Filed Date: Dec. 9, 2009
Clearinghouse coding complete
On December 9, 2009, two prisoners at California's Pelican Bay prison who had been kept in solitary confinement for decades filed this § 1983 action against the State of California in the U.S. District Court for the Northern District of California. The plaintiffs, originally proceeding pro se, asked the court for declaratory, injunctive, and compensatory relief, claiming violations of their First, Fourth, Eighth, and Fourteenth Amendment rights. Specifically, the plaintiffs claimed that the "indefinite status" designation process for keeping them in solitary confinement on the basis of undisclosed informant information about gang affiliation, among other information, violated their constitutional rights.
The Pelican Bay supermax facility was opened in 1989 as the most restrictive prison in the California state prison system. The Security Housing Unit ("SHU") was developed as an especially secure area of the prison, with 1,024 cells for solitary confinement. Prisoners placed there were alone for 22½ to 24 hours a day in a windowless cell with a concrete bed, a concrete desk, and a concrete stool. They were permitted a single book, 3 showers a week, and breaks for 'exercise,' court appearances, or emergency medical care, but no vocational or educational opportunities. Contact with other prisoners or outsiders was severely limited. One plaintiff claimed that he had only spoken with his mother twice in the past twenty-two years, once in 1998, and once in 2000. She had died since the filing of the action.
The criteria for placing and keeping prisoners in the SHU was based mainly on real or perceived gang affiliation. After a landmark case (Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), the prison was required to develop standards and procedures for determining whether a particular person should remain in detention in the SHU. The new "indefinite status" procedure excluded the prisoners from these hearings, which are supposed to be conducted every six months.
According to the plaintiffs, there were only three ways out of the SHU: expiration of sentence, death, and 'debriefing.' Debriefing was a process by which a SHU prisoner agreed to become a confidential informant for the prison administration in exchange for return to the general population. The plaintiffs claimed that this amounted to a death sentence: the assumption among the general population being that if a prisoner gets moved from SHU there must have been an agreement to become an informant. As a result, it puts into danger not only the prisoners' lives, but their family members' lives as well. Increasing the likelihood of indefinite detention in the SHU, the plaintiffs claimed, was that any speech, even a simple greeting, could be construed by prison officials as evidence of gang affiliation, warranting continued confinement in the SHU.
Two prisoners in the SHU who had been incarcerated there since 1989 first filed a pro se lawsuit against the prison in 2004 (Docket No. 4:04-cv-01967 (N.D. Cal. May 19, 2004)). Most of the claims were dismissed on June 2, 2005, for failure to exhaust administrative remedies. The court also granted absolute and qualified immunity from the damages claims. The court did not dismiss the plaintiffs' First Amendment freedom of speech claim arising from the prison's policy of not allowing hardcover books in the SHU. On March 8, 2006, the court determined that the prison's prior policy on hardcover books was unconstitutional. The court, however, did not issue an injunction because the prison had revised its policy and no longer prohibited hardcover books with their covers removed. The court also granted qualified immunity to one of the defendants. The plaintiffs appealed the qualified immunity decision, but the Ninth Circuit affirmed the decision on July 30, 2009.
The two plaintiffs filed a new pro se complaint in 2005 (Docket No. 4:05-cv-03286 (N.D. Cal. Aug 11, 2005)) raising claims, originally filed on May 19, 2004, that were previously dismissed without prejudice. On June 14, 2007, the court again dismissed most of the claims for failure to exhaust administrative remedies. The court determined that four claims had been exhausted: (1) the First Amendment claim regarding access to certain magazines; (2) the due process claim based on the defendants' procedure for determining whether the plaintiffs were active or inactive gang members; (3) the negligence claim; and (4) the intentional tort claim. On March 25, 2009, the court granted the defendants' motion for summary judgment as to all remaining claims, except the claim for prospective injunctive relief for late delivery of incoming mail against the warden acting in his official capacity. The court also denied the plaintiffs' cross-motion for summary judgment and motion for preliminary injunction. On March 18, 2010, the court rule for the defendants on the First Amendment claim regarding late delivery of incoming mail. On January 11, 2012, the Ninth Circuit affirmed the district court's decisions to dismiss and to grant summary judgment.
On December 9, 2009, these two prisoners filed a new complaint, in this lawsuit, alleging that they were being deprived of due process of the laws through the secret review process that would "validate" them as gang members (both had been in SHU for more than a decade with no outside contact). They also claimed that a 'validation' could be based on secret evidence that they had associated with persons who may or may not have gang affiliation and that this violated the First Amendment. Lastly, they alleged that the conditions of confinement were in violation of international law and the Eighth Amendment.
