening

emergency, they would fail to respond adequately and he would die. He concludes,

"They want us to die in here." He becomes easily distracted, cannot concentrate, and

loses the initiative and capacity for accomplishing tasks. Then he stops trying to

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accomplish many tasks. He falls into a state of dampened emotions and little energy to do anything. Then he despairs because he believes he will never be released from SHU, therefore he will never be paroled, and he will die in the SHU without having meaningful contact with loved ones.
Prisoner #1 has been in a SHU since 1986. He was transferred to the SHU at PBSP when it opened. He complains of inattention from medical staff, and he reports that the physician told him if he wants better care he needs to “de-brief” and go to general population. He suffers from severe insomnia. A part of the sleep problem is the noise that occurs throughout the night. The slamming of doors wakes him, and causes anxiety that his door will open and someone will come into his cell and attack him. He feels that he is being given just enough food and water to stay alive, but he is not actually living. He tells me: "I'm locked in a cell, powerless, I have to rely on these people (staff) for everything, and they treat me as less than human. As soon as you realize that this will never end, and that you are stuck being at the mercy of staff who hate you, then you become more depressed, hopeless and angry."
Prisoner #6 reports many symptoms that began only since he has been in SHU. He
has severe problems with concentration; for example, when he tries to read he forgets what he read a paragraph earlier, so he loses interest in the text and puts the book or newspaper down after reading only a few lines. He used to write things down to compensate for his failing memory, but he has stopped doing that because his eyes are weak (he thinks this is related to his glaucoma) and he cannot see what he is reading. This results in inactivity in his cell, and loss of contact with what is going on in the world. He lays in his bunk quite a lot each day. He also feels he is hyper-aware and has a strong startle reaction, and he experiences visual distortions. He avers wide swings of emotion, anxiety, fantasies of a violent nature, dizziness, low energy and inertia, no interest in any activities, easy crying, blaming himself for things, worrying incessantly, having to do things very slowly to insure correctness, episodes of palpitations, episodes of nausea, and difficulty sleeping. He feels that the officers taunt the prisoners, but he has learned to ignore them. He feels that he closes himself off to

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others, stays to himself in his cell while not speaking to others, he feels very lonely and

sad, and he is always worried that his resentment will break loose and he will get into

trouble.

Prisoner #3

had been in

the SHU at PBSP for 20 years at the time of our interview. He began a 15-to-life

sentence in 1989. He participated in the hunger strikes in 2011, even though he knew

he might die, because he felt hopeless about getting out of SHU and eventually being

paroled. He felt that the hunger strike would be a way to change the policies that are

currently designed to keep him in SHU until he dies. He does not believe there is any

valid evidence he is associated with any gang. The pettiness and unfairness of his

continuing validation upset him quite a lot. He reports that as the first few years of a

prison sentence go by, you do not see your family, but you can tolerate it because you

hope you will eventually be released and go home. He reported that when many years

go by and it does not look like you will ever be paroled, and phone contact is not

permitted and visits are extremely difficult and rare because of geography and the awful

way staff treat visitors, it really gets you down. Several members of his family have

passed away since he has been in SHU. He tells me: "Life just slips away.” He suffers

from many symptoms that are included in the literature on the effects of isolated

confinement, including anxiety, problems sleeping, excessive perspiring, deteriorating

eyesight, obsessive ruminations, oversensitivity to stimulation, mounting anger, and

despair about ever being released from SHU. He reports deteriorating memory and

progressively more trouble concentrating on anything. He thinks that thoughts about his

son and his family intrude on his concentration, and then he gets sad and cannot

continue.

Prisoner #4

had been in SHU for

27 years at the time of our interview. He was transferred to PB SHU close to the time it

opened. The symptoms he reports include very negative thinking, severe anxiety,

frequent rage, hopelessness and lethargy. He does not initiate conversations, is not

motivated to do anything, and feels like he is in a stupor much of the time. He feels

lightheaded when he leaves his cell. He becomes confused and disoriented; as he put

it, "It's like I'm not really here." He has trouble concentrating on reading a book,

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watching television programs and writing a simple letter. When he is transported by

staff he becomes irritated, feels lost and becomes numb. He has lost all hope of being

released from SHU and has lost interest in everything. He reports: "I wake up every

morning consumed with feelings of anger and rage directed at prison staff over my

continued isolation, restrictive conditions, and loss of family." He suffers from severe

insomnia. He repeatedly wakes and cannot go back to sleep because of the loud

opening and shutting of doors, officers stamping along the hallway all night long and

pointing their flashlights at his face every few hours for "count." He says he is very

depressed most of the time. He tries to suppress his sadness and not let others see it,

but then he becomes "blank," out of touch with all feelings. He feels tired all the time.

He has trouble reading because he cannot concentrate and cannot remember the

previous paragraph or page. As he gets older, health problems multiply, and he is very

worried he will not get proper medical care. He dreads getting to a stage where he

cannot take care of himself. He is not suicidal, but he feels hopeless about his situation.

He does not seek mental health treatment because he believes mental health staff

members are uncaring and unhelpful, and besides, he believes a history of mental

health treatment has an adverse effect on his chances for parole. Also, he does not

believe that contacts with mental health staff are confidential. They interview prisoners

at cell-front within earshot of other prisoners and staff, and if they "pull you out" (take

you to an office), everyone on the pod knows about it.

Prisoner #11,

had been in

the PB SHU for 15 years at the time of our interview. He believes he will never be

granted parole as long as he is in SHU, and that he will never get out of SHU. This

causes him to feel hopeless. He believes the main reason for his validation is that he

said hello to another prisoner he passed in the hall, but feels this is ridiculous and unfair

because he always says hello to everyone. Because he feels the punishments and

especially his consignment to SHU are entirely unfair, he cannot trust the authorities or

the staff. But since his life is totally controlled by staff and there is nobody else to ask

for help, this creates a quandary for him. He has had progressively less contact with

family members as the years in SHU have gone by. He suffers many symptoms. He is

anxious much of the time, and has intermittent panic attacks where his heart pounds

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and he has trouble breathing. He cannot sleep and gets only a few hours sleep per

night. He is increasingly out of touch with his feelings. When asked how he feels he

responds that he does not feel. He thinks there is no longer any purpose in life. He has

severe concentration difficulties, for example he has to read paragraphs over and over

in order to understand content. He cannot focus on a topic or a task. It takes an

extraordinarily long time for him to write a letter, as his mind simply wanders.

Prisoner #8

had been in

the SHU for 14 years at the time of his interview. He has not been charged with any

violent crimes and has received no gang-related infractions, yet he is validated and

repeatedly re-validated as a member

He refuses,

on principle, to “de-brief”. He participated in the 2011 hunger strike because he

believes that unless something changes, he will die in the SHU. He participated in the

hunger strike in spite of the fact he knew he might die from starvation. Sparse contact

with family makes him very sad and lonely. He reports many symptoms that he is

certain only commenced after he came to the PB SHU, including memory problems that

have worsened over the years along with an inability to concentrate. The exception is

his writing, which he does to stay sane. He writes about getting older, dying, his

sadness about his older brother dying without his having a chance to see him, among

other topics. He believes the long-term effects of SHU consignment include the bags

he has under his eyes from chronic and unremitting sleep loss, extreme emotions that

range widely through the day, waking up angry every day about the unfairness of it all,

deep grief about not raising his son and now having his son go to prison. He avers

talking to himself often and worrying that the SHU will drive him mad. He says, "I feel

like I am here but not here." He suffers from ongoing severe anxiety. He is hyperaware

of others' presence, cannot tolerate anyone standing behind him, and needs to see the

hands of anyone he is in contact with. He has frequent flashbacks to cell extractions

that happened years ago, not at PBSP. He avers a strong startle reaction. He believes

he is phobic. To this day, he needs the door to the shower to remain open when he

takes a shower. He becomes hyper-alert when officers approach his cell. He is

anxious most of his waking hours, with only a little relief when he exercises or

writes. He says, "They try to make you crazy, but I struggle to remain sane." He has

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progressively isolated himself over the years in SHU, and meanwhile has found that he

is less and less in touch with how he is feeling. He is saddened by the fact it becomes

more and more difficult to see himself ever being in the community again.

He feels he almost died during the hunger strike, and tells me that if he died that

would be okay with him because living in SHU is not really living at all. He reports being

taken off of his heart and blood pressure medications during the hunger strike. He is

very close to his family, especially one sister who writes to him and "keeps me

going." He was close to his wife at the time he was arrested for the instant offense, but

feels his being in the SHU led to their breaking up. They simply could not arrange

quality visits and he is not permitted to have phone calls. If he had been in general

population, visits and phone calls would have been more realizable and he believes his

marriage would have remained intact. He

takes

medications for his heart condition as well as for hypertension. He believes that he has

had to learn to suppress his feelings in order to survive in SHU, and that were he to

express much in the way of feelings in SHU he would be dead. But then the

suppressed feelings come back at him during the night and that is why he cannot

sleep. Then, the loss of sleep makes all of the emotional pains and symptoms

worse. He does not talk to mental health staff because he finds them uncaring and

objects to the lack of confidentiality when officers are permitted to overhear sessions or

are told of the prisoners' personal problems.

Prisoner #2

entered prison in 1981 and was validated as a member

in 1985. He believes that he was validated not because of any

involvement with the , but because he was an advocate for peace in the troubled

general population of the early 1980s. He has a severe back ailment, for which he feels

he receives terrible medical care. He does not utilize mental health services because

he believes they are not confidential. He avers loss of ability to feel or react emotionally,

very low energy, lack of motivation to do anything, intense distrust of the administration

and staff, worry that staff are watching him, self-blame for his situation, ongoing nausea

and stomach pain, frequent headaches, and numbness and tingling, among other

symptoms. When he complains to staff about anything, they tell him if he does not like

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it he should "de-brief." He could not stop crying when his sister died a few years ago. He had not been able to see her. He reported that the separation from loved ones that is part of being in prison is magnified by the lack of phone calls in the SHU and the hardship for family members to travel to see him. Even then, no contact visits are permitted and the permitted visits are short. There are no phone calls. He has great difficulty concentrating on any task, and relates that to the loud noises in the SHU, sleep loss on account of the noise, and the general effects of isolation. He feels he has no ability to share what is on his mind with anyone, and this leads to a further sense of isolation and despair. He spends much of his time reading and writing, and feels that his optimism and continuing attempts to express himself in his writing keep him sane. He suffers from many other symptoms known to be related to long-term isolation, including trouble concentrating, memory impairment, anxiety, mounting anger, ongoing fear his anger will get out of control and he will get in trouble, fears of others attacking him and hyperawareness of sounds plus a strong startle response.

3. More than a decade in SHU results in additional symptoms that go beyond those identified in the literature.
Over the course of these interviews, it became apparent that these prisoners had symptoms and disabilities that emerged only after prolonged SHU confinement, i.e. symptoms that are mostly unique to prisoners who experience SHU confinement lasting many years, where they remain in a cell nearly twenty-four hours per day and are cellfed, including those who have spent ten years or more in SHU. While they also aver symptoms and disabilities that are widely reported by prisoners in isolated confinement for three months and are reported in the literature, they aver additional symptoms and disabilities that are, for the most part, unique to prisoners who experience SHU confinement for many years or more than ten years.
Over and above the symptoms I have listed thus far, all eleven men still in SHU when I interviewed them report that over the years they have learned to keep quiet about their feelings and not to talk very much to others – neither staff nor other prisoners. They experience quite a lot of anger after being consigned to isolation; they fear the anger will get them into trouble if expressed; so first, they are silent about their

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feelings; then they begin to suppress feelings (beginning with anger, but the suppression spreads to all feelings) to the point where they do not even know what they are feeling; and as a result they feel numb or dead. In addition, they have progressively isolated themselves more and more even within the context of SHU confinement. They give various reasons for not talking about much with their neighbors or even a cellmate. Some say it is the fear that someone will get mad at them and then inform on them in the process of “de-briefing”. Others report that living so close together makes tempers flare and they would rather not have enemies. Others say that if they give expression to their anger they will lash out at officers and get into even more trouble. Thus, for various reasons, the universal experience of all eleven men I met with in the SHU is that over many years they experience progressively more emotional numbing and greater isolation. Prof. Haney has described the phenomenon as a form of “social death.”35 Meanwhile, most of the prisoners I interviewed report that their despair grew in intensity over the many years of isolated confinement.
In other words, over and above the list of symptoms from the literature about long-term isolated confinement (anxiety, perceptual distortions, mounting anger, insomnia, compulsive acts, hyper-awareness or strong startle reaction, despair, problems concentrating, memory problems and so forth), there evolves over many years a pattern of increasing self-isolation and emotional numbing as well as enlarged despair, such that the prisoner progressively shuts himself off from other human beings and loses touch with his own feelings. These men have also been living with the very serious symptoms and disabilities that I described in Sections VIII.B.1 & 2. When prisoners live with many of these serious symptoms and disabilities, the symptoms and disabilities become chronic and even more damaging. Then, in addition to the problem that they are suffering from these symptoms and disabilities for many years (here, more than ten), they also suffer from an evolving exaggerated isolation and numbing as well as enlarged despair.
As I will discuss below regarding individuals who have been released from SHU, this pattern is very long-lasting. In many, it is seemingly permanent. In that sense, it is

35 Craig Haney, Mental Health Issues in Long-Term Solitary & ‘Supermax’ Confinement, CRIME & DELINQ., 48(1): 124-156 (2003).

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similar to a personality change – that is, a chronic pattern of experience and behavior. Quite a few of the prisoners tell me that they feel their personality has been substantially changed by their years in SHU, and now their personality involves much more isolationseeking and incapacity to express their emotions. Of course, each experiences this dual development in his own personal way, and so they each express the themes of emotional numbing and progressively more extreme isolation in idiosyncratic fashion.
Prisoners who have been in SHU for ten years or longer suffer from a number of severe symptoms, including disorientation and numbness that derive from the lack of memorable feelings and social interactions. Most report that they feel each day is the same, and they lose all sense of time. Or they simply feel "numb," "dead," or they lack motivation to do anything, even to exercise. As Prisoner #8 put it, "I am so busy suppressing feelings and isolating myself all day, and so much anger builds up in me from the conditions, that I can't sleep at night because the sound of a door opening or closing wakes me and I get anxious about someone coming in on me and I can't fall back to sleep." The lack of sleep exacerbates the irritability and anger, so they feel a need to suppress their feelings all the more and to isolate themselves further.
Thus there is a clear pattern in the stories of all eleven of these men about the psychological consequences of spending a decade or longer in the SHU. That pattern includes, in addition to the many years suffering the symptoms and disabilities I listed in Section VIII.B.1 & 2: Angry feelings about being in segregation for so long, having little or nothing meaningful to do, being deprived of fair due process and being provided no way to win their release from SHU; and the suppression of the rage, which, along with the harsh isolative conditions, leads to a numbing of all feelings so that over the ensuing years and decades the prisoner becomes less in touch with his feelings and less expressive. Meanwhile, concerns about evoking hostility in others, boredom with the monotonous conversations that occur in the SHU, concerns that others will use information they receive to lie about them when they “de-brief”, or cultural alienation cause the prisoners to progressively isolate themselves, even from cellmates and neighbors, but certainly from staff. Thus, they are isolated from family and the outside world because visits, phone calls and mail are so limited, and then they isolate themselves from the people physically nearby. They become increasingly isolated on

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all levels. There is a growing feeling that there is no use doing anything, and that nothing will change, so the prisoners shut down to a great extent, become unmotivated to do anything (the memory loss and problems concentrating contribute to this phenomenon), and become listless and lacking in initiative. Some describe this state as depression, some as numbness, some as deadness. It is quite evident to this interviewer that the despair they originally experienced early in their tenure in the SHU grows more intense as the years go by. The prisoners withdraw into themselves, spending endless hours silent and alone, entirely out of touch with how they feel. They get out of practice expressing themselves. They experience intense despair, but for them suicide is not an option. They begin to feel numb, unreal, non-human, or dead. I have conducted upwards of a thousand interviews with prisoners in a variety of correctional settings, and I have never before found a pattern at this level of specificity described universally by a group of similarly situated individuals.
In the medical and psychiatric literature on the consequences of torture, a comparison is often drawn between the consequences of torture and the consequences of severe trauma (including but not limited to Post-traumatic Stress Disorder).36 What I am describing here is a third entity, the consequences of very long-term solitary confinement as obtained in the PB SHU when prisoners remain there for over a decade. What we find is men who are a shell of their former selves, passionless and isolated. They are very disabled, but their disability is not readily apparent because, after all, they live in a cell and meals are delivered to them by staff. All 11 of the men I interviewed at the PB SHU (and all of the additional 13 men I interviewed in other settings) exhibit almost all of the characteristics that are described in the literature about survivors of torture. For example, Rona Field's list of psychological consequences of torture include, besides suicide and psychiatric breakdown requiring hospitalization (which are not the case for these men), anxiety, fear, depression, irritability, introversion, difficulties in concentration, chronic fatigue, lethargy, restlessness, communication difficulties, especially expressing emotion, memory and concentration loss, loss of sense of identity, insomnia, nightmares, hallucinations, visual disturbances, and

36 David P. Eisenman, Allen S. Keller & Glen Kim, Survivors of Torture in a General Medical Setting, WEST J. MED, 172(5), 301-304 (2000).