On February 16, 2010, the Court (Judge Claudia Wilken) screened the complaint, as required when prisoners file lawsuits against their jailers under 28 U.S.C. § 1915A. She dismissed the complaint because out of the twenty-four named defendants, "it [was] not clear which actions proximately caused each constitutional violation." The Court also found that because one of the plaintiffs could afford the filing fee, the complaint would be dismissed without prejudice. Plaintiffs paid the filing fee and filed an amended complaint.
On December 20, 2010, the Court granted leave for the plaintiffs to serve the defendants with the complaint under 28 U.S.C. § 1915A. The Court cautioned the defendants to not needlessly waste resources through insisting on formal service, pursuant to Federal Rule of Civil Procedure 4(d).
Still pro se, the Plaintiffs filed motions to enlist the help of the U.S. Marshals in serving the defendants (their own ability to serve the defendants was extremely limited in the SHU). The plaintiffs also moved to compel prison officials to cooperate in photocopying their legal documents, which the Court granted on October 11, 2011.
In the summer of 2011, prisoners in the Pelican Bay SHU led two system-wide hunger strikes protesting indefinite solitary confinement and the notorious SHU conditions at Pelican Bay. The hunger strikes, each lasting three weeks, ended after California Department of Corrections agreed to negotiations with hunger strike representatives over their demands. In late 2012, CDCR implemented a pilot program to release those held in the SHU on gang charges. However, prisoners and their advocates denounced the program for keeping the most objectionable aspects of the old program and expanding qualifications for SHU placement.
Meanwhile in court, on June 24, 2011, the plaintiffs filed a Motion for an Emergency Protective Order, alleging that defendants had begun confiscating key pieces of evidence of defendants' illegal acts. The District Court ordered further briefing on the issue on October 12, 2011. The Emergency Protective Order was denied without prejudice on March 13, 2012, in part due to the fact that plaintiffs had retained counsel from the Center for Constitutional Rights.
Assisted by new counsel, the plaintiffs filed a Second Amended Complaint on September 10, 2012. The plaintiffs claimed that the psychological harm caused by the prolonged confinement was cruel and unusual under the Eighth and Fourteenth Amendments. They also challenged the due process grounds for confining prisoners for decades in the SHU, and included class action allegations, thus naming eight additional plaintiffs.
On December 6, 2012, the plaintiffs filed a Motion for Preliminary Injunction, claiming that in retaliation for this litigation, one of the individual plaintiffs was moved to a different cell block of the SHU. The transfer eliminated all communication between him and the other plaintiffs, separated him from his longtime writing assistant assigned by the California Department of Corrections under the Americans with Disabilities Act, and allegedly frustrated counsels' ability to litigate the class action. Judge Wilken denied this motion on April 18, 2013. Judge Wilken found that plaintiffs had not satisfied the requirements for a preliminary injunction because retaliation was not a claim in the class action complaint, and a preliminary injunction would thus provide relief beyond that which would be granted if the plaintiffs prevailed in the suit. Judge Wilken also denied the motion under the All Writs Act because the evidence did not indicate that the individual plaintiff's transfer was motivated by retaliatory animus, and plaintiffs did not rebut defendants' non-retaliatory justification for the transfer (prisoner safety).
On December 17, 2012, the defendants filed a Motion to Dismiss. Judge Wilken denied this motion on April 9, 2013. Judge Wilken found that the plaintiffs' claims were not moot because the defendants' pilot program for gang management policies did not permanently cure the due process violations alleged, and that the plaintiffs adequately pleaded Eighth Amendment and due process claims. 2013 WL 1435148 (N.D. Cal. Apr. 9, 2013).
In 2013, dissatisfied with CDCR's progress regarding the length of solitary confinement and conditions of confinement, prisoners began to call for another hunger strike. The strike began on July 8, 2013, and lasted for almost two months. More than 30,000 prisoners participated in the initial strike. The strike ended when two California state lawmakers announced that they would hold public hearings on the state's use of solitary confinement. However, most of the prisoners' demands had not been met and they vowed to continue fighting. For more information about this hunger strike, see this article from Mother Jones.