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headaches.37 This is precisely the list of symptoms and experiences the twelve men I interviewed in SHU report.
These symptoms were reported by all 24 prisoners and ex-prisoners I interviewed, whether they were still confined in a SHU, had been transferred to a different prison setting, or had been released to the community. All these prisoners spent at least a decade in the SHU. It is quite stunning how all 24 of the men I interviewed averred having experienced the same tendency to suppress their anger and become numb (or feel “dead”) in the process, and the same tendency to isolate themselves even further than the architecture and program of the SHU required. In other words, emotional numbing and self-isolation are universally reported by prisoners who spend significant time in the SHU. It is difficult to say precisely when the exaggerated self-isolation and numbing evolved. There are individual differences. What is very clear is that prisoners who have spent ten years or longer at the PB SHU present a qualitatively different picture of symptoms and disabilities than do individuals who have been in isolated confinement for much shorter periods, and the difference is encapsulated in my description of the exaggerated isolation, numbing and despair, as described above and in Section B4 below.

4. Description: Prisoners’ reports of additional symptoms of selfisolation, emotional numbing and enlarged despair.
Prisoner #11, the man who had been in the PB SHU for 15 years when interviewed, gets angry about the awful deprivations and conditions, the unfairness of being in SHU so long when he did not do anything to deserve it, and the lack of recourse to have anything changed. But as much as the anger mounts, so does his fear he will "go off" again and do something dangerous. So he suppresses his anger, and that makes him entirely out of touch with all feelings. He becomes numb and listless much of the time, unmotivated to do anything. When asked how spending many years in SHU is different than spending a year or two, he says that he has progressively kept to himself more and more. He has been closing down his emotions and stopped

37 Rona Fields, The Neurobiological Consequences of Psychological Torture, in The Trauma of Psychological Torture, 1555, (Almerindo E. Ojeda ed., 2008)

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talking to others, even to his cellmate and prisoners in neighboring cells. He does not

talk to anyone about personal things.

Prisoner #9 admits that in order to keep his anger suppressed so he will not get

into trouble, he has to isolate himself from others so there will be no opportunity for him

to express anger. When he gets angry, which occurs frequently (although he was not

an angry person before being in SHU), he does not talk to anyone for several days until

his anger cools down. But meanwhile, he feels very isolated and out of touch with all of

his feelings. He sees others lash out and get in trouble. Again, his attempts to suppress

his feelings lead to his self-isolation, and then he feels even more out of touch with his

feelings, alone and lonely. In other words, this is a poignant personal description of what Haney terms “social death.”38 He does not want to deal with his feelings, so he

becomes numb. He falls into a state of dampened emotions and little energy to do

anything. Meanwhile he isolates himself from others so as not to get into any disputes

or lose his temper.

For Prisoner #10, more worrisome than his anxiety, problems concentrating and

intense startle reaction, is a total loss of the capacity to feel. He says he does not feel

anything, and this makes him "feel dead." Days go by without him feeling anything, "as

if I am walking dead." He keeps most of his thoughts to himself and says very little to

other prisoners and to staff. He is afraid of sharing what he is feeling and then finding

that others attack him because they disagree. He says, "You never want to say what

you really feel because others will think there's something wrong with you." On account

of such concerns, he ends up saying very little to others, and it frightens him when that

leads to his losing touch with his feelings altogether. Increasingly he avoids talking to

prisoners on his pod because he does not want anyone he is going to be forced to live

closely with to get upset at him. The numbing and isolation have been building over the

years he has been in SHU.

Prisoner #5,

tells me “you need to be

careful what you say in here. You have to withdraw, I go silent, everyone understands

silence in here.” He avers working hard to suppress his mounting anger, and then

38 Craig Haney, Mental Health Issues in Long-Term Solitary & ‘Supermax’ Confinement, CRIME & DELINQ., 48(1): 124-156 (2003).

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suppressing other feelings as well, then he loses touch with what he is feeling. “I don’t want to let out what builds up in me, so I shut down completely.”
Prisoner #2 tells me he has become increasingly isolated from others as the years in SHU have progressed. He also feels one has to be careful about speaking to staff and other prisoners because harm can come from saying the wrong thing or telling something to the wrong person. So he, like others in the SHU, becomes progressively more isolated and has ever fewer opportunities to share thoughts and feelings with others. As a result, he becomes less aware of how he is feeling and less capable of expressing himself. He feels extremely cut off from family, partly because phone calls are not permitted, but also he believes staff tamper with his mail, destroying many letters so he never receives them. As the years in SHU have progressed, he has become increasingly out of touch with his feelings, and increasingly isolated, so he feels his growth has been stunted. Since he will not participate in "de-briefing" (because he is opposed to the informant system and fears retaliation toward his family), he sees no way for himself to ever leave the SHU. He believes one cannot be paroled out of the SHU. This causes great despair. He feels increasingly isolated. With contact restricted so harshly with his family, he has nobody to talk to. He stops trying even to write letters and becomes overwhelmed by sadness. He has received a 128 (minor disciplinary write-up) for saying “hi” to a prisoner in the next pod as they passed each other. So, in order to avoid disciplinary trouble, he simply does not talk to other prisoners. He is not given access to the evidence that results in his validation, and has no opportunity to dispute the charges against him. He believes that the entire process is unfair, and the unfairness and lack of justice make it much more difficult to tolerate the harsh deprivations. He has to clamp down on his mounting anger and not show it or he will get in trouble. Increasingly he keeps all his feelings to himself, and even stops knowing what he is feeling.
Prisoner #1 has been in a SHU since 1986, or 26 years. He is serving 21 years to life, and has been eligible for parole since 2004. He was transferred to the SHU at PBSP when it opened. He feels that as time passes, conversations become trivial. Nobody wants to say too much to the others because they are afraid something they say will evoke anger and then they will be stuck on a pod with someone who is mad at

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them, or someone will "de-brief" and use information they shared to falsely accuse them

of gang affiliation. Then the trivial conversations suppress one's intellect, and halt

personal growth. Besides, he reports, 99% of one's verbal contact with other prisoners

involves disembodied voices (i.e. they cannot see each other from their cells; they can

only see the far blank wall). When they do see one another, for example when one of

them is in transit to the "yard" and passes in front of another's cell, he gets very anxious

because the experience of face-to-face contact has become so unfamiliar. This

phenomenon worsens over time, and he finds he has given up trying to talk. He feels

he is becoming silent and paralyzed. He has found himself increasingly out of touch

with his feelings and severely isolated from others.

Prisoner #7 reports that the unfairness and absurdity of the entire validation and

parole process make him very angry, and very hopeless about ever getting out of SHU.

He says, "I struggle to control my emotions, my mother taught me to control my

emotions." But he feels that over-control is bad for his medical condition, for example

his blood pressure. He believes that suppressing anger or keeping it to himself causes

a rise in blood pressure. So he is caught between his need to control his anger toward

staff, which could get him in trouble, and his need to give expression to his emotions so

he will not worsen the hypertension. He opts in the SHU to over-control his anger and

other emotions to avoid trouble. He has learned over the years to suppress his anger,

but to do so he has had to suppress all feelings to the point where he does not any

longer know what he is feeling. He says that he does not want to let himself succumb to

feelings. If he did, he is afraid he would cry relentlessly and roll up into a ball in the

corner of his cell.

Prisoner #12,

has

been in prison over half his life, and has spent much more than ten years in the PB SHU.

He explained his tendency to isolate: “Not everyone is on your level of understanding,

so you don’t want to let anyone see you’re angry. It might stir them up, so you withdraw

and become silent.” He doesn’t feel he has totally lost touch with his feelings. It is just a

matter of having to hold back his feelings around volatile people. He prides himself on

his skill at not stirring people up. He is always very cautious around other prisoners,

which causes him to isolate himself even more than what’s required by the isolative

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conditions in SHU. He absolutely refuses to inform to staff about anybody or anything, as a matter of principle, and this makes him keep his conversations with staff to a minimum. So progressively, over the years, he has become isolated on all fronts.

C. Prisoners Who Were Released from PB SHU. 1. These interviews reveal a SHU Post-Release Syndrome
Whether they had been released to a general population or stepdown unit within the CDCR or back to the community, all of the prisoners I interviewed who had spent over ten years in the PB SHU and were no longer in the SHU reported they had experienced the same set of symptoms and problems that the 11 prisoners who were in the SHU at the time of our interviews reported to me. (See Section B, above.) They reported the same symptoms that fill the literature about long-term isolated confinement, including intense anxiety, disordered thinking and paranoia, problems concentrating, problems with memory, compulsive acts, despair, suicidal thoughts or actions, severe insomnia, nightmares, and so forth. Like the 11 prisoners who were in the SHU when I interviewed them, they also reported their prior tendency while in SHU to numb their feelings and isolate themselves even more than SHU confinement required, and their mounting despair.
In addition, however, the group of prisoners who spent a decade in the SHU but are now in a different environment, whether in the prison system or in the community, evidenced further symptoms and problems that emerged only after they were transferred out of the SHU. Their experience demonstrates that human beings survive in an isolative setting like the PB SHU, where they are alone in a cell nearly 24 hours per day and mostly idle, by shutting down emotionally and isolating themselves in exaggerated fashion, but that when they are released from SHU, the measures they took to survive within the SHU setting become detrimental and disabling in their efforts to become productive participants in the larger community.
I will begin with the report of one ex-prisoner, Prisoner #13, to illustrate the general pattern. Then I will describe the pattern. Finally, in Sections VIII.C.2 & 3, below, I will provide other prisoners’ and ex-prisoners’ specific reports of the problems they encountered after leaving the SHU, and in most cases, right up to the present.

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In terms of reports about what it was like to be in SHU, Prisoner #13 (a
man released nine months earlier to the community where he now lives with
his wife), reported on his experience while in the SHU:
I got less social over the years. It just started happening. Nobody talks to you. There’s not much to talk about. I’d ask ‘how are you doing.’ I saw myself changing, I didn’t really want to talk. My social skills deteriorated. Slowly, with my wife’s help, I am trying to talk. But mostly I don’t say much. You stop talking because you’ve already heard everyone’s stories. I didn’t have anything to say. As the years go by, you are disintegrating. You don’t even know what’s happening. You might say ‘good morning,’ or you might not. There’s nothing more to say. I kept saying ‘good morning,’ but some people stopped talking altogether. I was also afraid anything I said could be used against me in committee. They would find a drawing in my cell. I wasn’t gang-related, but I drew images from the Mexican flag. I was always scared they’d say that’s proof I was in a gang….. In SHU, when I got agitated, angry, I would exercise hard to keep from expressing anger and getting in trouble, so I would exercise to exhaustion. Gradually I lost touch with all feelings. You feel dead, you are dead to society, to the mainline. If you don’t keep your mind occupied, you lose it. You see guys going crazy. So you clamp down on your feelings, don’t talk much, and then you lose touch with what you’re feeling.

It is stunning how, without exception, all of the prisoners who were no longer in

SHU when I interviewed them echoed the very symptoms from their time in the SHU

that the 11 men I interviewed in SHU had reported. In other words, they report that

when they were in the SHU they experienced many of the short term symptoms and

disabilities I have previously discussed (Section VII), as well as the self-isolation,

despair and numbing symptoms that go beyond those experienced by prisoners who

spend less time in the SHU and that appear in the literature (Section VIII.B.3 & 4).

However, in addition, over and above these symptoms and disabilities, Prisoner #13

explained what it is like to be released into the community:

They left me off in downtown

. I got out with no money

and started walking. I waited for a ride, needed a pay phone to call

my wife. I kept trying to get on my feet, get my mind back to normal.

My mind is still not normal because in the SHU I started thinking I’d

never get out, especially when I was denied at six year reviews.

When I [first] went to the street, it was really weird. I felt all caved in.

I always wanted to be in my room and sit. I did not want to go out of

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the house. I would stay in my room 4 or 5 hours. I had TV and music in my room. I didn’t like going to the store – too many people. I wasn’t used to being with people. I’m always hyperaware, I won’t let anyone touch me. It’s not easy. It’s like coming out of the insane asylum. Now it’s been 9 months, I still spend a lot of time in my room, that’s where I’m most comfortable. I can go to the minimarket, but I can’t go to the supermarket. Sometimes my wife talks me into going to a park or karaoke bar. When I got out, a lot of people came for interviews. I drank beer to relax. It’s really difficult to go to new places.
Prisoner #13’s report is very similar to the report of all the men I interviewed who
had been released from the SHU and were either transferred to another prison setting
or released from prison to the community. Their experiences amount to a syndrome that is characterized by the following symptoms:39
• Disorientation immediately following release.
• Anxiety in unfamiliar places and with unfamiliar people, and the daily life events that had been ordinary prior to SHU confinement become unfamiliar events
following release from SHU.
• A tendency to retreat into a circumscribed, small space, often a bedroom or cell.
• A tendency to greatly limit the number of people one interacts with, usually limited to close family members and a few friends.
• Hyperawareness of surroundings, for example a need to sit facing the door to a room or with one’s back to a wall.
• Heightened suspicion of everyone who comes close, especially strangers.
• Difficulty expressing feelings.
• Difficulty trusting others, even one’s spouse or first degree relative.

39 A “syndrome” is “a set of symptoms occurring together; the sum of signs of any morbid state; a symptom complex (see http://medical-dictionary.thefreedictionary.com/syndrome). My description here of a SHU Post-Release Syndrome is new; I am describing a syndrome that has not been identified in the literature about the effects of isolative confinement because there has been so little attention in the past to the post-release course of individuals confined for significant periods in harsh isolative conditions. The work of Profs. David Lovell, Craig Haney and the Arizona AFSC (op. cit.) provided some preliminary discussion of a SHU Post-Release Syndrome, but those authors did not use the term “syndrome” in their discussions.

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• Problems with concentration and memory, beginning in the period of SHU confinement and continuing after release, making it difficult to accomplish tasks and to work.
• A sense of one’s personality having changed. The most often reported form of this change is a change from a relatively outgoing, friendly individual with a sense of humor prior to SHU confinement, to a more serious, guarded, and inward individual following release from the SHU.
• In some but certainly not all cases, there is a tendency to resort to alcohol and illicit substances to lessen the pain and make the confusion and anxiety more bearable.
All of these problems are experienced intensely for many months after release from SHU, but then the problems continue in less intense fashion, most often right up to the present, which might be years later. This set of psychologically harmful experiences occurs in both prison and community post-SHU settings. It does not seem to matter whether the prisoner is released to the community or simply transferred to a general population prison within the CDCR.
This syndrome shares many characteristic symptoms and problems with PTSD (Post-traumatic Stress Disorder). Some of the men I interviewed do qualify for a diagnosis of PTSD (indeed, Prisoner #15 receives S.S.I. total disability for PTSD). Others have suffered multiple traumas, but their post-traumatic symptoms are not sufficiently intense and disabling to qualify them for a diagnosis of PTSD. But the diagnosis is, to a certain extent, beside the point. The picture we see in PTSD is a person who has been traumatized and then has strong emotional reactions to the trauma, but works hard at suppressing the resulting feelings and agitation. He or she isolates him- or herself, dreading social interactions, and tends to suppress feelings. Then, unwanted and dysfunctional feelings break through the individual’s attempts to suppress all feelings, and erupt in irrational rageful acts or inappropriate outbursts. The reclusive Vietnam veteran who one day comes out of the house where he had been secluding himself and goes on a violent rampage is the tragic exemplar of this pattern. I do not find that the plaintiffs all suffer from PTSD, nor that confinement in SHU in itself constitutes trauma. Rather, I mention the example of the Vietnam veteran with PTSD

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as a model of how certain individuals, on account of very stressful experiences, work hard at suppressing their feelings and isolating themselves. Occasionally their suppressed rage or their profound grief breaks loose and they have an emotional episode that is very upsetting to them and those close to them.
I will give examples from interviews I conducted with prisoners who leave SHU after approximately ten years or longer and go to general population (Section VIII.C.2, below), and prisoners who leave SHU and return to the community (Section VIII.C.3, below). All prisoners who have been released from SHU, to either setting, report a syndrome of very disturbing sensory and emotional experiences for months, including a strong startle reaction with loud sounds, feeling overwhelmed by lights and people moving about, feeling paranoid that someone will attack them, feeling hesitant to talk to and trust others, and so forth. A lot of these symptoms wane somewhat (never entirely) and these individuals move into a longer-term syndrome of relative isolation and numbness that they tell me they fear is permanent.