On June 2, 2014, Judge Wilkens granted in part the plaintiffs' May 2, 2013, motion to certify the class. Judge Wilkens certified two classes. The Due Process Class consisted of all prisoners who were assigned to an indeterminate term at the Pelican Bay SHU on the basis of gang validation, under the policies and procedures in place as of September 10, 2012. The Eighth Amendment Class consisted of all prisoners who were or would be assigned to the Pelican Bay SHU for a period of more than ten continuous years. 2014 WL 2465191 (N.D. Cal. June 2, 2014).
The parties continued with discovery in 2014 and 2015. Many expert reports were filed in 2015 as part of discovery. In addition, on March 11, 2015, the plaintiffs filed an amended class-action complaint to cover prisoners who were held in the Pelican Bay SHU for over ten years, but then were transferred out to the Tehachapi SHU where conditions were similar.
On September 1, 2015, the parties reached a settlement agreement and submitted it to the court for approval. In the agreement, the CDC agreed to end indeterminate solitary confinement in prisons across California, stop the use of "gang affiliation" as a basis for placing people in isolation, dramatically reduce the number of people in solitary, and create a new step-down program designed to return those sent to the SHU to general population in two years or less. The court retained jurisdiction to enforce the terms of the agreement for two years, but the plaintiffs had the option to seek an extension at the end of the two years by presenting evidence of ongoing constitutional violations.
On January 26, 2016, Judge Wilkens granted final approval of the class settlement. Plaintiffs moved for $4,550,000 in attorneys' fees and costs incurred from the start of the case to September 1, 2015. This amount was awarded on July 1, 2016, and underwent final approval on August 26, 2016. Plaintiffs continued to seek judgment on various dispositive matters, and attorneys' fees and costs for litigation throughout.
On November 20, 2017, the plaintiffs moved for an extension of the settlement agreement based on systemic due process violations. They stated three grounds for the extension: first, the misuse of unreliable confidential information to return class members to solitary confinement; second, inadequate procedural protections related to placement and retention of class members in the Restricted Custody General Population Unit; and third, the retention of CDCR's old, constitutionally infirm gang validations, which were still being relied on to deny class members a fair opportunity for parole.
On February 6, 2018, the district court ordered defendants to supplement their production of certain documents relevant to plaintiff's motion to extend the settlement agreement. On July 3, 2018, plaintiffs alleged that the subsequent documents produced by the CDCR demonstrated that the defendant had systematically violated due process rights regarding confidentiality of the information. Plaintiffs stated concerns regarding the systematic nature of these due process violations, and that CDCR's due process violations created a substantial risk of error of a prisoner being wrongfully sent to solitary for years and losing good time credits, which would prolong prison terms.
On August 21, 2018, the parties met and conferred to present joint status reports. The parties disagreed whether defendants had a basis to stay further proceedings.
On December 7, 2018, the court issued three orders, citing them as responses to defendants' violation of the settlement agreement on July 3, 2018. These orders stipulated that the court adopted the plaintiffs' Out-of-Cell Time remedial plan and the plaintiffs' walk-alone status remedial plan, ordering the defendants to take all steps necessary to implement these plans. The order also granted defendants' motion to stay the enforcement of the remedial plans pending appeal.
The Out-of-Cell Time plan provided that: (1) all class members be accorded an amount of time out of their cells that is meaningfully greater than when they were in SHU; (2) the CDCR keep a documentation of their compliance and to make it readily available to the plaintiffs' counsel; (3) the parties meet every three months to discuss implementation and every six months with the Magistrate Judge to assess progress (this monitoring was to continue for one year with the plaintiffs retaining the right to seek an extension); (4) an expert be included as part of the plaintiffs' monitoring; and (5) defendants be prohibited from retaliating against any class representatives.
The Walk-Alone status plan provided that: (1) the determination of whether a prisoner be classified as a walk-alone or allowed to exercise in a group was to be made by the Institution Classification Committee and the determination would be reassessed every two months; (2) the ICC would provide reasoning for its determination; (3) prisoners would have the right to waive their right to group activity; (4) walk-alone prisoners would be afforded adequate alternatives for social contact; and (5) plaintiffs' counsel would be entitled to monitor the group programming status of each prison for one year and the right to seek an extension.
On December 19, 2018, the defendants appealed.
On January 25, 2019, Magistrate Judge Robert M. Illlman granted plaintiffs' motion to extend the settlement for twelve months, citing continued due process violations, specifically the misuse of confidential information to return class members to solitary confinement and the use of unreliable gang validations to deny class members a fair opportunity to seek parole.