2. Description: Reports of former PB SHU prisoners released to other prison settings
Prisoner #13, in his recounting of experiences at California Correctional Institution at Tehachapi (Tehachapi) after being released from SHU to general population, identified themes that emerged in all the other prisoners I interviewed who had been released from SHU to an in-prison stepdown program or general population setting (see Section VIII.C.1, above). In fact, all of the prisoners I interviewed who had been released from SHU but remain in prison aver over half of the component symptoms and problems I have identified as the SHU Post-Release Syndrome. The difference between their reports of the syndrome and reports from prisoners who were released to the community (see Section VIII.C.3, below) is that the elements of the syndrome occur in a prison context. Thus, for example, the prisoner who left SHU but remains in a general population prison setting reports staying in his cell by himself to the extent he is permitted to do so, much like the ex-prisoner who returned home and lives in the community with family reports staying in his room by himself for many hours at a time.

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Many symptoms and disabilities I have mentioned that originated during a SHU term are reported by very many of the prisoners I interviewed, including those who had been released from SHU and transferred to general population settings. For example, consider the paranoia that is widely reported by denizens of isolated confinement units including the SHU at PBSP. Prisoner #9, another man I interviewed while he was still confined at PB SHU (see Sections VIII.B.2 & 4, above), was at Substance Abuse Treatment Facility (SATF) adjacent to Corcoran State Prison when I interviewed him again. He had been transferred to SATF from PB SHU on Step 5 of the Step Down Program, but has graduated from the program and is now in General Population at this Maximum Security facility. Despite this change in his status, he remains in the same general population cell. He reports being very slow to mix with other prisoners when he was released from SHU. He tells me that in the SHU, a prisoner is locked into the shower and thus not subject to attack, but in a general population prison multiple prisoners go to the shower at once and the door is unlocked, so there is a certain danger of assault. Prisoner #9 worries that he might be paranoid, thinking whenever he goes to the group shower in general population that he is in danger of attack. He cannot determine if his fear of attack is paranoid, or whether it is a reality-based concern and he does need to be alert to signs of impending attacks in the shower. In my opinion, his fear is a combination of the two: there is a certain danger of attack in a maximum security group shower area, but he also is inclined to “ideas of reference” (a technical term for paranoid thinking), and the ideas of reference were caused by the many years he spent in the SHU.
Prisoner #9 was very anxious about that for some months after arriving at SATF. He continues to look around all the time to be certain he is not about to be assaulted. He feels he obsesses about his safety quite a lot, in ways he never did before his long stint in SHU. In the SHU, he explained, if your cell door opened when it was not supposed to be open, you always had to be ready to defend yourself: it likely meant another prisoner had arranged to have your door “popped” and was about to enter and assault you. He knows this is irrational most of the time, but he is always hyperaware of doors opening and closing at SATF. When a door opens, he has a flash of panic that he is subject to an assault. He gets very anxious whenever another prisoner comes

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toward him, and explains that he never felt that in general population prior to going to

SHU. He feels he became quite paranoid in the SHU, and his hyperawareness of

others in his vicinity seems to him a remnant of that paranoia, though he reports it

diminished quite a lot after he was at SATF for several months. He states, “I was like a

hermit at Pelican Bay. Here I am adjusting to being with other prisoners, and I come out

of my cell a lot.” Most of the 24 prisoners I interviewed reported, or seemed on mental

status examination to experience, some degree of paranoid ideation that reflected a

combination of reality-based concerns and distorted ideas of reference that began

during their tenure in the SHU. Prisoner #9 also avers carving out a very small space in

the dayroom or yard at SATF when he first arrived at SATF and for several months.

Except for the hours he worked in his prison job as a clerk at SATF, he would try to stay

in his cell or only be in that particular space with other prisoners he knew. That

tendency remains, but is much less intense.

Prisoner #7,

man who had been one of the original twelve

prisoners I interviewed at the PB SHU, was subsequently transferred to Maximum

Security General Population at CSP-Sacramento on

I interviewed him on

September 28, 2014. He told me that he is no longer in SHU, this means that he is

permitted out of his cell to go to the yard for 1½ hours per day. He appears depressed

and lethargic, and tells me he is exhausted all the time. When he first came to the yard

at CSP-Sacramento, he became dizzy, he thinks because he was overwhelmed by

stimuli and people all around. He found the noise oppressive, and jumped whenever he

heard a noise. He was “jumpy” for 30 days. Since then he has felt a strong startle

response but it has not been as extreme. He is nervous all the time. As a result, he

greatly circumscribes his activities, such as his travel around the day room and yard,

and he relates only to a very few prisoners whom he knows and trusts somewhat.

Since his release from SHU, his mind has been racing and he has felt very anxious. He

is constantly obsessing about what any sound or sight might mean. He has trouble

processing stimulation, so much so that he forced himself to stop trying to make sense

of it all. Rather, he stays to himself and to the very small space he has permitted

himself to be in, with the very few people he feels safe with. This means that his

activities during his free time are very constricted and limited. Visits are somewhat

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easier now that he is in a prison near Sacramento (his family is in Southern California,

so travel to Pelican Bay State Prison was very problematic), but when his daughter

comes to see him he is unable to be in touch with his feelings. He cannot cry with her,

he feels very cut off and it is a difficult struggle for him to sustain a conversation. He

continues to experience many of the problems that plagued him in SHU, feeling

anxious, unable to concentrate, difficulty sleeping, unable to trust others, isolating

himself, and so forth.

Again, as with the prisoners I interviewed who had been released from SHU and returned to the community, all nine40 of the prisoners I interviewed who had been

transferred from the PB SHU to general population in a facility within the CDCR averred

a large number of the symptoms typically reported in prisoners consigned to long-term

isolation (Section VIII.B.1 & 2, above); and all of them reported incrementally more

severe isolation, emotional numbing and despair as the years wore on for them in the

PB SHU (Section VIII B.3 & 4, above).

Prisoner #19,

, spent a total of 18 years in

the PB SHU. He was released in

to Step 5 of the Step Down Program, and

after a year his status changed to general population, even though he remained in the

same cell he had been in while on Step 5. He has been in prison since 1981. He told

me: “When you first get out you’re happy to be free, you enjoy inhaling air that’s not in a

concrete bunker; but soon all the difficult feelings hit you, the ones you’d been stuffing

down while in the SHU.” He always believed that his validation was wrong and unfair --

the evidence was hearsay from other prisoners who wanted to get themselves removed

from SHU. Staff repeatedly told him that that does not matter; if he wants to get out of

SHU he has to “de-brief”. He told me: “Growing up I was taught not to inform on other

people, so I wasn’t going to do that.” But the unfairness of his wrongful consignment to

SHU weighed on him. He was very resentful all the time, and this made him irritable

and made it more difficult for him to tolerate arbitrary, unfair and abusive treatment by

officers. He reports that he suffered from hypertension while in the PB SHU, but since

he has been at SATF his blood pressure has returned to normal. He continues to feel

“very stressed” and is convinced that going to work in his job as a janitor at SATF helps

40 Prisoners #7, #9 and Prisoners #18-24.
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relieve the stress. He reports there was a feeling of unreality when he first arrived at

SATF from the PB SHU. He was very happy to be out of the SHU, but for months after

arriving at SATF he tended to isolate himself, choosing to stay in his cell as much as

possible or in a familiar place he had staked out for himself in the dayroom. During his

first few months at SATF, he experienced a very strong startle reaction, was very wary

of anyone entering his space or vicinity, did not trust anyone, and was unable to share

his feelings. He felt out of touch with his feelings to the extent of feeling not really alive.

These problems have dwindled to a certain extent in the year and a half he has been at

SATF, but are still with him as he tries consciously to remain open to new experiences

and grow.

Prisoner #20,

avers a continuing tendency to

isolate himself that he first noticed while in the PB SHU, but he feels he brought that

problem with him to SATF. In fact, over a year after arriving at SATF, he is still very

anxious in the shower: “In the SHU, you were locked into the shower alone; here there

are a bunch of guys in there and you are vulnerable to attack.” He reports being

hyperaware of all the people in the area where he is located, and having a strong startle

reaction. He describes himself as paranoid, he has a very hard time concentrating on

almost any task, and he has a very hard time trusting others and letting them know what

he is feeling. He is married, but says that he has trouble sharing his feelings with his

wife: “I’m used to talking in the negative, about dangers lurking or people betraying me;

I have to learn to talk about positive stuff. I have to learn to open up, trust my wife, and

share my feelings. It’s very difficult after all those years in SHU.”

Prisoner #21,

was transferred to SATF from

the PB SHU in

after 23 years in SHU. He described his experience in

SHU becoming progressively more isolative and numbing his feelings, stating: “you had

to, to survive in there.” He explains that it is much better being at SATF, but he

continues to isolate himself, and has a lot of trouble trusting others. He too has a very

strong startle reaction.

His paranoia diminished over several months. He thinks having a job and being

with other prisoners who had shared his experience in the PB SHU helped him to adjust

to being in general population. He believes he has adjusted well to being in general

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population. He did experience for several months when he arrived at SATF, along with

quite a lot of startle reaction, paranoia, anxiety (especially when someone approached

or touched him, or when he had to leave his familiar small area and move out to another

section of the yard or the prison), irritability, angry outbursts that he struggled hard to

suppress, problems trusting people, problems sharing his feelings with others, severe

sleep problems, social isolation, and emotional numbing. He believes that all of those

symptoms diminished quite a bit after several months at SATF, although all of them

remain with him in much diminished form. He has a girlfriend, and now that he is in

general population they have contact visits. But he feels that he is unable to share a lot

of his feelings and inner experience with her – he is certain that is a result of all those

years of isolation and emotional numbing while in the PB SHU. He is working very hard

on opening up more with her. He thinks that SATF is a relatively small, familiar place,

and the real test of his ability to adjust to current conditions and maintain a normal

comfort level will come when he leaves prison altogether and re-enters the much larger

and more stimulating world of the community. He is nervous about that eventuality. He

reports significant hypertension while in SHU, and his blood pressure is much lower

now that he is at SATF.

Prisoner #22,

spent 18 years in the

PB SHU, said he felt weird and frightened when they took his handcuffs off and he was

surrounded by people (both other prisoners and staff). He remembers a very strong

need to stay to himself and avoid other people, which went on for many months.

Gradually he started to be more friendly, but over a year after arriving at SATF, he still

picks a small area of the dayroom that is his area to “hang out,” and he does not go

anywhere where there are more than a few people nearby. He feels he learned in SHU

to be indifferent to the world and to stop interacting with other people. He avers a

strong startle reaction. He is hypervigilant. He plans carefully how to respond if

someone enters his area. He pays very intense attention to everything he hears within

his earshot, wanting to be ready to defend himself if violence erupts. He feels he

remains paranoid about the intentions of others – something he learned in SHU – and

he finds it very difficult to trust anyone and let them get close. He tells me, “You

normalize yourself to a kind of deadness, it starts to seem normal.” Though he is very

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glad to be out of SHU and tries very hard to succeed in his efforts to improve himself,

that sense of deadness as normal continues to plague him.

Prisoner #23

was in and out of the

PB SHU three times, spending a total of 19 years there. When he first exited the SHU

and transferred to SATF, he stayed in his cell or a small space on the yard or dayroom,

and only related to a few other prisoners he already knew. He also experiences a

strong startle response with hyperawareness of all others nearby. He had a huge

amount of trouble trusting anyone and letting anyone get close. He experienced a great

amount of anxiety and felt numb a lot of the time. All of these problems waned in

degree after several months, but all remain with him. He has a great deal of trouble

expressing his feelings to his girlfriend who comes to visit because he learned in SHU to

suppress his feelings and share them with nobody.

Prisoner #24,

spent a total of 19 years

in the PB SHU, tells me he is still not comfortable with people a year and a half after

arriving at SATF and being in general population again. He states, “I am only

comfortable when I am back in my house [his cell]. I get real nervous in open spaces

like the dayroom or the yard, it’s like a life sentence of isolation.” He avers intense

anxiety, severe insomnia, a strong startle reaction, panic attacks when strangers come

close, problems with memory and concentration that interfere with reading and task

completion, and great difficulty sharing his feelings with anyone. All of these symptoms

began for him while he was in the PB SHU, worsened over the years in SHU, were very

severe when he first arrived at SATF and for several months, and have waned a little

since but remain very problematic. He tells me that when he knows he has to come out

of his cell to use the phone or take a shower, he gets very anxious. He is very

uncomfortable having people near. He fakes being friendly so he can make friends, but

he says he never really lets anyone get close. He tells me, “The inside of my cell is the

only place where I feel safe.”

It is quite stunning how one hundred percent of the prisoners I interviewed who

had been in the PB SHU and are now in general population settings reported many of

the components of the SHU Post-Release Syndrome I have described, citing examples

relevant to their continuing experience in prison. Again, all of these prisoners reported a

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long list of the symptoms and problems that I described in Section VIII.B.1. Very much like the 12 prisoners I interviewed while they remained in SHU, they also describe suppressing their feelings and isolating themselves to survive and stay out of trouble while they existed in a cell and were cell-fed. And again, like those who returned to the community, the same behaviors that were functional in the SHU became disabling (i.e. their isolation and numbness), and they each evidence many of the problems I listed above as components of the SHU Post-Release Syndrome. They are severely damaged. Their quality of life is significantly compromised (e.g. they are not able to work up to their potential, they are relatively incapable of relaxing and enjoying social events and their primary intimacies are very problematic). The effects of their SHU confinement are relatively long-lasting if not permanent. One of the men I interviewed at SATF (Prisoner #9) shared his concern that, while he is doing relatively well adjusting to general population conditions at SATF (which is a very sheltered and contained place), he is quite worried that, when he is eventually released from prison, the relatively intense stimulation and unfamiliarity of community surroundings will cause him to have even greater problems adjusting.
3. Description: Reports of former PB SHU prisoners now in the community.
The SHU Post-Release Syndrome plays out in very particular ways when the individual is released from prison at the same time, or some time, after being released from SHU. The details of how various symptoms are experienced is different for each individual, but the general pattern or syndrome is quite clear in reports from all the individuals I interviewed. If a prisoner is housed in SHU at the time he is released from prison, he leaves prison straight out of the SHU. Prisoners call this juxtaposition of release from SHU and release from prison, “maxing out of the SHU.” The prisoners I interviewed who had been released directly from SHU describe a very difficult adjustment in the community.
Prisoner #15, was released from the PB SHU into general population, and later was released from

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prison to return to the community. He describes what it was like for him to be
transferred from SHU to a general population prison:
I spent 9 years in [PB SHU], 1992 to 2000. During that time, I was ‘validated,’ but not ‘active.’ Then I got transferred to general population at Tehachapi. It was traumatic. When I got out of SHU, it was like I was brought back to civilization. I found myself caught up in a desperate reconnection with grass on the yard, and I was still hearing voices from SHU and the slamming of SHU doors, and I could appreciate seeing a bird. [He cries as he recalls the moment.] I didn’t know how to act. I celled with one other guy; I went everywhere with him. I was trying very hard to figure out how to function normally. The SHU environment created a military type exterior: you had to be military to survive Pelican Bay SHU. Then I had to work on changing that exterior. I worked on not being paranoid [he reports he was paranoid in SHU, always felt under military attack]. I exercised like a soldier. In SHU, I had exercised compulsively to survive the SHU coldness. I tried to create life where it all felt totally dead. Then, when I got out, I continued the exercise to keep my feelings in check. I did this with no CDCR program in place to help us adjust. Like they said, ‘You have to recover from that isolation on your own.’ No therapy, no de-briefing. I probably could have gotten therapy if I’d asked for it, but I did not understand the trauma of SHU and why the need for therapy. All of my reactions were like someone who had been under attack. I didn’t trust anyone. When I was released from [PB SHU] to Tehachapi general population, I immediately got involved in securing whatever substance I could. Pruno, pills, marijuana. I isolated myself at Tehachapi, would not go near a crowd. I even created a space on the big yard that approximated the space in a SHU yard. I didn’t do any programs, because I was isolating myself. I didn’t know why I felt I had to do that.
Eventually Prisoner #15 was released from prison and he now resides in the
community. He provided me with an account of what happened after he was released
from prison:
When I got out of prison, I did everything I could to escape into euphoria. I isolated myself, I surrendered myself to drug abuse. I had several relapses. I was in and out of drug treatment. Now I’ve been clean and sober for 3 years, seven months. I’ve experienced a lot of hallucinations and delusions. The voices and delusions only happened after I left SHU. In SHU I had been hearing [only] echoing sounds. The first time they became voices and paranoia was after I left SHU in 2000. The hallucinations and delusions are always there. I still hear the kind of yelling and screaming that I was exposed to in

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the SHU. It seems like there is always someone having a mental breakdown. In Tehachapi [he was in and out of SHU at Tehachapi for short periods], I was always hearing screams of mentally ill in the SHU, and the door slamming. That door-closing sound is something that might not have bothered me in SHU, but then when I was in general population and heard a loud noise, I would jump. Then when I was released, I brought that same behavior to the streets. It interferes with every aspect of my life. Still today, if a car backfires, I jump, I’m getting prepared for combat. My heart races. I have flashbacks, always to SHU. I lay in bed now, alone in a room, wanting to urinate, it reminds me of laying in SHU watching TV from bed. I often feel like I am actually back there.

The SHU Post-Release Syndrome did not abate for Prisoner #15 when he left
prison. He reports continuing SHU-induced symptoms in the community:
I can’t function in a relationship. I can’t function in them because I always find a need for compatibility equivalent to having a cellie. A cellie would leave me alone in the isolation I’d become accustomed with. In SHU, I was totally detached from my feelings, I knew of the harsh environment, but refused to be sensitive, refused to cry. But since I’ve been out here, all of those feelings are released. I cry almost abnormally [he cries as he talks]. I came out of the SHU numb. In general population [where he was for awhile before being released from prison] I didn’t allow myself to feel, but after I got out of prison, I slowly reclaimed my feelings. I had several relationships, but I couldn’t break down the hard exterior from SHU.

Prisoner #14,

with his

wife, was released from prison after 19 years, ten of them spent in PB SHU. He

reports:

I lost the ability to feel. I started feeling I was callous. Nothing good ever happens in SHU. I tried to hold back the anger so I wouldn’t get in trouble. I’m not a disrespectful person, but I was always afraid I would badmouth a cop, so I never let them know anything was bothering me. Holding back anger leads to bottling up other feelings. The problem I have now is not feeling things now. I don’t want my girlfriend to see the angry side of me. I’m just trying to do whatever ‘normal’ is. I try to get along, I’m not critical of other people.

I don’t get out a lot. I won’t leave the house today. I see people, but I don’t go out to dinner with anyone. In SHU I talked to neighbors. And I could hear guys in cells down the pod. I didn’t isolate myself, but I saw plenty of other guys who would not talk to anyone, and I saw lots of guys deteriorate over time and go mad or isolate

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[themselves]. Part of it is they don’t want to get in trouble with other guys. When you isolate, you lose coherence or sanity. I did try hard to keep my anger in check, but then that made me stop being in touch with my feelings altogether. I developed a ‘who cares’ attitude.

My girlfriend says people are surprised how healthy I seem. But I’m always feeling inferior inside, I only ‘looks normal.’ I have flashbacks. Something triggers them. Maybe I feel suddenly boxed in, for example at the mall. Somehow when I’m there, I get a picture in my head of a prison setting. My girlfriend says I stare at someone and that’s inappropriate. I’m always hyperaware of my surroundings. I get on guard if I see black guys around me. I stay away from crowds and cops. I try to avoid police. I’m afraid the police will harass me on account of my record, but they also just remind me of SHU and guards. SHU makes you feel you’re not normal. It’s not normal living in a box. I feel very bad about myself that I haven’t done anything productive for all those years.

Prisoner #16,

lives

with his

family. He is single and does not work. He was released from prison in 2004 after

serving ten years, 9½ of them in SHU (one at Corcoran and eight at PB SHU). His

sentence followed conviction for drug possession. After a relatively short time in

general population at a lower security prison, he was validated as a gang member,

based, according to him, on staff finding drawings in his locker that were gang-related.

He was not charged with nor convicted of any illegal activities that would lead to his

consignment to SHU. He was released from prison straight out of the SHU. He has

four children and is currently single. He craves being alone, a craving that has been

exacerbated by his long stint in solitary. He admits he tends to isolate himself, and that

is very unlike how he was prior to serving those years in SHU.

He believes his personality changed in the SHU: he became more distrustful,

even paranoid, and isolates himself. These tendencies have been present ever since

he was released from the SHU. He remembers isolating himself in the SHU, even

beyond the way the prisoners were isolated by the architecture and lack of programs.

He would not even say good morning to prisoners in neighboring cells or prisoners he

passed on the way to the yard. He was afraid his neighbors were hostile and playing

psychological games with him. He now realizes he might have been paranoid about

that, but he had no way to assess the actual safety or danger. He could not see his

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neighbors; he could only talk out of his cell door to a faceless voice coming back at him if he and the neighbor yelled loud enough. He continues: “So you pull in, you isolate yourself to decrease the danger of a hostile neighbor.” He tells me: “You’re always so angry in the SHU, a lot because they (staff) are always investigating you to prove you’re gang-affiliated so they can keep you in the hole, then what you did to control your anger stamps out all your other feelings, you become numb, I felt like I was dead – still do.” He describes being out of touch with his feelings. He tells me he worked out a lot in SHU, doing calisthenics compulsively, he guesses to handle the nervousness that was always there in the SHU. He says, “I could do 1,000 push-ups in my cell – it helped bind the anger, and it numbed my feelings.”
When Prisoner #16 was first released from the SHU, he was overwhelmed by sounds he heard at home and on the streets. If he took a walk, he became very nervous. It was a combination of sounds he was not used to, visual stimuli and traffic. He remains uncomfortable in crowds or even busy spaces like a restaurant. He knows intellectually that he is not in danger now, but he cannot keep his body from reacting with fear. I asked how he knows the symptoms he is describing result from time in the SHU, and not simply from being in prison. He responded:
If you’re in general population, you are relating to other guys, you get visits and phone calls, you’re social, you’re just in prison. But in SHU, you’re the opposite of social, you don’t get phone calls, you can’t even look out of a window, so your social world shrinks and your visual world shrinks, and then when you get out, look-out! You can’t handle all the stimuli and you don’t know how to relate to people, not even your family.
He continues, “I couldn’t work after getting out of the SHU. The idleness numbed me for work. I can’t focus my mind to get a task done. Sometimes, with other workers, I get paranoid, I think someone is looking over my shoulder.” He looked for work for quite a while after being released from prison, but was unsuccessful finding a job. By now, he has so much trouble concentrating that he is not able to carry out work assignments. This trouble began when he was in the SHU but has continued to the present. When he hears a loud noise he jumps, having an immediate fear someone is coming to attack him. He was extremely irritable and quick to anger just after being released. There is less of that now, but it’s still a big problem. He says his mind never

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stops, it is hyperactive, and the rapid-fire thoughts prevent his sleeping. He never had sleep problems before going to the SHU, not even in prison, but since being in SHU he has had great difficulty sleeping. He does not believe he hears “voices,” meaning hallucinations, but he does aver often thinking someone is hollering at him. The hollering is vague, and eventually he figures out it is a noise or someone talking loudly, that he incorrectly interprets as a voice hollering at him.
When asked about relationships with women since his 2004 release from prison, Prisoner #16 pauses for quite some time, and then slowly and haltingly reports that he has massive trust problems:
I can’t talk about my feelings – I learned not to express them when I was alone in the SHU – now I mostly don’t want to make myself vulnerable – but I am certain that’s also from the SHU and all those years not practicing relating to anyone. There are no phone calls in the SHU, so you can’t call someone when you’re sad and tell them about it. Then, after you’re out on the streets, and women want to know how you’re feeling, you can’t tell them. You forget how to talk to someone about feelings.
Prisoner #16 has been returned to the CDCR several times for parole violations since his release, once for a nine month stint after being found to have “dirty urine.” While he has had substance abuse problems in the past, he believes that his postrelease drug use has been a weak attempt to numb some of the pain of the SHU and the constricted life he has led since being released. He is afraid that he lacks sufficient concentration to do what is required at a job, and besides, he is too nervous going for an interview.
I spoke to the sister of Prisoner #16. She told me that he has lived with his mother and/or his grandmother since being released from prison in 2004. For many months after his release from prison, he stayed in his room. He would not go to the refrigerator and get food. Instead, someone had to bring it to him. If someone walked unannounced into a room where he was, he would jump and get very agitated. That reaction has calmed some, but it is still a tendency. For a few years after being released from prison, he stayed in the house most of the time and refused to go out. She found him to be uncharacteristically quiet and reserved after his release, and for a long time. He is still not himself. He avoided all levels of social interaction after leaving

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prison, something that is quite different than how he was before going to the SHU. All

of the symptoms she reported to me she thinks Prisoner #16 exhibited very strongly for

nine months after his release, but most of them continue into the present in less intense

form.

The sister of Prisoner #16 tells me he did some dating after his release from SHU,

but had a lot of trouble with women. He smoked some marijuana to relax his nerves,

but then he would anger quickly and this scared the women he was seeing. Before he

went to prison at 20, he was very social, not gregarious but friendly and outgoing, and

he had a lot of friends. As she reports, “He was bubbly and made people laugh.” But

she has not seen any of that kind of socializing or humor since he returned after being

in the SHU. Whenever she would encourage him to meet someone or take part in an

activity, he would decline, saying “You know, I did a long time in the SHU.”

Prisoner #18,

tells me: “When you get out, you’re

happy. But then you get hit by feelings. I exercise to keep them down. Simply inhaling

air is a new experience.” He entered prison in 1990 and soon was transferred to the PB

SHU, where he remained until 2001. He entered SHU again in 2006 and remained

there until June, 2013, when he was released from SHU to Step 5 of the step down

program, but by the time of our meeting he had graduated and was in General

Population at SATF. He recalls many of the oft-reported symptoms while he was in the

SHU, including headaches, anxiety, agitation, difficulty concentrating, anger and despair.

He also recalls increasingly isolating himself in SHU, for example never starting any

conversations with neighbors. He also avers emotional numbing that progressed while

he was in the SHU both times. When he transferred to SATF in June, 2013, he felt a

sense of unreality. He transferred with a group of men from the SHU, and he chose to

remain with them much of the time and not mingle with other prisoners. He also

remained in a circumscribed space rather than roaming to far reaches of the day room

or yard. Gradually he felt more comfortable in his porter job, but he says “I wouldn’t say

I am back to normal, I know I need to be more social and I want to be more open and

feel more alive than I do now.”

Prisoner #17 is more disabled than the others I interviewed. This

man graduated from high school and did relatively well in school. He had

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lots of friends. He was in CDCR custody from 1995 to 2014, and was in PB SHU the

entire time. He was released from prison straight out of SHU. This was his second

prison term. His first term was six years and he was in general population most of it,

and feels he was not damaged by that earlier term. He was released from this second

term on May 23, 2013.

He is trying to get SSI Disability for

anxiety and panic. He reports: “I isolated myself in SHU, I went days without talking to

anyone. I could have hollered down the pod, but I just didn’t want to communicate. I

tried very hard to suppress the anger, and that deadened all my other feelings. I

couldn’t concentrate. I didn’t do much in that cell.” When Prisoner #17 came out of the

SHU, he returned home on parole:

It was a horrible experience, I could not talk to my mother. Since being in SHU, I simply don’t know what to say, and that’s still going on. I do stuff I don’t understand. I’m not suicidal. I didn’t see the shrink in prison – too much stigma if you do that – but since being released I’ve gone to a therapist once a month. I try to work. I get odd jobs, and I have trouble concentrating and finishing them. I get all tangled up trying to follow orders. I think … (indecipherable)… anger about all the stupid orders I had to follow in the SHU. But right now I can’t find work. I simply can’t concentrate. I can’t get tasks completed [because] my mind wanders. With my wife, she’s supportive, but I can’t really share what I’m feeling with her, and I know that hurts her. We’ve been together about a year. I don’t share my feelings very well. I don’t know what I feel, then she gets upset. I go out, I can go to a movie or the mall. I drive. But I can’t get along with people, I just get irritable. All of these problems started when I was in SHU. I know I wouldn’t have these problems if I’d been in general population. I would have had social interactions, communications. But in SHU I forgot how to talk to people. [Now] I get irritable. I stay to myself. I have no real friends, no other family. I think I sound crazy to my mother. I don’t understand what my mother is saying, then I’m silent.41 I can’t do the things I’d need to do to get a job. I get too nervous at interviews.

Prisoner #17 tells me that prior to the time he spent in SHU, he had been a very friendly, outgoing person. During his six-year term in general population he was also outgoing and friendly. He had no difficulty talking about his feelings and he did not

41 During a brief conversation his mother and I had on the phone, she confirmed that she is not able to talk to her son. She doesn’t know what’s wrong, but he just is not present in their conversations.

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isolate himself. But that changed dramatically when he was consigned to SHU. Now,
and while he was in SHU, he cannot talk about feelings and does isolate himself quite a
lot. Sleep was very problematic in SHU – prisoners tend to wake many times during the
night, and then nap during the days. He had never had sleep problems before his long
stint in SHU. Since he has been out of prison, he continues to have great difficulty
sleeping at night, and then he naps. He feels depressed and has low energy. He does
not do much. He is able to do handyman work around the house. Since being released
he has consumed a little bit of drugs and alcohol, but not much. He never used any
substantial amount of substances before. He is certain that his use of substances is
about easing the pain now. He continues: “Getting out, with the overwhelming
stimulation all around, I got very nervous. Now, I’m not as nervous, but I simply don’t
know what to say.” Prisoner #17 tells me:
Sometimes I just shut down, I can’t talk about my feelings, I can’t really talk. I can’t do chores. I just can’t concentrate enough, so I procrastinate. Then my girlfriend gets upset because I haven’t done the chores. I can’t concentrate to finish the task. I don’t trust people, and I don’t want to relate to them. I’m too gullible, that might be why I avoid people. I can’t tell when they are taking advantage of me. I get really nervous, and that makes concentrating on a task even harder. I don’t watch TV. I don’t even read the newspaper, I’m just not interested in anything. I don’t think I’m mentally ill, but I sure am disabled.

I spoke to the girlfriend of Prisoner #17.

She met him after he was

released from prison. She tells me he has been out 1½ years, has a lot of trouble

talking to his mom – he does not know what to say. There is a lot of silence. With her,

there is some of the same problem. He does not talk about feelings, or does not feel

like talking except to say “hi.” Often he isolates himself in the house. He will not see

friends with her. He is polite, but he will not really talk. He gets very anxious in social

situations and shies away from people. They do not see friends together, because it is

too uncomfortable for him.

All of the prisoners I interviewed reported a long list of the symptoms and

problems that I described in Sections VIII.B.1 and VIII.B.2. Very much like the 11

prisoners I interviewed while they remained in SHU, they also describe suppressing

their feelings and isolating themselves to survive and stay out of trouble while they

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existed in a cell and were cell-fed (as discussed in Section VIII.B.3 & 4). But then, when they were released from SHU, the same behaviors that were functional in the SHU become disabling (i.e. their isolation and numbness). They each evidence many of the problems I listed above as components of the SHU Post-Release Syndrome.

IX. Opinions A. Harm Caused by SHU Confinement
As described in detail above, all of the 24 prisoners and ex-prisoners I interviewed suffered from very many of the symptoms that are well known in the literature to be caused by isolative confinement. They consistently reported to me an impressive number of serious symptoms that they suffered while confined in the SHU, including anxiety reaching the level of panic; distorted thinking reaching the level of paranoia; memory and concentration problems that, for example, interfere with the ability to read because one forgets what one read a few pages back; sadness; despair; a growing number of suicidal thoughts; agitation; mounting anger; the fear that the anger will get out of control and get one into even more trouble; and severe problems sleeping. In other words, all of the prisoners I interviewed told me a list of symptoms and emotional problems that fit exactly the list of symptoms reported in the literature about the damaging effects of long-term isolative confinement.

B. Additional Harm Caused by a Decade or More of SHU Confinement There are additional symptoms that had not been noticed by investigators meeting with prisoners who had been in isolation only months or a few years. Prisoners who remain in isolation for ten years suffer from the symptoms and disabilities listed in Section IX.A above and reflected in the extant literature about the psychological effects of isolative confinement. But then, as the years pass by, they develop further symptoms and disabilities. Of course, part of the further damage is that they suffer from the first set of symptoms and disabilities for the many years they remain in isolative confinement, these problems become more chronic as the years go by, and their pain and suffering is consequently magnified. In addition, I found that the prisoners’ varied personal stories of the additional ways they were uniquely affected by the decade or

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more of isolation fit into three general categories: symptoms related to a greatly increased urge to isolate; those related to a subjective sense of “numbing,” closing off all emotions, beginning usually with attempts to keep the growing anger at bay; and enlarged despair. Thus individuals who have spent over ten years in the SHU suffer from both longer-lasting and more chronic symptoms than those already described in the literature about isolative confinement.
C. Harm That Surfaces After Release from SHU. Signs of some of the worst harm become evident only after the men are released following ten or more years of SHU confinement. Whether they are released from SHU to go to another, non-SHU, prison setting, or return to the community, there is an identifiable SHU Post-Release Syndrome that is reported, with some individual variation, by one hundred percent of the men I interviewed. Most did not report every single component of the syndrome, and the reports of each man were somewhat unique to his personal experience. However, they all complained of a common list of symptoms and disabilities, which I have named the SHU Post-Release Syndrome. The SHU PostRelease Syndrome is characterized by the following components: • Disorientation immediately following release. • Anxiety in unfamiliar places and with unfamiliar people, as daily life events that
had been ordinary prior to SHU confinement become unfamiliar events following release from SHU. • A tendency to retreat into a circumscribed, small space, often a cell (in prison) or a bedroom (in the community). • A tendency to greatly limit the number of people one interacts with, usually limited to close family members and a few friends. • Hyperawareness of surroundings, for example a need to sit facing the door to a room or with one’s back to a wall. • Heightened suspicion of everyone who comes close, especially strangers. • Difficulty expressing feelings. • Difficulty trusting others, even one’s wife or first degree relative.

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• Problems with concentration and memory, beginning in the period of SHU confinement and continuing after release, making it difficult to accomplish tasks and to work.
• A sense of having experienced a change of personality. The most often reported form of this change is from a relatively outgoing, friendly individual with a sense of humor prior to SHU confinement, to a more serious, guarded, and inward individual following release from the SHU.
• In some but certainly not all cases, there is a tendency to resort to alcohol and illicit substances to lessen the pain and make the confusion and anxiety more bearable.
All of these problems are experienced intensely for many months after release from SHU, but then the problems continue in less intense fashion, most often right up to the present which might be years later. The prisoners I interviewed after they were released from SHU but remained in prison, as well as the ex-prisoners I interviewed in the community, suffer from a combination of the symptoms that have been included in discussions of isolative confinement in the literature (anxiety, paranoia, insomnia, mounting anger, concentration and memory problems, compulsive acts, despair and so forth), the exaggerated self-isolation and numbing that emerged only after many years in SHU, and the symptoms I have described as the SHU Post-Release Syndrome. In other words, they experience a great many troubling symptoms and as a result the quality of their lives and their functioning are significantly impaired.

D. The Link Between Reported Symptoms and SHU Confinement. How are we to know that the damage described in this report is not the result of traumas experienced prior to incarceration or merely to the stressful experience of prison life itself? I have concluded, to a reasonable degree of medical certainty, that there is a clear causal link between the symptoms and problems the men I interviewed reported and their tenure in the PB SHU. As a psychiatrist, I practice a clinical science designed to fathom the etiology of reported symptoms and events. For example, the first thing a clinician asks when a person reports a symptom such as flashbacks is, “When did you first experience such

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things?,” and then, “Tell me more, what is the content of the flashbacks?” If the person responds that the flashbacks have been present since his teenage years and the content can be about anything (e.g. childhood, schoolyard fights, or prison events), then we conclude that, while the flashbacks might have been exacerbated by isolated confinement, the flashbacks were not triggered by the person’s experience in SHU. On the other hand, if the person says, “I never experienced anything like this before I was in the SHU,” and “the flashbacks are always about something that happened in the SHU,” then this is evidence that the flashbacks were caused to a great extent by SHU confinement.
Similarly, a detailed psychiatric history is the main instrument we have for determining the origin and roots of various psychiatric symptoms and conditions. The source of the damage can be complicated. Thus Prisoner #15 reported to me that he never experienced flashbacks prior to his nine-year stint in SHU. It is clear that his SHU experience caused him to have flashbacks, even if the content of the flashbacks includes experiences that did not actually occur while he was in the SHU. The equivalent emergence of serious symptoms only after confinement in SHU that Prisoner #15 reported was consistently reported by all the other prisoners I interviewed. In other words, the determination can be complicated, but all of the data needs to be considered to come up with a clinical formulation.

E. Representativeness of the Prisoners. The 25 prisoners I interviewed in all settings are entirely representative of similarly situated prisoners as a class, i.e. the class of prisoners who have been consigned to the PB SHU for ten or more years. I interviewed eleven men in the SHU and a twelfth on SHU status who had been transferred to CSP-Sacramento for medical reasons. Then I interviewed an additional 12 prisoners and ex-prisoners. Clinical research in psychiatry relies upon a number of factors to determine if a sample of affected individuals represents a larger group’s shared experience. A sufficient number of representative cases is one consideration. I supervise doctoral research in the Graduate School of Psychology at the Wright Institute, an accredited graduate school granting doctoral degrees. In our dissertation manual, approved for accreditation

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purposes by the American Psychological Association, it is recommended that for qualitative research, i.e. research that relies on interviews and narrative reports, a minimum of ten subjects be included to make the study valid and reliable. I have interviewed 24 individuals, some on multiple occasions, so that requirement is satisfied.
Random sampling is one of many techniques for assuring a representative study sample, but it is not always a relevant consideration. In this case, many of the prisoners I interviewed were not selected randomly. For example, the first ten were named plaintiffs in the present litigation. However, the seven SATF prisoners I interviewed were essentially randomly selected, in that I interviewed all English-speaking prisoners from a list provided by the CDCR who had served ten or more years in PB SHU and had been transferred to SATF by CDCR by February 2014.
There are additional ways to assess the degree of commonality and typicality in a larger group. First, there is the degree of shared symptomatology and the consistency of the reported symptoms and disability. Do all of the selected sample exhibit common symptomatology and functional impairment? In other words, how universal are the symptoms and disabilities in the sampled group? In the present case, it is highly significant how consistently the 24 individuals I interviewed report the same experience and resulting symptoms. In their reports, each prisoner recounts somewhat different symptoms,and none experience all of them, but so many of the prisoners report such a long list of these well-known symptoms42 that it is clear they suffer emotional harm on account of their long-term SHU confinement. The stunning universality of their reported symptoms and problems makes it very likely that all other similarly situated individuals will evidence the same symptoms.
Then there is another list of complaints and symptoms that are reported by every single one of the 24 men I interviewed. These include a growing sense of being out of touch with their feelings to the point of numbness or deadness, a continually worsening sense of isolation accompanied by a tendency to isolate themselves even further, and a sense of despair that enlarges as the years in isolation go by. This group of complaints

42 Anxiety, hopelessness, mounting anger, insomnia, problems with cognition and memory, exaggerated startle reaction, distorted thought processes and so forth (the list of symptoms uncovered by Drs. Toch, Haney, Grassian, myself and others in long-term isolated confinement).

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and symptoms, shared by all 24 of the prisoners I interviewed, is distinct from the symptom constellation generally reported in prisoners who are in long-term (more than three months) isolated confinement, and seems clearly to result from very long-term isolated confinement, certainly including confinement in excess of a decade.
While some symptoms traditionally reported in prisoners consigned to isolated confinement (including memory loss, anxiety and paranoia) are reported by a certain proportion of the prisoners in isolated confinement, this last group of experiences and symptoms was reported universally by all the prisoners I interviewed. This is very strong presumptive evidence that this symptom complex is present in very many of the other prisoners who have been in isolated confinement for a very long time, i.e. longer than ten years. In other words, if we find a clear set of symptoms in every single one of the 24 men interviewed, it is almost certain that such symptoms and disabilities are widespread throughout the class.
Of course, ten of the men I interviewed were self-selected in the sense that they agreed to be named plaintiffs in a lawsuit. Obviously they have not committed suicide nor needed the level of mental health care that would mandate their removal from SHU per exclusion criteria established in Madrid v. Gomez. They also share a strong resolve not to participate in the “de-briefing” procedure because they consider it a form of “snitching,” which they find morally repugnant. In terms of commonality and typicality, we must consider whether there is any reason they should logically be expected to report symptoms the other prisoners do not experience.
Malingering must be considered in this regard. Malingering is the invention or exaggeration of symptoms for secondary gain.43 In psychiatry, we have methods for determining the authenticity of reported symptoms, and to rule out malingering and other forms of distortion and manipulation. For example, we look for internal consistency in the story reported by a person, we check for contradictions between the subjective history and our objective observations on mental status examination, we make a determination based on our psychiatric acumen whether the reported symptoms are believable and internally consistent, we check related documents and look for

43 DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL DISORDERS, 683, (American Psychiatric Association, 4th Ed., 1994)

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consistency versus contradiction with the record, we look for consistency between informants who do not know each other or could not have planned together to provide false answers to our questions, and so forth. I apply this methodology in my interviews and examinations. While some of the first ten men I interviewed do know each other, they are not known by and do not know most of the men I subsequently interviewed. Yet the symptoms and problems reported by the first ten men and all the others are strikingly similar and universal. This fact alone goes a long way toward proving the reliability of these prisoners’ and ex-prisoners’ reported symptoms and problems.
In fact, the men I interviewed are strongly inclined not to report, or to under-report emotional symptoms. This is because they share a “prison code” that discourages exhibiting weakness and emotional problems. They are very unlikely to use mental health services (many of them tell me that they do not trust that mental health staff will maintain confidentiality, and their reports of symptoms could be harmful to them). And the symptoms and disabilities I am memorializing in this report are not typical of any particular mental disorder. If a prisoner were interested in fooling me into thinking he suffer from a mental disorder in order to gain something, he would not tell me about the kinds of symptoms these men report. Rather he would tell me about symptoms out of a psychiatric textbook such as auditory hallucinations, flashbacks or suicidal inclinations, and he would be seeking some kind of psychiatric services or benefits. Further, because I am putting together the information these men provide and arriving at the conclusion that there is a pattern of numbing, isolation and despair, there is no way they would be able to concoct a false story with the consistency and integrity I discover in their oral reports. Besides, they underplay rather than exaggerate their emotional pain and disability at every turn. Thus there is no evidence of malingering in the reports of these ten men.
Further, because the first ten men are relatively articulate, willing to challenge the conditions of their confinement, and are not seeking mental health treatment, there is every indication that the remainder of the population in the PB SHU would report, on average, relatively more severe symptoms and disability than this group, would aver greater suicidal ideation and planning, and would be driven to greater levels of disability and distress by the same or equivalent symptoms than the original group of ten report. I

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interviewed fourteen additional men, and found an impressive and very significant similarity between the symptoms and disabilities they reported and the symptoms and disabilities reported by the ten named plaintiffs who were in the SHU when I interviewed them. Of course, the men who had been released reported additional problems, which I have characterized as a SHU Post-Release Syndrome. The men I interviewed while they were in the SHU had not yet experienced or reported many of those symptoms and disabilities.
In arriving at the opinion that the reports of these 24 men are quite representative of the group of prisoners confined in the PB SHU, I also call on all my previous experience investigating conditions in isolation units and interviewing over a thousand prisoners in many states. I have encountered prisoners in several states who were in isolated confinement for longer than ten years, and found in many cases that they exhibited massively constricted affect, extreme isolative tendencies and significant despair. As a general tendency, I have discovered that the longer an individual remains in isolated confinement, the more severe the resultant symptoms and disability, especially symptoms related to constriction of affect, severe isolation and despair.44 I cannot guarantee that every single prisoner similarly situated in the PB SHU suffers precisely the same emotional pain and psychiatric symptomatology and disability as these 24 men, but I can say with a reasonable degree of medical certainty that, given the severity and consistency of these men’s reported suffering and symptomatology, most if not all of the prisoners in the PB SHU for ten years or more suffer from a significant number of the symptoms I have enumerated (in Section VIII.B), a significant degree of emotional numbing, social isolation and despair, resulting in severe pain, suffering and disability. And most if not all of the individuals who are released from the SHU after ten years suffer from many of the symptom and disabilities I have termed the SHU Post-Release Syndrome.

F. Perceived Fairness Perceived fairness is a very important issue. While I will not comment directly on
44 See Terry Kupers, What to Do With the Survivors?: Coping With the Long-Term Effects of Isolated Confinement, CRIM. JUST. & BEHAVIOR, Vol. 35 No. 8, 1005-1016 (2008).

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the legality or constitutionality of the due process afforded these men, I will mention the psychological consequences of their subjective feeling that they are denied due process and treated unfairly. A prisoner who commits a crime and is punished feels, to a certain extent, he has “done the crime and will do the time.” But if he is innocent, his resentment about being unfairly punished gnaws at him, and makes the traumas of prison life (the humiliating strip searches, the time in isolation, the lack of phone calls, etc.) much more difficult to bear. A special measure of resentment wells up inside. He feels always a bit more angry and irritable about each successive injustice, and he is all the more afraid his anger and resentment will break out and he will do something that will lengthen his sentence or his time in segregation. His feeling of betrayal by those in authority (the officers, the classification officials, etc.) makes it much more difficult for him to trust staff at the prison, and this both tends to get him into trouble and to deprive him of the help that staff should be providing him during his time behind bars.
All the men I interviewed feel that the validation process was entirely unfair – that they were never given an opportunity to defend themselves, that they were never able to cross-examine those who gave evidence against them, and that the evidence for their six year “re-validations” were entirely “bunk.” These men subjectively (with varying degrees of basis in objective reality) feel that they have been treated unfairly. They consequently build up a lot of resentment about the unfairness and they are unable to trust the staff upon whom they are entirely dependent in the SHU. The anger about the unfairness of their validation and SHU confinement serves to exacerbate all the symptoms that anyone confined in isolation would feel. Secondarily, they isolate themselves and suppress their feelings all the more because of the extra measure of resentment that is swelled by their sense of the unfairness of it all. Further, the distrust they feel with staff makes it even harder for them to acquire the social skills – including but not limited to the capacity to rely on people in authority to accomplish one’s goals – that they will need to succeed either in general population or in the community after their release from prison. In other words, there are very damaging effects on these prisoners due to their subjective sense that their validation and very long SHU confinement is entirely unfair and that due process is lacking.

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X. Conclusion The 24 men I interviewed who had spent ten years or more in their cells for
nearly 24 hours per day in the PB SHU are representative of the class and are severely damaged by the experience. Those who remain in SHU continue to suffer from the major symptoms and disabilities I have described throughout this report, and those who are no longer in SHU find the quality of their lives is significantly compromised. They are not able to work up to their potential, they are relatively incapable of relaxing and enjoying social events, and their primary intimacies are very difficult because of the psychological damage they incurred while in the SHU. These negative effects of SHU confinement are relatively long-lasting if not permanent.
I interviewed 24 prisoners or ex-prisoners who spent ten or more years at the Pelican Bay SHU. The 24 prisoners and ex-prisoners I interviewed include 11 prisoners who were still in SHU when I interviewed them, one who was in another SHU so he could receive medical treatment, seven who had been released from SHU to other prison settings, and five who had returned to the community after being released from SHU. I described (in Section VIII.B.1 & 2) a set of symptoms experienced during their tenure in SHU that I uncovered in all 24 men I interviewed, including anxiety reaching the level of panic; distorted thinking reaching the level of paranoia; memory and concentration problems; sadness; despair; agitation; mounting anger; the fear that the anger will get out of control and get one into even more trouble; and severe problems sleeping. In other words the prisoners I interviewed while they remained in the SHU consistently reported symptoms that match those reported in the literature by prisoners in isolation in a great many settings.
Then I described (in Section VIII.B.3 & 4) a pattern of additional symptoms that evolve after many years of isolated confinement in SHU, symptoms that fit into three basic categories: an exaggerated urge toward isolation even in the context of isolated confinement; and the numbing of feelings to the point where the individual reports not even knowing what he feels, and several said they feel dead. In addition, there is the enlarging sense of despair that grows during the years of isolation.
A certain number of prisoners are eventually released from their isolative confinement. All of the men I spoke to who had been released from SHU, either to

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another prison setting or to the community, reported that many of the most serious problems they experience surfaced only after they left the SHU. I was able to identify a syndrome, the SHU Post-Release Syndrome (described in Section VIII.C) that captures the experience of the men who had been released from the PB SHU after ten years. The SHU Post-Release Syndrome is characterized by disorientation; anxiety in unfamiliar places and with unfamiliar people; a tendency to retreat into a circumscribed, small space, often a bedroom or cell; a tendency to greatly limit the number of people one interacts with; hyperawareness of surroundings; heightened suspicion of everyone who comes close; difficulty expressing feelings; difficulty trusting others; problems with concentration and memory; a sense of a changed personality; and a tendency to resort to alcohol and illicit substances to lessen emotional pain. The set of symptoms that characterize the SHU Post-Release Syndrome was consistently reported, whether the prisoner was transferred from SHU to a general population or “stepdown” prison setting within the California prison system, or returned to the community. Thus, for example, one former SHU prisoner who has been released to the community reported that he stays in his room a lot of his waking hours, while a prisoner who had been released from SHU to return to general population status in prison stays in his cell most of his waking hours. Both groups appear to be trying to re-establish the conditions they experienced in the SHU. It is as if they have become so habituated to life in a small cell that exposure to any larger, more populated area seems overwhelming and frightening.
The extraordinarily painful experiences reported by all 24 prisoners I interviewed are not reflective of any particular diagnosis out of the Diagnostic and Statistical Manual of Mental Disorders, yet they make these men miserable and relatively dysfunctional, in and after SHU confinement. In other words, there are limits to the use of psychiatric diagnoses and standard disability assessments when it comes to the pain and suffering and long-term damage of men who have been in the SHU for a decade or more. Thus there is very little discussion in the clinical charts I reviewed of the kind of pain and suffering I discovered in the men I interviewed. Of course, these are men who are not prone to expose psychological pain and vulnerability to a prison mental health clinician they do not even know, and almost all of them tell me they do not want to be diagnosed

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Name Key

CONFIDENTIAL

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 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

TODD ASHKER, et al., Plaintiffs,
v.

OAKLAND DIVISION Case No.: 4:09-cv-05796-CW CLASS ACTION

GOVERNOR OF THE STATE OF CALIFORNIA, et. al.,

Judge: Honorable Claudia Wilken

Defendants.

EXPERT REPORT OF EMMITT L. SPARKMAN

EXPERT REPORT OF EMMITT L. SPARKMAN

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TABLE OF CONTENTS

Page(s)

I.

INTRODUCTION ........................................................................................................................... 3

II. ASSIGNMENT................................................................................................................................ 9

III. FOUNDATION ............................................................................................................................... 9

IV. OPINIONS ..................................................................................................................................... 10

V. SPECIAL HOUSING UNIT (SHU) CONDITIONS OF CONFINEMENT ................................. 12

VI. CDCR PLACEMENT AND RETENTION OF OFFENDERS IN

SPECIAL HOUSING UNITS........................................................................................................ 17

VII. OFFENDERS APPROPRIATE FOR LONG TERM SPECIAL HOUSING UNIT

PLACEMENT ............................................................................................................................... 20

VIII. CDCR SPECIAL HOUSING UNIT STEP DOWN PROGRAMS ............................................... 21

IX. CDCR REVISED SYSTEM FOR CONFINEMENT OF OFFENDERS IN

SPECIAL HOUSING UNITS........................................................................................................ 26

X. CDCR USE OF CONFIDENTIAL INFORMATION................................................................... 28

XI. RECOMMENDATIONS ............................................................................................................... 30

EXPERT REPORT OF EMMITT L. SPARKMAN

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I. INTRODUCTION
1. I am a corrections administrator with over thirty-nine years’ experience working in juvenile and adult community and institution corrections.
2. I have held line and supervisory positions in the states of Texas, Kentucky and Mississippi. These positions include; correctional officer, education consultant, correctional captain, correctional major, probation officer, intake-detention superintendent, director of security, director of education, and warden.
3. My experience includes both working in the public and private corrections sector. I served as a Warden of two private pre-release centers in the State of Texas, a 936 bed medium security prison in the State of Kentucky, and a 1,000 bed private medium security prison in Mississippi.
4. In June 2001, I was named the Superintendent of the Mississippi State Penitentiary a prison complex with 18 prisons that included a 1,000 bed supermax prison (Unit 32) housing death row and the highest risk offenders in the Mississippi Department of Corrections. I served in that position from June 2001 until December 2002.
5. I was appointed the Deputy Commissioner of Institutions for the Mississippi Department of Corrections in November 2002 and served in the position until May 2013 when I accepted the position of Education Director at the Mississippi State Penitentiary. As Deputy Commissioner for Institutions, I was responsible for three state prison complexes, five private prisons, and fifteen regional prisons. I also had responsibility for the classification, records, employee training, treatment, facilities/engineering and agriculture departments of the Agency.
6. While serving as the Deputy Commissioner for Institutions, I was required to accept special assignments at the Mississippi State Penitentiary from July 2007 until January 2008 and from February 2010 until May 2012. I directed major reforms to reduce the use of long term segregation at the Mississippi State

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Penitentiary Supermax Unit 32 during my special assignment from July 2007 until January 2008 and continued those reforms as Deputy Commissioner for Institutions until May 2013. 7. My experience as a prison and corrections administrator includes responsibility for managing the custody, control, and treatment of long term segregation offenders. I have been a consultant to the states of Illinois, Maryland, Colorado, Oklahoma, New Mexico, and South Carolina assisting to develop strategies to reduce the use of long term segregation and improve conditions of confinement in these housing units. I participated in an evaluation of the Federal Bureau of Prisons’ use of administrative segregation in 2014. My opinions are based on my substantial experience operating prisons, presiding over the institution division of a state-wide prison system for over ten years, and providing consulting services to multiple state prison systems on reducing the use of administrative segregation and implementing conditions of confinement improvements in segregation units. Since 2007, I have been actively involved in assisting the State of Mississippi and other corrections systems address the miss-use of long term segregation and improve conditions of confinement for those few offenders that require long term segregation. A complete copy of my curriculum vitae is attached as Exhibit 1, listing prior cases in which I have given testimony and all publications I have authored. 8. The Mississippi Department of Corrections operated a 1,000 bed Supermax Administrative Segregation Unit at the Mississippi State Penitentiary from the late 1980s until 2010. The Supermax (Unit 32) was comparable to the CDCR SHU Units in that it housed the Mississippi Corrections System’s death row and high risk offenders in long term isolation for indefinite periods of time in single cells. Offenders were confined to their cells the majority of the time (twenty three hours of a twenty four hour day). The Supermax Unit 32 faced frequent litigation and in

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Russell v Epps1 the Federal Court ordered major reforms for death row offenders. These reforms were only required for death row offenders. Subsequently, in Presley v Epps2 the plaintiffs brought litigation for the remaining offenders confined at the Supermax Unit 32. The Presley plaintiffs and the Mississippi Department of Corrections were in negotiations regarding the Supermax Unit 32 in the summer of 2007 when major incidents began to occur at the prison. The Supermax Unit 32 experienced a suicide, the smuggling of a firearm into the prison, three homicides, and multiple offender assaults on both offenders and staff. The crisis necessitated that Mississippi Department of Corrections Commissioner Christopher Epps assign me temporarily in July 2007 to the Supermax Unit 32 to assist with prison operations. The Mississippi Department of Corrections (MDOC) quickly determined the existing Supermax Unit 32 operation could not provide a safe and secure environment for offenders and staff. Violence was frequent and security threat groups (gangs), although confined in cells twenty-three hours per day, were causing continuous major disruptive activity. Serious negotiations were begun with the Presley plaintiff attorneys and experts to reform the Supermax Unit 32 operations. The first phase was to evaluate those offenders confined in the prison and correctly identify those offenders that were an actual physical threat to other offenders and/or staff. Working with the Presley Plaintiff Expert, Dr. James Austin, objective criteria was developed to identify those offenders that were a threat to offenders, staff and public safety by being assaultive, causing serious disruptive activity in prisons, seriously injuring others, causing major property damage, actively involved in disruptive gang activity, had escaped or attempted to escape from prisons with secure perimeters, and/or possessed weapons. Disruptive gang activity was

1 Russell et al v Robert L. Johnson et al (Mississippi Department of Corrections) No. 1:02CV261-JAD. 2 Presley v Epps et al (Mississippi Department of Corrections) No. 4:05-cv-00148-JAD.

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defined as activity that caused major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group. 9. Mississippi DOC leadership developed the phrase “identify who we are mad at and who we are afraid of”. Those the MDOC was “mad at” would be housed in a less restrictive environment and those MDOC was “afraid of” would be housed in higher security housing. Offenders previously placed in long term segregation because of the length of their sentence, non-violent rule violations and/or for solely being a member of a gang were no longer placed in indefinite long term segregation. Offenders MDOC leadership were “mad at” could be safely managed in a less restrictive environment and did not require long term indefinite segregation. The offenders MDOC Leadership termed “afraid of” were the offenders being assaultive, causing serious disruptive activity in prisons, seriously injuring others, causing major property damage, actively involved in disruptive gang activity, had escaped or attempted to escape from prisons with secure perimeters, and/or possess weapons. Disruptive gang activity was activity that caused major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group. These offenders required indefinite long term segregation. 10. MDOC Leadership determined that the existing Supermax Unit 32 operation had taken all hope from the confined offenders. Offenders viewed their administrative segregation confinement as hopeless without any clear path for a release to the general population. Offenders placed in administrative segregation for security threat group (gang) leadership and/or membership had minimal due process. The procedures for security threat group offenders to be released from administrative

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segregation were subjective, complicated, and the offender had minimal input in the process. To complicate the process, procedures required the offender to provide all known information on his security threat group. This requirement, known to all offenders, placed their life in danger because any offender participating in the required program to be released from segregation was providing information on his security threat group and its members effectively labeling him a “snitch”. Severely mentally ill offenders were housed in the same units with non-mentally ill offenders. Treatment for the mentally ill offenders was infrequent and typically performed cell side with no privacy. Correctional staff received no specialized training on how to manage and supervise offenders confined in administrative segregation. 11. The MDOC by establishing objective criteria for placement of an offender in administrative segregation was able to reduce the population from approximately 1,300 offenders in July 2007 to approximately 325 in January 2008. The reforms significantly limited the reasons an offender could be placed in administrative segregation to serious assaultive activity, serious gang activity and attempted escapes or escapes from a secure perimeter. Disruptive gang activity was activity that caused major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group. Most offenders achieved release from administrative segregation within six months. 12. A small subset of offenders with a more serious history of violence and/or escape were instead given the opportunity to progress to general population conditions (while remaining segregated) within two to three years. These offenders’ progress to general population conditions of confinement was incremental, allowing offenders who had been in isolation for years to adjust over a period of time to reduced security requirements. The gradual progression allowed

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correctional staff to monitor the offenders’ adjustment to reduced security requirements before achieving maximum general population conditions of confinement in the administrative segregation setting. 13. Seriously mentally ill offenders in administrative segregation were separated from offenders without mental health issues. Correctional staff was required to receive forty hours specialized mental health training prior to assignment to administrative segregation units housing mental health offenders. Mental Health Programs were enhanced for the seriously mentally ill in administrative segregation with individual and group counseling provided outside of the cell. MDOC had a goal of discontinuing cell side assessments for all offenders confined in administrative segregation and begin face to face assessments in an office setting. 14. The security threat group procedures were revised to eliminate the requirement that an offender provide information on his security threat group and its members as a condition for release from administrative segregation. Placement in administrative segregation for security threat group involvement required rule violations and was not just predicated on being a member. All offenders were given clear instructions on the requirements to obtain release from administrative segregation or progression in an incentive program if retained in the status. After the reforms were implemented, the Mississippi Department of Corrections’ major incidents in administrative segregation significantly declined.3 The reforms allowed the Mississippi Department of Corrections to close Supermax Unit 32 in 2010. 15. The Mississippi Department of Corrections has successfully continued its reforms

3 T.A. Kupers, T. Dronet, M. Winter, J. Austin, L. Kelly, W. Cartier, T. J. Morris, S. F. Hanlon, E. L. Sparkman, P. Kumar, L. C. Vincent, J. Norris, K. Nagel, and J. McBride. “Beyond Supermax Administrative Segregation: Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental Health Programs.” Criminal Justice and Behavior 36, no. 10, October 2009: 1037-1050.

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on the use of administrative segregation, averaging approximately 300 offenders based on the information provided by the Agency Fact Sheet.4 16. Working with the Vera Institute of Justice, I and other consultants were able to assist the Illinois, Maryland, and New Mexico Corrections Systems reduce their administrative segregation and propose reforms to improve conditions of confinement. 17. In 2010, as a consultant for the National Institute for Corrections and then as a private consultant, Dr. James Austin and myself assisted the Colorado Department of Corrections institute reforms to improve conditions of confinement and reduce the population in administrative segregation. II. ASSIGNMENT 18. I have been retained by the Plaintiffs to evaluate and offer my opinion regarding the policy and operational practices of the California Department of Corrections and Rehabilitation’s (CDCR) use of special housing units (SHUs). 19. I am being compensated at the rate of $150 per hour for my work on this matter. 20. The focus of my review has been the CDCR regulations pertaining to the management, discipline, and housing of offenders and parolees found to be members, associates, or suspects of security threat groups. 21. My work in this matter is ongoing. This report summarizes my current opinions given the available information I have received to date. If additional information becomes available, I reserve the right to modify or supplement my analyses and opinions accordingly. III. FOUNDATION 22. I have utilized a variety of materials in the course of my review. A complete list of the materials I have reviewed in this matter is attached as Exhibit 2.

4 Exhibit 3, Mississippi Department of Corrections Fact Sheet, December 1, 2014.

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23. In addition to the documents reviewed, I conducted a site visit to the Pelican Bay State Prison and toured parts of the prison on January 14, 2015.
24. I was retained in this matter in October 2013 by the Plaintiffs’ counsel. My review commenced October 7, 2014, with Plaintiffs’ counsel providing me a number of documents including; CDCR Regulations, CDCR Proposed Regulations, CDCR Department Review Board (DRB) Documents, DRB Class Member documents. Other documents reviewed later were the October 7, 2014, Security Threat Group Regulations, CDCR Staff Orientation Booklet-Security Threat Group Step Down Program, and the CDCR Employee Suzan Hubbard October 29, 2014, Deposition.
IV. OPINIONS
25. The CDCR Conditions of Confinement for offenders in SHU Units are harsh and result in extreme isolation and are counterproductive and unnecessary to provide a safe and secure corrections’ system.
26. The CDCR does not restrict SHU placement and retention of offenders to individuals that are assaultive, cause serious disruptive activity in prisons, seriously injure others, cause major property damage, are actively involved in disruptive gang activity, have escaped or attempted to escape from prisons with secure perimeters, and/or possess weapons. Disruptive gang activity is activity that causes major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group.
27. The CDCR’s failure to restrict SHU placement and retention to offenders that are assaultive, cause serious disruptive activity in prisons, seriously injure others, cause major property damage, are actively involved in disruptive gang activity, have escaped or attempted to escape from prison with secure perimeters, and/or

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possess weapons is not sound penologically and results in placement and retention of offenders in segregation who could be safely managed in a less restrictive environment. 28. The CDCR Correctional Staffs’ minimal direct contact with SHU offenders discourages positive and meaningful communication that promotes a safe corrections’ environment. 29. The CDCR Correctional Staffs’ minimal direct contact with SHU offenders discourages positive and meaningful communication to prepare the offender for successful re-entry to the general population and the community. 30. The CDCR Correctional Counselor’s only required contact, is a 180 day offender review that is indirect without face to face interaction, and is insufficient to adequately monitor a SHU offender’s progress and status; 31. The CDCR Mental Health staffs’ daily cell side observations of SHU offenders is insufficient to assess offender mental health. 32. The CDCR Staff Training Program does not provide correctional staff the necessary specialized training to supervise and manage SHU Offenders. 33. The CDCR places and retains offenders in SHU Units that could be safely housed in the general population. 34. The CDCR reliance on confidential information under previous and current regulations create a significant risk of over classification and/or inappropriate placement of offenders in SHU Units. 35. The CDCR SHU Treatment Programs are insufficient to prepare an offender for successful re-entry to the general population and community; 36. The CDCR SHU Stepdown Program has too many steps and length of stay for the steps is excessive. 37. The CDCR SHU Stepdown Program Steps 1 and 2 privileges/incentives are the same as SHU D Privileges and the additional SDP Steps are insufficient to

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encourage offender participation and behavior change.
V. SPECIAL HOUSING UNIT (SHU) CONDITIONS OF CONFINEMENT
38. I conducted a site visit of the Pelican Bay State Prison on January 14, 2015. The CDCR Pelican Bay State Prison Litigation Coordinator, Public Information Officer, and a California Deputy Attorney General provided a tour of PBSP identified areas for Plaintiffs’ Expert Dr. James Austin, Plaintiffs’ Attorney Ann Weills, and myself.
39. There are two SHU Units at the Pelican Bay State Prison; Unit C contains twelve living pods with eight cells housing one or two persons per cell and Unit D consists of ten living pods with eight cells housing one or two persons per cell.
40. The PB SHU cell sizes are approximately 80 square feet. Cells do not have windows and only provide sky light viewing. PBSP officials conducting the tour reported that California OSHA requires 104 cells with Lexan cell fronts to protect staff and offenders. Lexan is a clear polycarbonate plastic used to cover the entire cell front door and exacerbates isolation for the assigned offenders and further restricts their contact with other offenders and staff. The availability of cells rather than offender behavior is the primary determining factor in placing an offender in a Lexan front cell.
41. Movement outside the living pod requires an unclothed search of the offender by staff at the pod entry/exit door before he has contact with correctional staff. SHU offender movement outside their living pods is in hand restraints. If an offender is taken out of the Housing Unit, his hand restraints are attached to a waist restraint. Offenders taken from the prison secure perimeter are placed in hand restraints with a “black box” covering the locking mechanism and attached to a waist restraint.5 Leg irons are not utilized in movement unless the offender

5 A “black box” is a security device used to cover the locking mechanism of hand restraints to prevent tampering.

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demonstrates disruptive activity that requires additional security measures. 42. SHU offenders and correctional staff have minimal contact. The design of the
living pods allows a SHU offender to be released and return to his cell for showers and recreation without restraints or staff escort. Offender movement in SHU Living Pods is one cell at a time. Access to recreation is 1.5 hours daily, seven days a week and showers are three time per week. The staffing and physical plant appeared sufficient for the offenders to receive required access to exercise and showers. The exercise areas have solid concrete walls and are a sufficient size, with a pull up bar and a view to the sky with half of the top covered with lexan and the other section uncovered. The exercise area allows no view except to the sky, increasing isolation as there is no view of the outside environment. 43. PBSP correctional staff allows offenders, when exiting their cells for showers and exercise, to pass property and have brief conversations with offenders in other cells. The practice was observed in PBSP SHU D-4 by me, Dr. Austin, and Attorney Weills. The contact is brief and not meaningful for social interaction. Even so, it contradicts the CDCR’s security rationale that SHU offenders require continuous isolation under harsh conditions to protect staff, other offenders, and members of the public. According to CDCR-PBSP officials conducting the tour for me, Dr. Austin and Attorney Weills, this is an informal policy and offenders are not formally authorized to pass property and have brief conversations with offenders in other cells. 44. At PBSP SHU staff interaction with offenders is limited to services provided outside the living pod, which require escorts by two staff. Such services include non-contact visitation on weekends (access to 4-three hour sessions) and legal department access (one time per week for priority legal users, and once every two weeks for general legal users with both receiving two hours per session).

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45. Other contact includes correctional staff making welfare checks of offenders while they are confined in their cells. Mental Health Staff reportedly make daily rounds passing by each cell for the purpose of observing and inquiring if an offender is experiencing any mental health issues.
46. SHU offenders can also request a session with their correctional counselor or step down counselor. The only counselor required session is a 180 day classification review where the offender is removed from his living pod and placed in an interview cell in the main area of the living unit. Classification counselors have a caseload of approximately 100 offenders. The classification review or any other type contact is not face-to-face. The offender is in the interview cell, and the counselor is outside the cell with a barrier between the offender and the staff person, preventing face to face contact.
47. Correctional staff conduct cell searches daily, with each offender averaging a cell search approximately one time per month.
48. Social contact is very limited in the SHU. Visitation is non-contact, and on weekends, with no exceptions for visitors that have schedules that prohibit visiting on a weekend. SHU offenders not yet in the Step Down Program have no social telephone access. (As described below, the Step Down Program Steps allow an offender minimal use of the telephone.) Offenders in different living pods utilize the legal access area at the same time and can see each other. Regulations prohibit the offenders in the legal access area from having conversations with each other.
49. Offenders on SHU status can purchase televisions and radios. There is no formal mechanism to assist an offender without necessary funds to obtain a television and/or radio. Televisions receive approximately 25 channels for viewing. Many state corrections systems utilize television programming to provide formalized treatment/rehabilitation programing for offenders confined in specialized housing

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units. This type of programming is not provided for Pelican Bay SHU offenders. 50. The PBSP site visit also included a tour of the Administrative Segregation Unit
(ASU), Psychiatric Services Unit (PSU) and a General Population Housing Unit. The Administrative Segregation Unit offenders are reviewed by staff every 30 days compared to SHU offenders being reviewed every 180 days. 51. The PBSP exercise areas for the ASU and PSU walls are constructed with metal fabrication wiring allowing an outside view thus providing an improved exercise environment compared to the SHU. The PSU physical plant is conducive to the operation of a high security unit with improved conditions of confinement over those of the SHU physical plant. The PSU cells have a window (although glazed) and glazing could be easily removed allowing offender views to the outside. My correctional experience finds no justification for glazing of PBSP windows to prevent views to the outside. The PSU Treatment Services Area has offices and four rooms with security treatment modules; three rooms with six security treatment modules; and one room with five treatment modules to provide individual and group counseling. The PSU has a capacity of 128 offenders and on the day of the tour had a population of ten offenders. The PSU Unit would be conducive for conversion to a high security unit to house SHU offenders retained in the SHU warranting general population conditions of confinement. 52. CDCR correctional employees receive 16 weeks of training, 40 hours per week at the department academy, and another 40 hours training upon arrival at their assigned prison. Correctional Officers participate in a two year apprenticeship program before becoming a certified correctional officer. PBSP officials conducting the tour advised that correctional staff assigned to SHU Units do not receive any formal specialized training on supervising and managing SHU offenders. 53. It is my expert opinion that confinement conditions at the Pelican Bay SHU lack

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penological justification, and are counterproductive to institution security. 54. There is no penological justification for conditions of confinement in Special
Housing Units which maximize isolation more than is necessary to ensure the safety of offenders and staff. Institutional security requires that offenders should have direct contact with staff outside of the cell for medical, mental health, and counseling services. Only on rare occasions, when an offender is actively disruptive, should services be provided at cell side. Social interaction through telephone calls and visits with immediate family serves, rather than detracts from institutional concerns and impacts the offender’s mental and physical well-being. My corrections experience has found the removal of social stimuli for extended periods causes an offender to experience hopelessness and anger. Over time he becomes increasingly more difficult to manage. 55. My experience with the Texas, Kentucky and Mississippi corrections systems and consulting in other state corrections systems has found blanket use of harsh administrative segregation conditions of confinement (like those at Pelican Bay SHU) is counterproductive and does not lead to a safer and secure prison. Harsh conditions of confinement exacerbate offender hopelessness and increase disruptive and dangerous offender behavior. There is no penological justification for imposing harsh conditions of confinement in administrative segregation on offenders who are not actively disruptive offenders. Even then, and as discussed below, harsh conditions are only penological valid when imposed for short durations until the active disruptive behavior ceases. 56. In contrast to the harsh conditions at Pelican Bay SHU, the experience in the Mississippi Department of Corrections of allowing administrative segregation offenders significant increased out of cell time and social interaction with other offenders was successful in changing offender behavior. 57. A cell front offender assessment without privacy and limited ability to

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communicate does not provide the means to properly evaluate an offender. 58. The more frequent reviewing of offenders in the PBSP ASU provides the
opportunity for correctional staff to monitor their needs and change their housing status in a timelier manner than provided to PBSP SHU offenders.
VI. CDCR PLACEMENT AND RETENTION OF OFFENDERS IN SPECIAL HOUSING UNITS
59. Administrative Segregation or SHU conditions of confinement result in extreme social isolation and limit an offender’s opportunity to participate in rehabilitative and treatment programs necessary for him to return and successfully live in the community. The majority of incarcerated offenders will return to the community after completing their prison sentence. There are studies that indicate the practice of releasing offenders from isolation directly to the community is associated with an increased risk of recidivism.6 The negative impact of isolation on an offender’s probability of being able to successfully reintegrate into the community necessitates that long term segregation is used only for that small percentage of offenders that are assaultive or cause serious disruptive activity in prisons that seriously injure others and/or cause major property damage, continuously possess weapons, escape or attempt to escape from high security prisons.
60. There is no penological justification for long term special housing of offenders for investigation, protective custody, non-violent rule violations, length and/or type of prison sentence. Gang membership or association with gangs should not be a reason for placement in a long term special housing unit; unless, the individual is leading, directing and/or participating in violent, disruptive and/or destructive activities that causes major property damage and/or serious physical injury to staff, other offenders or members of the public.

6 David Lovell and Clark Johnson, Felony and Violent Recidivism Among Supermax Prisoners in Washington State: A Pilot Study, 2004.

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61. Placement in long term special housing units has an impact on the medical and physical health of offenders. Studies have determined offenders in long term special housing unit suffer extreme isolation that can cause deep profound sadness and loss that results in anxiety, depression and/or anger.
62. The CDCR has a significant number of offenders that have been placed and retained in special housing units for years based on past assaultive behavior and/or involvement with security threat groups. This practice has been utilized by many state prison systems and the Federal Bureau of Prisons since the late 1980s although not to the extent of the CDCR. However, in recent years, most notably beginning with the Mississippi Department of Corrections in 2007, the use of long term segregation for offenders is being re-evaluated. I am aware Corrections systems in Colorado, Illinois, Maryland, New Mexico, Oklahoma, Maine, and South Carolina are moving forward with prison reforms to significantly reduce administrative segregation populations. Mississippi, Illinois, Maryland, Colorado, and New Mexico have been successful in reducing their administrative segregation population without an increase in overall serious incidents and improving conditions of confinement for the remaining offenders in administrative segregation.
63. In my work and consulting experience with administrative segregation, I have found state systems and the Federal Corrections System place and retain offenders in administrative segregation without significant justification contending it is necessary to operate a safe and secure prison. I am very familiar with the reforms successfully implemented by the state corrections systems in both Mississippi and Colorado to prevent inappropriate placement of offenders in administrative segregation and limit the length of stay while improving conditions of confinement.
64. In my work and consulting experience with administrative segregation, I have

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found many offenders in administrative segregation for inappropriate reasons; protective custody, minor rule violations, gang membership only, drug offenses, length of sentence or type of violent criminal sentence. Decisions to retain offenders had little if anything to do with current behavior in Administrative Segregation, and positive behavior while confined on the status had minimal impact on release and retention decisions. My review found that although the majority of state corrections systems and the Federal Corrections System house offenders that can be housed safely and securely in the general population or with improved conditions of confinement in Special Housing Units, the CDCR places and retains more offenders without safety and security justification for longer periods of time with harsher conditions. 65. Special Housing Units (Administrative Segregation) for long term confinement of offenders (over 60 days) is only penologically justified when utilized for individuals that are assaultive or cause serious disruptive activity in prisons, that seriously injure others and/or cause major property damage, continuously possess weapons, escape or attempt to escape from high security prisons. 66. Classification to Special Housing Units for the stated reasons should be instituted after a due process disciplinary hearing and finding of guilt for one of these serious offenses. After placement, offenders should be given the opportunity to earn improved conditions of confinement at six month reviews with reduced security requirements and improved privileges through positive behavior. The goal is general population conditions of confinement being achieved within two to three years if not released from the special housing unit. 67. The offenders that fall in this category must be given the opportunity to have decreased security requirements and graduated privileges with positive behavior. An offender with this type of profile should have the opportunity to graduate to general population conditions of confinement in an administrative segregation

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environment based on his behavior even if he cannot be released to the general
population.
VII. OFFENDERS APPROPRIATE FOR LONG TERM SPECIAL HOUSING UNIT PLACEMENT
68. The Mississippi Department of Corrections successfully reduced their long term
administrative segregation population in 2008 to approximately 325 offenders by
formulating a policy that restricted placement of offenders in long term
administrative segregation to: A. Offenders behaving violently and aggressively while incarcerated.
B. The behavior includes possession of major contraband not limited to:
1. Weapons that are capable of inflicting death
2. Ammunition that includes bullets, gunpowder, or shells
3. Escape instruments that include substance, device, or article designed or specifically adapted for criminal use in an escape attempt.7
C. Offenders actively involved in disruptive gang activity that causes major property damage and/or serious physical injury to staff, other offenders or members of the public while being a confirmed leader, enforcer, disruptive core member, or recruiter of a security threat group identified by the Mississippi Department of Corrections.
D. Offenders that escape or attempt to escape from within a security perimeter and/or custody of direct supervision.
E. Offenders that commit a felony while on escape from a community correctional facility.
F. Based on specific objective criteria set forth in writing there is a significant risk that an offender will cause physical injury to prison staff, other offenders, or member of the public if he is housed in the general population, even at the high security level.8

7 An item must be capable of causing injury and/or death or an escape device to be defined as major contraband in
this context. 8 Exhibit 4, Mississippi Department of Corrections. Administrative Segregation Longer-Term Status
Recommendation Form 19-01-03-F3.

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69. Even for this core group of dangerous offenders, my corrections work experience and consulting on administrative segregation has convinced me the majority of offenders placed in long term administrative segregation (special housing units) with appropriate behavior can be released from the status to the general population generally in six months. In Mississippi, offenders with appropriate behavior are released to the general population after six months or can obtain general population conditions of confinement in a special housing unit within two to three years.
70. There are a small percentage of offenders due to their history of violence, escape behavior, involvement in disruptive gang activity that causes major property damage and/or serious physical injury to staff, other offenders or members of the public and/or their high profile status that cannot be released from administrative segregation without completing a “step down program” to enhance successful reintegration back to the general population. A very small percentage may require an extended stay in long term administrative segregation even with exemplary behavior. Offenders that have a lengthy history of 1) serious assaultive behavior directed at other offenders and/or staff, 2) frequent escapes or attempted escape or 3) are identified as “high profile” and subject to be harmed by other offenders if released to the general population, would fall in this category. An example would be a high level gang leader who could be in danger from members of his own or a rival group(s). These offenders should have the ability to achieve general population conditions of confinement in an administrative segregation unit to recognize their positive behavior.
VIII. CDCR SPECIAL HOUSING UNIT STEP DOWN PROGRAMS
71. In my work with other state corrections systems regarding administrative segregation, increasingly step down programs are being utilized as a means for an

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offender to progress to the general population. Separately, a small percentage of offenders who require retention in high security units receive improved conditions of confinement commensurate to those in the general population. These approaches (administrative segregation step down programs for phasing to the general population or administrative segregation units with simulated general population conditions of confinement) are only penologically justified for this small percentage of offenders who have committed offenses causing serious bodily injury or death and/or have attempted escape or escaped from maximum security prisons. 72. The Mississippi and Colorado Department of Corrections have successfully instituted step-down programs for the high risk offenders that have a history of escape or serious assaultive behavior in prison. As the classified high risk offender progresses through administrative segregation step down program phases, his conditions are modified to allow routine and regular out of cell contact and programming in small high security living units. The initial phases of the step down programs begin with a reduction of heightened security requirements found in administrative segregation units, and ultimately at the highest phase security requirements in the confined unit mirror those in the general population. 73. Offenders who have been in administrative segregation continuously for over six months and display positive behavior need to be given incentives to continue their behavior. Continuing an offender in administrative segregation while he is demonstrating appropriate behavior is penologically counterproductive, as it only demoralizes him and makes him susceptible to the previous influences and actions that resulted in his initial placement. The initial phases should modify the typical administrative segregation conditions of confinement by reducing unclothed searches and restraint requirements and increasing out of cell time. This provides corrections officials the opportunity to monitor the offender and determine if he

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can safely be managed and supervised without normal administrative segregation security requirements. 74. CDCR Step Down Programs do not have the necessary incentives to motivate an offender to participate. CDCR Step Down Steps 1 and 2 are designed to be twelve months for each step and are usually at Pelican Bay State Prison. Steps 1 and 2 each can be reduced to 180 days if the Institution Classification Committee determines the offender has completed all required components and has expressed a sincere desire to participate. Programming is generally completed in the cell with all offender movement in restraints. Program assessments include the TABE and COMPAS. Program electives are available such as Criminal Gangs Anonymous, Purpose Driven Life and Victim Awareness. 75. There are minimal incentives for offenders to participate and successfully remain in the step down program. The CDCR Step Down Program Steps 1 and Step 2 have administrative segregation conditions of confinement found in corrections systems in the United States with the exception of an increase of five to ten hours of individual yard. The CDCR SHU conditions of confinement are harsher because offenders are not allowed telephone calls and cells have no windows. For all practical purposes, Steps 1 and 2 are identical, with the one exception that individual treatment modules can be utilized for programming in Step 2. In both steps, meals are consumed in the cell, showers are three times per week, programming is conducted in the assigned cell and visits are non-contact. Offenders may be allowed a total of one social telephone call at Step one, if he has a successful 180 day review, and a second single call upon progressing to Step 2. 76. Step 3 is for 12 months and is usually at the California Correctional Institution, California State Prison-Corcoran or California State Prison-Sacramento. Programs include education and cognitive behavior components such as criminal

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thinking, anger management, victim awareness, and family relationships. Programming is completed in cell or in individual treatment modules. Group facilitation begins at this phase in Individual Treatment Modules. All movement for offenders is in restraints. 77. Step 4 is twelve months and is also usually at the California Correctional Institution, California State Prison-Corcoran or California State PrisonSacramento. Programming includes education and cognitive behavior components such as modified rational thinking, communication skills and transition. Programming is completed in individual treatment modules and small groups within the housing unit or program areas. Offender movement may still be in restraints and meals are consumed in small groups in the housing unit. After the first six months, yard time is expanded from with their cell mate to include other offenders with diverse affiliations for the remaining six months of the twelve month step. 78. Step 5 is generally completed in twelve months at a Level IV 180 design institution for male offenders. This phase is for the purpose of observing offenders for transition back to the general population or sensitive needs yard setting. Movement, meals, yard time, and privileges for Step 5 offenders are consistent with the general population or sensitive yard population. 79. CDCR utilizes The Change Companies’ Self-Directed Journals for Step 3 and 4 focusing on helping high-risk inmates live a lifestyle free of criminal activity, violence, and drug use. The Mississippi Department of Corrections has a similar program available for high risk offender participation at the Mississippi State Penitentiary.9 Mississippi Department of Corrections offenders participating in
9 The Change Companies Program for high risk offenders at the Mississippi State Penitentiary is coordinated by a staff person that receives only one hour of training to coordinate the program. Offenders generally spend 9-10 hours per week completing journals for 52 weeks or approximately 500 hours and meet with the instructor one time per week for approximately one hour in groups to discuss their journals. The program has minimal formal participation by offenders and the coordinator.

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this program are in the general population and have weekly group interaction. Offenders in the CDCR Stepdown Program receive education through the Voluntary Education Program Model (VEP). Based on the population’s education needs and academic reading levels, the School Principal determines the appropriate way to provide education. Academic opportunities for Step Down offenders are provided through VEP delivery models. College program access is determined by the operational needs of the prisons and the offender’s ability to pay for course work. Programs do not actually qualify as voluntary as an offender must participate to progress through the CDCR Stepdown Program. 80. Sound correctional practice requires heightened management of offenders that have demonstrated a propensity of violence towards other offenders or staff. Utilizing administrative segregation step down programs allows corrections officials the opportunity to monitor high risk offenders over time with graduated incentives and reduced security requirements before the individual is released to the general population or community. This provides corrections officials the opportunity to identify where the offender can be safely managed and supervised while incarcerated. 81. The CDCR Stepdown Program is not based on sound correctional practice. It has too many steps, the length of time for each step is excessive and the minimal privileges and security requirements for each step does not encourage offender participation. Steps 1 and 2 do not provide sufficient increased privileges and lessened security requirements to assess an offender’s risk. There is absolutely no penological justification for placing offenders on Steps 1 or 2 who have been confined in CDCR Special Housing Units and qualify for placement in the CDCR Step Down Program. Offenders that qualify for the CDCR Step Down Program should be, at a minimum, considered for placement in Step 3, and strong consideration should be given for placement in Step 4; unless, there is clear and

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documented history of violence and/or escape that made additional requirements and monitoring at Step 3 necessary to provide a safe and secure environment for offenders and staff. 82. The CDCR SHU/SDP has an offender STG debriefing component for each step of the program. Offender STG debriefing during the SHU/SDP steps has no meaningful sound penological purpose. An offender providing information about his or other offender(s) STG involvement does not provide correctional administrators a mechanism to determine his present or future risk to staff, other offenders or members of the public. Realistically, the debriefing component creates a greater risk, due to offender participation being viewed as “snitching” on others or groups and results in violence as retaliation for being an informant. 83. In my opinion, debriefing is not a meaningful option for most offenders because of the risk to his safety. Sound penological practice requires other options besides debriefing for an offender to obtain his release from the SHU.
IX. CDCR REVISED SYSTEM FOR CONFINEMENT OF OFFENDERS IN SPECIAL HOUSING UNITS
84. In my expert opinion, along with failing to provide appropriate incentives, the revised CDCR system for confinement of offenders in special housing units does not adequately correct California’s over-assignment of offenders to the SHU. The new program still allows for SHU placement and retention of offenders who could be securely housed in the general population. Security Threat Group (STG) I validated members are automatically placed in Step 1 of the Special Housing Unit Step Down Program (SDP). Placement in Step 1 of the SDP can occur without the offender being actively involved in disruptive gang activity, as a confirmed leader, enforcer, disruptive member, or recruiter of a STG. STG I Associates, STG II Members and STG Associates validated with source items that include serious STG behavior or activity as listed in the STG Disciplinary Matrix are

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considered for placement in a SDP when found guilty of two STG related administrative rule violations within a preceding twelve month period, found guilty of one serious rule violation or found guilty of two STG related serious rule violations. The CDCR STG Disciplinary Matrix has non-violent serious rule violations that can trigger SHU/SDP placement along with administrative rule violations. CDCR rule violations appropriate for triggering SHU/SDP placement are major property damage and/or serious physical injury to staff, other offenders or members of the public and escape or attempted escape. Non-violent rule violations are not appropriate for justifying CDCR SHU/SDP placement. 85. Long term special housing unit placement and retention should be reserved for offenders; 1) behaving violently and aggressively while incarcerated, 2) actively involved in disruptive gang activity and a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group, 3) have escaped or attempted to escape from a security perimeter and/or custody or direct supervision, 4) possessing weapons and/or 5) specific objective criteria set forth in writing has determined there is a significant risk the offenders will cause serious physical injury to prison staff, other offenders, or member of the public if housed in the general population. Disruptive gang activity is activity that causes major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member, or recruiter of a security threat group. CDCR utilizing non-violent serious rule violations and administrative violations are inappropriate as justification for placement of offenders in long term special housing units. Placement of offenders in special housing units in this category causes harm to the offender, unnecessarily isolating him without social interaction, is not conducive to providing a safe and secure environment and is fiscally irresponsible. Moreover, staffing and operation costs for special housing units are significantly higher

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compared to general population housing units.
X. CDCR USE OF CONFIDENTIAL INFORMATION
86. CDCR Title 15 3321.c1-4 prior to the October 17, 2014 revision established confidential reliability by using one or more of the following criteria; 1) the confidential source had previously provided information to be true, 2) other confidential sources had independently provided the same information, 3) the information provided by the confidential source was self-incriminating, 4) part of the information provided was corroborated through investigation or by information provided by non-confidential sources, and 5) the confidential source was the victim.
87. Use of confidential information and sources must have protections for the accused. Safeguards must be in place that provides the accused sufficient details to defend him against the confidential source and/or information.
88. The previous CDCR Regulations provided the opportunity for confidential sources and materials to be used by staff to incorrectly classify and place offenders in special housing units. Reliability establishment only required a single criterion. A source previously providing reliability should not solely establish his reliability for the future. Other sources independently providing the same information does not prevent sources from conspiring to provide false information. Self-Incriminating information for reliability without other corroborating evidence can result in erroneous findings of fact. Part of the information being corroborated by a non-confidential informant does not establish overall reliability to make an informed decision. Confidential reliability based solely on victim information without other corroborating evidence can result in erroneous decision(s). Unfortunately, victims have made incorrect identification in both prison and community settings. The use of confidential sources and

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information in corrections settings must be utilized very carefully. Confidential sources and information is an administrative tool and should not be solely utilized to make decisions. Hensley v. Wilson in its opinion stated, “To make a decision based on the factual evidence presented, and part of a disciplinary committee’s task must be to make a bona fide evaluation of the credibility and reliability of the evidence. In a prison environment, where authorities must depend heavily upon informers to report violations of regulations, an inmate can seek to harm a disliked fellow inmate by accusing that inmate of wrongdoing. Since the accuser is usually protected by a veil of confidentiality that will not be pierced through conformation and cross-examination, an accuser can easily concoct the allegations of wrongdoing. Without a bona fide evaluation of the credibility and reliability of the evidence presented, a prison committee’s hearing would thus be reduced to a sham which would improperly subject an inmate accused of wrongdoing to an arbitrary determination”.10 The same can be said for classification of the offender to special housing units. Safeguards must also be in place to prevent offenders and others from providing false information that is reportedly reliable to receive favor from prison officials. My corrections experience has found offenders and others will provide false information, reported as reliable, to improve their personal situation or that of another person. 89. The revised regulation 15 CCR 3321 Confidential Information still provides the opportunity for confidential sources and materials to be used by staff to incorrectly classify and place offenders in special housing units. The reliability of a confidential source in 15 CCR 3321.c. may be established by one or more of the following criteria; 1) the confidential source has previously provided information which proved to be true, 2) other confidential source have independently provided

10 Hensley v Wilson. 850 F.2d 269 (6th Circuit 1988) EXPERT REPORT OF EMMITT L. SPARKMAN 29

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the same information, 3) the information provided by the confidential source is self-incriminating, 4) part of the information provided is corroborated through investigation or by information provided by non-confidential sources, 5) the confidential source is the victim, and 6) this source successfully completed a polygraph examination. The revised 15 CCR 3321 still has that a single criteria may be used to establish a confidential source is reliable. The only change is reliability can be established with a source successfully completing a polygraph examination. The revised 15 CCR 3321 does not have the necessary safeguards to ensure the accused is provided sufficient details to defend him against the confidential source and/or information. As earlier opined, confidential sources and information are an administrative tool. It is not penologically sound to solely utilize confidential sources and information to make SHU placement decisions.
XI. RECOMMENDATIONS
90. CDCR should only place and retain offenders in the SHU that are one or more of the following; assaultive, cause serious disruptive activity in prisons, seriously injure others, cause major property damage, are actively involved in disruptive gang activity, have escaped or attempted to escape from prison with secure perimeters, and/or possess weapons. Disruptive gang activity is activity that causes major property damage and/or serious physical injury to staff, other offenders or members of the public with the offender being a confirmed leader, enforcer, disruptive member or recruiter of a security threat group. SHU placement should not be solely for STG I membership.
91. Participation in the CDCR SHU SDP should be for those offenders with a history of one or more of the following; assaultive, cause serious disruptive activity in prisons, seriously injure others, cause major property damage, are actively involved in disruptive gang activity, have escaped or attempted to escape from

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prison with secure perimeters, and/or possess weapons. Disruptive gang activity is
activity that causes major property damage and/or serious physical injury to staff,
other offenders or members of the public with the offender being a confirmed
leader, enforcer, disruptive member or recruiter of a security threat group.
92. CDCR SHU Step Down Program Conditions of Confinement should be revised to
limit isolation. Reformed conditions of confinement should include but not be
limited to; increased face to face contact with staff providing services, monthly
telephone calls, visitation schedules that encourage visits including alternative
schedules for visitors that cannot visit during normal times, means for offenders
without funds to obtain a radio and television; and recreation areas that allow
viewing to the outside without solid walls.
93. The CDCR Step Down Program should be reduced to three steps with the highest
level achieved in 2 years; Step 1 should be for six months with privileges that
exceed those of CDCR SHU Privilege D status, Step 2 should be 12 to 18 months
with reduced security requirements that allow activities without restraints and
group activities as the offender progresses in the step, Step 3-Indefinite with
privileges and conditions of confinement commensurate with the general
population. The majority of Step Down Program offenders should be released to
the general population upon completion of the Step 2. Only those offenders that
have a history of one or more of the following should be considered for retention
in Step 3;  committing serious assaults and/or homicide  cause serious disruptive activity in prisons  seriously injure others  cause major property damage  are actively involved in disruptive gang activity that causes major property
damage and/or serious physical injury to staff, other offenders and members of the public and are a confirmed leader, enforcer, disruptive member, or recruiter  have escaped or attempted to escape from prisons with secure perimeters

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possess weapons
based on specific objective criteria set forth in writing are a significant risk to cause serious physical injury to prison staff, other offenders, or member
of the public if housed in the general population, even at the high security
level
94. SHU offenders maintained at Step 3 could be released by responsible CDCR Officials at any Step 3 review although retention is indefinite. SDP reviews for Step 1, 2, and 3 should be face to face with correctional staff in an offrce setting
and conducted every 90 days to appropriately monitor the progress and
adjustment of the offender in the SDP.
95. Offender reviews by correctional counselors should be at a minimum monthly, face to face, and in an office setting unless current behavior would endanger staff
or others. 96. SHU and Step Down Treatment and Rehabilitation Programs should be evidence
based and provided by licensed and/or certified treatment staff; 91. Licensed and/or Certified Mental Health staff should have face to face interviews
with all SHU offenders in an office setting at a minimum every 30 days. 98. Prior to SHU assignment, Correctional Staff should receive 40 hours specialized
training on the supervision and management of SHU offenders; 99. Any offender currently retained in the SHU on confidential information should
have the information/source evaluated for reliability. Confidential information andlor sources are an administrative tool and should not be solely utilized to
continue placement of an offehder in the SHU or SHU SDP.

Emmitt L. S

Dated: March 5,2015

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Exhibit 3

Exhibit 4