In February 2019, the defendants moved to stay the January 25 order, arguing they would be irreparably harmed absent a stay. The court denied this motion on April 10, 2019, arguing that the court held jurisdiction to extend the agreement.
On April 24, 2019, defendants moved for a de novo determination on the April 10th dismissal of defendants' motion. The court granted the motion on June 26, 2019, and reaffirmed the court's initial dismissal of the motion on April 10, 2019.
On July 16, 2020, Judge Wilken moved the deadline for filing to extend the settlement agreement again to September 25, 2020 due to COVID-19.
However, shortly after on August 3, 2020, the Ninth Circuit reversed the court’s earlier July 3, 2018 ruling that the defendants had violated the settlement agreement. Writing for the court, Judge James Gwin disagreed with the plaintiffs’ claim that the settlement agreement implicitly required increased out-of-cell time for prisoners moved to the general population. Citing the plain text of the settlement agreement, he pointed out that the plaintiffs had defined out-of-cell time for SHU prisoners but not those moved back to the general population, leaving the latter to the discretion of the defendants. Secondly, the court found that contrary to the plaintiffs’ assertion, the settlement agreement did not require the defendant to provide group time and group activities to prisoners on “walk-alone” status. It reasoned that the paragraph discussing these purported requirements was “aspirational,” and that while it indicated prisoners should be moved to “small group yards,” it did not specify that more than one prisoner need occupy those yards. Moreover, the defendant had “substantially complied” with this section to the extent that it could. In reversing the decision, the court vacated the remedial plans set forth on December 7, 2018. 968 F.3d 939, 944-946. In response, the plaintiffs petitioned the Ninth Circuit on August 31, 2020 to rehear the case en banc. Their petition was denied on October 14, 2020.
The plaintiffs also filed a new motion for extension of the settlement agreement on September 25, 2020 based on the same systemic due process violations that the appeals court had evaluated. On April 9, 2021, Judge Wilken approved the magistrate judge's recommendation that the settlement agreement be extended for another twelve months. Judge Wilken found that the defendants continued to use old gang validations without acknowledging that those procedures are flawed and unreliable, which resulted in violations of the class members' right to a meaningful hearing in the context of parole. The defendants appealed this order to the Ninth Circuit.
Meanwhile, the plaintiffs and defendants filed dueling motions for attorneys fees. Both parties won aspects of the case and both believed they were entitled to some amount of money. The magistrate judge recommended that the plaintiffs' motion be granted and the defendants' motion be denied. Judge Wilken agreed and awarded the plaintiffs $311,968.50.
On February 2, 2022, Judge Wilken extended the settlement agreement for an additional one-year term. She had found that the defendants continued to violate the due process rights of imprisoned men and that CDCR was relying on inaccurate and fabricated confidential information to place individuals in solitary confinement, using unfounded gang affiliations to deny them a fair opportunity for parole, and holding them in a restricted unit in the general population without adequate procedural safeguards. The case is ongoing.
Blase Kearney (6/5/2012)
Samantha Kirby (10/20/2014)
Jessica Kincaid (1/6/2016)
Jennifer Huseby (11/2/2018)
Jack Kanarek (10/23/2020)
Justin Hill (9/12/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4176731/parties/ashker-v-newsom/
Agathocleous, Alexis (New York)
Akel, Richard Livingston (California)
ADMITTED, Timothy C (California)
Albertine, Christine Albertine (California)
Alcantara, James W (California)
Gwin, James S. (Ohio)
Illman, Robert M. (California)
Nelson, Ryan Douglas (District of Columbia)
Vadas, Nandor J. (California)
Wallace, John Clifford (California)
Wilken, Claudia Ann (California)
See docket on RECAP: https://www.courtlistener.com/docket/4176731/ashker-v-newsom/
Last updated Sept. 27, 2023, 3:03 a.m.
State / Territory: California
Filing Date: Dec. 9, 2009
Case Ongoing: Yes
Prisoners incarcerated at the Security Housing Unit for a period of 11–22 years on behalf of one class of all prisoners who were assigned to an indeterminate term at the Pelican Bay SHU on the basis of gang validation under the policies and procedures in place as of September 10, 2012 and another class of all prisoners who were or would be assigned to the Pelican Bay SHU for a period of more than ten continuous years.
Public Interest Lawyer: Yes
Filed Pro Se: Yes
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: $4,550,000
Order Duration: 2016 - None
Content of Injunction:
Type of Facility: