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28

l

Case 2:08-cv-01196-JAM-EFB Document 1 Filed 05/30/08 Page 53 of 53

· PROOF OF SERVICE BY lYI-AJ.L

BY PERSON IN STATE CUSTODY

(Fed. R. Civ. P. 5; 28 U.S.c. § 1746)

l, _ _ _ _--':A.'--"'o""~"""e'"_r<_LI:__<.,Af;_:...:.I_<_r.__=c'_'h..:..=e_'.I_'_ _/ _ _ _ _ > declare;

I am over 18 years of age and II party to this action. lam a resident of _ _ _ _ _ _ _ __

C.5. ?- 54crA'n1 en to'

Prison,

in the county of

.7Zy::¥1!',!it?'

State of Californ ia. My prison address is: C. S. P - S'AlCY'"A?H7 ea ". '"
P. cr. 8"X ..:t r, . .7Z~tV'"e-.?41. C/.P. ya-r;;7,/

On

U-/...<//Oy

------------~~·~{D~A~TE~)~7~--------------------

I served the attached: C/&r/t'll=a:;.e; "I.2.C/. .i.e. 19'9.:)

C/vtl /?,,'tAt"J C~.4;I·/1 t"

) (OESCRI9EDoc

I

on the partie~ herein by placing true and correct copies thereof. endosed in a sealed envelope,

with postage thereon fully paid, in the United States Mail in a deposit bOll SO provided at the

above-named correctional institution in which J am presently confined. The envelope was

addressed as follows:

or ) declare under penalty of perjury under the Jaws the United States of America that the
forgoing is lrue and correct.
(DECLARMIT'S SIGNA1Lll!£}

 1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9 ROBERT MITCHELL,

10

Plaintiff,

11

v.

12 T. FELKER, et al.,

CASE NO. C08-1196 RAJ ORDER

13

Defendants.

14

15

This is the undersigned judge’s initial order in this action. This matter was

16 transferred to the undersigned judge in January 2009 (Dkt. # 7), after it was transferred to

17 the Chief Judge of the Western District of Washington in November 2008 (Dkt. # 6).

18 Plaintiff Robert Mitchell has filed a complaint alleging violations of 42 U.S.C. § 1983, 42

19 U.S.C. § 1985, and California law against against Defendants T. Felker, the warden at

20 High Desert State Prison (“HDSP”), where Mr. Mitchell was previously confined. Also

21 named as a Defendant is J. Walker, the warden at California State Prison – Sacramento

22 (“CSP Sacramento”), where Mr. Mitchell is currently confined. Also named are at least

23 16 other Defendants who are either corrections officers or are otherwise employed by one

24 of the above mentioned prisons. Currently pending is Mr. Mitchell’s application to

25 proceed in forma pauperis (Dkt. # 2).

26

The court has reviewed Mr. Mitchell’s complaint and finds that it states a

27 cognizable claim for relief. Mr. Mitchell has presented a claim that is not patently

28 ORDER – 1

1 frivolous or malicious, and the court has no basis to conclude at this time that the

2 complaint fails to state a claim upon which relief may be granted. For that reason, the

3 court concludes that the complaint should not be dismissed in exercise of the court’s

4 obligation under 28 U.S.C. § 1915A to screen civil complaints from prisoners against

5 government entities or government officers. In making this finding, the court in no way

6 suggests that Mr. Mitchell is likely or unlikely to prevail on the merits of his claim.

7

The court has reviewed Mr. Mitchell’s application to proceed in forma pauperis

8 and concludes that it meets the standards set forth in 28 U.S.C. § 1915. Mr. Mitchell has

9 submitted a declaration and other information necessary to assess his financial status, as

10 required by 28 U.S.C. § 1915. Having reviewed that information, the court grants Mr.

11 Mitchell leave to proceed in forma pauperis. Prison officials have certified that, as of

12 May 2008, both the average monthly deposits in Mr. Mitchell’s account and the average

13 monthly balance in the six months preceding his application were zero or negative. For

14 that reason, Mr. Mitchell shall not be required to pay an initial filing fee, nor shall the

15 court issue an order requiring periodic payments from Mr. Mitchell’s account. The court

16 orders Mr. Mitchell to submit a second financial affidavit regarding the status of his

17 account, including a new certification from prison officials regarding his account balance

18 and account activity for the six months preceding the certification date. The court will

19 use this information to determine if an order directing full, partial, or periodic payment of

20 the $350 filing fee is necessary.

21

In accordance with the above, IT IS HEREBY ORDERED that:

22

1. Plaintiff’s request for leave to proceed in forma pauperis is granted.

23

2. Plaintiff shall, within 30 days of the date of this order, submit a second

24 financial affidavit and account certification from prison officials as described above, after

25 which the court will determine if an order directing full, partial, or period payment of the

26 $350 filing fee in this action is appropriate.

27

28 ORDER – 2

1

3. Service is at least potentially appropriate for the 18 Defendants listed in Mr.

2 Mitchell’s complaint. To the extent that Mr. Mitchell has full names for any of these

3 Defendants, he shall so state when he provides the documents described below to the

4 court.

5

4. The Clerk of the Court shall send plaintiff 19 USM-285 forms, one summons,

6 an instruction sheet and a copy of the complaint filed May 30, 2008.

7

5. Within thirty days from the date of this order, plaintiff shall complete the

8 attached Notice of Submission of Documents and submit the following documents to the

9 court:

10

a. The completed Notice of Submission of Documents;

11

b. One completed summons;

12

c. One completed USM-285 form for each Defendant listed in number 3 above;

13 and

14

d. Nineteen copies of the endorsed complaint filed May 30, 2008.

15

6. Plaintiff need not attempt service on Defendants and need not request waiver of

16 service. Upon receipt of the above-described documents, the court will direct the United

17 States Marshal to serve the above-named Defendants pursuant to Federal Rule of Civil

18 Procedure 4 without payment of costs. The court notes that given the large number of

19 Defendants Mr. Mitchell has sued, the court may decline to order service as to some

20 Defendants pending a review of whether the complaint adequately states a claim against

21 each Defendant.

22

DATED this 26th day of May, 2009.

23

24 25

A

The Honorable Richard A. Jones

26

United States District Judge

27

28 ORDER – 3

 Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 1 of 39
ROBERT MITCHELL P-87230
1
FOLSOM STATE PRISON 2
P.O. BOX 950 3
Represa, Ca 95763 4

5 PLAINTIFF, IN PRO PER.
6

7

8

THE UNITED STATES DISTRICT COURT

9

THE EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT MITCHELL,

12

PLAINTIFF,

VS.

13 T. FELKER, WARDEN;

14 J. Walker, Warden;

15 M. Wright I Associate warden;

CASE NO. 08-cv-1196-RAJ
PLAINTIFF'S FIRST AMENDED ~LAINT
FOR VIOLATION OF CIVIL RIGHTS
42 U.S.C. §1983 AND 42 U.S.C. §1985
(2) AND DEMAND FOR JURy TRIAL

C. Buckley Classification Service Rep. ("CSR"); 16
F. FOULK, FACILITY CAPTAIN;

17 D. Vanderville, Facility Captain;

18 D. Leiber, Facility Captain;

J. Mayfield, Facility Captain; 19
A. Masuret, Facility Captain;

20 T. Barnard, Correctional Counselor;

21 J. OWen, Correctional Counselor;

D. Hellwig, Correctional Counselor;
22
T. Kimzey, Correctional Counselor;

23 D. Cade, Correctional Counselor;

24 R. Blanthorn, Alternative Correctional Personnel ("CSW");

R. Beamon, Alternative Correctional Personnel ("CSW"): 25
T. Lockwood, Chief Regluation and Management Branch ("RPMB");

26 J. McClure, Chief Regulation and Policy Management Branch ("RPMB") and

27 J. Tilton, Director of California Department of Corrections and Rehabilitation.

28

DEFENDANTS.

1.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 2 of 39

1

JURISDICTION AND VENUE

2 1. This action arises under the United States Constitution and the Civil Rights

3 Acts pursuant to 42 U.S.C. §1983, and 42 U.S.C. §1985(2), and the First, Eighth

4 and Fourteenth Amendment to the United States Constitution.

S Jurisdiction of this Court is invoked under 28 U.S.C. §1343(a)(3) and 1391,

6 ant the aforementioned statutory and constitutional provisions.

7 Plaintiff further invokes Supplemental Jurisdiction pursuant to 28 U.S.C.

8 §1367, to hear and decide State Law Claims.

9 Venue is founded in this Judicial District upon 28 U.S.C. §1391.

10

GENERAL ALLEGATIONS

11 2. At all times mentioned, Plaintiff resided at High Desert State Prison

12 ("HDSP"), Susanville, California and California State Prison-Sacramento

13 ("CSP-SAC") I Represa, California.

14

PARTIES

15 3. Defendant T. Felker, warden is employed by the California Department of

16 Corrections and Rehabilitations and is the Chief Executive Officer at

17 High Desert State Prison ("HDSP"), and is responsible for the custody,

18 treatment and discipline of all inmates under his charge. The Warden is also

19 the supervising officer of every other defendant at High Desert State Prison

20 ("HDSPII ), and is responsible for ensuring that all subordinate staff are in

21 full compliance with all applicable rules,regulations, laws and prison

22 guidelines. The Warden is also required to obey all applicable rules, laws,

23 regulations and prison guidelines. He is being sued in his individual capacity.

24 4. Defendant J. Walker, Warden is employed by the California Department of

25 Corrections and Rehabilitation and is the Chief Executive Officer at California

26 State Prison-Sacramento ("CSP-SAC"), and is responsible for the custody,

27 treatment and discipline of all inmates under his charge. The Warden is also

28 the supervising officer of every other defendant at California State Prison-

2.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 3 of 39
1 Sacramento ("CSP-SAC"), and is responsible for ensuring that all subordinate
2 staff are in full compliance with all applicable rules, regulations, laws, and 3 prison guidelines. The Warden is also required to obey all applicable rules, 4 laws, regulations and prison guidelines. He is being sued in his individual
5 capacity. 6 3. Defendant M. Wright, Associate Warden of Complex II is employed by the 7 california Department of Corrections and Rehabilitation and is the Chief 8 Executive Officer at High Desert State Prison ("HDSPI1), and is responsible for 9 the custody, treatment and discipline of all inmates under his charge. 10 The Associate warden is also the supervising officer of every other defendant 11 at High Desert State Prison (IIHDSpn), and is responsible for ensuring that all 12 subordinate staff are in full compliance with all applicable rules, laws, 13 regulations and prison guidelines. The Associate Warden is also required to 14 obey all applicable rules, laws, regulations and prison guidelines. He is being 15 sued in his individual capacity. 16 4. Defendant C. Buckley, Classification Service Representative (nCSR"), is 17 employed by the California Department of Corrections and Rehabilitation at 18 High Desert State Prison (IIHDSP"), and is the Inmate Classification Service 19 Representative ("CSR"), assigned to review, approve, modify or disapprove 20 inmate(s) special housing programs and treatment, category designations as 21 recommended by institution staff. Also to conduct special audits and reviews of
22 classification committee actions to determine that departmental policy is
23 being followed. The Classification Service Representative ("CSR"), is 24 responsible for ensuring that all correctional staff are in full compliance 25 with all applicable rulesl regulations I laws and prison guidelines. The 26 Classification Service Representative ("CSR")! is also required to obey all 27 applicable rules! regulations! laws and prison guidelines. He is being sued 28 in his individual capacity.
3.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 4 of 39
5. Defendant F. Foulk, Facility Captain is the Chief Custodial Officer at 2 High Desert State Prison ("HDSP"), and is responsible for the custody, 3 treatment and discipline of all inmates under his charge at High Desert State 4 Prison ("HDSPlI). The Facility Captain also the supervising officer of every 5 other defendant at High Desert State Prison ("HDSP"), and is responsible for
6 ensuring that all subordinate staff are in full compliance with all applicable
7 rules, regulations, laws and prison guidelines. The Facility Captain is also 8 required to obey all applicable rules, regulations, laws and prison guidelines.
9 He being sued in his individual capacity.
10 6. Defendant D. Vanderville, Facility captain is the Chief custodial Officer a 11 High Desert State Prison ("HDSP"), and is responsible for the custody, 12 treatment and discipline of all inmates under his charge at High Desert State 13 Prison ("HDSPII). The Facility Captain also the supervising officer of every 14 other defendant at High Desert State Prison ("HDSP"), and responsible for 15 ensuring that all subordinate staff are in full compliance with all applicable 16 rules, regulations, laws and prison guidelines. The Facility Captain is also 17 required to obey all applicable rules, regulations, laws and prison guidelines. 18 He being sued in his individual capacity. 19 7. Defendants D. Leiber, J. Mayfield and A. Masuret, are all Facility Captains 20 at California State Prison-Sacramento ("CSP-SAC"), they are the Chief Custodial 21 Officers at California State Prison-Sacramento ("CSP-SAC"), and they are 22 responsible for the custody, treatment and discipline of all inmates under 23 their charge at California State Prison-Sacramento ("CSP-SAC"). These Facility 24 captains are the supervising officer of every other defendant at california 25 State Prison-Sacramento ("CSP-SAC"), and they are responsible for ensuring that 26 all subordinate staff are in full compliance with all applicable rules, laws, 27 regulations and prison guidelines. These Facility Captains are also required to 28 obey all applicable rules, regulations, laws and prison guidelines.
4.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 5 of 39
1 They are all sued in their individual capacity. 2 8. Defendants T. Barnard, J. Owen and D. Hellwig, are all Correctional 3 Counselors employed by the California Department of Corrections and 4 Rehabilitation at High Desert State Prison ("HDSPII), and they are responsible 5 for the custody, treatment and discipline of all inmates under their charge. 6 at High Desert State Prison (lfHDSPIf). The Correctional Counselor is also 7 responsible for ensuring that all subordinate staff are in full compliance with 8 all applicable rules, regulations, laws and prison guidelines. The Correctional 9 Counselor is also required to obey all applicable rules, regulations, laws 10 and prison guidelines. They are all sued in their individual capacity. 11 9. Defendants T. Kimzey and D. Cade are both Correctional Counselors employed 12 by the California Department of Corrections and Rehabilitation at California 13 State Prison-Sacramento (CSP-SAC), and they are responsible for the custody, 14 treatment and discipline of all inmates under their charge at California 15 State Prison-Sacramento (lfCSP-SAC"). The Correctional Counselor is also 16 responsible for ensuring that all subordinate staff are in full compliance with 17 all applicable rules, regulations I laws and prison guidelines. TheCorrrections 18 Counselor required to obey all applicable rules, regulations, laws and 19 prison guidelines. They are all being sued in their individual capacity. 20 9. Defendants R. Blanthorn and R. Beamon, are both Alternative Correctional 21 Personnel, who are employed by the California Department of Corrections and 22 rehabilitation at High Desert State Prison ("HDSP"), and was appointed as 23 Alternative Classification Committee Members, assigned to oversee Inmate
24 Classifications. The Alternative Correctional Personnel is responsible for
25 ensuring that all classification committee members are in full compliance with
26 all applicable rules, regulations, laws and prison guidelines. The Alternative
27 Correctional Personnel is also required to obey all applicable rulesl laws, 28 regulations and prison guidelines. They are both being sued in their individual
5.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 6 of 39

1 capacity.

2 10. Defendants T. Lockwood and J. McClure, are both Executive Officials

3 assigned to the Regulation and Policy Management Branch ("RPMB") I are employed

4 by the California Department of Corrections and Rehabilitation at the

5 Regulation and Policy Management Branch (IIRPMB") in Sacramento and the ("RPMB")

6 oversees the regulatory process for CDCR. The ("RPMB") is responsible for

7 CDCR's policy development process and coordinates the publication and

8 distribution of administrative and informational bulletins and the Director's

9 Rules. The ("RPMB") also supervises the revision, publication and distribution

10 of ("OOM") and ensures that all policies, procedures and regulations are

11 consistent with california Laws. The ("RPMB") is also responsible for ensuring

12 that all staff are in full compliance with all applicable rules, regulations,

13 laws and prison guidelines. The ("RPMB") also required to obey all applicable

14 rules, regulations, laws and prison guidelines. they are both sued in their

15 individual capacity.

16 11. Defendant J. Tilton, Director of the california Department of Corrections

17 and Rehabilitation (IICDCR"), is employed by the ("CDCR") in Sacramento I and is

18 the Chief Executive Official and Administrator of ("CDCR II ), in the operation

19 of its programs, for the supervision, management and control of State

20 Correctional Facilities. The Director also Chairman of ("PIB II ), and member

21 of the Board of Corrections. The Director also the supervising officer of all

22 defendants and responsible for ensuring that all subordinate.; staff are in

23 full compliance with all applicable rules, regUlations, laws and prison

24 guidelines. The Director is also required to obey all applicable rules, laws,

25 regulations and prison guidelines. He is being sued ln his individual capacity.

26 12. By reason of the Defendants' conduct, and each of them, the Plaintiff was

27 deprived of rights, privileges and immunities secured to him by

First,

28 Eighth and Fourteenth Amendment of the united States Constitution and laws

6.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 7 of 39
enacted thereunder.
2 12. At all material times relevant in this complaint, every Defendant, and
3 each of them, were acting and continues to act under the Color of State Law. EXHAUSTION OF ADMINISTRATIVE REMEDIES
4 13. All facts were presented in Plaintiff's Complaint for review through the
5 Prisons' Grievance Procedure. Plaintiff's complaint was denied on all four (4)
6 levels of review.
7 A.) Informal Level "Denied" date Bypass;
8 B.)' First Formal Level "Denied" date February 6, 2008;
9 C.) Second Formal level "Denied" date April 7, 2008 and
10 D.) Third Director1s Level Denied
11 This completes the exhaustion of administrative remedies for 602-Appeal
12 Log No. SAC-B-08-0079 and
13 A.) Informal Level "Denied" date Bypass;
14 B.) First Formal Level IlDenied ll date January 26, 2006;
15 C.) Second formal Level "Denied" date March 15, 2007 and·
16 D.) Third Director1s Level date June 26, 2007.
17 This completes the exhaustion of administrative remedies for 602-Appeal
18 Log No. HDSP-C-06-02672.
19 20 14. On February 27, 2008, Plaintiff submitted a Claim for damages with the
State Government Claims Board No. G-569735. On March 20, 2008, the claim was 21
denied in its entirty.
22
14~ Plaintiff Robert Mi ti::::hell, is currently incarcerated at. Folsom State Prison, 23
proceeding pro per, brings this action pursuant to 42 U.S.C. §1983 and 24
42 U.S.C. §1985(2), against the Director of Corrections, the Warden and several 25
Correctional personnel at both High Desert State Prison and California state
26
Prison-Sacramento, alleging that defendants at both prisons collectively 27
conspired to and violated his First, Eighth and Fourteenth Amendment rights.
28
7.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 8 of 39

1

By Defendants' conspiring and obstructing the Due Course of Justice in

2 State Court, Plaintiff was denied rights, privileges and immunities secured to

3 him under 42 U.S.C §1985(2) and laws enacted thereunder.

4

FACTUAL ALLEGATIONS

5 16. The conflict with Defendants T. Felker, M. wright/ C. Buckley, F. FOULK, 6 D. Vanderville, T. Barnard, J. OWen, D. Hellwig, R. Blanthorn and R. Beamon 7 began on September 12, 2006, when Plaintiff and the entire African-American 8 inmate population on Facility IC' Yard at High Desert State Prison, were placed 9 on full lockdown status because of an incident that occurred on another facility 10 yard involving another race.

11 17. On September 18, 2006, Plaintiff submitted a 602-Appeal Log No. HDSP-C-06-

12 02672, challenging Hign Desert State Prison's Preferential Race Segregation

13 Lockdown Policy. The Defendants refused to respond, while Plaintiff and: the

14 entire African-American inmate population remained on full lockdown status,

15 confined to their cells, not permitted to receive fresh air, outdoor exercise

16 or participate in programming or other activities.

17 18. On November 24, 2006, Plaintiff and the entire African-American inmate

18 ,populations' full lockdown status was extended due to an assault that occurred 19 on Facility 'A', Building 2, involving Twelve (12) Asian-Pacific Islander

20 inmates assaulting two correctional officers.

21 19. Again, Plaintiff and the entire African-American inmate population on

22 Facility 'C' remained on ;full lockdown status, while inmates identified as

23 White, Hispanic and Asian were allowed to continue programming.

24 20. Plaintiff and the entire African-American inmate population of Facility 'C'

25 remained on full lockdown status and confined to their cells, after the initial

26 investigation determined that the November 24, 2006, incident had nothing to do

27 ith Plaintiff or the African-American inmate population, that the incident

28 ccurred on Facility 'A' and it was an isolated event involving inmates

8.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 9 of 39
classified as Asian-American. 2 21. On December 13, 2006, Plaintiff and the entire African-American inmate 3 population on Facility ICI Yard #1, again remained on full lockdown status
4 because of an incident occurring on facility 'c' Yard #2, involving a couple of
5 African-American inmates. 6 22. Plaintiff and the entire African-American inmate population on Facility 7 IC' Yard #1, remained on full lockdown status until January 3, 2007. 8 23. On January 4, 2007, Plaintiff without coming off of lockdown, he and the
9 entire African-American inmate population on Facility 'c' Yard was again
10 placed back on full lockdown status, because of an incident involving one (1) 11 African-ffinerican inmate. 12 24. After the investigation, it was determined that the incident was isolated 13 and despite this, Plaintiff and the entire African-American inmate population 14 on Facility 'C' Yard remained on full lockdown status, while inmates 15 classified as White, Hispanic and Asian were not lockdown and were allowed to 16 continue programming. 17 25. After approximately 4 months without Plaintiff receiving a response to his 18 602-Appeal Log No. HDSP-C-06-02672, relating to High Desert State Prison's 19 Race-Based Lockdown Policy, Plaintiff was interviewed by the Defendants. 20 26. During this interview, Plaintiff was told by Sergeant C. Scott that CDCR 21 has a Race-Based Lockdown Policy, that allows the Warden of each prison, to 22 lockdown all the 'Blacks, when one Black does something.' And, the decision to 23 place all the Blac]cs on lockdown at HDSP, has been approved by Warden T. Felker 24 Associate Warden M. Wright and Facility Captain F. Foulk. So Mitchell, this is 25 High Desert, where everything is done according to race. So, if one "Black
26 does something, all Blacks are placed on lockdown." Regardless, whether the
27 inmate had anything to do with the incident or not.
28 II
9.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 10 of 39
1 27. From January 4, 2007, through March 30, 2007, Plaintiff and the entire
2 African-American inmate population on Facility Ie' Yard, remained on full
3 lockdown status, while inmates classified as White, Hispanic and Asian were not 4 plsced on lockdown and were allowed to continue programming. 5 28. From March 30, 2007, to Plaintiff's subsequent transfer from High Desert 6 State Prison on December 5, 2007, Plaintiff and the entire African-American 7 inmate population on Facility 'e' remained on full lockdown status after, an 8 investigation determined that the incident causing the lockdown had nothing to 9 do with plaintiff or African-American inmates, that the incident was isolated 10 and it involved inmates classified as White and Hispanic. 11 29. On July 2, 2007, Plaintiff received a Director's Level Appeal Decision, 12 relating to 602-Appea1 Log No. HDsp-e-06-02672, challenging High Desert State' 13 Prison's Race-Based Lockdown Policy. 14 30. In this response, the findings state "that the Warden has placed the 15 institutions' inmate population on Modified Program. The DLR, notes that the 16 CDeR's policy is that when there is an incident involving any race, all inmates 17 of that race are locked up. Ethnic groups are appropriate in segmenting the 18 inmate population during the process of establishing a regular program 19 following an incident."
20 31. Plaintiff has submitted several 602-Appeals, challenging High Desert State
21 Prison's Race-Based Lockdown Policy. Despite, repeated 602-Appeals, Plaintiff
22 and the entire African-American inmate population on Facility Ie' has remained
23 on full lockdown status, confined to their cells! not permitted to receive 24 fresh air and outdoor exercise or-participate in programming or other aotivitie 25 for_approximately 14 months.
26 II
27
28 II
10.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 11 of 39
1 32. As a result of Defendant's Race-based Lockdown Policy, Plaintiff remained 2 on full lockdown status for approximately 14 months, confined to his cell and 3 not allowed to receive fresh air and outdoor exercise or participate in 4 programming or other activities. Despite, the fact that the incidents causing 5 the lockdowns involved inmates classified as White, Hispanic and Asian and 6 that the incidents occurred on other facility yards that Plaintiff had no 7 access to and after an investigation determined that these were isolated 8 events. 9 33. plaintiff advised the Defendants and each of them, that he is a "Disabled 10 Inmate," and a participant in the American with Disabilities Act ("ADA"), due 11 to a medical condition that required him to have orthoscopic surgery that 12 left him mobility impaired. 13 34. FUrthermore, Plaintiff advised Defendants and each of them, that he 14 would experience medical complications, if he was not allowed to ambulate 15 and exercise daily as part of his post operative recovery and rehabilitation 16 as ordered by his doctor. 17 35. Despite, Plaintiff's diagnosed medical condition and in disregard of 18 Plaintiff's health and safety, the Defendants and each of them, denied 19 Plaintiff fresh air and outdoor exercise for approximately 14 months. 20 36. As a result of the Defendants' Race-Based Lockdown Policy and their 21 display of deliberate indifference, Plaintiff was denied fresa air and 22 outdoor exercise for approximately 14 months. By reason of the aforedescribed 23 acts and omissions, Plaintiff has become mentally upset, aistressed and 24 aggravated. By reason of the acts and omissions of the Defendants and each of 25 them, Plaintiff sustained numerous physical, mental and emotional injuries,
26 including, but not limited to, muscles starting to atrophy, loss of bone
27 density and severe swelling to his left leg and ankle, severe pain, anxiety,
28 dizziness, blurred vision, nightmares, humiliation, indignities and great
11.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 12 of 39
1 physical, mental and emotional pain and suffering. Plaintiff claims general 2 and compensatory damages, for such Mental Distress and Aggravation in a sum 3 of One Million Dollars ($1,000,000.00).
4 37. the aforementioned acts of Defendants and each of them, were willful, 5 wanton, malicious, oppressive, vexatious, and done witH reckless indifference
6 to and/or callous disregard for Plaintiff's rights and justify an award of
7 Exemplary and Punitive Damages in a sum of Two Million Dollars ($2,000,000.00)
8 38. After Defendants and each of them, failed and refused to corrective 9 action and lor allow Plaintiff fresh air and outdoor exercise, on September 4, 10 2007, Plaintiff filed a Petition for Writ of Habeas Corpus Case No. CHW-2327, 11 challenging two (2) issues. One, the Race-Based Lockdown Policy and the undue 12 restriction imposed by High Desert State Prison on Plaintiff's right to fresh 13 air and outdoor exercise, constitutes Cruel and Unusual Punishment in violatio 14 of the Eighth Amendment. And Two,. High Desert State Prison I s Race-Based 15 Lockdown Policy is in violation of the Equal Protection Clause of the 16 Fourteenth Amendment. 17 39. On November 27, 2007, Defendant T. Barnard told Plaintiff that "MitchelL 18 I attended a staff meeting with Felker, Buckley, Vanderville, Owen, Hellwig, 19 Blanthorn and Beamon, where we decided to increase your security housing 20 level from 270 to 180, because of all your complaints, lawsuits and the Habeas 21 Corpus challenging our Race-Based Lockdown Policy. 22 40. Plaintiff explained to Defendant T. Barnard that, to increase his 23 security housing level from 270 to 180, then to transfer him to a higher 24 security prison because, he files complaints, is a violation of his rights. 25 41. Defendant T. Barnard responded, "look, the department needs to put a
26 stop to your filing complaints and lawsuits. This is why the Warden held this
27 meeting and why we took you to committee. So, that we can increase your 28 security housing level from 270 to 180 and transfer you out of High Desert."
12.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 13 of 39

42. Plaintiff replied, "so, the reason you guys are increasing my security

2 level from 270 to 180, is because the Administration is tired of me filing

,.,
.J

complaints and lawsuits and this is why they're transfering me out of High

4 Desert."

5 43. defendant T. Barnard said, "yes! We don't like your kind here. So, warden

6 Felker and Captain Vanderville told Buckley from ("CSR") to increase your

7 security housing level to 180 and endorse you to a higher maximum security

8 prison."

9 44. Plaintiff responded, "my kind. What does this mean? Defendant T. Barnard

10 replied, I mean inmates like you, who file lawsuits and complaints are trouble

11 makers and they have to go. So, once we transfer you out of High Desert, we

12 will not have to answer anymore of your complaints and hour Habas Corpus issues

13 will become moot. It's a win, win situtation for us."

14 45. On December 3, 2007, the Court of Appeals for the Third Appellate

15 District, issued an Order to Show Cause to Defendants for their Race-Based

16 Lockdown Policy.

17 46. On December 5, 2007, approximately 36 hours after the Defendants were 18 ordered to show cause, relating to their Race-Based Lockdown policy, 19 Defendants increased Plaintiff's security housing status from 270 to 180 and 20 transfered him to California State Prison-Sacramento ('~·Level-IV-180").
21 47. On December 13, 2007 1 Plaintiff appeared before Facility 'c' Initial

22 Classification Committee Members D. Leiberl D. Cadet J. Mayfield and T. Kimzy 23 regarding Plaintiff's December 5, 2007, transfer from High Desert State Prison. 24 48. At Plaintiff's Initial Classification, he explained to Defendant

25 Committee members D. Leiber, D. Cadet J. Mayfield and T. Kimzey and each of

26 them, that his security housing level was increased from 270 to 180, that he

27 was transfered from High Desert State Prison because he had filed several

28 complaints, lawsuits and a Habeas Corpus challenging High Desert's Race-Based

13.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 14 of 39
Lockdown Policy. Plaintiff also explained that "he had received a CDC-lIS, 2 disciplinary Rules Violation Log No. HDSP-C-06-0032, for Manipulation of Staff, 3 that was Ordered to be Reissued/Reheard, and that according to CDC-opeerations 4 Manual Section §S4100.18.3, Rehearingll a decision to order the rehearing of 5 disciplinary charge acts to void all prior dispositions' concerning the CDC-lIS 6 being appealed. The CDC-llS, shall be rewritten and processed as a new CDC-lIS." 7 49. Plaintiff further explained that according to CDC-Operations Manual Secti 8 §S4100.18.3.1 IITime Limits and CCR Title IS Section §3320 Hearing Procedures 9 and Time Limitations" states that they had approximately 30 days in which to 10 reissue his CDC-lIS Disciplinary Rules Violation Report log No. HDSP-C-06-0032. 11 SO. Plaintiff also explained that on November 27, 2007, he asked Defendants 12 Vanderville, barnard, Hellwig, Owen Blanthorn and Beamen, "are you guyys 13 going to reissue my CDC-lIS, Log No. HDSP-C-06-0032, because its been over 14 7 months and it has not been reissued? Def~ndants Vanderville and Barnard 15 said, "look·Mitchell, its been over 7 months since we ordered the CDC-llS 16 Log No. HDSP-C-06-0032, to be reissued. If we were going to reissue the 17 CDC-lIS, we had 30 days to do so. Now, because your due process rights were 18 violated and the fact that the CDC-lIS should not have been issued in the 19 first place, we are not going to reissue or rehear your CDC-lIS Log No. 20 HDSP-C-06-0032, its going to be abandoned." 21 51. Defendant J. Mayfield replied, "Mitchell there's a Memo here from High 22 Desert's UCC Committee Members Vanderville, Barnard, OWen, Hellwig, Blanthorn, 23 Beamon and Classification Service Representative (":CSR") Buckley, stating that 24 "Mitchell's transfer and the increase in his security housing status from 270 25 to 180, is due to the filing of several Complaints, Lawsuits and a Habeas 26 Corpus challenging CDCR's Race-Based Lockdown Policy.1I
27 // 28 //
14.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 15 of 39

52. Plaintiff told Defendant J. Mayfield that "first, this transfer is

2 illegal and my rights are being violated. Second, according to CDC-Operations

3 Manual Section §54100.18.3 'Rehearing' my CDC-115 Log No. HDSP-C-06-0032, was

4 voided out and abandoned. Therefore, the 4 classification score points that

5 were assessed because of the original guilty findings must be removed. This

6 therefore, reduces my classification score by 4 ,points from 53 to 49 thereby,

7 making me a Level 3 Security Level.

8

Furthermore, Plaintiff explained that an additional 2 Classification

9 Score Points must be removed because, my CDC-115 Log No. HDSP-C-06-0032, was

10 voided out. This therefore, should have reduced my classification score by

11 8 points at my annual review on November 6, 2007, because my CDC-115 Log No.

12 HDSP-C-06-0032, was voided out. This therefore, allows me to earn 2 Quaterly

13 Points of average work performance, instead of the 6 classification score

]4 points that were removed due to I Quaterly.Period of no serious CDC-115s.

15 Now, based on this, this reduces my classification score from 49 to 47,

16 further making me a level 3 security level.

17 54. Plaintiff again told Defendants D. Leiber, D. Cade, J. Mayfield and

18 T. Kimzey and each of them, that his transfer to C.S.P.-Sacramento, was

]9 illegal and Plaintifff requested that they immediately take corrective action,

20 by voiding out and removing the CDC-115 Log No. HDSP-C-06~0032 from his C-File

21 and adjust his classification score by substracting 6 classification score

22 points and transfer him to another institution that's consistant with a

23 level 3 security level placement score of 47 according to department policy

24 and procedure.

25 55. Defendant J. Mayfield replied, "Mitchell, I don't care about department

26 policy or your rights being violated. You were sent here because of your

27 complaint filing. If you don't like the way your being treated, then stop

28 filing lawsuits."

- - - - - - - - .... --~-····---------------------------I
15.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 16 of 39

1 56. Plaintiff said! "the Department Operations Manual ("DOM") says that

2 your suspose to void out and restore all penalty assessments associated with

CDC-1l5 Log No. HDSP-C-06-0032 and remove it from my Central File ("C-File").

4 57. Defendant J. Mayfield responded! "I don't care what the OOM says. If we

5 don't want to remove a CDC-115 from your C-File, we dOr'l't have to."

6 5S. Plaintiff told Defendants D. Leiber! J. Mayfield, T. Kimzey and each of

7 them, that he would be filing a complaint on them, because they were

8 encouraging, tollerating and ratifying the violation of his rights.

9 59. Defendant J. Mayf ield responded "your rights being violated, I don't

10 care about your rights being violated, because you don't have any rights.

11 The only rights you have are what we give you. So, if you want to 602 us,

12 go ahead and, just so you know, I'm going to see to it that your 602-Appeal

13 is heard by CCII Masuret and K. Allen and N. Grannis from the Chief Inmate

14 Appeals Office in Sacramento and I'm going to personally instruct each of

15 them, not to correct any constitutional or department policy or procedure

16 violations. Just issue a denial and send it back to you."

17

60. After these statements, Plaintiff was escorted back to his cell.

18 on December 13, 2007, Plaintiff filed a 602-Appeal Log No. SAC-B-OS-00079,

19 regarding his December 5, 2007, transfer and the December 13, 2007, ICC

20 Committee Hearing.

21

61. on February 6, 2007, Plaintiff was interviewed by Defendant A. Masuret,

22

regarding 602-Appeal Log No. SAC-B-OS-00079. During this interview, Plaintiff

23

explained to Defendant A. l~suret that, his transfer was the product of

24

retaliation, that he had a CDC-lIS Log No. HDSP-C-06-0032 for Manipulation

25

of Staff, that has been voided out, ah0 it has not been removed from his

26

Central File ("C-File") and that he didn't belong at C.S.P.-Sacramento, a

27

maximum security level-lV-ISO design prison, because his classification

28

score is 47 and according to the Departments' Operations Manual ("OOM") an

16.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 17 of 39
1 inmate with a classification score of 47 is a Level 3, Security Level.
2 62. Defendant A. Masuret responded that lIaccording to this memorandum dated
3 April 4, 2007, regarding the Second Level Appeal Response to 602-Appeal Log
4 No. HDSP-C-07-01034, the CDC-lIS Log No. HDSP-C-06-0032 was ordered reissued
5 and reheard and Mitchell your right, that according to section 54100.1B.3 6 of the Departments' Operations Manual (IIDOM") your CDC-lIS should I ve been 7 voided out and removed from your central file ("C-File") and your classificatio 8 score should be 47 and not 53.
9 63. Plaintiff then told Defendant A. Masuret that he wanted his 602-Appeal
10 Log No. SAC-B-OB-00079 granted in full and to be transfered to an institution 11 that's consistant with his 47 classification score. 12 64. Defendant A. Masuret responded, "look Mitchell, there's nothing I can do. 13 Because, I was told by CCII Mayfield, that your the inmate who filed several 14 Complaints, Lawsuits and a Habeas Corpus challenging CDCR's Race-Based 15 Lockdown Policy. Now, I was told by CCII Mayfield not to take any corrective 16 action and this is exactly what I'm going to do. Now, were done, you can go 17 back to your housing unit." 18 65. Plaintiff told Defendant A. Masuret that, he was vio~ating his rights by 19 refusing to take corrective action and that he would be filing a grievance on
20 him.
21 66. Defendant A. Masuret responded, "I don't care what you do. Because CCII
22 Mayfield and I have already contacted the appeals office in Sacramento and
23 we've told them not to review or take any corrective on your 602-Appeal 24 Log No. SAC-B-OB-00079, just rubber stamp our decision 'Denied' and send it 25 back to you. So, go ahead, send it to Sacramento, because nothing is going to
26 happen."
27 67. After these statements, Plaintiff was escorted back to his cell.
28 II
17.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 18 of 39

1 68. On April 17, 2008, Plaintiff submitted his 602-Appeal Log No. SAC-B-082 00079, to the Chief Inmate Appeals Branch in Sacramento to correct

3 constitutional and department policy and procedure violations.

4 69. On July , 2008, Plaintiff's 602-Appeal Log No. SAC-B-08-00079, was
5 denied in its entirety.

6 70. Plaintiff alleges that in response to his repeated grievances and the

7 filing of the following 42 U.S.C. §1983 civil Rights Complaintis:

8 A.) Robert Mitchell V. D.G. Adams,et', aL,

Case No. CIV-06-2321-GEB-GGH(PC); 9

B.) Robert Mitchell V. R. Wong, et al., 10
Case No. CIV-07-2090-LEW-CMK;

11 C.) Robert Mitchell V. Correctional Officer L. Villa.

12

case No. CIV-03-1157-v~H(POR);

13 D.) carlos Rosado v. Edward Alameida, Jr., et alo,

14

case No. CIV-03-1ll0-J(POR), and the filing of a Writ of Habeas .Corpus

15 E.) In re Mitchell
case No. CHW-2327 16
The Defendants and each of them, conspired to obstruct the Due Course of 17
Justice in state Court and interfered with and denied Plaintiff his First, 18
Eighth and Fourteenth Amendment rights under the United states Constitution, 19
and laws enacted thereunder. 20
71. By Defendants collectively conspiring to increase Plaintiff's security 21
housing status from 270 to 180 and transfering him to another prison to "Moot" 22
his claims relating to his writ of Habeas Corpus Case No. CHW-2327, the 23
Defendants and each of them, obstructed the Due Course of Justice in State 24
Court, pursuant to 42 U.S.C. §1985(2) and violated the substantive Due Process 25
and Equal Protection Clauses of the Fourteenth Amendment.
26

27 II

28 II

18.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 19 of 39

72. Plaintiff alleges that in response to his repeated grievances and the

2 filing of several 42 U.S.C. §1983 Civil Rights Complaints and a Writ of Habeas
Corpus, challenging Defenants' Race-Based Lockdown Policy, the Defendants and

4 each of them, retaliated against Plaintiff for exercising his First Amendment

5 rights, by increasing his security housing status from 270 to 180, then

6 transfered him to another prison to moot all claims relating to Plaintiff's

7 Writ of Habeas Corpus Case No. CHW-2327, in violation of the First Amendment .•

8 [and that] Defendants and each of them, collectively conspired to, and chilled

9 Plaintiff's exercise of his First Amendment rights [through actions that] do

]Q not advance any legitimate penological goals, nor [are] tailored narrowly

11 enough to achieve such goals.

12 73. By Defendants and each of them, collectively conspiring to 'moot' all

13 .claims relating to Plaintiff's Writ of Habeas Corpus in State Court, in

14 retaliation against Plaintiff for exercising his

Amendment rights,

Plaintiff suffered a chilling effect, when his Writ of Habeas Corpus 15

16 challenging Defendants' Race-Based Lockdown Policy Case No. CHw-2327, was

dismissed as a moot claim, because Plaintiff was transfered from High Desert 17

State Prison, while the case was pending. 18

74. The aforementioned acts of Defendants and each of them, were willful, 19

wanton, malicious, oppressive, vexatious, deliberate and done with reckless
20

indifference to and/or callous disregard for Plaintiff's rights and justify 21

22 an award of Exemplary and Punitive Damages in the sum of Two Million Dollars

23 75. Plaintiff advised the Defendants and each of them, that he is a
24 "Disabled Inmate", and a participant in the Americans with Disabilities Act
25 ("ADA"), due to a medical condition that required him to have orthoscopic
26
surgery that left him mobility impaired. 27

28 //

19.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 20 of 39

1 76. Furthermore, Plaintiff advised the Defendants and each of them, that he

2 experience severe medical complications, if he was not allowed to ambulate

3 and exercise daily, as part of his post operative recovery and rehabilitation

4 as ordered by his doctor.

5 77. Despite, Plaintiff's diagnosed medical condition and in deliberate

6 indifference to and in reckless disregard of Plaintiff's health and safety,

7 the Defendants and each of them, denied Plaintiff fresh air and outdoor

8 exercise for approximately 14 months.

9 78. Plaintiff alleges that, as a result of the Defendants' Race-Based

10 Lockdown Policy and their display of deliberate indifference, Plaintiff was

11 denied fresh air and exercise for 14 months. By reason of the aforedescribed

12 acts and omissions, Plaintiff has become mentally upset, distressed and

13 aggravated. By reason of the acts and omissions of the Defendants and each of

14 them, Plaintiff sustained numerous physical, mental and emotional injuuries,

15 including, but not limited to, muscles starting to atrophy, loss of muscle

16 mass and bone density, and severe pain and swelling to his left leg, ,hip and

17 ankle, severe pain, anxiety, dizziness, blurred vision, nightmares, humiliatio

indignities and great physical, mental and emotional pain and suffering. 18

Plaintiff claims General and Compensatory Damages for such Mental Distress 19

20 and Aggravation in a Sum of One Million Dollars ($1,000,000.00).

79. The aforementioned acts of Defendants and each of them, were willful,
21

22

wanton, malicious, oppressive, vexitious, deliberate and done with reckless

indifference to andlor callous disregard for Plaintiff's rights and justify 23

an award of Exemplary and Punitive Damages in an amount of Two Million 24

Dollars ($2,000,000.00). 25
26 II

27
28 II

20.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 21 of 39

1 BO. Plaintiff allegs that Defendants J. Tilton, T. Lockwood and J. McClure

2 and Defendants at High Desert State Prison, possess invidious discriminatory
animus towards Plaintiff and all inmates classified as African-American and

4 it was this invidious discriminatory animus towards African-Americans, that

5 was the catalysis behind the Defendants' implementation of a state wide

6 Race-Based Lockdown Policy, that calls for the segregation of inmates by

7 race and that the Defendants' policy was not narrowly tailored, nor did it

8 advance or support any legitimate penological objective.

9 Bl. Plaintiff alleges that Defendants J. Tilton, T. Lockwood, J. McClure and

10 Defendants at High Desert State Prison, maintains a Race-Based Lockdown Policy

11

that allows them to segregate inmates by racel that when there's an incident

involving any race (i.e. African-American), all inmates classified as African12

American are lockdown. Even, if they had no knowledge or personal involvement 13

in the incident causing the lockdown. While other inmate classified as White, 14
Hispanic and Asian are not lockdown and are allowed to continue programming. 15
It is this custom, policy and practie that was the moving force behind 16
Plaintiff being lockdown and confined to his cell for 14 months and not 17
allowed to receive fresh air or outdoor exercise. By reason of the 18
aforedescribed acts and omissions of Defendants and each of them, Plaintiff. 19
has become mentally upset, distressed and aggravated. By reason of the acts
20
and omissions of Defendants and each of them, Plaintiff sustained numerous 21
physical, mental and emotional injuries, including, but not limited to,
22
muscles starting to atrophy, loss of muscles mass and bone density, and 23
severe pain, anxiety, dizziness, blurred vision, nightmares, humiliation, 24
indignities and great physical, mental and emotional pain and suffering. 25
Plaintiff claims General and Compensatory Damages for such Mental Distress
26
and Aggravation in a Sum of One Million Dollars ($l,OOO,OOO.OO). 27

28 II

21.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 22 of 39
82. Plaintiff alleges that Defendants and each of them, possess invidious
2 discriminatory animus towards Plaintiff and all African-American inmates and 3 it was this class-based animus toward African-Americans, that was the moving 4 force behind Plaintiff and the entire African-American inmate population on
5 Facility 'c' at High Desert State Prison being forced t~ stay on lockdown
6 and confined to their cells and not allowed to received fresh air and outdoor 7 exercise for approximately 14 months. The aforedescribed acts and omissions 8 of Defendants and each of them, shocks the conscience and interfered with 9 rights implict in the concept of ordered liberty and violates both the 10 Substantive and Procedural Due Process and Equal Protection Clauses of the 11 Fourteenth Amendment of the United States Constitution. 12 83. By Defendants' conduct and each of them, Plaintiff was deprived of rights, 13 privileges and immunities secured to him by the Fourteenth Amendment of the 14 United States Constitution and laws enacted thereunder. 15 84. Plaintiff alleges that, as a result of the aforesaid acts and omissions 16 of Defendants and each of them, Plaintiff has become mentally upset, distresse 17 and aggravated. By reason ,of the acts and omissions of Defendants and each of 18 them, Plaintiff sustained numerous physical, mental and emotional injuries, 19 including, but not limited to, muscles starting to atrophy, loss of muscles 20 and bone density and severe pain and swelling to his left leg, hip and ankle, 21 severe pain, anxiety, dizziness, blurred vision, nightmares, humiliation, 22 indignities and great physical, mental and emotional pain and suffering.
Plaintiff claims General and Compensatory Damages for such Mental Distress 23
and Aggravation in a Sum of Two Million Dollars ($2,000,000.00). 24 25 85. The aftrementioned acts of Defendants and each of them, were w{llful,
26 wanton, malicious, oppressive, vexatious, deliberate and done with reckless
indifference to and/or callous disregard for Plaintiff's rights and justify 27
an award fo Exemplary and Punitive Damages in the amount of Two Million 28
22.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 23 of 39

Dollars ($2,000,000.00).

2

COUNT ONE

3

VIOLATION OF CIVIL RIGHTS 42 U.S.C. §1983, FIRST AMENDMENT

RETALIATION

4

(BY PLAINTIFFF AGAINST ALL DEFENDANTS)

5 86. Plaintiff hereby incorporates and realleges paragraphs 1 through 85 of

6 this Complaint, as fully set forth at this place.

7 87. In committing the acts set forth in paragraphs I through 85 of this

8 Complaint. Plaintiff alleges that in response to his repeated grievances and

9 the filing of several 42 U.S.C. §1983, civil rights Complaints:

10 A.) Robert Mitchell V. D.G. Adams, et:al~I'

11

Case No. CIV-06-232l-GEB-GGH(PC);

12 B.) Robert Mitchell V. R. Wong, et al.,

13

Case No. CIV-07-2090-LEW-CMK;

14 C.) Robert Mitchell V. Correctional Officer L. Villa.

Case No. CIV-03-1157-WQH(POR);

15

D.) Carlos Rosado V. Edward Alameida, Jr., et al.

16

Case No. CIV-03-1110-J(POR), and the filing of a Writ of Habeas Corpus

17 D.) In re Mitchell

18

Case No. CHW-2327

19 The Defendants and each of them, conspired to obstruct the Due Course of

20 Justice in State Court and interfered with and denied Plaintiff his First

21 Amendment rights.

22 88. Plaintiff alleges that in response to his repeated grievances and the

23 filing of several 42 U.S.C. §1983, Civil Rights Complaints and a Writ of

24 Habeas Corpus, challenging Defendants' Race-Based Lockdown Policy, the

25 Defendants and each of them, retaliated against Plaintiff for exercising his

26 First Amentment rights, by increasing his security housing status from 270 to

27 180, then transfered him to another prison to moot all claims relating to
28 Plaintiff's Writ of Habeas Corpus cas~ In re Robert Mithcell No. CHW-2327,

23.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 24 of 39
in violation of the First Amendment ••. [and that] Defendants and each of them,
2 collectively conspired to and chilled Plaintiff's exercise of his First
3 Amendment rights [through actions that] do [] not advance any legitimate 4 penological goals, nor [are] tailored narrowly enough to achieve such goals. 5 89. By Defendants and each of them, collectively conspi'ring to moot all 6 claims relating to, Plaintiff's Writ of Habeas Corpus in State Court in 7 retaliation against Plaintiff for exercising his First Amendment rights. 8 Plaintiff suffered a chilling effect, when his Writ of Habeas Corpus 9 challenging Defendants' Race-Based Lockdown Policy Case In re Robert Mitchell 10 No. CHW-2327, was dismissed as a moot claim, because Plaintiff was transfered 11 from High Desert State Prison while the case was pending. 12 90. By reason of the aforedescribed acts and omissions, of Defendants and 13 each of them, Plaintiff has become mentally upset, distress and aggravated. 14 By reason of the aforedescribed acts and omissions of Defendants and each of 15 them, Plaintiff sustained numerous physical, mental and emotional injuries, 16 including, but not limited to, muscles starting to atrophy, loss of muscle mass 17 and bone density and severe pain and swelling to his left leg hip and ankle, 18 severe pain, anxiety, dizziness, blurred vision, nightmares, humiliation, 19 indignities and great physical, mental and emotional pain and suffering. 20 Plaintiff claims General and Compensatory Damages for such Mental Distress and 21 Aggravation in a Sum of One Million Dollars ,000,000.00).
22 91. The aforementioned acts of Defendants, and each of them, were willful,
23 wanton, malicious, oppressive, vexatious, deliberate and done with reckless 24 indifference to andlor callous disregard for Plaintiff's rights and justify an 25 award of Exemplary and Punitive Damages in the Sum of Two Million Dollars
26 ($2,000,000.00).
27 II 28 II
24.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 25 of 39

COUNT TWO

2

VIOLATION OF CIVIL RIGHTS 42 U.S.C. §1983, FIRST AMENDMENT

3

RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCE

AND DENIAL OF ACCESS TO THE COURT 4

5

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

6 92. Plaintiff hereby incorporates and real leges pragraphs 1 through 85 of

7 this Complaint, as fully set forth at this placeo

8 93. In committing the acts set forth in paragraphs 1 through 85 of this

9 Complaint. Plaintiff alleges that in response to his repeated grievances and

10 the filing of several 42 U.S.C. §1983, Civil Rights Complaints:

11 A.) Robert Mitchell V. D.Adams, et al.,

12

Case No. CIV-06-2321-GEB-GGH(PC);

B.) Robert Mitchell V. R. Wong, et al., 13
Case No. CIV-07-2029-LEW-CMK;
14 C.) Robert Mithcell V. Correctional Officer L. Villa.

15

Case No. CIV-03-1157-WQH(POR);

16 D.) Carlos Rosado V. Edward Alameida, Jr., et al.,

17

case No •. CIV-03-1110-J(POR) , and the filing of a writ of Habeas Corpus

18 E. ) In re Mitchell
Case No. CHW-2327 19
The Defendants and each of them, conspired to obstruct the Due Course of
20
Justice in State Court and interfered with and denied Plaintiff his First 21
Amendment rights. 22
94. Plaintiff alleges that in response to his repeated grievances and the
23
filing of several 42 U.S.C. §1983, Civil Rights Complaints and a Writ of 24
Habeas Corpus, challenging Defendants' Race-Based Lockdown Policy, the 25
Defendants and each of them, retaliated against Plaintiff for exerciseing his
26
First Amendment rights, by increasing his security housing status from 270 to 27
180, then transfered him to another prison to moot all claims relating to
28

25.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 26 of 39
Plaintiff's Writ of Habeas Corpus Case In re Robert Mitchell No. CHW-2327, in 2 in violation of the First Amendment ••• [and that] Defendants and each of them, 3 collectively conspired to and chilled Plaintiff's exercise of his First 4 Amendment rights [through actions that] do [] not advance any legitimate 5 penological goals, nor [are] tailored narrowly enough td achieve such goals. 6 95. By Defendants and each of them, collectively conspiring to moot all claims 7 relating to, Plaintiff's Writ of Habeas Corpus in State Court in retaliation 8 against Plaintiff for exercising his First Amendment rights. Plaintiff suffered 9 a chilling effect, when his Writ of habeas Corpus challenging Defendants' 10 Race-Based Lockdown Policy case In re Robert Mitchell No. CHW-2327, was 11 dismissed as a moot claim, because Plaintiff was transfered from High Desert 12 State Prison while the case was still pending. l3 96. By reason of the aforedescribed acts and omissions, of Defendants and 14 each of them, Plaintiff has become mentally upset, distress and aggravated. 15 By reason of the aforedescribed acts and omissions of Defendants and each of 16 them, Plaintiff sustained numerous physical, mental and emotional injuries, 17 including, but not limited to, muscles starting to atrophy, loss of muscles mas 18 and bone density and severe pain and swelling to his left leg, hip and ankle, 19 severe pain, anxiety, dizziness, blurred vision, nightmares, humiliation, 20 indignities and great physical, mental and emotional pain and suffering. 21 Plaintiff claims General and Compensatory Damages for such Mental Distress and 22 Aggravation in a Sum of One Million Dollars ($1,000,000.00). 23 97. The aforementioned acts of Defendants and each of them, were willful, 24 wanton, malicious, oppressive, vexatious, deliberate and done with reckless 25 indifference to anlor callous disregard for Plaintiff's rights and justify 26 an award of exemplary and Punitive Damages in the Sum of Two Million Dollars 27 ($2,000,000.00).
28 II
26.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 27 of 39

1

COUNT THREE

2

VIOLATION OF CIVIL RIGHTS 42 U.S.C. § 1983, EIGHTH AMENDMENT

HEALTH AND SAFETH

3

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

4

5 98. Plaintiff hereby incorporates and realleges paragrap,hs 1 through 85 of

this Complaint, as fully set forth at this place.

6

99. In committing the acts set forth in paragraphs 1 through 85 of this

7

Complaint, Plaintiff alleges that the Defendants have a Race-Based Lockdown

8

Policy and because of this policy, Plaintiff and the entrie African-American

9
inmate population at High Desert State Prison on Facility 'c', were placed on

10

lockdown status,and confined to their cells and not allowed to receive fresh

11 air or outdoor exercise for approximately 14 months, while other inmates

12 classified as White, Hispanic and Asian were not lockdown and were allowed to

13 continue programming.

14 100. Plaintiff advised Defendants and each uf them, that he is a "Disabled

15 Inmate" and a participant in the Americans with Disabilities Act ("ADA"),

16 due to a medical condition that required him to have orthoscopic surgery,

17 that left him mobility impaired.

18 101. Further, Plaintiff advised Defendants and each of them, that he would

19 experience severe medical complications, if he was not allowed to ambulate and

20 exercise daily, as part of his post operative recovery and rehabilitation as

21 ordered by his .treating physician.

22 102. Despite, Plaintiff's serious diagnosed medical condition a 'Broken Ankle

23 and Hip' and in deliberate indifference to and in reckless disregard of

24 Plaintiff's health and safety, the Defendants and each of them, denied

25 Plaintiff fresh air and outdoor exercise for 14 months.

26

27 II

28 II

27.

•

~f

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 28 of 39

1 103. The acts of Defendants and each of them, were unnessary, unreasonable,
2 excessive, deliberate and constituted cruel and unusual punishment and
3 therefore, in ·violation of Plaintiff's Eighth Amendment rights. Further, the
4 confining of Plaintiff to his cell for 14 months and not allowing him to
5 receive fresh air and outdoor exercise, was in conscious disregard and in 6 deliberate indifference to Plaintiff's health and safety and his serious
7 medical needs. 8 104. Plaintiff alleges that, as a result of the Defendants' Race-Based 9 Lockdown Policy and their display of delinerate indifference, Plaintiff and 10 the entire African-American inmate population at High Desert State Prison
11 on Facility 'c' were placed on lockdown status, confined to their cells for
12 14 months and not permitted to receive fresh air or outdoor exercise. 13 By reason of the aforedescribed acts and omissions, Plaintiff has become 14 mentally upset, distressed and aggravated. By reason of the acts and omissions 15 of the Defendants and each of them, Plaintiff sustained numerous physical, 16 mental and emotional injuries, including, but limited to, muscles starting 17 to atrophy, loss of muscle mass and bone density and severe pain and swelling 18 to his left leg, hip and ankle, severe pain, anxiety, dizziness, blurred 19 vision, nightmares, humiliation, indignities and great physical, mental and
emotional pain and suffering. Plaintiff claims General and Compensatory
20
21 Damages for such Mental Distress and Aggravation in a sum of One Million 22 Dollars ($l,OOO,OOO.OO). 23 105. the aforementioned acts of Defendants and each of them, were willful,
wanton, malicious, oppressive, vexatious, deliberate and done with reckless 24 25 indifference to and/or callous disregard for Plaintiff's rights and justify
26 an award of Exemplary and Punitive Damages in an amount of Two Million
Dollars ($2,OOO,OOO.00). 27

28

28.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 29 of 39

COUNT FOUR

VIOLATION OF CIVIL RIGHTS 42 U.S.C. §1983 FOURTEENTH AMENDMENT 2
SUBSTANTIVE AND PROCEDURAL DUE PROCESS, LIBERTY INTEREST AND

3

EQUAL PROTECTION VIOLATIONS

4

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

5 106. Plaintiff hereby incorporates and realleges paragraphs 1 through 85 of

6 this Complaintl as fully set forth at this place.

7 107. In committing the acts set forth in paragraphs 1 through 85, of this

8 Complaint, Plaintiff alleges that in response to his repeated grievances and

9 the filing of several 42 U.S.C. §1983 Civil Rights Complaints:

10 A.) Robert Mitchell V. D.G. Adams et al.,

11

Case No. CIV-06-2321-GEB-GGH(PC);

12 B.) Robert Mitchell V. R. Wong, et al.,

Case No. CIV-07-2029-LEW-CMK; 13

C.) Robert Mitchell V. Correctional Officer L. Villa.

14

Case No. CIV-03-1157-WQH(POR);

15 D.) Carlos Rosado V. Edward Alameida, Jr. et al.,

16

Case No. CIV-03-1110-J(POR), and the filing of a Writ of Habeas Corpus

17 E.) In re Mitchell

18

Case No. CHW-2327

19 The Defendants and each of them, conspired to and obstruct the Due Course of'

20 Justice in State Court and interfered with and denied Plaintiff his

21 Substantive and Procedural Due Process, Liberty Interest and Equal Protection

under the First, Eighth and Fourteenth Amendment.

23 108. Plaintiff alleges that in response to his repeated grievances and the

24 filing of several 42 U.S.C. §1983, Civil Rights Complaints and a writ of Habeas

25 Corpus, challenging Defendants' Race-Based Lockdown Policy, the Defendants

26 and each of them, retaliated against Plaintiff for exercising his First

27 Amendment rights, by increasing

security housing status from 270 to 180,

28 then transfered him to another prison to moot all claims, relating to

29.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 30 of 39
Plaintiff's Writ of Habeas Corpus case In re Robert Mitchell No. CHW-2327 in
2 violation of the First Amendment ••• [and that] Defendants and each of them,
3 collectively conspired to and chilled Plaintiff's exercise of his First
4 Amendmentrights [through actions that) do [] not advance any legitimate 5 penological goals, nor [are] tailored narrowly enough to achieve such goals.
6 109. By Defendants and each of them, collectively conspiring to moot all
7 claims relating to Plaintiff's Writ of Habeas Corpus in State Court, in 8 retaliation against Plaintiff for exercising his First Amendment rights. 9 Plaintiff suffered a chilling effect, when his Writ of Habeas Corpus 10 challenging Defendants' Race-Based Lockdown Policy case In re Robert Mitchell 11 No. CHW-2327, was dismissed as a moot claim, because Plaintiff was transfered 12 from High Desert State Prison, while the case was pending. 13 110. Plaintiff alleges that, the Defendants' conduct and each of them,
14 shocks the conscience and interfered with rights implicit in the concept of 15 ordered liberty and violates both the Substantive and Procedural Due Process 16 Clause of the Fourteenth Amendment of the united States Constitution. 17 Ill. Plaintiff alleges that, as a result of the Defendants' Race-Based 18 Lockdown Policy, Plaintiff and the entire . African-American inmate population
19 at High Desert State Prison on Facility 'c' were placed on lockdown status,
20 confined to their cells and not allowed fresh air or outdoor exercise for 21 14 months, while other inmates classified as White, Hispanic and Asian were 22 not lockdown and allowed to continue programming. 23 112. Plaintiff alleges that Defendants' Race-Based Lockdown Policy was
unnecessary, unreasonable, excessive, an exaggerated response and it was not 24
narrowly tailored and did not advance any compelling government interest. 25 26 113. Plaintiff alleges that Defendants and each of them, possess invidious
discriminatory animus and it was this animus towards Plaintiff and all African 27 28 Ameri cans, that was the catalysts behind Plaintiff cand ':'.t:lie ent ire '\AEr:icatIT-
30.

..

j

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 31 of 39 American inmate population at High Desert State on Facility 'C' being placed

2 on lockdown status,confined to their cells and not allowed fresh air or

3 outdoor exercise for approximately 14 months, while other inmates classified

4 as White, Hispanic and Asian were not lockdown and were allowed to continue

5 programming. By reason of the aforedescribed acts and omissions, Plaintiff

6 has become mentally upset, distressed and aggravated. By reason of the acts

7 and omissions of Defendants and each of them, Plaintiff sustained numerous

8 physical, mental and emotional injuries, including, but not limited to, muscles

9 starting to atrophy, loss of muscle mass and bone density and severe pain and

10 swelling to his left , hip and ankle, severe pain, anxiety, dizziness, 11 blurred vision, nightmares, humiliation, indignities and great physical, 12 mental and emotional pain and suffering. Plaintiff claims General and 13 Compensatory Damages for such Mental Distress and Aggravation in a sum of. 14 One Million Dollars ($1,000,000.00). 15 114. The aforementioned acts of Defendants and each of them, were willful, 16 wanton, malicious, oppressive, vexatious, deliberate and done with reckless 17 indiffereDce to and/or callous disregard for Plaintiff's rights and justify 18 an award of Exemplary and Punitive damages in an amount of Two Million 19 Dollars ($2,000,000.00).

20

21

22

23

24

25

26

27

28

31.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 32 of 39

1
COUNT FIVE 2
VIOLATION OF CIVIL RIGHTS 42 U.S.C. §1985(2)

OBSTRUCTION OF JUSTICE IN STATE COURT

4

(BY PLAINTIFF AGAINST ALL DEFENDANTS) 5

115. Plaintiff hereby incorporates and realleges paragraphs 1 through 85 of 6

this Complaint, as fully set forth at this place. 7

116. in committing the acts set fort he in paragraphs 1 through 85 of this 8

Complaint, Plaintiff alleges that in response to his repeated grievances and 9

the filing of several 42 U.S.C. §1983, Civil Rights Complaints:

10

A.) Robert Mitchell V. D.G. Adams, et al.,

11

case No. CIV-06-2321-GEB-GGH(PC):

12 B.) Robert Mitchell V. R. Wong, et al.,

13

case No. CIV-07-2029-LEW-CMK:

14 C.) Robert Mitchell V. Correctional Officer L. Villa.

15

Case No. CIV-03-1157-WQH(POR);

16 D.) Carlso Rosado V. Edward Alameida, Jr. et al.,

Case No. CIV-03-1110-J(POR), and the filing of a Writ of Habeas Corpus

17

E.) In re Mitchell

18

Case No. CHW-2327

19 The Defendants and each of them, conspired to and obstructed the Due Course of

20 Justice in State Court, and interfered with and denied Plaintiff Substantive

21 and Procedural Due Process, Liberty Interest and Equal Protection rights

22 under the

, Eighth and Fourteenth Amendment.

23 117. Plaintiff alleges that in response to his repeated grievances and the

24 filing of several 42 U.S.C. §1983, Civil Rights Complaintis and a Writ of

25 Habeas Corpus, challenging Defendants' Race-Based Lockdown Policy, the

26 Defenants and each of them, retaliated against Plaintiff for exercising his

27 first Amendment rights, by increasing his security housing status from 270 to

28 180, then transfered him to another prison to moot all claims relating to

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 33 of 39
Plaintiff's Writ of Habeas Corpus Case In re Robert Mitchell No. CHW-2327, 2 in violation of the First Amendment ••. [and that] Defendants and each of them,
3 collectively donspired to and chilled Plaintiff's exercise of his First
4 Amendment rights [through actions that] do [] not advance any legitimate 5 penological goals, nor [are] tailored narrowly enough to achieve such goals.
6 118. by defendants and each ot them, collectively conspiring to moot all
7 claims, relating to Plaintiff's Writ of Habeas Corpus in state Court, in 8 retaliation against Plainatiff for exercising his First Amendment rights, 9 Plaintiff suffered a chilling effect, when his writ of Habeas Corpus 10 challenging Defendants' Race-Based LockdoWn Policy case In re Robert Mitchell 11 No. CHW-2327, was dismissed as a moot claim, because Plaintiff was transfered 12 from High Desert State Prison, while the case was pending. 13 119. Plaintiff alleges that, the Defendants' conduct and each of them, 14 schoks the conscience and interfered with rights implicit in the concept of 15 ordered liberty and obstructed the Due Course of Justice in state Court 16 pursuant to 42 U.S.C. §1985(2). 17 120. As a result of Defendants' conduct and each of them, Plaintiff was 18 denied the Right to Petition the Government and Access to the Court and 19 therefore, was deprived of rights, privileges and immunit secured to him, 20 by the First, and Fourteenth Amendment of the united States Contitution and 21 laws enacted thereunder. 22 121. By reason of the aforedescribed acts and omissions, of Defendants 23 and each of them, Plaintiff has become mentally upset, distressed and
24 aggravated. By reason of the aforedescribed acts and omissions of Defendants
25 and each of them, Plaintiff sustained numerous pyysical, mental and emotional
26 injuries, including, but not limited to, muscles starting to atrophy, loss of
27 muscle mass and bone density and severe pain and swelling to his left leg, hip 28 and ankle, severe pain anxiety, dizziness, blurred vision, nightmares,
33.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 34 of 39

humiliation, indignities and great physical, mental and emotion pain and

2 suffering. Plaintiff claims General and Compensatory Damages for such

3 Mental Distress and Aggravation in a Sum of One Million Dollars ($1,000,000.00)

4 122. The aforementioned acts of Defendants and each of them, were willful,
5 wanton, malicious, oppressive, vexatious, deliberate and done with reckless

6 indifference to andlor callous disregard for Plaintiff's rights and justify

7 an award of Exemplary and Punitive Damages in an amount of Two Million

8 Dollars ($2,000,000.00).

9

COUNT SIX

10

NEGLIGENCE

11

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

12 123. Plaintiff hereby incorporates and realleges paragraphs 1 to 85 of this

13 Complaint, as fully set forth at this place.

14 124. By committing the acts set forth in ~ragraphs 1 through 85 of this

15 Complaint, the Defendants and each of them, fell below the reasonable 16 standard of care for Law Enforcement and Correctional Employees, under the 17 exigency of the circumstances. Defendants and all of them, did not act as 18 reasonable prudent law enforcement and correctional employee individuals. 19 The Defendants and each of them, breached their duty of care, by disregarding 20 the high probability that their conduct would likely result in physical 21 injuries, andlor emotional distress, shock and anguish to Plaintiff.
22 The Defendants' acts were unreasonble ander the circumstances.
23 125. By doing the above aforesaid acts, in disregard for the consequences, 24 Defendants and each of them, inflicted physical injuries and emotional 25 distress upon Plaintiff~ such infliction was a substantial factor in causing
26 damage and injury to Plaintiff as set forth above.

27 II 28 II

34.

,

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 35 of 39

126. Plaintiff alleges that Defendants and each of them, were the proximate
2 cause of the Plaintiff's physical and mental injuries. By reason of the 3 aforedescribed-acts and omissions of Defendants and each of them, Plaintiff 4 sustained numerous physical, mental and emotional injuries, including, but not 5 limited to, muscles starting to atrophy, loss of muscle ~ss and bone density 6 and severe pain and swelling to his left leg, hip and ankle, anxiety, dizziness 7 blurred vision, nightmares, humiliation, indignities and great physical! mental
and emotional pain and suffering. Plaintiff claims General and Compensatory 8
damages for such Mental Distress and Aggravation on a Sum of One Million 9
Dollars ($1,000,000.00). 10
127. The individual Defendants while acting in the scope of authority as 11
agents and employee of Defendants california Department of Corrections and 12
Rehabilitation, High Desert State Prison and C.S.P.-Sacramento, proximately 13
caused the personal injury and damage to Plaintiff through their intentional 14
and negligent acts. 15
128. The aforementioned acts of Defendants and each of them, were willful, 16
waston, malicious, oppressive, vexatious, deliberate and done with reckless 17
indifference to and/or callous disregard for Plaintiff's rights and justify an 18
award of Exemplary and Punitive damages in an amount of Two Million Dollars 19
($2,000,000.00) 20

21 22

23

24

25
26

27

28

35.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 36 of 39

1

COUNT SEVEN

2

INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

(BY PLAINTIFF AGAINST ALL DEFENDANTS)

4 129. Plaintiff hereby incorporates and realleges paragraphs 1 through 85 of

5 this Complaint, as fully set forth at this place.
6 130. Defendants and each of them, did each knowingly, outrageously, willfully,
7 intentionally, carelessly, in reckless disregard of the impact upon and
8 consequences to Plaintiff and/or negligently engaged in the acts and omissions 9 described and alled all in the presence and view of Plaintiff and by reason 10 thereof, Plaintiff suffered and continues to suffer, severe mental, emotional 11 pain, upset, distress, torment, anguish, anxiety, nausea and depression all to 12 Plaintiff's injuries. 13 131. As a result of the aforesaid acts of Defendants and each of them, 14 Plaintiff has become mentally upset, distressed and aggravated. By reason of 15 the acts and omissions of Defendants and each of them, Plaintiff sustained
numerous physical, mental and emotional injuries, including, but not limited 16
to, muscles starting to atrophy, loss of muscles mass and bone density 17
and severe pain and swelling to his left leg, hip and ankle, severe pain, 18
anxiety, dizziness, blurred vision, nightmares, humiliation, indignities and 19
great physical, mental and emotional pain and suffering. Plaintiff claims 20
General and Compensatory damages for such Mental Distress and Aggravation 21
ln a Sum of One Million dollars ( ,000,000.00).
22
132. The aforementioned acts of Defendants and each them, were willful, 23
wanton, malicious, oppressive, vexatious, deliberate and done with reckless 24
indifference to and/or callous disregard for Plaintiff's rights and justify 25
an award of Exemplary and Punitive damages in an amount of Two Million 26
Dollars ($2,000,000.00). 27

28 //

36.

•

'L

,

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 37 of 39 DAMAGES

Wherefore, Plaintiff prays for judgment against the Defendants and each of 2
them, as follows:

1.) Compensatory/General Damages in the Sum of One Million Dollars 4
($1,000,000.00);

5 2.) Exemplary/Punitive Damages in the Sum of Two Million Dollars

6

($2,000,000.00);

7 3.) For Cost of suit herein and Interest as provided by law;

8 4.) Award Punitive Damages pursuant to Penal Code §422.6;

9
5.) Declaratory Judgment, that Defendants' acts and omissions and their

10

Race-Based Lockdown Policy and Practice, as described herein violated

11

Plaintiff's federally protected rights under the United states Contitution

12 6.) Injunctive Relief, an injunction demanding that the Director of the

California Department of Corrections and Rehabilitation and all Defendants

13

their successors in office, agents, employees and all other persons in

14

active concert and participation with ,them, "Cease and Desist" from the

15

following:

16

(a) Segregating and Locking Down All African-American Inmates when

17 one or a few African-Americans caused a disturbance;

18

(b) Stop Locking Down Non-Affiliated African-American inmates when

19 African-American inmates classified as Gang-Members (i.e. Crips or Bloods)

20 ~ere the cause of the prison disturbance; and

21

(c) Stop all Race-Based Policies and Practices that are not narrowly

22 tailored.

23 7.) For other such relief as this Court may deem proper.

24

DEMAND FOR JURY TRIAL

25 Plaintiff hereby demands a jury trial.

26

27

28

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 38 of 39

1

VERIFICATION

2

I, the undersigned state, that I am the Plaintiff in the above action, I

3 declare under penalty of perjury, under the laws of the United States, that

4 the foregoing is true and correct.
5
0(1 6 dATED: ~/ ~/
7

By:7Gitb-· ROBERT MITCHELL P-87230 PLAINTIFF, IN PRO PER.

8

9

]0

11

12

13

14

15

16

]7

18

19

20

21

22

23

24

25

26

27

28

38.

Case 2:08-cv-01196-JAM-EFB Document 37 Filed 06/09/10 Page 39 of 39
PROOF OF SERVICE
(C.C.P. §§1013(a); 2015.5; 28 U.S.c. §1746)

I, ROBERT MITCHELL

, am over the age of eighteen (18) years,

and I (am) (am not) a party to the within cause of action. My address is:

ROBERT MITCHELL P-87230 FOLSOM STATE PRISON P.O. BOX 950
REPRESA, CA 95763

On, ----'6"'-~7/<---,;·0~'.,e_-_/_/__-d_·____, I served the following documents:
PLAINTIFF'S FIRST AMErlDED COMPLAINT

on the below named individual(s) by depositing true and correct copies thereof in the United State mail in Represa, California, with postage fully prepaid thereon, addressed as follows:

1. THE U.S.D.C. E.D.
501 I ST. STE: 4-200 SACRAMENTO, CA 95814

2. THE LAW OFFICES OF
MARK H. HARRIS 2207 ,J STREET SACRAMENTO, CA 95816

I have read the above statements and declare under the penalty of perjury of the laws of the State of California that the foregoing is true and correct.
Executed this ZIL. day of ..~..T.~v.c..<'/l~e_ _ _ _, 20/0 , at California State
Prison - Sacramento, Represa, California.
~//
(Signature) ~.

 1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9 ROBERT MITCHELL,

10

Plaintiff,

11

v.

12 T. FELKER, et al.,

CASE NO. C08-1196RAJ ORDER ON MOTIONS

13

Defendants.

14

15

This matter comes before the court on three motions from Plaintiff Robert

16 Mitchell. The first is a motion (Dkt. # 36) to amend his complaint. The second is a

17 motion (Dkt. # 38) for voluntary dismissal of all claims against Defendants N. Grannis

18 and K. Allen. The third is a motion (Dkt. # 39) to impose sanctions on Defendants for

19 failing to respond to Mr. Mitchell’s motion to amend.

20

The court GRANTS Mr. Mitchell’s motion for voluntary dismissal, dismissing all

21 claims against Defendants Grannis and Allen with prejudice. No party has opposed this

22 motion. The court directs the clerk to terminate Defendants Grannis and Allen as parties

23 in this action.

24

The court GRANTS Mr. Mitchell’s motion to amend his complaint. Defendants

25 did not oppose the motion, although in response to Mr. Mitchell’s motion for sanctions,

26 they stated that they did not oppose the filing of an amended complaint.

27

28 ORDER – 1

1

The court DENIES Mr. Mitchell’s motion for sanctions. This court’s local rules

2 require parties to either oppose motions or file statements of non-opposition, and permits

3 a court to impose sanctions for parties who do not comply. LR 230(l). Defendants did

4 neither in response to Mr. Mitchell’s motion to amend and his motion for voluntary

5 dismissal. Although the court does not condone violations of the local rules, it finds no

6 basis for sanctions in this instance.

7

The court observes that no party filed a dispositive motion before June 30, 2010,

8 the deadline set in the court’s November 11, 2009 order setting a pretrial schedule. Mr.

9 Mitchell’s motion to compel discovery responses (Dkt. # 26) remains pending. The court

10 will set a trial date or other pretrial deadlines in conjunction with its order resolving that

11 motion.

12

DATED this 6th day of August, 2010.

13

14 15

A

16

The Honorable Richard A. Jones

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28 ORDER – 2

 1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9 ROBERT MITCHELL,

10

Plaintiff,

11

v.

12 T. FELKER, et al.,

CASE NO. CV 08-1196RAJ ORDER ON MOTIONS

13

Defendants.

14 I. INTRODUCTION
15 This matter comes before the court on Plaintiff Robert Mitchell’s motion (Dkt.
16 # 26), to compel discovery responses, his motion (Dkt. # 28) for sanctions because
17 Defendants failed to respond timely to the motion to compel, and his unopposed motion
18 (Dkt. # 43) for service of his amended complaint1 on two newly added Defendants. For 19
the reasons stated below, the court GRANTS the motion to compel, DENIES the motion 20
for sanctions, GRANTS the motion for service, and makes additional orders to begin 21
bringing this action to a resolution. 22
II. DISCUSSION 23
Mr. Mitchell is incarcerated at the California State Penitentiary in Sacramento 24
(“CSP-Sacramento”), and has been since December 2007. Prior to that, he was 25
incarcerated at High Desert State Prison (“HDSP”). He is African-American. He 26
1 The court granted Mr. Mitchell leave to amend his complaint in an August 9, 2010 order. Dkt.
27 # 42.
28 ORDER – 1

1 contends that while at HDSP, he and all other African-American inmates were placed on

2 lockdown status for fourteen months, which included the loss of daily exercise time. Mr.

3 Mitchell contends that he requires daily exercise to recuperate from arthroscopic surgery,

4 and that he was unable to do so during the lockdown.

5

Mr. Mitchell filed at least one administrative complaint regarding the lockdown.

6 He also apparently filed a state-court petition for a writ of habeas corpus. In response to

7 these actions as well as several prior lawsuits Mr. Mitchell has filed against prison

8 officials, he contends that prison officials retaliated against him. Among other things,

9 they allegedly increased his security housing level, and transferred him to CSP-

10 Sacramento, which is a maximum security prison. He contends that officials transferred

11 him to moot his habeas corpus petition and to chill the exercise of his right to file

12 grievances and lawsuits.

13

He filed this suit in May 2008. The suit was assigned to the undersigned judge in

14 January 2009. The court granted Mr. Mitchell in forma pauperis status in May 2009, and

15 ordered service of his complaint on approximately 20 prison official Defendants in

16 August 2009. On November 10, 2009, the court entered an order setting a pretrial

17 schedule and a March 31, 2010 discovery deadline. Mr. Mitchell served four sets of

18 discovery requests before the end of that month, comprised of a set of interrogatories and

19 a set of requests for production of documents (“RFPs”) to Defendant Felker, and a set of

20 interrogatories and RFPs to Defendant Tilton. The RFPs sought documents that are

21 facially relevant to this action, including copies of policies relating to lockdowns and

22 exercise and reports and correspondence regarding the lockdown(s) involving Mr.

23 Mitchell. The interrogatories sought information on the same subjects.

24

In early January 2010, Defendants responded to Mr. Mitchell’s discovery. They

25 produced no documents, and they offered no substantive response to any interrogatory.

26 Their responses consisted entirely of objections. The objections, in turn, were wholly

27 non-substantive, almost entirely boilerplate, and sometimes nonsensical. Mr. Mitchell’s

28 ORDER – 2

1 discovery requests were brief and clear; yet every objection insisted that they were vague

2 or unintelligible. Defendants often objected that a particular request “assumes facts,”

3 whatever that might mean. Defendants contended that Mr. Mitchell sought documents or

4 information subject to the attorney client privilege, but did not produce a privilege log or

5 otherwise explain that objection. In short, Defendants’ responses served only to obstruct

6 discovery; no good faith basis for the objections is apparent.

7

Mr. Mitchell filed a motion to compel on February 17, 2010. The memorandum

8 accompanying the motion was 70 pages long. Mr. Mitchell separately addressed every

9 one of his discovery requests and every one of Defendants’ objections. He explained

10 how each request sought relevant information, and how Defendants’ objections were

11 unfounded.

12

Defendants’ response to the motion to compel was due 21 days later, on March 10.

13 E.D. Cal. L.R. 230(l). They did not timely respond. On March 12, Mr. Mitchell filed a

14 motion to treat Defendants’ failure to respond as a waiver to opposition of the motion.

15

On March 15, Defendants filed a two-page opposition to the motion to compel.

16 The court reproduces the entirety of the substance of their opposition below:

17

Defendants served substantive good-faith objections to the subject

discovery. Many, if not most, of the requests were ambiguous in their

18

language, compound, and overbroad. However, the objections stated in

19

Defendants’ responses are clearly set forth and are self-explanatory. None

of the objections were taken or stated in bad faith or to avoid discovery.

20

The request and interrogatories were stated in unclear language and were

21

largely compound. . . .

22

Further, Plaintiff never sent any letter addressing his concerns about

Defendants’ responses, in an effort to meet and confer.

23

Dkt. # 29 at 2. Defendants’ counsel’s attached declaration provides no additional 24

information, except an admission that Mr. Mitchell left a voice message for counsel in an 25

effort to discuss Defendants’ discovery responses. Mr. Mitchell declares that he “left a 26

27

28 ORDER – 3

1 message on Defense Counsel’s answering service in an effort to resolve our discovery

2 dispute.” Dkt. # 31 at 4.

3

Before considering Mr. Mitchell’s motion to compel, the court addresses his

4 request that the court treat the motion as unopposed. The court is empowered to do so.

5 E.D. Cal. L.R. 230(l) (“Failure of the responding party to file an opposition or to file a

6 statement of no opposition may be deemed a waiver of any opposition to the granting of

7 the motion and may result in the imposition of sanctions.”). This is not the first time that

8 Mr. Mitchell has raised concerns about the timeliness of Defendants’ responses to

9 motions and discovery. The court was initially willing to give Defendants the benefit of

10 the doubt. It is not willing to do so any longer. As to this motion, the court declines to

11 deem Defendants’ untimely opposition to be a waiver. It does so only because, as

12 discussed below, consideration of Defendants’ late opposition only benefits Mr. Mitchell.

13 If Defendants continue to fail to comply with deadlines that the Local Rules and this

14 court impose, the court will not hesitate to impose monetary sanctions. On the record

15 before the court, there is no excuse for Defendants’ untimeliness.

16

The court has broad discretion to control discovery. Childress v. Darby Lumber,

17 Inc., 357 F.3d 1000, 1009 (9th Cir. 2004). That discretion is guided by several principles.

18 Most importantly, the scope of discovery is broad. A party must respond to any

19 discovery request that is “reasonably calculated to lead to the discovery of admissible

20 evidence.” Fed. R. Civ. P. 26(b)(1). The court, however, must limit discovery where its

21 “burden or expense . . . outweighs its likely benefit, considering the needs of the case, the

22 amount in controversy, the parties’ resources, the importance of the issues at stake in the

23 action, and the importance of the discovery in resolving these issues.” Fed. R. Civ. P.

24 26(b)(2)(C)(iii).

25

In exercising that discretion, however, the court bears in mind that it is the party

26 opposing discovery who carries a “heavy burden” to explain why it need not produce

27 requested discovery. Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975); see

28 ORDER – 4

1 also DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who

2 resists discovery has the burden to show that discovery should not be allowed, and has

3 the burden of clarifying, explaining, and supporting its objections.”). In this case,

4 Defendants have completely abrogated this burden. They make no effort to explain their

5 objections to Mr. Mitchell’s discovery requests. They insist that their objections are

6 “self-explanatory,” but they are mistaken. Their objections are rote, and they make no

7 effort to address the substance of Mr. Mitchell’s requests. It is possible, of course, that

8 Mr. Mitchell’s requests are in some instances overbroad, or in some instances seek

9 information whose production would unduly burden Defendants. Without any

10 explanation from Defendants, however, the court has no way of making that

11 determination.

12

Defendants’ objection that Mr. Mitchell failed to meet and confer does not

13 persuade the court. The Eastern District of California imposes strict requirements for

14 meeting and conferring in advance of filing a discovery motion. E.D. Cal. L.R. 251.

15 This court’s November 10, 2009 scheduling order exempts the parties from compliance

16 with that rule. Dkt. # 18 at 5. That order does, however, require compliance with Federal

17 Rule of Civil Procedure 37. Id. Rule 37 includes its own meet-and-confer requirement.

18 Fed. R. Civ. P. 37(a) (“The motion must include a certification that the movant has in

19 good faith conferred or attempted to confer with the person or party failing to make

20 disclosure or discovery in an effort to obtain it with court action.”). Defendants do not

21 deny that Mr. Mitchell telephoned their counsel and left a message in an effort to meet

22 and confer. They state merely that Mr. Mitchell failed to send a letter in an effort to meet

23 and confer. He is not required to send a letter; his telephone call suffices. On this record,

24 the court finds that Mr. Mitchell attempted to meet and confer, and Defendants made no

25 effort to reciprocate.

26

For these reasons, the court grants Mr. Mitchell’s motion to compel. This order

27 will conclude with specific orders to Defendants to satisfy their discovery obligations.

28 ORDER – 5

1

Before concluding, however, the court notes that on June 30, 2010, the deadline

2 for pretrial motions passed in this matter. Neither party brought a dispositive motion. In

3 the court’s scheduling order, it stated that it would set a trial date and related dates

4 “following adjudication of any dispositive motion, or the expiration of time for filing

5 such a motion if no such dispositive motions are filed.” Dkt. # 18 at 6. Given

6 Defendants’ failure to produce discovery, this matter is not ready for trial. This order

7 will conclude with specific orders designed to ready this case for trial.

8

III. CONCLUSION

9

The court orders as follows:

10

1) Defendants shall provide complete responses to Mr. Mitchell’s four sets of

11

discovery requests, and shall do so no later than October 29. Defendants have

12

waived any objections to those requests by failing to properly respond to Mr.

13

Mitchell’s motion to compel.

14

2) Defendants shall be responsible for arranging a telephone call with Mr.

15

Mitchell during the week of November 8-12 to determine if he is satisfied with

16

their discovery responses and whether further responses are necessary. The

17

parties shall attempt to resolve any disputes.

18

3) If Mr. Mitchell chooses, he may file an additional motion to compel no later

19

than November 30 if he finds Defendants’ responses unsatisfactory. The court

20

emphasizes that it does not encourage Mr. Mitchell to file such a motion, and

21

that this order in no way excuses Mr. Mitchell from his obligation to

22

reasonably limit the scope of his discovery requests.

23

4) After November 30, either in conjunction with an order addressing Mr.

24

Mitchell’s motion to compel or in a separate order if he does not file such a

25

motion, the court will require the parties to meet and confer regarding a trial

26

date and dates for pretrial submissions as described in paragraph 8 of the

27

court’s November 10, 2009 scheduling order.

28 ORDER – 6

1

5) The court grants Mr. Mitchell’s unopposed motion for service of his amended

2

complaint on Defendants M. Wright and F. Foulk. No later than October 11,

3

Defendants’ counsel shall file a notice with the court stating whether he will

4

accept service of the amended complaint on behalf of those Defendants. If

5

counsel declines to do so, the court will issue an order directing the United

6

States Marshal to complete service.

7

6) All future motions and oppositions to motions in this action shall be limited to

8

25 pages. Mr. Mitchell’s 70-page motion to compel was repetitive and

9

unnecessarily long, and both he and the court will benefit from forcing him to

10

be more concise. All future reply briefs shall be 12 pages or fewer.

11

DATED this 28th day of September, 2010.

12 13

A

14

The Honorable Richard A. Jones

United States District Judge

15

16

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28 ORDER – 7

 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT MITCHELL,

11

Plaintiff,

No. CIV S-08-1196 JAM EFB P

12

vs.

13 T. FELKER, et al.,

14

Defendants.

ORDER GRANTING LEAVE TO AMEND

15

/

16

Plaintiff is a prisoner with counsel suing for civil rights violations. See 42 U.S.C. § 1983.

17 This action currently proceeds on the amended complaint filed on June 10, 2010, which plaintiff

18 filed on his own behalf and in pro se prior to obtaining representation. Dckt. No. 37. Newly

19 represented by counsel, plaintiff now seeks to file a second amended complaint which would add

20 additional parties, allege certain claims on behalf of a state-wide class, and dismiss other parties

21 and claims. For the reasons provided below, the court will grant plaintiff’s motion.

22 I. Background

23

Plaintiff initiated this case pro se on May 30, 2008 to challenge, among other things, a

24 series of allegedly race-based lockdowns to which he was subjected at High Desert State Prison

25 ////

26 ////

1

1 (“HDSP”) beginning on September 12, 2006. Dckt. No. 1 at 12-14.1 Plaintiff alleged that, in

2 response to his administrative appeal of the lockdowns, prison staff informed plaintiff that it was

3 the policy of the California Department of Corrections and Rehabilitation (“CDCR”) that “when

4 there is an incident involving any race, all inmates of that race are locked up. Ethnic groups are

5 appropriate in segmenting the inmate population during the process of establishing a regular

6 program following an incident.” Id. at 15. Plaintiff alleged that he was subjected to cruel and

7 unusual punishment as a result of the lockdowns and that the lockdowns violated his rights to

8 equal protection and due process. Id. at 17, 30-31, 38-44. Plaintiff further alleged that prison

9 officials took adverse actions against him in response to his filing of grievances and lawsuits,

10 constituting unlawful retaliation, obstruction of justice, and denial of access to the courts and

11 violating his due process and equal protection rights. Id. at 17-27, 32-37, 45-48. Lastly, plaintiff

12 asserted state-law claims of negligence and intentional infliction of emotional distress. Id. at 48-

13 51.

14

The case was reassigned to visiting judge Richard A. Jones of the Western District of

15 Washington in January 2009. Dckt. No. 7. Under Judge Jones, the case proceeded to service,

16 and defendants filed an answer on October 22, 2009. Dckt. Nos. 8, 16. The pretrial discovery

17 and scheduling order issued on November 10, 2009, setting the discovery deadline at March 31,

18 2010 and the pretrial motion deadline at June 30, 2010. Dckt. No. 18. Discovery disputes and

19 plaintiff’s first request for leave to file an amended complaint followed. Dckt. Nos. 22-31, 36-

20 37, 39-41.

21

On August 9, 2010, Judge Jones granted plaintiff leave to file an amended complaint,

22 which defendants had not opposed, making the amended complaint filed on June 9, 2010

23 (Docket No. 37) the operative pleading. Dckt. No. 42. The amended complaint substituted two

24 named defendants for Doe defendants and made other clarifications but did not substantively

25 1Page numbers cited herein refer to those assigned by the court’s electronic docketing
26 system and not those assigned by the parties.

2

1 change the case. Defendants filed an answer to the amended complaint on January 27, 2011.

2 Dckt. No. 63.

3

On September 29, 2010, Judge Jones granted plaintiff’s motion to compel, concluding

4 that defendants had failed to respond to plaintiff’s discovery in good faith and that their

5 “responses served only to obstruct discovery.” Dckt. No. 44 at 3. The court further found that

6 defendants’ failure to produce discovery prevented the case from being trial-ready, despite the

7 passage of the pretrial motion deadline. Id. at 6. Plaintiff subsequently filed additional

8 discovery motions. Dckt. Nos. 47, 50. However, while these motions were pending, the court

9 appointed counsel to plaintiff for the limited purpose of assisting plaintiff in settlement

10 negotiations with defendants. Dckt. No. 60. That same counsel later agreed to provide

11 continuing representation to plaintiff and filed the instant motion for leave to amend. Dckt. Nos.

12 70, 74. In light of plaintiff’s new representation, the court took the pending discovery motions

13 off calendar without prejudice. Dckt. No. 82 at 3-4. In the same order, Judge Jones directed the

14 transfer of the case back to a judge within the Eastern District of California, concluding that it

15 was “far from ideal for a judge sitting in the Western District of Washington to consider

16 presiding over an action challenging policies at all of California’s prisons.” Id. at 1. The case

17 accordingly found itself back before Judge John A. Mendez and the undersigned for

18 determination of the motion for leave to amend.

19

The proposed second amended complaint would change the case in the following ways:

20

(1) Adding three plaintiffs to the claims for injunctive and declaratory relief regarding

21 CDCR’s lockdown policies who would seek to act, along with plaintiff, as representatives of a

22 class of “all prisoners who are now or will in the future be housed in a men’s prison under the

23 jurisdiction of CDCR and who are now or will in the future be subject to CDCR’s policy and

24 practice of implementing race-based lockdowns” and a similar class of prisoners who are or will

25 be “subject to CDCR’s policy and practice of implementing excessively lengthy lockdowns.”

26 Dckt. No. 70, Ex. A at 7.

3

1

(2) Adding defendants CDCR Secretary Matthew Cate, CDCR Undersecretary of

2 Operations Scott Kernan, CDCR Chief Deputy Secretary for Adult Operations Terri McDonald,

3 and CDCR Director of the Division of Adult Institutions George Giurbino, in their official

4 capacities, to the injunctive and declaratory relief claims. Id. at 5-6.

5

(3) Deleting the claims for retaliation, denial of access to courts, and obstruction of

6 justice.

7

(4) Deleting defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T.

8 Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, and J. Walker.

9 II. Analysis

10

Under Federal Rule of Civil Procedure 15(a)(2), once a responsive pleading has been

11 filed, a party may amend its pleading with the court’s leave, which should be freely given “when

12 justice so requires.” “Rule 15’s policy favoring amendments is liberally applied” by courts in

13 the Ninth Circuit. Johnson v. Mammoth Recreations Inc., 975 F.2d 604, 607 (9th Cir. 1992).

14 Under Rule 15(a), once the defendant has filed a responsive pleading (as is the case here), “leave

15 to amend should be granted unless amendment would cause prejudice to the opposing party, is

16 sought in bad faith, is futile, or creates undue delay.” Id.

17

However, once the district court has filed a pretrial scheduling order establishing a

18 timetable for amending pleadings, but before the final pretrial conference, a party seeking to

19 amend its pleadings must show good cause for modifying the scheduling order as required by

20 Rule 16. Id. at 608. Rule 16’s “good cause” standard differs from Rule 15’s liberal standard by

21 focusing primarily in the diligence of the party seeking amendment rather than that party’s bad

22 faith and the prejudice to the other party. Id. “Good cause” under Rule 16 means that the party

23 seeking to amend could not have done so within the deadline provided by the scheduling order

24 despite its diligence. Id.

25

The parties dispute whether Rule 15 or Rule 16 governs the instant motion to amend. As

26 noted above, the scheduling order in this case issued on November 10, 2009. Dckt. No. 18. That

4

1 order did not expressly provide a separate deadline for motions to amend, but generally provided

2 that pretrial motions should be filed on or before June 30, 2010. Id. Plaintiff argues that the

3 scheduling order did not establish a deadline for motions to amend, which are not necessarily

4 “pretrial” motions, because they may be filed after trial has begun. Thus, under plaintiff’s

5 reasoning, Rule 16 does not apply because the scheduling order did not cover motions to amend.

6 The court finds this argument unpersuasive. Under Rule 16(b)(3)(A), the pretrial scheduling

7 order is required to provide a deadline for amending the pleadings. Reading the court’s

8 scheduling order consistently with this requirement, and in light of the fact that a motion to

9 amend that is filed prior to trial is, by definition, a pretrial motion, the court easily concludes that

10 the “pretrial motion” deadline of June 30, 2010 encompassed motions to amend filed before trial.

11

Nevertheless, the court considers the dispute over whether Rule 15 or 16 applies here

12 academic, as leave to amend is warranted under either standard.

13

Defendants first argue that the court should summarily deny the motion under Rule 16

14 because it was filed outside the pretrial motion deadline and plaintiff failed to request an

15 extension of that deadline. However, the court recognizes that, at the time the pretrial motion

16 deadline passed, plaintiff was unrepresented and in the midst of a protracted discovery dispute

17 with defendants. In fact, in his order transferring this case back to the Eastern District of

18 California, Judge Jones noted that “much of the delay in this case is attributable to Defendants’

19 dilatory conduct in response to Plaintiff’s discovery requests” and rejected “any suggestion that

20 Plaintiff is responsible for any portion of the delay.” Dckt. No. 44 at 3. Moreover, while a close

21 reading of Rule 16(b)(3)(A) and an understanding of pretrial practice leads the court to conclude

22 that motions to amend filed prior to trial were covered by the scheduling order, plaintiff could

23 easily have believed that the scheduling order did not encompass such motions, which were not

24 expressly mentioned in the order. Accordingly, the court does not consider the simple fact that

25 the motion was filed beyond the scheduling order’s deadline sufficient justification for denying

26 the motion.

5

1

Defendants next argue that plaintiff did not act diligently in seeking to amend the

2 complaint. According to defendants, diligence would have required that plaintiff notify the court

3 of his wish to prosecute the case as a class action, request counsel for that purpose, and request

4 modification of the scheduling order. As noted above, however, it was not manifestly clear that

5 the scheduling order covered motions for leave to amend. Additionally, plaintiff could not have

6 pursued the case as a class action without counsel, and, as a pro se litigant, may not have

7 understood that his claims could form the basis of a class action until he began speaking with

8 attorneys in January 2011. Dckt. No. 76, Ex. A (January 2011 letter from plaintiff to defense

9 counsel indicating that attorneys were willing to represent him and potentially bring class

10 claims); see Jiminez v. Sambrano, No. 04cv1833 L (PCL), 2009 U.S. Dist. LEXIS 28554, at *7-8

11 (S.D. Cal. Apr. 6, 2009) (finding that a plaintiff acted diligently in seeking leave to amend where

12 the proposed new claim for damages was likely omitted from the original pleading due to

13 plaintiff’s former pro se status and lack of legal expertise). By that time, plaintiff could not have

14 complied with the scheduling order deadline with any amount of diligence, as it had passed six

15 months earlier.

16

In sum, the court finds that plaintiff could not have filed his motion for leave to amend by

17 the June 30, 2010 scheduling order deadline despite his diligence and has thus shown “good

18 cause” for failing to do so under Rule 16.

19

Defendants next argue that amendment should be denied under Rule 15 because the

20 motion is untimely. Defendants point to the fact that the case was initiated over three years ago

21 and has seen numerous motions and a previous amendment to the complaint. However, much of

22 the time that has passed and motion work that has occurred since filing has been the result of

23 defendants’ failure to appropriately respond to plaintiff’s discovery requests, as Judge Jones

24 specifically noted in his transfer order. The court will not allow defendants to benefit from their

25 own dilatory tactics by denying amendment simply because those tactics have drawn the case out

26 thus far.

6

1

The court similarly rejects defendants’ next argument that amendment should be denied

2 because it would cause undue delay. Delay by itself is insufficient to justify denying a motion to

3 amend. Bowles v. Reade, 198 F.3d 752, 758 (9th Cir. 1999). Thus, absent bad faith by plaintiff,

4 futility of amendment, or prejudice to defendants, the delay created by allowing amendment is

5 not cause to deny amendment. Defendants do not claim that plaintiff is acting in bad faith or that

6 amendment will be futile. For reasons provided below, the court concludes that amendment will

7 not prejudice defendants. Accordingly, while the case may take longer to resolve following

8 amendment than it would have otherwise, such delay does not justify denying the motion to

9 amend.

10

Lastly, defendants argue that they will be prejudiced if the motion to amend is granted,

11 because the amendment will change the nature of the case by adding new plaintiffs and a

12 putative class of over 150,000 prisoners. According to defendants, the proposed amendment will

13 change the scope of the case from one that challenged allegedly illegal lockdowns at HDSP to

14 one challenging all CDCR lockdowns. The court has reviewed the initial and first amended

15 complaints in this action, however, and concludes that plaintiff has challenged statewide CDCR

16 policy regarding race-based lockdowns since the case’s inception. See Dckt. No. 1 at 15. As

17 defendants themselves note, disallowing amendment will simply have the practical impact that

18 the proposed new plaintiffs will have to bring a separate action challenging CDCR’s alleged

19 policy – a separate action that the proposed new CDCR defendants will have to defend. Further,

20 the proposed amendment will not add any new legal or damages claim against any defendant; all

21 the proposed amendments would either remove currently existing claims or simply add the

22 necessary officials, sued in their official capacity, to defend the CDCR policy that has been at

23 issue since the case began. The court consequently finds that defendants have not shown that

24 they will suffer prejudice justifying denial of the motion to amend. See DCD Programs, Ltd. v.

25 Leighton, 833 F.2d 183, 187 (9th Cir. 1987) (“The party opposing amendment bears the burden

26 of showing prejudice.”).

7

1

In sum, the court finds that plaintiff has shown good cause for filing his motion for leave

2 to file an amended complaint beyond the deadline set in the court’s discovery and scheduling

3 order and that amendment is appropriate under Rule 15.

4 III. Order

5

Accordingly, it hereby is ORDERED that:

6

1. Plaintiff’s April 27, 2011 motion to file an amended complaint (Docket No. 70) is

7 granted; and

8

2. Defendants have 30 days from the date this order is served to respond to the amended

9 complaint.

10 Dated: September 22, 2011.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

8

 Case 2:08-cv-01196-JAM-EFB Document 84 Filed 09/23/11 Page 1 of 40

1 PRISON LAW OFFICE
DONALD SPECTER (SBN 83925)
2 REBEKAH EVENSON (SBN 207825)
1917 Fifth Street
3 Berkeley, California 94710-1916
Telephone: (510) 280-2621
4 Facsimile: (510) 280-2704
dspecter@prisonlaw.com
5 revenson@prisonlaw.com

6
BINGHAM McCUTCHEN, LLP
7 WARREN E. GEORGE (SBN 53588)
MANU PRADHAN (SBN 253026)
8 HEATHER SHOOK (SBN 268716)
Three Embarcadero Center
9 San Francisco, California 94111-4066
Telephone: (415) 393-2000
10

11
Attorneys for Plaintiffs
12
13
14

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

15 ROBERT MITCHELL, ALVARO QUEZADA,
TONY TRUJILLO, and HANIF ABDULLAH, on
16 behalf of themselves and others similarly situated,

Case No. 08-CV-1196-RAJ SECOND AMENDED COMPLAINT

17

Plaintiffs,

CLASS ACTION

18

vs.

JURY TRIAL DEMANDED

19 MATTHEW CATE, SCOTT KERNAN, TERRI
MCDONALD, GEORGE GIURBINO, JAMES
20 TILTON, TOM FELKER, M. WRIGHT, F.
FOULK, D. VANDERVILLE, J. OWEN, D.
21 HELLWIG,

22

Defendants.

23

24

25

26

27

28

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Case 2:08-cv-01196-JAM-EFB Document 84 Filed 09/23/11 Page 2 of 40

1

I. NATURE OF THE ACTION

2

1. This is an action challenging explicit and invidious racial discrimination in California

3 prisons.
4
2. It is the official policy of the California Department of Corrections and Rehabilitation
5
(CDCR) to respond to potential security threats by locking down all members of the involved prisoner’s
6
7 race, regardless of whether all the prisoners in that racial group have any involvement in the incident.

8 During a lockdown – which can last for months or years – prisoners of the affected race are typically

9 locked in their cells twenty-four hours a day, deprived of any outdoor exercise, religious services, visits

10 and even phone calls with family members; all the while, prisoners of other races move freely through
11 their regular activities in the prison. 12
3. Each year, CDCR imposes more than 350 race-based lockdowns. Defendants cannot
13
show that their racially discriminatory lockdown policy is narrowly tailored to serve a compelling state
14
15 interest. CDCR justifies its lockdowns as a means to manage prison violence and prison gangs. But

16 while violence and gangs are serious problems, the blanket race-based lockdowns that Defendants

17 implement are ineffective – and impermissible – responses to those problems. CDCR locks down entire

18 racial groups even when the incidents leading to the lockdown are not racially motivated, and it

19
maintains the lockdowns on entire racial groups without conducting timely individualized assessments to
20
determine if every member of the affected race poses a security risk. These racially discriminatory
21
22 policies exacerbate – rather than ameliorate – racial tensions and violence inside the prisons.

23

4. A separate but related violation arises from the excessive length of the lockdowns. CDCR

24 regularly imposes lockdowns that last for months and years, well beyond the time when any

25 “emergency” situation would have passed. Some lockdowns have lasted as long as ten years. In the last

26 two years, four prisons imposed lockdowns lasting longer than a year, and another eight prisons imposed 27

28

1
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Case 2:08-cv-01196-JAM-EFB Document 84 Filed 09/23/11 Page 3 of 40

1 lockdowns lasting longer than 200 days. More than 80 lockdowns in the California prisons lasted longer

2 than 60 days. There is no legitimate penological interest supporting such excessively lengthy lockdowns.

3

5. CDCR is vastly out of step with other State prison systems. Most state systems isolate

4
those involved in disruptive behavior, and quickly return all other prisoners to normal programming.
5
6. Plaintiffs are California prisoners subject to CDCR’s illegal policy and practice of
6

7 implementing lockdowns based upon race, and maintaining lockdowns for excessive periods of time.

8 Plaintiffs, acting for themselves and all similarly situated prisoners, bring this action pursuant to the

9 Eighth and Fourteenth Amendments to the United States Constitution, seeking declaratory and injunctive

10 relief requiring CDCR to cease implementing race-based and excessively lengthy lockdowns.

11

7. Plaintiff Robert Mitchell further seeks damages against Defendants for the excessively

12
lengthy race-based lockdown that he suffered while housed at High Desert State Prison.
13

II. JURISDICTION
14

15

8. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.

16 Plaintiffs seek declaratory and injunctive relief under 28 U.S.C. §§ 1343, 2201 and 2202, 42 U.S.C. §§

17 1981 and 1983.

18

III. VENUE

19
9. Venue is proper in the Eastern District of California under 28 U.S.C. § 1391(b) because a
20
substantial part of the events giving rise to Plaintiffs’ claims occurred within the judicial district, and
21
22 because several of the Defendants reside in the district.

23

IV. PARTIES

24

10. Plaintiff Robert Mitchell is a prisoner at Folsom State Prison in Folsom, California. Mr.

25 Mitchell suffered deprivations of his Eighth and Fourteenth Amendment rights as a result of a series of

26 race-based lockdowns at California prisons, as described herein. 27

28

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1

11. Plaintiff Alvaro Quezada is a prisoner at California State Prison, Corcoran, in Corcoran,

2 California. Mr. Quezada suffered deprivations of his Eighth and Fourteenth Amendment rights as a

3 result of a series of lockdowns at California prisons, as described herein.
4
12. Plaintiff Tony Trujillo is a prisoner at Ironwood State Prison in Blythe, California. Mr.
5
Trujillo suffered deprivations of his Eighth and Fourteenth Amendment rights as a result of a series of
6
7 race-based lockdowns at California prisons, as described herein.

8

13. Plaintiff Hanif Abdullah is a prisoner at California State Prison, Solano in Vacaville,

9 California. Mr. Abdullah suffered deprivations of his Eighth and Fourteenth Amendment rights as a

10 result of a series of race-based lockdowns at California prisons, as described herein.

11

14. Defendant Matthew Cate is the Secretary of the California Department of Corrections and

12
Rehabilitation (CDCR). He is sued in his official capacity. The CDCR is responsible for the operation
13

of the California state prison system. As Director, Defendant Cate is personally responsible for the
14

15 operation of all the prison facilities, including prison lockdown policies and practices.

16

15. Defendant Scott Kernan is the Undersecretary of CDCR for Operations. He is sued in his

17 official capacity. As Undersecretary, Defendant Kernan is responsible for the operation of all the prison

18 facilities, including prison lockdown policies and practices, and he reviews and approves decisions by
19
individual prisons to impose and maintain lockdowns.
20
16. Defendant Terri McDonald is the Chief Deputy Secretary for Adult Operations. She is
21 22 sued in her official capacity. As Chief Deputy Secretary of Adult Operations, Defendant McDonald is
23 responsible for the operation of all the prison facilities, including prison lockdown policies and practices,

24 and she reviews and approves decisions by individual prisons to impose and maintain lockdowns.

25

17. Defendant George Giurbino is the Director of the CDCR Division of Adult Institutions.

26 He is sued in his official capacity. As Director of the Division of Adult Institutions, Defendant Giurbino
27
is responsible for the operation of all adult prison facilities, including prison lockdown policies and
28

3
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1 practices, and he reviews and approves decisions by individual prisons to impose and maintain

2 lockdowns.

3

18. Defendant James Tilton was the Secretary of CDCR in 2006 and 2007, when Plaintiff

4
Mitchell was subjected to excessively lengthy race-based lockdowns. As Director of CDCR, Defendant
5
Tilton was responsible for the operation of all the prison facilities, including the implementation of
6

7 prison lockdown policies and practices. He is sued in his individual capacity.

8

19. Defendant Tom Felker was the Warden of High Desert State Prison at all relevant times

9 herein. The warden of a prison “is the chief executive officer of that institution, and is responsible for the

10 custody, treatment, training and discipline of all inmates under his or her charge.” 15 C.C.R. §3380(a).
11 Defendant Felker was responsible for implementing the lengthy race-based lockdowns at High Desert 12
State Prison suffered by Plaintiff Mitchell. He is sued in his individual capacity.
13
20. Defendant M. Wright was an Associate Warden at High Desert State Prison at all relevant
14
15 times herein. As Associate Warden, Defendant Wright was responsible for implementing the lengthy

16 race-based lockdowns at High Desert State Prison suffered by Plaintiff Mitchell. He is sued in his

17 individual capacity.

18

21. Defendant F. Foulk was a Facility Captain at High Desert State Prison at all relevant times

19
herein. As Facility Captain, Defendant Foulk was responsible for implementing the lengthy race-based
20
lockdowns at High Desert State Prison suffered by Plaintiff Mitchell. He is sued in his individual
21
22 capacity.

23

22. Defendant D. Vanderville was a Facility Captain at High Desert State Prison at all

24 relevant times herein. As Facility Captain, Defendant Vanderville was responsible for implementing the

25 lengthy race-based lockdowns at High Desert State Prison suffered by Plaintiff Mitchell. He is sued in

26 his individual capacity. 27

28

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1

23. Defendant J. Owen was a correctional counselor at High Desert State Prison at all relevant

2 times herein. Plaintiff Mitchell sues him in his individual capacity.

3

24. Defendant D. Hellwig was a correctional counselor at High Desert State Prison at all

4
relevant times herein. Plaintiff Mitchell sues him in his individual capacity.
5
V. CLASS ACTION ALLEGATIONS
6

7

25. Plaintiffs Mitchell, Quezada, Trujillo, and Abdullah (“the Named Plaintiffs”) bring this

8 action on their own behalf and, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, on

9 behalf of two classes of prisoners:

10

a) all prisoners who are now or will in the future be housed in a men’s prison under

11 the jurisdiction of CDCR and who are now or will in the future be subject to CDCR’s policy and practice
12
of implementing race-based lockdowns; and
13
b) all prisoners who are now or will in the future be housed in a men’s prison under
14

15 the jurisdiction of CDCR and who are now or will in the future be subject to CDCR’s policy and practice

16 of implementing excessively lengthy lockdowns.

17

26. The size of the classes are so numerous that joinder of all members is impracticable.

18 There are more than 150,000 men who are prisoners under the jurisdiction of CDCR. Each year, CDCR
19
implements more than 350 race-based lockdowns, and dozens of excessively-lengthy lockdowns,
20
affecting tens of thousands of male prisoners. CDCR implements excessively lengthy and race-based
21 22 lockdowns frequently and at all men’s prisons. All men who are CDCR prisoners are at risk of being
23 subjected to CDCR’s policy and practice of implementing race-based and excessively lengthy

24 lockdowns.

25

27. There are questions of law and fact common to the members of the class, including 1)

26 whether Defendants’ policy and practice of imposing race-based lockdowns constitutes racial
27
discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United
28

5
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1 States Constitution, and 2) whether Defendants’ policy and practice of imposing excessively lengthy

2 lockdowns deprives Plaintiffs of their Eighth Amendment Right to be free from cruel and unusual

3 punishment.

4
28. Defendants have acted on grounds that apply generally to the class, so that final injunctive
5
relief or corresponding declaratory relief is appropriate respecting the class as a whole.
6

7

29. The claims of the Named Plaintiffs are typical of the claims of the classes, and the Named

8 Plaintiffs, though counsel, will fairly and adequately protect the interests of the classes.

9

VI. FACTUAL ALLEGATIONS

10

A. CDCR’s Policy and Practice of Imposing Racially Discriminatory Lockdowns

11

30. California prisons have an express policy and practice of implementing lockdowns in a

12
racially discriminatory manner. CDCR freely acknowledges that its policy is to “manage[] inmate
13

populations by ethnicity and subcultures.” Appendix A. Thus, it is official CDCR policy that “when
14

15 there is an incident involving any race, all inmates of that race are locked up.” Appendix B; Appendix C

16 (same). CDCR acknowledges that the “unfortunate[]” result of this policy is that “those inmates not

17 involved in the violence may be impacted by the actions of a few.” Appendix D.

18

31. In order to implement their racially discriminatory policies, Defendants label each

19
prisoner by race from the moment they step foot in prison. Pursuant to CDCR policy, prisoners are
20
divided into the following racial categories: “Black,” “White,” “Hispanic,” and “Other.” Under the
21
22 direction and supervision of Defendants, CDCR personnel note the race of each prisoner transferred to

23 CDCR custody on an “initial housing form,” and renew that notation on a myriad of other paperwork

24 used by CDCR personnel throughout the prison system.

25

32. Some men’s prisons, including High Desert State Prison, California State Prison, Solano,

26 Ironwood State Prison, California State Prison, Corcoran, and others, have an official policy of posting a
27
color-coded sign outside each prison cell to show the race of the prisoners housed therein. Other prisons,
28

6
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Case 2:08-cv-01196-JAM-EFB Document 84 Filed 09/23/11 Page 8 of 40

1 including Kern Valley State Prison, have an official policy of keeping color-coded cards with prisoners’

2 names on them at the correctional officers’ station in each prison unit. These tracking mechanisms

3 enable Defendants to segregate prisoners and lock them down by race.
4
33. When a prison imposes a lockdown, CDCR policy requires that the prison provide regular
5
“status reports” to CDCR headquarters, including Defendants, describing each lockdown. (As used
6
7 herein, the term “lockdown” refers to restrictions on the rights or privileges of prisoners, including rights

8 or privileges with respect to movement, feeding, ducats, visiting, work, shower, medical, library,

9 dayroom, recreation, canteen, packages, phone calls, or religious services, which is imposed by the

10 prison as a result of an incident at the prison, and that is applied to a group of inmates. As used herein,
11 the term “lockdown” refers to all such restrictions, whether they are formally labeled by the prison a 12
“lockdown,” “modified program,” “state of emergency” or other term.)
13
34. The form that CDCR requires prisons to use for lockdown “status reports” promotes racial
14
15 discrimination. The form has a field in which the institution is required to identify the “inmates affected”

16 by the lockdown. In that field, the institution may choose from the following pre-printed categories:

17 “All, Black, White, Hispanic,” and “Other.” Appendix E.

18

35. On an annual basis, Defendants impose more than 350 lockdowns upon groups identified

19
solely by their shared racial or ethnic characteristics. Race-based lockdowns occur at all men’s prisons
20
under CDCR’s jurisdiction. Men who are Black, White, Hispanic, American Indian, and Asian all
21
22 suffered from race-based lockdowns.

23

36. The race-based lockdowns cause Plaintiffs to suffer from extreme anxiety and depression

24 – the result of being locked up for 24-hours per day in a tiny cell, typically with another prisoner, where

25 both prisoners must eat, use the toilet, sleep, exercise and carry on all aspects of daily life, even though

26 there is barely enough room for two prisoners to stand up at the same time – and severe humiliation, as a 27

28

7
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1 result of being segregated and punished solely on account of race, while members of other racial groups

2 move freely throughout the prison.

3

37. Defendants maintain their racially discriminatory policies by contending that all prisoners

4
of a racial group will fight with other prisoners if released from their cells during a lockdown. However,
5
Defendants do not make individualized determinations of risk when imposing blanket race-based
6

7 lockdowns. Since many prisoners do not engage in violence, much less racial violence, and pose no

8 security threat when members of their own race are involved in an incident, Defendants’ policy is not

9 narrowly drawn to serve a compelling interest. To the contrary, Defendants’ racially discriminatory

10 lockdown policy foments racial tension and violence.

11

38. In July 2010, Plaintiffs’ counsel wrote to Defendant Cate asking that he modify the State’s

12
lockdown policy. Defendant Cate and his subordinates met with Plaintiffs’ counsel, and the Parties
13

discussed the illegal lockdowns on several occasions over the following eight months, but Defendants did
14

15 not modify their lockdown policies.

16

39. In January 2011, Plaintiffs’ counsel informed Defendants of their intent to file suit to stop

17 the ongoing race-based lockdowns if the matter was not resolved within thirty days. Defendants did not

18 agree to stop imposing race-based lockdowns, nor did they propose any other alternatives.
19
B. CDCR’s Policy and Practice of Imposing Excessively Lengthy Lockdowns
20
40. Not only do they illegally lock prisoners down by race, Defendants also impose
21 22 lockdowns frequently, and for excessively lengthy periods of time. In this respect, too, California is out
23 of step with other prison systems. Other state prison systems impose lockdowns very infrequently; when

24 an incident occurs, they isolate those involved in the disruptive behavior and promptly return all other

25 prisoners to normal programming.

26

41. CDCR regularly imposes lockdowns that last for months and years. For example, in the

27
last two years, California State Prison, Sacramento, imposed a single lockdown that lasted for more than
28

8
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Case 2:08-cv-01196-JAM-EFB Document 84 Filed 09/23/11 Page 10 of 40

1 2,400 days; California State Prison, Corcoran, imposed a lockdown lasting more than 1,300 days; Avenal

2 State Prison imposed a lockdown lasting more than 500 days; Pleasant Valley State Prison imposed a

3 lockdown lasting more than 400 days; at least eight other prisons imposed lockdowns lasting more than
4
200 days. More than 80 lockdowns in California prisons lasted longer than 60 days.
5
42. In addition to the lengthy individual lockdowns, prisons throughout the California prison
6
7 system regularly impose multiple lockdowns of shorter duration but which, imposed back-to-back, result

8 in deprivation of outdoor exercise, religious services, family visits and other rights and privileges for

9 months and years at a time.

10

43. There is no legitimate penological interest supporting such excessively lengthy

11 lockdowns.
12
44. During the lockdowns, Defendants typically confine Plaintiffs to their cells for 24-hours
13
per day, where Plaintiffs must eat, use the toilet, sleep, and carry on all aspects of daily life, usually with
14

15 a cellmate. Defendants deny Plaintiffs any access to outdoor exercise for months or years at a time,

16 during which time muscles atrophy and cramp, and prisoners often become physically and mentally ill.

17 Defendants prohibit most prisoners on lockdown from visiting with or telephoning their families, and

18 deny Plaintiffs access to even basic prison programs, such as religious services, education programs, and
19
drug and alcohol treatment programs.
20
45. Defendants impose the lockdowns and attendant deprivations on those prisoners who they
21 22 do not suspect of being involved in the incident giving rise to the lockdown. Prisoners who are
23 suspected of being involved in the incident receive different – and in some instances more favorable –

24 treatment.

25

46. Prisoners suspected of being involved in violent incidents are typically separated from the

26 general population, investigated, and, if found guilty of a rules violation, disciplined. Most often, these
27
individuals are sent to an Administrative Segregation Unit or a Security Housing Unit during the
28

9
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1 investigation and as punishment for rules violations. In Administrative Segregation and Security

2 Housing Units, prisoners are guaranteed certain basic rights, including at least one hour of out-of-cell

3 time each day and outdoor exercise at least three days per week for a total of 10 hours per week. 15
4
C.C.R. § 3433. They are also allowed non-contact visits with their families, and provided with access to
5
programs such as education and drug and alcohol counseling. Id. All of those basic privileges are
6
7 typically denied to the prisoners on lockdown who are not suspected of being involved in the incident.

8

C. Named Plaintiff Allegations

9

Plaintiff Robert Mitchell

10

47. Plaintiff Robert Mitchell is an African American prisoner who has suffered from illegal

11 race-based lockdowns – and excessively lengthy lockdowns – on account of his race.
12
48. Mr. Mitchell was first transferred to CDCR custody in 2000. Between March 2006 and
13
December 2007, Mr. Mitchell was housed in High Desert State Prison. From December 2007 through
14

15 April 2010, he was housed in the California State Prison, Sacramento. From April 2010 to the present,

16 Mr. Mitchell has been housed in Folsom State Prison. Throughout the decade that Mr. Mitchell has been

17 incarcerated, CDCR documents have always identified him as “Black.”

18

49. High Desert State Prison posted a color-coded sign outside Mr. Mitchell’s cell door to

19
inform all staff that a “Black” prisoner was housed there. This sign helped the facility to impose its

20
racially discriminatory lockdowns.
21

22

50. Between May 2006 and December 2007, High Desert State Prison imposed an

23 overlapping series of lockdowns that resulted in prisoners identified as “Black”– including Mr. Mitchell

24 – being locked down nearly continuously over the entire 18-month period. Defendants Felker, Wright,

25 Vanderville, Foulk, Owen and Hellwig were responsible for implementing these lockdowns, pursuant to

26 a policy and practice implemented by Defendant Tilton. Mr. Mitchell was not alleged to have any
27
involvement in any of the incidents giving rise to the lockdowns, and was not alleged to be a member or
28

10
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1 associate of any gang or disruptive group. Defendants locked Mr. Mitchell down solely on account of his

2 race.

3

51. Prior to the lockdowns, Mr. Mitchell had been suffering from an injury to his hip and leg

4
that left him mobility impaired, and he was under doctor’s orders – contained in his prison medical
5
records – stating that he must ambulate and exercise regularly. Defendants Felker, Wright, Vanderville,
6

7 Foulk, Owen and Hellwig were aware of Mr. Mitchell’s medical need to exercise, but nonetheless kept

8 Mr. Mitchell on lockdown from May 2006 through December 2007, preventing him from exercising as

9 required. As a result, Mr. Mitchell suffered physical injuries including muscle atrophy, loss of bone

10 density, swelling to the left leg, hip and ankle, and severe pain. In addition, Mr. Mitchell suffered severe
11 headaches, dizziness, blurred vision, nightmares, humiliation, and emotional distress, and continued 12
anxiety as a result of being confined to his tiny cell for 24-hours per day for months on end.
13
52. Mr. Mitchell filed a grievance about the lockdowns, and exhausted his administrative
14
15 remedies. The final “director’s level” denial of Mr. Mitchell appeal, dated June 26, 2007, and attached

16 hereto as Appendix C, states that “the CDCR policy is that when there is an incident involving any race,

17 all inmates of that race are locked up.”

18

53. Since leaving High Desert State Prison, Mr. Mitchell has been subjected to other race

19
based lockdowns, including race-based lockdowns at Folsom State Prison in July, August, September,
20
October and November 2010. Mr. Mitchell was not involved in the incidents giving rise to these
21
22 lockdowns, but was locked down solely on the basis of his race.

23

Plaintiff Alvaro Quezada

24

54. Plaintiff Alvaro Quezada has been incarcerated by CDCR since 2001. He was housed at

25 various institutions between 2001 and 2005. In 2005, he transferred to Kern Valley State Prison, and in

26 January 2011 he transferred to California State Prison, Corcoran, where he now resides. Throughout the 27

28

11
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1 decade that Mr. Quezada has been incarcerated, CDCR documents have variously identified Mr.

2 Quezada as “Hispanic” and Hispanic “Other.”

3

55. Mr. Quezada has never been a member of a gang, and official CDCR documents confirm

4
that Mr. Quezada is not suspected of being a member or affiliate of any gang or disruptive group. Nor
5
has Mr. Quezada ever been involved in any incident giving rise to a lockdown of a CDCR prison.
6

7 Nonetheless, pursuant to CDCR policy, Mr. Quezada has been locked down for lengthy periods of time

8 solely because of his ethnicity.

9

56. Because he is classified as Hispanic “Other,” Mr. Quezada has been locked down when

10 CDCR locks down all “Hispanics” and he has also been locked down when CDCR locks down prisoners
11 with the “ethnicity” of “Other.” 12
57. In February, 2010, after an incident involving a prisoner classified as “Asian Other,” Kern
13
Valley State Prison imposed a lockdown on all prisoners classified with the ethnicity “Other,” including
14
15 Mr. Quezada. Mr. Quezada was not involved in the incident giving rise to the lockdown, but for a period

16 of approximately 90 days, Mr. Quezada and all prisoners identified by CDCR as Hispanic “Others” were

17 locked down solely because of their racial classification.

18

58. In March 2010, Mr. Quezada filed an appeal challenging the February 2010 race-based

19
lockdown. His appeal was denied. Mr. Quezada exhausted his appeal. The final “director’s level”
20
denial of Mr. Quezada’s appeal, attached hereto as Appendix A, acknowledges that CDCR’s policy is to
21
22 “manage[] inmate populations by ethnicity and subcultures.”

23

59. Since that time, Mr. Quezada has been subjected to other race-based lockdowns pursuant

24 to CDCR policy, including race-based lockdowns at Kern Valley State Prison in December 2010 and

25 January 2011. Mr. Quezada was not involved in the incidents giving rise to these lockdowns, but was

26 locked down solely on the basis of his race. 27

28

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1

60. During the lockdowns, Mr. Quezada was typically confined to his cell for 24-hours per

2 day, deprived of outdoor exercise, and deprived of visits with his family. Each of the lockdowns have

3 exacted a serious toll on Mr. Quezada. The lockdowns caused Mr. Quezada to suffer from sleep

4
disorders, headaches, anxiety, exhaustion, numbness and depression, and these effects have lingered for a
5
significant period of time even after the lockdowns were lifted.
6

7

Plaintiff Tony Trujillo

8

61. Plaintiff Tony Trujillo has been incarcerated by CDCR since 1982. He is identified by

9 CDCR as “Southern Hispanic” because he is of Hispanic origin and comes from Southern California. He

10 has never been a member, affiliate or associate of any gang or disruptive group. Mr. Trujillo has suffered

11 from illegal-race based lockdowns – and excessively lengthy lockdowns – on account of his ethnicity.

12
62. Mr. Trujillo has been housed at Ironwood State Prison since 2007. In that time,

13
Defendants have locked down Mr. Trujillo on at least four occasions solely because of his ethnicity.
14

15

63. Mr. Trujillo and all prisoners classified as “Hispanic” were locked down pursuant to

16 CDCR policy from approximately October 2007 through February 2008, in July 2009, in December

17 2009, from February 2010 through March 2010, and from October 2010 through November 2010. Mr.

18 Trujillo was not involved in any of the incidents giving rise to these lockdowns.

19

64. During the lockdowns, Mr. Trujillo was typically confined to his cell for 24-hours per day,

20
deprived of outdoor exercise, and denied visits and phone calls with his family. As a result of these
21

deprivations, and the explicitly racial nature of the lockdowns, Mr. Trujillo felt an overwhelming sense
22

23 of anxiety, frustration, stress, and deep humiliation.

24

65. Also, during the lockdowns, Mr. Trujillo was prevented from completing educational

25 programs, and was unable to participate in drug and alcohol treatment programs, which may negatively

26 impact his ability to obtain parole. 27

28

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1

66. Mr. Trujillo exhausted his administrative remedies. The final “director’s level” denial of

2 Mr. Trujillo’s appeal, attached hereto as Appendix D, acknowledges that Defendants “placed the

3 Hispanic inmate population on modified program following an incident where the Hispanic population

4
was the only race involved in the incident.” It acknowledges that as a result of this race-based policy,
5
“those inmates not involved in the violence may be impacted by the actions of a few.”
6

7

Plaintiff Hanif Abdullah

8

67. Plaintiff Hanif Abdullah is an African American prisoner who has been incarcerated by

9 CDCR since 2000. He has been subjected to many race-based lockdowns pursuant to CDCR policy

10 during that time.

11

68. Mr. Abdullah is currently housed in Facility 1 at California State Prison, Solano, where he

12
has been living since 2008. California State Prison, Solano posts color-coded signs on each cell door to
13
denote the race of prisoners living in them. Mr. Abdullah and his cellmate are both classified by CDCR
14
15 as “Black,” and so the prison has posted a blue sign on his door to denote that Black prisoners live there.

16

69. The color-coded signs facilitate the prison’s regular imposition of race-based lockdowns.

17 Most recently, Defendants locked down Mr. Abdullah and all prisoners in his unit who are classified as

18 “Black” from June 2009 through July 2009, from May 2010 through June 2010, for an additional two
19 weeks in July 2010, from on or about October 2010 through at least November 2010, and from March 20
2011 through April 2011. Mr. Abdullah suffered from these race-based lockdowns even though he is not
21
a member or affiliate of any gang or disruptive group, and had no involvement in any of the incidents
22
23 giving rise to the lockdowns.

24

70. As a result of the limited access to medical care during the lockdowns, Mr. Abdullah was

25 unable to obtain regular dressing changes for a wound on his leg, causing the leg wound to become

26 infected, impeding his recovery, and causing physical injury and pain and suffering. 27

28

14
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1

71. Mr. Abdullah is a devout Muslim, and during the lockdowns he was unable to attend

2 Islamic religious services.

3

72. While on lockdown, Mr. Abdullah typically spent 24-hours each day in his cell with his

4
cellmate. His cell is a tiny room with bunk beds, a toilet, desk, and a sink, and with barely enough room
5
left over for the two men to stand up at the same time. That small box was where Mr. Abdullah and his
6

7 cellmate slept, ate, used the toilet, washed themselves, prayed, and carried on all aspects of daily life.

8 They were allowed out of their cell for less than an hour every several days to shower, or to obtain

9 medical care, and then they were returned back to their tiny cell. Mr. Abdullah’s cell door has a small

10 window facing the interior of the housing unit, and through that window Mr. Abdullah could see
11 prisoners of other races – White, Hispanic, and Other – walking freely throughout the unit, going to 12
programs and to exercise on the yard according to normal prison schedules. He could hear staff
13
announcing the privileges available to other races, “School release for everyone except those [Blacks] on
14
15 lockdown,” “Yard release for everyone except those [Blacks] on lockdown.” Mr. Abdullah suffered

16 from the indignity, humiliation, and inhumanity, of the stark race discrimination. As the lockdowns wore

17 on, Mr. Abdullah suffered from anxiety and depression after enduring weeks of confinement to his cell,

18 even as his leg became progressively more painful. He began to sleep for ever-longer stretches of time to
19
block the pain and humiliation. When he was awake, the anxiety returned.
20
73. Mr. Abdullah filed an administrative appeal, and exhausted his administrative remedies.
21 22 The final “director’s level” denial of Mr. Abdullah’s appeal, dated February 24, 2010 and attached hereto
23 as Appendix B, states that “the CDCR policy is that when there is an incident involving any race, all

24 inmates of that race are locked up.”

25

26

27

28

15
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1

VII. CLAIM FOR RELIEF NO. 1

2

(All Plaintiffs and the Plaintiff class v. Defendants Cate, Kernan, McDonald and Giurbino)

3

(injunctive relief pursuant to Section 1983; Fourteenth Amendment Equal Protection Clause)

4

74. Plaintiffs reallege and incorporate by reference all the previous numbered paragraphs as if

5 fully set forth below.
6
75. Defendants have violated Plaintiffs’ rights under the Equal Protection Clause of the
7
Fourteenth Amendment to the U.S. Constitution. Specifically, Defendants have designed, implemented,
8
9 and administered a policy and practice that causes Plaintiffs to be locked down based on race, and this

10 policy and practice is not narrowly tailored to serve a compelling state interest.

11

76. The conduct described herein has been and continues to be performed by Defendants and

12 their agents or employees in their official capacities under color of state law and is the proximate cause
13 of the Named Plaintiffs’ and the Plaintiff Class’s ongoing deprivation of rights secured by the United 14
States Constitution under the Equal Protection Clause of the Fourteenth Amendment.
15
77. The constitutional deprivations described herein are the proximate result of the official
16
17 policies, customs and pervasive practices of Defendants.

18

78. Defendants have been and are aware of all of the deprivations complained of herein, and

19 have condoned or been deliberately indifferent to such conduct.

20

79. The Named Plaintiffs and many Plaintiff class members have already been subjected to

21
discriminatory race-based lockdowns, and all Plaintiffs are in imminent danger of being subjected to
22
discriminatory race-based lockdowns in the immediate future because Defendants continue to impose
23
24 race-based lockdowns pursuant to their discriminatory policies and practices. Defendants have imposed

25 race-based lockdowns very frequently (approximately one per day) at prisons across the State. Based on

26 Defendants’ past conduct, and their official policies and practices, Defendants are likely to continue

27 imposing lockdowns with similar frequency in the future. Plaintiffs are unable to affect the timing,

28

16
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1 frequency or length of the lockdowns by their own conduct, since Defendants impose the lockdowns on

2 Plaintiffs solely based on their race or ethnicity.

3

80. Plaintiffs are entitled to reasonable attorneys’ fees, litigation expenses and costs for

4
maintaining this claim pursuant to 42 U.S.C. § 1988.
5
VIII. CLAIM FOR RELIEF NO. 2
6

7

(All Plaintiffs and the Plaintiff class v. Defendants Cate, Kernan, McDonald and Giurbino)

8

(injunctive relief pursuant to Section 1983; Eighth Amendment)

9

81. Plaintiffs reallege and incorporate by reference all the previous numbered paragraphs as if

10 fully set forth below.

11

82. Defendants have violated Plaintiffs’ rights under the Eighth Amendment to the U.S.

12 Constitution. Specifically, Defendants have designed, implemented, and administered a policy and
13 practice that causes Plaintiffs to be locked down and deprived of basic human needs for excessive 14
periods of time.
15
83. The conduct described herein has been and continues to be performed by Defendants and
16
17 their agents or employees in their official capacities under color of state law and is the proximate cause

18 of the Named Plaintiffs’ and the Plaintiff Class’s ongoing deprivation of rights secured by the Eighth

19 Amendment.

20

84. The constitutional deprivations described herein are the proximate result of the official

21
policies, customs and pervasive practices of Defendants.
22
85. Defendants have been and are aware of all of the deprivations complained of herein, and
23
24 have condoned or been deliberately indifferent to such conduct.

25

86. The Named Plaintiffs and many Plaintiff class members have already been subjected to

26 excessively lengthy lockdowns, and all Plaintiffs are in imminent danger of being subjected to

27 excessively lengthy lockdowns in the immediate future because Defendants continue to impose
28 excessively lengthy lockdowns pursuant to their ongoing lockdown policies and practices. Defendants 17
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1 have imposed excessively lengthy lockdowns frequently. Based on Defendants’ past conduct, and their

2 official policies and practices, Defendants are likely to continue imposing excessively lengthy lockdowns

3 with similar frequency in the future. Plaintiffs are unable to affect the timing, frequency or length of the

4
lockdowns by their own conduct, since they are not involved in the incidents giving rise to the
5
lockdowns.
6

7

87. Plaintiffs are entitled to reasonable attorneys’ fees, litigation expenses and costs for

8 maintaining this claim pursuant to 42 U.S.C. § 1988.

9

IX. CLAIM FOR RELIEF NO. 3

10

(Plaintiff Mitchell on his own behalf vs. Defendants Tilton, Felker, Wright, Vanderville, Foulk,

11

Owen and Hellwig, in their individual capacities)

12

(Section 1983; Denial of Rights under the 8th and14th Amendments to the Constitution)

13

88. Plaintiffs reallege and incorporate by reference all the previous numbered paragraphs as if

14 fully set forth below.
15
89. Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig implemented,
16
ratified and approved race-based and excessively lengthy lockdowns in violation of Mr. Mitchell’s
17

18 Fourteenth Amendment right to Equal Protection of the Laws and Eighth Amendment Right to be free

19 from cruel and unusual punishment.

20

90. The conduct described herein was unnecessary, unreasonable, excessive, deliberate, and is

21 the proximate cause of the deprivation of Plaintiff’s constitutional rights.
22
91. The aforementioned acts of Defendants caused Mr. Mitchell to suffer physical and
23
emotional injury, were humiliating and antithetical to human dignity, deprived Plaintiff of the minimal
24 25 civilized measures of life’s necessities, and were done with deliberate indifference to and callous
26 disregard for Plaintiffs rights.

27

92. Plaintiff Mitchell is entitled to recover nominal, compensatory, and punitive damages, and

28 pre-and post-judgment interest, against the individual named Defendants.

18
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1

93. Plaintiff is entitled to reasonable attorneys’ fees, litigation expenses and costs for

2 maintaining this claim pursuant to 42 U.S.C. § 1988.

3

X. CLAIM FOR RELIEF NO. 4

4
(Plaintiff Mitchell on his own behalf vs. Defendants Tilton, Felker, Wright, Vanderville, Foulk,
5
Owen and Hellwig)
6

7

(Intentional Infliction of Emotional Distress)

8

94. Plaintiffs reallege and incorporate by reference all the previous numbered paragraphs as if

9 fully set forth below.

10

95. Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig intentionally

11 implemented lengthy race-based lockdowns. That conduct was outrageous, and was made with reckless
12
disregard of the probability that Plaintiff Mitchell would suffer emotional distress as a result.
13
96. Plaintiff Mitchell suffered physical injuries and emotional distress caused by defendants’
14

15 conduct.

16

97. Plaintiff submitted a timely claim for damages with the State Government Claims Board

17 (Claim No. G-569735), which was denied in its entirety on March 20, 2008.

18

98. Plaintiff Mitchell is entitled to recover nominal, compensatory, and punitive damages, and

19
pre-and post-judgment interest, as well as fees, expenses and costs of litigation, against the individual

20
named Defendants.
21

22

XI. CLAIM FOR RELIEF NO. 5

23

(Plaintiff Mitchell on his own behalf vs. Defendants Tilton Felker, Wright, Vanderville, Foulk,

24

Owen and Hellwig, in their individual capacities)

25

(Negligence, Negligent Infliction of Emotional Distress)

26

99. Plaintiffs reallege and incorporate by reference all the previous numbered paragraphs as if

27
fully set forth below.
28

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1

100. Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig were negligent

2 and negligently inflicted emotional distress on Mr. Mitchell by implementing excessively lengthy and

3 race-based lockdowns, and failing to end those lockdowns in a timely manner.
4
101. Defendants Tilton, Felker, Faulk and Vanderville owed a legal duty of care to Mr.
5
Mitchell, and breached that duty by imposing excessively lengthy and race-based lockdowns,
6
7 disregarding the high probability that their conduct would likely result in physical injuries and emotional

8 distress, shock and anguish to Plaintiff Mitchell.

9

102. Defendants’ actions were unreasonable under the circumstances.

10

103. Defendants’ actions caused Mr. Mitchell to suffer physical and emotional injury, as

11 alleged herein.
12
104. Plaintiff submitted a timely claim for damages with the State Government Claims Board
13
(Claim No. G-569735), which was denied in its entirety on March 20, 2008.
14

15

105. Plaintiff Mitchell is entitled to recover nominal, compensatory, and punitive damages, and

16 pre-and post-judgment interest, as well as fees, expenses and costs of litigation, against the individual

17 named Defendants.

18

XII. PRAYER FOR RELIEF

19
WHEREFORE, the Named Plaintiffs and the class they represent request that this Court grant them the
20
following relief:
21

22

(a) Declare the suit is maintainable as a class action pursuant to Federal Rule of Civil

23 Procedure 23(b)(2);

24

(b) Adjudge and declare that the acts, omissions, policies, and conditions described above are

25
in violation of the Eighth and Fourteenth Amendments, which grant constitutional protection to the
26
Plaintiffs and the classes they represent;
27

28

20
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1

(c) Preliminarily and permanently enjoin Defendants their agents, employees and all persons

2 acting in concert with them, from subjecting the named Plaintiffs and the class they represent to the

3 unconstitutional and unlawful acts, omissions, policies, and conditions described above;

4
(d) Award Plaintiff Mitchell monetary damages, compensatory and punitive, in an amount to
5
be determined at trial;
6

7

(e) Award Plaintiffs the costs of this suit, and reasonable attorneys’ fees and litigation

8 expenses pursuant to 42 U.S.C. § 1988 and any other applicable statute;

9

(f) Retain jurisdiction of this case until Defendants have fully complied with the orders of

10 this Court, and there is a reasonable assurance that Defendants will continue to comply in the future
11 absent continuing jurisdiction; and 12
(g) Award such other and further relief as the Court deems just and proper.
13

14
Dated: April 27, 2011
15
16
17

Respectfully submitted, PRISON LAW OFFICE /s/ Rebekah Evenson Rebekah Evenson Attorney for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28

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 1

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8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT MITCHELL,

12

Plaintiff,

13

v.

14 TOM FELKER, et al.,

15

Defendants.

16

17

) Case No. 2:08-CV-1196-JAM-EFB ) ) ORDER DENYING DEFENDANTS’ ) MOTION FOR RECONSIDERATION ) ) ) ) ) ) ) )

18

This matter is before the Court on Defendants’ Tom Felker, J.

19 Walker, C. Buckley, D. Vanderville, D. Leiber, J. Mayfield, A.

20 Masuret, T. Barnard, J. Owen, D. Hellwig, T. Kimzey, D. Cade, R.

21 Blanthorn, R. Beamon, T. Lockwood, J. McClure, J. Tilton, M. Wright

22 and F. Foulk (collectively “Defendants”) Request for

23 Reconsideration by the District Court of the Magistrate Judge’s

24 Ruling (Doc. #86). Defendants seek reconsideration of the

25 Magistrate Judge’s September 22, 2011 order granting Plaintiff

26 leave to amend his complaint to add additional parties, dismiss

27 some parties, allege certain claims on behalf of a state-wide

28 class, and dismiss some claims (Doc. #83). Plaintiff Robert

1

1 Mitchell (“Plaintiff”) opposes the request (Doc. #89).

2

Eastern District of California Local Rule 303(f) and Federal

3 Rule of Civil Procedure 72(a) provide that the District Court may

4 modify or set aside a magistrate judge’s order if the order is

5 clearly erroneous or contrary to law. Having reviewed the papers,

6 the Court does not find the Magistrate Judge’s order to be clearly

7 erroneous or contrary to law. Accordingly, the Defendants’ Request

8 for Reconsideration is DENIED.

9

IT IS SO ORDERED.

10 Dated: October 27, 2011 11 12

____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE

13

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15

16

17

18

19

20

21

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2

 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT MITCHELL, et al.,

11

Plaintiffs,

No. 2:08-cv-1196 JAM EFB P

12

vs.

13 T. FELKER, et al.,

14

Defendants.

FINDINGS AND RECOMMENDATIONS

15

/

16

This case is before the undersigned pursuant to Eastern District of California Local Rule

17 302(c)(17). See 28 U.S.C. § 636(b)(1). It proceeds on the second amended complaint filed by

18 plaintiffs Mitchell, Abdullah, Trujillo, and Quezada (“plaintiffs”). The case was before the

19 undersigned on January 11, 2012, for a hearing on defendants Cate, Kernan, McDonald,

20 Giurbino, Tilton, Felker, Wright, Foulk, Vanderville, Owen, and Hellwig’s (“defendants”)

21 motion to dismiss. Attorneys Damon McClain and Christopher Becker appeared at the hearing

22 on behalf of defendants; attorneys Rebekah Evenson and Donald Spector appeared on behalf of

23 plaintiffs. For the reasons set forth herein, it is recommended that the motion be granted in part

24 and denied in part.

25 ////

26 ////

1

1 I. PLAINTIFFS’ CLAIMS

2

Plaintiffs are state prisoners proceeding through counsel in an action brought under 42

3 U.S.C. § 1983. In the second amended complaint, plaintiffs challenge allegedly race-based and

4 excessively lengthy lockdowns in California prisons. Each of the four plaintiffs makes specific

5 allegations regarding the lockdown conditions that he experienced. See generally Second Am.

6 Compl. (“Dckt. No. 84”). Based on those allegations, discussed in more detail below, plaintiffs

7 claim that defendants have violated plaintiffs’ rights under the Equal Protection Clause of the

8 Fourteenth Amendment because they have “designed, implemented, and administered a policy

9 and practice that causes Plaintiffs to be locked down based on race, and this policy and practice

10 is not narrowly tailored to serve a compelling state interest.” Id. ¶ 75. Plaintiffs also claim that

11 defendants have violated their rights under the Eighth Amendment because their lockdown

12 policy and practice “causes Plaintiffs to be locked down and deprived of basic human needs for

13 excessive periods of time.” Id. ¶ 82. Plaintiffs seek to enjoin the lockdown policy. Id. ¶¶ 74-87.

14 Plaintiff Mitchell also seeks damages on his Eighth Amendment and Equal Protection claims, as

15 well as his state law claims of negligence and negligent and intentional infliction of emotional 16 distress.1 Id. ¶¶ 88-105.

17 II. DEFENDANTS’ MOTION TO DISMISS

18

Defendants move to dismiss some of plaintiffs’ Eighth and Fourteenth Amendment

19 claims under the unenumerated portion of Rule 12(b) of the Federal Rules of Civil Procedure

20 (“Rule”) for failure to exhaust available administrative remedies before filing suit as required by

21 the Prison Litigation Reform Act (PLRA). Defendants also move to dismiss plaintiff Mitchell’s

22 state law claims, arguing that Mitchell (1) failed to exhaust his administrative remedies as

23 required by state law; (2) failed to comply with the California Government Claims Act; and (3)

24

25

1 Plaintiff Mitchell’s federal and state law claims for damages are based on the High

Desert State Prison lockdowns allegedly in place from May 2006 through December 2007. See 26 Dckt. No. 84 ¶¶ 18-24, 50, Claims 3, 4, 5.

2

1 because defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen and Hellwig have

2 discretionary act immunity under California Government Code § 820.2. See generally Mot. to

3 Dism. (“Dckt. No. 92-1”).

4

A. Exhaustion of Eighth and Fourteenth Amendment Claims

5

First, defendants contend that plaintiffs Mitchell, Abdullah, and Trujillo did not exhaust

6 their Eighth Amendment claims because their inmate appeals did not describe or even mention

7 the alleged conditions giving rise to their Eighth Amendment claims. Dckt. No. 92-1 at 7-11.

8 Second, defendants argue that none of the plaintiffs exhausted their equal protection or Eighth

9 Amendment claims that are based on lockdowns for which they never filed administrative 10 appeals.2 Id. at 12-14.

11

1. Exhaustion Under the PLRA

12

The PLRA provides that “[n]o action shall be brought with respect to prison conditions

13 [under section 1983 of this title] until such administrative remedies as are available are

14 exhausted.” 42 U.S.C. § 1997e(a). “Prison conditions” subject to the exhaustion requirement

15 have been defined broadly as “the effects of actions by government officials on the lives of

16 persons confined in prison . . . .” 18 U.S.C. § 3626(g)(2); Smith v. Zachary, 255 F.3d 446, 449

17 (7th Cir. 2001); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002). To satisfy the

18 exhaustion requirement, a grievance must alert prison officials to the claims the plaintiff has

19 included in the complaint, but need only provide the level of detail required by the grievance

20 system itself. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Porter v. Nussle, 534 U.S. 516, 524-

21
2 In their reply brief, defendants stress that “Plaintiffs do not explain why they cannot 22 seek injunctive relief based on a single, grieved modified program,” suggesting that a plaintiff
need only exhaust administrative remedies as to one allegedly race-based lockdown before 23 seeking injunctive relief on the grounds that the alleged lockdown policy is unconstitutional.
Defs.’ Reply to Pls.’ Opp’n (“Dckt. No. 103”) at 12. But proving the existence of an 24 unconstitutional policy will likely require evidence of numerous race-based lockdowns, and the
PLRA’s exhaustion requirement is not a rule of evidence. Thus, defendants’ point suggests that 25 resolution of the second exhaustion argument is purely academic as to the claims of plaintiffs
Trujillo, Abdullah, and Quezada, who seek only injunctive relief. Nevertheless, the court 26 addresses defendants’ second exhaustion argument and finds in favor of plaintiffs.

3

1 25 (2002) (purpose of exhaustion requirement is to give officials “time and opportunity to

2 address complaints internally before allowing the initiation of a federal case”). “[A] grievance

3 suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Griffin v.

4 Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009).

5

Prisoners who file grievances must use a form provided by the California Department of

6 Corrections and Rehabilitation, which instructs the inmate to describe the problem and outline

7 the action requested. The grievance process, as defined by California regulations, has three

8 levels of review to address an inmate’s claims, subject to certain exceptions. See Cal. Code

9 Regs. tit. 15, § 3084.7. Administrative procedures generally are exhausted once a plaintiff has

10 received a “Director’s Level Decision,” or third level review, with respect to his issues or claims.

11 Id. § 3084.1(b).

12

Proper exhaustion of available remedies is mandatory, Booth v. Churner, 532 U.S. 731,

13 741 (2001), and “[p]roper exhaustion demands compliance with an agency’s deadlines and other

14 critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90 (2006). For a remedy to be

15 “available,” there must be the “possibility of some relief. . . .” Booth, 532 U.S. at 738. Relying

16 on Booth, the Ninth Circuit has held:

17

[A] prisoner need not press on to exhaust further levels of review once he has

received all “available” remedies at an intermediate level of review or has been

18

reliably informed by an administrator that no remedies are available.

19 Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

20

Although a motion to dismiss for failure to exhaust administrative remedies prior to filing

21 suit is normally brought under Rule 12(b) of the Federal Rules of Civil Procedure, when ruling

22 on such a motion requires the court to look beyond the pleadings in the context of disputed

23 issues of fact the court must do so under “a procedure closely analogous to summary judgment.”

24 Wyatt v. Terhune, 315 F.3d 1108, 1119, n.14 (9th Cir. 2003). Because care must be taken not to

25 resolve credibility on paper as it pertains to disputed issues of material fact, the undersigned

26 applies the Rule 56 standards to exhaustion motions that require consideration of materials

4

1 extrinsic to the complaint. See Chatman v. Felker, No. Civ. S-06-2912 LKK EFB, 2010 WL

2 3431806, at *2-3 (E.D. Cal. Aug. 31, 2010).

3

Defendants bear the burden of proving plaintiff’s failure to exhaust. Wyatt, 315 F.3d at

4 1119. To bear this burden:

5

a defendant must demonstrate that pertinent relief remained available, whether at

unexhausted levels of the grievance process or through awaiting the results of the

6

relief already granted as a result of that process. Relevant evidence in so

demonstrating would include statutes, regulations, and other official directives

7

that explain the scope of the administrative review process; documentary or

testimonial evidence from prison officials who administer the review process; and

8

information provided to the prisoner concerning the operation of the grievance

procedure in this case . . . . With regard to the latter category of evidence,

9

information provided [to] the prisoner is pertinent because it informs our

determination of whether relief was, as a practical matter, “available.”

10

11 Brown, 422 F.3d at 936-37 (citations omitted).

12

2. Discussion

13

In the second amended complaint, plaintiffs identify and attach copies of the four inmate

14 appeals through which they claim to have exhausted available administrative remedies pursuant

15 to the PLRA. Dckt. No. 84 ¶¶ 52, 58, 66, 73, Apps. A-D. In support of their motion, defendants

16 also submit copies of the four inmate appeals, along with the declaration of D. Foston, Chief of

17 the Office of Appeals for the California Department of Corrections and Rehabilitation (CDCR).

18 Foston Decl. (“Dckt. No. 93”), Exs. A-D. At the hearing, the parties confirmed that the record

19 before the court consists of all inmate appeals relevant to the question of exhaustion.

20

a. Plaintiff Mitchell’s § 1983 Claims Based on Lockdowns On or

After September 12, 2006 Are Exhausted

21

22

Plaintiff Mitchell alleges that between May 2006 and December 2007, High Desert State

23 Prison imposed an overlapping series of lockdowns on him and other prisoners identified as

24 “Black.” Dckt. No. 84 ¶ 50. He claims that he had been under doctor’s orders to ambulate and

25 exercise regularly and that the lockdowns prevented him from exercising as required. Id. ¶ 51.

26 ////

5

1 He also alleges that the lockdowns exacerbated a leg injury, and caused him various physical and

2 psychological problems. Id. ¶¶ 51, 91. Mitchell claims that he was subjected to additional race-

3 based lockdowns at Folsom State Prison in July, August, September, October, and November

4 2010. Id. ¶ 53.

5

In his administrative appeal, Mitchell identified his problem as “High Desert’s

6 Segregation Lockdown Policy.” Dckt. No. 93, Ex. A at 3. He complained that since “9-12-06,”

7 he had “been confined to [his] cell on ‘CTQ’ 24hrs a day 7 days a week, for something [he] had

8 no knowledge of and nothing to do with.” Id. As relief, Mitchell requested that High Desert end

9 its policy of locking down “an entire race of inmates” and “to be taken off of this lockdown.” Id.

10 In expressing his dissatisfaction with the review of his appeal at the first level, Mitchell stated, “I

11 am still on forced racial lockdown and being denied program, i.e., yard, dayroom, canteen, [and]

12 packages, while other races, whites, Hispanics and Asians are allowed to continue programming

13 [and] I am still being locked in my cell 24/7.” Id. at 4. In expressing his dissatisfaction with the

14 review of his appeal at the second level, Mitchell complained that the lockdown was excessively

15 long, exceeding seven months. See id. (complaining that as of April 2, 2007, “I have been on

16 lockdown for over 7 ½ months for something I had no knowledge of”).

17

Defendants argue that because Mitchell alleges in the second amended complaint that as

18 a result of the lockdowns he did not receive adequate outdoor exercise, exacerbated a leg injury,

19 and experienced physical and psychological problems, but did not describe those particular

20 issues in his administrative appeal, he failed to properly exhaust available administrative

21 remedies for his Eighth Amendment claim. Dckt. No. 92-1 at 7-9. According to defendants,

22 Mitchell’s appeal “focused solely on alerting prison officials to alleged discrimination in the

23 form of a race-based lockdown.” Id. at 8.

24

To satisfy the exhaustion requirement, a grievance need only provide the level of detail

25 required by the prison grievance system itself. Jones, 549 U.S. at 218. The grievance process in

26 California requires that the prisoner “describe the problem and action requested.” Cal. Code

6

1 Regs. tit. 15, § 3084.2(a).3 When a prison’s grievance procedures do not specify the requisite

2 level of factual detail, “a grievance suffices if it alerts the prison to the nature of the wrong for

3 which redress is sought.” Griffin, 557 F.3d at 1120 (internal quotations omitted). Thus, a

4 grievance need not include legal terminology or legal theories and need not contain every fact

5 necessary to prove each element of an eventual legal claim. Id.

6

Mitchell’s appeal went beyond complaining that the lockdowns were improperly based

7 on race, and was sufficient to put prison officials on notice of the alleged Eighth Amendment

8 violation. Mitchell complained that the lockdowns resulted in him being confined to his cell

9 twenty-four hours a day, seven days a week, for months at time, with no yard time. Dckt. No.

10 93, Ex. A at 3-5; see also Thomas v. Ponder, 611 F.3d 1144, 1146 (9th Cir. 2010) (“as a matter

11 of law” the health risk posed by denial of out-of-cell exercise for an extended period is

12 “obvious”). He complained that the “24/7” confinement to his cell harmed him, and requested

13 that the lockdowns end. Id. The administrative appeal thus provided “enough information . . . to

14 allow prison officials to take appropriate responsive measures.” Griffin, 557 F.3d at 1121

15 (quoting Johnson v. Testman, 380 F.3d, 691, 697 (2d Cir. 2004)). It did not need to reference

16 the Eighth Amendment or list the injuries that Mitchell claims to have suffered because of the

17 lockdowns. See Jones, 549 U.S. at 219 (citing Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir.

18 2004) (“We are mindful that the primary purpose of a grievance is to alert prison officials to a

19 problem, . . . the grievance is not a summons and complaint that initiates adversarial

20 litigation”)); Griffin, 557 F.3d at 1121 (“The primary purpose of a grievance is to alert the prison

21 to a problem and facilitate its resolution, not to lay groundwork for litigation.”). Moreover, at

22 the final level of review, prison officials characterized Mitchell’s appeal as complaining about

23 “being punished,” for something he did not do. Dckt. No. 93, Ex. A at 1. Having so

24 acknowledged Mitchell’s claim in responding to his administrative appeal, defendants cannot

25 3 Section 3084.2(a) has since been amended and, effective January 28, 2011, requires
26 that the prisoner “describe the specific issue under appeal and the relief requested.”

7

1 now claim that the appeal did not provide sufficient notice of his claim that the lockdowns

2 amounted to cruel and unusual punishment in violation of the Eighth Amendment. See Mitchell

3 v. Snowden, Case No. 2:08-cv-1658 DAD P, 2011 U.S. Dist. LEXIS 22584, at *9 (E.D. Cal.

4 Mar. 5, 2011), adopted by Case No. 2:08-cv-1658 JAM DAD P, 2011 U.S. Dist. LEXIS 51460

5 (E.D. Cal. May 2, 2011).

6

Defendants also argue that Mitchell’s Eighth and Fourteenth Amendment claims based

7 on lockdowns that occurred before or after the lockdown that Mitchell complained of in his 8 administrative appeal, are unexhausted.4 No. 92-1 at 12-13. Here, Mitchell’s administrative

9 appeal references alleged lockdowns between September 12, 2006 through April 2, 2007. Dckt.

10 No. 93, Ex. A at 3, 4. In the second amended complaint, however, Mitchell references

11 lockdowns that occurred from May 2006 through November 2010. Dckt. No. 84 ¶¶ 50, 53.

12

Plaintiffs do not argue or submit evidence showing that Mitchell administratively

13 challenged any lockdowns that occurred prior to September 12, 2006 or that administrative relief

14 was unavailable to him. Mitchell’s claims based on lockdowns occurring prior to September 12,

15 2006, should therefore be dismissed as unexhausted.

16

As for claims based on lockdowns alleged to have occurred after April 2, 2007, however,

17 plaintiffs contend that the exhaustion requirement is satisfied because no further administrative

18 remedy was available to Mitchell. Pls.’ Opp’n to Mot. to Dism. (“Dckt. No. 100”) at 9. The

19 undersigned agrees.

20

By its own terms, the PLRA only requires exhaustion of “available” administrative

21 remedies. 42 U.S.C. § 1997e(a); see Booth, 532 U.S. at 738 (defining “available” as requiring

22 “the possibility of some relief for the action complained of”). Thus, the PLRA does not require

23

24

4 In making this argument, defendants cite to Mitchell’s administrative appeal and

contend that Mitchell “initially complained that from September 6, 2006, through September 18, 25 2006,” he was locked down. Dckt. No. 92-1 at 12. Review of Mitchell’s appeal, however,

shows that Mitchell initially complained that had been locked down since September 12, 2006, 26 not September 6th. See Dckt. No. 93, Ex. A at 3.

8

1 exhaustion when circumstances render administrative remedies “effectively unavailable.” Sapp

2 v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010); see id. (improper screening of administrative

3 appeal may excuse exhaustion requirement); Nunez v. Duncan, 591 F.3d 1217, 1224 (9th Cir.

4 2010) (exhaustion requirement may be excused where inmate “took reasonable and appropriate

5 steps to exhaust his . . . claim and was precluded from exhausting, not through his own fault by

6 the Warden’s mistake.”).

7

The prison officials reviewing Mitchell’s appeal understood it as challenging and

8 requesting a “stop” to the “policy” of race-based lockdowns. Dckt. No. 93, Ex. A at 3

9 (administrative appeal); 6 (response to appeal at first level of review). At the final level of

10 review, prison officials not only confirmed that they were on notice of the claim that the alleged

11 policy of race-based lockdowns was unlawful, they acknowledged the existence of that policy:

12

Therefore, the Warden has placed the institution’s inmate population on modified

program. The DLR [Director’s Level of Review] notes that the CDCR policy is

13

that when there is an incident involving any race, all inmates of that race are

locked up.

14

15 Id. at 1 (emphasis added). The denial of Mitchell’s appeal at the final level of review effectively

16 told Mitchell that no further administrative relief was “available” for his claim that race-based

17 lockdowns are unlawful. Because Mitchell exhausted the administrative processes available to

18 him, and in doing so, notified prison officials of the problems now raised in this lawsuit, he was

19 not required to initiate and complete another round of administrative appeals for future race-

20 based lockdowns. Accordingly, the court finds that Mitchell exhausted available administrative

21 remedies for his Eighth and Fourteenth Amendment claims based on lockdowns that occurred on

22 or after September 12, 2006.

23

b. Plaintiff Abdullah’s Claims Are Exhausted

24

Plaintiff Abdullah alleges that California State Prison, Solano imposed a lockdown on

25 him and all other inmates classified as “Black,” from June 2009 through July 2009, from May

26 2010 through June 2010, for an additional two weeks in July 2010, from October 2010 through

9

1 November 2010, and from March 2011 through April 2011. Dckt. No. 84 ¶ 69. He claims he

2 had limited access to medical care during the lockdowns, and was unable to obtain regular

3 dressing for a wound on his leg, causing the wound to become infected. Id. ¶ 70. Further, he

4 claims he is a devout Muslim, and was unable to attend Islamic religious services during the

5 lockdowns. Id. ¶ 71. He also alleges that he typically spent 24-hours each day in his cell with

6 his cellmate, and that they were allowed out of their cell for less than an hour every several days

7 to shower or to obtain medical care. Id. ¶ 72. He claims to have experienced anxiety,

8 depression, and humiliation as a result. Id.

9

In his administrative appeal, Abdullah complained of being “adversely affected” by a

10 race-based lockdown that began on June 8, 2009. Dckt. No. 93, Ex. B at 3. In describing his

11 problem, he stated that he and other African American inmates were “confined to [their] cells

12 and denied access to the yard, religious services, law library (i.e., access to the courts), visits,

13 education, vocational training, and employment.” Id. Abdullah described the lockdown as

14 “mass punishment” and requested that the “racially based lockdown be terminated.” Id. at 3.

15

Defendants argue that because Abdullah alleges in the second amended complaint that as

16 a result of the lockdowns he was not able to get medical care for a preexisting leg wound and

17 experienced physical and mental health problems, but did not describe those issues in his

18 administrative appeal, he failed to properly exhaust available administrative remedies for his

19 Eighth Amendment claim. Dckt. No. 92-1 at 9-10.

20

As stated, however, an administrative appeal need not include legal theories or all facts

21 necessary to prove each element of an eventual legal claim. Griffin, 557 F.3d at 1120.

22 Abdullah’s appeal accomplished what the PLRA requires for exhaustion of his Eighth

23 Amendment claim. It put the prison on notice that Abdullah felt punished by the lockdown

24 because it caused him to be confined to his cell for excessive periods of time, and that he wanted

25 the lockdown to end. See Dckt. No. 93, Ex. B at 3; see also id. at 1 (Director’s Level response

26 characterizing Abdullah’s appeal as complaining that he was “unfairly punished,” and denied

10

1 “access to program”). Additionally, by complaining that the lockdown adversely affected him

2 and requesting that the lockdown end, he provided enough information to allow prison officials

3 to take appropriate responsive measures. See Griffin, 557 F.3d at 1121.

4

Defendants also contend that because Abdullah’s appeal concerned a single lockdown

5 that commenced in June 2009, his claims based on lockdowns that occurred after that alleged 6 lockdown are unexhausted.5 No. 92-1 at 14. However, the court finds that after receiving the

7 final response to his administrative appeal concerning the June 2009 lockdown, no further

8 administrative relief was available for Abdullah’s claims challenging the alleged policy of race-

9 based lockdowns. The prison officials reviewing Abdullah’s appeal understood it as requesting

10 that prison officials “stop using race as a basis” for imposing lockdowns “for extended periods of

11 time absent review of individual case factors.” Dckt. No. 93, Ex. B at 1 (Director’s Level

12 response). And in their final response denying Abdullah’s appeal, they informed Abdullah “that

13 the CDCR policy is that when there is an incident involving any race, all inmates of that race are

14 locked up . . . [and] it is appropriate to segment the inmate population by ethnic groups as a

15 means to establish a regular program.” Id. (also stating grounds as to why CDCR contends this

16 policy is constitutionally defensible). Like Mitchell, Abdullah notified prison officials of the

17 problems that now form the basis of his constitutional claims. The prison’s responses

18 demonstrate that they were made aware of and rejected those claims and that no further

19 administrative relief was available. See Holley v. Swarthout, No. 2:10-cv-00615 MCE EFB P,

20 2012 U.S. Dist. LEXIS 24387, at *21 (E.D. Cal. Feb. 27, 2012), adopted by 2012 U.S. Dist.

21 LEXIS 44159 (E.D. Cal. Mar. 29, 2012) (“If the Department’s written statements are to be taken

22 seriously, it is pointless for [the] inmate to return for another round of exhaustion over the same

23

24

5 In addition to the June 2009 lockdown, Abdullah alleges in the second amended

complaint that he was locked down on various dates in 2010 and 2011. Dckt. No. 84 ¶ 69. In 25 their reply brief, defendants concede that Abdullah exhausted available administrative remedies

for his claim concerning a modified program that commenced on September 24, 2010. Dckt. No. 26 103 at 13.

11

1 issue of race based lockdowns.”). To confirm that no further administrative relief was available,

2 plaintiffs submit evidence with their opposition brief showing that Abdullah subsequently tried

3 to file an appeal in response to a September 2010 race-based lockdown, but that prison officials

4 rejected it as duplicative of the appeal discussed herein. See Dckt. No. 100, Evenson Decl. ¶ 2,

5 Ex. A. Defendants’ motion to dismiss Abdullah’s claims as unexhausted must therefore be

6 denied.

7

c. Plaintiff Trujillo’s Claims Are Exhausted

8

Plaintiff Trujillo alleges that Ironwood State Prison imposed a lockdown on him and all

9 other inmates classified as “Hispanic,” from October 2007 through February 2008, in July 2009,

10 in December 2009, from February 2010 through March 2010, and from October 2010 through

11 November 2010. Dckt. No. 84 ¶ 63. He claims that during the lockdowns he was typically

12 confined to his cell for 24-hours per day, deprived of outdoor exercise, and denied visits and

13 phone calls with his family. Id. ¶ 64. He also claims he was prevented from completing

14 educational programs, and was unable to participate in drug and alcohol treatment programs. Id.

15 ¶ 65. As a result, he claims to have felt “an overwhelming sense of anxiety, frustration, stress,

16 and deep humiliation.” Id. ¶ 64.

17

In Trujillo’s administrative appeal, Trujillo described the problem as a race-based

18 lockdown imposed on October 14, 2007, and explained that “[b]ased upon race only – I was

19 denied all privileges – including visits.” Dckt. No. 93, Ex. C at 3. He included a copy of the

20 prison’s “Plan of Operation” for the lockdown, which shows that “Hispanic” inmates were fed in

21 their cells, subjected to modified procedures for obtaining medical care, and were completely

22 denied visits and dayroom or recreational activities. Id. at 3, 13. In his request for relief,

23 Trujillo sought an explanation for using race to place him on lockdown “with the resulting loss

24 of all privileges.” Id. at 6. In expressing his dissatisfaction with the review of his appeal at the

25 second level, Trujillo described the lockdown as “collective punishment.” Id. at 7.

26 ////

12

1

Defendants argue that because Trujillo alleges in the second amended complaint that as a

2 result of the lockdowns he experienced mental health problems and was deprived of outdoor

3 exercise and basic human needs, but did not describe those issues in his administrative appeal, he

4 failed to properly exhaust available administrative remedies for his Eighth Amendment claim.

5 Dckt. No. 92-1 at 10-11. Like the appeals filed by Mitchell and Abdullah, the court finds that

6 Trujillo’s appeal provided the level of detail required by the prison grievance system. Trujillo

7 put prison officials on notice of his claim that the lockdown resulted in the deprivation of “all

8 privileges,” including dayroom and recreational time, and that it amounted to punishment. He

9 did not need to include legal theories or list the injuries he claims to have suffered, particularly

10 when the health risks posed by lengthy lockdowns are “obvious.” See Thomas, 611 F.3d at

11 1146.

12

Defendants also argue that Trujillo’s Eighth and Fourteenth Amendment claims based on

13 lockdowns that allegedly occurred after the October 2007 lockdown, are unexhausted. Dckt. No.

14 92-1 at 14. While Trujillo’s administrative appeal concerned the October 2007 lockdown only,

15 the second amended complaint includes allegations regarding lockdowns that occurred on later

16 dates. See Dckt. No. 84 ¶ 63. Like Mitchell and Abdullah, however, the court finds that Trujillo

17 did not have available administrative remedies for allegedly race-based lockdowns that occurred

18 after October 2007. Through his appeal, Trujillo challenged the alleged policy of locking down

19 all inmates of a certain race when one person of that race commits an infraction. Dckt. No. 93,

20 Ex. C at 3, 11 (second level response to appeal, confirming that “[t]his plan placed the Hispanic

21 population on modified program following an incident where the Hispanic population was the

22 only race involved in an incident . . . .”). In denying Trujillo’s appeal at the final level of review,

23 prison officials understood Trujillo as complaining about “the lockdown policy in general.” Id.

24 at 1. The response implicitly admitted to practicing the lockdown policy of which Trujillo

25 complained, explaining that “[s]ome disturbances are racially motivated, requiring increased

26 controls to be employed with only the involved groups, as in this case. . . . Despite thorough

13

1 investigation of such incidents, the true motive of future intent of the perpetrators is often

2 unknown.” Id. The response conceded that “[u]nfortunately, those inmates not involved in the

3 violence may be impacted by the actions of a few.” Id. at 2. In denying Trujillo’s administrative

4 challenge to this policy at the final level of review, prison officials informed Trujillo that he had

5 exhausted his remedies for this claim. See id. (“This decision exhausts the administrative

6 remedy available to the appellant within CDCR.”). Having so informed Trujillo, Trujillo was

7 not required to initiate and complete another round of administrative appeals for subsequent

8 lockdowns based on race. Accordingly, the court finds that Trujillo exhausted available

9 administrative remedies for his Eighth and Fourteenth Amendment claims.

10

d. Plaintiff Quezada’s Claims Are Exhausted

11

Plaintiff Quezada alleges that in February 2010, Kern Valley State Prison imposed a 90-

12 day lockdown on him and other prisoners classified by the ethnicity of “Other.” Dckt. No. 84

13 ¶ 57. He claims that he was also subjected to race-based lockdowns at Kern Valley State Prison

14 in December 2010 and January 2011. Id. ¶ 59. He claims that during the lockdowns, he was

15 typically confined to his cell for 24-hours per day, deprived of outdoor exercise, and deprived of

16 visits with his family. Id. ¶ 60.

17

In Quezada’s administrative appeal, he described the problem by stating that on February

18 11, 2010, Kern Valley State Prison imposed a modified program, whereby inmates classified by

19 ethnicity as “Others,” were denied privileges, including outdoor exercise. Dckt. No. 93, Ex. D at

20 3, 9. In his request for relief, Quezada asked that his privileges be restored. Id. at 3.

21

Defendants do not argue that Quezada’s appeal failed to notify the prison of his Eighth

22 Amendment claim. They argue that Quezada’s Eighth and Fourteenth Amendment claims based

23 on lockdowns that allegedly occurred after the February 2010 lockdown, are unexhausted. Dckt.

24 No. 92-1 at 14. As discussed below, the court finds that Quezada’s appeal exhausted

25 administrative remedies for his Eighth and Fourteenth Amendment claims regarding defendants’

26 lockdown policy and practice.

14

1

Prison officials responded to Quezada’s appeal at the second level of review by

2 informing him that “[i]t is standard practice in the Department to place a facility on modified

3 program after disturbances. . . . The management of inmate populations by ethnicity and or

4 subcultures has long been established by correctional professionals as an effective technique for

5 establishing and maintaining control of inmate populations during periods of emergency.” Id. at

6 14. In expressing his dissatisfaction with this response, Quezada sought review at the final level,

7 claiming that prison officials had engaged in “UNCONSTITUTIONAL RACE BASED

8 DISCRIMINATION/PREFERENTIAL TREATMENT POLICIES,” whereby inmates are

9 punished because of their race. Id. at 5. In denying the appeal at the final level of review, prison

10 officials relied on and confirmed the decision made at the second level of review. Id. at 1. They

11 also informed Quezada that the decision “exhausts the administrative remedy available to [him]

12 within CDCR.” Id. at 2. Thus, prison officials acknowledged their practice of imposing

13 modified programs based on ethnicity, and in effect, told Quezada that no further administrative

14 relief was available for him to challenge that practice. Accordingly, the court finds that Quezada

15 exhausted available administrative remedies for his Eighth and Fourteenth Amendment claims.

16

B. PLAINTIFF MITCHELL’S STATE LAW DAMAGES CLAIMS

17

Plaintiff Mitchell also brings state law claims for negligence and negligent and

18 intentional infliction of emotional distress based on the High Desert State Prison lockdowns

19 allegedly in place from May 2006 through December 2007. Dckt. No. 84 ¶¶ 50, 94-105.

20 Defendants contend that Mitchell’s state law claims for damages must be dismissed because

21 Mitchell (1) failed to exhaust his administrative remedies as required by state law; (2) failed to

22 comply with the California Government Claims Act; and (3) because defendants Tilton, Felker,

23 Wright, Vanderville, Foulk, Owen and Hellwig have discretionary act immunity under California

24 Government Code § 820.2. See Dckt. No. 92-1 at 14-21.

25 ////

26 ////

15

1

1. Exhaustion Under State Law

2

Defendants argue that Mitchell’s state tort claims should be dismissed for failure to

3 exhaust administrative remedies. Dckt. No. 92-1 at 15-16. The exhaustion requirement for state

4 law claims mirrors the federal PLRA exhaustion requirement. Wright v. State of California, 122

5 Cal. App.4th 659, 666 (2004). As discussed in addressing defendants’ PLRA defense, Mitchell’s

6 administrative appeal complained about excessively lengthy, race-based lockdowns. See Dckt.

7 No. 93, Ex. A at 3-5 (claiming he was confined to his cell twenty-four hours a day, seven days a

8 week, for months at time, with no yard time). In doing so, Mitchell notified prison officials of

9 the core problems on which he bases all of his legal claims in this action. Each claim merely

10 represents a different legal theory under which Mitchell seeks to hold defendants liable for

11 “implementing excessively lengthy and race-based lockdowns, and failing to end those

12 lockdowns in a timely manner.” See Dckt. No. 84 ¶¶ 95, 100. Mitchell was not required to

13 identify those legal theories in order to properly exhaust his claims. See Griffin, 557 F.3d at

14 1120. And although Mitchell will have to prove that he suffered severe or extreme emotional

15 distress to prevail on his emotional distress claims, for example, see Christensen v. Superior

16 Court, 54 Cal. 3d 868, 903 (1991), he was not so required in order to properly exhaust those

17 claims through the administrative process, see Griffin, 557 F.3d at 1120. Moreover, defendants

18 do not counter plaintiffs’ point that Mitchell filed his administrative appeal in the early stages of

19 the lockdown, before he even knew how the lockdowns might injure him over time. See Dckt

20 No. 100 at 12 n.4. When prison officials responded to Mitchell’s appeal at the final level of

21 review by informing Mitchell that “[t]here [was] no merit to [his] claim that the institution

22 management . . . inappropriately placed the facility on lockdown,” and confirmed “that the

23 CDCR policy is that when there is an incident involving any race, all inmates of that race are

24 locked up,” Mitchell had exhausted available administrative remedies for his claims based on

25 lengthy, race-based lockdowns.

26 ////

16

1

Like his Eighth and Fourteenth Amendment claims, the court finds that Mitchell

2 exhausted available administrative remedies for his state tort claims based on lockdowns that

3 occurred on or after September 12, 2006.

4

2. Compliance with the California Government Claims Act

5

Defendants argue that Mitchell failed to comply with the California Government Claims

6 Act (“Act”) for most of the lockdowns about which he complains in the second amended

7 complaint. Dckt. No. 92-1 at 17-18. As noted, Mitchell’s state law claims for damages are

8 based on the High Desert State Prison lockdowns allegedly imposed from May 2006 through

9 December 2007. See Dckt. No. 84 ¶¶ 18-24, 50, Claims 4, 5. But defendants contend that those

10 claims should be limited to the alleged lockdowns that occurred on or after July 23, 2007. Dckt.

11 No. 92-1 at 18. According to plaintiffs, however, Mitchell may seek damages for his state law 12 claims based on alleged lockdowns from February 28, 2007 through December 5, 2007.6 See

13 Dckt. No. 100 at 14-16.

14

Under the Act, a plaintiff seeking to recover money damages from a state public entity or

15 its employees must “present” a claim to the California Victim Compensation and Government

16 Claims Board (“Board”) before bringing an action, generally no later than six months after the

17 cause of action accrues. Cal. Gov’t Code §§ 905.2, 911.2, 945.4, 950.2. Timely claim

18 presentation is not merely a procedural requirement but is a condition-precedent to causes of

19 action against a public entity “for money or damages.” State of California v. Superior Court

20 (Bodde), 32 Cal. 4th 1234, 1239-40 (2004).

21

A claim that contains the information required by section 910 is considered “presented”

22 to the public entity. Philips v. Desert Hosp. Dist., 49 Cal.3d 699, 707 (1989); see Cal. Gov’t

23 Code § 910 (requiring claim to contain basic information identifying the claimant and the

24 defendant, the amount requested, the “date, place and other circumstances of the occurrence or

25 6 Thus, by implication, plaintiffs concede that Mitchell’s state law damages claims do not
26 include the period of May 2006 though February 27, 2007.

17

1 transaction which gave rise to the claim asserted” and “[a] general description of the . . . injury

2 . . . incurred so far as it may be known at the time of presentation of the claim.”) However,

3 “substantial compliance” with § 910 is sufficient. See Ardon v. City of Los Angeles, 52 Cal. 4th

4 241, 247-48 (2011) (“A claim substantially complies with a claims statute if the parties have

5 stated sufficient information to reasonably enable the public entity to make an adequate

6 investigation of the merits of the claim and to settle it without the expense of a lawsuit.” (internal

7 quotations omitted)).

8

Mitchell initially submitted his claim to the Board on August 29, 2007, and the Board

9 received it on September 4, 2007.7 Dckt. No. 94-1 at 3, 14 (showing that Mitchell signed his

10 claim form on August 29, 2007). Mitchell’s claim stated that as of June and July of 2007, High

11 Desert had kept him “on lockdown confined to his cell for over 11 months.” Id. at 13-14

12 (requesting damages for negligence and emotional distress). However, the Board determined

13 that the claim was “incomplete,” and asked Mitchell to “explain the circumstances that led to the

14 alleged damages or injuries,” and “specify the exact date of the incident and explain what

15 happen[ed] on that date.” Id. Plaintiff resubmitted his claim in January 2008. Id. at 5-10.

16 Subsequently, the Board informed Mitchell that it “received [his] claim on September 4, 2007,”

17 and that “[his] claim is being accepted only to the extent it asserts allegations that arise from

18 facts or events that occurred during the six months prior to the date it was presented.” Id. at 3.

19

The court finds that Mitchell’s August 29, 2007 claim substantially complied with the

20 requirements of § 910, as it “fairly described” what High Desert officials had allegedly done to

21 plaintiff. See Connelly v. County of Fresno, 146 Cal. App. 4th 29, 38 (2006). Although the

22 Board found the claim to be incomplete, its omissions would not have prevented the Board from

23
7 The court grants defendants’ unopposed request for judicial notice of the Board’s 24 administrative record of Mitchell’s claim (Dckt. No. 94). See United States v. Ritchie, 342 F.3d
903, 907-08 (9th Cir. 2003) (a court may consider such materials without converting a motion to 25 dismiss into a motion for summary judgment); Fed. R. Evid. 201 (a court may take judicial
notice of facts that are capable of accurate determination by sources whose accuracy cannot 26 reasonably be questioned).

18

1 adequately investigating the merits of Mitchell’s claim and possibly settling it without the

2 expense of litigation. See Gen. Sec. Servs. Corp. v. County of Fresno, 815 F. Supp. 2d 1123,

3 1138 (E.D. Cal. 2011) (citing Ardon, 52 Cal.4th at 247-48 and Connelly, 146 Cal. App. 4th at

4 38). Thus, under the substantial compliance doctrine, Mitchell’s claim was “presented” on

5 August 29, 2007, and covered allegations going back six months, to February 28, 2007. See Cal. 6 Gov’t Code § 915.2 (claims deemed “presented” at time of mailing).8

7

Mitchell amended the claim in January 2008 and explained that the lockdown continued

8 until December 5, 2007, when he was transferred out of High Desert State Prison. Dckt. No. 94-

9 1 at 5-10; see Cal. Gov’t Code § 910.6(a) (when a claim is amended to add information related to

10 the original claim, “the amendment shall be considered part of the original claim for all

11 purposes.”). Accordingly, the scope of Mitchell’s state law claims do not span the entire 18-

12 month period alleged in the complaint, but should be limited to the period from February 28,

13 2007 through December 5, 2007, when he was transferred.

14

3. Discretionary Act Immunity Under California Government Code § 820.2

15

California Government Code § 820.2 provides that a public employee “is not liable for an

16 injury resulting from his act or omission where the act or omission was the result of the exercise

17 of discretion vested in him, whether or not such discretion be abused.” Defendants Tilton,

18 Felker, Wright, Vanderville, Foulk, Owen, and Hellwig contend that they are immune from

19 Mitchell’s state law claims under § 820.2 because their alleged decision to impose a lockdown is

20 a discretionary one. Dckt. No. 92-1 at 19-21.

21

Defendants are entitled to immunity under § 820.2 if a “fair reading” of the complaint

22 reveals allegations that the defendants “made an actual, conscious, and considered collective

23 policy decision.” Caldwell v. Montoya, 10 Cal. 4th 972, 981 (1995). Immunity applies only to

24

25

8 Although the actual date of mailing is not apparent from the record, defendants concede

in their reply brief that Mitchell submitted his claim on August 29, 2007. See Dckt. No. 103 at 26 19 (stating that this is “the date Mitchell submitted his original defective tort claim”).

19

1 “deliberate and considered policy decisions, in which a conscious balancing of risks and

2 advantages . . . took place.” Id. Operational acts that merely “implement a basic policy already

3 formulated” do not receive immunity. Id.

4

Here, Mitchell’s state law claims are based on the allegations that defendants Tilton,

5 Felker, Wright, Vanderville, Foulk, Owen, and Hellwig “implemented” lockdowns pursuant to

6 existing CDCR lockdown policy. See Dckt. No. 84 ¶¶ 2, 95, 100. Thus, a “fair reading” of the

7 complaint does not establish defendants’ claimed immunity. See AE v. County of Tulare, 666

8 F.3d 631, 640 (9th Cir. Cal. 2012) (“It would be odd indeed if a plaintiff included in a Complaint

9 allegations that would establish a basis for finding discretionary act immunity on the part of

10 government defendants.”). Moreover, determining whether defendants Tilton, Felker, Wright,

11 Vanderville, Foulk, Owen, and Hellwig made “deliberate and considered policy decisions” with

12 respect to the alleged lockdowns are questions of fact that cannot properly be resolved on a

13 motion to dismiss. Accordingly, defendants’ motion must be denied as to this ground, without

14 prejudice to its renewal at summary judgment, or if material factual disputes warrant, at trial.

15 III. CONCLUSION

16

Based on the above, IT IS HEREBY RECOMMENDED that defendants’ motion to

17 dismiss (Dckt. No. 92) be denied in all respects except that:

18

a. Plaintiff Mitchell’s Eighth and Fourteenth Amendment claims based on lockdowns

19 that occurred before September 12, 2006 be dismissed as unexhausted, and

20

b. Plaintiff Mitchell’s state law damages claims be limited to the period from February

21 28, 2007 through December 5, 2007.

22

These findings and recommendations are submitted to the United States District Judge

23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

24 after being served with these findings and recommendations, any party may file written

25 objections with the court and serve a copy on all parties. Such a document should be captioned

26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

20

1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: June 28, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
21

 1

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5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT MITCHELL, et al.,

11

Plaintiffs,

No. 2:08-cv-1196 JAM EFB P

12

vs.

13 T. FELKER, et al.,

14

Defendants.

ORDER

15

/

16

Plaintiffs, state prisoners proceeding through counsel, have filed this civil rights

17 action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States

18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

19

On June 28, 2012, the magistrate judge filed findings and recommendations

20 herein which were served on all parties and which contained notice to all parties that any

21 objections to the findings and recommendations were to be filed within fourteen days from the

22 date the findings and recommendations were served. Defendants have filed objections to the

23 findings and recommendations and plaintiffs have filed a response.

24

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

25 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire

26 ////

1

1 file, the court finds the findings and recommendations to be supported by the record and by

2 proper analysis.

3

Accordingly, IT IS HEREBY ORDERED that:

4

1. The findings and recommendations filed June 28, 2012, are adopted in

5

full; and

6

2. Defendants’ motion to dismiss (Dckt. No. 92) is denied in all respects

7

except that:

8

a. Plaintiff Mitchell’s Eighth and Fourteenth Amendment

9

claims based on lockdowns that occurred before September

10

12, 2006 are dismissed as unexhausted, and

11

b. Plaintiff Mitchell’s state law damages claims are limited to

12

the period from February 28, 2007 through December 5,

13

2007.

14

15 DATED: July 27, 2012 16

/s/ John A. Mendez UNITED STATES DISTRICT COURT JUDGE

17

18

19

20

21

22

23

24

25

26

2

 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT MITCHELL, et al.,

No. 2:08-CV-01196

12

Plaintiffs,

13

v.

14 MATTHEW CATE, et al.,

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

15

Defendants.

16

17

This matter is before the Court pursuant to Defendants Cate, Kernan, McDonald,

18 Giurbino, Tilton, Felker, Wright, Foulk, Vanderville, Owen and Hellwig’s (collectively

19 hereinafter referred to as “Defendants”) Motion for Summary Judgment. (ECF No. 253.)

20 Plaintiffs Mitchell, Abdullah, Quezada and Trujillo (collectively referred to as “Plaintiffs”)

21 oppose Defendants’ motion. (See ECF No. 280.) The Court has carefully considered the

22 arguments raised by both parties. For the reasons set forth below, Defendants’ Motion for

23 Summary Judgment is GRANTED IN PART and DENIED IN PART.

24

I.

FACTUAL AND PROCEDURAL BACKGROUND

25

Plaintiff Robert Mitchell (“Mitchell”) initiated this case pro se on May 30, 2008, to

26 challenge, among other things, a series of allegedly race-based lockdowns to which he was

27 subjected to while imprisoned at High Desert State Prison (“HDSP”) beginning on September 12,

28 1

1 2006. (Compl., ECF No. 1 at 12−14.)1 In his complaint, Mitchell alleges that he filed

2 administrative appeals concerning the lockdown policy as it was applied to him and, in response

3 to his appeals, the prison staff informed Mitchell that it was the policy of the California

4 Department of Corrections and Rehabilitation (“CDCR”) that “when there is an incident

5 involving any race, all inmates of that race are locked up.” (ECF No. 1 at 15.) Mitchell further

6 alleged that the CDCR policy utilized ethnic groups as a classification in segmenting the inmate

7 population during the process of establishing a regular program following an incident. (ECF No.

8 1 at 15.) Mitchell alleged that he was subjected to cruel and unusual punishment in violation of

9 his Eighth Amendment rights as a result of the lockdowns and that the lockdowns violated his

10 rights to equal protection and due process. (ECF No. 1 at 17, 30−31, 38−44.) Mitchell further

11 alleged that prison officials took adverse actions against him in response to his filing of

12 grievances and lawsuits, constituting unlawful retaliation, obstruction of justice, denial of access

13 to the courts, thereby violating his due process and equal protection rights. (ECF No. 1 at 17−27,

14 32−37, 45−48.) Lastly, Mitchell asserted state-law claims of negligence and intentional infliction

15 of emotional distress. (ECF No. 1 at 48−51.)

16

The case was originally assigned to District Court Judge John A. Mendez, but was

17 reassigned to visiting Judge Richard A. Jones of the Western District of Washington in January

18 2009. (ECF No. 7.) During pretrial proceedings, the court appointed counsel for Mitchell for the

19 limited purpose of assisting him in settlement negotiations with Defendants. (ECF No. 60.)

20 Counsel for Mitchell subsequently agreed to provide continuing representation to Mitchell and

21 sought to amend the complaint in order to transform the case into a class action challenging

22 allegedly race-based lockdowns throughout California’s men’s prisons. (ECF Nos. 70, 74.)

23 Judge Jones directed the transfer of the case back to a judge within the Eastern District of

24 California, concluding that it was “far from ideal for a judge sitting in the Western District of

25 Washington to consider presiding over an action challenging policies at all of California’s

26 prisons.” (ECF No. 82 at 1.) The case accordingly was reassigned to Judge John A. Mendez and

27

1

Page numbers cited herein refer to those assigned by the Court’s electronic docketing system and not those

28 assigned by the parties.

2

1 Magistrate Judge Edmund F. Brennan, who granted the motion to amend on September 22, 2011.

2 (ECF No. 83.) Mitchell filed the second amended complaint (“SAC”) on September 23, 2011.

3 (ECF No. 84.)

4

The SAC changed the case in the following ways:

5

(1) Adding three plaintiffs to the claims for injunctive and declaratory relief

6 regarding CDCR’s lockdown policies who seek to act, along with plaintiff, as representatives of a

7 class of “all prisoners who are now or will in the future be housed in a men’s prison under the

8 jurisdiction of CDCR and who are now or will in the future be subject to CDCR’s policy and

9 practice of implementing race-based lockdowns” and a similar class of prisoners who are or will

10 be “subject to CDCR’s policy and practice of implementing excessively lengthy lockdowns.”

11 (ECF No. 84 at 6);

12

(2) Adding Defendants CDCR Secretary Matthew Cate, CDCR Undersecretary of

13 Operations Scott Kernan, CDCR Chief Deputy Secretary for Adult Operations Terri McDonald,

14 and CDCR Director of the Division of Adult Institutions George Giurbino in their official

15 capacities to the injunctive and declaratory relief claims. (ECF No. 84 at 4−5);

16

(3) Deleting the claims for retaliation, denial of access to courts, and obstruction of

17 justice;

18

(4) and deleting Defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D.

19 Cade, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, and J. Walker.

20 (ECF No. 84)

21

The case was further narrowed on Defendants’ November 2, 2011, motion to

22 dismiss. (ECF No. 92.) The court dismissed Mitchell’s Eighth and 14th Amendment claims

23 based on lockdowns that occurred before September 12, 2006 as unexhausted and limited his state

24 law damages claims to the period from February 28, 2007 through December 5, 2007. (ECF Nos.

25 107, 114.)

26

On March 5, 2013, Plaintiffs filed a motion to certify class as well as a motion for

27 preliminary injunction. (ECF Nos. 155, 156.) On April 3, 2013, this case was assigned to the

28 undersigned. (ECF No. 178.) Subsequently, Plaintiffs filed a request for the district court to hear 3

1 its pending motions for class certification and injunctive relief pursuant to Eastern District of

2 California Local Rule 302(d). (ECF No. 182.) Before the Court had an opportunity to rule on

3 Plaintiffs’ request, Defendants filed their motion for summary judgment. (ECF No. 253.)

4

On August 5, 2013, the Court granted Plaintiffs request stating that “because

5 Plaintiffs’ class certification and preliminary injunction motion, as well as Defendants’ summary

6 judgment motion, are likely to require de novo review, this Court finds that judicial economy

7 would be best served by this Court retaining all future motions associated with this case.” (ECF

8 No. 278.) Thus, this Court retained all matters associated with this case going forward and

9 addresses Defendants Motion for Summary Judgment below, prior to deciding Plaintiffs’ motion

10 for class certification. See Saeger v. Pac. Life Ins. Co., 305 F. App’x 492, 493 (9th Cir. 2008)

11 (“We have previously held that, ‘[u]nder the proper circumstances—where it is more practicable

12 to do so and where the parties will not suffer significant prejudice—the district court has

13 discretion to rule on a motion for summary judgment before it decides the certification issue.’”)

14 (quoting Wright v. Schock, 742 F.2d 541, 543–44 (9th Cir. 1984)).

15

II. STANDARD OF LAW

16

Summary judgment is appropriate when the moving party demonstrates no

17 genuine issue as to any material fact exists, and therefore, the moving party is entitled to

18 judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144,

19 157 (1970). Under summary judgment practice, the moving party always bears the initial

20 responsibility of informing the district court of the basis of its motion, and identifying those

21 portions of “the pleadings, depositions, answers to interrogatories, and admissions on file together

22 with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of

23 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[W]here the nonmoving party

24 will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may

25 properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and

26 admissions on file.” Id. at 324 (internal quotations omitted). Indeed, summary judgment should

27 be entered against a party who does not make a showing sufficient to establish the existence of an

28 element essential to that party’s case, and on which that party will bear the burden of proof at 4

1 trial. Id. at 322.

2

If the moving party meets its initial responsibility, the burden then shifts to the

3 opposing party to establish that a genuine issue as to any material fact actually does exist.

4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585−87 (1986); First Nat’l

5 Bank v. Cities Serv. Co., 391 U.S. 253, 288−289 (1968). In attempting to establish the existence

6 of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is

7 required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery

8 material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c). The opposing

9 party must demonstrate that the fact in contention is material, i.e., a fact that might affect the

10 outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

11 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could

12 return a verdict for the nonmoving party. Id. at 251−52.

13

In the endeavor to establish the existence of a factual dispute, the opposing party

14 need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

15 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

16 versions of the truth at trial.” First Nat’l Bank, 391 U.S. at 288−89. Thus, the “purpose of

17 summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there

18 is a genuine need for trial.’” Matsushita, 475 U.S. at 587 (quoting Rule 56(e) advisory

19 committee’s note on 1963 amendments).

20

In resolving the summary judgment motion, the court examines the pleadings,

21 depositions, answers to interrogatories, and admissions on file, together with any applicable

22 affidavits. Fed. R. Civ. P. 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305−06 (9th Cir.

23 1982). The evidence of the opposing party is to be believed and all reasonable inferences that

24 may be drawn from the facts placed before the court must be drawn in favor of the opposing

25 party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is

26 the opposing party’s obligation to produce a factual predicate from which the inference may be

27 drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244−45 (E.D. Cal. 1985), aff’d,

28 810 F.2d 898 (9th Cir. 1987). Finally, to demonstrate a genuine issue that necessitates a jury trial, 5

1 the opposing party “must do more than simply show that there is some metaphysical doubt as to

2 the material facts.” Matsushita, 475 U.S. at 586. “Where the record taken as a whole could not

3 lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’”

4 Id. at 587.

5

III. ANALYSIS

6

Defendants present multiple arguments in support of their motion for summary

7 judgment. The Court notes that the fifty-three pages discussing Defendants’ mootness claims

8 seem to be intertwined with its arguments as to the constitutionality of Defendants’ policy. The

9 Court has attempted to identify the individual arguments and address each one separately.

10 Therefore, to the extent that Defendants’ mootness arguments raise substantive constitutional

11 arguments, the constitutional arguments are not addressed in conjunction with Defendants’

12 mootness arguments. Instead, the Court addresses these arguments as they are presented within

13 the section of Defendants’ brief. Accordingly, the Court first addresses the standard for mootness

14 and then addresses Defendants’ mootness arguments concerning all Plaintiffs collectively,

15 followed by a discussion of Defendants’ arguments as to each Plaintiff separately.

16

A. Defendants’ Contention that Plaintiffs’ Claims Are Moot

17

Defendants make numerous arguments contending that Plaintiffs’ claims are moot.

18 The “heavy burden” of persuading the court that the challenged conduct cannot reasonably be

19 expected to start up again lies with the party asserting mootness. Adarand Constructors, Inc. v.

20 Slater, 528 US 216, 222 (2000). “A case is moot when the issues presented are no longer ‘live’

21 or the parties lack a legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529

22 U.S. 277, 287 (2000). The mootness doctrine contains two requirements: that the underlying

23 issue be “live” and that the particular party pursuing it have a “legally cognizable interest in the

24 outcome.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 396 (1980) (quoting Powell v.

25 McCormack, 395 U.S. 486, 496 (1969)); see also 1 Newberg on Class Actions § 2:9 (5th ed.).

26 The central issue in any mootness challenge is whether changes in the circumstances existing

27 when the action was filed have forestalled any meaningful relief. West v. Sec'y of Dept. of

28 Transp., 206 F.3d 920, 925 (9th Cir. 2000). “[T]he question is not whether the precise relief 6

1 sought at the time the application for an injunction was filed is still available. The question is

2 whether there can be any effective relief.” Id. at 925 (emphasis added; internal quotes omitted).

3 “Unless the prevailing party can obtain effective relief, any opinion as to the legality of the

4 challenged action would be advisory.” City of Erie, 529 U.S. at 287.

5

There are exceptions to the mootness doctrine, such as the “capable of repetition

6 doctrine” and the “class certification doctrine.” The “capable of repetition doctrine” applies

7 where the named plaintiff can make a reasonable showing that he will again be subjected to the

8 alleged illegality.” Alvarez v. Smith 558 US 87, 93 (2009). This typically arises where the issues

9 involve events of such short duration that they are over by the time the matter gets to court—e.g.,

10 pregnancy, labor strikes or political campaigns. See Sosna v. Iowa, 419 U.S. 393, 401 (1975). It

11 must be shown that the challenged action was too short in duration to be fully litigated while in

12 existence and that there is a reasonable expectation that the plaintiff—or a class he or she

13 represents—will be subject to the same action again in the future. See Roe v. Wade, 410 U.S.

14 113, 125 (1973); United States v. Juvenile Male, 131 S. Ct. 2860, 2865 (2011).

15

In contrast, the class certification doctrine allows a named plaintiff’s claim which

16 has become moot after the district court has ruled on a motion for class certification, to not moot

17 the class action as a whole. Sosna, 419 U.S. at 399−401; see also U.S. Parole Comm’n v.

18 Geraghty, 445 U.S. 388, 405−06 (1980) (holding that mooting of named plaintiff’s claim after

19 denial of class certification did not moot plaintiffs’ claims so as to prevent them from appealing

20 the adverse class determination). The Supreme Court has never considered, and the lower courts

21 remain split, on the question of whether (and under what circumstances) the mooting of the

22 named plaintiff’s claims before a decision has been made on class certification will moot the class

23 action. E.g. Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1531–32 (2013); Deposit

24 Guar. Nat’l Bank, Jackson, Miss. v. Roper, 445 U.S. 326, 329–30 (1980).

25

i. Defendants’ Arguments Concerning All Plaintiffs

26

Defendants seem to make two arguments that pertain to the alleged mootness of all

27 of the Plaintiffs’ claims. Accordingly, the Court addresses these claims first and then addresses

28 Defendants’ claims as to each individual Plaintiff below. 7

1

a. Decline in Prison Population

2

Defendants allege that the prison population has declined significantly since 2006,

3 and thus Plaintiffs are no longer subjected to the lengthy confinements that were prevalent at the

4 time the complaint was filed. (ECF No. 254 at 23.) The Court construes Defendants’ briefing as

5 arguing that because of the decline in the prison population, Plaintiffs no longer suffer an injury,

6 and thus their claims are moot. The Court finds this argument unavailing because Defendants do

7 not allege that the race-based lockdown policy is no longer employed. Instead, Defendants argue

8 that the lockdowns are much shorter. The fact that Plaintiffs’ lockdowns are shorter does not

9 negate Plaintiffs’ allegations that they are locked down for no other reason than race and that the

10 alleged policy is unconstitutional. Moreover, the Eastern District of California has found as

11 recently as 2013 that California prisons are still suffering from populations over design capacity.

12 See Coleman v. Brown, 922 F. Supp. 2d 1004, 1012 (E.D. Cal. 2013) ( finding that the state failed

13 to establish it had achieved durable remedy to prison crowding that prevented the state from

14 providing inmates with the mental health and medical care required by Eighth Amendment, as

15 required for vacatur of order of three-judge panel of district court, which required the state to

16 reduce prison population to 137.5% of design capacity). Therefore, this argument fails.

17

b. The CDCR’s New Policy

18

Defendants also argue that the CDCR has “implemented the ‘Security Threat

19 Group Prevention, Identification, and Management’ pilot program (STG pilot program).” (ECF

20 No. 254 at 23.) Defendants contend that “these measures, combined with new lockdown and

21 modified program protocols implemented in October 2012 have already resulted in a dramatic

22 decrease in the number and length of lockdowns and modified programs.” (ECF No. 254 at 23.)

23

Again, the Court construes Defendants’ briefing to argue that Plaintiffs’ case is

24 moot due to the CDCR’s new policy. Although the facts alleged by Defendants support

25 Defendants’ contention that the CDCR is succeeding in implementing different policies, they do

26 not negate the fact that there are material issues of fact as to whether the previous race-based

27 policy is being used in conjunction with the new policy. Furthermore, Plaintiffs have alleged that

28 the “new policy” utilizes the same race-based criteria that its predecessor employed. (ECF Nos. 8

1 280 at 43; Pls.’s Statement of Disputed Facts, No. 283 at ¶ ¶ 118–20; ECF Nos. 158 & 158-3

2 (Evenson Decl., ¶ 6 & Ex. C) at 113:13–114:12, 184:12–185:13.) As such, the Court finds that

3 summary judgment is not appropriate because material issues of fact exist concerning whether the

4 alleged unconstitutional race-based policy is still being utilized. Thus, the Court turns to

5 Defendants’ mootness claims as to the Plaintiffs individually.

6

ii. Defendants’ Mootness Arguments as to Individual Plaintiffs

7

a. Plaintiff Trujillo

8

Defendants argue that Plaintiff Trujillo (“Trujillo”) has been released on parole,

9 and thus his claims are moot. (ECF No. 254 at 21.) This Court agrees. “An inmate’s release

10 from prison while his claims are pending generally will moot any claims for injunctive relief

11 relating to the prison’s policies unless the suit has been certified as a class action.” Dilley v.

12 Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser v. Newkirk, 422 U.S. 395, 402−03

13 (1975); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991); Darring v. Kincheloe, 783 F.2d

14 874, 876 (9th Cir. 1986)). Plaintiffs contend that Trujillo’s claim is not moot pursuant to the

15 Ninth Circuit’s opinion in Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2009). In Rodriguez, the

16 Ninth Circuit held that “mootness of the Petitioner’s claim is not a basis for denial of class

17 certification, but rather is a basis for dismissal of Petitioner’s action.” Id. at 1117. There the

18 panel held “[b]ecause the district court did not dismiss Petitioner’s action, but only denied class

19 certification, we see no reason to conclude it based its denial on a finding of mootness. If it had

20 made such a finding, it would have been in error.” Id. Thus, the Ninth Circuit held that mootness

21 would be an appropriate reason to dismiss a claim, but would not be an appropriate reason to

22 deny class certification. Id. As such, Rodriguez does not bar this Court from dismissing

23 Trujillo’s claim.

24

Plaintiffs assert that although Trujillo was released on parole, he is still subject to

25 renewed detention, and thus his claims are not moot. (ECF No. 280 at 38.) However, Plaintiffs’

26 mere assertion does not demonstrate that Trujillo has a reasonable expectation that he will return

27 to prison and in turn be subjected to the policy at issue. Accordingly, the blanket conclusion that

28 Trujillo may be subjected to the CDCR policy in the future is too speculative to prevent 9

1 mootness. See Dilley, 64 F.3d at 1369; Wiggins v. Rushen, 760 F.2d 1009, 1011 (9th Cir. 1985);

2 see also Reimers v. Oregon, 863 F.2d 630, 632 & n. 4 (9th Cir. 1988) (holding that plaintiff who

3 had been released from prison had no reasonable expectation of return because such return would

4 occur only if the plaintiff committed additional criminal acts). Thus, the Court finds that

5 Trujillo’s claim for injunctive relief is moot and, therefore, must be dismissed.

6

b. Plaintiff Abdullah

7

Defendants next argue that Plaintiff Abdullah’s (“Abdullah”) claims are moot

8 because the prison where he is incarcerated—California State Prison Solano—is presently under a

9 court order prohibiting the CDCR from imposing race-based lockdowns. (ECF No. 254 at 22.)

10 The Court agrees with Defendants and finds that the decision in In re Haro, No. FCR282399

11 (Cal. Super. Ct., Jan. 18, 2013), moots Abdullah’s request for injunctive relief.

12

In Haro, the Solano Superior Court held that the CDCR’s lockdown policy could

13 not survive a strict scrutiny analysis, as required by the United States Supreme Court’s decision in

14 Johnson v. California, 543 U.S. 499 (2005). In re Haro, No. FCR282399 (Cal. Super. Ct., Jan.

15 18, 2013). Thus, the court ordered the CDCR to:

16

1) refrain from affording preferential treatment to inmates on the

basis of ethnicity. Specifically, respondent shall not subject any

17

inmate, including petitioner, to its “modified program” or any other

version of “lockdown” based on that inmate’s race or ethnic

18

background alone. While respondent, it [sic] its discretion, may

lockdown all or part of the prison, and may release inmates from

19

lockdown based upon individual behavior and upon informed

predictions of individual behavior, it may not do so on the basis of

20

ethnicity. Specifically, any assumption about affiliation with,

support of, or adherence to gang leadership used as a basis for

21

imposition of a modified program must be based on the specific

history, conduct and relationships of that inmate. 22

(2) Respondent shall no longer subject petitioner or any other

23

inmate to any of the six classifications currently being utilized for

its modified program or any other lockdown program and shall

24

either eliminate any general classification system or otherwise

recreate a classification system that is not race-based but instead

25

relies of [sic] specific, objective factors pertaining to an inmate’s

history, conduct and associations. 26

At a minimum, any such classification system must: 27

a. Preclude an inmate’s inclusion in a specific classification based

28

on his ethnic or geographic background alone.

10

1 2 3 4 5 6 7
Id.

b. Preclude classification (resulting in a lockdown or similar loss of privileges) to inmates who have no history of conduct or associations that establish that the inmate would in fact adhere to the dictates of that classification’s leadership.
c. Preclude arbitrary classifications that unduly focus on certain ethnicities (i.e. Hispanics) while wholly ignoring others (i.e. Asians).
d. Omit classifications such as “other” that do not in any meaningful manner affirmatively describe attributes of the inmate receiving such a classification.

8 The situation here is similar to the one faced by the Ninth Circuit in Enrico’s, Inc.

9 v. Rice, 730 F.2d 1250 (9th Cir. 1984). In Enrico, a cafe owner filed an action for injunctive and

10 declaratory relief against a price-posting procedure of California Department of Alcoholic

11 Beverage Control. While the case was pending before the district court, the California Court of

12 Appeals for the First District issued its decision in Lewis-Westco Co. v. Alcoholic Beverage

13 Control Appeals Bd., 136 Cal. App. 3d 829 (1983), invalidating the price-posting scheme at issue

14 as violative of the Sherman Act. Id. at 840. After the parties informed the district court of the

15 decision in Lewis-Westco, the district court asked the parties whether they still wanted the district

16 court to render a decision on their pending summary judgment motion. The parties requested a

17 ruling, and the district court granted summary judgment, finding that the price-posting procedure

18 did not constitute per se violation of the Sherman Act. The plaintiff appealed.

19 The Ninth Circuit held that in light of the California Court of Appeal’s holding

20 that the price-posting scheme was invalid and the department’s subsequent cessation of its

21 enforcement of the price-posting scheme, the appeal was moot for purposes of injunctive and

22 declaratory relief. Enrico’s, 730 F.2d at 1254. The same principle applies here. The Solano

23 Superior Court has already granted the injunctive relief sought by Abdullah. Therefore, this

24 Court finds that it cannot offer injunctive relief that the Solano Superior Court has already

25 granted, and thus Abdullah’s claim is moot. See id.; see also City of Erie, 529 US at 287 (holding

26 that “unless the prevailing party can obtain effective relief, any opinion as to the legality of the

27 challenged action would be advisory”).

28

11

1

Abdullah contends that his claim is not moot because, although the CDCR has

2 been ordered to stop and has made statements that it will comply, the CDCR’s past conduct

3 reflects an indifference to such orders and implies that it will continue implementing the policy.

4 (ECF No. 280 at 39–41.) This exact argument was found unpersuasive in Enrico’s. 730 F.2d at

5 1253. There, the Ninth Circuit stated “[i]n the case at bar we cannot see the threat of a real or

6 immediate injury to plaintiff that is necessary to demonstrate the existence of a case or

7 controversy. Past wrongs are not enough for the grant of an injunction.” Id. (citing City of Los

8 Angeles v. Lyons, 461 U.S. 95, 103 (1983)). As such, this Court also rejects this argument.

9

Additionally, to the extent that Abdullah contends that a federal decision is needed

10 to enforce the Superior Court’s order, this argument contradicts established principles of comity.

11 “If the equitable relief requested requires intrusive follow-up into state court proceedings, it

12 constitutes ‘a form of the monitoring of the operation of state court functions that is antipathetic

13 to established principles of comity.’” E.T. v. George, 681 F. Supp. 2d 1151, 1162 (E.D. Cal.

14 2010) (quoting O’Shea v. Littleton, 414 U.S. 488, 500 (1974)). Thus, this Court declines 15 Plaintiffs’ invitation to intervene in the California state court’s decision.2

16

c. Plaintiff Mitchell

17

Defendants contend that Plaintiff Mitchell’s (“Mitchell”) claim for injunctive relief

18 is moot because “since January 2012, Mitchell has been subjected to no more than five modified

19 programs at Folsom State Prison, all of which were exceedingly short.” (ECF No. 254 at 25.)

20 Defendants also contend that “[t]o the extent any of these modified programs affected a particular

21 racial group, they were narrowly tailored to further prison safety and security” and that “because

22 there is no reasonable expectation that Mitchell will be subjected to the same allegedly

23 unconstitutional conditions again, his claim for injunctive relief is moot.” (ECF No. 254 at 25.)

24 In support of their contention, Defendants list and provide a brief summary of the events

25 concerning the lockdowns that Mitchell was subjected to during 2012.

26

Defendants’ briefing seems to conflate the issue of mootness with their arguments

27

2

Because the Court dismisses Abdullah’s claim, there is no need to address Defendants’ other contentions

28 that Abdullah was not subjected to excessively lengthy, race-based lockdowns or modified programs.

12

1 concerning whether the policy is unconstitutional. In fact, Defendants use much of their eighty-

2 eight page brief recounting specific lockdown events as they pertain to each of their arguments.

3 Because these arguments are inextricably intertwined in the briefing, the Court will briefly

4 address Defendants’ assertions as they pertain to their mootness arguments and will address in

5 more detail Defendants’ substantive arguments in later sections of this Order. In doing so, the

6 Court has attempted to provide an abridged version of the facts pertaining to specific lockdowns

7 below:

8

December 29, 2011 modified program at Folsom State Prison

(FSP-11-12-019) 9

On December 29, 2011, a riot involving 50 to 60 Black and White

10

inmates took place in Folsom State Prison’s #1 Dining Room.

(DUF 17; see also Decl. Cahayla at ¶ 7 & Ex. A.) #1 Dining Room

11

is a relatively small dining area, seating approximately 120 inmates.

(Decl. Cahayla at ¶ 7.) Therefore, almost half of the inmates in the

12

#1 Dining Room for the evening meal were involved in this

particular riot. (Id.) Facing significant security risks, prison

13

officials placed all Black and White inmates (and their cell

partners) throughout the institution on modified program pending

14

an investigation and Administrative Review. (Id; see also DUF 18,

Cahayla Decl. Ex. A.) . . . Based on the investigation results and the

15

inmate population’s positive behavior and conduct, it was

determined that all Black and White inmates (and their cell

16

partners) in Housing Unit 1 could return to a complete normal

program at 1:00 a.m. on January 5, 2012. (Id.) 17

18 (ECF NO. 254 at 25.) Defendants stated that this incident was a “race riot” that necessitated a

19 race-based lockdown. (ECF No. 254 at 26.) In further support of their contention that the policy

20 is narrowly tailored, Defendants stated:

21

[O]nly the involved racial groups were placed on modified program

while prison staff investigated which inmates or disruptive groups

22

were involved and whether future violence between the warring

racial groups would continue if the modified program were lifted.

23

By limiting the modified program to the involved racial groups,

officials narrowly tailored the modified program to further prison

24

safety and security.

25 (ECF No. 254 at 26.)

26

February 25, 2012 modified program at Folsom State Prison

(FSP-12-02-001) 27

On February 25, 2012, Folsom State Prison officials implemented a

28

modified program after an inmate battery with a weapon took place,

13

1

resulting in the inmate’s death. (DUF 21.) As a result of this

incident, all 2,829 inmates in all housing units across the institution

2

were placed on modified program pending an investigation and

Administrative Review. (Id; see also Decl. Cahayla at ¶ 9 & Ex.

3

B.) . . . On February 27, 2012, only inmates in Housing Unit 2 and

all White inmates throughout the institution remained on modified

4

program. (DUF 23.) On February 29, 2012, the modified program

was narrowed to White inmates only. (DUF 24.) By March 2,

5

2012, the circumstances surrounding the incident had been

thoroughly investigated and addressed and all inmates were

6

returned to a complete normal program. . . . because Mitchell lived

in Housing Unit 1 at the time, the modified program would have

7

only affected Mitchell for two days. (DUF 26, DUF 23; see also

Decl. Cahayla at ¶ 9 & Ex. B.) A two-day denial of yard time is not

8

unconstitutional. See Hayward, 629 F.2d at 603. And for those two

days, Mitchell was not locked down “solely on account of his race”

9

because the modified program did not separate racial groups. It

affected all inmates from all housing units at Folsom State Prison.

10

(DUF 22.) Accordingly, modified program #FSP-12-02-001 did not

violate Mitchell’s Eighth or Fourteenth Amendment rights.

11 (ECF No. 254 at 26−27.)

12

March 6, 2012 modified program at Folsom State Prison (FSP-

13

12-03-003)

14

On March 6, 2012, approximately 100 Black inmates violently

rioted on the main recreation yard at Folsom State Prison. (DUF

15

27.) Only Black inmates were involved in the riot. (Decl. Cahayla

at ¶ 11.) Immediately after the riot, Folsom State Prison’s warden

16

initiated a modified program that affected all Black inmates to

ensure their safety while correctional staff tried to determine why

17

the riot happened and whether more violence among Black inmates

was likely to occur. (DUF 28; see also Decl. Cahayla at ¶ 11 & Ex.

18

C.) On March 7, 2012, less than twenty-four hours later, the

modified program was amended so that it only impacted the three

19

involved disruptive groups: the Crips, the Bloods, the Bay Area

affiliates, and their cell partners. (DUF 29.) All other Black

20

inmates were released to normal program. (Id.) Because Mitchell

allegedly celled with a Blood during this time, this modified

21

program ostensibly affected him. (Decl. Sullivan at ¶ 9 and Ex. H

[Mitchell Dep. Excerpts] at 98:6-10, 14-18.) . . . On March 20,

22

2012, the investigation revealed there was no further tension

between the affected groups. (Decl. Cahayla at ¶ 11 & Ex. C.)

23

Therefore, the modified program was terminated and all of the

affected gang members and their cell partners in Housing Unit 1

24

returned to normal program. (Id; see also DUF 33.) Modified

program #FSP-12-03-003 lasted about two weeks. (Decl. Cahayla

25

at ¶ 11 & Ex. C.)

26

27 (ECF No. 27−28.) Defendants contend that the two-week modified program was not

28 unconstitutional because “it was implemented in the narrowest degree possible to re-establish 14

1 prison security and to ensure the safety of inmates and staff. Only members from the Black

2 inmate population were involved in the large riot so inmates of other races were not placed on

3 modified program. (ECF No. 28.)

4

July 16, 2012 modified program at Folsom State Prison

(FSPCUS-12-005) 5

On July 16, 2012, a riot occurred on the Folsom State Prison main

6

yard basketball court involving 10-15 Black inmates affiliated with

the Bay Area and Crip disruptive groups. (DUF 34.) Given the

7

scale of the incident, a Code 3 alarm was announced over the

institutional radio, requesting the immediate assistance of all

8

available prison staff. (Decl. Cahayla at ¶ 13.) All inmates

affiliated with these disruptive groups and their cell partners were

9

placed on modified program pending an investigation and

Administrative Review. (Id; see also DUF 34.) This modified

10

program affected 429 gang-affiliated Black inmates and their cell

partners —35% of the Black inmate population at Folsom State

11

Prison at the time. (Decl. Cahayla at ¶ 13.)

12

13 (ECF No. 254 at 29.) Defendants again argue that this modified program was not

14 unconstitutional because it was “implemented in a narrowly tailored manner and under

15 circumstances in which such a measure was necessary to protect the safety of inmates and staff,”

16 and further that it “was not ‘race based’ because it only placed members of the Bay Area

17 Affiliates and the Crips gang on modified program, and not a racial group.” (ECF No. 254 at 30.)

18

October 12, 2012 modified program at Folsom State Prison

(FSP-CUS-12-010) 19

On October 12, 2012, a riot involving 9 inmates affiliated with the

20

Blood disruptive group erupted on Folsom State Prison’s main

exercise yard. (DUF 37.) This modified program did not affect

21

Mitchell because he previously testified that his cell partner

affiliated with the Bloods moved shortly after the March 6, 2012

22

riot and he has not since been celled with an inmate affiliated with

the Bloods. (Decl. Sullivan at ¶ 9 & Ex. H [Mitchell Dep.

23

Excerpts] at 99:21-23;100:2; 104:21-24; 105:11-21.)

24 (ECF No. 254 at 30.)

25

October 16, 2012 modified program at Folsom State Prison

(FSP-CUS-12-011) 26

On October 16, 2012, Folsom State Prison staff discovered

27

numerous uncontrolled weapons in a Common Area. (DUF 39.)

Accordingly, all 2,456 inmates throughout the institution were

28

placed on modified program pending an investigation and

15

1

Administrative Review. (DUF 40; see also Decl. Cahayla at ¶ 18 &

Ex. F.) . . . All inmates returned to normal program at 1:00 A.M. on

2

October 23, 2012, once prison staff verified that any unrest among

general population inmates had subsided. (Id; see also DUF 41.)

3

Modified program #FSP-CUS-12-011 lasted about one week.

(Decl. Cahayla at ¶ 18.)

4 (ECF No. 254 at 30−31.)

5

6

In sum, Defendants seem to assert that Mitchell’s claim is moot because the

7 lockdowns were narrowly tailored and thus did not violate Mitchell’s constitutional rights.

8 Defendant’s argument goes to the merits of Mitchell’s claim and thus does not support

9 Defendant’s assertion that Mitchell’s claim is moot. Moreover, Defendants’ arguments

10 concerning the merits fail to allege that this policy is the least restrictive option, i.e. that

11 Defendants considered any alternatives to a race-based policy. See Wygant v. Jackson Bd. of

12 Educ., 476 U.S. 267, 280 (1986) (“Under strict scrutiny the means chosen to accomplish the

13 State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.

14 Racial classifications are simply too pernicious to permit any but the most exact connection

15 between justification and classification.”) (quotation marks and citations omitted); see also

16 Crawford v. Lungren, 96 F.3d 380, 386 (9th Cir. 1996) (“To pass constitutional muster, content-

17 based restrictions must be the least restrictive alternative available.”) Although courts normally

18 apply deferential review standards to prison policies, the U.S. Supreme Court has consistently

19 refused to apply this standard where racial classification is at issue. See Johnson v. California,

20 543 U.S. 499, 500 (2005). Defendants have failed to show that the policy meets the strict scrutiny

21 standard.

22

Furthermore, Defendants’ contention that they have implemented a new policy

23 does not suffice to moot Mitchell’s claims because Mitchell has presented evidence that the

24 CDCR’s policy of using racial classification to impose lockdowns has not been changed by the

25 new policy. (See ECF No. 280 at 43 (citing Ex. C, ECF No. 158-3 at 184:1−6.)) Consequently,

26 because Defendants have not offered evidence that the race-based policy is now defunct, there is

27 nothing speculative about the likelihood that the policy will be utilized in the future.

28 Furthermore, the blanket statements offered by Defendant—“[t]he [new] policy states that 16

1 officials shall not target a specific racial or ethnic group unless it is necessary and narrowly

2 tailored to further a compelling government interest, such as restoring security and order after an

3 incident or protecting the health and safety of the inmates and staff” —employs the language used

4 in the legal standard for strict scrutiny, but fails to provide any evidence that the policy is actually

5 narrowly tailored. (See ECF Nos. 297 at 21, 238 at ¶ 42.) In fact Defendant’s blanket statements

6 conflict with statements made in the declaration of Associate Director for the High Security

7 Mission at the CDCR Kelly Harrington. She stated that in an emergency situation, the new policy

8 allows the Warden to “implement, on a short-term basis (typically up to two weeks), a modified

9 program or lockdown that separates inmates on the basis of race or ethnicity.” (ECF No. 238 at ¶

10 42.) Thus, there is a material issue of fact as to whether the race-based policy at issue is currently

11 being applied or may be applied to Mitchell in the future. Therefore, Mitchell’s claims are not

12 moot. 13

d. Plaintiff Quezada3

14

Defendants contend that Plaintiff Quezada’s (“Quezada”) claims are moot because

15 since 2012, Quezada has only been subjected to one modified program (lockdown), which

16 affected Facilities 4A1, 4A2, and 4B and was not based on ethnicity. (ECF No. 254 at 31.)

17 Again, as discussed above, this argument fails because Defendants do not show that the CDCR no

18 longer utilizes a race-based lockdown policy. The fact that Quezada had not been subjected to a

19 lockdown in 2012 does not negate the fact that Quezada was subjected to race-based lockdowns

20 in February 2010, December 2010 and January 2011. (ECF No. 84 at ¶¶ 59−60.) Nor does it

21 show that the lockdown policy is not still being utilized, and that Quezada is unlikely to continue

22 to be subjected to such lockdowns in the future. Furthermore, Quezada disputes Defendants’

23 contention that the lockdown was not based on ethnicity. Specifically, Quezada alleges that Kern

24 Valley State Prison imposed a lockdown on all prisoners who were racially classified as “Other”

25 after an incident involving a prisoner classified as “Asian Other.” (ECF No. 84 at ¶ 57.)

26 Quezada further alleges that this incident resulted in him being locked down solely based on his

27

3

Defendants’ memorandum in support of summary judgment (ECF No. 254) refers to Plaintiff Quezada as

28 “Quesada.”

17

1 classification as “Hispanic Other.” (ECF No. 84 at ¶¶ 56–57.) The lockdown allegedly lasted for

2 90 days, during which Quezada was “typically confined to his cell for 24-hours per day, deprived

3 of outdoor exercise, and deprived of visits with his family.” (ECF No. 84 at ¶¶ 57–60.) For the

4 foregoing reasons, the Court finds that Defendants have not met their burden of showing that a

5 live controversy no longer exists, and therefore, Quezada’s claims are not moot. Consequently,

6 the Court next addresses Defendants’ arguments concerning their affirmative defenses.

7

B. Defendants’ § 1983 Affirmative Defenses

8

Defendants allege that they are entitled to summary judgment on numerous

9 affirmative defense theories concerning specific Defendants. The Court addresses each claim

10 individually below.

11

i. Respondeat Superior

12

In this case at issue, Defendant Tilton (“Tilton”) is the former Secretary of CDCR

13 and is being sued in his individual capacity. (ECF No. 84 at ¶ 18.) Defendants contend that

14 Tilton cannot be held liable for Mitchell’s § 1983 claims because he was not involved in the

15 implementation, modification, or termination of the modified programs at High Desert State

16 Prison, and further that the doctrine of respondeat superior does not apply to § 1983 claims. (ECF

17 No. 254 at 40.) In response, Plaintiffs argue that the record reflects that as Secretary of the

18 CDCR Tilton was required to approve all lockdown or modified programs that:

19

(1) [affected] all housing units/sub-facilities within a facility’s

security perimeter for more than 24 hours. 20

(2) A lockdown or modified program of fewer than all housing

21

units/sub-facilities within a facility’s security perimeter is to exceed

72 hours. 22

(3) The suspension of a facility’s major program or operation is to

23

exceed 72 hours; e.g., an academic or career technical education

program, visiting program, yard operation, or dining room

24

operation.

25

26 Cal. Code Reg., tit. 15 § 3383(c). In addition, Plaintiffs cite to the CDCR’s 2007 policy (ECF

27 No. 158-9) and the deposition of the current CDCR Secretary, Jeffrey A. Beard (ECF No. 284-2)

28 in support of their allegation that Tilton implemented the prison lockdowns. The CDCR’s 2007 18

1 Policy states:

2

Pursuant to the California Penal Code, the Secretary of the

California Department of Corrections and Rehabilitation (CDCR)

3

through the various institutions is charged with the incarceration of

these individuals sentenced to state prison. In keeping with this

4

responsibility, the Secretary, through the individual Wardens and

the Division of Adult Institutions (DAI), shall establish and

5

maintain unlock procedural guidelines.

6 (ECF No. 158-9 at 1.) Likewise, Mr. Beard testified that although the lockdown policy was put

7 into place before he became Secretary, “by virtue of his position, [he] would then be responsible

8 for all the policies.” (ECF No. 284-2 6:10−12.) In response, Defendants argue that Plaintiffs’

9 opposition relies on Tilton’s supervisory status and that Plaintiffs cannot establish the causal link

10 necessary for liability. (ECF No. 297 at 23.)

11

The Civil Rights Act under which this action was filed provides:

12

Every person who, under color of [state law] ... subjects, or causes

13

to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the

14

Constitution ... shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

15 42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

16 actions of the defendants and the plaintiff’s alleged deprivation. Rizzo v. Goode, 423 U.S. 362,

17 371 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

18 meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

19 omits to perform an act which he is legally required to do that causes the deprivation of which

20 complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Supervisory personnel

21 are customarily not liable under § 1983 for the actions of their employees under a theory of

22 respondeat superior. Thus, when a named defendant holds a supervisorial position, the causal

23 link between him and the claimed constitutional violation must be specifically alleged. See Fayle

24 v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

25 1978); Brooks v. Felker, 2:08-CV-2512 KJM KJN, 2011 WL 4898189 (E.D. Cal. Oct. 13, 2011).

26 “Supervisors can be held liable for: (1) their own culpable action or inaction in the training,

27 supervision, or control of subordinates; (2) their acquiescence in the constitutional deprivation of

28 19

1 which a complaint is made; or (3) for conduct that showed a reckless or callous indifference to the

2 rights of others.” Cunningham v. Gates, 229 F.3d 1271, 1292 (9th Cir. 2000) (citing Larez v. City

3 of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991)). Accordingly, to establish liability, Plaintiffs

4 must offer specific facts to satisfy one of the prongs. Vague and conclusory allegations

5 concerning an official’s involvement in civil rights violations are not sufficient. See Ivey v. Bd. of

6 Regents, 673 F.2d 266, 268 (9th Cir. 1982).

7

Defendants’ primary argument is that Brooks v. Felker, 2011 WL 4898189, at *4,

8 held that the Secretary of the CDCR could not be held liable for a policy that violates inmates’

9 civil rights. The Court finds that Defendants’ reliance is misplaced. In Brooks, the district court

10 denied a prisoner’s request to amend his complaint to add the Secretary of the CDCR as a

11 defendant in his equal protection claim. In making this determination, the district court

12 considered that Defendants had supplied a declaration stating that the Secretary had “no role in

13 the decision to implement, modify or terminate the lockdowns,” and further found that the

14 “plaintiff failed to demonstrate diligence or good cause to add these defendants or proposed new

15 claims concerning CDCR regulations.” Id. at *3−4. Here, Plaintiffs have supplied the Court not

16 only with a policy stating that the Secretary must approve lockdowns, but also the testimony of

17 the current Secretary stating that he is responsible for all policies per his position. In contrast,

18 Defendants have not provided evidence that Titlon was not involved in approving the lockdowns.

19 Thus, the Court finds that Tilton’s involvement in the lockdowns constitutes a material issue of

20 fact and Defendants have not met their burden under Celotex. 477 U.S. at 323 (holding that

21 pursuant to summary judgment practice, the moving party always bears the initial responsibility

22 of demonstrating the absence of a genuine issue of material fact.)

23

ii. Qualified Immunity

24

Individual Defendants Felker, Vanderville, Owen, Hellwig, Titlon, Foulk, and

25 Wright4 assert that qualified immunity bars Plaintiffs’ § 1983 claims because Defendants did not

26 violate Plaintiffs’ constitutional rights and further that there was no clearly established law

27

4

Plaintiffs have sued Defendants Felker, Vanderville, Owen, Hellwig, Titlon, Foulk, and Wright in their

28 individual capacity. (See ECF No. 84 at ¶¶ 18–24.)

20

1 holding that their conduct was unconstituional at the time of the alleged violations. (ECF No. 254

2 at 72−74.) In response, Plaintiffs assert that Defendants did violate Plaintiffs’ constitutional

3 rights and further that the policy at issue is governed by clearly established law established prior

4 to the time frame at issue. (ECF No. 280 at 69.) Since Plaintiffs’ claims include both violations

5 of the Fourteenth and Eighth Amendment, the Court first addresses the legal standard for

6 qualified immunity and then addresses each alleged constitutional violation separately.

7

“Qualified immunity balances . . . the need to hold public officials accountable

8 when they exercise power irresponsibly and the need to shield officials from harassment,

9 distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 10 U.S. 223, 231 (2009). The doctrine of qualified immunity insulates government officials5 from

11 civil damages in § 1983 litigation “insofar as their conduct does not violate clearly established

12 statutory or constitutional rights of which a reasonable person would have known.” Pearson, 555

13 U.S. at 231 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is an

14 affirmative defense; the burden of pleading it rests with the defendant. Crawford-El v. Britton,

15 523 U.S. 574, 586–87 (1998) (citing Gomez v. Toledo, 446 U.S. 635, 639−41 (1980)).

16 Furthermore, because qualified immunity is “an immunity from suit rather than a mere defense to

17 liability . . . it is effectively lost if a case is erroneously permitted to go to trial.” Pearson, 555

18 U.S. at 231 (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) [hereinafter Forsyth]).

19 Accordingly, the Supreme Court has repeatedly stressed the importance of resolving immunity

20 questions at the earliest possible stage in litigation. Id. at 233–34 (“Because qualified immunity

21 protects government officials from suit as well as from liability, it is essential that qualified

22 immunity claims be resolved at the earliest possible stage of litigation.”) (citing Forsyth, 472 U.S.

23 at 526). In resolving the question of qualified immunity on a motion for summary judgment, the

24

25

5

Qualified immunity protects only individuals, not municipalities or other governmental entities.

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166 (1993). Because

26

defendants who are sued in their official capacity stand in the same shoes as the entity itself, qualified immunity does not apply. See, e.g., Hallstrom v. City of Garden City, 991 F.2d 1473, 1482 (9th Cir. 1993) (“A municipality (and its

27

employees sued in their official capacities) may not assert a qualified immunity defense to liability under Section 1983.” (citing Owen v. City of Independence, 445 U.S. 622, 638 (1980); Kentucky v. Graham, 473 U.S. 159, 165–68

(1985))). Therefore, the Court considers only the claims against the defendants sued in their individual capacities.
28

21

1 court must view the facts in the light most favorable to the plaintiff (see Schwenk v. Hartford, 204

2 F. 3d 1187, 1198 (9th Cir. 2009), and can only grant the motion if defendants present evidence

3 that would entitle them to a “directed verdict if the evidence went uncontroverted at trial.”

4 Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992).

5

The determination of qualified immunity requires a two-step test: (1) whether facts

6 alleged, taken in the light most favorable to the injured party, show the defendants’ conduct

7 violated a constitutional right; and (2) whether the right was clearly established. Lacey v.

8 Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (en banc). The first prong of the qualified

9 immunity analysis is distinct from the inquiry on the merits of the constitutional violation.

10 Saucier v. Katz, 533 U.S. 194, 201 (2001); see also Forsyth, 472 U.S. at 527−28 (1985) (“A

11 claim of immunity is conceptually distinct from the merits of the Plaintiff’s claim that his rights

12 have been violated.”).

13

In deciding the second prong, the Court considers whether the contours of the right

14 were sufficiently clear at the time that the action occurred so that a “reasonable official would

15 understand that what he is doing violates that right.” Mendoza v. Block, 27 F.3d 1357, 1361 (9th

16 Cir. 1994) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The Supreme Court has

17 referred to decisions of the Court of Appeals when enquiring whether a right is clearly

18 established. See Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004); Forsyth, 472 U.S. at

19 533; Davis v. Scherer, 468 U.S. 183, 191−192 (1984). “For a constitutional right to be clearly

20 established, its contours ‘must be sufficiently clear that a reasonable official would understand

21 that what he is doing violates that right.’” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting

22 Anderson, 483 U.S. at 640). Thus, the Court makes a decision based on the reasonableness of an

23 officer’s understanding based on the applicable law. See id.; Boyd, 374 F.3d at 781. “However,

24 a victim’s constitutional rights may be clearly established in the absence of a case ‘on all fours

25 prohibiting [the] particular manifestation of unconstitutional conduct [at issue].’” Id. (quoting

26 Deorle v. Rutherford, 272 F.3d 1272, 1286 (9th Cir. 2001)). Where an officer’s conduct “is so

27 patently violative of the constitutional right that reasonable officials would know without

28 guidance from the courts that the action was unconstitutional, closely analogous pre-existing case 22

1 law is not required to show that the law is clearly established.” Id. (quoting Deorle, 272 F.3d at

2 1286) (internal quotation marks omitted).

3

The Court decides in its discretion whether to address the first or second prong

4 first. See Pearson, 555 U.S. at 237. However, if the Court initially addresses the first prong and

5 finds that no constitutional right was violated under the alleged facts, the inquiry ends and

6 defendants prevail. Saucier, 533 U.S. at 201.

7

a. Eighth Amendment Claim

8

Because the Court finds that the second prong of the two-part test is dispositive as

9 to Defendants’ qualified immunity claim under the Eighth Amendment, the Court addresses the

10 second prong first.

11

The parties disagree as to whether a lack of exercise for extended periods of time

12 was a clearly established Eighth Amendment violation at the time of the underlying allegations.

13 Defendants cite Norwood v. Cate, No. 1:09-cv-0030-AWI-GBC, 2012 WL 3143928, at * 15

14 (E.D. Cal. Aug. 1, 2012), in support of its contention that the deprivation of exercise was not

15 clearly established as violating the Eighth Amendment throughout the 2006−2007 time period at 16 issue.6 In response, Plaintiffs contend that numerous Ninth Circuit opinions on point were

17 published prior to the alleged violations. (ECF No. 280 at 71.) Thus, this issue turns on whether

18 the deprivation of exercise was a clearly established Eighth Amendment violation throughout the

19 2006−2007 time period at issue.

20

“In the Ninth Circuit, we begin our inquiry by looking to binding precedent.”

21 Boyd, 374 F.3d at 781; see also Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). If the

22 right is clearly established by decisional authority of the Supreme Court or of this Circuit, our

23 inquiry should come to an end. See Boyd, 374 F.3d at 781. In 2009, the Ninth Circuit decided

24 Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010) (amended opinion) [hereinafter Vance], in

25 which the panel reversed the district court’s denial of the defendant’s motion for summary

26

27

6

The Court notes that this case does discuss whether the denial of outdoor exercise has been clearly

established as an Eighth Amendment violation. However, this case was vacated by a subsequent opinion, see

Norwood v. Cate, No. 1:09-cv-00330-AWI-SAB, 2013 WL 524270 (E.D. Cal. Feb. 11, 2013), and is thus not
28 properly citable.

23

1 judgment, finding that defendant officials were entitled to qualified immunity. In Vance, a state

2 inmate brought a §1983 action, alleging that corrections officials violated the Eighth Amendment

3 by depriving him of outdoor exercise. Id. The prison initiated the lockdowns after a number of

4 serious inmate assaults on staff. Id. at 1065. During the lockdowns, inmates were confined to

5 their cells and normal programs were suspended while officials investigated the violence. Id.

6 The case went to trial and a jury found that defendants violated Norwood’s Eighth Amendment

7 right to outdoor exercise. Id. at 1066. Defendants appealed the verdict contending that the

8 district court erred in not providing defendants’ proposed jury instruction. Id.

9

The Ninth Circuit found that the trial court had erred in not giving the instruction,

10 but found that remanding for a new trial was unnecessary because defendants were entitled to

11 qualified immunity. Id. at 1067−68. In determining whether it would be clear to a reasonable

12 officer that denying outdoor exercise was unlawful in a situation where officers were trying to

13 curtail and prevent imminent violence, the Ninth Circuit held that “[t]he extraordinary violence

14 gripping the prison threatened staff and inmates alike, and there was a serious risk that gangs

15 would press unaffiliated inmates like Norwood into service [i.e., recruiting unaffiliated prisoners

16 to participate in prison riots].” Id. at 1068. Thus, the Ninth Circuit held that the officers acted

17 reasonably in implementing the lockdowns. In doing so, the panel discussed Allen v. Sakai, 48 18 F.3d 1082 (9th Cir. 1995),7 and petitioner’s reliance on it in arguing that depriving him of

19 exercise violated his Eighth Amendment right:

20

Allen does not hold that a prisoner’s right to outdoor exercise is

absolute and indefeasible, or that it trumps all other considerations.

21

Plaintiffs in Allen survived summary judgment because prison

officials there relied on “inconsequential logistical concerns” to

22

justify denying outdoor exercise. Defendants here had substantial

reasons for imposing the lockdowns: They were attempting to

23

restore order during a series of brutal attacks, some lethal or nearly

so. 24

25 Id. at 1068−69 (internal citations omitted). Thus, the panel concluded that a reasonable officer

26 could have believed that the restriction of outdoor exercise was consistent with the Eighth

27 7

In Allen, the Ninth Circuit found that prison officials were not entitled to qualified immunity where they

denied prisoners exercise based on logistical issues. Allen did not address whether such lockdowns would violate the
28 Eighth Amendment if imposed in response to incidents of violence within a prison.

24

1 Amendment: “[c]ertainly, no authority clearly established the contrary.” Id. at 1700.

2

Again in 2011, the Ninth Circuit was charged with determining whether it would

3 be clear to a reasonable officer that denying outdoor exercise was unlawful in the wake of violent

4 prison inmate conditions. See Noble v. Adams, 646 F.3d 1138 (9th Cir. 2011). In Noble, a

5 prisoner, who resided in the Substance Abuse Treatment Center (“SATF”) at Corcoran State

6 Prison during 2002 and 2003, claimed that he suffered violation of his rights under the Eighth

7 Amendment when he was denied outdoor exercise pursuant to lockdown procedures precipitated

8 by prison riots. Id. The district court denied defendant officials’ summary judgment motion on

9 the merits and their qualified immunity assertion as to part of the lockdown time frame. The

10 Ninth Circuit reversed the district court, holding that:

11

We conclude pursuant to what is now known as prong 2 of the

Saucier v. Katz test, that it was not clearly established in 2002—nor

12

is it established yet—precisely how, according to the Constitution,

or when a prison facility housing problem inmates must return to

13

normal operations, including outside exercise, during and after a

state of emergency called in response to a major riot, here one in

14

which inmates attempted to murder staff.

15 Noble, 646 F.3d at 1142−43 (emphasis added) (internal citations omitted).

16

Here, the conduct complained of occurred in 2006 and 2007 in response to

17 numerous violent attacks or threats. As such, the conduct complained of falls within the time line

18 specified by the Ninth Circuit as not having clearly established law on point. Plaintiffs have not 19 presented, nor has this Court found, any case law that contradicts Vance and Noble.8 Therefore,

20 the Court defers to prison officials’ judgment so long as that judgment does not manifest either

21 deliberate indifference or an intent to inflict harm. See Noble, 646 F.3d at 1143; Vance, 591 F.3d

22 at 1069 (holding that prison officials are entitled to “wide-ranging deference”). Defendants have

23 8

The case law prior to Vance and Noble yields varying results and therefore does not provide a consensus.

24

Compare Jones v. Garcia, 430 F. Supp. 2d 1095, 1102−03 (S.D. Cal. 2006) (finding no Eighth Amendment violation where prisoner was denied outdoor exercise for ten months); Hayes v. Garcia, 461 F. Supp. 2d 1198, 1201, 1207−08

25

(S.D. Cal. 2006) (same for nine-month denial of outdoor exercise); Hurd v. Garcia, 454 F. Supp. 2d 1032, 1042−45 (S.D. Cal. 2006) (same for five-month denial); with Thomas v. Ponder, 611 F.3d 1144, 1151−52 (9th Cir. 2010)

26

(“Exercise is one of the most basic human necessities protected by the Eighth Amendment. Like food, it is ‘a basic human need protected by the Eighth Amendment.’” (quoting Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996)));

27

Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir. 1980) (denial of outdoor exercise may give rise to Eighth Amendment violation even in response to emergency conditions); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (“There is substantial agreement among the cases in this area that some form of regular outdoor exercise is
28 extremely important to the psychological and physical well-being of the inmates.”)

25

1 presented information concerning the numerous lockdowns and the events that precipitated them,9

2 as well as the measures that were taken to investigate and return the inmates to normal conditions.

3 Plaintiffs have not presented any evidence that supports a finding that the lockdowns were

4 imposed because of officials’ deliberate indifference or intent to inflict harm. Thus, Defendants

5 Felker, Vanderville, Owen, Hellwig, Titlon, Foulk, and Wright are entitled to qualified immunity

6 as to Plaintiffs’ Eighth Amendment claims.

7

b. Fourteenth Amendment Claim

8

Throughout Defendants’ briefing, Defendants assert that the race-based lockdown

9 policy that was utilized does not violate Plaintiffs’ equal protection rights under the Fourteenth

10 Amendment. Consequently, individual Defendants Felker, Vanderville, Owen, Hellwig, Titlon,

11 Foulk, and Wright move for summary judgment as to Mitchell’s Fourteenth Amendment Claim

12 asserting that they are entitled to qualified immunity.

13

As referenced above, the determination as to whether one is entitled to qualified

14 immunity requires a two-step test: (1) whether facts alleged, taken in the light most favorable to

15 the injured party, show the defendants’ conduct violated a constitutional right; and (2) whether

16 the right was clearly established. Lacey, 693 F.3d at 915.

17

1. Whether a Constitutional Violation Occurred

18

Because the CDCR’s policy at issue utilizes racial classification, Defendants must

19 show that the policy passes strict scrutiny for qualified immunity to apply. Johnson, 543 U.S. at

20 507. “Under strict scrutiny the means chosen to accomplish the State’s asserted purpose must be

21 specifically and narrowly framed to accomplish that purpose.” Wygant v. Jackson Bd. of Educ.,

22 476 U.S. 267, 280 (1986). The Supreme Court’s opinion in Cruz v. Beto, 405 U.S. 319, 321

23 (1972), instructs lower courts that in certain instances a race-based policy may survive strict

24 scrutiny, but to do so the policy must be shown to be a necessity. For Defendants to show that the

25 policy at issue is a necessity, they must show that there was not another viable option. Thus,

26 narrow tailoring “require[s] serious, good faith consideration of workable race-neutral alternatives

27 that will achieve [the compelling government interest].” Grutter v. Bollinger, 539 U.S. 306, 339

28 9

Infra Section III(B)(c).

26

1 (2003).

2

Here, Defendants have provided numerous pages of justifications for the policy at

3 issue, yet they have not shown that there is not a viable alternative. Essentially, Defendants argue

4 that because there were viable reasons for the lockdowns, the modified programs meet the

5 narrowly tailored requirement under strict scrutiny analysis. This argument does not satisfy the

6 strict scrutiny requirement because Defendants have made no showing as to whether race-neutral

7 alternatives were considered.

8

Defendants also argue in their reply brief that Plaintiffs cannot satisfy the first

9 prong under Saucier because Defendants did not act with a discriminatory purpose. (ECF No.

10 297 at 38). This contention runs afoul of established Ninth Circuit precedent. The CDCR has

11 admitted to considering race as a factor in implementing its policy, thus discriminatory intent is

12 presumed. See Walker v. Gomez, 370 F.3d 969, 974 (9th Cir. 2004) (“Plaintiff was not required

13 to prove discriminatory intent because “[t]he state admit[ted] considering race when it assign[ed]

14 inmates their cell mate.”) Thus, Defendants have not shown that a constitutional violation did not

15 in fact occur, and the Court must address the second prong of Saucier.

16

2. Clearly Established Law

17

Although Defendants assert that they are entitled to qualified immunity, they do

18 not address clearly established law as it pertains to Mitchell’s Fourteenth Amendment claim and

19 seemingly rely on their argument that a constitutional violation did not occur. (See ECF No. 254

20 at 72–74.) However, because Defendants have failed to show that no constitutional violation

21 occurred, the Court will address the second prong.

22

In 2005, the United States Supreme Court decided Johnson v. California, 543 U.S.

23 499 (2005), in which it held that strict scrutiny applies to prison policies utilizing racial

24 classification. “The need for strict scrutiny is no less important here, where prison officials cite

25 racial violence as the reason for their policy. As we have recognized in the past, racial

26 classifications ‘threaten to stigmatize individuals by reason of their membership in a racial group

27 and to incite racial hostility.’” Johnson, 543 U.S. at 507 (citing Shaw v. Reno, 509 U.S. 630, 643

28 (1993) (citing City of Richmond v. J.A. Croson Co., 188 U.S. 469, 493 (1989) (plurality 27

1 opinion))).

2

The actions at issue occurred during 2006 and 2007. Thus, the contours of the

3 right were sufficiently clear at the time that the action occurred so that a reasonable official would

4 understand that a policy that utilizes racial classifications violates a prisoner’s equal protection

5 rights if it does not pass strict scrutiny–i.e., no viable alternative exists. Consequently,

6 Defendants cannot establish that they are entitled to qualified immunity on Plaintiffs’ Fourteenth

7 Amendment claims.

8

iii. Defendants’ Lack of Authority

9

Defendants also argue that Defendants Vanderville, Owen, Foulk, Wright and

10 Hellwig were not involved in the development or imposition of the modified programs that form

11 the basis of the complaint and thus are entitled to summary judgment. (ECF No. 254 at 41–44.)

12 Because the Court has already determined that these Defendants are entitled to qualified

13 immunity on Plaintiffs’ Eighth Amendment claim, the Court limits the following discussion to

14 Mitchell’s Fourteenth Amendment claim. For the convenience of the parties, the Court has

15 summarized the facts presented by Defendants concerning the referenced Defendants’

16 responsibilities and authority, pursuant to their positions, and subsequently addresses the

17 applicability of those facts to Defendants’ argument.

18

a. Defendants Owen and Hellwig10

19

Defendants contend that Owen and Hellwig both held the position of Correctional

20 Counselor I at High Desert State Prison, and that their employment responsibilities primarily

21 included collecting data concerning whether inmates were properly classified by a classification

22 committee for a job, school, or security designation. (Decl. of J. Owen in Supp. of Defs.’ Mot.

23 SJ, ECF No. 264 at ¶ 2; Decl. of D. Hellwig in Supp. of Defs.’ Mot. SJ, ECF No. 259 at ¶ 2.)

24 Additionally, both Owens and Hellwig stated in their declarations that they were not involved in

25 the decision-making process to implement, continue, or discontinue a modified program and

26 further that they had no authority to order, authorize, or recommend that a modified program be

27

10

Due to Defendants Owen and Hellwig being employed in the same position, the Court addresses

28 Defendants’ contention as to Owen and Hellwig’s authority together.

28

1 imposed. (ECF Nos. 264 at ¶ 3; 259 at ¶ 3.)

2

Plaintiffs counter that Owen and Hellwig enforced the policies and thus are liable.

3 (ECF No. 280 at 77 (citing Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183

4 (9th Cir. 2007); Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1072 (9th Cir. 2012);

5 Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999); Thomas v. Baca, No. CV 04-

6 1493, 2006 WL 2547321 (D. Ariz. Aug. 31, 2006) (denying summary judgment for officer who

7 claimed she lacked ultimate authority to grant cell reassignment because “she obviously had the

8 ability to refer Plaintiff’s request to her supervisor”); McClary v. Coughlin, 87 F. Supp.2d 205,

9 215 (W.D.N.Y. 2000) (“Personal involvement does not hinge on who has the ultimate authority

10 for constitutionally offensive decisions.”); Wulf v. City of Wichita, 883 F.2d 842, 864 (10th Cir.

11 1989) (holding that sufficient personal involvement was found where defendant did not have

12 ultimate authority, but his recommendation ultimately led to unconstitutional action by another).)

13

The Court finds that the aforementioned cases cited by Plaintiff strongly support

14 Plaintiffs’ position. Further, the Ninth Circuit has clearly held that § 1983 liability can be

15 established not only by “some kind of direct personal participation in the deprivation, but also by

16 setting in motion a series of acts by others which the actor knows or reasonably should know

17 would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743–44

18 (9th Cir. 1978). In contrast, Defendants cannot offer any legal support that Owen and Hellwig’s

19 lack of authority bars liability. In fact, Defendants do not cite one case in support of their

20 contention. Instead, Defendants seem to argue that Plaintiffs’ Second Amended Complaint does

21 not sufficiently allege that Owen and Hellwig “set acts into motion that they knew, or should have

22 known, would have resulted in harm to Mr. Mitchell.” (ECF No 297 at 23.) Thus, Defendants

23 assert that Plaintiffs’ opposition presents new arguments and the Court, therefore, should not

24 entertain this argument. Defendants’ argument is meritless. The Second Amended Complaint

25 states:

26

27

Vanderville, Foulk, Owen and Hellwig were responsible for

implementing these lockdowns, pursuant to a policy and practice

28

implemented by Defendant Tilton. . . . Defendants Felker, Wright,

29

1

Vanderville, Foulk, Owen and Hellwig were aware of Mr.

Mitchell’s medical need to exercise, but nonetheless kept Mr.

2

Mitchell on lockdown from May 2006 through December 2007,

preventing him from exercising as required. As a result, Mr.

3

Mitchell suffered physical injuries including muscle atrophy, loss of

bone density, swelling to the left leg, hip and ankle, and severe

4

pain.

5 (ECF No. 84 ¶ 50−51.) The Court finds that implementing policies can reasonably be interpreted
6 as encompassing “putting things into motion.” As such, a genuine factual dispute exists as to
7 Owen and Hellwig’s involvement in executing the policy, and Defendants’ motion for summary
8 judgment as to Owen and Hellwig is thus denied.
9 b. Vanderville
10 Mitchell alleges that Vanderville “implemented, ratified and approved race-based
11 and excessively lengthy lockdowns.” (ECF No. 84 at ¶¶ 50, 89). Defendants argue that because
12 Vanderville did not have decision making authority, Vanderville is not liabile. (ECF No. 254 at
13 42.) In support, Defendants allege that Vanderville was employed at High Desert state Prison as
14 a Supervising Correctional Counselor II, from May 2006 to December 2007. (Decl. of D.
15 Vanderville in Supp. of Defs.’ Mot. for SJ, ECF No. 268 at ¶ 2.) Vanderville was responsible for
16 supervising Correctional Counselor I positions on “C” Facility, responding to inmate grievances
17 (CDC Form 602s) when necessary, assisting the Facility Captain for various assigned tasks, and
18 ensuring the overall safety and security of the institution. (ECF No. 268 at ¶ 2.) In addition to his
19 role as CC-II, Vanderville occasionally served as an acting Facility Captain for purposes of Unit
20 Classification Committee (UCC) hearings during the relevant period. (ECF No. 268 at ¶ 3.)
21 UCC hearings are held to determine initial and subsequent program assignments, changes, and
22 transfers for inmates and are composed of three members chaired by staff at the level of Facility
23 Captain or Correctional Captain. (ECF No. 268 at ¶ 3.) Additionally, because Vanderville held
24 the same supervising rank as a Facility Captain, he occasionally filled in for the Facility Captain
25 for purposes of UCC hearings. (ECF No. 268 at ¶ 3.)
26 Defendants argue that Vanderville is not liable because he lacks decision making
27 authority. (See ECF No. 254 at 42.) Defendants’ position seems to ignore that Vanderville can
28
30

1 be held liable for the implementation of a policy even though he had no decision making

2 authority as to its implementation. See Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d

3 1175, 1183 (9th Cir. 2007) (“[A] person subjects another to the deprivation of a constitutional

4 right, within the meaning of § 1983, “if he does an affirmative act, participates in another’s

5 affirmative act, or omits to perform an act which he is legally required to do that causes the

6 deprivation of which complaint is made” (quotations omitted)); Karl v. City of Mountlake

7 Terrace, 678 F.3d 1062, 1072 (9th Cir. 2012); Gilbrook v. City of Westminster, 177 F.3d 839, 854

8 (9th Cir. 1999) (“A subordinate officer who is not the final decision maker can still be liable

9 under § 1983 if he set[s] in motion a series of acts by others which the actor knows or reasonably

10 should know would cause others to inflict the constitutional injury.” (internal quotations

11 omitted)). Mitchell has alleged that Vanderville received Mitchell’s grievances and did nothing

12 to rectify the situation. (ECF No. 280 at 52.) Defendants have not offered any evidence to negate

13 Mitchell’s assertions. Thus, Defendants have not met their burden of showing that there is not a

14 material issue of fact concerning Vanderville’s involvement and liability in the alleged § 1983

15 violations, and Defendants’ motion for summary judgment as to the claims against Vanderville

16 must be denied.

17

c. Wright and Foulk

18

Like Vanderville, Plaintiffs allege that both Foulk and Wright “implemented,

19 ratified and approved race-based and excessively lengthy lockdowns in violation of Mr.

20 Mitchell’s Fourteenth Amendment right to Equal Protection.” (ECF No. 84 at ¶ 89.) Defendants

21 state that Foulk and Wright were employed as Facility Captains at High Desert State Prison

22 during the relevant time period of September 12, 2006 to December 2007. (ECF No. 254 at 44;

23 Decl. Foulk, ECF No. 263 at ¶ 1; Wright Dep. Excerpts, ECF No. 267-1 at 42–43.) Foulk

24 managed operations on Facility “C” while Wright managed operations on Facility “D.” (ECF No.

25 254 at 44; ECF No. 263 at ¶ 1; ECF No. 267-1 at 42–43.) In addition to his role as Faculty “D”

26 Captain, Wright also briefly served as an Acting Associate Warden responsible for overseeing

27 Complex 2 (Facilities “C” and “D”) at High Desert State Prison from September 2006 to January

28 2007. (ECF No. 267-1 at 44−45.) 31

1

Again Defendants argue that Foulk and Wright cannot be held liable because

2 “[f]acility Captains and Acting Associate Wardens . . . do not have any decision-making authority

3 to make adjustments to or terminate the lockdowns or modified programs. . . that authority rests

4 solely with the Warden.” (ECF No. 254 at 44 (citing ECF No. 238 at ¶¶ 7−8, 35).)

5

As discussed above, a lack of decision making authority does not necessarily

6 shield a defendant from liability in a § 1983 action if a defendant implemented or imposed an

7 unconstitutional policy. See Karl, 678 F.3d at 1072; Preschooler II, 479 F.3d at 1183; Gilbrook

8 v. City of Westminster, 177 F.3d at 854. As such, there exists a material issue of fact as to

9 whether Wright or Foulk’s actions make them liable for the alleged constitutional violations.

10 Consequently, Defendants’ motion for summary judgment as to the claims against Wright and

11 Foulk are hereby denied. Further, because Plaintiffs’ Eighth Amendment claims against 12 Defendants Cate, Kernan, McDonald, and Giurbino11, as well as Plaintiffs’ Fourteenth

13 Amendment claims, have survived Defendants’ affirmative defenses, the Court addresses

14 Defendants’ arguments as to the merits below.

15

C. Defendants’ Contention that the CDCR’s Policy Did Not Violate

16

Plaintiffs’ Eighth and Fourteenth Amendment Rights

17

In Defendants’ Points and Authority for Summary Judgment, Defendants only

18 specifically address the facts surrounding Mitchell as to this contention. (See ECF No. 254 at 39–

19 71.) Consequently, the Court finds that Defendants’ statements do not suffice to show that 20 Quezada’s rights were not violated12 and will thus address the specific allegations concerning

21 Mitchell below.

22

i. Mitchell’s Eighth Amendment Claim

23

Pursuant to 42 U.S.C. section 1983, “[e]very person who, under color of any

24 statute, ordinance, regulation, custom, or usage . . . subjects, or causes to subjected, any citizen of

25 the United States or other person within the jurisdiction thereof to the deprivation of any rights,

26

27

11

Defendants Cate, Kernan, McDonald, and Giurbino were all sued in their official capacity. (See ECF No. 84

at ¶¶ 14–17.)

12

Because the Court finds that both Abdullah and Trujillo’s claims are moot, the Court declines to address

28 Defendants’ contentions concerning these Plaintiffs.

32

1 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

2 in an action at law, suit in equity, or other proper proceeding for redress.” Section 1983 confers

3 no substantive rights itself, but rather, “provides remedies for deprivations of rights established

4 elsewhere.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). In the instant action,

5 Mitchell alleges that the CDCR, through implementation of its policy, violated his Eight

6 Amendment right to be free from cruel and unusual punishment.

7

The Supreme Court has defined the Eighth Amendment standard as having both

8 objective and subjective components. Farmer v. Brennan, 511 U.S. 825, 834 (1994). “A prison

9 official violates the Eighth Amendment only when two requirements are met. First, the

10 deprivation alleged must be, objectively, ‘sufficiently serious’; a prison official’s act or omission

11 must result in the denial of ‘the minimal civilized measure of life’s necessities.’” Id. (citations

12 omitted). “The second requirement follows from the principle that ‘only the unnecessary and

13 wanton infliction of pain implicates the Eighth Amendment.’” Id. (citing Wilson v. Seiter, 501

14 U.S., 294, 297 (1991). “To violate the Cruel and Unusual Punishments Clause, a prison official

15 must have a ‘sufficiently culpable state of mind.’ In prison-conditions cases that state of mind is

16 one of ‘deliberate indifference’ to inmate health or safety.” Id. (quotations and citations omitted).

17 Thus, in order for Defendants to succeed, they must show that Plaintiff cannot meet one of the

18 two requirements.

19

Defendants allege that Mitchell’s claim fails because the CDCR did not subject

20 Mitchell to conditions that objectively amount to cruel and unusual punishment, and further that

21 the less-than-four-month deprivation of outdoor exercise that he was subjected to does not

22 amount to an Eighth Amendment violation. The Court addresses each of these contentions

23 separately.

24

a. Objective Requirement: Sufficiently Serious Deprivation

25

“Under the objective requirement, the prison official’s acts or omissions must

26 deprive an inmate of the minimal civilized measure of life’s necessities.” Hayes v. Garcia, 461 F.

27 Supp. 2d 1198, 1205 (9th Cir. 2006) (quoting Farmer, 511 U.S. at 834). Defendants contend that

28 the CDCR policy did not violate Mitchell’s Eighth Amendment right because denial of exercise 33

1 will ordinarily only constitute a substantial deprivation and thus be “sufficiently serious” if it is

2 for an extended period of time. (ECF No. 254 at 47.) Defendants argue that Mitchell’s longest

3 lockdown time period lasted for a period of less than four months. (ECF No. 254 at 56—57.)

4 Defendants further allege that in Hayes, 461 F. Supp. 2d at 1207—08, the Ninth Circuit held that

5 a nine-month deprivation of exercise did not violate a prisoner’s rights. Thus, Defendants assert

6 that the less-than-four months-time period that Mitchell was subjected to does not objectively

7 violate Mitchell’s Eight Amendment rights. (ECF No. 254 at 57.)

8

Plaintiffs argue that the numerous implemented lockdowns overlapped, which

9 resulted in Mitchell being deprived of exercise for 553 days over a 624-day period, and that

10 Mitchell was not in fact released from lockdown when Defendants allege he was released. (ECF

11 No. 280 at 53; ECF No. 283 at ¶ 150; ECF No. 285 at ¶¶ 6–14.).) In response, Defendants assert

12 that Plaintiffs have no support for their contentions and that Mitchell’s Declaration is self-serving

13 and not sufficient to raise a triable issue of fact. (ECF No. 297 at 24.)

14

The Court finds that the majority of evidence presented by both sides is in the form

15 of declarations by interested parties and thus finds that it is inappropriate for the Court to make a

16 credibility determination at this juncture in the litigation. See Anderson, 477 U.S. at 249 (holding

17 that the judge’s function at the summary judgment stage is not to weigh the evidence and

18 determine the truth of the matter, but only to determine whether there is a genuine issue for trial).

19 Moreover, the Court declines Defendants’ invitation to decide that Mitchell’s Eighth Amendment

20 claim fails as a matter of law in light of Ninth Circuit precedent.

21

The Court finds that Defendants’ reliance on Hayes is misplaced because the Ninth

22 Circuit’s decision in Hayes was dependent on the fact that the plaintiff was not medically affected

23 by the alleged deprivation, and that the plaintiff complained of not being able to exercise outdoors

24 but was able to exercise indoors during the lockdown period. Thus, Mitchell’s claim is

25 distinguishable from Hayes on two grounds. First, in contrast to Hayes, Mitchell alleges that the

26 lack of exercise caused him physical harm. Second, Mitchell did not have the option of outdoor

27 or indoor exercise during the lockdown periods. Furthermore, the Ninth Circuit has repeatedly

28 held that lockdown conditions may constitute cruel and unusual punishment under the Eighth 34

1 Amendment. See Thomas v. Ponder, 611 F.3d 1144, 1151–52 (9th Cir. 2010) (“Exercise is one

2 of the most basic human necessities protected by the Eighth Amendment. Like food, it is ‘a basic

3 human need protected by the Eighth Amendment.’” (quoting Keenan v. Hall, 83 F.3d 1083, 1091

4 (9th Cir. 1996))); Hayward v. Procunier, 629 F.2d 599, 603 (9th Cir.1980) (holding that denial of

5 outdoor exercise may give rise to Eighth Amendment violation even in response to emergency

6 conditions); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979) (“There is substantial

7 agreement among the cases in this area that some form of regular outdoor exercise is extremely

8 important to the psychological and physical well-being of the inmates.”).

9

In Allen v. Sakai, 48 F.3d 1082, 1087–88 (9th Cir. 1994), the Ninth Circuit

10 affirmed a trial court’s finding that a prisoner’s allegations that during a six-week period he had

11 been allowed only 45 minutes of outdoor exercise per week survived defendant’s motion for

12 summary judgment. The Ninth Circuit stated that the prisoner “has met the objective requirement

13 of the Eighth Amendment analysis by alleging the deprivation of what this court has defined as a

14 basic human need.” Id. at 1088. Similarly, in Lopez v. Smith, 203 F.3d 1122, 1132–33 (9th Cir.

15 2000), the Ninth Circuit held that Lopez had met the Eighth Amendment’s objective requirement

16 where he alleged that during the six-and-one-half weeks following his injury he was denied all

17 access to outdoor exercise.

18

In sum, even if Mitchell’s longest lockdown was approximately four months as

19 alleged by Defendants, a four-month deprivation may meet the objective standard articulated by

20 the Ninth Circuit. This finding in no way reflects the Court’s opinion as to whether the

21 lockdowns at issue constitute an Eighth Amendment violation in the context in which they were

22 implemented. The Court reserves judgment as to those facts for trial. The Court only finds that

23 Defendants have not met their burden of showing that as a matter of law Mitchell cannot succeed

24 in this prong.

25

b. Subjective Requirement: Deliberate Indifference

26

Defendants next contend that Plaintiffs cannot meet the deliberate indifference

27 standard required to establish an Eighth Amendment violation. “[D]eliberate indifference entails

28 something more than mere negligence, the cases are also clear that it is satisfied by something 35

1 less than acts or omissions for the very purpose of causing harm or with knowledge that harm will

2 result.” Farmer, 511 U.S. at 835. “Showing ‘deliberate indifference,’ involves a two part

3 inquiry. First, the inmate must show that the prison officials were aware of a ‘substantial risk of

4 serious harm’ to an inmate’s health or safety.” Thomas, 611 F.3d at 1150. Substantial risk of

5 serious harm may be established by the inmate showing that the risk posed by the deprivation is

6 obvious. See Farmer, 511 U.S. at 842 (“[A] factfinder may conclude that a prison official knew

7 of a substantial risk [to a prisoner’s health] from the very fact that the risk was obvious.”).

8 “Second, the inmate must show that the prison officials had no ‘reasonable’ justification for the

9 deprivation, in spite of that risk.” Thomas, 611 F.3d at 1150.

10

Defendants do not allege in their summary judgment motion that they were

11 unaware that the lockdowns posed a substantial risk of serious harm to Mitchell. Instead,

12 Defendants argue that Plaintiffs cannot establish the second prong of the subjective requirement

13 because Defendants had a reasonable justification for implementing modified programs, i.e.,

14 safety of employees and other inmates. (ECF No. 254 at 57–62.) However, in Defendants’ reply,

15 Defendants allege that they were not aware of Mitchell’s medical needs. (ECF No. 297 at 29–

16 30.)

17

As to whether Defendants had knowledge of Mitchell’s medical needs, the Court

18 finds that there are material issues of fact precluding summary judgment. The deposition of

19 Michael Wright establishes that Mitchell’s medical records indicated that Mitchell was prescribed

20 certain leg exercises. (ECF No. 284-12 at 12–15.) There is a question as to how much of

21 Mitchell’s medical file was available in his central file which both Daniel Vanderville and Julie 22 Owen testified that they had access to.13 (ECF Nos. 284-7 at 11; 284-10 at 8.) Furthermore,

23 Defendant Wright testified that although Mitchell’s central file may not include Mitchell’s

24 medical documents from other institutions, he believed that High Desert would have a complete

25 medical file including documents in which doctors documented Mitchell’s prescribed leg

26

27

13

Defendants Vanderville and Owen are entitled to qualified immunity as to Michell’s Eighth Amendment

claim. (infra, Section B(ii).) However, their statements as to the availability of Mitchell’s medical records support

Mitchell’s contentions as to the availability of these files concerning Defendants Cates, Kernan, McDonald, and
28 Giurbano, who are sued in their official capacity.

36

1 exercises. (ECF No. 284-12 at 15.) Thus, in evaluating the evidence in the light most favorable

2 to Plaintiffs, Defendants have not shown that Plaintiffs are incapable of establishing that

3 Defendants had knowledge of Mitchell’s medical condition and needs, and therefore material

4 questions of fact exist.

5

The second prong of the subjective analysis requires this Court to determine

6 whether Defendants had a reasonable justification for the deprivation in spite of the risk that the

7 lockdown conditions would cause Mitchell damage. Thomas, 611 F.3d at 1150. Defendants

8 contend that the risk was reasonable due to: (1) the violent incidents that caused Defendants to

9 implement the modified program; (2) the possibility that further violence would occur; and (3) to

10 protect the safety of the inmates. In arguing that Defendants’ actions were reasonable,

11 Defendants again provide this Court with the details of numerous lockdowns that occurred over

12 the time frame concerning this suit. Read generously, this prison record may support Defendants’

13 assertion that they denied Mitchell access to the exercise yard for his own protection. However, it

14 is not sufficient by itself to support a grant of summary judgment. See Lopez v. Smith, 203 F.3d

15 1122, 1133 (9th Cir. 2000) (holding that denial of a prisoner’s yard access for his own protection

16 does not explain defendant’s refusal to offer some alternative opportunity for exercise.) Thus,

17 even if Defendants have shown that Mitchell was denied yard access for his own protection, it

18 does not explain why he was not given some other opportunity to exercise. See id.; Thomas, 611

19 F.3d at 1155 (“The district court’s conclusion that the prison officials’ policy was “reasonable” is

20 also highly questionable in light of the absence of any evidence in the record that the prison

21 officials considered whether there were any alternative means of providing Thomas out-of-cell

22 exercise.”).

23

Mitchell testified that he complained in writing about the lack of exercise to his

24 correctional counselor but that nothing changed. (ECF No. 284-19 at 16–18.) Viewing the

25 evidence in the light most favorable to Plaintiffs, there is a genuine issue of fact as to whether

26 Defendants considered any alternative means to the lockdowns. Thus, this Court cannot

27 determine whether the lockdown was reasonable or whether Defendants’ conduct was

28 deliberately indifferent to Mitchell’s need for outdoor exercise. Accordingly, the grant of 37

1 summary judgment as to Mitchell’s Eighth Amendment claims as to Defendants sued in their

2 official capacity is denied.

3

ii. Mitchell’s Fourteenth Amendment Claim

4

Again, Defendants broadly assert that the named Plaintiffs’ rights were not

5 violated because the “modified programs at issue were imposed in response to violent incidents

6 and were narrowly tailored to ensure and preserve institutional safety and security.” (ECF No.

7 254 at 39.) Defendants contend that the modified programs that were implemented between May

8 of 2006 and December 2007 did not implicate Mitchell’s Equal Protection rights. (ECF No. 254

9 at 70.) Essentially, Defendants argue that because there were viable reasons for the lockdowns,

10 the modified programs meet the narrowly tailored criteria required under strict scrutiny. In

11 support of their contention that Mitchell’s Fourteenth Amendment rights were not violated,

12 Defendants cite the United States Supreme Court’s decision in Cruz v. Beto, 405 U.S. 319 (1972).

13 “Race-based decisions made in response to the ‘necessities of prison security and discipline’ do

14 not violate the Fourteenth Amendment when they are narrowly tailored to legitimate prison

15 goals.” (ECF No. 254 at 70 (quoting Cruz, 405 U.S. at 321).) In addition, Defendants allege that

16 Plaintiffs are required to allege facts showing that Defendants acted with intent or purpose to

17 discriminate based upon membership in a protected class and that Plaintiffs have failed to show

18 such intent. (ECF No. 254 at 70−71 (quoting Hartmann v. Cal. Dep’t of Corr. & Rehab., 707

19 F.3d 1114, 1123 (9th Cir. 2013)).) The Court finds that Defendants’ reliance on these cases is

20 misplaced.

21

Defendants have acknowledged that strict scrutiny applies to Defendants’ policy

22 because it applies racial classification in determining who is subjected to modified programs.

23 (See ECF No. 254 at 63 (citing Johnson, 543 U.S. at 505).) Therefore, the burden is shifted to

24 Defendants to show that the policy meets strict scrutiny. Id. at 506 (“Under strict scrutiny, the

25 government has the burden of proving that racial classifications are narrowly tailored measures

26 that further compelling governmental interests.”); see also Adarand Constructors, Inc. v. Peña,

27 515 U.S. 200, 227 (1995). “Under strict scrutiny the means chosen to accomplish the State’s

28 asserted purpose must be specifically and narrowly framed to accomplish that purpose.” Wygant 38

1 v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986). As previously discussed,14 a race-based

2 policy may survive strict scrutiny, but to do so the policy must be shown to be a necessity. See

3 Cruz, 405 U.S. at 321.

4

For Defendants to show that the policy at issue is a necessity, they must show that

5 there was not another viable option. Here, Defendants have provided numerous pages of 6 justifications,15 yet, as previously addressed,16 have not alleged that there is not a viable

7 alternative. As such, this Court cannot say that Defendants have met their burden at this juncture.

8 See Fisher v. Univ. of Tex. at Austin, __ U.S.__, 133 S. Ct. 2411, 2420 (2013) (“The reviewing

9 court must ultimately be satisfied that no workable race-neutral alternatives would produce [the 10 desired result].”)17 Thus, Defendants’ motion for summary judgment as to Mitchell’s Fourteenth

11 Amendment claim is denied.

12

D. Other Constitutional Claims Not Fully Briefed in the SAC

13

In Defendants’ Points and Authorities in Support of Summary Judgment,

14 Defendants briefly address a number of additional constitutional claims that are mentioned within

15 Plaintiffs’ Second Amended Complaint, but are not explicitly claimed or briefed. (ECF No. 254.)

16 The Court addresses each of these contentions separately below.

17

18

19

20

21

22

23

24 14

See Section III(B)(3)(b)(2) of this Order.

15
25 16

Supra Section III(A)(ii)(c). Supra Sections III(A)(ii)(c), III(B)(ii)(b), III(C)(ii).

26

17

Defendants contend that Plaintiffs’ reliance on Fisher is misplaced because Fisher concerned a university’s

diversity admission policy and here Defendants are involved in decisions involving imminent danger and safety

27

concerns. (ECF No. 297 at 31−32.) The Court agrees that the strict scrutiny analysis concerning this policy must be made in context to the policy’s use. However, Defendants have not provided nor is the Court aware of any case law

supporting the contention that a policy can survive strict scrutiny where defendants are unable to show that they
28 considered any alternatives.

39

1

i. Eighth Amendment: Deliberate Indifference to Medical Needs

2

In Defendants’ briefing, they note that “Named Plaintiffs do not explicitly bring an

3 Eighth Amendment deliberate-indifference-to-medical-needs claim.” (ECF No. 254 at 74.)

4 Defendants argue that if it is Plaintiffs’ intention to seek equitable relief for alleged inadequate

5 medical or mental health care, they would be barred pursuant to Brown v. Plata, No. 3:01-cv-

6 01351-THE (N.D. Cal.) and Coleman v. Schwarzenegger, No. 2:09-cv-00520 LKK JFM (E.D.

7 Cal.). (ECF No. 254 at 75.)

8

Plata is a class action of inmates in California state prisons with serious medical

9 conditions. See generally, Plata, No. 3:01-cv-01351-THE (N.D. Cal.). Coleman is a federal

10 class action lawsuit alleging unconstitutional mental health care by the CDCR. See generally,

11 Coleman, No. 2:09-cv-00520 LKK JFM (E.D. Cal.). The Coleman class includes all inmates with

12 “serious mental disorders” who are or will be confined within the CDCR. Coleman, Case No.

13 2:09-cv-00520 LKK JFM (E.D. Cal.). In Plaintiffs’ opposition, they state that they are not

14 seeking an injunction regarding the provision of medical and mental health care. (ECF No. 280 at

15 81.) As such, this issue is moot and the Court need not address it further.

16

ii. First Amendment Rights

17

In the SAC, Plaintiffs state that during lockdowns, prisoners are unable to visit

18 with or telephone their families or participate in basic prison programs, such as religious services,

19 education programs, and drug and alcohol treatment programs. (ECF No. 84 at ¶¶ 36, 44, 51, 60.)

20 Defendants contend that arguments concerning these issues should not be entertained by the

21 Court because many of these allegations fail to state a claim, and the named Plaintiffs have not

22 pleaded these claims with any degree of specificity. (ECF No. 254 at 76−78.) In response,

23 Plaintiffs argue that just because they do not seek separate relief for each of the deprivations, they

24 are not rendered irrelevant. Plaintiffs further allege that these deprivations are directly related to

25 the alleged harm caused by Defendants’ lockdowns. (ECF No. 280 at 81.)

26

Because the allegations at issue are not pleaded as separate causes of action and

27 Plaintiffs do not seek relief as to these alleged deprivations, the Court grants Defendants’ motion

28 in so far as it finds that awarding relief as to these allegations would be inappropriate. See 40

1 Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (holding that a plaintiff must give the defendant

2 fair notice of what the claim is and the grounds upon which it rests). However, the Court notes

3 that the alleged deprivations may be relevant to determining whether the lockdowns amounted to

4 cruel and unusual behavior under the Eighth Amendment and thus declines Defendants’ invitation

5 to completely disregard Plaintiffs’ allegations in such context. Furthermore, to the extent that

6 Plaintiffs are trying to allege that each of these deprivations constitutes an Eighth Amendment

7 violation, the Court has already found that Defendants are entitled to qualified immunity on this

8 claim. As such, further discussion of this matter is unwarranted.

9

E. Intentional Infliction of Emotional Distress

10

Under California law, recovery for intentional infliction of emotional distress

11 (“IIED”) requires a showing of: (1) extreme and outrageous conduct by the defendant; (2) with

12 the intention of causing, or reckless disregard of the probability of causing, emotional distress; (3)

13 which actually and proximately causes; (4) the plaintiff’s severe or extreme emotional distress.

14 See Christensen v. Superior Court, 54 Cal.3d 868, 903 (1991); Inland Mediation Bd. v. City of

15 Pomona, 158 F. Supp. 2d 1120, 1156 (C.D. Cal. 2001). Defendants contend that Mitchell’s IIED

16 claim fails because Mitchell has not specifically stated “what Defendants Tilton, Felker, Wright,

17 Vanderville, Foulk, Owen, and Hellwig did to cause him emotional harm, short of his general

18 allegation that Defendants . . . implemented lengthy race-based lockdowns.” (ECF No. 254 at

19 79.) More specifically, Defendants contend that nothing in Mitchell’s Second Amended

20 Complaint describes or otherwise realistically alleges “outrageous conduct” and thus Mitchell’s

21 claim fails. (ECF No. 254 at 79.) In opposition, Plaintiffs assert

22

Where “reasonable minds may differ” about whether a Defendants’

conduct was extreme and outrageous, the Court may not decide the

23

matter on summary judgment; in such circumstances it is for the

jury . . . to determine whether, in the particular case, the conduct

24

has been sufficiently extreme and outrageous to result in liability.

25 (ECF No. 280 at 83.) Because the parties’ dispute only encompasses the extreme and outrageous

26 conduct requirement, the Court limits its inquiry as to whether Plaintiffs’ allegations rise to the

27 level of extreme and outrageous conduct.

28

In California, outrageous conduct has been defined as conduct which is “beyond

41

1 all bounds of decency; ordinary rude or insulting behavior is not enough to justify an award of

2 damages.” B. Witkin, 5 Summary of California Law: Torts § 451 (10th ed. 2005). To support a

3 claim for intentional infliction of emotional distress, the conduct must be more than “intentional

4 and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff

5 of whom the defendant is aware.” Christensen, 54 Cal. 3d at 903.

6

Defendants contend that Plaintiffs have failed to allege a specific tortious act. This

7 argument is not well taken. As previously discussed, Plaintiffs have sufficiently pleaded that

8 Defendants implemented the policy— i.e. executed the policy. Furthermore, Plaintiffs have

9 pleaded that Mitchell informed Defendants Owen and Hellwig of his medical condition and

10 further filed grievances concerning this matter that were personally received by Vanderville.

11 (ECF No. 280 at 52.) Thus, Defendants may be liable for failing to offer Mitchell alternative

12 opportunities to exercise if such inaction is found to be outrageous. See Davidson v. City of

13 Westminister, 32 Cal. 3d 197, 210 (1982) (A failure to act may support an IIED claim if the

14 inaction is “so extreme as to exceed all bounds of that usually tolerated in a civilized

15 community.”) Both parties have acknowledged that there are no cases directly on point. While

16 Plaintiffs have presented numerous cases in which courts have found a material issue of fact due

17 to racially motivated conduct, none of these cases involve policies implemented in prisons where

18 the motivation is safety. (See ECF No. 280 at 85 (citing Robinson v. Hewlett Packard Corp., 183

19 Cal. App. 3d 1108, 1130 (1986) (evidence that a supervisor intentionally insulted an employee

20 based on his race was sufficient to raise a triable issue of material fact with respect to

21 outrageousness); Agarwal v. Johnson, 25 Cal.3d. 932, 947 (1979), disapproved on other grounds

22 by White v. Ultramar, Inc., 21 Cal. 4th 563 (1999) (evidence that a racial epithet was used against

23 and humiliated an employee was enough to support a finding of outrageousness); Alcorn v. Anbro

24 Engineering, Inc., 2 Cal. 3d 493, 496−498 (1970) (supervisor shouting racially insulting

25 comments, terminating employment and humiliating Plaintiff was enough to support a finding of

26 outrageous conduct)).)

27

“When considering the evidence on a motion for summary judgment, the court

28 must draw all reasonable inferences on behalf of the nonmoving party.” See Matsushita Elec. 42

1 Indus. Co., 475 U.S. at 587. The Court finds that it is difficult to determine whether the factual

2 allegations presented by Plaintiffs are outrageous enough to support plaintiffs’ claim without

3 making a credibility determination and thus finds that this matter should be presented to a jury.

4 See Inland Mediation Bd. v. City of Pomona, 158 F. Supp. 2d 1120, 1157 (C.D. Cal. 2001)

5 (holding that where reasonable minds may differ as to whether conduct transcended the bounds of

6 behavior usually tolerated in a civilized society, the jury is allowed to consider whether the

7 conduct is “outrageous”). Furthermore, Defendants’ briefing fails to foreclose the possibility that

8 Plaintiffs could present evidence to support their contention that Defendants’ conduct meets the

9 “outrageous” requirement. As such, Defendants motion for summary judgment as to Plaintiffs’

10 IIED claim is hereby denied.

11

F. Negligence and Negligent Infliction of Emotional Distress

12

To establish a cause of action for negligence, Mitchell must show that each

13 defendant: (1) owed him a duty of care; (2) breached that duty; (3) and the breach proximately

14 caused; (4) Mitchell’s injuries. Burgess v. Superior Court, 2 Cal. 4th 1064, 1072 (1992); Merrill

15 v. Navegar, Inc., 26 Cal. 4th 465, 477 (2001); see also Corales v. Bennett, 567 F.3d 554, 572 (9th

16 Cir. 2009). In addition, “any complaint for damages in any civil action brought against a publicly

17 elected or appointed state or local officer, in his or her individual capacity, where the alleged

18 injury is proximately caused by the officer acting under color of law, shall allege with

19 particularity sufficient material facts to establish individual liability of the publicly elected or

20 appointed state of local officer and the plaintiff’s right to recover there from.” Cal. Gov. Code §

21 951 (West 2010). Thus, because Defendants Tilton, Felker, Wright, Vanderville, Foulk, Owen,

22 and Hellwig are being sued for actions they allegedly took when employed at High Desert State

23 Prison, Plaintiffs must identify “facts sufficient to establish every element of each cause of

24 action.” Rakestraw v. Cal. Physicians’ Serv., 81 Cal. App. 4th 39, 43 (2000).

25

Defendants seek summary judgment on Mitchell’s claims for negligence and

26 negligent infliction of emotional distress (“NIED”) contending that Plaintiffs have failed to

27 satisfy the heightened pleading standard (ECF No. 254 at 80) and that Defendants Tilton, Felker,

28 Wright, Vanderville, Foulk, Owen, and Hellwig did not owe Mitchell a duty of care. (ECF No. 43

1 254 at 82.)

2

In Defendants’ motion for summary judgment, they contend that Defendants do

3 not owe Mitchell a duty of care. However, in their subsequent reply they admit that under

4 California law, an inmate who is solely dependent on his jailers due to his incarceration may be

5 owed a legal duty. (ECF No. 297 at 41.) Based on this recent admission, Defendants then

6 unconvincingly allege that such duty does not attach here and proceed to present arguments not

7 raised in their initial motion concerning whether Plaintiffs can show causation.

8

First, the Court notes that Plaintiffs’ assertion that a jailer has a relationship with a

9 prisoner that creates a duty of care is correct. See Johnson v. Cate, No. 1:10-CV-00803-AWI-

10 MJS, 2012 WL 1910086, at *5 (E.D. Cal. May 25, 2012), report and recommendation adopted in

11 part, No. 1:10-CV-0803-AWI-MJS, 2012 WL 3637917 (E.D. Cal. Aug. 21, 2012) (citing Lawson

12 v. Superior Court, 180 Cal. App. 4th 1372, 1389 (2010)). Therefore, by alleging that Mitchell is

13 incarcerated and that Defendants were employed in supervising him within the prison system,

14 Plaintiffs have established a duty of care. Thus, Defendants’ contention that Plaintiffs have not

15 pled sufficient facts concerning a duty of care fails.

16

Furthermore, to the effect that Defendants raise new arguments concerning

17 causation in their reply brief, the Court finds such arguments inappropriate. See United States v.

18 Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (noting that courts generally decline to consider

19 arguments raised for the first time in a reply brief). However, even if this Court were to entertain

20 such arguments, Defendants’ contention that Mitchell had sufficient room within his cell to

21 complete the necessary exercises for his medical condition is a material issue of fact and thus is

22 not appropriate for summary judgment. As such, Defendants’ motion for summary judgment as

23 to Plaintiffs’ negligence and NIED claims is denied.

24

G. Discretionary Act Immunity

25

Lastly, Defendants contend that Felker, Wright and Foulk are immune from

26 Mitchell’s state law claims pursuant to California Government Code § 820.2. (ECF No. 70.) The

27 Code states “a public employee is not liable for an injury resulting from his act or omission where

28 the act or omission was the result of the exercise of the discretion vested in him, whether or not 44

1 such discretion be abused.” Cal. Gov’t Code § 820.2. The California Code defines an employee

2 as “an officer, judicial officer as defined in Section 327 of the Elections Code, employee, or

3 servant, whether or not compensated, but does not include an independent contractor.” Cal.

4 Gov’t Code § 810.2. Accordingly, Felker, Wright and Foulk are entitled to immunity under §

5 820.2 if a “fair reading” of the complaint reveals allegations that they “made an actual, conscious,

6 and considered collective policy decision.” Mitchell v. Felker, No. 2:08-CV-1196 JAM EFB,

7 2012 WL 2521827, at *11 (E.D. Cal. June 28, 2012), report and recommendation adopted, No.

8 2:08-CV-1196 JAM EFB, 2012 WL 3070084, at *1 (E.D. Cal. July 27, 2012) (quoting Caldwell

9 v. Montoya, 10 Cal. 4th 972, 981 (1995). “Immunity applies only to ‘deliberate and considered

10 policy decisions, in which a conscious balancing of risks and advantages ... took place.’

11 Operational acts that merely ‘implement a basic policy already formulated’ do not receive

12 immunity.” Id. (quoting Caldwell, 10 Cal. 4th at 981) (emphasis added).

13

In deciding whether an act is a policy or operational decision, the California

14 Supreme Court has looked to whether a decision was “in the nature of a ‘basic policy decision’

15 made at the ‘planning’ stage of City’s operations” or whether it “fell within the category of

16 routine duties incident to the normal operations of the office.” Barner v. Leeds, 24 Cal. 4th 676,

17 685 (2000); see also Sanborn v. Chronicle Pub. Co., 18 Cal.3d 406, 415 (1976). “The scope of

18 the discretionary act immunity ‘should be no greater than is required to give legislative and

19 executive policymakers sufficient breathing space in which to perform their vital policymaking

20 functions.’” Barner, 24 Cal. 4th at 685 (quoting Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d

21 425, 445 (1976)); see also AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 639−40 (9th

22 Cir. 2012). An “employee’s normal job duties are not determinative; the burden rests with

23 government defendants to demonstrate that they are entitled to § 820.2 immunity for a specific

24 policy decision made by an employee who consciously balanced the decision’s risks and

25 benefits.” AE ex rel. Hernandez, 666 F.3d at 640.

26

These arguments have previously been raised by Defendants and subsequently

27 rejected by this Court. See Mitchell v. Felker, 2012 WL 2521827, at *11. This Court stands by

28 its original determination that whether Felker, Wright and Foulk made “deliberate and considered 45

1 policy decisions” with respect to the alleged lockdowns are questions of fact. Defendants’

2 blanket assertions that Felker’s decisions were discretionary within California Government Code

3 § 820.2 because they involved personal deliberation does not demonstrate that the actions

4 conform with the legal meaning of discretion as defined by the California Supreme Court.

5 Furthermore, the fact that the Ninth Circuit has described a similar deliberation as delicate, and

6 requiring expertise in prison administration, and a careful balance of the obligation to provide for

7 prisoner and staff safety against prisoners’ rights, see Noble, 646 F.3d at 1143−44, does not

8 suffice to usher Felker’s decision here within the California Supreme Court’s definition of a

9 discretionary act. Consequently, Defendants have not met their burden of showing that Felker is

10 immune.

11

Furthermore, Defendants’ argument that Wright and Foulk also enjoy immunity

12 because “they participated in the decision-making process and made recommendations for

13 changes in programming based on relevant intelligence collected during the course of the

14 investigation” also fails to distinguish their involvement from “routine duties incident to the

15 normal operations of the office,” and thus not immune as a discretionary act. See Barnes, 24 Cal.

16 4th at 685. As such, Defendants’ motion for summary judgment pursuant to California

17 Government Code § 820.2 as to Felker, Wright and Foulk on Mitchell’s state law claims is

18 denied.

19

IV. CONCLUSION

20

For the foregoing reasons Defendants’ motion for summary judgment is

21 GRANTED IN PART AND DENIED IN PART. The Court hereby orders:

22

1. Plaintiff Trujillo’s claim for declaratory and injunctive relief is MOOT and is

23

thus DISMISSED;

24

2. Plaintiff Abdullah’s claim for declaratory and injunctive relief is MOOT and is

25

thus DISMISSED;

26

3. Defendants’ motion to dismiss Plaintiff Mitchell and Quezada’s claims as

27

moot is DENIED;

28

4. Defendants Felker, Vanderville, Owen, Hellwig, Tilton, Foulk and Wright are

46

1

entitled to qualified immunity as to Plaintiffs’ Eighth Amendment claims, and

2

thus their motion for summary judgment as to Plaintiffs’ Eighth Amendment

3

claims is GRANTED;

4

5. Defendants Felker, Vanderville, Owen, Hellwig, Tilton, Foulk and Wright are

5

not entitled to qualified immunity as to Plaintiffs’ Fourteenth Amendment

6

claims, and thus their motion for summary judgment as to Plaintiffs’

7

Fourteenth Amendment claims is DENIED;

8

6. Defendants’ summary judgment motion as to Mitchell’s IIED claim is

9

DENIED; and

10

7. Defendants’ summary judgment motion as to Mitchell’s negligence and NIED

11

claim is DENIED.

12 IT IS SO ORDERED.

13

14 Dated: February 7, 2014

15

16

17

18

Troy L. Nunley

United States District Judge

19

20

21

22

23

24

25

26

27

28 47

 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT MITCHELL, et al.,

No. 2:08-CV-01196

12

Plaintiff,

13

v.

14 MATTHEW CATE, et al.,

ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

15

Defendants.

16

17 This matter is before the Court pursuant to Plaintiffs Mitchell and Quezada’s (collectively
18 referred to as “Plaintiffs”) Motion for Preliminary Injunction.1 (ECF No. 156.) Defendants Cate,
19 Kernan, McDonald, Giurbino, Tilton, Felker, Wright, Foulk, Vanderville, Owen and Hellwig,
20 (collectively hereinafter referred to as “Defendants”) oppose Plaintiffs’ motion. (ECF No. 214.)
21 The Court has carefully considered the arguments raised by both parties. For the reasons set forth
22 herein, Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 156) is DENIED.
23 I. FACTUAL AND PROCEDURAL BACKGROUND
24 Plaintiff Robert Mitchell (“Mitchell”) initiated this case pro se on May 30, 2008, to
25 challenge, among other things, a series of allegedly race-based lockdowns to which he was
26

27 1 This Court dismissed Plaintiffs Trujillo and Abdullah’s claims for injunctive relief as moot. (See Order, ECF No.
317.) For this reason, the Court does not address the parties’ arguments relating to Plaintiffs Trujillo and Abdullah’s
28 now-dismissed claims.
1

1 subjected to while imprisoned at High Desert State Prison (“HDSP”) beginning on September 12, 2 2006. (Compl., ECF No. 1 at 12−14.)2 In his original complaint, Mitchell alleged that he filed

3 administrative appeals concerning the lockdown policy as it was applied to him and, in response

4 to his appeals, the prison staff informed Mitchell that it was the policy of the California

5 Department of Corrections and Rehabilitation (“CDCR”) that “when there is an incident

6 involving any race, all inmates of that race are locked up.” (ECF No. 1 at 15.) Mitchell further

7 alleged that the CDCR policy utilized ethnic groups as a classification in segmenting the inmate

8 population during the process of establishing a regular program following an incident. (ECF No.

9 1 at 15.) Mitchell alleged that he was subjected to cruel and unusual punishment in violation of

10 his Eighth Amendment rights as a result of the lockdowns and that the lockdowns violated his

11 rights to equal protection and due process. (ECF No. 1 at 17, 30−31, 38−44.) Mitchell further

12 asserted that prison officials took adverse actions against him in response to his filing of

13 grievances and lawsuits. He alleged that their conduct constituted unlawful retaliation,

14 obstruction of justice and denial of access to the courts, thereby violating his due process and

15 equal protection rights. (ECF No. 1 at 17−27, 32−37, 45−48.) Lastly, Mitchell asserted state law

16 claims of negligence and intentional infliction of emotional distress. (ECF No. 1 at 48−51.)

17

The case was originally assigned to District Court Judge John A. Mendez, but was

18 reassigned to visiting Judge Richard A. Jones of the Western District of Washington in January

19 2009. (ECF No. 7.) During pretrial proceedings, the court appointed counsel for Mitchell for the

20 limited purpose of assisting him in settlement negotiations with Defendants. (ECF No. 60.)

21 Counsel for Mitchell subsequently agreed to continue providing continuing representation to

22 Mitchell and sought to amend the complaint in order to transform the case into a class action

23 challenging the allegedly race-based lockdowns throughout California’s men’s’ prisons. (ECF

24 Nos. 70, 74.) Judge Jones directed the transfer of the case back to a judge within the Eastern

25 District of California, concluding that it was “far from ideal for a judge sitting in the Western

26 District of Washington to consider presiding over an action challenging policies at all of

27
2 All page numbers cited herein refer to those assigned by the Court’s electronic docketing system and not those
28 assigned by the parties.
2

1 California’s prisons.” (ECF No. 82 at 1.) The case accordingly was reassigned to Judge John A.

2 Mendez and Magistrate Judge Edmund F. Brennan, who granted the motion to amend on

3 September 22, 2011. (ECF No. 83.) Mitchell filed the second amended complaint (“SAC”) on

4 September 23, 2011. (ECF No. 84.)

5

The SAC changed the case in the following ways:

6

(1) Adding three plaintiffs to the claims for injunctive and declaratory relief regarding

7 CDCR’s lockdown policies who seek to act, along with Mitchell, as representatives of a class of

8 “all prisoners who are now or will in the future be housed in a men’s prison under the jurisdiction

9 of CDCR and who are now or will in the future be subject to CDCR’s policy and practice of

10 implementing race-based lockdowns” and a similar class of prisoners who are or will be “subject

11 to CDCR’s policy and practice of implementing excessively lengthy lockdowns” (ECF No. 84 at

12 6);

13

(2) Adding Defendants CDCR Secretary Matthew Cate, CDCR Undersecretary of

14 Operations Scott Kernan, CDCR Chief Deputy Secretary for Adult Operations Terri McDonald,

15 and CDCR Director of the Division of Adult Institutions George Giurbino in their official

16 capacities to the injunctive and declaratory relief claims (ECF No. 84 at 4−5);

17

(3) Deleting the claims for retaliation, denial of access to courts, and obstruction of

18 justice;

19

(4) And deleting Defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade,

20 T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, and J. Walker (ECF

21 No. 84).

22

The case was further narrowed on Defendants’ November 2, 2011, motion to dismiss.

23 (ECF No. 92.) The court dismissed Mitchell’s Eighth and Fourteenth Amendment claims based

24 on lockdowns that occurred before September 12, 2006 as unexhausted and limited his state law

25 damages claims to the period from February 28, 2007 through December 5, 2007. (ECF Nos.

26 107, 114.)

27

On March 5, 2013, Plaintiffs filed a motion to certify class as well as a motion for

28 preliminary injunction. (ECF Nos. 155, 156.) On April 3, 2013, this case was assigned to the 3

1 undersigned. (ECF No. 178.) Subsequently, Plaintiffs filed a request for the district court to hear

2 its pending motions for class certification and injunctive relief pursuant to Eastern District of

3 California Local Rule 302(d). (ECF No. 182.) Before the Court had an opportunity to rule on

4 Plaintiffs’ request, Defendants filed their motion for summary judgment. (ECF No. 253.) On

5 August 5, 2013, the Court granted Plaintiffs’ request stating that “because Plaintiffs’ class

6 certification and preliminary injunction motion, as well as Defendants’ summary judgment

7 motion, are likely to require de novo review, this Court finds that judicial economy would be best

8 served by this Court retaining all future motions associated with this case.” (ECF No. 278.)

9 Thus, this Court retained all matters associated with this case going forward.

10

This Court ruled on Defendants’ Motion for Summary Judgment on February 11, 2014.

11 (ECF No. 317.) The Court dismissed Plaintiffs Trujillo and Abdullah’s claims for declaratory

12 and injunctive relief as moot. The Court also dismissed Plaintiffs’ Eighth Amendment claims

13 against Defendants Felker, Vanderville, Owen, Hellwig, Tilton, Foulk and Wright. (ECF No.

14 317.) Plaintiffs’ suriving claims include: Mitchell and Quezada’s claims for injunctive relief

15 based on Fourteenth Amendment violations; Plaintiff Mitchell’s Fourteenth Amendment claim;

16 and Mitchell’s state law claims for intentional infliction of emotional distress, negligence, and

17 negligent infliction of emotional distress. (ECF No. 317.) The Court addresses Plaintiffs’ 18 Motion for a Preliminary Injunction below.3

19

II. LEGAL STANDARD

20

Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

21 showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555

22 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)). “The

23 purpose of a preliminary injunction is merely to preserve the relative positions of the parties until

24

25

3 Plaintiffs request that this Court take judicial notice of several decisions issued by the Superior Courts of California, Counties of Del Norte and Solano, as well as motions and declarations filed with those courts, and an opinion by the

26

California Court of Appeal, First Appellate District, Division One. (ECF No. 157.) This Court may consider proceedings in other courts if they have a direct relation to the matters at issue. See United States ex rel. Robinson

27

Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Here, the proceedings before the California State Courts are “directly related” to these proceedings because the state court proceedings each relate to

CDCR’s race-based lockdown policy. For this reason, the Court GRANTS Plaintiffs’ request for judicial notice.
28

4

1 a trial on the merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

2 (emphasis added); see also Costa Mesa City Employee’s Assn. v. City of Costa Mesa, 209 Cal.

3 App. 4th 298, 305 (2012) (“The purpose of such an order is to preserve the status quo until a final

4 determination following a trial.”) (internal quotation marks omitted); GoTo.com, Inc. v. Walt

5 Disney, Co., 202 F.3d 1199, 1210 (9th Cir. 2000) (“The status quo ante litem refers not simply to

6 any situation before the filing of a lawsuit, but instead to the last uncontested status which

7 preceded the pending controversy.”) (internal quotation marks omitted). In cases where the

8 movant seeks to alter the status quo, preliminary injunction is disfavored and a higher level of

9 scrutiny must apply. Schrier v. University of Co., 427 F.3d 1253, 1259 (10th Cir. 2005).

10 Preliminary injunction is not automatically denied simply because the movant seeks to alter the

11 status quo, but instead the movant must meet heightened scrutiny. Tom Doherty Associates, Inc.

12 v. Saban Entertainment, Inc., 60 F.3d 27, 33–34 (2d Cir. 1995).

13

“An even more stringent standard is applied where mandatory, as opposed to prohibitory,

14 preliminary relief is sought.” Rouser v. White, 707 F. Supp. 2d 1055, 1061 (E.D. Cal. 2010).

15 Mandatory injunction is one that orders a responsible party to “take action.” Meghrig v. KFC

16 Western, Inc., 516 U.S. 479, 484 (1996). A prohibitory injunction is one that “restrains” a

17 responsible party from further action. Id. In cases where “a party seeks mandatory preliminary

18 relief that goes well beyond maintaining the status quo pendente lite, courts should be extremely

19 cautious about issuing a preliminary injunction.” Martin v. International Olympic Committee,

20 740 F. 2d 670, 675 (9th Cir. 1984). “[A]n award of mandatory preliminary relief is not to be

21 granted unless both the facts and the law clearly favor the moving party and extreme or very

22 serious damage will result.” Rouser v. White, 707 F. Supp. 2d 1055, 1061 (E.D. Cal. 2010)

23 (citing Anderson v. United States, 612 F. 2d 1112, 1115 (9th Cir. 1979)). “‘[I]n doubtful cases’ a

24 mandatory injunction will not issue.” Id.

25

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed

26 on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

27 [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.”

28 Winter, 555 U.S. at 20. A plaintiff must “make a showing on all four prongs” of the Winter test 5

1 to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135

2 (9th Cir. 2011). In evaluating a plaintiff’s motion for preliminary injunction, a district court may

3 weigh the plaintiff’s showings on the Winter elements using a sliding-scale approach. Id. A

4 stronger showing on the balance of the hardships may support issuing a preliminary injunction

5 even where the plaintiff shows that there are “serious questions on the merits . . . so long as the

6 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

7 public interest.” Id. Simply put, Plaintiff must demonstrate, “that [if] serious questions going to

8 the merits were raised [then] the balance of hardships [must] tip[] sharply in the plaintiff’s favor,”

9 in order to succeed in a request for preliminary injunction. Id. at 1134–35 (emphasis added).

10

III. ANALYSIS

11

Plaintiffs seek an order compelling Defendants to cease implementing race-based

12 lockdowns at all California prisons. (ECF No. 156.) To obtain a preliminary injunction,

13 Plaintiffs must establish that they are likely to succeed in showing that Defendants have an

14 ongoing practice of imposing race-based lockdowns in violation of Plaintiffs’ rights to equal

15 protection. (ECF No. 156 at 7.) Plaintiffs must also show that they are likely to suffer irreparable

16 harm if the Court does not grant a preliminary injunction, that the balance of the hardships weighs

17 in their favor, and that the public interest would be best served by enjoining Defendants from

18 imposing race-based lockdowns. See Winter, 555 U.S. at 20.

19

As discussed below, the Court finds that Plaintiffs demonstrate a likelihood of success on

20 the merits of their claims. However, the Court finds that the other three factors weigh in favor of

21 denying Plaintiffs’ motion because: (1) Plaintiffs cannot meet the high burden to demonstrate

22 they will suffer irreparable harm; (2) the balance of hardships would be suffered by Defendants;

23 and (3) a strong public interest weighs in favor of denying Plaintiffs’ motion for injunctive relief.

24 Thus, Plaintiffs have not met the heightened level of scrutiny necessary for this Court to grant

25 them relief and alter the status quo. The Court addresses each of these factors in turn.

26

A. Likelihood of Success on the Merits

27

Plaintiffs must demonstrate that they are likely to prevail on their claims that Defendants’

28 race-based lockdown policy violates Plaintiffs’ rights to equal protection. Because Defendants’ 6

1 policy is race-based, the burden is shifted to Defendants to show that the lockdown policy

2 survives a strict scrutiny review. See Johnson v. California, 543 U.S. 499, 515 (2005) (“Prisons

3 are dangerous places, and the special circumstances they present may justify racial classifications

4 in some contexts. Such circumstances can be considered in applying strict scrutiny, which is

5 designed to take relevant differences into account.”).

6

Under strict scrutiny review, the government must show that the policy is “narrowly

7 tailored to further a compelling governmental interest.” Richardson v. Runnels, 594 F.3d 666,

8 671 (9th Cir. 2010) (quoting Johnson, 543 U.S. at 505–07). “Strict scrutiny does not preclude the

9 ability of prison officials to address the compelling interest in prison safety. Prison

10 administrators, however, will have to demonstrate that any race-based policies are narrowly

11 tailored to that end.” Johnson, 543 U.S. at 514.

12

To demonstrate that their race-based lockdown policy and practice are narrowly tailored,

13 Defendants must show that their use of racial distinctions is “the least restrictive alternative” to

14 achieve prison safety, Richardson, 594 F.3d at 671, and that they have “actually considered and

15 rejected the efficacy of less restrictive measures before adopting the challenged practice.”

16 Warsoldier v. Woodford, 418 F.3d 989, 999 (9th Cir. 2005) (internal citations omitted). Thus,

17 likelihood of success on the merits turns on whether Defendants can show that their use of racial

18 classifications in implementing prison lockdowns is the least restrictive alternative to achieve

19 prison safety.

20

1. Defendants’ Lockdown Policy Is Not Narrowly Tailored Because Race-Neutral

21

Alternatives Are Available.

22

Plaintiffs contend that Defendants’ policy is overbroad because it unnecessarily locks

23 down inmates who were not involved in the precipitating security disturbance and are not

24 affiliated with a security threat group (“STG”). (ECF No. 156 at 20–22.) Additionally, Plaintiffs

25 assert inmates are locked down merely because they share the same race as the prisoners involved

26 in the original security disturbance. (ECF No. 156 at 20–22.) Defendants counter that their race-

27 based lockdown policy is narrowly tailored to restrict only those inmates who must be locked

28 down to maintain prison safety. (ECF No. 214 at 26.) Defendants insist that such procedures are 7

1 only implemented when necessary to ensure security and when the only other option would be to

2 lockdown all inmates in a prison facility. (ECF No. 214 at 49.)

3

In support, Defendants assert that in the California Correctional System, inmates form

4 STGs based on racial affiliations. (ECF No. 214 at 10.) Defendants acknowledge that there are

5 prisoners who are not affiliated with any race-based gang and who do not participate in gang

6 activities. (ECF No. 214 at 14.) However, Defendants aver that even unaffiliated inmates pose a

7 security threat because the gangs target inmates of the same race and threaten them with violence

8 to compel them to attack other inmates. (ECF. No. 214 at 14.) For these reasons, Defendants

9 argue that in some instances they cannot narrow the scope of lockdowns by restricting them to

10 only those prisoners directly involved in a security incident. Defendants assert that to do so

11 would permit unaffiliated prisoners under gang control to continue committing acts of inter-racial

12 violence. (ECF No. 214 at 20–22.) Thus, Defendants argue that these race-based lockdowns are

13 the least restrictive way of ensuring inmate and CDCR employee safety.

14

Plaintiffs claim there are less restrictive race-neutral means of achieving prison security

15 because other states and the federal prison system do not impose race-based lockdowns.

16 Specifically, Plaintiffs’ strongest argument is that Defendants have already imposed race-neutral

17 lockdowns at Pelican Bay State Prison, pursuant to court order, without a negative impact on that

18 facility’s security. (ECF No. 156 at 20–21.) Plaintiffs propose that going forward, Defendants

19 could follow the policy implemented at Pelican Bay and lockdown the area where the disturbance

20 occurred, and then subsequently release inmates from lockdown based on a review of their

21 individual likelihood of causing or contributing to violence. (ECF No. 156 at 22.) Plaintiffs also

22 advocate that Defendants should follow the California laws governing the identification of

23 members of STGs and direct measures to control racial violence at the actual members of the

24 STGs, rather than continuing to use race as a proxy for identifying which prisoners belong to the

25 group. (ECF No. 156 at 22.) Defendants counter that they already work to identify gang

26 members and that their lockdown policy as applied meets Plaintiffs’ criteria. (ECF No. 156 at

27 11.)

28 8

1

If Plaintiffs’ assertions are true, Plaintiffs’ evidence strongly suggests that there are

2 workable race-neutral alternatives. Defendants have not denied that they drafted and

3 implemented race-neutral lockdown policies for Pelican Bay State Prison and California State

4 Prison (“CSP”) Solano. Furthermore, Defendants do not claim that Pelican Bay or CSP Solano

5 became unsafe as a result of the race-neutral policies.

6

The Ninth Circuit has held that “comparisons between institutions [are] analytically useful

7 when considering whether the government is employing the least restrictive means.” Warsoldier,

8 418 F.3d at 1000. In Warsoldier, a Native American inmate sought a preliminary injunction to

9 prevent enforcement of CDCR’s grooming policy that requires inmates to keep hair three inches

10 or shorter on grounds of religious and cultural beliefs. Id. at 991–93. The plaintiff in Warsoldier

11 presented evidence of cases where other prisons allowed prisoners the freedom to have their hair

12 however they like for religious reasons. The Warsoldier Court stated that “the failure of a

13 defendant to explain why another institution with the same compelling interests was able to

14 accommodate the same religious practices may constitute a failure to establish that the defendant

15 was using the least restrictive means.” Id. at 1000.

16

Here, Defendants have not effectively addressed why the race-neutral policies in place at

17 Pelican Bay and CSP Solano could not be safely implemented system-wide. Instead Defendants

18 rely on conclusory statements that their policy meets strict scrutiny to illustrate that the statewide

19 policy is in fact the least restrictive means without providing factual support. Thus, as in

20 Warsoldier, the failure to explain why other institutions that share a compelling interest can

21 accommodate their inmates is a fatal flaw in Defendants’ argument that they already employ the

22 least restrictive means. Accordingly, the Court finds Plaintiffs are likely to succeed on the merits

23 of their claim. However, Plaintiffs’ showings on the three remaining factors do not weigh in

24 favor of granting Plaintiffs’ request for injunctive relief.

25

B. Irreparable Injury

26

Defendants assert that Plaintiffs will not suffer irreparable harm absent an injunction

27 because Defendants have implemented a new lockdown policy that is not race-based and only

28 employs race as a factor as a last resort. (ECF No. 214 at 26; Decl. Harrington ¶ 42, Ex. A, ECF 9

1 No. 238.) Thus, Defendants contend that the new policy passes strict scrutiny. The new

2 lockdown policy, implemented in late 2012, calls into question Plaintiffs’ likelihood of suffering

3 unconstitutional lockdowns absent an injunction. “Preliminary injunctive relief is available only

4 if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction.’”

5 Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir. 2009) (quoting Winter, 555 U.S. at 22). The

6 burden is on Plaintiffs to show that the injury is likely, not merely possible. See Winter at 22,

7 (citing Mazurek v. Armstrong, 520 U.S. 968, 972, (1997) (per curiam)). “Issuing a preliminary

8 injunction based only on a possibility of irreparable harm is inconsistent with our characterization

9 of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing

10 that the plaintiff is entitled to such relief.” Id.

11

In deciding whether Plaintiffs are likely to suffer irreparable injury absent an injunction,

12 the Court must address whether they are likely to suffer from constitutional violations under the

13 new lockdown policy.

14

1. Plaintiffs Have Not Shown that the Revised Lockdown Creates a Risk of Harm to

15

Plaintiffs.

16

Plaintiffs argue that they are likely to suffer irreparable harm without an injunction despite

17 Defendants’ new lockdown policy, because the revised policy permits Defendants to impose the

18 same alleged unconstitutional race-based lockdowns. (ECF No. 156 at 27 (citing Evenson Decl.,

19 at ¶ 6 & Ex. C at 184:1–6, 201:11–22 (admitting that past race-based lockdowns would all be

20 permitted under the new policy)).) Plaintiffs contend that Defendants will continue to implement

21 non-narrowly tailored race-based lockdowns in violation of their equal protection rights under the

22 new policy. (ECF No. 156 at 27.) Plaintiffs cite Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

23 Cir. 2012), in support of their contention that they are entitled to a presumption that they are

24 likely to face irreparable injury because they have alleged that Defendants will violate their equal

25 protection rights absent an injunction. (ECF No. 156 at 25.)

26

The Court finds that Plaintiffs’ reliance on Melendres is misplaced. In Melendres, the

27 plaintiffs alleged that defendants, Maricopa Deputies, stopped, detained, and targeted plaintiffs

28 because of their race in violation of the Fourth and Fourteenth Amendments and sought a 10

1 preliminary injunction. Melendres, 695 F.3d at 994–96. The court relied on the defendants’ own

2 representations that they would continue to commit acts, of which the plaintiffs complained, in

3 finding that the plaintiffs faced irreparable harm. Id. at 1002. “The Defendants’ representations

4 during the summary judgment hearing, reasonably interpreted, demonstrate . . . Plaintiffs faced a

5 real possibility that they would again be stopped or detained and subjected to unlawful detention

6 on the basis of their unlawful presence alone.” Id. Here, Defendants have not represented that

7 they intend to use race in a non-narrowly tailored manner. Thus, Plaintiffs are not entitled to the

8 conclusion that they face irreparable harm absent an injunction.

9

2. Plaintiffs Have Not Met Their Burden in Showing Likelihood of Harm.

10

Defendants argue that Plaintiffs Mitchell and Quezada cannot show that it is likely they

11 will personally suffer irreparable injury absent an injunction because Plaintiffs’ allegations about

12 past lockdowns occurring under the old policy do not establish their current likelihood of

13 irreparable injury. (ECF No. 214 at 36–37.)

14

To succeed, Plaintiffs must actually show they are likely to suffer irreparable harm absent

15 an injunction. Winter, 555 U.S. at 22. In City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983),

16 the Supreme Court held that “past wrongs do not in themselves amount to that real and immediate

17 threat of injury necessary to make out a case or controversy.” The Court stated that “Lyons’

18 assertion that he may again be subject to an illegal chokehold does not create the actual

19 controversy that must exist for a declaratory judgment to be entered.” Id. at 104.

20

Mitchell currently resides at Folsom State Prison. Warden Hill, who oversees Folsom

21 State Prison, has stated that his policy is to follow the new lockdown policy and only impose

22 race-based lockdowns as a last resort. (ECF No. 214 at 40.) Plaintiffs counter that Plaintiff

23 Mitchell has shown he is likely to suffer irreparable injury in the absence of an injunction because

24 Warden Hill has authorized numerous race-based lockdowns at Folsom State Prison. However,

25 the Court notes that Mitchell’s declaration only mentions lockdowns that were instituted before 26 the change in policy.4 Moreover, the lockdown cited by Mitchell was based on gang and STG

27 4 Folsom State prison adopted the modified CDCR policy in October of 2012. (ECF No. 214 at 39.) On October 10,
2012, just prior to the policy adoption, Warden Hill implemented a lockdown on members of the Blood STG and
28 their cellmates following an attack by nine African-American inmates. (ECF No. 214 at 40–41.) The lockdown
11

1 affiliation, not race. Accordingly, Mitchell has not shown that he is likely to suffer irreparable

2 harm absent injunctive relief.

3

The issue as to whether Plaintiff Quezada has shown a likelihood of irreparable harm is a

4 closer issue. Quezada alleges that Warden Diaz, of California Substance Abuse Treatment

5 Facility and State Prison at Corcoran (“SATF”), has implemented race-based lockdowns without

6 a compelling reason to do so and despite available less restrictive alternatives. (ECF No. 270 at

7 34–35.) Plaintiffs further state that these lockdowns that occurred after the implementation of

8 CDCR’s modified policy are unconstitutional. (ECF No. 270 at 20–23.)

9

In support of Plaintiffs’ contention, they cite numerous incidents that precipitated

10 lockdowns and allege that racial classifications were used. In reply, Defendants assert that some 11 of the incidents cited by Plaintiffs actually resulted in all inmates being locked down.5

12 Defendants also assert that the situations which resulted in one race being locked down involved

13 circumstances with STGs. Thus Defendants opine that the actions taken were the least restrictive

14 means and were necessary in ensuring both prisoners’ and prison employees’ safety. (ECF Nos.

15 214 at 14; 270 at 34.)

16

In reviewing the parties’ briefing as to the likelihood of irreparable harm, the Court notes

17 that it is difficult to ascertain whether in fact the practices employed at SATF were narrowly

18 tailored. At this time, the Court cannot determine whether Defendants’ procedures under the new

19 policy are violative of Plaintiffs’ constitutional rights. Here, the relief sought by Plaintiffs would

20 require Defendants to employ a new policy and thus goes well beyond simply maintaining the

21 status quo. Although the Court finds that Plaintiffs’ briefing is slightly more persuasive than that

22 offered by Defendants, Plaintiffs have not presented the type of overwhelming evidence under

23 this prong that is required to warrant granting the extraordinary relief sought. See Anderson, 612

24 F. 2d at 1114 (“Mandatory preliminary relief, which goes well beyond simply maintaining the

25 status quo pendente lite, is particularly disfavored, and should not be issued unless the facts and

26

27

lasted six days and only Bloods and their cellmates were locked down for fear that the Bloods might force their cellmates to act. (ECF No. 214 at 40–41.)

5 On January 26, 2013, in response to a violent altercation between one black male and two Hispanic males, all

28 inmates housed in Facility G were locked down for a period of two days. (See ECF No. 214 at 44.)

12

1 law clearly favor the moving party.”). Accordingly, Plaintiffs have not met their burden. At best

2 this factor benefits neither party, and is thus neutral.

3

C. Balance of the Hardships

4

“The balance between the harm to the plaintiff if injunctive relief is denied and the harm

5 to the defendant if it is granted is a critical consideration in deciding whether to grant a

6 preliminary injunction.” Ayres v. City of Chicago, 125 F.3d 1010, 1012 (7th Cir. 1997).

7 However, “the real issue in this regard is the degree of harm that will be suffered by the plaintiff

8 or the defendant if the injunction is improperly granted or denied.” Scotts Co. v. United

9 Industries Corp., 315 F.3d 264, 284 (4th Cir. 2002) (emphasis in original). “In evaluating the

10 balance of hardships a court must consider the impact granting or denying a motion for a

11 preliminary injunction will have on the respective enterprises. Thus the relative size and strength

12 of each enterprise may be pertinent to this inquiry.” International Jensen, Inc. v. Metrosound

13 U.S.A, Inc., 4 F.3d 819, 827 (9th Cir. 1993). If the balance of hardships tips strongly in

14 defendant’s favor, plaintiff is required to demonstrate a stronger likeliness of success on the

15 merits. MacDonald v. Chicago Park District, 132 F.3d 355, 357 (7th Cir. 1997).

16

Plaintiffs allege that Defendants would not suffer any hardship because the injunction

17 would not be unduly intrusive since the Defendants proposed a similar approach in a previous

18 state superior court case involving the CDCR. (ECF. No. 270 at 35.) Defendants contend that the

19 balance of the hardships weighs in Defendants’ favor and assert that “[e]njoining CDCR from

20 ever using race in modified-program decisions, even in emergency situations following race-

21 based disturbances, will result in greater harm and possibly death to inmates, staff, and even to

22 Plaintiffs.” (ECF No. 214 at 49.) The Court agrees with Defendants. Defendants bear the heavy

23 responsibility of keeping inmates, prison staff and the public safe. An order that enjoins

24 Defendants from using a policy that the Court has not yet determined to be unconstitutional is an

25 extreme remedy that could endanger those whom the CDCR has been entrusted to protect.

26 Ciempa v. Jones, 477 Fed. Appx. 508, 510 (10th Cir. 2012). As a result, the Court finds that this

27 factor weighs in favor of the Defendants.

28 13

1

D. The Public Interest

2

“In exercising their sound discretion, courts of equity should pay particular regard for the

3 public consequences in employing the extraordinary remedy of injunction.” Winter, 555 U.S. at

4 376–77 (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). “The public interest

5 analysis for the issuance of a preliminary injunction requires [the Court] to consider whether there

6 exists some critical public interest that would be injured by the grant of preliminary relief.”

7 Indep. Living Ctr., So. Cal. v. Maxwell-Jolly, 572 F.3d 644, 659 (2009) (internal quotation marks

8 and citations omitted), vacated and remanded on other grounds, 132 S. Ct. 1204 (2012). The

9 Prison Litigation Reform Act requires the Court to “give substantial weight to any adverse impact

10 on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. §

11 3626(a)(1).

12

Plaintiffs argue that an injunction is in the public interest because “it is always in the

13 public interest to prevent the violation of a party’s constitutional rights.” (ECF 156 at 27 (quoting

14 Melendres, 695 F.3d at 1002 (internal citations omitted)).) Here, Plaintiffs stand on the above

15 broad proclamation and fail to address the public’s interest in maintaining public safety and safe

16 prisons. Defendants argue that the lives of prison staff and prisoners, including Plaintiffs, depend

17 on Defendants’ ability to engage in safe and effective prison administration. (ECF No. 214 at

18 49.) Defendants maintain that if the Court issues Plaintiffs’ requested injunction, CDCR will be

19 forced to either lockdown all inmates or only those who were directly involved in a security

20 disturbance, which will cause “[i]nmates under CDCR’s jurisdiction [to] be subjected to more

21 modified programs or more race-based violence.” (ECF No. 214 at 50.) For this reason,

22 Defendants argue that “[an injunction] is not in the public interest, nor is it in Plaintiffs’ or any

23 other inmate’s interest.” (ECF No. 214 at 53.) Plaintiffs assert that this Court may grant an

24 injunction even if Plaintiffs make the minimum showing on this prong; they assert that the

25 sliding-scale analysis permits this Court to balance less robust evidence on one prong against

26 stronger showings on other prongs. (See ECF No. 156 at 23 (citing Alliance for the Wild Rockies

27 v. Cottrell, 632 F.3d 1127 (9th Cir. 2011))).

28

The Court declines Plaintiffs’ invitation. Plaintiffs have not met the heightened standard

14

1 required of requests for preliminary injunctions that alter the status quo. At this time, the Court

2 defers to Defendants’ experience and judgment regarding prison administration.

3

IV. CONCLUSION

4

For the reasons stated above, the Court hereby DENIES Plaintiffs’ Motion for Preliminary

5 Injunction. (ECF No. 156.) Although Plaintiffs have identified serious questions on the merits as

6 to Defendants’ use of race in lockdowns, they have not met their burden as to the other factors.

7

8 Dated: June 24, 2014

9

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Troy L. Nunley

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United States District Judge

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ROBERT MITCHELL, et al.,

No. 2:08-CV-01196

12

Plaintiff,

13

v.

14 MATTHEW CATE, et al.,

ORDER GRANTING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

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Defendants.

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17

18

This matter is before the Court pursuant to Plaintiffs Mitchell and Quezada’s (collectively

19 referred to as “Plaintiffs”) Motion and Memorandum of Points and Authorities in Support of 20 Class Certification.1 (ECF No. 155.) Defendants Cate, Kernan, McDonald, Giurbino, Tilton,

21 Felker, Wright, Foulk, Vanderville, Owen and Hellwig, (collectively hereinafter referred to as

22 “Defendants”) oppose Plaintiffs’ motion. (ECF No. 213.) The Court has carefully considered the

23 arguments raised by both parties. For the reasons set forth herein, Plaintiffs’ Motion for Class

24 Certification (ECF No. 155) is GRANTED.

25

I. FACTUAL AND PROCEDURAL BACKGROUND

26

Plaintiff Robert Mitchell (“Mitchell”) initiated this case pro se on May 30, 2008, to

27 1

This Court dismissed Plaintiffs Trujillo and Abdullah’s claims for injunctive relief as moot. (See Order,

ECF No. 317.) For this reason, the Court does not address the parties’ arguments relating to Plaintiffs Trujillo and
28 Abdullah’s now-dismissed claims.

1

1 challenge, among other things, a series of allegedly race-based lockdowns to which he was

2 subjected to while imprisoned at High Desert State Prison (“HDSP”) beginning on September 12, 3 2006. (Compl., ECF No. 1 at 12−14.)2 In his original complaint, Mitchell alleged that he filed

4 administrative appeals concerning the lockdown policy as it was applied to him and, in response

5 to his appeals, the prison staff informed Mitchell that it was the policy of the California

6 Department of Corrections and Rehabilitation (“CDCR”) that “when there is an incident

7 involving any race, all inmates of that race are locked up.” (ECF No. 1 at 15.) Accordingly,

8 Mitchell alleged that the CDCR policy improperly utilized ethnic groups as a classification in

9 segregating the inmate population during the process of establishing a regular program following

10 an incident in violation of the Fourteenth Amendment. (ECF No. 1 at 15.) Mitchell also alleged

11 that he was subjected to cruel and unusual punishment in violation of his Eighth Amendment

12 rights as a result of the lockdowns and that the lockdowns violated his rights to equal protection

13 and due process. (ECF No. 1 at 17, 30−31, 38−44.) Mitchell further asserted that prison officials

14 took adverse actions against him in response to his filing of grievances and lawsuits. He alleged

15 that their conduct constituted unlawful retaliation, obstruction of justice, and denial of access to

16 the courts, thereby violating his due process and equal protection rights. (ECF No. 1 at 17−27,

17 32−37, 45−48.) Lastly, Mitchell asserted state law claims of negligence and intentional infliction

18 of emotional distress. (ECF No. 1 at 48−51.)

19

The case was originally assigned to District Court Judge John A. Mendez, but was

20 reassigned to visiting Judge Richard A. Jones of the Western District of Washington in January

21 2009. (ECF No. 7.) During pretrial proceedings, the court appointed counsel for Mitchell for the

22 limited purpose of assisting him in settlement negotiations with Defendants. (ECF No. 60.)

23 Counsel for Mitchell subsequently agreed to continue providing representation to Mitchell and

24 sought to amend the complaint in order to transform the case into a class action challenging the

25 allegedly race-based lockdowns throughout California’s men’s prisons. (ECF Nos. 70, 74.)

26 Judge Jones directed the transfer of the case back to a judge within the Eastern District of

27

2

All page numbers cited herein refer to those assigned by the Court’s electronic docketing system and not

28 those assigned by the parties.

2

1 California, concluding that it was “far from ideal for a judge sitting in the Western District of

2 Washington to consider presiding over an action challenging policies at all of California’s

3 prisons.” (ECF No. 82 at 1.) The case accordingly was reassigned to Judge John A. Mendez and

4 Magistrate Judge Edmund F. Brennan, who granted the motion to amend on September 22, 2011.

5 (ECF No. 83.) Mitchell filed the second amended complaint (“SAC”) on September 23, 2011.

6 (ECF No. 84.)

7

The SAC amended the allegations in the following ways:

8

(1) Adding three plaintiffs to the claims for injunctive and declaratory relief regarding

9 CDCR’s lockdown policies who seek to act, along with Mitchell, as representatives of a class of

10 “all prisoners who are now or will in the future be housed in a men’s prison under the jurisdiction

11 of CDCR and who are now or will in the future be subject to CDCR’s policy and practice of

12 implementing race-based lockdowns” and a similar class of prisoners who are or will be “subject

13 to CDCR’s policy and practice of implementing excessively lengthy lockdowns” (ECF No. 84 at

14 6);

15

(2) Adding Defendants CDCR Secretary Matthew Cate, CDCR Undersecretary of

16 Operations Scott Kernan, CDCR Chief Deputy Secretary for Adult Operations Terri McDonald,

17 and CDCR Director of the Division of Adult Institutions George Giurbino in their official

18 capacities to the injunctive and declaratory relief claims (ECF No. 84 at 4−5);

19

(3) Deleting the claims for retaliation, denial of access to courts, and obstruction of

20 justice; and

21

(4) Deleting Defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T.

22 Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, and J. Walker (ECF No.

23 84).

24

The case was further narrowed on Defendants’ November 2, 2011, motion to dismiss

25 (ECF No. 92) in which the Court dismissed Mitchell’s Eighth and Fourteenth Amendment claims

26 based on lockdowns that occurred before September 12, 2006,. The Court dismissed said claims

27 as unexhausted and limited the state law damages claims to the period from February 28, 2007,

28 through December 5, 2007. (ECF Nos. 107, 114.) 3

1

On March 5, 2013, Plaintiffs filed a motion for class certification as well as a motion for

2 preliminary injunction. (ECF Nos. 155, 156.) On April 3, 2013, this case was assigned to the

3 undersigned. (ECF No. 178.) Subsequently, Plaintiffs filed a request for the district court to hear

4 its pending motions for class certification and injunctive relief pursuant to Eastern District of

5 California Local Rule 302(d). (ECF No. 182.) Before the Court had an opportunity to rule on

6 Plaintiffs’ request, Defendants filed their motion for summary judgment. (ECF No. 253.) On

7 August 5, 2013, the Court granted Plaintiffs’ request stating that “because Plaintiffs’ class

8 certification and preliminary injunction motion, as well as Defendants’ summary judgment

9 motion, are likely to require de novo review, this Court finds that judicial economy would be best

10 served by this Court retaining all future motions associated with this case.” (ECF No. 278.)

11 Thus, this Court retained all matters associated with this case going forward.

12

This Court ruled on Defendants’ Motion for Summary Judgment on February 11, 2014.

13 (ECF No. 317.) The Court dismissed Plaintiffs Trujillo and Abdullah’s claims for declaratory

14 and injunctive relief as moot. The Court also found that Defendants Felker, Vanderville, Owen,

15 Hellwig, Tilton, Foulk and Wright were entitled to qualified immunity as to Plaintiffs’ Eighth

16 Amendment claims. (ECF No. 317.) Thus, Plaintiffs’ surviving claims include: Mitchell and

17 Quezada’s claims for injunctive relief based on Fourteenth Amendment violations; Plaintiff

18 Mitchell’s claim for compensatory damages for violations of his Fourteenth Amendment rights;

19 and Mitchell’s state law claims for intentional infliction of emotional distress, negligence, and

20 negligent infliction of emotional distress. (ECF No. 317.)

21

On June 24, 2014, the Court denied Plaintiffs’ Motion for a Preliminary Injunction (ECF

22 No. 328) finding that Plaintiffs had not met the high burden required to obtain the extraordinary

23 relief sought. Accordingly, the Court now turns to Plaintiffs’ outstanding motion for class

24 certification. (See ECF No. 155.)

25

II. LEGAL STANDARD

26

A. Equal Protection

27

A party alleging a section 1983 violation bears the burden of pleading and proving two

28 essential elements: (1) conduct that deprived the plaintiff of a right, privilege, or immunity 4

1 protected by the Constitution or laws of the United States; and (2) the alleged deprivation was

2 committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48

3 (1988); Johnson v. Knowles, 113 F.3d 1114, 1119 (9th Cir.), cert. denied, 522 U.S. 996 (1997);

4 Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988). To state an equal protection claim, a

5 plaintiff first must show that he “has been intentionally treated differently from others similarly

6 situated.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Like race, ethnicity and

7 national origin are suspect classifications. See Johnson v. California, 543 U.S. at 503, 508 (2005)

8 (holding that California's policy of temporarily segregating new inmates or transferees by race,

9 ethnicity, and national origin for up to 60 days was an “express racial classification” triggering

10 strict scrutiny). To allege an equal protection violation based on race or other protected status,

11 the plaintiff “must show that the defendant acted with an intent or purpose to discriminate against

12 him based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082

13 (9th Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). “‘Intentional

14 discrimination means that a defendant acted at least in part because of a plaintiff's protected

15 status.’” Id. (quoting Maynard v. City of San Jose, 37 F.3d 1396, 1404 (9th Cir. 1994)). Under a

16 strict scrutiny analysis the government must show that “reasonable men and women could not

17 differ regarding the necessity of a racial classification in response to prison disturbances and that

18 the racial classification was the least restrictive alternative (i.e., that any race-based policies are

19 narrowly tailored to legitimate prison goals).” Richardson v. Runnels, 594 F.3d 666, 671 (9th Cir.

20 2010).

21

B. Rule 23

22

Before certifying a class, the trial court must conduct a “rigorous analysis” to determine

23 whether the party seeking certification has met the prerequisites of Rule 23. Wal–Mart Stores,

24 Inc. v. Dukes, __U.S.__, 131 S.Ct. 2541, 2551 (2011) (quoting Gen. Telephone Co. of Sw. v.

25 Falcon, 457 U.S. 147, 161 (1982)). “While the trial court has broad discretion to certify a class,

26 its discretion must be exercised within the framework of Rule 23.” Zinser v. Accufix Research

27 Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir. 2001) (citing Doninger v.

28 Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977)); see also Wang v. Chinese Daily News, 5

1 Inc., 737 F.3d 538, 542–43 (9th Cir. 2013). A court may certify a class if a plaintiff demonstrates

2 that all of the prerequisites of Federal Rule of Civil Procedure 23(a) have been met and that at

3 least one of the requirements of Rule 23(b) have been met. Fed. R. Civ. P. 23; see also Wal–Mart

4 Stores, Inc. v. Dukes, 131 S.Ct. at 2548–49.

5

Rule 23(a) states that one or more members of a class may sue or be sued as representative

6 parties on behalf of all only if:

7

(1) the class is so numerous that joinder of all members is

impracticable [the “numerosity” requirement]; (2) there are

8

questions of law or fact common to the class [the “commonality”

requirement]; (3) the claims or defenses of representative parties are

9

typical of the claims or defenses of the class [the “typicality”

requirement]; and (4) the representative parties will fairly and

10

adequately protect the interests of the class [the “adequacy of

representation” requirement]. 11

12 In addition, Rule 23(b) requires a plaintiff to establish one of the following: (1) that there is a risk

13 of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting

14 the class as a whole would be appropriate; or (3) that common questions of law or fact

15 predominate and the class action is superior to other available methods of adjudication. Fed. R.

16 Civ. P. 23(b).

17

III. ANALYSIS

18

Plaintiffs Mitchell and Quezada have moved the Court to certify this proceeding as a class

19 action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Accordingly,

20 the Court addresses each factor below.

21

A. Numerosity

22

To meet the numerosity requirement of Rule 23(a), a class must be “so numerous that

23 joinder of all members is impracticable.” Rule 23(a)(1); see also Consolidated Rail Corp. v.

24 Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (“numerosity is presumed at a level of 40

25 members”); Andrews Farms v. Calcot, Ltd., CV-F-07-0464 LJO DLB, 2009 WL 1211374, at *3

26 (E.D. Cal. May 1, 2009); see also William B. Rubenstein, et al., Newberg on Class Actions, §

27 3.12 at 198 (5th ed. 2011). Plaintiffs’ proposed class is comprised of all male prisoners who are

28 now, or will in the future be, subjected to the CDCR’s lockdown policy. (See ECF No. 155 at 6

1 13.) Thus, the class would be in the ballpark of 125,000 male prisoners. See http://www.cdcr.ca.

2 gov/Reports_Research/Offender_Information_Services_Branch/Population_Reports.html 3 (providing current CDCR population information).3 The number of plaintiffs vastly exceeds the

4 threshold contemplated by courts and would make joinder of all members impossible. Therefore,

5 numerosity is satisfied.

6

B. Commonality

7

To meet the commonality requirement, there must be “questions of law or fact common

8 to the class.” Fed. R. Civ. P. 23(a). In Wal–Mart v. Dukes, the Supreme Court announced that

9 this provision requires plaintiffs to “demonstrate that the class members ‘have suffered the same

10 injury,’ not merely violations of the same provision of law.” 131 S.Ct. at 2551 (quoting Gen.Tel.

11 Co. of Sw. v. Falcon, 457 U.S. 147,157 (1982)). Thus, “plaintiffs’ claims ‘must depend upon a

12 common contention’ such that ‘determination of [their] truth or falsity will resolve an issue that is

13 central to the validity of each one of the claims in one stroke.’” Parsons v. Ryan, No. 13-16396,

14 2014 WL 2523682, at *10 (9th Cir. June 5, 2014) (quoting Wal-Mart, 131 S.Ct. at 2551).

15 Plaintiffs need not show that “every question in the case, or even a preponderance of questions, is

16 capable of class wide resolution. So long as there is even a single common question, a would-be

17 class can satisfy the commonality requirement of Rule 23(a)(2).” Id. at *11 (internal quotations

18 omitted); see also Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012)

19 (noting that “commonality only requires a single significant question of law or fact”). “Thus,

20 ‘[w]here the circumstances of each particular class member vary but retain a common core of

21 factual or legal issues with the rest of the class, commonality exists.’” Id. (quoting Evon v. Law

22 Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012)).

23

Here, Plaintiffs allege that commonality is met because “all California prisoners are

24 assigned to one of four racial groups, and all are subject to Defendants’ statewide lockdown4

25

26

3

Pursuant to Federal Rule of Evidence 201, this Court takes judicial notice of the approximate CDCR inmate

population which is available on the CDCR’s referenced website.

27

4

Defendants define lockdown as “a means the restriction of all inmates to their cells/dormitory beds

encompassing no less than a Facility. . . The movement of any inmate to an assignment or resumption of any

program would change the lockdown status of the program, returning the institution/facility to a diminished level of
28 modified program or to normal program.” (ECF NO. 238 at 3 (citing Cal. Code Regs. tit. 15, § 3000).)

7

1 policy under which Defendants impose lockdowns on all members of the targeted identified racial

2 group.” (ECF No. 155 at 15.) Plaintiffs assert that the overarching question that predominates

3 this litigation and is common to all proposed class members is whether Defendants’ uniform

4 lockdown policy violates Plaintiffs’ right to equal protection under the law, pursuant to the

5 Fourteenth Amendment. (ECF No. 155 at 15.) Therefore, the central issue of fact as to all

6 proposed class members is whether Defendants can demonstrate that its policy is narrowly 7 tailored.5 See Johnson v. California, 543 U.S. 499, 505 (2005) (“We have insisted on strict

8 scrutiny in every context, even for so-called benign racial classifications, such as race-conscious

9 university admissions policies, race-based preferences in government contracts, and race-based

10 districting intended to improve minority representation.”) (internal citations omitted). Plaintiffs

11 also assert that the evidence presented will be common to all class members, i.e. evidence

12 regarding the following: the prevalence of the lockdowns; Defendants’ role in implementing and

13 maintaining the challenged lockdowns; and readily available race-neutral policies.

14

In opposing Plaintiffs’ motion, Defendants make numerous assertions. First, Defendants

15 try to deny the existence of a CDCR policy. Defendants then describe Plaintiffs’ claims as being

16 an aggregation of claims that involve different factual circumstances, including different

17 prisoners, security levels and facilities. Thus, Defendants opine that the proposed class lacks

18 commonality. (ECF No. 213 at 59–62.) Defendants cite the Supreme Court’s decision in Wal-

19 Mart as support for their contention that Plaintiffs cannot meet the commonality requirement.

20 (ECF No. 213 at 61–67.)

21

First, it is undisputed that the CDCR has a single statewide policy that governs lockdowns

22 implemented at CDCR prisons. Defendants have admitted the existence of both of the lockdown

23 policies at issue: the 2007 policy and the 2012 policy which is currently in effect and replaced the 24 2007 policy.6 Both of these policies utilize race in lockdown situations. In fact, Defendants’

25 5

The Court notes that Defendants have conceded throughout their briefing that strict scrutiny applies to the

26

policy at issue because the CDCR’s policy expressly allows race as a classification.

6

Both parties have submitted a voluminous amount of depositions, declarations and other evidence in support

27

of their respective positions. A large amount of the evidence submitted has been filed under seal pursuant to a stipulated protected order. (ECF No. 123.) The order allows the parties to file documents under seal as

“confidential” if they have a good faith belief that the information is entitled to protection from disclosure under
28 California state law, including but not limited to the names and numbers of prisoners, confidential employment

8

1 previous briefing as well as proffered evidence including sworn declarations and deposition

2 testimony has consistently referenced the existence of the aforementioned polices. As such, the

3 Court finds any assertion denying the existence of the CDCR’s policy to be insincere at the very

4 least, especially in light of the fact that this litigation concerns those very same policies. (See

5 Lewis Depo., ECF No. 158-2 at 19:05–19:11 (testifying “if that particular incident occurs, and

6 it’s an immediate emergency threat to the security of the institution, and it involves large numbers

7 of two racial groups, then those groups, based upon their ethnicity, would be modified, until such

8 time as interviews can be completed, or, if required, individual assessments with each inmate”);

9 Restricted Operations Manual, Chapter 50000, Subchapter 55000, Section 51015 (July 6, 2007),

10 Ex. I; Restricted Operations Manual, Chapter 50000, Subchapter 55000, Section 51015 (October

11 15, 2012), Ex. J.; Evenson Decl., Ex. O, ECF No. 158-15 at 3 (In order to implement its race-

12 based lockdown policy, the CDCR assigns a race or ethnic tag to every inmate. Defendants

13 acknowledge that they put each California prisoner into one of four racial groupings: Black;

14 White; Hispanic; and “Other.”))

15

Second, the Court finds that Defendants’ description of this case is predicated upon a

16 misunderstanding of Plaintiffs’ allegations. Although Plaintiffs’ Complaint did include specific

17 allegations dealing with the mistreatment of individuals, those claims pertained to Plaintiffs’ 18 Eighth Amendment claim that is no longer at issue.7 In contrast, Plaintiffs’ Fourteenth

19 Amendment claim challenges the CDCR’s statewide policy. Although not explicitly stated, the

20 Court reads Plaintiffs’ allegations as posing a facial challenge to the CDCR’s policy. Thus, the

21 Court is not persuaded by Defendants’ challenges to commonality that are based upon its

22 contention that the policy as applied is constitutional. The Ninth Circuit has explained that

23 individual claims are discrete from claims for systemic reform in which a plaintiff alleges that

24 many inmates are simultaneously harmed by a single policy. See Parsons, 2014 WL 2523682, at

25

26

records for CDCR Employees, and information that might compromise the safety or security of a prison or prisoner. The Court has reviewed all of the documentation filed by the parties. In an effort to maintain the confidentiality of

27

the documents, the Court has limited its discussion to portions of the sealed documents that do not fall within the “confidential” standard described above or to those documents that have been discussed in the parties’ briefing which

is available to the public.

28 7

See Summary Judgment Order, ECF No. 317.

9

1 *13 (holding that the different circumstances surrounding prisoners’ health care while

2 incarcerated did not defeat commonality where plaintiffs were challenging the constitutionality of

3 specified statewide ADC policies and practices that govern the overall conditions of health care

4 services and confinement); Pride v. Correa, 719 F.3d 1130, 1137 (9th Cir. 2013); see also Brown

5 v. Plata, 131 S.Ct. 1910, 1925 n.3 (2011).

6

Finally, Defendants reliance on Wal-Mart is misplaced. In Wal-Mart, the plaintiffs were

7 female employees who alleged that defendants discriminated against them on the basis of their

8 sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of

9 1964. Wal-Mart’s employment policy allowed local supervisors to use discretion in employment

10 matters but, unlike the policy at issue in this case, it forbade sex discrimination and imposed

11 penalties for denial of equal employment opportunity. 131 S.Ct. at 2553–54. However, plaintiffs

12 asserted that the corporate culture made it “vulnerable to gender bias.” Id. The Supreme Court

13 held that plaintiffs’ effort to “sue about literally millions of employment decisions as once”

14 thwarted commonality because “the invalidity of one manager’s use of discretion will do nothing

15 to demonstrate the invalidity of another’s.” 131 S.Ct. at 2552, 2254. In contrast, here Plaintiffs

16 challenge a statewide policy that expressly allows the use of racial classification. Therefore,

17 Plaintiffs challenge the policy of allowing racial classifications, not the individual warden’s

18 discretion as to when to use the classification. Accordingly, the instant case is distinguishable

19 from Wal-Mart.

20

Because this case involves an express policy that is utilized on all male inmates, the

21 posture is more analogous to the Ninth Circuit’s opinion in Parsons. The Parsons court affirmed

22 the certification of a class of inmates challenging the Arizona Department of Corrections health

23 care policy. See Parsons, 2014 WL 2523682, at *16 (discussing numerous cases in which district 24 courts have certified class litigation concerning prison policies).8 There the panel specifically

25 8

See, e.g., Chief Goes Out v. Missoula Cnty., No. 12 Civ. 155, 2013 WL 139938, at *5 (D. Mont. Jan.10,

26

2013) (“[C]ourts have long recognized that, in prison condition cases like this one, the injury is the [deprivation] itself, not just the negative effects resulting from the [deprivation].... [O]ther courts have certified classes of inmates

27

claiming unconstitutional deprivation of outdoor exercise, and scores of courts have certified classes of prisoners claiming other unconstitutional prison conditions.”); Butler v. Suffolk Cnty., 289 F.R.D. 80, 98 (E.D. N.Y. 2013)

(“Whether the County was aware of and deliberately indifferent to the conditions at the [prison] is a common
28 question subject to class-wide resolution.”); Hughes v. Judd, No. 12 Civ. 568, 2013 WL 1821077, at *23 (M.D. Fla.

10

1 addressed the applicability of Wal-Mart’s holding to prisoner cases and stated that “since Wal-

2 Mart, numerous courts have concluded that the commonality requirement can be satisfied by

3 proof of the existence of systemic policies and practices that allegedly expose inmates to a

4 substantial risk of harm.” Id. at 16. Accordingly, the Court finds that commonality is met.

5

C. Typicality

6

To meet the typicality requirement, the claims of the named plaintiffs must be “typical of

7 the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “Under [Rule 23’s] permissive

8 standards, representative claims are ‘typical’ if they are reasonably coextensive with those of

9 absent class members; they need not be substantially identical.” Hanlon v. Chrysler Corp., 150

10 F.3d 1011, 1020 (9th Cir.1998). “The test of typicality ‘is whether other members have the same

11 or similar injury, whether the action is based on conduct which is not unique to the named

12 plaintiffs, and whether other class members have been injured by the same course of conduct.’”

13 Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992) (quoting Schwartz v. Harp, 108

14 F.R.D. 279, 282 (C.D. Cal. 1985)). Thus, “[t]ypicality refers to the nature of the claim or defense

15 of the class representative, and not to the specific facts from which it arose or the relief sought.”

16 Id.

17

“As the Supreme Court recognized in Wal-Mart, Rule 23(a)’s commonality and typicality

18 requirements occasionally merge: ‘Both serve as guideposts for determining whether under the

19 particular circumstances maintenance of a class action is economical and whether the named

20 plaintiff’s claim and the class claims are so interrelated that the interests of the class members

21 will be fairly and adequately protected in their absence.’” Parsons, 2014 WL 2523682, at *19

22
Mar. 27, 2013) report and recommendation adopted as modified, No. 12 Civ. 568, 2013 WL 1810806 (M.D. Fla.

23 Apr. 30, 2013) (“Plaintiffs’ claims related to these [prison] conditions are capable of class-wide resolution: Plaintiffs
seek permanent injunctive and declaratory relief that would enjoin allegedly unconstitutional behavior as applied to

24

the entire class. Importantly, the questions of law are applicable in the same manner to each potential class member.... Each class member, if proceeding separately against Defendants, would need to meet the same test under

25

the Eighth and Fourteenth Amendments to prevail.”); Rosas v. Baca, No. 12 Civ. 428, 2012 WL 2061694, at *3 (C.D. Cal. June 7, 2012) (Pregerson, J.) (“In a civil rights suit such as this one ... commonality is satisfied where the lawsuit

26

challenges a system-wide practice or policy that affects all of the putative class members. Under such circumstances, individual factual differences among class members pose no obstacle to commonality.”); Indiana Prot. & Advocacy

27

Servs. Comm’n v. Comm’r, Indiana Dep’t of Correction, No. 08 Civ. 1317, 2012 WL 6738517, at *18 (S.D. Ind. Dec. 31, 2012) (“The mentally ill prisoners here, have demonstrated through a wealth of evidence, that the class is

united by the common question of whether the lack of treatment and isolated living conditions in IDOC facilities
28 violate the Eighth Amendment.”).

11

1 (quoting Wal-Mart, 131 S.Ct. at 2551 n.5).

2

Here, Plaintiffs are all inmates in the CDCR’s custody. Each declares that he is being

3 exposed, like all other members of the putative class, to a substantial risk of serious harm by the

4 challenged policy. Hanon, 976 F.2d at 508. Named Plaintiffs allege being locked down based on

5 their race which is “the same or [a] similar injury” as the rest of the putative class; they allege that

6 this injury is a result of the warden’s implementation of the policy that is not unique to any of

7 them; and they allege that the injury follows from the policy itself, which is at the center of the 8 class claims.9 (See Mitchell Decl., ECF No. 161 at ¶¶ 2–4, 6 (all Black prisoners at High Desert

9 Prison were subjected to nearly 18 months of continuous lockdowns); Quezada Decl., ECF No.

10 163 at ¶¶ 4,5, 7 (“Because I am classified as Hispanic ‘Other,’ I have been locked down when

11 CDCR locks down all ‘Hispanics,’ and I have also been locked down when CDCR locks down

12 inmates whose ethnicity is ‘Other.’”)) Furthermore, it does not matter that Plaintiffs may have in

13 the past suffered varying injuries; Rule 23(a)(3) requires only that their claims be “typical” of the

14 class, not that they be identically positioned to each other or to every class member. See Ellis v.

15 Costco Wholesale Corp., 657 F.3d 970, 985 n.9 (9th Cir. 2011) (“Differing factual scenarios

16 resulting in a claim of the same nature as other class members does not defeat typicality.”); see

17 also Hanon, 976 F.2d at 508 (holding that typicality refers to the nature of the claim and not to

18 the specific facts from which it arose or the relief sought). Thus, typicality is met.

19

D. Adequacy of Representation

20

The named Plaintiffs must fairly and adequately protect the interests of the class. Fed. R

21 Civ. P. 23(a)(4). “To determine whether named plaintiffs will adequately represent a class, courts

22 must resolve two questions: ‘(1) do the named plaintiffs and their counsel have any conflicts of

23 interest with other class members and (2) will the named plaintiffs and their counsel prosecute the

24

25

9

As previously discussed in Section III(B), Defendants have admitted that the policy at issue is applied to all

inmates and allows the use of racial classification as a means for lockdowns subsequent to an “incident.” See Lewis

26

Depo., ECF No. 158-2 at 19:05–19:11 (testifying “if that particular incident occurs, and it’s an immediate emergency threat to the security of the institution, and it involves large numbers of two racial groups, then those groups, based

27

upon their ethnicity, would be modified, until such time as interviews can be completed, or, if required, individual assessments with each inmate”); Restricted Operations Manual, Chapter 50000, Subchapter 55000, Section 51015

(July 6, 2007), Ex. I; Restricted Operations Manual, Chapter 50000, Subchapter 55000, Section 51015 (October 15,
28 2012), Ex. J.)

12

1 action vigorously on behalf of the class?’” Ellis, 657 F.3d at 985 (quoting Hanlon, 150 F.3d at

2 1020).

3

Defendants argue that Plaintiff Mitchell would not be an adequate representative of the

4 class because he has a conflict of interest with the putative class. (ECF No. 213 at 71.)

5 Specifically, Defendants assert that Mitchell alone seeks monetary damages based on alleged

6 injuries resulting from past modified programs and thus his “demand to be awarded millions of

7 dollars in damages could conflict with the plaintiff class’s demand for injunctive relief.” (ECF

8 No. 213 at 71.) In response, Plaintiffs cite Local Joint Executive Bd. of Culinary/Bartender Trust

9 Fund v. Las Vegas Sands, Inc., in which the Ninth Circuit held that “the adequacy-of-

10 representation requirement is satisfied as long as one of the class representatives is an adequate

11 class representative.” 244 F.3d 1152, 1162 n.2 (9th Cir. 2001).

12

The Court is not convinced that Plaintiff Mitchell’s other claims hamper his ability to

13 adequately represent the proposed class. See Matamoros v. Starbucks Corp., 699 F.3d 129, 138

14 (1st Cir. 2012) (“[P]erfect symmetry of interest is not required and not every discrepancy among

15 the interests of class members renders a putative class action untenable. Only conflicts that are

16 fundamental to the suit and that go to the heart of the litigation prevent a plaintiff from meeting

17 the Rule 23(a)(4) adequacy requirement.”); Allied Orthopedic Appliances, Inc. v. Tyco

18 Healthcare Grp. L.P., 247 F.R.D. 156, 177 (C.D. Cal. 2007) (“Class certification will be

19 inappropriate if fundamental conflicts of interest are determined to exist among the proposed

20 class members. . . A conflict is “fundamental” when it goes to the specific issues in controversy,

21 where, as here, some plaintiffs claim to have been harmed by the same conduct that benefited

22 other members of the class, preventing the named representatives from “vigorously prosecut[ing]

23 the interests of the class through qualified counsel.”) However, even if Defendants’ assertion has

24 merit, Plaintiff Quezada does not have an alleged conflict. Moreover, Defendants do not dispute

25 that Quezada would be an adequate representative. Accordingly, the Court finds that Plaintiff

26 Mitchell’s additional claims do not prevent Plaintiffs from adequately representing the class.

27

Furthermore, Plaintiffs’ counsel, the Prison Law Office and Bingham McCutchen LLP,

28 who are seeking to represent the class, satisfy the requirements set forth in Rule 23(g) and thus 13

1 would adequately represent the class. Rule 23(g) requires that the district court appoint class

2 counsel for any class that is certified. The Rule identifies four factors that the Court must

3 consider in appointing class counsel: (1) “the work counsel has done in identifying or

4 investigating potential claims in the action;” (2) “counsel’s experience in handling class actions,

5 other complex litigation, and the types of claims asserted in the action;” (3) “counsel’s knowledge

6 of the applicable law;” and (4) “the resources that counsel will commit to representing the class.”

7 Fed. R. Civ. P. 23(g)(1)(A). So far, Plaintiffs’ counsel has been diligent in representing Plaintiffs

8 which is evidenced by the numerous motions and briefs that have been submitted to the Court.

9 Thus, Rule 23(g)(1) is satisfied. Furthermore, Plaintiffs’ counsel has previous experience with

10 both prisoner litigation and class actions (see Evenson Decl., ECF No. 158, Evenson CV, ECF

11 No. 158-1, Holtz Decl., ECF No. 165 at ¶¶ 8–9). In addition Plaintiffs’ litigation team has

12 already dedicated time and resources to this litigation and states that it will continue to “commit

13 major staffing and material resources to the representation of this class, including by retaining

14 highly qualified experts.” (See ECF No. 155 at 25; ECF No. 158 at ¶ 2; ECF No. 165 at ¶ 4;

15 Specter Decl., ECF No. 166 at ¶¶ 4–5.) As such, the Court finds that the class would be

16 adequately represented by Plaintiffs.

17

E. Rule 23(b)(2)

18

In addition to satisfying Rule 23(a), a class action must meet the requirements of one of

19 the provisions of Rule 23(b). Plaintiffs assert that this case fits squarely within Rule 23(b)(2),

20 which authorizes class certification where “the party opposing the class has acted or refused to act

21 on grounds that apply generally to the class, so that final injunctive relief or corresponding

22 declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The

23 Ninth Circuit has repeatedly stated that “the primary role of Rule 23(b)(2) has always been the

24 certification of civil rights class actions.” Parsons, 2014 WL 2523682, at *20 (citing Amchem

25 Products, Inc. v. Windsor, 521 U.S. 591, 614, (1997)); see also Walters v. Reno, 145 F.3d 1032,

26 1047 (9th Cir. 1998) (Rule “23(b)(2) was adopted in order to permit the prosecution of civil rights

27 actions.”); see also Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 63 (3d Cir. 1994) (“The

28 writers of Rule 23 intended that subsection (b)(2) foster institutional reform by facilitating suits 14

1 that challenge widespread rights violations of people who are individually unable to vindicate

2 their own rights.” (citations omitted)). Accordingly, whether a class may be certified under Rule

3 23(b)(2) depends on “whether class members seek uniform relief from a practice applicable to all

4 of them.” Rodriguez v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2009). “‘[I]t is sufficient’ to meet

5 the requirements of Rule 23(b)(2) that ‘class members complain of a pattern or practice that is

6 generally applicable to the class as a whole.’” Id. (quoting Walters, 145 F.3d at 1047).

7

Here, Plaintiffs seek injunctive relief from the race-based lockdown policy utilized in all

8 the men’s prisons under CDCR jurisdiction. Plaintiffs have alleged that the allegedly

9 unconstitutional policy is applied to the entirety of the class, and the relief sought is uniform to all

10 members of the proposed class. The Court agrees that the relief sought by Plaintiffs puts this case

11 squarely within the framework of Rule 23(b). In fact, this is exactly the type of wide spread civil

12 rights violation that subsection (b)(2) was intended to facilitate. See Baby Neal for & by Kanter,

13 43 F.3d at 63. Moreover, the Court notes that Defendants do not present any arguments

14 purporting that Plaintiffs’ motion for class certification is improper under Rule 23(b)(2). As such,

15 Plaintiffs have met their burden under Rule 23(b)(2).

16

IV. CONCLUSION

17

For the reasons stated above, the Court hereby GRANTS Plaintiffs’ Motion in Support of

18 Class Certification (ECF No. 155). The Court finds that the named Plaintiffs are adequate

19 representatives of the class of male inmates within the CDCR. The Court further finds that

20 Plaintiff Quezada is an adequate representative of the aforementioned class. Finally, the Court

21 finds that Plaintiffs’ litigation team comprised of the Prison Law Office and Bingham McCutchen

22 LLP, is competent to pursue this action on behalf of the class. In light of the foregoing and the

23 Court’s determination that Plaintiffs’ Motion for Class Certification should be granted, the Court

24 hereby appoints the Prison Law Office and Bingham McCutchen LLP as class counsel.

25

IT IS SO ORDERED.

26 Dated: July 21, 2014

27

Troy L. Nunley

28

United States District Judge

15

 1 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California
2 DAMON G. MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General
3 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
4 Telephone: (415) 703-5750 Fax: (415) 703-5843
5 E-mail: Damon.Mcclain@doj.ca.gov Attorneys for Defendants M. Cate, S. Kernan, T.
6 McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and
7 D. Hellwig

8 PRISON LAW OFFICE
DONALD SPECTER (SBN 83925) 9 REBEKAH EVENSON (SBN 207825)
10 1917 Fifth Street Berkeley, California 94710-1916
11 Telephone: (510) 280-2621 Facsimile: (510) 280-2704
12 dspecter@prisonlaw.com
revenson@prisonlaw.com 13 Attorneys for Plaintiff Robert Mitchell, Alvaro 14 Quezada and the Plaintiff Class

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

SACRAMENTO DIVISION

18

19

ROBERT MITCHELL, et al., 20

2:08-CV-01196-TLN-EFB

Plaintiffs, 21

v. 22

STIPULATED SETTLEMENT

23 MATTHEW CATE, et al., 24

Courtroom: 2

Judge:

Hon. Troy L. Nunley

Action Filed: May 30, 2008

Defendants.

25

26

27

28 1
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1

INTRODUCTION

2

1. The parties enter into this Stipulation to address Plaintiffs’ claims for injunctive relief

3 regarding modified programs and lockdowns implemented in prisons operated by the California

4 Department of Corrections and Rehabilitation (CDCR) and to settle this case.

5

2. The Plaintiffs are inmates Robert Mitchell, Alvaro Quezada, and a certified class

6 consisting of all male prisoners who are now, or will in the future be, subjected to CDCR’s

7 modified program and lockdown policy. The Defendants include CDCR’s Secretary,

8 Undersecretary of Operations, Chief Deputy Secretary for Adult Operations, and Director of

9 Adult Institutions, who are sued in their official capacities as state officials responsible for the

10 operation of CDCR’s prisons.

11

3. Plaintiff Mitchell also sued a number of Defendants in their individual capacities for

12 damages. The individual-capacity Defendants are James Tilton, Tom Felker, M. Wright, F. Foulk,

13 D. Vanderville, J. Owen, and D. Hellwig. This Stipulation does not settle Plaintiff Mitchell’s

14 damages claims. If the parties cannot agree on a reasonable settlement of Plaintiff Mitchell’s

15 damages claims, they will be severed from the injunctive-relief claims, and settlement of the

16 injunctive-relief claims will not preclude trial on Plaintiff Mitchell’s damages claims.

17

4. This action was filed on May 30, 2008. A First Amended Complaint was filed in

18 June 2010, and Plaintiffs filed a Second Amended Complaint in April 2011, which added class

19 allegations, additional Plaintiffs, and additional Defendants. The Second Amended Complaint

20 alleges that CDCR has a statewide policy and practice of implementing excessively long modified

21 programs and lockdowns that violate the Eighth Amendment and the Equal Protection Clause.

22 The Second Amended Complaint seeks declaratory and system-wide injunctive relief to address

23 the alleged constitutional violations.

24

5. The parties have conducted extensive discovery, which included conducting more

25 than two dozen depositions of prison officials, prison leadership, prisoners and experts, and 26 disclosing tens of thousands of pages of documents.

27

28 2
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1

6. Defendants filed a motion to dismiss the complaint, which the court granted in part

2 and denied in part. The court dismissed Mr. Mitchell’s damages claims for certain specified

3 periods of time, but left intact the injunctive relief claims. (ECF Nos. 107, 114)

4

7. Defendants also filed a motion for summary judgment, which the court granted in part

5 and denied in part. The Court dismissed the claims of two plaintiffs (Mr. Trujillo and Mr.

6 Abdullah) as moot, but denied the motion to dismiss the claims of Plaintiffs Mitchell and

7 Quezada. (ECF No. 46). The Court also denied the motion to dismiss Mr. Mitchell’s claim for

8 damages under State law and the Fourteenth Amendment, but granted the motion to dismiss Mr.

9 Mitchell’s Eighth Amendment damages claim.

10

8. Plaintiffs filed a motion for preliminary injunction, which the Court denied on June

11 25, 2014. ECF No. 328.

12

9. Plaintiffs also filed a motion for class certification, which the Court granted on July

13 23, 2014. ECF No. 329.

14

10. The parties have conducted extensive negotiations over several months to resolve

15 Plaintiffs’ demands that CDCR change its statewide policies and practices concerning modified

16 programs and lockdowns. Those negotiations have been undertaken at arm’s length and in good

17 faith between Plaintiffs’ counsel and high-ranking state officials and their counsel. The parties

18 have reached agreement on statewide policies and practices that CDCR has already begun to

19 implement to settle Plaintiffs’ claims for declaratory and injunctive relief. The parties freely,

20 voluntarily, and knowingly, with the advice of counsel, enter into this Stipulation for that purpose.

21

11. All parties and their counsel recognize that, in the absence of an approved settlement,

22 they face lengthy and substantial litigation, including trial and potential appellate proceedings, all

23 of which will consume time and resources and present the parties with ongoing litigation risks

24 and uncertainties. The parties wish to avoid these risks, uncertainties, and consumption of time

25 and resources through a settlement under the terms and conditions of this Stipulation.

26

ACCORDINGLY, without any admission or concession by Defendants of any current

27 and ongoing violations of a federal right, all claims for injunctive relief in the Second Amended

28 Complaint shall be finally and fully compromised, settled, and released, subject to the terms and 3
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 conditions of this Stipulation, which the parties enter into freely, voluntarily, knowingly, and with

2 the advice of counsel.

3

4

A. JURISDICTION AND VENUE

5

12. The Court has jurisdiction over this matter under 28 U.S.C. §§ 1331 and 1343.

6

13. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events

7 giving rise to Plaintiffs’ claims occurred in the Eastern District of California.

8

9

B. CLASS CERTIFICATION

10

14. On July 23, 2014, the Court certified a class consisting of all male prisoners who are

11 now, or will in the future be, subjected to CDCR’s modified program and lockdown policy.

12

13

C. TERMS AND CONDITIONS

14

15. CDCR will not implement race-based modified programs or lockdowns. Lockdowns

15 or modified programs may be (1) imposed on all inmates, and lifted from all inmates in the

16 affected area, or (2) imposed and lifted from inmates in the affected area based on individualized

17 threat assessments, but (3) may not be imposed or lifted based on race or ethnicity.

18

16. CDCR will use individualized threat-assessment forms to determine who will be

19 retained on a modified program or lockdown. The threat-assessment forms will assign points

20 based on individualized factors, and CDCR may determine who should be retained on a modified

21 program or lockdown based on the total number of points assigned to each inmate. The threat-

22 assessment forms may also include an individualized assessment of an inmate’s security-threat-

23 group status, and CDCR may implement modified programs that impact inmates whose threat-

24 assessment forms indicate an affirmative security-threat-group status. But the threat-assessment

25 forms will not assign points based on an affirmative security-threat-group status.

26

17. CDCR will only place an inmate on a modified program that impacts a security-

27 threat group if an individualized review of that inmate’s central file indicates an affiliation, based

28 4
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 on sufficiently reliable and current information, with the security-threat group impacted by the

2 modified program.

3

18. If a modified program or lockdown lasts longer than fourteen days, the Warden must

4 initiate a plan to provide outdoor activity to the affected inmates. On May 6, 2014, CDCR began

5 implementing a policy in section 55015 of the Restricted Department Operations Manual

6 consistent with this term of the Stipulation.

7

19. Modified programs lasting longer than fourteen days shall require periodic conference

8 calls with the Associate Director until a normal program is achieved. On May 6, 2014, CDCR

9 began implementing a policy in section 55015 of the Restricted Department Operations Manual

10 consistent with this term of the Stipulation.

11

20. To address the issues raised by Plaintiffs’ suit, CDCR has revised its policies

12 concerning modified programs and lockdowns, which are found in title 15, section 3000, of the

13 California Code of Regulations, and in section 55015 of the Restricted Department Operations

14 Manual dated May 6, 2014. CDCR will further revise title 15, section 3000, and section 55015 of

15 the Restricted Department Operations Manual by modifying the definition of “modified program”

16 to be:

17

Modified Program means the suspension or restriction of less than all inmate

program activities and/or movement. A Modified Program may either occur

18

independently in response to an incident or unusual occurrence or may occur

as a facility transitions from a lockdown to regular programming. Imposed

19

restrictions may fluctuate as circumstances dictate with the goal of resuming

regular programming as soon as it is practical. Modified programming will

20

last no longer than necessary to restore institutional safety and security or to

investigate the triggering event, and shall not target a specific racial or ethnic

21

group. For those inmates whose movement has been restricted, movement

may be authorized on a case-by-case basis for essential or emergency

22

services, such as medical, dental, mental health, or law library visits. The

routine and/or temporary restrictions on inmate movement or yard activities,

23

which do not last longer than 24 hours, are not considered a program

modification. 24

25 21. CDCR will train its staff who are responsible for implementing and managing
26 modified programs and lockdowns regarding the revised policies and procedures concerning
27 modified programs and lockdowns. This training shall include written instructions describing
28
5
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 how to complete the threat-assessment form and the Form 812, and how to evaluate whether the

2 Form 812 and the documents on which it is based are sufficiently reliable and current to warrant

3 an affirmative notation on the threat-assessment form regarding security-threat-group status. The

4 parties will work together to develop agreed-upon training materials.

5

22. Jose Morales (P-63392) and his attorneys, the Prison Law Office, will jointly move to:

6 (1) discharge the Order to Show Cause re Contempt with prejudice in the habeas proceeding In re

7 Jose Morales, Case No. HCPB 10-5015, pending in the Superior Court of California, Del Norte

8 County; and (2) modify the terms of the July 8, 2011 order in that case to conform to the terms set

9 forth herein.

10

23. For a period of eighteen months after the Court grants preliminary approval of this

11 Stipulation, or through the 120-day period after the Court grants final approval of the Stipulation,

12 whichever is later, CDCR will provide Plaintiffs’ counsel, under the protective order in place in

13 this matter, with all sections of all program-status reports generated at CDCR’s prisons in

14 California that house adult male inmates. On or before the fifteenth of each month after the Court

15 grants preliminary approval of this Stipulation, CDCR will provide the program-status reports

16 covering the prior month.

17

24. During the eighteen-month period after the Court grants preliminary approval of this

18 Stipulation, or through the 120-day period after the Court grants final approval of the Stipulation,

19 whichever is later, Plaintiffs’ counsel shall be entitled to meet with CDCR officials and

20 Defendants’ counsel on a quarterly basis on mutually agreeable dates to discuss questions and

21 concerns regarding modified programs and lockdowns and CDCR’s compliance with this

22 Stipulation.

23

24

D. TERMINATION

25

25. Plaintiffs shall have thirty days after the end of the eighteen-month period, or after the

26 end of the 120-day period following the date on which the Court grants final approval of the

27 Stipulation, whichever is later, to seek an extension, not to exceed twelve months, of this

28 Stipulation and the Court’s jurisdiction over this matter by presenting evidence that demonstrates 6
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 by a preponderance of the evidence that current and ongoing violations of the Equal Protection

2 Clause or Eighth Amendment of the United States Constitution exist on a system-wide basis as a

3 result of CDCR’s modified-program and lockdown policies. Defendants shall have an

4 opportunity to respond to any such evidence presented to the Court and to present their own

5 evidence. If Plaintiffs do not file a motion to extend court jurisdiction within the periods noted

6 above, or if the evidence presented fails to satisfy their burden of proof, this Stipulation and the

7 Court’s jurisdiction over this matter shall automatically terminate, and the injunctive relief claims

8 in this case shall be dismissed with prejudice.

9

26. Brief and isolated constitutional violations shall not constitute evidence of an ongoing,

10 system-wide policy and practice of implementing modified programs and lockdowns that violate

11 the Constitution, and shall not constitute grounds for continuing this Stipulation or the Court’s

12 jurisdiction over this matter.

13

27. If the Court’s jurisdiction and this Stipulation are extended by Plaintiffs’ motion, they

14 shall both automatically terminate at the end of the extension period and the case shall be

15 dismissed unless Plaintiffs make the same showing described in Paragraph 25, in which case the

16 Court’s jurisdiction and this Stipulation shall be extended for another limited term, not to exceed

17 twelve months, before automatically terminating.

18

28. To the extent that this Stipulation and the Court’s jurisdiction over this matter are

19 extended under this agreement beyond the initial eighteen-month period, CDCR’s production of

20 program-status reports to Plaintiffs’ counsel will be extended for the same period.

21

29. Notwithstanding any provision in this Stipulation, at any time after the initial

22 eighteen-month period, or after the end of the 120-day period following the date on which the

23 Court grants final approval of the Stipulation, whichever is later, Defendants and CDCR may

24 seek termination of this case and the Court’s jurisdiction under the Prison Litigation Reform Act,

25 18 U.S.C. §3626(b)(1)(A).

26

30. It is the intention of the parties in signing this Stipulation that upon completion of its

27 terms it shall be effective as a full and final release from all claims for injunctive relief asserted in

28 7
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 the Second Amended Complaint. Nothing in this Stipulation will affect the rights of Plaintiffs

2 regarding legal claims that arise after the dismissal of this case.

3

4

E. MODIFICATION OF POLICIES

5

31. CDCR may modify the revised policies concerning lockdowns and modified

6 programs at any time, provided that the modified policies comply with the terms of this

7 Stipulation and the Constitution of the United States, and contain the elements described in

8 paragraphs 15 through 21 above. If CDCR decides to modify the revised policies before this case

9 is terminated, it will provide Plaintiffs’ attorneys with a draft of the modified policies at least

10 thirty days before implementation, and offer an opportunity for Plaintiffs to meet and confer with

11 CDCR about the policies.

12

13

F. JOINT MOTION AND STAY OF PROCEEDINGS

14

32. The parties will jointly request that the Court preliminarily approve this Stipulation,

15 require that notice of the proposed settlement be sent to the class, and schedule a fairness hearing.

16 The parties will also file a proposed order granting preliminary approval of the Stipulation, in the

17 form attached hereto as Exhibit A. With this motion the Parties will also jointly request that the

18 Court stay all other proceedings in this case pending resolution of the fairness hearing. Following

19 the close of the objection period, the Parties will jointly request that the Court enter a final order

20 containing all of the elements included in the proposed order attached hereto as Exhibit B,

21 approving this Stipulation, retaining jurisdiction to enforce it, and continuing the stay of the case

22 pending the completion of the Stipulation’s terms.

23

24

G. DISPUTE RESOLUTION AND ENFORCEMENT

25

33. If Plaintiffs contend that CDCR is violating the terms of this Stipulation by

26 implementing race-based modified programs or lockdowns, Plaintiffs shall provide Defendants

27 with a brief written description of the basis for that contention and may request that the parties

28 meet and confer to resolve the issue. Defendants shall respond to Plaintiffs’ concerns no later 8
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 than 30 days after receipt of Plaintiffs’ written description of the issue. If the parties are unable to

2 resolve the issue informally, Plaintiffs may seek enforcement of the Stipulation by order of this

3 Court. Plaintiffs must demonstrate by a preponderance of the evidence that CDCR is in material

4 breach of its obligation to prohibit the implementation of race-based modified programs and

5 lockdowns. Defendants shall have an opportunity to respond to any such evidence presented to

6 the Court and to present their own evidence in opposition to any enforcement motion. If

7 Plaintiffs have demonstrated by a preponderance of the evidence a material noncompliance with

8 these terms, then for the purposes of Plaintiffs’ enforcement motion only, the parties agree that

9 Plaintiffs will have also demonstrated a violation of a federal right and that the Court may order

10 enforcement consistent with the requirements of 18 U.S.C. § 3626(a)(1)(A).

11

34. The parties agree that the other terms of this Stipulation shall also be enforceable by

12 order of this Court. If Plaintiffs contend that CDCR has not substantially complied with any other

13 terms of this agreement, Plaintiffs shall provide Defendants with a brief written description of the

14 basis for that contention and may request that the parties meet and confer to resolve the issue.

15 Defendants shall respond to Plaintiffs’ concerns no later than 30 days after they receive Plaintiffs’

16 written description of the issue. If the parties are unable to resolve the issue informally, Plaintiffs

17 may seek enforcement of the Stipulation by order of this Court. It shall be Plaintiffs’ burden in

18 making such a motion to demonstrate by a preponderance of the evidence that Defendants have

19 not substantially complied with the terms of the Stipulation. Defendants shall have an

20 opportunity to respond to any such evidence presented to the Court and to present their own

21 evidence in opposition to Plaintiffs’ motion. If Plaintiffs satisfy their burden of proof by

22 demonstrating substantial noncompliance with the Stipulation’s terms by a preponderance of the

23 evidence, then the Court may issue an order to achieve substantial compliance with the

24 Stipulation’s terms.

25

26

H. ATTORNEYS’ FEES AND COSTS

27

35. Defendants agree to pay Plaintiffs’ counsel attorneys’ fees and costs for work

28 reasonably performed on this case, including monitoring CDCR’s compliance with this 9
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

1 Stipulation and enforcing this Stipulation, at the hourly rate set forth under the Prison Litigation

2 Reform Act, 42 U.S.C. § 1997e(d). The Prison Litigation Reform Act applies to all applications

3 for attorneys’ fees in this case. Plaintiffs shall have sixty days from the entry of a final order

4 approving this Stipulation to file their motion for attorneys’ fees and costs for work reasonably

5 performed before that date. Subject to the provisions under 42 U.S.C. §§ 1988 and 1997e,

6 Plaintiffs’ motion may request an award that includes their expert fees. On a quarterly basis,

7 Plaintiffs may file motions for reasonable attorneys’ fees accrued in monitoring and enforcing

8 CDCR’s compliance with this Stipulation.

9

36. The notice to the class members shall explain that Plaintiffs will file a motion for

10 attorneys’ fees following entry of a final order approving the Stipulation.

11

12

I. CONSTRUCTION OF STIPULATION

13

37. This Stipulation reflects the entire agreement of the parties and supersedes any prior

14 written or oral agreements between them. No extrinsic evidence whatsoever may be introduced

15 in any judicial proceeding to provide the meaning or construction of this Stipulation. Any

16 modification to the terms of this Stipulation must be in writing and signed by a CDCR

17 representative and attorneys for Plaintiffs and Defendants to be effective or enforceable.

18

38. This Stipulation shall be governed and construed according to California law. The

19 parties waive any common-law or statutory rule of construction that ambiguity should be

20 construed against the drafter of this Stipulation, and agree that the language in all parts of this

21 Stipulation shall in all cases be construed as a whole, according to its fair meaning.

22

39. This Stipulation shall be valid and binding on, and faithfully kept, observed,

23 performed, and be enforceable by and against the parties, their successors and assigns.

24

40. The obligations governed by this Stipulation are severable. If for any reason a part of

25 this Stipulation is determined to be invalid or unenforceable, such a determination shall not affect

26 the remainder.

27

28 10
Stipulated Settlement (2:08-CV-01196-TLN-EFB)

EXHIBIT A

1 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California
2 DAMON G. MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General
3 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
4 Telephone: (415) 703-5750 Fax: (415) 703-5843
5 E-mail: Damon.Mcclain@doj.ca.gov Attorneys for Defendants M. Cate, S. Kernan, T.
6 McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and
7 D. Hellwig

8 PRISON LAW OFFICE

DONALD SPECTER (SBN 83925) 9 REBEKAH EVENSON (SBN 207825)

10 1917 Fifth Street Berkeley, California 94710-1916

11 Telephone: (510) 280-2621 Facsimile: (510) 280-2704
12 dspecter@prisonlaw.com

revenson@prisonlaw.com 13 Attorneys for Plaintiff Robert Mitchell, Alvaro 14 Quezada, and the Plaintiff class

IN THE UNITED STATES DISTRICT COURT 15

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

SACRAMENTO DIVISION

18

19 ROBERT MITCHELL, et al.,

2:08-CV-01196-TLN-EFB

20

Plaintiffs,

21

v.

22 MATTHEW CATE, et al.,
23

24

[PROPOSED] ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Courtroom: 2

Defendants. Judge:

Hon. Troy L. Nunley

Action Filed: May 30, 2008

25

26

27

28 1
[Proposed] Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1

Plaintiffs in this action, Robert Mitchell, Alvaro Quezada, and a class consisting of all male

2 prisoners who are now, or will in the future be, subjected to CDCR’s modified program and

3 lockdown policy, allege that CDCR has a policy and practice of implementing modified programs

4 and lockdowns that violate the Eighth Amendment and the Equal Protection Clause of the United

5 States Constitution. Plaintiffs claim that they are entitled to statewide injunctive relief to address

6 their claims.

7

The parties have entered into a Stipulated Settlement that was filed with their Joint Motion

8 for Preliminary Approval of Class Action Settlement, which would settle all claims for injunctive

9 relief in this case. The parties have submitted a proposed Notice to the Class, as well as a

10 proposed order regarding the distribution of the order to the plaintiff class.

11

This Court has presided over the proceedings in the above-captioned action and has

12 reviewed all of the pleadings, records, and papers on file. The Court has reviewed the Joint

13 Motion for Preliminary Approval of Class Action Settlement, along with the Stipulated

14 Settlement and supporting documents, and has considered the parties’ arguments concerning the

15 proposed settlement of this class action.

16

The Court has determined that inquiry should be made regarding the fairness and adequacy

17 of this proposed settlement.

18

Accordingly, good cause appearing, IT IS ORDERED AS FOLLOWS:

19

1. A court should preliminarily approve a class action settlement if it “appears to be

20 the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does

21 not improperly grant preferential treatment to class representatives or segments of the class, and

22 falls within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d

23 1078, 1079 (N.D. Cal. 2007). The Court finds that this standard is met in this case, as the

24 proposed settlement is the product of arm’s-length, serious, informed, and non-collusive

25 negotiations between experienced and knowledgeable counsel who have actively prosecuted and

26 defended this litigation. The Court further finds that, for purposes of settlement only, the

27 Stipulated Settlement meets the requirements of 18 U.S.C. § 3626(a)(1). The Stipulated

28 Settlement attached hereto is granted preliminary approval and incorporated by reference herein, 2
[Proposed] Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1 subject to the right of class members to challenge the fairness, reasonableness, or adequacy of the

2 Stipulated Settlement.

3

2. Under Federal Rule of Civil Procedure 23(e)(1), the Court approves the substance,

4 form and manner of the Notice of Proposed Class Action Settlement (the “Notice”) filed by the

5 parties on __________, and finds that the proposed method of disseminating the Class Notice

6 meets all due process and other legal requirements and is the best notice practicable under the

7 circumstances.

8

3. Within three days of this Order, the parties are directed to prepare a final version

9 of the Notice, incorporating the dates set forth in this Order.

10

4. Within thirty days of this Order, CDCR is directed to post the Notice in English

11 and Spanish in all housing units of all prisons housing prisoners subject to CDCR’s modified

12 program and lockdown policy in such a manner as to make the notice visible to all prisoners.

13 Within thirty days of this Order, CDCR is also directed to place a copy of this Order and the full

14 Stipulated Settlement in every CDCR library. Defendants must file and serve on Plaintiffs’

15 counsel a declaration affirming that notice was published as required in this order.

16

5. A Final Fairness Hearing shall take place at ____ a.m. on ___________ at the

17 United States District Court for the Eastern District of California, United States Courthouse, 501 I

18 St., Sacramento CA 95814, in Courtroom 2, to determine whether the proposed settlement of this

19 action on the terms and conditions provided for in the Stipulated Settlement is fair, reasonable,

20 and adequate and should be finally approved by the Court, and whether this action should be

21 dismissed under the settlement. The hearing may be continued from time to time without further

22 notice to the class. Any further briefing from the parties in advance of the hearing shall be filed

23 no later than __________.

24

6. Any member of the class may enter an appearance on his or her own behalf in this

25 action through that class member’s own attorney (at their own expense), but need not do so.

26 Class members who do not enter an appearance through their own attorneys will be represented

27 by Class counsel. Alternatively, any member of the class may write to the federal court about

28 whether the settlement is fair. The federal court will consider written communications when 3
[Proposed] Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1 deciding whether to approve the settlement. Comments regarding the fairness of the settlement

2 MUST include at the top of the first page the case name (Mitchell v. Cate et al.) and the case

3 number 2:08-CV-01196-TLN-EFB. A written comment must contain the author’s full name

4 and CDCR number, must include all objections and the reasons for them, must include any and

5 all supporting papers (including, without limitation, all briefs, written evidence, and declarations),

6 and must be signed by the Class Member. A Class Member who desires to comment but who

7 fails to comply with the above objection procedure and timeline shall be deemed to have not

8 objected and the objection shall not be heard or considered at the hearing. Comments must be

9 postmarked by _________ and must be sent to the following address:

10

Clerk of the Court

11

United States District Court

12

Eastern District of California

501 "I” Street

13

Sacramento, CA 95814

14

15

IT IS SO ORDERED.

16

17 DATED: _____________, 2014 18 19 SA2011300596 20

Troy L. Nunley Judge of the United States District Court

21

22

23

24

25

26

27

28 4
[Proposed] Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

EXHIBIT B

1 KAMALA D. HARRIS, State Bar No. 146672 Attorney General of California
2 DAMON G. MCCLAIN, State Bar No. 209508 Supervising Deputy Attorney General
3 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
4 Telephone: (415) 703-5750 Fax: (415) 703-5843
5 E-mail: Damon.Mcclain@doj.ca.gov Attorneys for Defendants M. Cate, S. Kernan, T.
6 McDonald, G. Giurbino, J. Tilton, T. Felker, M. Wright, F. Foulk, D. Vanderville, J. Owen, and
7 D. Hellwig

8 PRISON LAW OFFICE DONALD SPECTER (SBN 83925)
9 REBEKAH EVENSON (SBN 207825) 10 1917 Fifth Street
Berkeley, California 94710-1916 11 Telephone: (510) 280-2621
Facsimile: (510) 280-2704 12 dspecter@prisonlaw.com
revenson@prisonlaw.com 13 Attorneys for Plaintiff Robert Mitchell
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

SACRAMENTO DIVISION

18

19

ROBERT MITCHELL, et al., 20

2:08-CV-01196-TLN-EFB

Plaintiffs, 21

v. 22 23 MATTHEW CATE, et al., 24 25

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Courtroom: 2

Defendants. Judge:

Hon. Troy L. Nunley

Action Filed: May 30, 2008

26

27

28 1
[Proposed] Order Granting Final Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1

INTRODUCTION

2

This matter comes before the Court upon consideration of the parties’ motion to approve

3 the proposed agreement to settle this matter. Having considered the parties’ memoranda in

4 support of the motion, responses from class members, relevant legal authority, and the record in 5 this case, the Court finds good cause to GRANT the motion and finally approve the settlement

6 agreement.

7

BACKGROUND

8

9

10

11

12

13

ANALYSIS

14 I. LEGAL STANDARDS

15

Federal Rule of Civil Procedure 23(e) provides:

16

A class action shall not be dismissed or compromised without the

approval of the court, and notice of the proposed dismissal or

17

compromise shall be given in all members of the class in a manner as the

18

court directs.

19

This rule also requires a court “to determine whether a proposed settlement is

20 fundamentally fair, adequate, and reasonable,” and a court must consider the settlement in its

21 entirety rather than considering only its component parts. Class Plaintiffs v. City of Seattle, 955

22 F.2d 1268, 1276 (9th Cir. 1992); Officers for Justice v. Civil Serv. Comm’n of San Francisco, 688

23 F.2d 615, 628 (9th Cir. 1982). Thus, “[t]he settlement must stand or fall in its entirety.” Officers

24 for Justice, 688 F.2d at 630.

25

In order to determine whether a proposed settlement is fair, adequate, and reasonable, a

26 court must balance various factors, including:

27

the strength of the plaintiffs’ case; the risk expense, complexity, and

likely duration of further litigation; the risk of maintaining class action

28

2

[Proposed] Order Granting Final Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1

status throughout the trial; the amount offered in settlement; the extent of

discovery completed and the stage of the proceedings; the experience and

2

views of counsel; the presence of a governmental participant; and the

3

reaction of the class members to the proposed settlement.

4 Torrisi v. Tuscon Elec. Power Co., 8 F.2d 1370, 1375 (9th Cir. 1993) (quoting Officers for Justice,

5 688 F.2d at 625). Ultimately, “the decision to approve or reject a settlement is committed to the

6 sound discretion of the trial judge.” Id.

7

8 II. THE PARTIES HAVE MET THEIR BURDEN TO ESTABLISH THAT THE SETTLEMENT IS FAIR, REASONABLE, AND ACCURATE.
9

10

The Court has independently reviewed and considered the comments received from class

11 members. _____________ members of the class submitted comments to the Court before the

12 deadline set by the Order Granting Preliminary Approval of Class Action Settlement. The Court

13 addresses these comments as follows: ______________________________.

14

After considering the terms of the Stipulated Settlement, the Torrisi factors, and the

15 comments and objections received from class members, the Court finds that the settlement is fair,

16 reasonable, and adequate, as it is the product of arm’s-length, serious, informed, and non-

17 collusive negotiations between experienced and knowledgeable counsel who have actively

18 prosecuted and defended this litigation. The Court further finds that, for purposes of settlement

19 only, the Stipulated Settlement meets the requirements of 18 U.S.C. § 3626(a)(1).

20

Good cause appearing, IT IS ORDERED AS FOLLOWS:

21

1) The Stipulated Settlement attached hereto is incorporated herein by reference.

22

2) The Court grants final approval of the Stipulated Settlement.

23

3) The Court retains jurisdiction over this matter to enforce the terms of the Stipulated

24

Settlement.

25

4) All other unrelated matters pending in this case are stayed pending completion of the

26

Stipulated Settlement’s terms.

27

28 3
[Proposed] Order Granting Final Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1

5) The parties are directed to meet and confer regarding the contents of a notice to the

2

Plaintiff class regarding final approval of the settlement, and the timing and manner by

3

which such notice will be provided.

4

5

IT IS SO ORDERED.

6

7 DATED: _____________, 2014 8

____________________________________ Troy L. Nunley Judge of the United States District Court

9 SA2011300596

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4
[Proposed] Order Granting Final Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11

12 ROBERT MITCHELL, et al.,
13
14 v.
15
16 MATTHEW CATE, et al.,

2:08-CV-01196-TLN-EFB
Plaintiffs,
ORDER GRANTING PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

17

Defendants.

18

19

20

Plaintiffs in this action, Robert Mitchell, Alvaro Quezada, and a class consisting of all male

21 prisoners who are now, or will in the future be, subjected to CDCR’s modified program and

22 lockdown policy, allege that CDCR has a policy and practice of implementing modified programs

23 and lockdowns that violate the Eighth Amendment and the Equal Protection Clause of the United

24 States Constitution. Plaintiffs claim that they are entitled to statewide injunctive relief to address

25 their claims.

26

The parties have entered into a Stipulated Settlement that was filed with their Joint Motion

27 for Preliminary Approval of Class Action Settlement, which would settle all claims for injunctive

28 relief in this case. The parties have also entered into a Fee Stipulation to settle Plaintiffs’ request 1
Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1 for attorneys’ fees and costs to date. The parties have submitted a proposed Notice to the Class

2 concerning the Stipulated Settlement, Plaintiffs’ motion for attorneys’ fees, the Fee Stipulation,

3 and a proposed order addressing how the notice must be distributed to the class.

4

This Court has presided over the proceedings in the above-captioned action and has

5 reviewed all of the pleadings, records, and papers on file. The Court has reviewed the Joint

6 Motion for Preliminary Approval of Class Action Settlement, the Stipulated Settlement, and

7 supporting documents, and has considered the parties’ arguments concerning the proposed

8 settlement of this class action. The Court has also reviewed the Supplemental Motion for

9 Preliminary Approval of the Class Action Settlement, which attached a revised Class Notice that

10 discussed the parties proposed settlement of Plaintiffs’ request for attorneys’ fees and Plaintiffs’

11 attorneys’ fees motion.

12

The Court has determined that inquiry should be made regarding the fairness and adequacy

13 of the Stipulated Settlement and that the class should be provided notice of the Stipulated

14 Settlement, the Fee Stipulation, and Plaintiffs’ attorneys’ fees motion.

15

Accordingly, good cause appearing, IT IS HEREBY ORDERED AS FOLLOWS:

16

1. A court should preliminarily approve a class action settlement if it “appears to be

17 the product of serious, informed, non-collusive negotiations, has no obvious deficiencies, does

18 not improperly grant preferential treatment to class representatives or segments of the class, and

19 falls within the range of possible approval.” In re Tableware Antitrust Litig., 484 F. Supp. 2d

20 1078, 1079 (N.D. Cal. 2007). The Court finds that this standard is met in this case, as the

21 proposed settlement is the product of arm’s-length, serious, informed, and non-collusive

22 negotiations between experienced and knowledgeable counsel who have actively prosecuted and

23 defended this litigation. The Court further finds that, for purposes of settlement only, the

24 Stipulated Settlement meets the requirements of 18 U.S.C. § 3626(a)(1). The Stipulated

25 Settlement is granted preliminary approval and incorporated by reference herein,

26 subject to the right of class members to challenge the fairness, reasonableness, or adequacy of the

27 Stipulated Settlement.

28

2. Under Federal Rule of Civil Procedure 23(e)(1), the Court approves the substance,

2

Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1 form and manner of the Notice of Proposed Class Action Settlement (the “Notice”) filed by the

2 parties on April 9, 2015, and finds that the proposed method of disseminating the Class Notice

3 meets all due process and other legal requirements and is the best notice practicable under the

4 circumstances.

5

3. Within three days of this Order, the parties are directed to prepare a final version

6 of the Notice, incorporating the dates set forth in this Order.

7

4. Within thirty days of this Order, CDCR is directed to post the Notice in English

8 and Spanish in all housing units of all prisons housing prisoners subject to CDCR’s modified

9 program and lockdown policy in such a manner as to make the notice visible to all prisoners.

10 Within thirty days of this Order, CDCR is also directed to place a copy of this Order and the full

11 Stipulated Settlement in every CDCR library. Defendants must file and serve on Plaintiffs’

12 counsel a declaration affirming that notice was published as required in this order.

13

5. A Final Fairness Hearing shall take place at 2 p.m. on September 24, 2015, at the

14 United States District Court for the Eastern District of California, United States Courthouse, 501 I

15 St., Sacramento CA 95814, in Courtroom 2, to determine whether the proposed settlement of this

16 action on the terms and conditions provided for in the Stipulated Settlement is fair, reasonable,

17 and adequate and should be finally approved by the Court, and whether this action should be

18 dismissed under the settlement. Plaintiffs’ Unopposed Motion for Attorneys’ Fees and Expenses

19 should be heard at the same time as the hearing for final approval of the settlement agreement.

20 The hearing may be continued from time to time without further notice to the class. Any further

21 briefing from the parties in advance of the hearing shall be filed no later than September 10, 2015.

22

6. Any member of the class may enter an appearance on his or her own behalf in this

23 action through that class member’s own attorney (at their own expense), but need not do so.

24 Class members who do not enter an appearance through their own attorneys will be represented

25 by Class counsel. Alternatively, any member of the class may write to the federal court about

26 whether the settlement is fair. The federal court will consider written communications when

27 deciding whether to approve the settlement. Comments regarding the fairness of the settlement

28 MUST include at the top of the first page the case name (Mitchell v. Cate et al.) and the case 3
Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

1 number 2:08-CV-01196-TLN-EFB. A written comment must contain the author’s full name

2 and CDCR number, must include all objections and the reasons for them, must include any and

3 all supporting papers (including, without limitation, all briefs, written evidence, and declarations),

4 and must be signed by the Class Member. A Class Member who desires to comment but who

5 fails to comply with the above objection procedure and timeline shall be deemed to have not

6 objected and the objection shall not be heard or considered at the hearing. Comments must be

7 postmarked by September 1, 2015, and must be sent to the following address:

8

Clerk of the Court

9

United States District Court

10

Eastern District of California

501 "I” Street

11

Sacramento, CA 95814

12

13

IT IS SO ORDERED.

14 15 Dated: May 4, 2015

16

17

Troy L. Nunley

18

United States District Judge

19

20

21

22

23

24

25

26

27

28 4
Order Granting Preliminary Approval Class Action Settlement (2:08-CV-01196-TLN-EFB)

 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11

12 ROBERT MITCHELL, et al.,
13
14 v.
15

2:08-CV-01196-TLN-EFB
Plaintiffs,
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

16 MATTHEW CATE, et al., 17

Courtroom: 2

Judge:

Hon. Troy L. Nunley

Defendants. Action Filed: May 30, 2008

18

19

20

This matter comes before the Court upon consideration of the parties’ motion to approve

21

the proposed agreement to settle the class claims for injunctive relief in this matter. Having

22

considered the parties’ memoranda in support of the motion, comments from class members,

23

relevant legal authority, and the record in this case, the Court finds good cause to GRANT the

24

motion and finally approve the settlement agreement.

25

I.

FACTUAL BACKGROUND

26

This action was filed on May 30, 2008. A First Amended Complaint was filed in June

27

2010, and Plaintiffs filed a Second Amended Complaint in April 2011, which added class

28

1

1 allegations, additional Plaintiffs, and additional Defendants. The Second Amended Complaint

2 alleges that CDCR has a statewide policy and practice of implementing excessively long and

3 race-based modified programs and lockdowns that violate the Eighth Amendment and the Equal

4 Protection Clause, and seeks declaratory and system-wide injunctive relief to address the alleged

5 constitutional violations.

6

Defendants filed a motion to dismiss the complaint, which the court granted in part and

7 denied in part. The Court’s ruling dismissed Mitchell’s individual damages claims for certain

8 specified periods, but left intact the class claims for injunctive relief. (ECF Nos. 107, 114.)

9

In 2012 and 2013, the parties conducted extensive discovery, which included more than two

10 dozen depositions of prison officials, prison leadership, prisoners, and experts, and the production

11 of tens of thousands of pages of documents. (Decl. McClain ¶ 3, ECF No. 367.) During the same

12 period, the Court adjudicated several discovery disputes between the parties. (ECF Nos. 131, 134,

13 152, 207.)

14

On March 5, 2013, Plaintiffs filed a motion for class certification and a motion for

15 preliminary injunction. (ECF Nos. 155, 156.) The Court denied Plaintiffs’ motion for a

16 preliminary injunction on June 25, 2014. (ECF No. 328.) The Court granted Plaintiffs’ motion

17 for class certification on July 23, 2014, and certified a class consisting of all male prisoners who

18 are now, or will in the future be, subjected to CDCR’s modified program and lockdown policy.

19 (ECF No. 329.)

20

In July 2013, Defendants filed a motion for summary judgment, which the court granted in

21 part and denied in part on February 11, 2014. (ECF No. 317.) The Court dismissed the claims of

22 two plaintiffs (Mr. Trujillo and Mr. Abdullah) as moot, but denied the motion to dismiss the

23 claims of Plaintiffs Mitchell and Quezada on mootness grounds. The Court also denied the

24 motion to dismiss Plaintiff Mitchell’s claims for damages under state law and the Fourteenth

25 Amendment, but granted the motion to dismiss Mitchell’s Eighth Amendment damages claim.

26 (Id.)

27

The parties engaged in extensive settlement negotiations in the spring and summer of 2014,

28 and executed the Stipulated Settlement in October 2014. (Decl. McClain ¶ 4, Ex. 1.) The

2

1 Stipulated Settlement, if approved, would settle all class claims for injunctive and declaratory

2 relief in Plaintiffs’ Second Amended Complaint. (Decl. McClain, Ex. 1 at ¶ 10.)

3

On May 5, 2015, the Court granted the parties’ joint motion seeking preliminary approval

4 of the Stipulated Settlement, and found that “it is the product of arm’s-length, serious, informed,

5 and non-collusive negotiations between experienced and knowledgeable counsel who have

6 actively prosecuted and defended this litigation.” (Order Granting Prelim. Approval, ECF No.

7 339.) The order set a hearing regarding final approval of the Stipulated Settlement for September

8 24, 2015, and ordered Defendants to post a Class Notice in CDCR’s prisons.

9

The Class Notice described key terms in the Stipulated Settlement and the proposed

10 agreement regarding attorneys’ fees, and advised class members that they could file comments

11 concerning the Stipulated Settlement through September 1, 2015. (Decl. McClain ¶ 5, Ex. 2.)

12 Defendants posted the Court-approved Class Notice concerning the proposed class-action

13 settlement in all of CDCR’s prisons where class members reside. (Decl. Cano Re Posting Class

14 Notice, ECF No. 349.) They also placed copies of the Stipulated Settlement, the Court Order

15 granting preliminary approval of the Stipulated Settlement, and the Plaintiffs’ unopposed motion

16 for attorneys’ fees in prison libraries. (Decl. Cano Re Posting Class Notice, ECF No. 349.)

17

Twenty-one inmates filed comments with the Court. Some of those comments, which are

18 addressed further below, oppose the Stipulated Settlement, some support the Stipulated

19 Settlement, and some offer neither support nor opposition to the Stipulated Settlement.

20

II.

LEGAL STANDARDS

21

Federal Rule of Civil Procedure 23(e) provides that the “claims, issues, or defenses of a

22 certified class may be settled, voluntarily dismissed, or compromised only with the court’s

23 approval.” Rule 23 further provides that the court may only grant final approval of a settlement

24 after a hearing and on finding that the settlement “is fair, reasonable, and adequate.” Fed. R. Civ.

25 P. 23(e)(2). A court must consider the settlement in its entirety rather than considering only its

26 component parts. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992); Officers

27 for Justice v. Civil Serv. Comm’n of San Francisco, 688 F.2d 615, 628 (9th Cir. 1982). Thus,

28 “[t]he settlement must stand or fall in its entirety.” Officers for Justice, 688 F.2d at 630.

3

1

In reviewing proposed class-action settlement agreements, there is an initial presumption of

2 fairness when a proposed class settlement was negotiated at arm’s length by counsel for the class.

3 Harris v. Vector Mktg. Corp., No. 08–cv–5198 EMC, 2011 WL 1627973, at *8 (N.D. Cal. Apr.

4 29, 2011). “Although Rule 23 imposes strict procedural requirements on the approval of a class

5 settlement, a district court’s only role in reviewing the substance of that settlement is to ensure

6 that it is ‘fair, adequate, and free from collusion.’” Lane v. Facebook, Inc., 696 F.3d 811, 819

7 (9th Cir. 2012).

8

Other factors courts consider in assessing a settlement proposal include: (1) the strength of

9 the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of further litigation; (3)

10 the risk of maintaining class-action status throughout the trial; (4) the amount offered in

11 settlement; (5) the extent of discovery completed and the stage of the proceedings; (6) the

12 experience and views of counsel; (7) the presence of a government participant; and (8) the

13 reaction of the class members to the proposed settlement. Hanlon v. Chrysler Corp., 150 F.3d

14 1011, 1026 (9th Cir. 1998) (citing Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1375 (9th Cir.

15 1993); see also In re Oracle Sec. Litig., 829 F. Supp. 1176, 1179 (N.D. Cal. 1993). The district

16 court must explore these factors comprehensively to satisfy appellate review, but “the decision to

17 approve or reject a settlement is committed to the sound discretion of the trial judge.” Hanlon,

18 150 F.3d at 1026.

19

“[T]he court’s intrusion upon what is otherwise a private consensual agreement negotiated

20 between the parties to a lawsuit must be limited to the extent necessary to reach a reasoned

21 judgment that the agreement is not the product of fraud or overreaching by, or collusion between,

22 the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate

23 to all concerned.” Hanlon, 150 F.3d at 1027. Thus, a district court’s decision to approve a class-

24 action settlement may be reversed “only upon a strong showing that the district court’s decision

25 was a clear abuse of discretion.” Id.

26

The Ninth Circuit maintains a “strong judicial policy” that favors the settlement of class

27 actions. Class Plaintiffs v. City of Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). And the Ninth

28 Circuit has repeatedly recognized that “voluntary conciliation and settlement are the preferred

4

1 means of dispute resolution,” especially in the context of “complex class action litigation.”

2 Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615, 625 (9th Cir. 1982); see also In re

3 Syncor ERISA Litig., 516 F.3d 1095, 1101 (9th Cir. 2008).

4

III. ANALYSIS

5

A. The Parties Have Met Their Burden of Showing that the Settlement is Fair,

6

Reasonable, and Adequate.

7

The Stipulated Settlement provides substantial equitable relief to the Plaintiff Class.

8 Plaintiffs sought an injunction barring Defendants from implementing race-based lockdowns, and

9 ensuring that class members are not deprived of outdoor exercise for excessive periods of time

10 during lockdowns and modified programs. Defendants have agreed to settlement terms that

11 directly address both of the class claims: They have agreed not to implement any lockdowns or

12 modified programs based on race, and they have agreed to implement a policy providing for

13 outdoor exercise during long modified programs. (Decl. McClain, Ex. 1 at ¶¶ 15-24.) The

14 Stipulated Settlement was reached after months of negotiations between the parties, who were

15 zealously represented by their experienced counsel throughout this litigation. (Decl. McClain ¶

16 4.)

17

The Court has already found that the Stipulated Settlement was the product of an arm’s-

18 length negotiation by Plaintiffs’ counsel. (Order Granting Prelim. Approval, ECF No. 339.)

19 Additionally, the Court found that the Stipulated Settlement was the result of “serious, informed,

20 and non-collusive negotiations between experienced and knowledgeable counsel who have

21 actively prosecuted and defended this litigation.” Id. Thus, the Stipulated Settlement is entitled

22 to a presumption of fairness. Harris, 2011 WL 1627973, at *8.

23

The Stipulated Settlement was also reached after extensive discovery had been completed,

24 including numerous depositions and large productions of documents. (Decl. McClain ¶ 3.) Thus,

25 the parties had adequate time to fully evaluate the claims and defenses before engaging in

26 settlement negotiations and reaching an agreement.

27

The outcome of the litigation and the extent of any relief that the Plaintiff Class might be

28 awarded if the case were to go to trial is uncertain. Furthermore, proceeding through pre-trial

5

1 motions, trial, and probable appeal would impose risks, costs, and a substantial delay in the

2 implementation of any remedy in this matter. Given the relief achieved by the Stipulated

3 Settlement and the risks and costs involved in further litigation, the Stipulated Settlement

4 represents a fundamentally “fair, reasonable and adequate” resolution of the disputed issues. See

5 Fed. R. Civ. Pro. 23(e)(2).

6

B. None of the Class Members’ Objection Comments Refute the Presumption

7

that the Stipulated Settlement is Fair, Reasonable, and Adequate.

8

The Court has reviewed the twenty-one comments filed by class members, six of which

9 opposed the Stipulated Settlement. (Castillo Comment, ECF No. 350; Sledge Comment, ECF No.

10 354; Rodriguez Comment, ECF No. 356; Martinez Comment, ECF No. 358; Forgatsch Comment,

11 ECF No. 360; Diaz Comment, ECF 362.) None of those six objections presented evidence that

12 the Stipulated Settlement is unfair, inadequate, or unreasonable. The remaining fifteen comments

13 either support the Stipulated Settlement or are neutral concerning its terms.

14

Several of the inmates object, not because the Stipulated Settlement is unfair or

15 unreasonable, but because they speculate that CDCR will not comply with its terms. (Martinez

16 Comment, ECF No. 358; Rodriguez Comment, ECF No. 356; Castillo Comment, ECF No. 350.)

17 This type of objection does not demonstrate that the Stipulated Settlement is unfair or inadequate.

18 Furthermore, it ignores that Plaintiffs’ counsel will actively monitor and enforce CDCR’s

19 compliance with the Stipulated Settlement’s terms, and that the Court retains jurisdiction to

20 enforce the terms during the monitoring period. (Decl. McClain, Ex. 1 at ¶¶ 23–24, 33–34; Decl.

21 Evenson ¶¶ 2– 4, ECF No. 368.) Thus, the Stipulated Settlement already contains terms that will

22 allow Plaintiffs to seek Court-ordered relief if CDCR fails to comply with its terms.

23

Two of the objections complain that the monitoring period should be longer than eighteen

24 months. (Martinez Comment 3, ECF No. 358; Rodriguez Comment ¶ 14, ECF No. 356.)

25 However, this challenge to the Stipulated Settlement’s adequacy ignores that Plaintiffs may seek

26 to extend the monitoring period if there are ongoing, system-wide constitutional violations

27 resulting from CDCR’s modified program policies or practices. (Decl. McClain, Ex. 1 at ¶¶ 25–

28

6

1 27.) On the other hand, if there are no such violations, the Stipulated Settlement appropriately

2 and reasonably provides that the monitoring period will end. (Decl. McClain, Ex. 1 at ¶¶ 25–27.)

3

Two of the objectors contend that CDCR should be required to pay inmates some sort of

4 compensation. (Martinez Comment 2, ECF No. 358; Sledge Comment 3, ECF No. 354.) These

5 objections ignore that the Stipulated Settlement only resolves claims for injunctive relief, not

6 damages. (Decl. McClain, Ex. 1 at 3.) They also fail to explain how the Stipulated Settlement’s

7 terms, which essentially provide everything the Plaintiff Class sought through its injunctive-relief

8 claims, are unfair, unreasonable, or inadequate.

9

One objection seems to take issue with the equal-protection claim brought in this suit.

10 Inmate Erik Forgatsch objected based on his belief that CDCR’s prisons should be permitted to

11 implement race-based or security-threat-group based modified programs so that not all inmates

12 will be subjected to every modified program. (Forgatsch Comment, ECF No. 360.) Mr.

13 Forgatsch’s assertion that CDCR should be permitted to implement race-based modified

14 programs indicates that he generally disagrees with the goals of this class-action suit. However,

15 his objection fails to demonstrate that the Stipulated Settlement does not fairly settle the Plaintiff

16 Class’s equal-protection claim for injunctive relief. (Forgatsch Comment, ECF No. 360.)

17 Moreover, Mr. Forgatsch appears to have misread the terms of the Stipulated Settlement, which

18 explicitly provides that CDCR’s prisons can implement modified programs that only impact

19 inmates who have an affirmative security-threat-group status. (Decl. McClain, Ex. 1 at ¶ 16.)

20 Thus, it is simply not true that under the Stipulated Settlement CDCR cannot implement a

21 modified program that only impacts a particular security-threat group.

22

One class member objected that CDCR will not comply with the Stipulated Settlement’s

23 term prohibiting race-based modified programs and refers to a recent modified program at

24 Calipatria as evidence supporting his contention. (Rodriguez Comment ¶ 6, ECF No. 356.) The

25 Plaintiffs and Defendants acknowledge that the modified program that Mr. Rodriguez complained

26 about did not comply with the Stipulated Settlement’s terms. (Joint Mot. Final Approval, ECF

27 No. 366.) The record demonstrates that CDCR investigated this modified program, provided a

28 detailed explanation to Plaintiffs’ counsel about two aspects of the modified program that did not

7

1 comply with policy, and initiated corrective action to address the issues and ensure that similar

2 mistakes are not made again at Calipatria or the other prisons. (Decl. McClain ¶¶ 7–8, Exs. 3–4;

3 Decl. Evenson ¶ 4.)

4

These events show that the Stipulated Settlement is working as intended by: (1) providing

5 Plaintiffs’ counsel the means to effectively monitor CDCR’s compliance with settlement terms;

6 (2) requiring the parties to discuss compliance issues; and (3) allowing CDCR an opportunity to

7 address any compliance issues before Plaintiffs seek Court intervention. (Decl. McClain, Ex. 1 at

8 ¶¶ 33–34.)

9

Plaintiffs’ counsel intends to closely monitor modified programs for compliance with the

10 new policies, including the appropriate use of critical-workers lists and incremental-release lists.

11 (Decl. Evenson ¶¶ 2–4.) Plaintiffs’ counsel will also monitor any security-threat-group modified

12 programs to ensure that they are not race-based. (Decl. Evenson ¶¶ 2–4.) If CDCR fails to

13 comply with the new policies, Plaintiffs can seek Court-ordered enforcement of the Stipulated

14 Settlement’s terms. (Decl. McClain, Ex. 1 at ¶¶ 33–34.) Thus, Mr. Rodriguez’s objection does

15 not demonstrate that the Stipulated Settlement should not be granted final approval.

16

Class Member Ronald Martinez’s comment included additional objections related to the

17 treatment of security-threat groups. (Martinez Comment, ECF No. 358.) Mr. Martinez first

18 complained that he will be assigned security-threat points based on being designated as “active”

19 in a security-threat group because he is in a general-population yard. (Martinez Comment, ECF

20 No. 358.) This is inaccurate. The Stipulated Settlement explicitly provides that “threat-

21 assessment forms will not assign points based on an affirmative security-threat-group status.”

22 (Decl. McClain, Ex. 1 at ¶ 16.)

23

Mr. Martinez also complained that he will unfairly be assigned security-threat points for

24 behavior that occurred up to five years ago. Martinez Comment, ECF No. 358.) Plaintiffs and

25 Defendants acknowledge that Mr. Martinez is correct that inmates might be assigned security-

26 threat points for behavior within the past five years. (Joint Mot. Final Approval, ECF No. 366 at

27 10.) But the parties further note that Mr. Martinez’s observation fails to show that this behavior-

28

8

1 based policy does not fairly and adequately address the Plaintiff Class’s equal-protection claim

2 for injunctive relief. (Joint Mot. Final Approval, ECF No. 366 at 10.) This Court agrees.

3

Mr. Martinez further objected on the ground that he believes CDCR will not use “current

4 and reliable” information when deciding who should be subjected to a modified program that

5 applies to a specific security-threat group. (Martinez Comment, ECF No. 358.) The parties

6 explained that CDCR is still in the process of determining what will constitute “current and

7 reliable” information for determining security-threat-group status for security-threat-group

8 modified programs and will continue to meet with Plaintiffs’ counsel to develop agreed-upon

9 training materials concerning how to assess available information. The parties further noted that

10 the key aspect of the policy required by the Stipulated Settlement to address Plaintiffs’ equal-

11 protection claim is that inmates will be placed on, or removed from, modified programs based on

12 past behavior or security-threat-group-related conduct, and not based on race or ethnicity. (Decl.

13 McClain, Ex. 1 at ¶¶ 15–16.) Mr. Martinez has not made a showing that those terms fail to

14 adequately or fairly address the Plaintiff Class’s equal-protection claims.

15

Furthermore, if Mr. Martinez or any class member believes that the information on his

16 threat-assessment form is inaccurate or unreliable—including a designation of an STG

17 affiliation—he will have an opportunity to file an internal grievance (form 602), explain the

18 problem, and request that the form be modified accordingly. (Joint Mot. Final Approval, ECF No.

19 366 at 10–11.)

20

Class Member Enrique Diaz filed a comment speculating that inmates will be subjected to

21 long periods of modified program without access to outdoor exercise if back-to-back modified

22 programs occur. (Diaz Comment, ECF No. 362.) This concern is speculative, and Mr. Diaz

23 presents no evidence that this is an actual problem now that the policies required by the Stipulated

24 Settlement are in place.

25

Mr. Diaz’s objection does not show that the Stipulated Settlement fails to adequately

26 address the Plaintiff Class’s exercise claim. The Stipulated Settlement addresses that claim by

27 requiring prisons to initiate plans to provide outdoor exercise for any modified program that lasts

28 longer than fourteen days. (Decl. McClain, Ex. 1 at ¶ 19.) Furthermore, the parties understand

9

1 this to apply to a situation where a second modified program begins before the first is lifted.

2 (Joint Mot. Final Approval, ECF No. 366 at 11.) Mr. Diaz has not demonstrated that this term of

3 the Stipulated Settlement is inadequate, unfair, or unreasonable.

4

Additionally, the Stipulated Settlement provides that Plaintiffs may seek to extend the

5 monitoring period and the Court’s jurisdiction if Plaintiffs demonstrate that CDCR’s policies and

6 practices are resulting in current and ongoing violations of the Eighth Amendment. (Decl.

7 McClain, Ex. 1 at ¶ 25.) Thus, Mr. Diaz’s objection does not warrant a denial of final approval of

8 the Stipulated Settlement.

9

C. Other Comments Either Supported the Stipulated Settlement or Were

10

Neutral Concerning its Terms.

11

Four inmates filed comments supporting the Stipulated Settlement. (Clay Comment, ECF

12 No. 345; MacDonald Comment, ECF No. 352; Inmate Comment, ECF No. 3531; Mitchell

13 Comment, ECF No. 357.) An additional eleven inmates submitted comments that did not object

14 to the terms of the Stipulated Settlement, though some of them included critiques of CDCR

15 lockdown practices. (Jackson Comment, ECF No. 344; Reynolds Comment, ECF No. 346;

16 Foster Comment, ECF No. 347; Pacheco Comment, ECF No. 348; Beauchamp Comment, ECF

17 No. 351; Grim Comment, ECF No. 355; Izquierdo Comment, ECF No. 359; Suarez Comment,

18 ECF No. 361; Foster Comment, ECF No. 363; Cook Comment, ECF No. 364; Nguyen Comment,

19 ECF No. 365.) Because these comments are neutral concerning the fairness of the Stipulated

20 Settlement’s terms, the Court need not address them.

21

IV. CONCLUSION

22

The Court, having independently reviewed and considered the entire record in this case,

23 including the briefing and support submitted with Plaintiffs’ motions for Class Certification and

24 Preliminary Injunction and Defendants’ Motion for Summary Judgment, the twenty-one

25 comments filed by class members, the terms of the Stipulated Settlement, and the factors

26 described in Hanlon and Torrisi, makes the following findings:

27
1
28

The inmate’s name on this comment was illegible.

10

1

1. The Stipulated Settlement, incorporated by reference, is fair, reasonable, and

2 adequate; and

3

2. For purposes of settlement only the Stipulated Settlement meets the requirements of

4 18 U.S.C. § 3626(a)(1).

5

As such the Court hereby GRANTS final approval of the Stipulated Settlement, STAYS the

6 Plaintiff Class’s case for injunctive relief pending completion of the Stipulated Settlement’s

7 terms, and RETAINS JURISDICTION over this matter to enforce the Stipulated Settlement.

8

The parties are directed to meet and confer regarding the contents of a notice to the Plaintiff

9 Class regarding final approval of the settlement, and the timing and manner by which such notice

10 will be provided.

11

12

IT IS SO ORDERED.

13 Dated: October 7, 2015

14

15

Troy L. Nunley

16

United States District Judge

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 1

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IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11

12 ROBERT MITCHELL, et al.,
13
14 v.
15

2:08-CV-01196-TLN-EFB
Plaintiffs,
ORDER GRANTING ATTORNEYS’ FEES

16 MATTHEW CATE, et al.,

17

Defendants.

18

19

20

This matter is before the Court pursuant to Plaintiffs’ Unopposed Motion for Attorneys’

21 Fees and Expenses. (ECF No. 335.) Having considered the briefing in support of the motion,

22 responses from class members, relevant legal authority, and the record in this case, the Court

23 finds good cause to GRANT the motion.

24

Pursuant to Federal Rule of Civil Procedure 23(h), class members were informed about the

25 fee request in the Class Notice, and a full copy of Plaintiffs’ Motion for Attorneys’ Fees and

26 Expenses was made available to all class members in the prison libraries. Class members were

27 afforded an opportunity to comment or object to the Motion, and this Court held a hearing on the

28 Motion on September 24, 2015.

1

1

After review of all briefing and evidence presented, this Court finds and concludes that the

2 agreed-upon award of $ 2.375 million is fair and reasonable. Plaintiffs’ action in this case sought

3 to end CDCR’s policy and practice of imposing lengthy race-based lockdowns. The settlement

4 does just that – it puts a complete stop to all race-based lockdowns, and it ensures that if lengthy

5 lockdowns occur, prisoners will be provided access to outdoor exercise. (See Settlement

6 Agreement, ¶¶ 15, 18, ECF No. 332-1).

7

To get to this result, Plaintiffs devoted years to litigating this case, conducting complex

8 discovery, meeting and interviewing dozens of prisoners, reviewing and analyzing tens of

9 thousands of pages of lockdown reports, engaging and working with four experts, inspecting

10 prisons, and taking or defending dozens of expert and lay depositions. (Evenson Decl., ¶¶ 3–6,

11 ECF No. 335-1.)

12

Defendants vigorously contested the claims in this case, and the parties expended

13 considerable time and resources in connection with Defendants’ Motion to Dismiss and Motion

14 for Summary Judgment, Plaintiffs’ motions for class certification, and the numerous other matters

15 including discovery disputes that arose over the last four years. (Evenson Decl., ¶6, ECF No.

16 335-1.)

17

The fee request reasonably reflects the time and labor required to litigate this matter, and

18 was calculated pursuant to the lodestar method. Plaintiffs’ counsel kept contemporaneous time

19 records that detail all work completed, and to calculate the requested award Plaintiffs multiplied

20 the number of hours actually worked by a reasonable hourly rate. (Evenson Decl., ¶¶ 8–9, ECF

21 No. 335-1.) Though counsel represented the Plaintiffs without charge, Plaintiffs’ counsel

22 exercised the same billing judgment and discretion accorded to private clients. (Evenson Decl., ¶

23 8, ECF No. 335-1; Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013)

24 (“Ultimately, a ‘reasonable’ number of hours equals ‘[t]he number of hours . . . [which] could

25 reasonably have been billed to a private client.’”) (citing Moreno v. City of Sacramento, 534 F.3d

26 1106, 1111 (9th Cir. 2008)). During negotiations with Defense counsel, Plaintiffs’ counsel agreed

27 to reduce their fee request even further, in order to reach an out-of court settlement. (Evenson

28 Decl., ¶ 9, ECF No. 335-1.)

2

1

Courts have long recognized that the lodestar method of calculating fees is strongly

2 presumed to be reasonable. Oviatt v. Pearce, 954 F.2d 1470, 1482 (9th Cir. 1992) (“There is a

3 strong presumption that the lodestar figure is reasonable, and adjustments are to be adopted only

4 in exceptional cases.”); see also Morales v. City of San Rafael, 96 F.3d 359, 363 n.8 (9th Cir.

5 1996) (citing Oviatt). The agreed upon fee award also fairly reflects the novelty and difficulty of

6 the questions presented, the skill required in litigating this complex case, and the fact that

7 Plaintiffs’ counsel litigated this matter on a contingency basis and expended significant hours and

8 out-of-pocket expenses doing so.

9

Accordingly, the request for $2.375 million in attorneys’ fees and expenses is approved as

10 fair, adequate and reasonable, and Plaintiffs’ Unopposed Motion for Attorneys’ Fees and

11 Expenses (ECF No. 335) is GRANTED.

12

IT IS SO ORDERED.

13 Dated: October 7, 2015

14

15

Troy L. Nunley

16

United States District Judge

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3

 1 MORGAN, LEWIS & BOCKIUS LLP GEOFFREY T. HOLTZ, SBN 191370
2 BRENDAN E. RADKE, SBN 275284 One Market, Spear Street Tower
3 San Francisco, CA 94105-1126 Tel: 415.442.1000
4 Fax: 415.442.1001 geoffrey.holtz@morganlewis.com
5 brendan.radke@morganlewis.com 6 Attorneys for Plaintiff ROBERT MITCHELL
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 ROBERT MITCHELL et al.,

12

Plaintiff,

13

vs.

14 TOM FELKER, et al.,

Case No.: 2:08-CV-1196 TLN JOINT STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE PURSUANT TO FRCP 41(A) and ORDER

15

Defendants.

16

17

18

Plaintiff Robert Mitchell (“Plaintiff”) and Defendants Matthew Cate, Tom

19 Felker, F. Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J.

20 Owen, J. Tilton, D. Vanderville, and M. Wright (“Defendants”) (collectively, the

21 “Parties”), through their respective counsel, hereby stipulate and agree as follows,

22 pursuant to Federal Rule of Civil Procedure 41(a):

23

WHEREAS, on May 30, 2008, Plaintiff filed a complaint (“Complaint”)

24 pursuant to 42 U.S.C. §§ 1983 and 1985, alleging constitutional deprivations and

25 claims for negligence and intentional infliction of emotional distress as a result of

26 race-based lockdown policies, in the matter captioned Robert Mitchell v. T. Felker,

27 Warden, et al., Case No. 2:08-cv-01196-TLN-EFB (Dkt.# 1);

28

1

JOINT STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE

1

WHEREAS, on September 23, 2011, Plaintiff filed a Second Amended

2 Complaint that asserted class claims on behalf of inmates affected by the race-

3 based lockdown policies, sought injunctive relief on a class-wide basis, and sought

4 damages on an individual basis for Plaintiff (Dkt.# 84);

5

WHEREAS, on February 27, 2015, the parties filed a Stipulated Settlement

6 that resolved the class claims for injunctive relief in this action, but that did not

7 resolve Mr. Mitchell’s individual claims for damages (the “Class Settlement”)

8 (Dkt.# 332-1);

9

WHEREAS, on May 21, 2015, the Court set a jury trial date of August 8,

10 2016, to address Mr. Mitchell’s individual claims for damages (Dkt.# 343);

11

WHEREAS, the matter came before the Court for a settlement conference

12 on April 27, 2016, at which time the matter settled and the parties executed a

13 Settlement Agreement and Release (Dkt.# 386);

14

NOW THEREFORE IT IS HEREBY STIPULATED by and between

15 Plaintiff and Defendants, through their respective counsel, that Plaintiff’s

16 individual damages claims in this action, Case No. 2:08-cv-01196-TLN-EFB, be

17 and hereby are dismissed with prejudice as to the Parties, pursuant to Federal Rule

18 of Civil Procedure 41(a).

19

IT IS FURTHER STIPULATED that the Court shall retain full

20 jurisdiction to enforce the terms of this Stipulation and the Settlement Agreement

21 and Release.

22

IT IS FURTHER STIPULATED that neither this Stipulation nor the

23 Settlement Agreement and Release affects the Class Settlement in any way or

24 Plaintiff’s status as a class representative or member of the class, or terminates any

25 outstanding obligations under the Class Settlement, including any injunctive relief

26 described therein.

27

IT IS FURTHER STIPULATED that the Parties bear their own attorneys’

28

2

JOINT STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE

1 fees and costs with respect to Plaintiff’s individual damages claims in this action,

2 and this Stipulation has no effect on any fees and costs that were addressed in the

3 class settlement approved by the Court.

4 IT IS SO STIPULATED TO BY THE UNDERSIGNED:

5 Dated: June 2, 2016
6

MORGAN, LEWIS & BOCKIUS, LLP

7 8 9
10 Dated: June 2, 2016
11 12 13 14 15 16

By: /s/ Brendan E. Radke Geoffrey T. Holtz Brendan E. Radke Attorneys for Plaintiff ROBERT MITCHELL /s/ Damon G. McClain
By: (as authorized on 5/24/2016) Damon G. McClain Supervising Deputy Attorney General Attorneys for Defendants M. CATE, S. KERNAN, T. MCDONALD, G. GIURBINO, J. TILTON, T. FELKER, M. WRIGHT, F. FOULK, D. VANDERVILLE, J. OWEN, AND D. HELLWIG

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JOINT STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE

1

ORDER

2

PURSUANT TO STIPULATION, IT IS ORDERED:

3

Plaintiff Robert Mitchell’s individual claims for damages against Defendants

4 are dismissed with prejudice from this action pursuant to the Settlement Agreement

5 and Release between the Parties. Each side shall bear its own attorneys’ fees and

6 costs with respect to Plaintiff’s individual claims for damages.

7

8 Dated: June 2, 2016

9

10

11

Troy L. Nunley

12

United States District Judge

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JOINT STIPULATION OF DISMISSAL OF ACTION WITH PREJUDICE

 Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 1 of 32

1 PRISON LAW OFFICE DONALD SPECTER (SBN 83925)
2 WARREN E. GEORGE (SBN 53588) REBEKAH EVENSON (SBN 207825)
3 1917 Fifth Street Berkeley, California 94710-1916
4 Telephone: 510.280.2621 Facsimile: 510.280.2704
5 dspecter@prisonlaw.com wgeorge@prisonlaw.com
6 revenson@prisonlaw.com

7 BINGHAM MCCUTCHEN LLP GEOFFREY HOLTZ (SBN 191370)
8 MANU PRADHAN (SBN 253026) Three Embarcadero Center
9 San Francisco, CA 94111-4067 Telephone: 415.393.2000
10 Facsimile: 415.393.2286 geoffrey.holtz@bingham.com
11 manu.pradhan@bingham.com

12 Attorneys for Plaintiffs

13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15

16

ROBERT MITCHELL, et al.,

17

Plaintiffs,

18

v.

19 MATTHEW CATE, et al.,

No. 08-CV-1196 TLN EFB
ELDON VAIL’S EXPERT REPORT AND SUPPLEMENTAL DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

20

Defendants.

Magistrate Judge: Hon. Edmund F. Brennan

Date:

June 12, 20113

21

Time:

10:00 a.m.

Courtroom:

24

22

Action Filed: May 30, 2008

23

24

25

26

27

28

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 2 of 32

1 I, Eldon Vail, declare:

2

I have personal knowledge of the matters set forth herein and if called as a witness

3 I could competently so testify.

4

I. Introduction

5

1. I am the former Secretary of the Washington State Department of

6 Corrections, and I have worked in and run prisons for nearly thirty-five years.

7

2. I began my work in corrections in 1974. Between 1974 and 1987, I worked

8 first as a line officer, and then as a supervisor of officers in various adult and juvenile

9 prisons throughout the state of Washington.

10

3. I was then promoted to be a Superintendent (Warden). Between 1987 and

11 1994, I served as the Superintendent (Warden) of three prisons, including facilities with

12 maximum security inmates.

13

4. Between 1994 and 1999, I served as Assistant Director for prisons,

14 providing direct supervision for several facilities and as Assistant Deputy Secretary,

15 second in command for all prisons and community corrections programs in the State of

16 Washington.

17

5. After that, I served for seven years as the Deputy Secretary for the

18 Washington State Department of Corrections, responsible for the operation of prisons and

19 community corrections. I briefly retired, but was asked by the Governor of Washington

20 to come out of retirement to serve as the Secretary of the Department of Corrections in

21 the fall of 2007. I served as the Secretary for four years, until I retired in 2011.

22

6. Attached hereto as Exhibit 1 is a list of my qualifications and professional

23 experience, my expert witness experience during the last four years, and my expert

24 witness fees.

25

II. Foundation for Expert Opinions

26

7. Plaintiffs’ counsel asked for my opinion about California’s lockdown

27 policy and practice. In analyzing California’s lockdowns, I draw upon my years as a

28 1

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 3 of 32

1 correctional administrator, during which I was called upon to manage many situations of

2 prison violence, including riots, stabbings, escapes and gang violence. As a prison

3 superintendent, I oversaw the prison’s response to such incidents, and implemented

4 lockdowns as necessary. As Secretary and Deputy Secretary, I presided over the agency

5 response to such situations, and oversaw all prison lockdowns in the State of Washington.

6

8. In preparing for my testimony in this case, I reviewed CDCR’s confidential

7 lockdown policy, the depositions of several high level prison officials describing their

8 lockdown policy and practice, hundreds of internal documents describing particular

9 prison lockdowns, data sheets summarizing the lockdowns, and various reports and

10 written internal communications by CDCR staff about their lockdown policy and 11 practice. 1 A complete list of the materials I reviewed in this matter is attached hereto as

12 Exhibit 2.

13

9. I also inspected four California prisons during lockdowns to get a better

14 sense of how lockdowns operate in practice. During those tours, I first reviewed all of the

15 prison’s internal documents related to the lockdowns that were currently in effect. The

16 documents included public information describing what prisoners were subject to

17 lockdown, and what activities were restricted, as well as confidential information

18 describing the incidents that gave rise to the lockdowns, the investigations that prison

19

20 1 Title 15, Section 3000 of the California Code of Regulations (CCR’s) provides the following definitions of “lockdown” and “modified program:”

21

Lockdown means the restriction of all inmates to their cells/dormitory beds

22

encompassing no less than a Facility . . .

23

Modified Program means the suspension or restriction of inmate program

24

activities and/or movement that impacts less than all programs or less than all

inmates. . .

25

Although CDCR typically imposes what it calls “modified programs,” the effects of a modified 26 program on the affected group usually amount to lockdown-like conditions; it is perhaps for this

27 reason that CDCR administrators and line staff regularly use the terms interchangeably and for purposes of simplicity, I refer herein to both lockdowns and modified programs as lockdowns.

28

2

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 4 of 32

1 staff had conducted, and the current thinking of prison staff about the need for

2 maintaining the lockdown. After reviewing the documents, I was escorted to the yards

3 and housing units on lockdown, where I observed the operation of the lockdown. This

4 included witnessing how staff and prisoners interacted on the yard and in the housing

5 units. I also spoke with dozens of prisoners in each facility about the operation and

6 effects of the lockdowns. I was also permitted to ask prison staff certain questions about

7 the operation of lockdowns, with CDCR’s counsel present. My schedule for the tours

8 was as follows:

9

Salinas Valley State Prison (SVSP)

January 29, 2013

10

Kern Valley State Prison (KVSP)

January 30, 2013

11

California State Prison, Solano

February 5, 2013

12

High Desert State Prison (HDSP)

February 6, 2013

13

10. I also toured several prisons in connection with my work in the Coleman

14 case. The focus of these tours was on the prison’s policies and practices related to

15 mentally ill inmates, specifically the use of force against inmates, the internal prisoner

16 disciplinary process, and the intersection of custody and mental health staff relative to

17 mental health treatment for mentally ill prisoners. During each of these inspections, I

18 visited several yards and several living units, including reception center units, general

19 population units and segregation units. I observed the interactions between prison staff

20 and inmates. I spoke with dozens of inmates in each facility as well as correctional staff,

21 prison administrators and staff from the CDCR headquarters office. I viewed

22 approximately fifty videos of controlled use of force situations or interviews with inmates

23 who alleged excessive use of force involving Coleman class members and hundreds of

24 related documents. The schedule of these tours was as follows:

25

California State Prison, Corcoran

February 19, 2013

26

Kern Valley State Prison

February 20, 2013

27

California State Prison, Los Angeles

February 21, 2013

28 3

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 5 of 32

1

San Quentin State Prison

February 26, 2013

2

3

11. In March of 2011, I toured San Quentin State Prison and the California

4 State Prison at Solano with then CDCR Secretary Matt Cate. During those tours, I

5 observed the operation of these two prisons, including living units, yards and program

6 areas. I spoke with prison administrators, correctional staff and some prisoners. I also

7 had extensive conversations with Secretary Cate about the challenges facing the

8 California prison system.

9

12. During the course of my career, I regularly interacted with corrections

10 officials from many other states, including at conferences, training sessions and meetings

11 of correctional professionals, deputy directors and directors. During such meetings and

12 conferences, we regularly discussed correctional best practices in a number of areas,

13 including with respect to prison security. In connection with my work in this case, I

14 spoke with 16 current and former prison administrators with experience in 22

15 jurisdictions about their lockdown practices and California’s lockdown practices.

16

III. General Purpose of Prison Lockdowns

17

13. Lockdowns are sometimes necessary as a first response to a serious threat

18 to prison security. In those circumstances, the purpose of the lockdown is to investigate

19 what has occurred, make certain the situation is resolved and return to normal operations

20 as soon as it is possible to do so safely.

21

14. Lockdowns interfere with the on-going operation of the institution and

22 make difficult, if not impossible, the delivery of basic maintenance, medical services and

23 programs. Lockdowns keep inmates from being able to participate in rehabilitation

24 programs –an important incentive to keep inmates motivated to stay out of trouble –

25 which in the long run is also bad for community safety as inmates do not get a chance to

26 finish their drug treatment or education resulting in a higher likelihood of recidivism

27 upon release.

28 4

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 6 of 32

1

15. Inmates understand that when necessary lockdowns need to occur in

2 prisons to help keep everyone safe. But they are also attuned to staff conduct during the

3 lockdown. Frequent, lengthy, and discriminatory lockdowns can lead to further violence

4 and erode the credibility of staff in the eyes of the inmates.

5

16. A similar cycle can be found in staff behavior. Lockdowns create the

6 illusion that staff is safer and the longer the lockdown, the more resistance is developed

7 to coming off lockdown. In fact, danger increases the longer a prison stays on lockdown,

8 as the inmates get more upset and tend to bind together against the staff. Ending a

9 lockdown does pose some risks, but it is actually a greater risk to let lockdowns go on for

10 too long.

11

17. Prolonged lockdowns that keep prisoners in their cells, and prevent them

12 from going outdoors, will also have negative impacts on inmates’ health. It is well

13 recognized by correctional professionals that regular outdoor exercise is necessary to

14 preserve the psychological and physical well-being of inmates.

15

18. Because of their harmful effects, most prison systems impose only a

16 handful of lockdowns each year, that commonly last for a matter of hours or days.

17 During my tenure as the Secretary of the Washington Department of Corrections, there

18 were fewer than a half dozen lockdowns each year. In that time, there was only one

19 lockdown that lasted more than two weeks, following the murder of a correctional

20 officer. This is fairly typical of other states, including the twenty-two jurisdictions

21 covered by the correctional administrators that I interviewed in connection with my work

22 in this case. It is very rare that any prison lockdown outside of California lasts for longer

23 than two weeks.

24

IV. California Imposes Excessive, Lengthy Race-Based Lockdowns

25

19. CDCR maintains centralized control over lockdowns in California prisons.

26 CDCR has a single lockdown policy, which is set forth in Confidential Departmental

27 Operations Manual (“DOM”) Section 55015. To ensure that the policy is followed,

28 5

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1 CDCR headquarters staff review and approve each lockdown that is implemented,

2 including by reviewing which prisoners are subject to the lockdown, and what programs

3 are modified during the lockdown. CDCR headquarters staff also sign off on the

4 continuation of any lockdown lasting longer than two weeks, and keep in regular contact

5 with the wardens of prisons with lockdowns.

6

20. In the period between July 1, 2010 and March 13, 2013, California prisons

7 imposed more than 1,600 lockdowns pursuant to DOM 55015. More than 800 of the

8 lockdowns were imposed on a racial group. More than 250 of the lockdowns lasted for a

9 month or more. Some lasted for years. For example, at the Kern Valley State Prison,

10 Facilities A thorough D, Hispanic prisoners were on lockdown from March of 2009 until

11 October of 2012 for a total of 1,319 days, 582 of them without outdoor exercise for the 12 inmates.2 Black inmates at Wasco State Prison Facility D, Building 3 were locked down 13 for 195 days during 2012.3

14

21. Lockdowns regularly overlap and run into one another within the CDCR.

15 The result is that some groups of inmates are subjected to an overlapping series of

16 lockdowns lasting for the better part of a year or more. Some examples include, at the

17 California Men’s Colony inmates were subjected to 29 lockdowns in 2012, six (6) of

18 which affected inmates housed in Facility E, Dorms 1-10. The combined effect was that 19 Hispanics in CMC Facility E were on lockdown for 88 days during 2012. 4 At Salinas

20 Valley, black inmates in Facility C, Buildings 7 and 8, were subjected to seven (7) 21 different lockdowns in 2012 lasting for 249 days.5

22

23

24 2 Program Status Report KVSP-B-12-025.
25 3 Program Status Report WSP-FDY-11-12-0581 and WSP-FDY-12-0111. 4 Program Status Reports: CMC-FACE-12-02-0006; CMC-FACE-12-03-0009; CMC-FACE-12-
26 07-0019; CMC-FACE-12-07-0020; CMC-FACE-12-08-0022; CMC-FACE-12-11-0035. 27 5 Program Status Reports: SVSP-FC-12-002; SVSP-FC-12-010; SVSP-FC-12-012; SVSP-FC-
12-014; SVSP-CEN-12-023; SVSP-FC-12-028.
28
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1

22. As I explain in more detail below, CDCR’s lockdown policy and practice is

2 discriminatory and excessive, and it has an adverse effect on prisoners and on safe prison

3 operations.

4

23. There is no legitimate penological reason to impose a lockdown on a racial

5 or ethnic group. When it imposes race-based lockdowns, the CDCR is using race as a

6 proxy for gang membership. This discriminates against inmates on the basis of the color

7 of their skin and/or ethnic origin, which exacerbates racial tension and creates an

8 increased risk of violence among the inmate population. California does not need to

9 impose lockdowns on racial groups in order to maintain prison security; every prison

10 system in the country faces gang activity and violence, but I have never heard of any

11 other prison system that imposes race based lockdowns.

12

24. California maintains its prison lockdowns far longer than necessary to

13 maintain prison security. The frequency and length of lockdowns in California prisons

14 breeds an atypical tension between prison officials and prisoners.

15

25. California’s lockdown policy and practice is dramatically out of step with

16 sound correctional practices followed in other jurisdictions. There are readily available

17 alternative means to keep order in prisons that the CDCR chooses not to use.

18

A. Race-Based Lockdowns

19

26. As shown by the statistics noted above, CDCR uses race and ethnicity as a

20 dominant mode of managing prison inmates, and California officials, including CDCR

21 Associate Director Kelly Harrington, readily concede that they impose lockdowns on

22 entire racial groups.

23

27. When, in preparation for my testimony in this matter, I explained to the 16

24 current or former prison administrators that I was calling about California’s race-based

25 lockdown policy, their reaction was the same as mine when the plaintiff’s attorneys first

26 contacted me—I thought they had misunderstood something or were misstating the facts. 27 Surely, in the 21st century, there was not a prison system using race and ethnicity to

28 7

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1 determine who to lockdown in a prison when a problem occurred? I was wrong as were

2 my colleagues. My view was the same as my colleagues – that California’s practice of

3 race based lockdowns is “astounding” and “reprehensible,” and likely to have profound

4 adverse consequences.

5

28. California’s race-based lockdowns are rooted in the segregation of cell

6 assignments found throughout the prison system. During all my tours of California

7 prisons I found only one cell where the two inmates did not appear to be of the same race

8 or ethnic background. The process of segregation by cell assignment begins during the

9 reception of new inmates. When a new inmate comes into a male prison, he is asked with

10 whom he can live. As one prison official testified, if the inmate does not choose to live

11 with a person of his own racial or ethnic group, staff will “counsel” him to live with 12 someone of his own race.6 I found his admission stunning. In doing this, the CDCR

13 plants the seed for the racial separation, thus increasing racial cohesion which fuels the

14 gang behavior that they say they are trying to stop.

15

29. Prisons use “bed cards” to denote the race of the prisoner living in each

16 cell. Bed cards are color- coded signs that are on the doors of the cell, and/or kept in the

17 officers’ station, to announce the race or ethnicity of the prisoners living in each cell.

18 Typically, white cards are for white inmates, blue cards are for black inmates, pink cards

19 are for southern Hispanics, green cards are for northern Hispanics and yellow cards are

20 for all “others” such as Asians, Native Americans, or Pacific Islanders. One key purpose

21 of these bed cards is to help prison staff administer race-based lockdowns. With color-

22 coded signs on the door, prison staff can easily identify the race of the prisoners in each

23 cell, which will tell them which cell doors to open, and which to keep closed.

24

30. At Salinas Valley State Prison I witnessed the unlocking of those described

25 as “white” and “other.” The officers went from cell to cell, unlocking the cell doors

26

27 6 Kelly Harrington deposition, Volume 1, page 275. 28
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1 where there were white or yellow cards on them, as these were the groups that were not

2 on lockdown and could continue with their normal program.

3

31. CDCR staff say that they need to keep doing race-based lockdowns,

4 because inmates are engaged in racial violence, and they think race-based lockdowns are

5 the only way to stem that violence. But many of the race-based lockdowns I reviewed

6 were entirely unnecessary.

7

32. For example, Plaintiff Mitchell is black, and he was subjected to a series of

8 lockdowns of black prisoners lasting for more than a year. The Attorney General’s office

9 described one of those lockdowns this way:

10

On July 31, 2007, a black inmate housed on Facility C assaulted a

correctional counselor during his unit Classification Committee review. As

11

prison staff investigated the assault they discovered information that the

Facility C black inmates were upset with the Facility C captain concerning

12

lockdowns. This, along with the targeted nature of the assault, led prison

13

staff to fear that the black inmates on Facility C were planning attacks on

staff. In order to investigate this possibility, the black inmates on Facility

14

were placed on a modified program. On August 23, 2007, after prison staff

15

determined the assault was an isolated incident, the black inmates were released to normal programming.7

16

33. In other words, prison staff locked down all black inmates for nearly a

17 month because they were worried that the black prisoners were upset about race-based

18 lockdowns.

19

34. Other race-based lockdowns are imposed in such a way as to ensure over

20 breadth. For example, Chuckawalla Valley State Prison imposed one lockdown on all

21 Hispanics and those “with Hispanic surnames.”8 Locking down all persons with

22 Hispanic-sounding surnames would be inconceivable in any other jurisdiction; an

23 inmate’s surname simply bears no rational relationship to his behavior.

24

25

26 7In re Mitchell, Case No. S156449 (Cal Supreme Ct), July 11, 2008, Informal Response by

27

Deputy Attorney General Heather M. Heckler. 8 Program Status Report CVP-DYD-10-0002.

28

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1

35. At Kern Valley State Prison in the summer of 2011, two black prisoners

2 were placed in Administrative Segregation when they were accused planning a staff

3 assault. Then, all black inmates in the facility were placed on lockdown for three weeks 4 while staff conducted an investigation. 9

5

36. At High Desert State Prison in March of 2012, a letter was received

6 indicating specifically named black inmates planned to assault a staff member.10 Those

7 inmates were immediately placed in Administrative Segregation, yet the lockdown of all

8 black inmates continued for six weeks.

9

37. Such overreactions on the part of the prison administrators, based solely on

10 race, would be inconceivable in other jurisdictions. In the above examples, just two of

11 many that I have reviewed for this case, inmates are being punished simply because of

12 the color of their skin, losing the opportunity to complete their education, have outdoor

13 recreation or visit with their families.

14

38. The unfairness of this practice is readily articulated by the inmates I

15 interviewed on my tours, and many expressed their frustration. They believe that the staff

16 know who caused the incident, yet all inmates of a given race remain locked down for

17 long periods of time for incidents in which they had absolutely no responsibility.

18

39. California prisons continue to impose race based lockdowns even though

19 they know that some prisoners do not engage in racial violence, and are not in gangs.

20 California officials acknowledge that the “unfortunate” result of race-based lockdowns is

21 that uninvolved inmates are punished for the actions of others who share their racial or 22 ethnic heritage, but they persist in doing it.11

23

40. While prison gangs are a problem in California prisons, as they are in all

24 prisons, race serves as a proxy for gangs for CDCR officials. Those officials say they

25

26

9 Program Status Report KVP-B-11-015. 10Program Status Report HDP-C-12-004.

27 11 See the Director’s Level Review Decision to Tony Trujillo attached to Second Amended

Complaint.

28

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1 must lock all members of a racial group down because of the power of the gang bosses

2 over all inmates, including those not identified as gang members.

3

41. Acceptance of this logic is pervasive within the CDCR and is used to

4 justify the lockdown of all members of a racial or ethnic group, not just those identified

5 as validated gang members when the incident leading to the lockdown has been driven by

6 gang behavior. At the base of this position is the assumption that all racial and ethnic

7 groups will behave in the same manner in all circumstances.

8

42. For example, one Associate Director of CDCR, when asked to justify this

9 practice, stated:

10

It’s a culture that is—these individuals are born into, they grow up in, and they

know if they are walking, if they are programming on a general population yard,

11

that is the culture they are in, and they have to follow those directives. We don’t

give them those directives. Those are their own self identified directives that they

12

get from either their—the gang leaders or the individuals that they are around.12

13

43. CDCR policy and practice is driven by these stereotypical assumptions

14 about inmates, and the assumption that prison staff are powerless to change the behavior.

15 Yet it is clear that many individuals in the system, including the named Plaintiffs in this

16 lawsuit, have no history as gang members and do not follow the “directives” of gang

17 leaders.

18

44. When prison administrators treat inmates unfairly it undermines the

19 perception of the legitimate authority by the inmates in the prison’s administration which

20 is a critical component in achieving institution safety.

21

45. The impact of race-based lockdowns is unfair and discriminatory. For

22 some inmates, the policy of segregating prisoners in cell assignments and imposing racial

23 lockdowns fosters racial animosity and gang loyalty, laying the groundwork for the very

24 behavior that the lockdowns aim to prevent.

25

26

27 12 Kelly Harrington Deposition, Volume 1, page 245. 28
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1

B. Frequent and Unnecessary Lockdowns

2

46. CDCR imposes lockdowns with inordinate frequency; far more often than

3 the State of Washington or any other system that I know. Of the sixteen current and

4 former prison directors I spoke with in connection with my work in this case, none

5 reported a recent practice of lockdowns happening greater than 5 times per year for all

6 prisons within their entire system; many locked down less than that. CDCR, in contrast,

7 imposes several hundred lockdowns each year.

8

47. I reviewed numerous documents showing that CDCR imposes lockdowns

9 in situations that would not give rise to lockdowns in other states, and when a lockdown

10 is not a necessary response.

11

48. For example, prisons are locked down with some frequency because of

12 rumors and anonymous notes. One prison administrator admitted that his prison always

13 imposes lockdowns whenever they receive an anonymous note with a threat, even 14 though, in the last five years, one hundred percent of such notes turned out to be false.13

15

49. In my experience, anonymous notes are often unreliable. The multiple

16 false notes giving rise to lockdowns at the prison described above might well have been

17 written to try and restrict another racial or ethnic group behind a false story. In my

18 opinion, therefore, imposing a lockdown in response to every anonymous note is neither

19 necessary nor appropriate to ensure prison security.

20

50. Also, CDCR frequently locks down prisons for what would be identified as

21 a “fight” in another jurisdiction, but is called a “riot” in a CDCR prison. Regularly,

22 CDCR prisons label a fight between three or more inmates a “riot” and treat it as a group 23 incident requiring a lockdown.14 A more commonly accepted definition of “riot” is a

24 situation “when authorities lose control of a significant number of prisoners, in a

25

26 13 Chris Arthur deposition, January 8, 2013, page 84, line 19, page 121, line 16, page 124, line

27

23, page 176, line 4. 14 Kelly Harrington deposition, page 80, line 8-11.

28

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1 significant area of the prison, for a significant period of time.”15 True riots may

2 appropriately give rise to lockdowns. Fights, however, typically do not justify

3 lockdowns.

4

51. When the combatants are clearly known and identified as the fight is

5 broken up, the more appropriate approach would be to lock up those involved, initiate an

6 investigation and return the facility to normal operations. Even when the facts are known,

7 the default position of CDCR is to lock down the prison and keep it on lockdown for an

8 extended period of time.

9

52. At the California State Prison at Solano, one PSR describes a fight between

10 2 white and 4 black inmates, labeled a “riot” by CDCR officials.16 The incident gave rise

11 to a lockdown for all inmates in those racial groups at that facility. That PSR for blacks

12 was superseded by another a few weeks later when a pair of sunglasses owned by a black

13 prisoner was found near the area where a Mexican National was found to be a victim of

14 battery. In both cases these incidents were found to be isolated events but not before all

15 inmates of these racial groups experienced another lockdown.

16

53. At Kern Valley two northern Hispanics and two black inmates got into a

17 fight (called a riot by CDCR officials) in the dayroom.17 While the culprits were quickly

18 identified and held accountable, all black and northern Hispanics inmates were placed on

19 lockdowns where they remained for nearly two months.

20

54. Typically in a prison in another jurisdiction, events such as these would

21 very likely not result in any kind of lockdown, certainly not one lasting several weeks.

22

55. California prisons also imposed lengthy lockdowns for events that occurred

23 at other prisons; lengthy lockdowns because of a change in the prison’s security level;

24

25

15 Useem, Bert and Kimball, Peter, 1991, State of Siege, U.S. Prison Riots 1971- 1986, Oxford 26 University Press, page 4.

27

16 Program Status Report SOL-MAR-16-11-016. 17 Program Status Report KVP-B-11-021.

28 13

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1 lengthy lockdowns because a tool or a piece of metal has been misplaced; and lengthy

2 lockdowns to conduct staff training. The California State Prison at Solano reported a 24

3 day lockdown for staff training. With plenty of advanced notice to the inmates I have 4 locked a facility down for a day or a shift for training18 but locking a facility down for 24

5 days for that reason is not justifiable and is likely to create far more problems than it

6 solves by causing inmates to suffer the experience of the lockdown for no justifiable

7 reason. Imposing frequent lockdowns reveals a staff untrained and ill equipped to

8 actually manage the inmate population and keep small problems from becoming big ones.

9

C. Excessively Lengthy Lockdowns

10

56. In the last 3 years there were 250 lockdowns that were more than a month

11 long. The reason that the lockdowns last so long is that CDCR prisons take an

12 extraordinarily long time to come off of lockdowns.

13

57. In other jurisdictions, it typically takes several hours or days to do the

14 necessary investigation before returning a prison to normal programming. Searching

15 common areas and cells within the prison, no matter what the reason for the lockdown, is

16 an expected practice for prisons on lockdown. In my experience, such searches can

17 usually be accomplished in a day or two, a week to 10 days at the most in very rare and

18 truly extraordinary situations. Yet in CDCR, searches take considerably longer. For

19 example, three searches conducted recently at HDSP took 45 days, 34 days and 35 days 20 to complete.19 The purpose and intent of such searches is reasonable, but the actual

21 practice results in unnecessary extension of lockdowns.

22

58. When prison staff decide that it is time to begin to end a lockdown, they

23 “incrementally release” small numbers of prisoners as a step in the restoration of normal

24

25 18 In 2010, as part of an overall strategy to save money, I mandated facilities to lockdown one

day a month to save on staff training costs. My correctional officers, led by their Union, fought 26 against this proposal, understanding it would increase resentment in the population and make

27

them less safe. They convinced me that they were right and I lifted the mandate. 19 Program Status Reports, HDP-C-11-005, HDP-C-11-08 and HDP-C-11-013.

28 14

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1 operations. Oftentimes, this release involves only two inmates from each racial group

2 each day, increasing it to four the next day, maybe eight inmates a few dates later and so 3 on.20 This process, which can take a month or more,21 puts extraordinary pressure on the

4 inmates identified for incremental release by putting them in the spotlight and potentially

5 at risk, and it slows the release process unnecessarily.

6

59. The longer the lockdowns last, the more tensions rise for both staff and

7 inmates. Animosities build on both sides. Staff become fearful about what the inmates

8 will do when they come off of lockdown. Inmates are angry because of what they lost

9 while on lockdown. Unless lockdowns make sense to the inmates, prison administrators

10 lose credibility. If prison administrators lose credibility, the institution becomes less safe

11 for everybody.

12

D. Conditions of Confinement During Lockdowns

13

60. A typical lockdown in a CDCR prison means prisoners are confined to their

14 cells 24 hours a day, except for the occasional shower or escorts in chains to such things

15 as medical appointments.

16

61. Typically, inmates who are locked down have no out-of-cell time for

17 recreation, including outdoor exercise. The denial of recreation regularly lasts for weeks

18 and months at a time.

19

62. All long term prisoners require regular outdoor exercise as a basic human

20 need. Prolonged denial of outdoor exercise violates both domestic and international

21 correctional standards, and is harmful to inmates’ physical and mental well-being.

22

63. The United Nations Standard Minimum Rules for the Treatment of

23 Prisoners requires, “Every prisoner who is not employed in outdoor work shall have at 24 least one hour of suitable exercise in the open air if the weather permits.”22

25

26 20 Kelly Harrington deposition, Volume 2, pages 468 and 469.

27

21 Kelly Harrington deposition, Volume 2, pages 353-355. 22 Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations

28

(Footnote Continued on Next Page.)

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1

64. The U.S. State Department created a handbook to provide embassy officials

2 around the world with a basic understanding of international standards for correctional

3 systems. That handbook states, “The prisoners should have access to recreation for no 4 less than one hour a day.”23

5

65. The American Correctional Association (ACA) has extensive standards on

6 inmate recreation in prisons. Those standards require, even for prisoners otherwise

7 confined to their cell, “that inmates receive a minimum of one hour of exercise per day

8 outside their cells, five days per week, unless safety or security considerations dictate 9 otherwise.”24

10

66. CDCR exceeds this standard for inmates they house in segregation but not

11 for inmates on lockdown. The result is that inmates in segregation, who are presumably

12 being punished for culpable conduct, have better conditions of confinement than inmates

13 in general population who are locked down for incidents where they had absolutely no

14 responsibility. Inmates are not unaware of this irony. Several inmates pointed it out to

15 me, and told me they would be better off if they acted out and got into segregation where

16 at least they would get to spend some time out of doors.

17

67. During the first couple of days of a lockdown resulting from a serious

18 incident, it is reasonable for a prison to shut down all exercise. After that very short

19 initial period, however, the prison can and should make arrangements for all prisoners to

20 get outdoor exercise. This can be accomplished by rotating small groups of prisoners

21 onto the main prison yards. Alternatively, it can be accomplished using the small

22 concrete yards (“mini yards”) adjacent to many living units that are capable of

23

24 (Footnote Continued from Previous Page.)

25 Congress on the Prevention of Crime and the Treatment of Offenders, Standard 21. 23 A Practical Guide to Understanding and Evaluating Prison Systems, United States
26 Department of State, page 23. 27 24 Standards for Adult Correctional Institutions, 4th edition, American Correctional Association,
standard 4-4270.
28
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1 accommodating up to 15 to 20 inmates at a time. Although the mini yards I inspected

2 appeared secure, and were small enough to permit close supervision of a group of 3 inmates, CDCR officials told me, verified by Mr. Harrington’s deposition,25 that they had

4 not used the mini yards for years, even during lockdowns, because there was no prison

5 staff to supervise these yards.

6

68. Health care and mental health care during lockdowns is often delivered at

7 the cell front, other than for scheduled appointments (which are also often disrupted due

8 to lockdowns). These conditions do not allow inmates the necessary privacy to be open

9 and forthcoming about their health conditions. In the hyper masculine environment of the

10 prison, many inmates will not allow themselves to appear to be vulnerable by sharing

11 their medical or mental health concerns where other inmates, sometimes predatory

12 inmates, might overhear them speaking, ultimately creating additional challenges for

13 managing the facility. When lockdowns last for weeks or months at a time, which is

14 frequent in the CDCR, this lack of confidentiality creates a risk for the prisoner’s

15 physical and mental health as well as adding an additional challenge to manage the

16 institution. It is well recognized that confinement to a cell for long periods of time, as

17 occurs during lockdowns, makes it difficult for prison officials to manage the facility.

18

69. The negative impacts of a lockdown, conditions oftentimes worse than

19 placement in Administrative Segregation, does even greater damage to the mentally ill

20 population. Yet according to the Monthly Health Care Quality Access Reports I have

21 reviewed, inmates sometimes find their health care and mental health care appointments

22 canceled as a result of lockdowns. This contributes to the difficulty delivering adequate

23 health care, and in managing the facility.

24

70. Education, vocational training and substance abuse treatment programs are

25 also disrupted during lockdowns. Since the State of California offers time off of

26 27 25 Kelly Harrington deposition, Volume 1, pages 115-118.

28 17

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1 sentences for completion of some programs, denying access to programs keeps

2 individuals in prison for longer periods of time than if they had such access. In other

3 words, when the prisons impose race-based lockdowns, they are not only depriving

4 inmates of access to basic prison activities, they are in some cases keeping an entire racial

5 or ethnic group in prison for a longer period of time. This is fundamentally unfair, and

6 adds significantly to the inmates frustration and hostility toward prison staff.

7 Additionally, educational and rehabilitative programs, when properly administered,

8 reduce recidivism rates. This means that keeping inmates from program completion

9 increases the risk of harm to community safety when the inmate is released from prison.

10

71. Religious services also typically stop during lockdowns. The guidance

11 offered to prison administrators on CDCR form 3022-B for religious services are these

12 three options: “normal,” “no religious services” and “modified.” From my review of

13 program status reports, prison officials typically check the “modified” box, and then

14 pencil in the phrase “in cell worship.” There is very little difference between having “no”

15 religious services and having “in cell worship.” An occasional cell front visit by the

16 prison chaplain is not an adequate substitute, particularly for minority religions that do

17 not have a dedicated chaplain, or for any religion whose tenets require adherents to attend

18 congregational services. In my experience, some inmates need to regularly worship in

19 their chosen tradition to maintain their sanity and stability in the prison environment.

20

72. Visits, phone calls, and mail are often denied or disrupted during

21 lockdowns. Although inmates in segregated housing are allowed visits, inmates subject to

22 lockdown are typically denied visits as well as phone calls. Even though there is no

23 official prohibition on the mail, most of the inmates I spoke with during my inspections

24 complained that their mail had been disrupted during the lockdown. They reported that if

25 the mail came at all, it arrived weeks after it was sent from home. This perception,

26 coupled with the inability to call home to make sure things were OK, created great

27 anxiety in many inmates. They did not know what was happening with their families and

28 18

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1 this led to increased tension and anxiety for many. Phone calls home are a known

2 protective factor against self-harm or inmate violence in general. Restricting prisoner

3 phone calls and mail is unnecessary to achieve institution safety and security. In fact,

4 because prison staff monitor calls and mail, permitting such correspondence both

5 improves prison officials’ ability to gather information related to prison security, and

6 reduces tension among inmates.

7

73. Law library access is also extremely limited during lockdowns. If an inmate

8 has a clear court deadline there are some efforts to provide them access to the law library.

9 For those without such a deadline established, access is functionally lost for the duration

10 of the lockdown. This was a complaint from several inmates during my prison

11 inspections. The ability for inmates to work out their frustrations by learning about their

12 legal rights, and sometimes pursuing litigation, is an important safety valve for institution

13 security.

14

74. Inmates are also unable to maintain basic hygiene during lockdowns.

15 Inmates frequently complained to me that although they were confined to their cells

16 nearly constantly, the prison staff did not provide them with cleaning supplies on a

17 routine basis during lockdowns. When I asked inmates what they were doing to keep

18 their cells clean, several showed me that they had dipped their state-issued towels in toilet

19 water, and used them to scrub their cell floors and fixtures. These towels, which are also

20 the only towels the inmates have to use after showering, had been reduced to dirty rags.

21

75. These unsanitary living conditions can cause the spread of infectious

22 disease, and can put the physical health of inmates at great risk. It is also degrading.

23

76. Usually, after 3 days on lockdown, inmates are allowed showers every

24 other day or every third day for the duration of the lockdown. However, inmates are often

25 not able to get basic supplies needed to keep themselves clean. CDCR inmates typically

26 purchase basic hygiene items such as deodorant, soap and toothpaste (as opposed to the

27 prison-issue “tooth powder”) through the prison canteen, or receive them as gifts from

28 19

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 21 of 32

1 family in the form of “packages” received from approved vendors. During lockdowns,

2 canteen and packages are typically denied or severely limited.

3

77. One key difference in the living units I inspected between those on

4 lockdown and those that were not was the striking difference in odor. In units that were

5 locked down, the stench of body odor was very powerful. As I spoke with inmates

6 through their cell doors many apologized to me for their breath as they had not had access

7 to toothpaste, many for a long time.

8

78. CDCR inmates also rely on access to the canteen and packages from

9 vendors for food supplies to supplement prison rations. Many inmates complained of the

10 unfairness of this, and reported to me that they lost weight when canteen was cut-off

11 during lockdowns.

12

79. In sum, the condition of confinement for inmates on lockdowns is often

13 more severe than that for inmates confined to administrative segregation. For the vast

14 majority of inmates on lockdown who were not engaged in the behavior that led to the

15 lockdown, lengthy imposition of such restrictions is unfair, and leads to extreme boredom

16 and stress as well as anger towards the staff for treating them unfairly. Such restrictions

17 would predictably result in more misbehavior and increased levels of violence, making

18 the institution a more dangerous place for staff and inmates alike.

19

E. Lack of contact between inmates and staff

20

80. During my inspections of prisons I observed a distinct lack of staff and

21 inmate contact, an observation shared with me by other corrections administrators who

22 have toured CDCR prisons.

23

81. In the yards, the staff position themselves together, away from the inmates,

24 not interacting with them, not role-modeling or demonstrating pro-social behavior. In the

25 living units the pattern is the same. In many of the Level IV, 180 units I observed, the

26 staff stated that they were not actually present in the day room when the inmates were

27 there. Instead, supervision is provided by an officer in an elevated booth who at all times

28 20

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 22 of 32

1 carries a large gun. Prevalent in most of the units (and in other parts of the institution)

2 are warning signs announcing “No Warning Shots.”

3

82. CDCR staff do not directly supervise the inmates in the manner one would

4 find in another correctional system. They are not engaged to know their inmate

5 population so that conflicts can be resolved at the lowest level. They have ceded their

6 legitimate authority to the gang bosses and the staff are relegated to manage and control

7 the inmates, literally, under the gun.

8

83. Increasing and improving communication between inmates and staff would

9 give prison staff a far better understanding of the needs – and dangers – posed by the

10 inmate population, and will enable prison administrators in many instances to head off

11 violence before it begins.

12

V. California Can Safely Stop Imposing Lengthy Race Based Lockdowns.

13

84. Every other prison system that I am aware of is able to maintain security

14 without imposing race-based lockdowns, and without maintaining lockdowns for the

15 extended periods of time that is common in California prisons. There is no reason

16 California cannot do the same. Based on my experience and the conversations I have had

17 with correctional professionals from around the country over the years, there is broad

18 consensus about the proper management of lockdowns in prisons.

19

85. If a lockdown is necessary, even in the case of a true race riot, the prison

20 administration should lock down all prisoners in the vicinity – irrespective of race. They

21 should quickly separate and remove all involved inmates, and rapidly conduct targeted

22 investigations and unit or area-wide searches. This should typically last no longer than a

23 few days, or two weeks for the most extreme incidents. Planning to return to normal

24 should begin immediately. Lockdowns bring out the worst in staff and inmates and

25 should be as short as possible. A quick return to normal operations is a better strategy to

26 control institution violence than lengthy lockdowns.

27

28 21

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 23 of 32

1

86. If the lockdown is imposed on the entire population of a unit, a yard or an

2 entire prison, rather than a racial subset, there will be more incentive for prison staff to

3 move rapidly and end the lockdown quickly. And, if the lockdowns end quickly, and

4 uninvolved inmates of all races are released from lockdown as soon as it is safe to do so,

5 prison staff will restore a sense of fairness to the process.

6

87. During lockdowns, California officials should communicate with the

7 inmate population about why the facility is on lockdown and how long the lockdown is

8 expected to last. Many inmates I spoke with could not accurately account for why they

9 were on lockdown or how long the lockdown might last. Many reported that they had

10 received their information from other inmates on the tier and had not seen the PSR. An

11 effective communication strategy is important during a lockdown as it has a calming

12 effect when inmates know what is happening and what to expect next.

13

88. If the CDCR believes it must use a risk assessment instrument to determine

14 which individuals to release from a lockdown, the prison should have risk information on

15 hand before an incident occurs, so that all that is required before releasing the low-risk

16 inmates is at most an interview, not a full file review. The risk information should be

17 based on a validated risk instrument, rather than the ad-hoc “threat assessment” form,

18 which has not been validated.

19

89. The CDCR should look at alternate strategies to control inmate violence

20 other than an over reliance on lockdowns. California prisons appear to have a significant

21 problem with contraband drugs and cell phones. Targeted strategies to stem the flow of

22 contraband will likely result in less violence in their prisons.

23

90. An equally effective way to combat violence is to address inmate idleness.

24 Keeping inmates busy and involved in productive activities such as work programs and

25 education is a proven and tested method among correctional administrators to control

26 violence in prisons. California has a remarkable level of inmate idleness and lack of true

27

28 22

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 24 of 32

1 incentives for inmates. When inmates have something to lose that is important to them,

2 they are less likely to act out in a way that will cause them to forfeit those incentives.

3

91. California officials make general claims about prisoners of racial groups

4 being bound to engage in racial violence. But they also acknowledge what every

5 correctional professional knows – that not every inmate is in a gang, and not every

6 prisoner engages in in-prison violence. California officials say that sweeping such

7 uninvolved inmates into the lockdowns is unfortunate but necessary for safety. I

8 disagree. Punishing the uninvolved prisoners is discriminatory, and unfair, and

9 undermines the legitimacy of the prison administration, leading to further tension and

10 violence.

11

92. California officials regularly say that “California is different,” and that

12 California inmates come into prison violent and dangerous. But the inmates that come to

13 the California prison system are not different than the inmates that come to other prison

14 systems. According to the CDCR website, the CDCR is populated by 70.1% of inmates 15 who have committed a violent offense.26 The Washington Department Of Corrections 16 percentage for the same prison population is 70.2%.27 The portion of inmates in CDCR 17 with a low risk for re-offense is 42%.28 In Washington it is 17%.29 At a minimum it can

18 be argued that the inmates in Washington (and other jurisdictions) are every bit as

19 dangerous as the inmates in the CDCR. The difference in behavior while they are in

20 prison is determined by how they are treated and managed.

21

93. In the 1970s, the State of Texas was ordered by the court to desegregate

22 their prison system. (Lamont v. Coffield). Like the CDCR, resistance to implementing

23

24

25 26 Prison Census Data As Of December 31, 2012. 27 Washington State Department of Corrections Fact Card, December 31, 2012.
26 28 Declaration of James Austin, United States District Court, Coleman v. Brown and Plata v.

27

Brown, Civ S 90-0520 LKK-JFM P, January 7, 2013. 29 Washington State Department of Corrections Prison Snapshot Report, March 2013.

28 23

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 25 of 32

1 change in the Texas Department of Corrections was fierce with many, including both

2 staff and inmates, predicting violence would ensue if the court’s direction was followed.

3

94. The Texas DOC developed a very careful plan to meet the court’s mandate.

4 The results are illustrative for CDCR. According to criminal justice researchers Trulson

5 and Marquart, “as more inmates were desegregated over the decade of the 1990’s, the 6 rate of interracial and interracial violence decreased.”30 Trulson and Marquart go on to

7 say:

8

This brief review of the studies… suggest that desegregation did not

result in the racial Armageddon predicted in the aftermath of prisoner

9

desegregation. In fact, the results revealed that racially motivated incidents

were very rare in the Texas prison system in the aftermath of prisoner

10

desegregation—and even less likely among desegregated cell partners as

11

compared with non-cell partners in the general population. This being the

only systematic empirical evidence on the aftermath of desegregation in

12

prisons is important because it suggests that in one of the largest

13

correctional systems in the nation, one most similar to California in terms of diversity and presence of racial gangs, desegregation was accomplished

14

absent the extreme racial violence that was predicted by most earlier

accounts.31 15

95. The Texas example shows that California can successfully transition away

16

from its race-based management policies.

17

96. It has become apparent to me that California prisons continue to impose

18

lengthy race-based lockdowns because they’ve done it for so long that they can’t

19

conceive of or see any other way to keep control. In a 2010 email, Terry McDonald, who

20

was until recently CDCR Undersecretary, wrote “I think our core problem is not

21

lockdowns, but street gang mgmt. and a lack of vision on how we could do anything

22 differently.”32 (emphasis added). I agree with Ms. McDonald to the extent that the CDCR

23

has demonstrated a breathtaking lack of vision about alternative ways to keep the prisons

24

25

26 30 Trulson and Marquart, 2008, Racial Desegregation in Prisons, in The Prison Journal.

27

31 Ibid. 32 CDCR email from Terri McDonald to Scott Kernan, re: Miki, September 14, 2010.

28 24

DECLARATION OF ELDON VAIL, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 26 of 32

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 27 of 32
Exhibit 1

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 28 of 32

WORK HISTORY

 Secretary

Washington State Dept. of Corrections 2007-2011

 Deputy Secretary

WADOC

1999-2006

 Assistant Deputy Secretary WADOC

1997-1999

 Assistant Director for Prisons WADOC

1994-1997

 Superintendent

McNeil Island Corrections Center

1992-1994

 Superintendent

WA. Corrections Center for Women 1989-1992

 Correctional Program Manager WA. Corrections Center

1988

 Superintendent

Cedar Creek Corrections Center

1987

 Correctional Program Manager Cedar Creek Corrections Center

1984-1987

 Juvenile Parole Officer

Juvenile Rehabilitation

1984

 Correctional Unit Supervisor Cedar Creek Corrections Center

1979-1983

 Juvenile Institution Counselor Naselle Youth Camp

1974-1979

HIGHLIGHTS OF CAREER ACCOMPLISHMENTS
 Reduced violence in adult prisons by over 30% during my tenure as Secretary and
Deputy Secretary for the Department.  Dramatic reduction in escapes from minimum-security facilities during this same time
period.  Increased partnerships with non-profits, law enforcement and community members in
support of agency goals and improved community safety.  Implemented and administered an extensive array of evidence based and promising
programs:  Education, drug and alcohol, sex offender and cognitive treatment programs.  Implemented risk based sentencing via legislation and policy, reducing the prison
populations of non-violent, low risk offenders, including the Drug Offender
Sentencing Alternative and the Family and Offender Sentencing Alternative.
http://www.doc.wa.gov/community/fosa/default.asp  Pioneered extensive family based programs resulting in reductions in use of force
incidents and infractions and improved reentry outcomes for program
participants.  Established Intensive Treatment Program for mentally ill inmates with behavioral
problems.  Established step down programs for long-term segregation inmates resulting in
significant reduction in program graduate returns to segregation.
http://www.thenewstribune.com/2012/07/10/2210762/isolating-prisoners-less-
common.html  Initiated the Sustainable Prison Project; http://blogs.evergreen.edu/sustainableprisons/  Administered the only state agency that bent the curve on health care costs while
improving outcomes.  Focused the department on becoming a better asset to the community by expanding
inmate and community supervision work programs.  Improved efficiency in the agency by administrative consolidation, closing 3 high cost
institutions and eliminating over 1,200 positions. Housed inmates at lowest possible
custody levels, also resulting in reduced operating costs.  Led the nation’s corrections directors to support fundamental change in the Interstate
Compact as a result of the shooting of 4 police officers in Lakewood, WA.

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 29 of 32
 Dramatically improved media relations by being aggressively open with journalists, challenging them to learn the difficult work performed by corrections professionals on a daily basis.
 Long term collaboration with the University of Washington focusing on the mentally ill in prison and management of prisoners in and through solitary confinement.
EDUCATION AND OTHER BACKGROUND INFORMATION
 Post graduate work in Public Administration - The Evergreen State College, Washington - 1980 and 1981
 Bachelor of Arts - The Evergreen State College, Washington – 1973  Graduate of the first NIC Executive Excellence Class-1998. Keynote speaker for two
subsequent graduating classes.  National Institute of Corrections and Washington State Criminal Justice Training
Commission - various training courses  Member of the American Correctional Association  Associate member, Association of State Correctional Administrators  Commissioner, Washington State Criminal Justice Training Commission 2002-2006,
2008-2011  Member, Washington State Sentencing Guidelines Commission 2007-2011  Instructor for Correctional Leadership Development for the National Institute of
Corrections (NIC)  Advisory Panel Member, Correctional Technology—A User’s Guide  Author of Going Beyond Administrative Efficiency—The Budget Crisis in the State of
Washington, published in Topics of Community Corrections by NIC  Consultant for Correctional Leadership Competencies for the 21st Century, an NIC
publication  Consultant for Correctional Health Care Executive Curriculum Development, an NIC
training program  Co-chair with King County Prosecutor Dan Satterberg, Examining the Tool Box: A
Review of Supervision of Dangerous Mentally Ill Offenders http://www.dbhds.virginia.gov/documents/Adm/080101-KingCountyReport.pdf  Guest lecturer on solitary confinement for ACLU at University of Montana Law School in 2012
EXPERT WITNESS FEE AND EXPERIENCE
My fee in this case is $150 an hour, plus travel expenses. The only case in which I have testified as an expert witness is Coleman et al. v. Brown, et al., No. 2:90-cv-0520 LKK JMP P United State District Court, Eastern District of California.

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 30 of 32
Exhibit 2

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 31 of 32
DOCUMENTS REVIEWED
1. Title 15, Section 3000, California Code of Regulations 2. Department of Operations Manual, Section 55015, July 2007, AGO-
MITCHELL004314 – 004332 3. Department of Operations Manual, Section 55015, Oct. 2012, AGO-
MITCHELL021205 – 021232 4. FAQ Restricted DOM Section 55015 EDD-MITCHELL050091 5. Depositions of Kelly Harrington, Vols I and II, Chris Arthur, Jeffrey Beard,
Foston, Garza, Anti, Hill, and Shannon. 6. Program status reports and investigatory memoranda reflecting lockdowns in
effect during inspections at SVSP, KVSP and HDSP. 7. Photographs inspection of HDSP 8. 12.11.15 CCHCS Memo Re: Monthly Healthcare Access Quality Report, KVSP,
EDD-MITCHELL001166 – 001167 9. 12.11.15 CCHCS Memo Re: Monthly Healthcare Access Quality Report, LAC,
EDD-MITCHELL003737 – 003738 10. 12.11.13 CCHCS Memo Re: Monthly Healthcare Access Quality Report, SVSP,
EDD-MITCHELL003742 – 003743 11. 12.11.09 CCHCS Memo Re: Monthly Healthcare Access Quality Report, PBSP,
EDD-MITCHELL006658 – 006659 12. 12.11.15 CCHCS Memo Re: Monthly Healthcare Access Quality Report, HDSP,
EDD-MITCHELL006694 – 006695 13. Monthly Healthcare Access Quality Report, HDSP, Oct. 2012, EDD-
MITCHELL006696 – 0066701 14. 12.07.12 CCHCS Memo Re: Monthly Healthcare Access Quality Report, KVSP,
EDD-MITCHELL007285 – 007287 15. 13.03.11 Evenson Dec ISO Supp Brief IOT Defs' Mtn to Vacate Pop Reduction
Order-Exhibit 1-Part A 16. 13.03.11 Evenson Dec ISO Supp Brief IOT Defs' Mtn to Vacate Pop Reduction
Order-Exhibit 1-Part B 17. United States Department of State, “A Practical Guide to Understanding and
Evaluating Prison Systems” 18. 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 Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. 19. California Department of Corrections and Rehabilitation, Expert Panel on Adult Offender and Recidivism Reduction Programming. Report to the California State Legislature (2007). 20. California Department of Corrections and Rehabilitation, Prison Capacity Planning Final Report (2011). 21. Program Status Reports attached as deposition exhibits, provided during prison inspections, and summarized in data sheets, as well as CVP-DYD-10-0002, HDP-

Case 2:08-cv-01196-TLN-EFB Document 188 Filed 05/15/13 Page 32 of 32
C-12-004, CTF-Central-12-009, CTF-Central-12-001, COR-03A-12-02-009, SATF-0003-12-01-0016, SATF-0003-11-11-0473, KVP-B-12-016, KVP-B-12004, KVP-B-11-021, KVP-B-11-015, KVP-A-12-015, SVSP-FD-12-018, SVSPFD-12-009, SVSP-FD-11-017, SVSP-FB-12-013, SVSP-FB-12-009, SVSP-FB12-016, SOL-September-11-11-034, SOL-APR-C-12-011, SQ-IV-11-014, SQ-IV11-020, SQ-V-11-015, SQ-IV-12-006, NKSP-A-12-0013 22. 10.10.20 HDSP Email Re: inmates impacted by modified programs EDDMITCHELL002038 – 002040 23. 10.10.20 SOL Email Re: inmates impacted by modified programs EDDMITCHELL002198 – 002199 24. 10.10.19 CTF Email Re: inmates impacted by modified programs EDDMITCHELL002034 – 002037 25. 10.09.14 McDonald Email Re: work group to study impact of street gangs in prisons EDD-MITCHELL049395 – 049397 26. 10.10.19 COR Email Re: inmates impacted by modified programs EDDMITCHELL057946 – 057947 27. Declaration of James Austin, United States District Court, Coleman v. Schwarzenegger and Plata v. Schwarzenegger, Civ S 90-0520 LKK-JFM P, January 7, 2013. 28. CDCR email from Terri McDonald to Scott Kernan, re: Miki, September 14, 2010. 29. In re Mitchell, Case No. S156449 (Cal Supreme Ct), July 11, 2008, Informal Response by Deputy Attorney General Heather M. Heckler 30. Letter from Simone Renteria, CDCR Office of Legal Affairs, to Zoe Shonfeld, Prison Law Office, containing “a chronology of events that precipitated each of the following lockdowns: COR 09-008, SVSP FC 09-038, and HDP C 09-018.” And copies of PSRs describing each of those lockdowns. 31. CDCR Prison Census Data As of December 31, 2012 (published February 2013 by CDCR) 32. “Respondent’s Submission of Plans Required by December 10, 2002 Order” In re Escalera, Del Norte County Superior Court No. 00-5164 (June 9, 2004). 33. “Respondent’s Second Submission re: Compliance with December 10, 2002 Order” In re Escalera, Del Norte County Superior Court No. 00-5164 (Oct 12, 2004). 34. Escalera v. Terhune, Cal. Ct. of Appeal Case No. A101614, Feb. 10, 2004) 2004 WL 238763. 35. In re Morales, 212 Cal. App. 4th 1410 (2013). 36. Declaration and Supplemental Declaration of Devin McDonnell and spreadsheets describing prison lockdowns from July 2010 through March 2013. 37. Declarations of Plaintiffs Mitchell, Quezada, Trujillo and Abdullah, and exhibits thereto.

 Case 2:08-cv-01196-TLN-EFB Document 189 Filed 05/15/13 Page 1 of 70

1 PRISON LAW OFFICE DONALD SPECTER (SBN 83925)
2 WARREN E. GEORGE (SBN 53588) REBEKAH EVENSON (SBN 207825)
3 1917 Fifth Street Berkeley, California 94710-1916
4 Telephone: 510.280.2621 Facsimile: 510.280.2704
5 dspecter@prisonlaw.com wgeorge@prisonlaw.com
6 revenson@prisonlaw.com

7 BINGHAM MCCUTCHEN LLP GEOFFREY HOLTZ (SBN 191370)
8 MANU PRADHAN (SBN 253026) Three Embarcadero Center
9 San Francisco, CA 94111-4067 Telephone: 415.393.2000
10 Facsimile: 415.393.2286 geoffrey.holtz@bingham.com
11 manu.pradhan@bingham.com

12 Attorneys for Plaintiffs

13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15

16

ROBERT MITCHELL, et al.,

17

Plaintiffs,

18

v.

19 MATTHEW CATE, et al.,

20

Defendants.

21

22

No. 08-CV-1196 TLN EFB

CRAIG HANEY’S EXPERT REPORT AND DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Magistrate Judge: Hon. Edmund F. Brennan

Date:

June 12, 2013

Time:

10:00 a.m.

Courtroom:

24

Action Filed: May 30, 2008

23

24

25 I, Craig Haney, declare:

26

I have personal knowledge of the matters set forth herein and if called as a witness I

27 could competently so testify.
28

Case 2:08-cv-01196-TLN-EFB Document 189 Filed 05/15/13 Page 2 of 70

1 I.

Introduction

2

1. I am a Professor of Psychology and former Chair of the Department of

3 Psychology at the University of California at Santa Cruz. I am currently the Director of the

4 Graduate Program in Social Psychology and Director of the Legal Studies Program. I have been

5 teaching graduate and undergraduate courses in social psychological theory, research

6 methodology, psychology and law, and institutional analysis at the University of California for

7 35 years. I received a Ph.D. in Psychology from Stanford University and a J.D. degree from the

8 Stanford Law School. I have been the recipient of a number of scholarship, fellowship, and other

9 academic awards and have published over one hundred scholarly articles and book chapters on

10 topics in law and psychology, including encyclopedia and handbook chapters on conditions of

11 confinement and the psychological effects of incarceration. My book on the psychological

12 consequences of imprisonment, Reforming Punishment: Psychological Limits to the Pains of 13 Imprisonment,1 was published by the American Psychological Association in 2006. (My

14 curriculum vita is attached as Appendix A.)

15

2. For approximately 40 years, I have been studying the psychological effects of

16 living and working in institutional environments. In the course of that work, I have conducted

17 what is perhaps the only laboratory experiment ever done on the acute psychological effects of 18 prison-like environments.2 This research, which has come to be known as the “Stanford Prison

19

20 1 Craig Haney, Reforming Punishment: Psychological Limits to the Pains of Imprisonment. Washington, DC: APA Books (2006).
21 2 This study was originally published as Haney, C., Banks, C., and Zimbardo, P., Interpersonal Dynamics in a Simulated Prison, 1 International Journal of Criminology and Penology 69
22 (1973), and has been reprinted in numerous books in psychology and law and translated into several languages. For example: Steffensmeier, D., and Terry R. (Eds.) Examining Deviance
23 Experimentally. New York: Alfred Publishing, 1975; Golden, P. (Ed.) The Research Experience. Itasca, Ill.: Peacock, 1976; Leger, R. (Ed.) The Sociology of Corrections. New
24 York: John Wiley, 1977; A kiserleti tarsadalom-lelektan foarma. Budapest, Hungary: Gondolat Konyvkiado, 1977; Johnston, N., and Savitz, L. Justice and Corrections. New York:
25 John Wiley, 1978; Research Methods in Education and Social Sciences. The Open University, 1979; Goldstein, J. (Ed.), Modern Sociology. British Columbia: Open Learning Institute, 1980;
26 Ross, R. (Ed.) Prison Guard/Correctional Officer: The Use and Abuse of Human Resources of Prison. Toronto: Butterworth's 1981; Monahan, J., and Walker, L. (Eds.), Social Science in
27 Law: Cases, Materials, and Problems. Foundation Press, 1985; Siuta, Jerzy (Ed.), The Context of Human Behavior. Jagiellonian University Press, 2001; and Ferguson, Susan (Ed.), Mapping

28

(Footnote Continued on Next Page.)

1

DECLARATION OF CRAIG HANEY, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 189 Filed 05/15/13 Page 3 of 70

1 Experiment,” is regarded as a classic social psychological study of the effects of institutional 2 environments.3 For the more than 40 years since that study was completed, I have continued to

3 study and publish scholarly articles on the psychology of imprisonment. That research has

4 included conducting numerous interviews with correctional officials, officers, and prisoners to

5 assess the nature and consequences of living and working in correctional settings. In addition, I

6 have statistically analyzed aggregate correctional data to examine the effects of overcrowding,

7 punitive segregation, and other conditions of confinement on the quality of prison life and the

8 ability of prisoners to adjust to them.

9

3. In addition, I have toured and inspected and analyzed conditions of confinement

10 at numerous state prisons (including in Alabama, Arkansas, Arizona, California, Florida,

11 Georgia, Idaho, Louisiana, Massachusetts, Montana, New Jersey, New Mexico, Ohio,

12 Oklahoma, Oregon, Tennessee, Texas, Utah, Washington, and Wyoming), maximum security

13 federal prisons (at McNeil Island, Washington; Marion, Illinois; and the Administrative

14 Maximum facility in Florence, Colorado), as well as prisons in Canada, Cuba, England,

15 Hungary, and Russia. In 1989, I received a UC-Mexus grant to conduct a comparative study of

16 prisons and prison policy in the United States and Mexico. As a result of that research grant, I

17 toured a number of Mexican prisons, interviewed correctional officials and, in conjunction with

18 United States Department of State officials, interviewed many United States citizens who were

19 incarcerated in Mexico.

20

4. I have lectured and given invited addresses throughout the country on the

21 psychological effects of living and working in institutional settings (especially maximum

22 security prisons) at various law schools, bar associations, university campuses, and numerous

23 (Footnote Continued from Previous Page.)
24 the Social Landscape: Readings in Sociology. St. Enumclaw, WA: Mayfield Publishing, 2001;
25 Pethes, Nicolas (Ed.), Menschenversuche (Experiments with Humans). Frankfurt, Germany: Suhrkamp Verlag, 2006.
26 3 The American Psychological Association sponsored a “retrospective” commemorating the 25th anniversary of this study at its Annual Convention a decade ago. See, also, Haney, C., and
27 Zimbardo, P., The Past of Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment, 53 American Psychologist 709-727 (1998).
28 2

DECLARATION OF CRAIG HANEY, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 189 Filed 05/15/13 Page 4 of 70

1 professional psychology organizations such as the American Psychological Association. I have

2 also served as a consultant to numerous governmental, law enforcement, and legal agencies and

3 organizations, including the Palo Alto Police Department, the California Judicial Council,

4 various California Legislative Select Committees, the National Science Foundation, the

5 American Association for the Advancement of Science, the NAACP Legal Defense Fund, and

6 the United States Department of Justice.

7

5. For example: In the summer of 2000, I was invited to attend and participated in a

8 White House Forum on the uses of science and technology to improve crime and prison policy,

9 and in 2001, I participated in a conference jointly sponsored by the United States Department of

10 Health and Human Services (DHHS) and the Urban Institute concerning government policies

11 and programs that could better address the needs of formerly incarcerated persons to facilitate

12 their reintegration into their home communities. I continued to work with DHHS and other

13 organizations on the issue of how best to maximize the success of recently released prisoners. I

14 taught for several years in the National Institute of Corrections-sponsored “Correctional

15 Excellence” program, designed to instruct especially promising, high-level correctional

16 administrators from around the country on prison “best practices.” In 2005, I was the Scholar-in-

17 Residence at the Center for Social Justice, at the Boalt Hall School of Law, a role that included

18 delivering an invited lecture at the school on the psychological effects of conditions of

19 confinement and consulting with law students and faculty members on a variety of prison-related

20 issues. And, in 2012, I was appointed as a member of the National Academy of Sciences

21 committee studying the causes, consequences, and solutions to the high rates of incarceration in

22 the United States (a committee on which I continue to serve).

23

6. In addition to the research I have conducted into the psychological effects of

24 confinement and patterns of adjustment in institutional settings, I also have extensive experience

25 evaluating the life histories and psychological reactions of individual clients in the criminal

26 justice system. Beginning as a Law and Psychology Fellow at the Stanford Law School in the

27 mid-1970s, I participated for several years in an intensive clinically-oriented course co-taught by

28 law professor Anthony Amsterdam and psychiatrist Donald Lunde that sensitized me to the 3

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1 special problems and vulnerabilities of psychiatrically impaired criminal defendants and

2 prisoners with special needs. Since that time I have been extensively involved in teaching and

3 conducting research on a variety of forensic issues that have placed me in continuing contact

4 with diverse prisoner populations, many of whose members suffer from adverse effects of 5 institutionalization, as well as pre-existing psychiatric disorders and developmental disabilities.4

6

7. For example, over the last 25 years I also have been studying the backgrounds

7 and social histories of persons accused and convicted of violent crime. In the course of this

8 research, I have evaluated the background and social histories of defendants and convicted

9 persons, carefully assessed the effects of prior periods of institutionalization, and analyzed the

10 ways in which these factors have influenced their development and psychological functioning.

11 Much of that work has entailed an assessment of the potentially adverse effects of their

12 institutional histories as well as evaluations of their potential for future prison adjustment.

13

8. My interest in these broad issues within the general area of psychology and law is

14 both academic and professional. Thus, in the course of my work on conditions of confinement,

15 adjustment to incarceration, and effects of institutionalization on persons accused or convicted of

16 violent crime, I have been qualified and have testified as an expert in various state and federal

17 courts, including the Superior Courts of Lake, Los Angeles, Marin, Monterey, Orange,

18 Sacramento, San Diego, San Francisco, and Ventura counties in California, state courts in New

19 Jersey, New Mexico, Oregon, Wyoming, and Utah, as well as Federal District Courts in the

20 Western and Eastern Districts of Washington, the Northern, Southern, and Eastern Districts of

21 California, the District Court of New Mexico, and the Southern District of Illinois.

22

9. In the course of this academic and professional work, I have also evaluated and

23 testified concerning the psychological effects of conditions of confinement in the general

24 population housing units of various maximum and medium security prisons in a number of states

25
26 4 For example, see Haney, C., and Specter, D., Legal Considerations in the Treatment of “Special Needs” Offenders, in Ashford, J., Sales, B., and Reid, W., (Eds.), Treating Adult and Juvenile
27 Offenders with Special Needs (pp. 51-79). Washington, D.C.: American Psychological Association (2000).
28 4

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1 (including California, New Jersey, New Mexico, Oregon, Utah, and Washington). For example, I

2 have evaluated and provided testimony about the psychological effects of overcrowded

3 conditions of confinement in the general population housing units at the California Men’s

4 Colony, the Correctional Training Facility, and Folsom and San Quentin prisons. In the mid-

5 1980s I toured, inspected and conducted extensive interviews in a number of Texas prisons, and

6 examined and analyzed numerous documents as the basis for an opinion about the psychological

7 effects of overcrowding in the Texas Department of Corrections.

8

10. I have often focused in this work on the effects of conditions of confinement on

9 so-called “special needs” prisoners (primarily the mentally ill and developmentally disabled). For

10 example, under the auspices of the United States Department of Justice, I evaluated conditions of

11 confinement and the quality of care provided at Atascadero State Hospital, a forensic facility

12 designed to house mentally ill and developmentally disabled offenders for the State of California.

13 Also, as noted above, I testified as an expert witness concerning conditions of confinement and

14 their effects on prisoners at the California Men’s Colony, which was a treatment-oriented facility

15 in which many mentally ill prisoners were housed at the time I evaluated it. In addition, I

16 evaluated the effects of conditions of confinement on prisoners at the California Medical Facility 17 at Vacaville (including prisoners housed in the Department of Mental Health units),5 and also

18 testified about the prevalence of seriously mentally ill prisoners in the California Department of

19 Corrections, as well as the special psychological problems that living in isolated housing units 20 created for them.6 I have also evaluated the psychological effects of conditions of confinement at

21 juvenile justice facilities, on the condemned or “death row” units in several states (including

22 Arkansas, California, New Mexico, and Texas), and in various special treatment facilities for sex

23 offenders (in California, Florida and Washington).

24

11. In much of my research, writing, and testimony about prison conditions,

25 especially in recent years, I also have focused on the assessment of the psychological effects of

26

27

5 Gates v. Deukmejian, Civ-S-87-1636 LKK-JFM (E.D. Cal.)(1990). 6 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995).

28

5

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1 confinement in “lockup,” punitive segregation, and “supermax” confinement (in what are

2 variously known as management control, security housing, high security, or close management 3 units).7 This has included tours and inspections and interviews in a number of management

4 control units as well as Security Housing Units in institutions in California and in several

5 separate prisons or specialized units in each of the states of Florida, Louisiana, Massachusetts,

6 New Mexico, Oregon, Pennsylvania, Texas, and Washington, as well as at the Federal

7 Penitentiary at Marion, Illinois, and the Administrative Maximum facility in Florence, Colorado.

8 I have testified about the effects of isolation and social deprivation in the Security Housing Unit 9 at Pelican Bay State Prison,8 and in several of the High Security Units in the Texas Department 10 of Corrections.9 I have also served as a consultant to and witness before various governmental

11 agencies concerning the psychological effects of solitary confinement. For example, in June

12 2012, I testified as an invited witness before the United States Senate Judiciary Subcommittee

13 (chaired by Senator Richard Durbin) on the psychological effects of isolated confinement.

14

12. My expert testimony has been cited in Brown v. Plata, the recent U.S. Supreme

15 Court opinion affirming a Three Judge Court’s order that the dangerous levels of overcrowding

16 in California prisons made it impossible to cure constitutional defects in medical and mental 17 health care, as well as the lower court opinion in that case.10 My extensive research and

18 investigation in that case was valuable in my work here: I have found that many of the severe

19 psychological stressors imposed by extended race-based lockdowns are similar or identical to the

20 stressors caused by life in an egregiously overcrowded prison.

21

22 7 See, generally, Haney. C., and Lynch, M., Regulating Prisons of the Future: The Psychological

23 Consequences of Supermax and Solitary Confinement, 23 New York University Review of Law and Social Change 477-570 (1997); and Haney, C., Mental Health Issues in Long-Term Solitary

24 and “Supermax” Confinement, Crime & Delinquency (special issue on mental health and the

criminal justice system), 49, 124-156 (2003) (hereafter, “Mental Health Issues in Solitary”).

25

8 See Madrid v. Gomez, 889 F. Supp. 1146, 1280 (N.D. Cal. 1995). 9 See Ruiz v. Johnson, 37 F. Supp. 855 (S.D. Texas 1999).

26 10 Brown v. Plata, -- U.S. --, 131 S. Ct. 1910, 1932 and n.5, 1933 (2011); Coleman v.

Schwarzenegger and Plata v. Schwarzenegger, -- F. Supp. 2d --, Nos. CIV S–90–0520 LKK

27 JFM P and C01–1351 TEH, 2009 WL 2430820 at *31, *35, *36, *37, *38, *41, *43, *45, *50, *53, *56, *65, *74, *79, *80, *82, and *86 (Aug. 4, 2009).

28

6

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1 II. Foundation for expert opinions

2

13. Much of the experience outlined above is relevant to my expert opinion in this

3 case, including decades of study and analysis of prison conditions and how they affect prisoners’

4 mental health, thousands of interviews with prisoners in California and other states (including

5 hundreds of interviews with people held under various types of isolation), my tours of dozens of

6 prisons in other states, and interviews with hundreds of correctional staff and administrators.

7

14. In addition, I have undertaken an investigation specifically for the purposes of this

8 case. I toured, reviewed institutional records, and interviewed prisoners in Salinas Valley State

9 Prison (on January 29, 2013) and Kern Valley State Prison (on January 30, 2013). Each of these

10 tours began with a review of institutional records and files pertaining to current or recent

11 lockdowns at the facility (including Program Status Reports or “PSRs”), followed by tours of

12 several different housing units where lockdowns were currently in effect. In the course of the

13 tours of the housing units themselves, I was able to observe the conditions of confinement in the

14 prisoners’ cells, and to interview them in passing at the front of their cells to learn about the

15 nature and effects of the lockdowns to which they were being subjected.

16

15. In April and May 2013 I interviewed 14 prisoners subjected to long-term race-

17 based lockdowns, including two named plaintiffs. Several of those I interviewed had recently

18 been moved to Administrative Segregation and were able to provide direct comparisons of their

19 conditions of confinement. I intended to review these prisoners’ mental health records, but the

20 documents arrived the day before this Report was due; I will review them as soon as I am able.

21

16. I have reviewed the depositions of class representative Robert Mitchell as well as

22 CDCR Director Jeffrey Beard and Warden Greg Lewis of Pelican Bay State Prison. I have

23 reviewed CDCR documents regarding access to care: Bates numbers 001166-001167, 003737-

24 003738, 003742-003743, 006658-006659, 006694-006701, and 007285-007287. I have also

25 reviewed the U.S. Supreme Court decision in Brown v. Plata and the lower court order that it

26 affirmed; Office of the Inspector General, Special Review Into the Death of Correctional Officer

27 Manuel A. Gonzalez, Jr. on January 10, 2005, at the California Institution for Men, March 16,

28 2005; Office of the Inspector General, Special Review into the Death of a Ward on August 31, 7

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1 2005, at the N.A. Chaderjian Youth Correctional Facility, December 2005; and a spreadsheet

2 prepared by plaintiffs’ counsel detailing the duration and extent of lockdowns in California

3 prisons from January 2010 to March 2013.

4

17. I also undertook several thorough literature reviews to ensure I was acquainted

5 with the current thinking among psychologists, sociologists, criminologists, and other academics

6 in relevant areas, including the psychological effects of solitary or isolated confinement, and the

7 impact of perceived racial discrimination.

8 III. Expert opinions

9

A. California’s practice of frequent, extended, race-based lockdowns causes

significant deprivation and harm 10

18. To my knowledge, lockdowns are used in California prisons far more than in any

11

other prison system in the country. This opinion is based on my extensive experience with the

12

California prisons and my multiple contacts over many decades with corrections officials and

13

prison psychologists and other staff in dozens of other states as well as colleagues who study

14

conditions around the county. In other states, lockdowns are used as a last resort by systems that

15

cannot control their prisoner populations any other way; in some California prisons they have

16

become a way of life. For example, at Salinas Valley State Prison, Black and “Northern

17

Hispanic” inmates in five buildings were locked down for nearly a year, from February 2012 to

18 January 2013.11 At Kern Valley State Prison, Black prisoners in eight buildings were locked

19

down for 221 days in 2012; between January 11, 2012, and August 22, 2012, they were off

20

lockdown for only five days. At SATF, so-called “Southern Hispanics” and Mexican nationals

21

in eight housing units were locked down repeatedly for a total of more than 200 days in the eight

22

months from October 2011 to June 2012. At Wasco State Prison, Black inmates in one building

23

were locked down for 191 days in late 2011 through 2012, released for 17 days, and locked

24

down again for four more days.

25

26
27 11 This data and that cited in the rest of this paragraph is from the spreadsheet provided for me by plaintiffs’ counsel.
28 8

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1

19. Lockdowns, particularly race-based lockdowns, have been a central feature of

2 California prison administration for so long that administrators and staff have normalized their

3 use. I believe that many who work in the California prisons have genuinely lost the ability to

4 recognize the appalling nature of this practice: the confinement of hundreds of grown men to tiny

5 cells for nearly 24 hours each day – cells in which they must eat three meals, sleep, defecate,

6 exercise, and pray – for weeks, months, and even years without visits from their families, work,

7 school, substance abuse treatment, or any sort of normal social interaction. And the reason for

8 most of these lockdowns? Solely that another prisoner of the same race violated prison rules or

9 committed an in-prison crime.

10

20. In fact, lockdowns usually prove to be highly counter-productive. That is, the

11 increased frustration and rage they generate often increase rather than decrease the very tensions

12 and conflicts they are supposed to help alleviate. They deepen antagonisms between groups, who

13 blame and resent one another for the especially harsh conditions under which they are forced to

14 live. And they directly contravene the core principle of personal responsibility upon which

15 prisons are premised and are supposed to model for prisoners—that persons are held accountable

16 for their own individual actions. In the meantime, prisoners – especially those with pre-existing

17 psychiatric conditions – suffer emotionally and psychologically, as set forth below.

18

1. The lockdowns at issue in this case subject prisoners to extreme

isolation

19

21. In reaching my opinions in this case, I have drawn extensively from the literature

20 and my experience in studying the psychological effects of solitary confinement. 12 I believe that

21

this comparison is valid because the practical experience of these lockdowns is in most relevant

22

ways identical to solitary confinement, a term generally used to refer to conditions of extreme

23

isolation from normal social contacts. (In fact, the only significant areas of difference are (a) the

24

25
26 12 A thorough review of the psychological literature did not turn up any analyses on the effects of prolonged race-based lockdowns or even on prolonged lockdowns generally. This is true in
27 large part, I believe, because it is an institution peculiar to California and not a widespread phenomenon.
28 9

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1 reasons for the confinement and, typically, (b) the physical structure of the housing units in

2 which prisoners are confined. I directly address these differences in subsequent sections of this

3 Declaration.) I have defined solitary confinement elsewhere in a way that is consistent with its

4 use in the broader correctional literature as well as the experience of prisoners in this case:

5

[S]egregation from the mainstream prisoner population in attached housing

units or free-standing facilities where prisoners are involuntarily confined

6

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

7

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

8

meaningful programming of any kind.13

9

22. As described in CDCR documents I have reviewed as well as interviews I have

10 conducted with prisoners and the deposition testimony that I have read, the lockdowns at issue in

11 this case subject prisoners to what, by any standards, constitutes extreme isolation. Prisoners are

12 locked in their cells for 24 hours every day, except for occasional (not daily) showers and

13 variable exercise opportunities – sometimes a few times a week, sometimes not at all, but rarely

14 for more than an hour at a time. This deprivation drastically limits and distorts all forms of

15 social interaction; often, the only people these prisoners speak to for months on end are their

16 cellmate and the few staff who slide meals in through their food ports, pick up the empty trays,

17 and provide the infrequent escorts to showers and recreation. The normal human contact that

18 we take for granted, that even prisoners in normal housing units experience daily, is denied

19 plaintiff class members. Yet these ubiquitous and seemingly unimportant forms of social

20 interaction – comments on the weather and sports, jokes, nods of recognition, news about events

21 of local or national or global importance, simply being surrounded by varied and interesting

22 human faces and emotions – are in fact what makes us human, what grounds us in common

23 human experience. They distinguish “living” in a social world from “existing” in isolation.

24

23. In addition, prisoners who are locked down in double cells are forced to interact

25 with a cellmate under extremely close quarters that afford little or no privacy or respite. They

26
27 13Craig Haney, The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful, Prison Service Journal, 12 (January, 2009), at n.1.
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1 experience constant and unavoidable violations of personal space, in an environment of forced

2 closeness that affords them no respite from one another or opportunities to release the

3 interpersonal tensions that inevitably result. As one of the prisoners I interviewed put it, “You

4 feel trapped—trapped with another person who can’t take it either. What do you do?”

5

24. Locked-down prisoners are forced to live extraordinarily static, inert, and empty

6 lives, with no opportunity to work or go to school, to engage in meaningful psychological or

7 behavioral treatment programs, to see their loved ones or go to the library or religious services.

8 They thus have no access to purposeful activity. The prisoners I interviewed repeatedly

9 complained about the lack of activity and the way that idleness was eroding their spirit and sense

10 of self. Some of these men were programming effectively until their unit was locked down—at

11 which point their programming came to an immediate halt. In other instances, prisoners were

12 transferred to a prison precisely because they were programming well, only to be placed in a

13 locked-down unit where no programming was possible. Of course, in these instances, the

14 lockdown was precipitated by an event that occurred before these prisoners were even physically

15 at the prison; yet they were made to suffer along with everyone else.

16

25. In rendering my opinions in this case, I am addressing the effects of what I call

17 “extended” or “prolonged” or “long-term” lockdowns. I am not speaking of the effects of

18 isolation that lasts a few days or even a few weeks, although there is certainly literature that 19 speaks to the trauma even relatively brief isolation can cause.14 I am referring to what I have

20 observed and learned from the materials I reviewed to be the practice in California prisons of

21 locking prisoners down for a month or more, sometimes extended to years, with only brief

22 interruptions – if any – where normal programming is resumed.

23

24 14 In fact, the United Nations Special Rapporteur on Torture, Juan Mendez, has defined
25 “prolonged solitary confinement” as isolation for periods of longer than 15 days and, because he concluded that this length of solitary confinement can produce harmful psychological effects, has
26 recommended that it be prohibited. Interim Report of the Special Rapporteur on Torture and 27 Other Cruel, Inhuman or Degrading Treatment or Punishment, 66th Sess., UN Doc. A/66/268
(August 5, 2011).
28 11

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1

2. Isolation of the kind experienced by the plaintiff class exposes them to

grave risk of serious psychological damage and trauma

2

26. As Hans Toch and Kenneth Adams have acknowledged, the “dictum that prisons

3 are stressful cannot be overestimated.”15 As a general matter, prisons present a difficult

4 environment in which prisoners must adapt to forced proximity to fearful, defensive, and

5 sometimes violent strangers. Prisons are highly charged atmospheres where interpersonal

6 interactions can have serious consequences for personal safety and well-being. They are

7 governed by complex rules and a code of conduct and culture, both written and unwritten, that

8 determine what specific actions will generate official sanctions from staff (such as disciplinary

9 punishments), or unofficial sanctions from fellow prisoners (such as ostracism or assault).

10 27. The stress of confinement is amplified for prisoners who are subjected to extreme

11 and extended isolation. Time spent in segregation places prisoners at risk of developing a host of

12 adverse psychological reactions that are associated with long-term isolation.

13 (a) Psychological harm

14 28. There is an extensive literature that documents the adverse effects of social

15 isolation and the fact that it is damaging to psychological health and well-being. It has the same

16 negative effects in prison. Thus, there is substantial evidence of the negative psychological

17 effects of isolated confinement that comes from a variety of sources, including personal

18 accounts, descriptive studies, and systematic research on solitary and supermax-type units. The

19 data that establish these harmful effects have been collected in studies conducted over a period of

20 several decades, by researchers from several different continents who had diverse backgrounds

21 and a wide range of professional expertise.16

22

23 15 Toch, H., & Adams, K., Acting Out: Maladaptive Behavior in Confinement. Washington, DC: 24 American Psychological Association (2002), p. 230.
16 For extensive literature reviews, see supra note 7; Arrigo, B., & Bullock, J., The Psychological
25 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, 26 52,622-640 (2008); Peter Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief

27 History and Review of the Literature, in Michael Tonry (Ed.), Crime and Justice (pp. 441-528). Volume 34. Chicago: University of Chicago Press (2006). In contrast to the overwhelming

28

(Footnote Continued on Next Page.)

12

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1

29. For example, mental health and correctional staff who have worked in

2 disciplinary segregation and isolation units have reported observing a range of problematic

3 symptoms manifested by the prisoners confined in these places. The authors of one of the early

4 studies of solitary confinement summarized their findings by concluding that “[e]xcessive

5 deprivation of liberty, here defined as near complete confinement to the cell, results in deep 6 emotional disturbances.”17 A decade later, Professor Hans Toch’s large-scale psychological

7 study of prisoners “in crisis” in New York State correctional facilities included important

8 observations about the effects of isolation. After hundreds of in-depth interviews with such

9 prisoners, he concluded that “isolation panic” was a serious problem among prisoners in solitary

10 confinement. Symptoms included rage, panic, loss of control and breakdowns, psychological

11 regression, and a build-up of physiological and psychic tension that led to incidents of self12 mutilation.18

13

30. More recent studies, which are discussed in the literature already cited, have

14 identified other symptoms that appear to be produced by these conditions. Those symptoms

15

16 (Footnote Continued from Previous Page.)

17 empirical consensus that isolated confinement places prisoners at grave risk of psychological

18

harm, there are only two outlier studies that report contrary findings: Zinger, I., Wichman, C. & Andews, D. (2001) The psychological effects of 60 days in administrative segregation, Canadian

19 Journal of Criminology, 43, 47- 88 (2001) and O’Keefe, M., Klebe, K., Kelli J., Studer, A., Alysha,Sturm, K., Kristen & Leggett, W.,, William (2010) One year longitudinal study of the

20 psychological effects of administrative segregation. University of Colorado, Colorado Springs

(2010). However, in addition to the various methodological problems that plagued both studies, 21 neither is applicable here. The Zinger et al. study was limited to 60 days in isolated confinement,

22

far briefer than the cumulative stays typical in the lockdowns discussed here. The O’Keefe et al. study was based on conditions that differed significantly from these lockdowns, including a

23 graduated series of increasing privileges such as the opportunity for significant out-of-cell time and work assignments. For a discussion of the methodological problems that plagued the latter
24 study and rendered its results uninterpretable, see: Grassian, S., & Kupers, T., The Colorado

study versus the reality of supermax confinement, Correctional Mental Health Report, May/June 25 2011, 1-4; and Lovell, D. & Toch, H., Some observations about the Colorado segregation study,

26

Correctional Mental Health Report, May/June 2011, 3-4, 14. 17 Bruno M. Cormier & Paul J. Williams, Excessive Deprivation of Liberty, 11 Canadian

27

Psychiatric Association Journal 470-484 (1966), at p. 484. 18 Hans Toch, Men in Crisis: Human Breakdowns in Prisons. Aldine Pub. Co.: Chicago (1975).

28

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1 include appetite and sleep disturbances, anxiety, panic, rage, loss of control, paranoia,

2 hallucinations, and self-mutilations. Moreover, direct studies of prison isolation have

3 documented an extremely broad range of harmful psychological reactions. These effects include

4 increases in the following potentially damaging symptoms and problematic behaviors: negative

5 attitudes and affect, anxiety, withdrawal, hypersensitivity, ruminations, cognitive dysfunction,

6 hallucinations, loss of control, irritability, aggression, and rage, paranoia, hopelessness, a sense

7 of impending emotional breakdown, self-mutilation, and suicidal ideation and behavior

8 (discussed in more detail below). Correctional administrators observe these effects as well: the

9 Pelican Bay Warden testified that extended lockdowns “increase[] the anxiety and anger issues 10 within our population” and lead to increased violence.19

11

31. The risk of harm under these conditions is therefore grave. Indeed, literally all of

12 the prisoners I interviewed reported experiencing acute psychological pain and distress as a

13 result of the lockdowns to which they were subjected. The symptoms they describe are virtually

14 identical to the indices of psychological trauma and the psychopathological effects of isolation I

15 have found among solitary confinement or “supermax” prisoners, including sleep disorders, 16 anxiety reactions, and anger.20

17

(b) Degradation

18

32. The lockdowns that have been and continue to be implemented under CDCR

19 policy are degrading. They send a clear message to the affected prisoners that they are not

20 worthy of even the minimal freedoms allowed in the normal prison environment. The degraded

21 conditions under which these prisoners live serve as constant reminders of their compromised

22 and stigmatized social status and role. A diminished sense of self-worth and personal value are

23 natural consequences -- that is, like the rest of us, prisoners derive and internalize symbolic

24 meaning from the way they are treated. When they are treated in harsh and humiliating ways,

25 many come to think of themselves as deserving no more than the degradation and stigma to

26

27

19 Deposition of Gregory D. Lewis, January 24, 2013, at 131:20-132:5 20 See Haney, Mental Health Issues in Solitary, supra note 7.

28

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1 which they are being subjected. This degraded identity may be difficult or impossible to

2 relinquish when they are released from prison.

3

33. Some prisoners have special needs that intensify the degradation to which they are

4 subjected. One prisoner with disabilities, including incontinence, told me that he has been locked

5 down almost continuously for the last year and a half. He said that he is supposed to be allowed

6 to shower every day but, under lockdown conditions, he is only able to shower every three days.

7 He said: “I am being tortured. I can’t control my bowels—I need to clean myself. My cellmate

8 has to deal with my feces. I don’t even know they are there.”

9

(c) Forced idleness

10

34. Lockdowns subject large numbers of prisoners to lengthy periods of enforced

11 idleness. This idleness produces more than mere boredom. There is widespread agreement

12 among correctional experts that empty time in prison produces negative psychological and

13 behavioral effects. For example, as far back as the 1980s, the U.S. Government Accounting

14 Office noted: “Corrections officials believe that extensive prisoner idleness can lead to

15 destructive behavior and increase violence within institutions. Moreover, idleness does little to

16 prepare prisoners for re-entry into society.”

17

35. I agree with Warden Greg Lewis from Pelican Bay State Prison, who recently

18 testified that “[h]aving your inmate population programming allows them to attend school, attend

19 their work assignments, allows conflict resolution, allows them to communicate with each other, 20 and reduces the amount of violence, in my professional opinion.”21 And I agree that the reverse 21 is also true: extended lockdowns breed anger, frustration, and violence.22

22

(d) Harmful adaptations

23

36. Lengthy periods of isolation force individuals and institutions to adapt in ways

24 that are often counterproductive, and produce even more serious harm. The lockdowns change

25 the nature of the context or situation to which prisoners must adapt on a day-to-day basis. The

26

27

21 Lewis Depo. at 131:7-11. 22 See id. at 131:19-132:5

28

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1 longer someone is exposed to conditions of such severe social deprivation, the greater the length

2 of time during which problematic coping mechanisms can evolve in response. For example,

3 some prisoners find that isolation undermines their ability to interact with others. One told me: “I

4 am having a hard time around people now. My communication skills are gone. I am fearful

5 around everyone and afraid of over-reacting.” Another prisoner, who had recently come off a

6 long lockdown, told me “you don’t want to be around others; I often stay in my cell now that I

7 am allowed out.” And another said that, since the lockdowns, “even my wife says, ‘you are

8 pushing me away,’ but there are times when I can’t talk to anybody.” Others experience a

9 change in perception, which can lead to greater aggression, irritability, and anger.

10

(e) Suicidality

11

37. The greatly enhanced risk of suicide and other self-harming behavior for people

12 housed in extreme isolation is well documented.23 Correlational studies of the relationship

13 between housing type and various kinds of incident reports in prison show that self-mutilation

14 and suicide are more prevalent in isolated, punitive living conditions. For example, clinical

15 researchers Ray Patterson and Kerry Hughes attributed higher suicide rates in CDCR’s solitary

16 confinement-type units to the heightened levels of “environmental stress” that are generated by 17 the “isolation, punitive sanctions, [and] severely restricted living conditions” that exist there.24

18 These authors reported that “the conditions of deprivation in locked units and higher-security 19 housing were a common stressor shared by many of the prisoners who committed suicide.”25 In

20 addition, signs of deteriorating mental and physical health (beyond self-injury), other-directed

21

22

23

23 For example, see Lindsay M. Hayes, National Study of Jail Suicides: Seven Years Later. Special Issue: Jail Suicide: A Comprehensive Approach to a Continuing National Problem,

24 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
25 Coping, Crime and Justice, 26, 283-359 (1999). 24 Raymond Patterson & Kerry Hughes, Review of Completed Suicides in the California
26 Department of Corrections and Rehabilitation, 1999-2004, Psychiatric Services, 59, 676-682

27

(2008) at 678. 25 Ibid.

28 16

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1 violence, such as stabbings, attacks on staff, and property destruction, and collective violence are 2 also more prevalent in these units.26

3

38. One particularly devastating example took place in 2005, in one of California’s

4 juvenile prisons. After several violent attacks on staff members, the administration imposed a

5 lengthy race-based lockdown. An 18-year-old youth was found hanging in his cell after

6 spending eight weeks locked in that confined space with “virtually no exercise, education, 7 mental health treatment or other mandated services. . . .”27 According to the Inspector General,

8 “the eight weeks of isolation and the denial of mental health and other services may have 9 contributed to the Ward’s suicide.”28 He was incarcerated for car theft and had no history of

10 violence against staff and no evidence to tie him to the attacks that precipitated the lockdown; he 11 was “a follower rather than a leader.”29 The other “northern Hispanics” in the housing unit 12 remained on lockdown for six more weeks after the suicide.30

13

39. Some of the prisoners I interviewed admitted to suicidal ideation, which they

14 attributed to the deprived and frustrating conditions of the lockdowns to which they had been

15 subjected. For example, one told me that he felt on the verge of a breakdown “every other day or

16 even daily” during lockdown because being “stuck in a small, confined place gets to be too

17

18 26 For example, see Howard Bidna, Effects of Increased Security on Prison Violence,
19 Journal of Criminal Justice, 3, 33-46 (1975); K. Anthony Edwards, Some Characteristics

20

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,

21 in Bruce L. Danto (Ed.) Jail House Blues. Michigan: Epic Publications (1973); Anne Jones, SelfMutilation in Prison: A Comparison of Mutilators and Nonmutilators, Criminal Justice and

22 Behavior, 13, 286-296 (1986); Peter Kratcoski, The Implications of Research Explaining Prison
Violence and Disruption, Federal Probation, 52, 27-32 (1988); Ernest Otto Moore, A Prison 23 Environment: Its Effect on Health Care Utilization, Dissertation Abstracts, Ann Arbor, Michigan

24

(1980); Frank Porporino, Managing Violent Individuals in Correctional Settings, Journal of Interpersonal Violence, 1, 213-237 (1986); and Pamela Steinke, Using Situational Factors to

25

Predict Types of Prison Violence, 17 Journal of Offender Rehabilitation, 17, 119-132 (1991). 27 Office of the Inspector General, Special Review into the Death of a Ward on August 31, 2005,

26

at the N.A. Chaderjian Youth Correctional Facility, December 2005, at 1. 28 Id.

27

29 Id. at 3. 30 Id. at 12 n.4.

28

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1 much. You have nothing to do but dwell on it.” He went on to tell me that he thinks about suicide

2 “to make the pain go away. I sit in my cell and have nothing to take my mind off my situation,”

3 so he thinks about taking his life to end the pain that he is in.

4

(f) People with mental illness

5

40. All of these psychological risks are enhanced for people who have mental illness.

6 Mentally ill prisoners are more likely to be adversely affected by the stressors presented by these

7 lockdowns. The decreased opportunities for normal, non-pressured social interaction may

8 undermine already impaired reality testing. And the sheer stress of isolated confinement may

9 overwhelm their already fragile coping mechanisms, creating fear and anxiety in what these

10 prisoners experience as an increasingly unpredictable world. Thus, mentally ill prisoners are

11 more likely to decompensate from exposure to these lockdowns.

12

41. One prisoner who told me that he had killed his cellmate in self-defense in 1997

13 and that he suffers symptoms of post-traumatic stress disorder as a result of the experience, was

14 placed on the mental health caseload and received major psychotropic medications in the past.

15 He is nonetheless being subjected to a prolonged lockdown. He said the experience is “creating

16 some unknown madness that is ready to explode in me.” He complained that there was no 17 meaningful mental health program being provided under lockdown conditions.31

18

42. Whether or not they enter prison with pre-existing psychiatric disorders, some

19 prisoners find the severe conditions of isolated confinement to be traumatic. As a result, some

20 develop PTSD—a range of long-term trauma-related symptoms, including depression, emotional

21 numbing, anxiety, isolation, hypervigilance, and related reactions—in response to prison trauma.

22 In this regard, psychiatrist Judith Herman and others have proposed that the diagnostic category

23 of post-traumatic stress disorder be restructured to include what she has termed “complex

24
25 31 He told me that when he requested treatment for his PTSD, the clinical staff provided him with literature instead of therapy. The literature included a handout, which he showed me, that read:
26 “Looking for Trauma Treatment? The Ranch outside Nashville offers trauma treatment in the residential setting of a working horse ranch. If you or someone you love is not living the fullest
27 life because of unresolved trauma, call 855-251-4314 to talk to a recovery specialist about the Ranch at Piney River.”
28 18

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1 PTSD,” a disorder created by “prolonged, repeated trauma or the profound deformations of

2 personality that occur in captivity.” Complex PTSD can result in protracted depression, apathy,

3 and the development of a profound sense of hopelessness. For some prisoners, it represents the

4 long-term psychological cost of adapting to oppressive forms of prison confinement.

5

43. In any event, many prisoners adapt to the pains of extreme forms of imprisonment

6 by developing overt psychological symptoms; as CDCR Director Beard testified, “there are

7 people who can be put into long-term segregation and who can develop serious mental health 8 problems.”32 Others experience an exacerbation of symptoms that already exist—including

9 clinical depression, paranoia, and psychosis. As the Three Judge Court convened to examine

10 health care in California’s overcrowded prisons pointed out, quoting my expert report, “some

11 mentally ill prisoners ‘cannot handle the severe stress of locked-down confinement’ and ‘may 12 decompensate or become suicidal as a result. . . .’”33

13

44. Because this risk of harm is so grave and widely acknowledged, virtually every

14 court and every professional mental health and human rights organization that has addressed this

15 question agrees that mentally prisoners should either be totally excluded from conditions of

16 extreme isolation or, if it is absolutely necessary (and only as a last resort) to confine them there,

17 such confinement should be strictly limited in duration and modified to provide significant

18 amounts of out-of-cell time and augmented access to care. Director Beard agrees that “there are

19 people who have serious mental health problems that probably shouldn’t be put in [long-term] 20 segregation.”34 The American Psychiatric Association has issued a Position Statement on

21 Segregation of Prisoners with Mental Illness stating that

22

[p]rolonged segregation of adult inmates with serious mental illness, with rare

exceptions, should be avoided due to the potential for harm to such inmates. If an inmate

23

with serious mental illness is placed in segregation, out-of-cell structured therapeutic

activities (i.e., mental health/psychiatric treatment) in appropriate programming space

24

and adequate unstructured out-of-cell time should be permitted.

25

26

32 Deposition of Jeffrey A. Beard, April 24, 2013, at 68:21-23. 33 Coleman v. Schwarzenegger and Plata v. Schwarzenegger, -- F. Supp. 2d --, Nos. CIV S–90–

27

0520 LKK JFM P and C01–1351 TEH, 2009 WL 2430820 at *50 (Aug. 4, 2009). 34 Beard Depo. at 68:23-25.

28

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1 This statement reflects the accepted reality that mentally ill prisoners are especially vulnerable to

2 isolation and stress-related regression, decompensation, psychosis, and other mental health-

3 related symptoms and maladies, including self-harm.

4

45. Lockdowns have a doubly destructive effect on mentally ill people. They greatly

5 exacerbate the already significant stress of confinement and make it difficult if not impossible to

6 receive meaningful mental health care on an ongoing basis. One prisoner told me that lockdowns

7 prevent him from getting needed treatment while at the same time making it much harder for him

8 to deal with his substance abuse problem. Numerous others—those on the mental health

9 caseload—complained about the poor to non-existent quality of the mental health care they were

10 receiving on lockdown. One said he was getting “not very good mental health care at all. They

11 see you once every 90 days—15 minutes—‘how are you feeling, are you OK?’”

12

(g) Public safety consequences

13

46. Although my primary task is to opine about the risk to the mental and emotional

14 well-being of plaintiff class members from these prolonged lockdowns, I also believe that it is

15 important acknowledge that the risk of harm extends beyond the plaintiff class members

16 themselves: there are serious public safety risks to this practice as well.

17

47. First, because these conditions create or exacerbate anger, frustration, and feelings

18 of degradation, as well as an impaired sense of reality and limited opportunity to practice pro-

19 social behavior skills, it leads to a more dangerous population of prisoners. Warden Greg Lewis

20 of Pelican Bay gave an excellent description of how this process works: when asked about the

21 negative consequences of extended lockdowns, he explained that “you lose your communication

22 and credibility that you've established with your inmates, especially if they start to perceive that

23 we should be moving forward and we're not. Also, it increases the anxiety and anger issues

24 within our population. A large part of my population has anger control issues, and you do see a 25 rise in staff assaults with prolonged modified programs.”35

26

27 35 Lewis Depo. at 131:20-132:5. 28
20

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1

48. One tragic example illustrates this effect. In 2005, Correctional Officer Manuel

2 Gonzalez was killed at the California Institution for Men. The prisoner charged with his murder

3 was seriously mentally ill, and at the time of the death was housed in a general population unit

4 that had been locked down for five weeks. Conditions in the unit were essentially the same as

5 those at issue in this case, including “cell feeding, no recreational yard, escorted inmate

6 movement, and a requirement that Black inmates be escorted separately from White and 7 Hispanic inmates.”36 Although according to the OIG report it is clear that numerous other factors

8 were at play in this event, there can be little doubt that housing this severely mentally ill person

9 under extended lockdown conditions exacerbated the risk that he presented to staff and other

10 prisoners for decompensation and violence.

11

49. Further, far from being a boon to prison officials, lockdowns are actually a

12 management disaster. During lengthy lockdowns, administrators have few incentives or positive

13 rewards at their disposal with which to manage and control prisoner behavior. Administrators

14 are rarely in a position to offer well-behaved prisoners meaningful opportunities for personal

15 growth or skill development, or participation in engaging activities or thriving organizations as

16 “carrots” to reinforce and shape prisoner behavior. Lacking carrots, prison administrators rely

17 increasingly on “sticks.” This leads to increasingly negative forms of institutional control and the

18 use of even harsher discipline; punishment tends to escalate as a result.

19

50. The use of more punitive policies and procedures to maintain order and control

20 means that custody staff increasingly rely on security hardware and surveillance technology to

21 control prisoner behavior. The extent of their dependence on the technology and implements of

22 control has concerned some penologists, who worry about the “de-skilling” of correctional

23 officers—the fact that interpersonal skills atrophy in prison systems where problems are solved

24

25

26
27 36 Office of the Inspector General, Special Review Into the Death of Correctional Officer Manuel A. Gonzalez, Jr. on Jan. 10, 2005, at the California Institution for Men, March 16, 2005, at 30.
28 21

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1 and conflict defused increasingly by a reflexive tendency to lock up or lock down problematic or 2 challenging prisoners or the entire housing units in which they reside.37

3

51. Because prisoners lack sufficient programming and treatment on lockdown, they

4 are more likely to re-enter the free society no better—and often much worse—than they left. This

5 is especially true for mentally ill prisoners who, in extreme cases, may become chronically or

6 even permanently disabled. Mentally ill prisoners who find that their psychiatric condition is

7 exacerbated by the stress and deprivation of lockdown, and who receive inadequate mental

8 health care because locked-down conditions preclude it, are more likely to be released back into

9 society with significantly compromised chances for stabilization and successful reintegration.

10

52. In addition, prisoners who are traumatized by extended race-based lockdowns

11 may leave prison with psychiatric disorders that they did not have or manifest as clearly at the

12 outset of their prison sentences. That is, some number of prisoners will enter prison without a

13 documented history of mental illness but, because of the severe deprivations, profound

14 indignities, and dangerous conditions they confront, develop serious trauma-related disorders

15 that may require mental health treatment both in prison and later in free society. In the absence of

16 such treatment, these prisoners are prime candidates to re-offend.

17

53. Prisoners are not the only ones scarred by the experience of lengthy lockdowns

18 that demonize large numbers of people based solely on racial identity. When such lockdowns

19 are chronic and embedded in prison management plans, officials lose the ability to assess and

20 respond to perceived threats in a rational manner. The lockdowns effectively recalibrate their

21 responses to perceived threats, in a downward direction. We are all less safe.

22

3. The lockdowns at issue in this case are a particularly damaging,

pernicious form of isolation

23

54. As the above paragraphs indicate, isolation places prisoners at significant risk of

24

grave psychological harm. It is painful and potentially harmful, especially for prisoners with

25

26
27 37 See, e.g., Lewis Depo. at 131:20-24 (on extended lockdowns, “you lose your communication and credibility that you've established with your inmates”).
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1 special needs, such as those who are mentally ill. However, there are several unique aspects to

2 the kind of isolation under review here that greatly exacerbate the pain and harm.

3

(a) Unpredictability

4

55. Extreme punishment is more traumatic when it appears to be inflicted for no

5 reason; that is, when it is imposed on persons arbitrarily, irrespective of their own behavior. It

6 creates anxiety—victims never know and cannot control when it is going to occur and when it is

7 going to end. Uncontrollable punishment or pain also can lead to “learned helplessness”—a

8 syndrome whereby people come to believe that nothing they do can affect outcomes or 9 consequences in their lives.38 In fact, many CDCR lockdowns occur in such a way that prisoners

10 do not know when they are likely to happen or what to do to avoid them. Indeed, they are beyond

11 personal control because the lockdowns are based on who the prisoners are rather than what they

12 have done; prisoners believe, and correctly so, that they are literally helpless to avoid them.

13 Moreover, they are helpless to affect the course or duration of the lockdown; there is nothing

14 they can do to bring about an “unlock” because, again, the lockdown has little or nothing to do

15 with their individual behavior and everything to do with their identity—specifically, their racial

16 identity, something that is obviously entirely beyond their control.

17

56. I believe that the uncertainty and uncontrollability that surrounds these CDCR

18 lockdowns—when they will be commenced and how long they will last—add to the painfulness

19 of the experience. Prisoners cannot depend on the present or plan for the future. When they are

20 taken off lockdown, they never know (and cannot influence) when one will begin again. When

21 they are on lockdown, they never know (and cannot influence) when it will end. Many also

22 cannot find relief even when released from lockdown because of the tension (born of uncertainty

23 and uncontrollability) that remains. Past experience shows that the lockdown can easily be re-

24
25 38 For example, see: Evans, G., & Lepore, S., Psychosocial processes linking the environment and mental health, in G. Evans & S. Lepore (Eds.), The Impact of the Environment on
26 Psychiatric Disorder (pp. 127-157). New York: Routledge (2008); Maier, S., Watkins, L., Learned Helplessness. Washington, DC: American Psychological Association (2000); and
27 Paterson, C., Maier, S., & Seligman, M. Learned Helplessness: A Theory for the Age of Personal Control. New York: Oxford University Press (1993).
28 23

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1 established based on behavior by others. Thus, prisoners are tense and anxious even after release

2 from lockdowns. The effects linger long after the conditions are improved. One prisoner told

3 me “every time we get a program, I am sure it’s going to end and we’ll get pent up in our cells.

4 When we get out [of lockdown] we are scared we are going to go right back.”

5

(b) Fundamental unfairness

6

57. Beyond unpredictability, punishment that is inflicted irrespective of one’s own

7 behavior feels especially unfair and therefore more painful because it is “undeserved.”

8 Departments of “correction” exist not just to punish but, presumably, also to correct behavior by

9 modeling the principled relationship between behavior and consequences. Indeed, people are put

10 in prison because they have personally violated rules and are required to personally experience

11 the consequences of their rule-breaking behavior. The same lesson is supposed to be taught

12 inside prisons: personally follow the rules or personally suffer the consequences.

13

58. Through this modeling of act and consequence, prisoners are meant to learn

14 principles of just desserts and come to appreciate the rewards of pro-social behavior. Prison

15 systems repeatedly enact these lessons not just by enforcing a network of rules but also doing so

16 through a transparent process whereby carefully modulated punishments are imposed following

17 the finding of personal responsibility for disciplinary infractions. Prisoners are given the right to

18 a hearing, and if they are found not guilty—i.e., not personally responsible—no punishment is

19 imposed (just as in the larger society). Yet the CDCR’s lockdown practice is fundamentally

20 “unprincipled” and flies in the face of this structure. The prolonged, race-based lockdowns

21 clearly violate the principle of individual accountability—taking responsibility for and suffering

22 the consequences of one’s own choices and actions. They profoundly undercut the disciplinary

23 model that is intended to maintain order in the prison as well as the fundamental goals of the

24 penal system. As Mr. Abdullah told me, “Prison is supposed to be a microcosm of society. You

25 are supposed to be responsible for what you do as an individual. Your punishment should not

26 come from what somebody else does, somebody you don’t even know.”

27

59. Another prisoner told me that he constantly felt that he was on the verge of an

28 impending breakdown during a prolonged lockdown, as though he was going to “lose it” at any 24

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1 moment: “I’m being punished for no reason with no explanation.” Another prisoner, who had

2 been in the CDCR for about 14 years and estimated that he had experienced more than two

3 dozen race-based lockdowns over that time period, said: “I’m not working, just sitting in my cell

4 all day, doing nothing, all because my race is on lockdown. I don’t even go on the yard where

5 this [event] happened, yet I was punished.” Another said: “When you come into a lockdown unit,

6 you get nothing—no exercise, no yard, no canteen, no phone calls, over nothing I had done. That

7 was the point I couldn’t handle.” Another prisoner described the bizarrely arbitrary nature of the

8 process: “When I got here, they sent me right from [Reception] and they told me, ‘yeah, you are

9 going to B Yard. You are at war with the Southern Mexicans, you are on lockdown and you are

10 going to be on lockdown for quite a while.’”

11

(c) Pernicious racism

12

60. Lockdowns in California prisons are in large part race-based. According to the

13 spreadsheet I reviewed, at least half of the lockdowns at most CDCR prisons over the last several

14 years were based on race, and nearly every prison had at least one race-based lockdown in this

15 timeframe. Of course, the race-based nature of the lockdowns adds to their arbitrariness and

16 fundamental unfairness: people can choose to follow the rules and to refrain from violence, but

17 they cannot choose to be Black, or White, or Latino. And race-based lockdowns have a

18 pernicious element that makes the nature of their arbitrariness even more hurtful and particularly

19 destructive: the racially derogatory message that they directly and unmistakably communicate.

20

61. CDCR subjects plaintiff class members to extreme punishment based on group

21 membership that is impossible for them to change, on the basis of a characteristic that is central

22 to their personal identities, and is rooted in a legacy of social and historical conflict in which the

23 criminal justice system was used as an instrument of oppression wielded against certain racial 24 groups (especially African Americans).39 Mr. Abdullah was eloquent about the mark of racial

25 oppression that the lockdowns represent: “It is racism. You feel, ‘here we go again.’ It is one of

26
27 39 For example, see K. Muhammad, The Condemnation of Blackness: Race, Crime and the Making of Modern Urban America. Cambridge, MA: Harvard University Press (2010).
28 25

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1 the last bastions of America’s past. They do it to us because of our race and there are no other

2 places where they can do that officially.”

3

62. Collective punishment is even more damaging when it is rooted in race

4 discrimination: numerous studies have shown that racial stigma is pernicious and damaging. The 5 experience of racial discrimination—“unfair, differential treatment on the basis of race”40—is

6 psychologically painful and destructive in many important ways. There is extensive research that 7 documents its uniquely harmful effects, including heightened levels of psychological distress,41 8 depression and anxiety,42 negative mood and lowered self-esteem,43 and mental illness,44 in 9 addition to undermining the physical health of its victims.45 Indeed, the experience of racial

10 discrimination is so powerful that mental health professionals regard it as a form of “traumatic 11 stress”46—even as violence47—that can undermine behavioral adjustment in a wide range of 12 settings48 and even lead to increased rates of criminal behavior.49

13

14 40 Burrow, A., Wong, A., Racial identity as a moderator of daily exposure and reactivity to racial discrimination, 9 Self and Identity 383, 384 (2010).
15 41 Sellers, R., & Shelton, J., The role of racial identity in perceived racial discrimination, 84 Journal of Personality and Social Psychology 1079-1092 (2003); Pieterse, et al., Perceived

16 racism and mental health among Black American Adults: A meta-analytic review, 59 Journal of Counseling Psychology 1-9 (2012).
17 42 Banks, K., & Kohn-Wood, L., The influence of racial identity profiles on the relationship between racial discrimination and depressive symptoms, 33 Journal of Black Psychology 331-

18

354 (2007). 43 Broudy, et al., Perceived ethnic discrimination in relation to daily moods and negative social

19 interactions, 30 Journal of Behavioral Medicine 31-43 (2007); Greene, M., Way, N., & Pahl, K., Trajectories of perceived adult and peer discrimination among Black, Latino, and Asian

20 American adolescents: Patterns and psychological correlates, 42 Developmental Psychology 218238 (2006).
21 44 Williams, Neighbors, & Jackson, Racial/ethnic discrimination and health: Findings from community studies, 93 American Journal of Public Health 200-218 (2003); Williams, D., &

22 Williams-Morris, R., Racism and mental health: The African American experience, 5 Ethnicity and Health 243-268 (2000).
23 45 Guyll, M., Matthews, K., & Bromberger, J., Discrimination and unfair treatment: Relationship to cardiovascular reactivity among African American and European American women, 20 Health

24

Psychology 315-325 (2001). 46 For example, see Carter, R., Racism and psychological and emotional injury: Recognizing and

25 assessing race-based traumatic stress, 35 The Counseling Psychologist 13-105 (2007); Wei, M., Wang, K., Heppner, P., & Du, Y., Ethnic and mainstream social connectedness, perceived racial

26 discrimination, and posttraumatic stress symptoms, 59 Journal of Counseling Psychology 486493 (2012).
27 47 Helms, J., Guerda, N., & Green, C., Racism and ethnoviolence as trauma: Enhancing professional and research training, 18 Traumatology 65-74 (2011); Sanders-Phillips, K., Racial

28

(Footnote Continued on Next Page.)

26

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1

63. Racial identity is very much central to prisoners’ experience of these lockdowns.

2 The fact that they are explicitly punished because of their race gnaws at the prisoners I

3 interviewed – it burns within them as an attack on their identity. Virtually every African

4 American prisoner I spoke with said the same thing—that the lockdowns are not only race-based

5 but racist, that is, directed at them because they are Black. As one of them put it:

6

Because I’m Black, I’ve got to be locked down in a war zone. I resisted but it didn’t

matter…They treat the whole Black race as a “gang.” I’m not affiliated. I’m from

7

Oakland, but I am treated as though I am a Crip or Blood. But I’m unaffiliated. I have

nothing to do with any of these racial things. But I’m being punished just for being Black.

8

California prisons are already racially charged environments. Race is used officially as a

9

clumsy and overbroad proxy for gang membership, and is overtly labeled and openly used as the

10

basis for a range of correctional decisions. For example, in many housing units, prisoners’ races

11

are written on color-coded cards prominently displayed on their cell doors and on the master

12

housing rosters in the officers’ stations. Prison officials routinely and carefully track how many

13

prisoners of each race are in various housing units and work assignments.

14

64. As extraordinary and extreme (and unheard of) as this is, CDCR’s lockdown

15

policy goes even further. Imposing extreme punishments for prolonged periods of time—

16

lockdowns—on the basis of racial categories alone, exacerbates the indignity of the racial

17

categorizations that the CDCR seems so invested in. To the extent that the heightened sensitivity

18

19 (Footnote Continued from Previous Page.)

20 discrimination: A continuum of violence exposure for children of color, 12 Clinical, Child, and Family Psychology Review 174-195 (2009).
21 48 Dotterer, A., McHale, S., & Crouter, A., Sociocultural factors and school engagement among African American youth: The roles of racial discrimination, racial socialization, and ethnic

22 identity, 13 Applied Developmental Science 61-73 (2009); Prelow, H., Mosher, C., & Bowman, M., Perceived racial discrimination, social support, and psychological adjustment among African

23

American college students, 32 Journal of Black Psychology 442-454 (2006). 49 Burt, C., Simons, R., & Gibbons, F., Discrimination, ethnic-racial socialization, and crime: A

24 micro-sociological model of risk and resilience, 77 American Sociological Review 648-677 (2012); Caldwell, et al., Discrimination and racial identity as risk or protective factors for violent

25 behaviors in African American young adults, 33 American Journal of Community Psychology 91-195 (2004); Gerrard, et al., Coping with racial discrimination: The role of substance abuse, 26

26 Psychology of Addictive Behaviors 550-560 (2012); Gibbons, et al., The erosive effects of racism: Reduced self control mediates the relation between perceived racial discrimination and

27 substance use in African American adolescents, 102 Journal of Personality and Social Psychology 1089-1104 (2012).

28

27

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1 to race is based in part on concerns over race-based prison gangs, the institutional investment in

2 and constant use of racial categories is clearly counter-productive, as it seems to heighten the

3 importance of racial differences and legitimize the racialized nature of the gangs.

4

65. Further, locking people in extreme isolation because of their race forces them to

5 think in racial categories when they might not have otherwise done so. Some of the prisoners I

6 interviewed reported that they had made a conscious effort to avoid gang membership or

7 affiliation in prison; some have renounced it after early involvement, a decision that can be

8 difficult and dangerous. Yet they felt that they had been betrayed and dishonored by CDCR

9 because they were nonetheless subjected to painful collective punishment that was based on their

10 race, in the absence of any evidence of misbehavior or gang membership. Many prisoners have

11 told me that this kind of heavy-handed treatment actually serves as a powerful recruiting device

12 for gangs; it intensifies racial awareness, racial identification, and racial divisions among people

13 who otherwise might have tried to stay away from prison racial politics entirely.

14

(d) Inadequate infrastructure

15

66. One characteristic of the lockdowns at issue in this case is that they take place in

16 normal general population housing units. This distinguishes them from many forms of solitary

17 confinement, where specialized units have been constructed for this purpose, procedures are in

18 place to maintain the isolated confinement to which the unit is dedicated, and staff have been

19 trained to operate isolated programs. The units where lockdowns occur were not designed for

20 extended isolated confinement with minimal or no programming. The procedures are more

21 makeshift and ad hoc, which sometimes results in even less programming than in the specially

22 designed in-prison lock-up units: administrative segregation (Ad Seg) or Security Housing Units

23 (SHU). As one prisoner put it: “I’ve done SHU time. Lockdowns are pretty much the same

24 thing—a lockdown is a lockdown. In fact, when they lock us down, we get no yard, whereas in a

25 SHU you do. Sometimes the guys who started it, who have gone to SHU [have yard] while those

26 of us who had nothing to do with it are on lockdown and have no yard.”

27

67. Two of the prisoners I interviewed had been on prolonged lockdowns when I first

28 toured their housing unit but, when I returned, they had been sent to Ad Seg units. I was 28

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1 surprised to find that they believed that their current Ad Seg housing was a significant

2 improvement. One of them, who told me that he had been “getting incredibly stressed out on

3 lockdown,” said that, as bad as Ad Seg was, it was better than being on lockdown status in

4 virtually all respects: “You get your store, your yard—it’s much better than lockdown. We get

5 showers every other day, meals are hot, they were not on lockdown.” A second prisoner told me

6 he was frustrated that he had been transferred to Salinas Valley from Pelican Bay, allegedly for

7 his good behavior there: “I got ‘rewarded’ for good behavior at Pelican Bay by being sent here—

8 on lockdown!” But now that he was in Ad Seg, he much preferred it:

9

We at least know we are getting laundry exchange, in lockdown we get no laundry

exchange. Some guys go for months or a year. In Ad Seg we get canteen, buy hygiene

10

[items]. On lockdown, we get none. In Ad Seg, you get your shower, even though it’s

brief, every other day. On lockdown it can be 4 days in between. We get yard in Ad

11

Seg—that’s the big thing. To get outside 2-3 hours every other day. We never got out on

lockdown. 12

I want to emphasize that these favorable comparisons are certainly not testament to the benign

13

nature of Ad Seg but rather to the extreme harshness and indignities of CDCR’s prolonged

14

lockdowns. In my experience, the Ad Seg units in the CDCR are especially deprived and

15

degrading environments. The fact that lockdowns are regarded by prisoners as worse in many

16

respects underscores the magnitude of the harms that plaintiff class members are being subjected

17

to—harms that are all the more unfair and unjustifiable because they are being inflicted on the

18

basis of events and for reasons that are no fault of their own and beyond their control.

19

(e) Programmers have more to lose

20

68. Many of the prisoners who are being subjected to these forms of extreme

21

lockdown-based isolation had been engaged in treatment and programming activities before the

22

lockdowns began. These are people who have made concerted efforts to remain engaged in self-

23

help and self-improvement—precisely the kind of engagement in prison that is encouraged and

24

that is known to predict post-prison success. Yet, through no fault of their own, they lose all

25

meaningful programming and treatment opportunities and are treated in exactly the same way as

26

those prisoners in SHU or Ad Seg who have willfully engaged in disciplinary infractions and

27

voluntarily relinquish their access to these activities. These prisoners—the “programmers”—

28

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1 have a great deal more to lose, feel the injustice of the lockdowns more acutely, and are precisely

2 the group that CDCR should want to encourage and support rather than alienate.

3

69. To be sure, termination of the access to programs, the interruption of work and

4 school, and barriers to treatment occur in largely the same way during lockdowns as they do in

5 the SHU and Ad Seg. However, in some ways it is more painful for programming and well-

6 behaved prisoners who had achieved a higher level of privileges to have them snatched away and

7 to be placed in extreme deprivation. Prisoners who have found a way to tolerate prison life in a

8 positive and productive way, and fashion whatever kind of meaningful life and healthy

9 interpersonal interactions are possible in the course of their confinement, suffer greater stress and

10 more resentment when the things they have worked hard to attain are taken away. The

11 experience of relative deprivation and the increased frustration over having hard-earned progress

12 and self-improvement thwarted in this way leads to greater anger and anxiety.

13

70. In fact, several of the prisoners I talked to actually had been transferred to a new

14 prison because they were doing well—they were lowering their classification scores and on the

15 verge of qualifying for a lower custody-level institution, or were ostensibly being moved to a

16 prison that would afford more programming opportunities or give them closer access to their

17 families. Yet, when they arrived at their new institution, ostensibly as a “reward” for doing well,

18 they found that the housing unit was already on lockdown, and none of the promised or hoped

19 for advantages were available. The irony of being “rewarded” for their good behavior by being

20 treated as bad or worse in some ways than prisoners in SHU or Ad Seg who were placed in these

21 disciplinary units as punishment was not lost on them and intensified their resentment.

22

4. Mr. Mitchell has been harmed by his prolonged experience of race-

based lockdowns

23

71. I interviewed Robert Mitchell on May 3, 2013, at Folsom State Prison. In many

24

ways, Mr. Mitchell’s case exemplifies the issues already described. Mr. Mitchell told me that he

25

was raised in a multi-racial environment where he had interacted with people of all ethnicities

26

and backgrounds. He did not want to be racially classified in the CDCR, but was nonetheless. He

27

28 30

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1 was taken aback and humiliated by the racial categorizations, especially by the race-based

2 lockdown policy to which he and other African Americans, especially, were subjected.

3

72. Although he was explicitly “non-affiliated,” he began to experience race-based

4 lockdowns very early in his tenure in the CDCR and repeatedly thereafter. When he was

5 transferred to High Desert from Corcoran, he was told that, in the unit where he was being

6 housed, “the Blacks were on lockdown, had been for a while, and would be” for the foreseeable

7 future. Obviously, he had no involvement in the event that had precipitated the lockdown, but

8 was punished for it anyway. He described a practice that a number of other prisoners also

9 recounted to me—lockdowns ostensibly being “ended” only to be resumed the very next day,

10 sometimes for reasons that appeared vague and unsubstantiated.

11

73. Mr. Mitchell had medical problems caused by a fall that he had suffered in his

12 cell, early in his prison term. The condition worsened and became chronic, and the lockdown-

13 caused lack of movement and access to outside yard exacerbated it. He tried to address this

14 problem through the grievance process, but to no avail. Because of the lockdowns, he said, he

15 could not fully perform the physical therapy that was prescribed by the medical staff who treated

16 him and that, too, has been the source of not only physical but psychological pain and suffering.

17 He feels he has deteriorated physically as a result of punishment and restrictions that were

18 imposed for things he had no role in and over which he had no control. The lack of physical

19 therapy apparently caused or contributed to a neurological disorder from which he still suffers.

20

74. Mr. Mitchell continued to protest the policy, to complain about the differential

21 and discriminatory treatment, and to do what he could to extricate himself from it. As he put it,

22 “I told them, don’t classify me as African American. I don’t want to be locked down because of

23 my race, so change my race (because I can’t change it myself and I don’t want to suffer because

24 of it).” He complained that he and other Black prisoners were suffering for things other people

25 had done. At times he would say, “I don’t even know these people, why am I locked down?” but

26 never got an explanation. He told me he suffered migraine headaches, disordered sleep, and

27 anxiety attacks as a result of the lockdown. In addition, he suffers anger and resentment: “I am

28 angry all the time. I try to control it but this has all changed me.” 31

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1

75. In fact, Mr. Mitchell reported that his lockdown experiences had generated deep

2 racial animosities that he had never had before: “I’d look out and see white guys walking around

3 with swastikas tattooed on themselves, getting packages and going to yard, and it made me angry

4 and hateful and confrontational.” He told me that the anger and hatred festered so much that it

5 led to anxiety attacks and to fear: “I hate other groups now like never before—they [the CDCR]

6 created this, it isn’t me, I was never like this before, and I don’t want to feel this way when I get

7 out.” He said that he sought out mental health staff and has expressed these concerns to

8 psychiatrists at Folsom. Mr. Mitchell told me: “I am worried about what I am going to do on the

9 streets. It’s gotten to the point where I don’t even want to be with people…”

10

76. The symptoms Mr. Mitchell describes, including his headaches, sleep disorder,

11 anxiety, and increased anger and animosity are consistent with the symptoms commonly found

12 among prisoners experiencing prolonged isolation. In my opinion, these symptoms are likely a

13 result of the lengthy race-based lockdowns that he suffered.

14

B. California’s practice of frequent, extended lockdowns impedes access to

mental health care 15

77. According to CDCR Secretary Jeff Beard, in testimony before the Three Judge

16

Court convened to address California’s overcrowding crisis, lengthy lockdowns in California

17

prisons “impact upon your ability to properly deliver any service within an institution, including

18 mental health. . . .”50 The U.S. Supreme Court agreed: California’s lockdowns “impede the

19 effective delivery of care.”51 The Court gave examples: “[s]ome programming for the mentally

20

ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the

21 delivery of psychotropic medications.”52

22

23

24

25

50 Coleman v. Schwarzenegger and Plata v. Schawarzenegger, 2009 WL 2430820 at *50. 51 Brown v. Plata, -- U.S. --, 131 S. Ct. 1910, 1934 (2011).

26 52 Id.; see also Coleman v. Schwarzenegger and Plata v. Schwarzenegger, 2009 WL 2430820 at

* 50 (“[i]nmates frequently cannot leave their cells to attend necessary treatment programs. . . .

27 Additionally, lockdowns prevent staff from supervising the intake of psychotropic medications [because medications are distributed through food ports in locked cell doors]”).

28

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1

78. There is evidence that lockdowns continue to impede access to mental health care.

2 For example, 345 prisoners missed mental health appointments at Salinas Valley State Prison in 3 October 2012 due to a lockdown or modified program.53 Also in October 2012, mental health 4 appointments were missed for 86 prisoners at Kern Valley State Prison54 and 59 prisoners at 5 CSP-Lancaster due to a lockdown or modified program.55 At Pelican Bay, 15 mental health 6 appointments were missed due to lockdowns in the same time period.56 These numbers are a

7 small window into this problem – I was provided with only a limited number of documents

8 regarding access to care at four prisons during the month of October 2012 and one prison in June

9 2012. I do not know the methodology used to gather this data. However, the fact that so many

10 appointments were missed is very disturbing, and a clear indication that the serious problems

11 described by Secretary Beard and found by the Supreme Court have not abated for these

12 prisoners in the subsequent two years.

13

79. A number of the prisoners whom I interviewed who were on the mental health

14 caseload confirmed the adverse impact that lockdowns were having on their treatment. They

15 described their clinical contacts as perfunctory, limited mostly to brief cell-front observations

16 and 15 minute “check ins” every 90 days that consisted of little more than “how are you?” and a

17 reminder to request an appointment if they were having “problems.” Otherwise, the patients are

18 confined to their cells, with no outlets for their stress and tension, no regular and meaningful

19 clinical contact, and no possibility whatsoever to attend therapeutic groups.

20

80. It is perhaps necessary to point out why lockdowns impede access to health care.

21 It would seem reasonable to assume that health care access is actually easier to deliver when all

22 prisoners are in exactly the same place all the time. Scheduling should be a simple matter, as

23 should medication delivery. This is not in fact the case, however. Mental health monitoring and

24 care, especially, is difficult to accomplish cell-front. Prisoners are within earshot of one another

25

26

53 MITCHELL003743. 54 MITCHELL001166.

27

55 MITCHELL003737. 56 MITCHELL006658.

28

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1 and are reluctant to reveal sensitive psychological concerns. In addition, because prisoners do

2 virtually nothing but stay inside their cells during lockdowns—for months at a time—there are

3 few if any opportunities for staff to monitor or even notice all but the most egregious changes in

4 their behavior. (There is, in a sense, no behavior to monitor and no changes to notice.) Taking

5 prisoners out of the housing units during lockdown requires additional staff to serve as escorts.

6 But they are typically unavailable in locked-down units that have not been given additional

7 “access to care” officers to accomplish this.

8

81. All of these things mean that there is a real danger that mentally ill prisoners will

9 get “lost” or ignored in these units. As I say, their activity is so restricted that unit staff have so 10 little opportunity to genuinely interact with them or observe them behave.57 Even rounding by

11 mental health staff can become little more than a routine and uninformative “check-in” or

12 “breeze-by” that fails to uncover newly emerging or worsening mental health conditions. As a

13 result, mentally ill patients may languish in the course of lockdowns without being identified,

14 even as their psychological conditions deteriorate even further.

15

16

17

18

19

20

21 57 A CDCR clinician has described concerns about the way that prisoners’ suicide risk increases

during the course of their time in segregation this way: “The initial mental health screening may 22 not identify any concerns upon admission and this would be a correct assessment. However, as

23

the prisoner sits in his cell thinking, he may eventually come to understand his predicament. Since the situation is not static but is constantly changing, the initial assessment may not be

24 correct on the following day. As the prisoner begins to analyze how [the circumstances leading to his segregation placement] will impact many aspects of his life, his thoughts and emotions will
25 begin to change. Thus, the ‘life span’ and reliability of these mental health screens and suicide

risk evaluations are very short in these types of fluid situations. This might explain why suicides 26 still occur despite prisoners passing these screens and all of the efforts by mental health and

27 custody staff.” H. Sánchez, Suicide Prevention in Administrative Segregation Units: What is Missing, Journal of Correctional Health Care, 00(0) 1-8 (2013), p. 3.

28

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Appendix A

CURRICULUM VITAE

Craig William Haney Professor of Psychology Department of Psychology University of California, Santa Cruz 95064

home address:
phone: fax: email:

317 Ocean View Ave. Santa Cruz, California 95062 (831) 459-2153 (831) 425-3664 psylaw@ucsc.edu

PREVIOUS EMPLOYMENT

1985-present

University of California, Santa Cruz, Professor of Psychology

1981-85

University of California, Santa Cruz, Associate Professor of Psychology

1978-81

University of California, Santa Cruz, Assistant Professor of Psychology

1977-78

University of California, Santa Cruz, Lecturer in Psychology

1976-77

Stanford University, Acting Assistant Professor of Psychology

EDUCATION 1978 1978 1972 1970

Stanford Law School, J.D. Stanford University, Ph.D. (Psychology) Stanford University, M.A. (Psychology) University of Pennsylvania, B.A.

1

HONORS AWARDS GRANTS

2012 2011 2009 2006
2005
2004

Appointed to National Academy of Sciences Committee to Study the Causes and Consequences of High Rates of Incarceration in the United States.
Invited Witness, United States Senate, Judiciary Committee.
Edward G. Donnelly Memorial Speaker, University of West Virginia Law School.
Nominated as American Psychological Foundation William Bevan Distinguished Lecturer.
Psi Chi “Best Lecturer” Award (by vote of UCSC undergraduate psychology majors).
Herbert Jacobs Prize for Most Outstanding Book published on law and society in 2005 (from the Law & Society Association, for Death by Design).
Nominated for National Book Award (by American Psychological Association Books, for Reforming Punishment: Psychological Limits to the Pains of Imprisonment).
“Dream course” instructor in psychology and law, University of Oklahoma.
Annual Distinguished Faculty Lecturer, University of California, Santa Cruz.
Arthur C. Helton Human Rights Award from the American Immigration Lawyers Association (co-recipient).
Scholar-in-Residence, Center for Social Justice, Boalt Hall School of Law (University of California, Berkeley).
“Golden Apple Award” for Distinguished Teaching, awarded by the Social Sciences Division, University of California, Santa Cruz.
National Science Foundation Grant to Study Capital Jury Decisionmaking

2

2002
2000
1999 1997 1996 1995 1994 1992 1991

Santa Cruz Alumni Association Distinguished Teaching Award, University of California, Santa Cruz.
United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and LowIncome Communities” Project.
American Association for the Advancement of Science/American Academy of Forensic Science Project: “Scientific Evidence Summit” Planning Committee.
Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).
Invited Participant White House Forum on the Uses of Science and Technology to Improve National Crime and Prison Policy.
Excellence in Teaching Award (Academic Senate Committee on Teaching).
Joint American Association for the Advancement of ScienceAmerican Bar Association Science and Technology Section National Conference of Lawyers and Scientists.
American Psychology-Law Society Presidential Initiative Invitee (“Reviewing the Discipline: A Bridge to the Future”)
National Science Foundation Grant to Study Capital Jury Decisionmaking (renewal and extension).
National Science Foundation Grant to Study Capital Jury Decisionmaking.
Teacher of the Year (UC Santa Cruz Re-Entry Students’ Award).
Gordon Allport Intergroup Relations Prize (Honorable Mention)
Excellence in Teaching Convocation, Social Sciences Division
Outstanding Contributions to Preservation of Constitutional Rights, California Attorneys for Criminal Justice.
Psychology Undergraduate Student Association Teaching Award
SR 43 Grant for Policy-Oriented Research With Linguistically Diverse Minorities
Alumni Association Teaching Award (“Favorite Professor”)

3

1990

Prison Law Office Award for Contributions to Prison Litigation

1989

UC Mexus Award for Comparative Research on Mexican Prisons

1976

Hilmer Oehlmann Jr. Award for Excellence in Legal Writing at Stanford Law School

1975-76 Law and Psychology Fellow, Stanford Law School

1974-76 Russell Sage Foundation Residency in Law and Social Science

1974

Gordon Allport Intergroup Relations Prize, Honorable Mention

1969-71 University Fellow, Stanford University

1969-74 Society of Sigma Xi

1969

B.A. Degree Magna cum laude with Honors in Psychology

Phi Beta Kappa

1967-1969 University Scholar, University of Pennsylvania

UNIVERSITY SERVICE AND ADMINISTRATION

2010-present 2010-present 2009 2004-2006 1998-2002 1994-1998 1992-1995 1995 (Fall) 1995-1996

Director, Legal Studies Program Director, Graduate Program in Social Psychology Chair, Legal Studies Review Committee Chair, Committee on Academic Personnel Chair, Department of Psychology Chair, Department of Sociology Chair, Legal Studies Program Committee on Academic Personnel University Committee on Academic Personnel (UCAP)

4

1990-1992 1991-1992
1984-1986

Committee on Academic Personnel
Chair, Social Science Division Academic Personnel Committee
Chair, Committee on Privilege and Tenure

WRITINGS AND OTHER CREATIVE ACTIVITIES IN PROGRESS

Books:
Context and Criminality: Social History and Circumstance in Crime Causation (working title, in preparation).
Articles:
“The Psychological Foundations of Capital Mitigation: Why Social Historical Factors Are Central to Assessing Culpability,” in preparation.

PUBLISHED WRITINGS AND CREATIVE ACTIVITIES

Books

2006

Reforming Punishment: Psychological Limits to the Pains of Imprisonment, Washington, DC: American Psychological Association Books.

2005

Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press.

Monographs and Technical Reports

1989

Employment Testing and Employment Discrimination (with A. Hurtado). Technical Report for the National Commission on Testing and Public Policy. New York: Ford Foundation.

Articles in Professional Journals and Book Chapters

5

2012 2011
2010

“Politicizing Crime and Punishment: Redefining ‘Justice’ to Fight the ‘War on Prisoners,’” West Virginia Law Review, 114, 373-414.
“Prison Effects in the Age of Mass Imprisonment,” Prison Journal, in press.
“The Pains of Imprisonment: Prisonization and the Psychological Consequences of Incarceration,” in J. Petersilia & K. Reitz (Eds.), Oxford Handbook of Sentencing and Corrections (pp. 584-605). New York: Oxford University Press.
“The Perversions of Prison: On the Origins of Hypermasculinity and Sexual Violence in Confinement,” American Criminal Law Review, 48, 121-141. [Reprinted in: S. Ferguson (Ed.), Readings in Race, Gender, Sexuality, and Social Class. Sage Publications (2012).]
“Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the ‘Empathic Divide’” (with Mona Lynch), Law and Society Review, 45, 69-102.
“Getting to the Point: Attempting to Improve Juror Comprehension of Capital Penalty Phase Instructions" (with Amy Smith), Law and Human Behavior, 35, 339-350.
“Where the Boys Are: Macro and Micro Considerations for the Study of Young Latino Men’s Educational Achievement” (with A. Hurtado & J. Hurtado), in P. Noguera & A. Hurtado (Eds.), Understanding the Disenfranchisement of Latino Males: Contemporary Perspectives on Cultural and Structural Factors (pp. 101-121). New York: Routledge Press.
“Looking Across the Empathic Divide: Racialized Decision-Making on the Capital Jury” (with Mona Lynch), Michigan State Law Review, 2011, 573-608.
“Demonizing the ‘Enemy’: The Role of Science in Declaring the ‘War on Prisoners,’” Connecticut Public Interest Law Review, 9, 139-196.
“Hiding From the Death Penalty,” Huffington Post, July 26, 2010 [www.huffingtonpost.com/craig-haney/hiding-from-the-deathpen-pen_b_659940.html]; reprinted in Sentencing and Justice Reform Advocate, 2, 3 (February, 2011).

6

2009 2008

“Capital Jury Deliberation: Effects on Death Sentencing, Comprehension, and Discrimination” (with Mona Lynch), Law and Human Behavior, 33, 481-496.
“The Social Psychology of Isolation: Why Solitary Confinement is Psychologically Harmful,” Prison Service Journal UK (Solitary Confinement Special Issue), Issue 181, 12-20. [Reprinted: California Prison Focus, #36, 1, 14-15 (2011).]
“The Stanford Prison Experiment,” in John Levine & Michael Hogg (Eds.), Encyclopedia of Group Processes and Intergroup Relations. Thousand Oaks, CA: Sage Publications.
“Media Criminology and the Death Penalty,” DePaul Law Review, 58, 689-740. (Reprinted: Capital Litigation Update, 2010.)
“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.
“Persistent Dispositionalism in Interactionist Clothing: Fundamental Attribution Error in Explaining Prison Abuse,” (with P. Zimbardo), Personality and Social Psychology Bulletin, 35, 807814.
“Counting Casualties in the War on Prisoners,” University of San Francisco Law Review, 43, 87-138.
“Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation,” Hofstra Law Review, 36, 835-882.
“A Culture of Harm: Taming the Dynamics of Cruelty in Supermax Prisons,” Criminal Justice and Behavior, 35, 956-984.
“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.
“The Stanford Prison Experiment,” in J. Bennett & Y. Jewkes (Eds.), Dictionary of Prisons (pp. 278-280). Devon, UK: Willan Publishers.
“Capital Mitigation,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 60-63). Volume I. Thousand Oaks, CA: Sage Publications.
7

Death Qualification of Juries,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 190-192). Volume I. Thousand Oaks, CA: Sage Publications.
“Stanford Prison Experiment,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 756-757) (with P. Zimbardo). Volume II. Thousand Oaks, CA: Sage Publications.
“Supermax Prisons,” in Brian Cutler (Ed.), The Encyclopedia of Psychology and the Law (pp. 787-790). Volume II. Thousand Oaks, CA: Sage Publications.

2006

“The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions,” Washington University Journal of Law & Policy, 22, 265-293. [Reprinted in: N. Berlatsky, Opposing Viewpoints: America’s Prisons. Florence, KY: Cengage Learning, 2010.]
“Exonerations and Wrongful Condemnations: Expanding the Zone of Perceived Injustice in Capital Cases,” Golden Gate Law Review, 37, 131-173.
“Preface,” D. Jones (Ed.), Humane Prisons. San Francisco, CA: Radcliffe Medical Press.

2005

“The Contextual Revolution in Psychology and the Question of Prison Effects,” in Alison Liebling and Shadd Maruna (Eds.), The Effects of Imprisonment (pp. 66-93). Devon, UK: Willan Publishing.
“Achieving Educational Equity: Beyond Individual Measures of Merit,” (with A. Hurtado), Harvard Journal of Hispanic Policy, 17, 87-92.
“Conditions of Confinement for Detained Asylum Seekers Subject to Expedited Removal,” in M. Hetfield (Ed.), Report on Asylum Seekers in Expedited Removal. Volume II: Expert Reports. Washington, DC: United States Commission on International Religious Freedom.

2004

“Special Issue on the Death Penalty in the United States” (co-edited with R. Weiner), Psychology, Public Policy, and Law, 10, 374-621.

8

“Death Is Different: An Editorial Introduction” (with R. Wiener), Psychology, Public Policy, and Law, 10, 374-378.
“The Death Penalty in the United States: A Crisis of Conscience” (with R. Wiener), Psychology, Public Policy, and Law, 10, 618-621.
“Condemning the Other in Death Penalty Trials: Biographical Racism, Structural Mitigation, and the Empathic Divide,” DePaul Law Review, 53, 1557-1590.
“Capital Constructions: Newspaper Reporting in Death Penalty Cases” (with S. Greene), Analyses of Social Issues and Public Policy (ASAP), 4, 1-22.
“Abu Ghraib and the American Prison System,” The Commonwealth, 98 (#16), 40-42.
“Disciplinary Segregation,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (240-244). Volume 1. Thousand Oaks, CA: Sage Publications.
“Super-Maximum Secure Prisons,” in Mary Bosworth (Ed.), Encyclopedia of U.S. Prisons and Correctional Facilities (pp. 938944). Volume 2. Thousand Oaks, CA: Sage Publications.

2003

“Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency (special issue on mental health and the criminal justice system), 49, 124-156. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]
“The Psychological Impact of Incarceration: Implications for PostPrison Adjustment,” in Travis, J., & Waul, M. (Eds.), Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities (pp. 33-66). Washington, DC: Urban Institute Press.
“Comments on “Dying Twice”: Death Row Confinement in the Age of the Supermax,” Capital University Law Review, in press.

2002

“Making Law Modern: Toward a Contextual Model of Justice, Psychology, Public Policy, and Law, 7, 3-63.
“Psychological Jurisprudence: Taking Psychology and Law into the Twenty-First Century,” (with John Darley, Sol Fulero, and Tom

9

Tyler), in J. Ogloff (Ed.), Taking Psychology and Law into the Twenty-First Century (pp. 35-59). New York: Kluwer Academic/ Plenum Publishing.
“Science, Law, and Psychological Injury: The Daubert Standards and Beyond,” (with Amy Smith), in Schultz, I., Brady, D., and Carella, S., The Handbook of Psychological Injury (pp. 184-201). Chicago, IL: American Bar Association. [CD-ROM format]

2001

“Vulnerable Offenders and the Law: Treatment Rights in Uncertain Legal Times” (with D. Specter). In J. Ashford, B. Sales, & W. Reid (Eds.), Treating Adult and Juvenile Offenders with Special Needs (pp. 51-79). Washington, D.C.: American Psychological Association.
“Afterword,” in J. Evans (Ed.), Undoing Time (pp. 245-256). Boston, MA: Northeastern University Press.

2000

“Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty” (with M. Lynch), Law and Human Behavior, 24, 337-358.
“Cycles of Pain: Risk Factors in the Lives of Incarcerated Women and Their Children,” (with S. Greene and A. Hurtado), Prison Journal, 80, 3-23.

1999

“Reflections on the Stanford Prison Experiment: Genesis, Transformations, Consequences (‘The SPE and the Analysis of Institutions’),” In Thomas Blass (Ed.), Obedience to Authority: Current Perspectives on the Milgram Paradigm (pp. 221-237). Hillsdale, NJ: Erlbaum.
“Ideology and Crime Control,” American Psychologist, 54, 786-788.

1998

“The Past and Future of U.S. Prison Policy: Twenty-Five Years After the Stanford Prison Experiment,” (with P. Zimbardo), American Psychologist, 53, 709-727. [Reprinted in special issue of Norweigian journal as: USAs fengselspolitikk i fortid og fremtid, Vardoger, 25, 171-183 (2000); in H. Tischler (Ed.), Debating Points: Crime and Punishment. Englewood Cliffs, NJ: Prentice-Hall (2001); Annual Editions: Criminal Justice. Guilford, CT: Dushkin/McGraw-Hill, in press; Herman, Peter (Ed.), The American Prison System (pp. 1743) (Reference Shelf Series). New York: H.W. Wilson (2001); and in Edward Latessa & Alexander Holsinger (Eds.), Correctional

10

1997 1995

Contexts: Contemporary and Classical Readings. Fourth Edition. Oxford University Press (2010).]
“Riding the Punishment Wave: On the Origins of Our Devolving Standards of Decency,” Hastings Women’s Law Journal, 9, 27-78.
“Becoming the Mainstream: “Merit,” Changing Demographics, and Higher Education in California” (with A. Hurtado and E. Garcia), La Raza Law Journal, 10, 645-690.
“Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement,” (with M. Lynch), New York University Review of Law and Social Change, 23, 477-570.
“Psychology and the Limits to Prison Pain: Confronting the Coming Crisis in Eighth Amendment Law,” Psychology, Public Policy, and Law, 3, 499-588.
“Commonsense Justice and the Death Penalty: Problematizing the ‘Will of the People,’” Psychology, Public Policy, and Law, 3, 303337.
“Violence and the Capital Jury: Mechanisms of Moral Disengagement and the Impulse to Condemn to Death,” Stanford Law Review, 49, 1447-1486.
“Mitigation and the Study of Lives: The Roots of Violent Criminality and the Nature of Capital Justice.” In James Acker, Robert Bohm, and Charles Lanier, America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press, 343-377.
“Clarifying Life and Death Matters: An Analysis of Instructional Comprehension and Penalty Phase Arguments” (with M. Lynch), Law and Human Behavior, 21, 575-595.
“Psychological Secrecy and the Death Penalty: Observations on ‘the Mere Extinguishment of Life,’” Studies in Law, Politics, and Society, 16, 3-69.
“The Social Context of Capital Murder: Social Histories and the Logic of Capital Mitigation,” Santa Clara Law Review, 35, 547-609. [Reprinted in part in David Papke (Ed.), Law and Popular Culture, Lexis/Nexis Publications, 2011)].
11

1994 1993

“Taking Capital Jurors Seriously,” Indiana Law Journal, 70, 12231232.
“Death Penalty Opinion: Myth and Misconception,” California Criminal Defense Practice Reporter, 1995(1), 1-7.
“The Jurisprudence of Race and Meritocracy: Standardized Testing and ‘Race-Neutral’ Racism in the Workplace,” (with A. Hurtado), Law and Human Behavior, 18, 223-248.
“Comprehending Life and Death Matters: A Preliminary Study of California’s Capital Penalty Instructions” (with M. Lynch), Law and Human Behavior, 18, 411-434.
“Felony Voir Dire: An Exploratory Study of Its Content and Effect,” (with C. Johnson), Law and Human Behavior, 18, 487-506.
“Broken Promise: The Supreme Court’s Response to Social Science Research on Capital Punishment” (with D. Logan), Journal of Social Issues (special issue on the death penalty in the United States), 50, 75-101.
“Deciding to Take a Life: Capital Juries, Sentencing Instructions, and the Jurisprudence of Death” (with L. Sontag and S. Costanzo), Journal of Social Issues (special issue on the death penalty in the United States), 50, 149-176. [Reprinted in Koosed, M. (Ed.), Capital Punishment. New York: Garland Publishing (1995).]
“Modern’ Death Qualification: New Data on Its Biasing Effects,” (with A. Hurtado and L. Vega), Law and Human Behavior, 18, 619633.
“Processing the Mad, Badly,” Contemporary Psychology, 39, 898899.
“Language is Power,” Contemporary Psychology, 39, 1039-1040.
“Infamous Punishment: The Psychological Effects of Isolation,” National Prison Project Journal, 8, 3-21. [Reprinted in Marquart, James & Sorensen, Jonathan (Eds.), Correctional Contexts: Contemporary and Classical Readings (pp. 428-437). Los Angeles: Roxbury Publishing (1997); Alarid, Leanne & Cromwell, Paul (Eds.), Correctional Perspectives: Views from Academics, Practitioners,

12

1992
1991 1988 1986 1984

and Prisoners (pp. 161-170). Los Angeles: Roxbury Publishing (2001).]
“Psychology and Legal Change: The Impact of a Decade,” Law and Human Behavior, 17, 371-398. [Reprinted in: Roesch, R., & Gagnon, N. (Eds.), Psychology and Law: Criminal and Civil Perspectives. Hampshire, UK: Ashgate (2007).]
“Death Penalty Attitudes: The Beliefs of Death-Qualified Californians,” (with A. Hurtado and L. Vega). Forum, 19, 43-47.
“The Influence of Race on Sentencing: A Meta-Analytic Review of Experimental Studies.” (with L. Sweeney). Special issue on Discrimination and the Law. Behavioral Science and Law, 10, 179195.
“The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” Law and Human Behavior, 15, 183-204.
“In Defense of the Jury,” Contemporary Psychology, 33, 653-655.
“Civil Rights and Institutional Law: The Role of Social Psychology in Judicial Implementation,” (with T. Pettigrew), Journal of Community Psychology, 14, 267-277.
“Editor’s Introduction. Special Issue on Death Qualification,” Law and Human Behavior, 8, 1-6.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification,” Law and Human Behavior, 8, 121-132.
“Examining Death Qualification: Further Analysis of the Process Effect,” Law and Human Behavior, 8, 133-151.
“Evolving Standards and the Capital Jury,” Law and Human Behavior, 8, 153-158.
“Postscript,” Law and Human Behavior, 8, 159.
“Social Factfinding and Legal Decisions: Judicial Reform and the Use of Social Science.” In Muller, D., Blackman, D., and Chapman,

13

1983 1982
1981 1980

A. (Eds.), Perspectives in Psychology and Law. New York: John Wiley, pp. 43-54.
“The Future of Crime and Personality Research: A Social Psychologist’s View,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavioral Behavior. Lexington, Mass.: Lexington Books, pp. 471-473.
“The Good, the Bad, and the Lawful: An Essay on Psychological Injustice,” in Laufer, W. and Day, J. (Eds.), Personality Theory, Moral Development, and Criminal Behavior. Lexington, Mass.: Lexington Books, pp. 107-117.
“Ordering the Courtroom, Psychologically,” Jurimetrics, 23, 321324.
“Psychological Theory and Criminal Justice Policy: Law and Psychology in the ‘Formative Era,’” Law and Human Behavior, 6, 191-235. [Reprinted in Presser, S. and Zainaldin, J. (Eds.), Law and American History: Cases and Materials. Minneapolis, MN: West Publishing, 1989; and in C. Kubrin, T. Stucky & A. Tynes (Eds.) Introduction to Criminal Justice: A Sociological Perspective. Palo Alto, CA: Stanford University Press (2012).]
“Data and Decisions: Social Science and Judicial Reform,” in P. DuBois (Ed.), The Analysis of Judicial Reform. Lexington, Mass.: D.C. Heath, pp. 43-59.
“Employment Tests and Employment Discrimination: A Dissenting Psychological Opinion,” Industrial Relations Law Journal, 5, pp. 186.
“To Polygraph or Not: The Effects of Preemployment Polygraphing on Work-Related Attitudes,” (with L. White and M. Lopez), Polygraph, 11, 185-199.
“Death Qualification as a Biasing Legal Process,” The Death Penalty Reporter, 1 (10), pp. 1-5. [Reprinted in Augustus: A Journal of Progressive Human Sciences, 9(3), 9-13 (1986).]
“Juries and the Death Penalty: Readdressing the Witherspoon Question,” Crime and Delinquency, October, pp. 512-527.

14

“Psychology and Legal Change: On the Limits of a Factual Jurisprudence,” Law and Human Behavior, 6, 191-235. [Reprinted in Loh, Wallace (Ed.), Social Research and the Judicial Process. New York: Russell Sage, 1983.]
“The Creation of Legal Dependency: Law School in a Nutshell” (with M. Lowy), in R. Warner (Ed.), The People’s Law Review. Reading, Mass.: Addison-Wesley, pp. 36-41.
“Television Criminology: Network Illusions of Criminal Justice Realities” (with J. Manzolati), in E. Aronson (Ed.), Readings on the Social Animal. San Francisco, W.H. Freeman, pp. 125-136.

1979

“A Psychologist Looks at the Criminal Justice System,” in A. Calvin (Ed.), Challenges and Alternatives to the Criminal Justice System. Ann Arbor: Monograph Press, pp. 77-85.
“Social Psychology and the Criminal Law,” in P. Middlebrook (Ed.), Social Psychology and Modern Life. New York: Random House, pp. 671-711.
“Bargain Justice in an Unjust World: Good Deals in the Criminal Courts” (with M. Lowy), Law and Society Review, 13, pp. 633-650. [Reprinted in Kadish, Sanford and Paulsen, Robert (Eds.), Criminal Law and Its Processes. Boston: Little, Brown, 1983.]

1977

“Prison Behavior” (with P. Zimbardo), in B. Wolman (Ed.), The

Encyclopedia of Neurology, Psychiatry, Psychoanalysis, and

Psychology, Vol. IX, pp. 70-74.

“The Socialization into Criminality: On Becoming a Prisoner and a Guard” (with P. Zimbardo), in J. Tapp and F. Levine (Eds.), Law, Justice, and the Individual in Society: Psychological and Legal Issues (pp. 198-223). New York: Holt, Rinehart, and Winston.

1976

“The Play’s the Thing: Methodological Notes on Social Simulations,” in P. Golden (Ed.), The Research Experience, pp. 177190. Itasca, IL: Peacock.

1975

“The Blackboard Penitentiary: It’s Tough to Tell a High School from a Prison” (with P. Zimbardo). Psychology Today, 26ff.
“Implementing Research Results in Criminal Justice Settings,”

15

1973

Proceedings, Third Annual Conference on Corrections in the U.S. Military, Center for Advanced Study in the Behavioral Sciences, June 6-7.
“The Psychology of Imprisonment: Privation, Power, and Pathology” (with P. Zimbardo, C. Banks, and D. Jaffe), in D. Rosenhan and P. London (Eds.), Theory and Research in Abnormal Psychology. New York: Holt Rinehart, and Winston. [Reprinted in: Rubin, Z. (Ed.), Doing Unto Others: Joining, Molding, Conforming, Helping, Loving. Englewood Cliffs: Prentice-Hall, 1974. Brigham, John, and Wrightsman, Lawrence (Eds.) Contemporary Issues in Social Psychology. Third Edition. Monterey: Brooks/Cole, 1977. Calhoun, James Readings, Cases, and Study Guide for Psychology of Adjustment and Human Relationships. New York: Random House, 1978.]
“Social Roles, Role-Playing, and Education” (with P. Zimbardo), The Behavioral and Social Science Teacher, Fall, 1(1), pp. 24-45. [Reprinted in: Zimbardo, P., and Maslach, C. (Eds.) Psychology For Our Times. Glenview, Ill.: Scott, Foresman, 1977. Hollander, E. and Hunt, R. (Eds.) Current Perspectives in Social Psychology. Third Edition. New York: Oxford University Press, 1978.]
“The Mind is a Formidable Jailer: A Pirandellian Prison” (with P. Zimbardo, C. Banks, and D. Jaffe), The New York Times Magazine, April 8, Section 6, 38-60. [Reprinted in Krupat, E. (Ed.), Psychology Is Social: Readings and Conversations in Social Psychology. Glenview, Ill.: Scott, Foresman, 1982.]
“Interpersonal Dynamics in a Simulated Prison” (with C. Banks and P. Zimbardo), International Journal of Criminology and Penology, 1, pp. 69-97. [Reprinted in: Steffensmeier, Darrell, and Terry, Robert (Eds.) Examining Deviance Experimentally. New York: Alfred Publishing, 1975; Golden, P. (Ed.) The Research Experience. Itasca, Ill.: Peacock, 1976; Leger, Robert (Ed.) The Sociology of Corrections. New York: John Wiley, 1977; A kiserleti tarsadalomlelektan foarma. Budapest, Hungary: Gondolat Konyvkiado, 1977; Johnston, Norman, and Savitz, L. Justice and Corrections. New York: John Wiley, 1978; Research Methods in Education and Social Sciences. The Open University, 1979; Goldstein, J. (Ed.), Modern Sociology. British Columbia: Open Learning Institute, 1980; Ross, Robert R. (Ed.), Prison Guard/ Correctional Officer: The Use and Abuse of Human Resources of Prison. Toronto: Butterworth’s 1981; Monahan, John, and Walker, Laurens (Eds.), Social Science in Law: Cases, Materials, and Problems. Foundation Press, 1985: Siuta, Jerzy (Ed.), The Context of Human Behavior. Jagiellonian
16

University Press, 2001; Ferguson, Susan (Ed.), Mapping the Social Landscape: Readings in Sociology. St. Enumclaw, WA: Mayfield Publishing, 2001 & 2010; Pethes, Nicolas (Ed.), Menschenversuche (Experiments with Humans). Frankfurt, Germany: Suhrkamp Verlag, 2006.]
“A Study of Prisoners and Guards” (with C. Banks and P. Zimbardo). Naval Research Reviews, 1-17. [Reprinted in Aronson, E. (Ed.) Readings About the Social Animal. San Francisco: W.H. Freeman, 1980; Gross, R. (Ed.) Key Studies in Psychology. Third Edition. London: Hodder & Stoughton, 1999; Collier, C. (Ed.), Basic Themes in Law and Jurisprudence. Anderson Publishing, 2000.]

MEMBERSHIP/ACTIVITIES IN PROFESSIONAL ASSOCIATIONS American Psychological Association American Psychology and Law Society Law and Society Association National Council on Crime and Delinquency
INVITED ADDRESSES AND PAPERS PRESENTED AT PROFESSIONAL ACADEMIC MEETINGS AND RELATED SETTINGS (SELECTED)

2012 2011

“The Psychological Consequences of Long-term Solitary Confinement,” Joint Yale/Columbia Law School Conference on Incarceration and Isolation, New York, April.
“Tensions Between Psychology and the Criminal Justice System: On the Persistence of Injustice,” opening presentation, “A Critical Eye on Criminal Justice” lecture series, Golden Gate University Law School, San Francisco, CA, January.
“The Decline in Death Penalty Verdicts and Executions: The Death of Capital Punishment?” Presentation at “A Legacy of Justice” week, at the University of California, Davis King Hall Law School, Davis, CA, January.

17

2010 2009 2008

“Invited Keynote Address: The Nature and Consequences of Prison Overcrowding—Urgency and Implications,” West Virginia School of Law, Morgantown, West Virginia, March.
“Symposium: The Stanford Prison Experiment—Enduring Lessons 40 Years Later,” American Psychological Association Annual Convention, Washington, DC, August.
“The Dangerous Overuse of Solitary Confinement: Pervasive Human Rights Violations in Prisons, Jails, and Other Places of Detention” Panel, United Nations, New York, New York, October.
“Criminal Justice Reform: Issues and Recommendation,” United States Congress, Washington, DC, November.
“The Hardening of Prison Conditions,” Opening Address, “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Desensitization to Inhumane Treatment: The Pitfalls of Prison Work,” panel presentation at “The Imprisoned” Arthur Liman Colloquium Public Interest Series, Yale Law School, New Haven, CN, March.
“Mental Ill Health in Immigration Detention,” Department of Homeland Security/DOJ Office for Civil Rights and Civil Liberties, Washington, DC, September.
“Counting Casualties in the War on Prisoners,” Keynote Address, at “The Road to Prison Reform: Treating the Causes and Conditions of Our Overburdened System,” University of Connecticut Law School, Hartford, CN, February.
“Defining the Problem in California’s Prison Crisis: Overcrowding and Its Consequences,” California Correctional Crisis Conference,” Hastings Law School, San Francisco, CA, March.
“Prisonization and Contemporary Conditions of Confinement,” Keynote Address, Women Defenders Association, Boalt Law School, University of California, November.
“Media Criminology and the Empathic Divide: The Continuing

18

Significance of Race in Capital Trials,” Invited Address, Media, Race, and the Death Penalty Conference, DePaul University School of Law, Chicago, IL, March.
“The State of the Prisons in California,” Invited Opening Address, Confronting the Crisis: Current State Initiatives and Lasting Solutions for California’s Prison Conditions Conference, University of San Francisco School of Law, San Francisco, CA, March.
“Mass Incarceration and Its Effects on American Society,” Invited Opening Address, Behind the Walls Prison Law Symposium, University of California Davis School of Law, Davis, CA, March.

2007

“The Psychology of Imprisonment: How Prison Conditions Affect Prisoners and Correctional Officers,” United States Department of Justice, National Institute of Corrections Management Training for “Correctional Excellence” Course, Denver, CO, May.
“Statement on Psychologists, Detention, and Torture,” Invited Address, American Psychological Association Annual Convention, San Francisco, CA, August.
“Prisoners of Isolation,” Invited Address, University of Indiana Law School, Indianapolis, IN, October.
“Mitigation in Three Strikes Cases,” Stanford Law School, Palo Alto, CA, September.
“The Psychology of Imprisonment,” Occidental College, Los Angeles, CA, November.

2006

“Mitigation and Social Histories in Death Penalty Cases,” Ninth Circuit Federal Capital Case Committee, Seattle, WA, May.
“The Crisis in the Prisons: Using Psychology to Understand and Improve Prison Conditions,” Invited Keynote Address, Psi Chi (Undergraduate Psychology Honor Society) Research Conference, San Francisco, CA, May.
“Exoneration and ‘Wrongful Condemnation’: Why Juries Sentence to Death When Life is the Proper Verdict,” Faces of Innocence Conference, UCLA Law School, April.
“The Continuing Effects of Imprisonment: Implications for Families and Communities,” Research and Practice Symposium on

19

2005 2004

Incarceration and Marriage, United States Department of Health and Human Services, Washington, DC, April.
“Ordinary People, Extraordinary Acts,” National Guantanamo Teach In, Seton Hall School of Law, Newark, NJ, October.
“The Next Generation of Death Penalty Research,” Invited Address, State University of New York, School of Criminal Justice, Albany, NY, October.
“The ‘Design’ of the System of Death Sentencing: Systemic Forms of ‘Moral Disengagement in the Administration of Capital Punishment, Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Humane Treatment for Asylum Seekers in U.S. Detention Centers, United States House of Representatives, Washington, DC, March.
“Prisonworld: What Overincarceration Has Done to Prisoners and the Rest of Us,” Scholar-in-Residence, invited address, Center for Social Justice, Boalt Hall School of Law (Berkeley), March.
“Prison Conditions and Their Psychological Effects on Prisoners,” European Association for Psychology and Law, Vilnius, Lithuania, July.
“Recognizing the Adverse Psychological Effects of Incarceration, With Special Attention to Solitary-Type Confinement and Other Forms of ‘Ill-Treatment’ in Detention,” International Committee of the Red Cross, Training Program for Detention Monitors, Geneva, Switzerland, November.
“Prison Conditions in Post-“War on Crime” Era: Coming to Terms with the Continuing Pains of Imprisonment,” Boalt Law School Conference, After the War on Crime: Race, Democracy, and a New Reconstruction, Berkeley, CA, October.
“Cruel and Unusual? The United States Prison System at the Start of the 21st Century,” Invited speaker, Siebel Scholars Convocation, University of Illinois, Urbana, IL, October.
“The Social Historical Roots of Violence: Introducing Life Narratives into Capital Sentencing Procedures,” Invited Symposium, XXVIII International Congress of Psychology, Beijing, China, August.
20

2003

“Death by Design: Capital Punishment as a Social Psychological System,” Division 41 (Psychology and Law) Invited Address, American Psychological Association Annual Convention, Honolulu, HI, July.
“The Psychology of Imprisonment and the Lessons of Abu Ghraib,” Commonwealth Club Public Interest Lecture Series, San Francisco, May.
“Restructuring Prisons and Restructuring Prison Reform,” Yale Law School Conference on the Current Status of Prison Litigation in the United States, New Haven, CN, May.
“The Effects of Prison Conditions on Prisoners and Guards: Using Psychological Theory and Data to Understand Prison Behavior,” United States Department of Justice, National Institute of Corrections Management Training Course, Denver, CO, May.
“The Contextual Revolution in Psychology and the Question of Prison Effects: What We Know about How Prison Affects Prisoners and Guards,” Cambridge University, Cambridge, England, April.
“Death Penalty Attitudes, Death Qualification, and Juror Instructional Comprehension,” American Psychology-Law Society, Annual Conference, Scottsdale, AZ, March.
“Crossing the Empathic Divide: Race Factors in Death Penalty Decisionmaking,” DePaul Law School Symposium on Race and the Death Penalty in the United States, Chicago, October.
“Supermax Prisons and the Prison Reform Paradigm,” PACE Law School Conference on Prison Reform Revisited: The Unfinished Agenda, New York, October.
“Mental Health Issues in Supermax Confinement,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Roundtable on Capital Punishment in the United States: The Key Psychological Issues,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
“Psychology and Legal Change: Taking Stock,” European Psychology and Law Conference, University of Edinburgh, Scotland, July.
21

2002 2001

“Economic Justice and Criminal Justice: Social Welfare and Social Control,” Society for the Study of Social Issues Conference, January.
“Race, Gender, and Class Issues in the Criminal Justice System,” Center for Justice, Tolerance & Community and Barrios Unidos Conference, March.
“The Psychological Effects of Imprisonment: Prisonization and Beyond.” Joint Urban Institute and United States Department of Health and Human Services Conference on “From Prison to Home.” Washington, DC, January.
“On the Nature of Mitigation: Current Research on Capital Jury Decisionmaking.” American Psychology and Law Society, MidWinter Meetings, Austin, Texas, March.
“Prison Conditions and Death Row Confinement.” New York Bar Association, New York City, June.
“Supermax and Solitary Confinement: The State of the Research and the State of the Prisons.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“Mental Health in Supermax: On Psychological Distress and Institutional Care.” Best Practices and Human Rights in Supermax Prisons: A Dialogue. Conference sponsored by University of Washington and the Washington Department of Corrections, Seattle, September.
“On the Nature of Mitigation: Research Results and Trial Process and Outcomes.” Boalt Hall School of Law, University of California, Berkeley, August.
“Toward an Integrated Theory of Mitigation.” American Psychological Association Annual Convention, San Francisco, CA, August.
Discussant: “Constructing Class Identities—The Impact of Educational Experiences.” American Psychological Association Annual Convention, San Francisco, CA, August.

22

2000
1999 1998

“The Rise of Carceral Consciousness.” American Psychological Association Annual Convention, San Francisco, CA, August.
“On the Nature of Mitigation: Countering Generic Myths in Death Penalty Decisionmaking,” City University of New York Second International Advances in Qualitative Psychology Conference, March.
“Why Has U.S. Prison Policy Gone From Bad to Worse? Insights From the Stanford Prison Study and Beyond,” Claremont Conference on Women, Prisons, and Criminal Injustice, March.
“The Use of Social Histories in Capital Litigation,” Yale Law School, April.
“Debunking Myths About Capital Violence,” Georgetown Law School, April.
“Research on Capital Jury Decisionmaking: New Data on Juror Comprehension and the Nature of Mitigation,” Society for Study of Social Issues Convention, Minneapolis, June.
“Crime and Punishment: Where Do We Go From Here?” Division 41 Invited Symposium, “Beyond the Boundaries: Where Should Psychology and Law Be Taking Us?” American Psychological Association Annual Convention, Washington, DC, August.
“Psychology and the State of U.S. Prisons at the Millennium,” American Psychological Association Annual Convention, Boston, MA, August.
“Spreading Prison Pain: On the Worldwide Movement Towards Incarcerative Social Control,” Joint American Psychology-Law Society/European Association of Psychology and Law Conference, Dublin, Ireland, July.
“Prison Conditions and Prisoner Mental Health,” Beyond the Prison Industrial Complex Conference, University of California, Berkeley, September.
“The State of US Prisons: A Conversation,” International Congress of Applied Psychology, San Francisco, CA, August.

23

1997 1996 1995
1994

“Deathwork: Capital Punishment as a Social Psychological System,” Invited SPPSI Address, American Psychological Association Annual Convention, San Francisco, CA, August.
“The Use and Misuse of Psychology in Justice Studies: Psychology and Legal Change: What Happened to Justice?,” (panelist), American Psychological Association Annual Convention, San Francisco, CA, August.
“Twenty Five Years of American Corrections: Past and Future,” American Psychology and Law Society, Redondo Beach, CA, March.
“Deconstructing the Death Penalty,” School of Justice Studies, Arizona State University, Tempe, AZ, October.
“Mitigation and the Study of Lives,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, Chicago, August.
“The Stanford Prison Experiment and 25 Years of American Prison Policy,” American Psychological Association Annual Convention, Toronto, August.
“Looking Closely at the Death Penalty: Public Stereotypes and Capital Punishment,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Race and the Flaws of the Meritocratic Vision,” Invited Address, Arizona State University College of Public Programs series on Free Speech, Affirmative Action and Multiculturalism, Tempe, AZ, April.
“Taking Capital Jurors Seriously,” Invited Address, National Conference on Juries and the Death Penalty, Indiana Law School, Bloomington, February.
“Mitigation and the Social Genetics of Violence: Childhood Treatment and Adult Criminality,” Invited Address, Conference on the Capital Punishment, Santa Clara Law School, October, Santa Clara.

24

1992 1991 1990 1989
1987 1986
1985

“Social Science and the Death Penalty,” Chair and Discussant, American Psychological Association Annual Convention, San Francisco, CA, August.
“Capital Jury Decisionmaking,” Invited panelist, American Psychological Association Annual Convention, Atlanta, GA, August.
“Racial Discrimination in Death Penalty Cases,” Invited presentation, NAACP Legal Defense Fund Conference on Capital Litigation, August, Airlie, VA.
“Psychology and Legal Change: The Impact of a Decade,” Invited Address to Division 41 (Psychology and Law), American Psychological Association Annual Convention, New Orleans, LA., August.
“Judicial Remedies to Pretrial Prejudice,” Law & Society Association Annual Meeting, Madison, WI, June.
“The Social Psychology of Police Interrogation Techniques” (with R. Liebowitz), Law & Society Association Annual Meeting, Madison, WI, June.
“The Fourteenth Amendment and Symbolic Legality: Let Them Eat Due Process,” APA Annual Convention, New York, N.Y. August.
“The Nature and Function of Prison in the United States and Mexico: A Preliminary Comparison,” InterAmerican Congress of Psychology, Havana, Cuba, July.
Chair, Division 41 Invited Address and “Commentary on the Execution Ritual,” APA Annual Convention, Washington, D.C., August.
“Capital Punishment,” Invited Address, National Association of Criminal Defense Lawyers Annual Convention, Monterey, CA, August.
“The Role of Law in Graduate Social Science Programs” and “Current Directions in Death Qualification Research,” American Society of Criminology, San Diego, CA, November.
25

1983 1982 1982 1982 1980
1975

“The State of the Prisons: What’s Happened to ‘Justice’ in the ‘70s and ‘80s?” Invited Address to Division 41 (Psychology and Law); APA Annual Convention, Los Angeles, CA, August.
“The Role of Social Science in Death Penalty Litigation.” Invited Address in National College of Criminal Defense Death Penalty Conference, Indianapolis, IN, September.
“Psychology in the Court: Social Science Data and Legal DecisionMaking.” Invited Plenary Address, International Conference on Psychology and Law, University College, Swansea, Wales, July.
“Paradigms in Conflict: Contrasting Methods and Styles of Psychology and Law.” Invited Address, Social Science Research Council, Conference on Psychology and Law, Wolfson College, Oxford University, March.
“Law and Psychology: Conflicts in Professional Roles.” Invited paper, Western Psychological Association Annual Meeting, April.
“Using Psychology in Test Case Litigation,” panelist, American Psychological Association Annual Convention, Montreal, Canada, September.
“On the Selection of Capital Juries: The Biasing Effects of Death Qualification.” Paper presented at the Interdisciplinary Conference on Capital Punishment. Georgia State University, Atlanta, GA, April.
“Diminished Capacity and Imprisonment: The Legal and Psychological Issues,” Proceedings of the American Trial Lawyers Association, Mid-Winter Meeting, January.
“Social Change and the Ideology of Individualism in Psychology and Law.” Paper presented at the Western Psychological Association Annual Meeting, April.

26

SERVICE TO STAFF OR EDITORIAL BOARDS OF FOUNDATIONS, SCHOLARLY JOURNALS OR PRESSES

2011-present Editorial Consultant, Social Psychological and Personality Science.

2008-present Editorial Consultant, New England Journal of Medicine.

2007-present Editorial Board Member, Correctional Mental Health Reporter.

2007-present Editorial Board Member, Journal of Offender Behavior and Rehabilitation.

2004-present Editorial Board Member, American Psychology and Law Society Book Series, Oxford University Press.

2000-2003 Reviewer, Society for the Study of Social Issues Grants-in-Aid Program.

2000-present Editorial Board Member, ASAP (on-line journal of the Society for the Study of Social Issues)

1997-present Editorial Board Member, Psychology, Public Policy, and Law

1991

Editorial Consultant, Brooks/Cole Publishing

1989

Editorial Consultant, Journal of Personality and Social Psychology

1988-

Editorial Consultant, American Psychologist

1985

Editorial Consultant, American Bar Foundation Research Journal

1985-2006 Law and Human Behavior, Editorial Board Member

1985

Editorial Consultant, Columbia University Press

1985

Editorial Consultant, Law and Social Inquiry

1980-present Reviewer, National Science Foundation

1997

Reviewer, National Institutes of Mental Health

1980-present Editorial Consultant, Law and Society Review

1979-1985 Editorial Consultant, Law and Human Behavior

27

1997-present Editorial Consultant, Legal and Criminological Psychology 1993-present Psychology, Public Policy, and Law, Editorial Consultant
GOVERNMENTAL, LEGAL AND CRIMINAL JUSTICE CONSULTING
Training Consultant, Palo Alto Police Department, 1973-1974. Evaluation Consultant, San Mateo County Sheriff’s Department, 1974. Design and Training Consultant to Napa County Board of Supervisors, County
Sheriff’s Department (county jail), 1974. Training Consultation, California Department of Corrections, 1974. Consultant to California Legislature Select Committee in Criminal Justice, 1974,
1980-1981 (effects of prison conditions, evaluation of proposed prison legislation). Reviewer, National Science Foundation (Law and Social Science, Research Applied to National Needs Programs), 1978-present. Consultant, Santa Clara County Board of Supervisors, 1980 (effects of jail overcrowding, evaluation of county criminal justice policy). Consultant to Packard Foundation, 1981 (evaluation of inmate counseling and guard training programs at San Quentin and Soledad prisons). Member, San Francisco Foundation Criminal Justice Task Force, 1980-1982 (corrections expert). Consultant to NAACP Legal Defense Fund, 1982- present (expert witness, case evaluation, attorney training). Faculty, National Judicial College, 1980-1983. Consultant to Public Advocates, Inc., 1983-1986 (public interest litigation). Consultant to California Child, Youth, Family Coalition, 1981-82 (evaluation of proposed juvenile justice legislation). Consultant to California Senate Office of Research, 1982 (evaluation of causes
28

and consequences of overcrowding in California Youth Authority facilities).
Consultant, New Mexico State Public Defender, 1980-1983 (investigation of causes of February, 1980 prison riot).
Consultant, California State Supreme Court, 1983 (evaluation of county jail conditions).
Member, California State Bar Committee on Standards in Prisons and Jails, 1983.
Consultant, California Legislature Joint Committee on Prison Construction and Operations, 1985.
Consultant, United States Bureau of Prisons and United States Department of the Interior (Prison History, Conditions of Confinement Exhibition, Alcatraz Island), 1989-1991.
Consultant to United States Department of Justice, 1980-1990 (evaluation of institutional conditions).
Consultant to California Judicial Council (judicial training programs), 2000.
Consultant to American Bar Association/American Association for Advancement of Science Task Force on Forensic Standards for Scientific Evidence, 2000.
Invited Participant, White House Forum on the Uses of Science and Technology to Improve Crime and Prison Policy, 2000.
Member, Joint Legislative/California Department of Corrections Task Force on Violence, 2001.
Consultant, United States Department of Health & Human Services/Urban Institute, “Effects of Incarceration on Children, Families, and Low-Income Communities” Project, 2002.
Detention Consultant, United States Commission on International Religious Freedom (USCRIF). Evaluation of Immigration and Naturalization Service Detention Facilities, July, 2004-present.
Consultant, International Committee of the Red Cross, Geneva, Switzerland, Consultant on international conditions of confinement.
Member, Institutional Research External Review Panel, California Department of Corrections, November, 2004-2008.
Consultant, United States Department of Health & Human Services on programs
29

designed to enhance post-prison success and community reintegration, 2006.
Consultant/Witness, U.S. House of Representatives, Judiciary Committee, Evaluation of legislative and budgetary proposals concerning the detention of aliens, FebruaryMarch, 2005.
Invited Expert Witness to National Commission on Safety and Abuse in America’s Prisons (Nicholas Katzenbach, Chair); Newark, New Jersey, July 19-20, 2005.
Testimony to the United States Senate, Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights (Senators Brownback and Feingold, co-chairs), Hearing on “An Examination of the Death Penalty in the United States,” February 7, 2006.
National Council of Crime and Delinquency “Sentencing and Correctional Policy Task Force,” member providing written policy recommendations to the California legislature concerning overcrowding crisis in the California Department of Corrections and Rehabilitation.
Trainer/Instructor, Federal Bureau of Prisons and United States Department of Justice, “Correctional Excellence” Program, providing instruction concerning conditions of confinement and psychological stresses of living and working in correctional environments to mid-level management corrections professionals, May, 20042008.
Invited Expert Witness, California Commission on the Fair Administration of Justice, Public Hearing, Santa Clara University, March 28, 2008.
Invited Participant, Department of Homeland Security, Mental Health Effects of Detention and Isolation, 2010.
Consultant, “Reforming the Criminal Justice System in the United States” Joint Working Group with Senator James Webb and Congressional Staffs, 2011 Developing National Criminal Justice Commission Legislation.
Invited Participant, United Nations, Forum with United Nations Special Rapporteur on Torture Concerning the Overuse of Solitary Confinement, New York, October, 2011.
30

PRISON AND JAIL CONDITIONS EVALUATIONS AND LITIGATION
Hoptowit v. Ray [United States District Court, Eastern District of Washington, 1980; 682 F.2d 1237 (9th Cir. 1982)]. Evaluation of psychological effects of conditions of confinement at Washington State Penitentiary at Walla Walla for United States Department of Justice.
Wilson v. Brown (Marin Country Superior Court; September, 1982, Justice Burke). Evaluation of effects of overcrowding on San Quentin mainline inmates.
Thompson v. Enomoto (United States District Court, Northern District of California, Judge Stanley Weigel, 1982 and continuing). Evaluation of conditions of confinement on Condemned Row, San Quentin Prison.
Toussaint v. McCarthy [United States District Court, Northern District of California, Judge Stanley Weigel, 553 F. Supp. 1365 (1983); 722 F. 2d 1490 (9th Cir. 1984) 711 F. Supp. 536 (1989)]. Evaluation of psychological effects of conditions of confinement in lockup units at DVI, Folsom, San Quentin, and Soledad.
In re Priest (Proceeding by special appointment of the California Supreme Court, Judge Spurgeon Avakian, 1983). Evaluation of conditions of confinement in Lake County Jail.
Ruiz v. Estelle [United States District Court, Southern District of Texas, Judge William Justice, 503 F. Supp. 1265 (1980)]. Evaluation of effects of overcrowding in the Texas prison system, 1983-1985.
In re Atascadero State Hospital (Civil Rights of Institutionalized Persons Act of 1980 action). Evaluation of conditions of confinement and nature of patient care at ASH for United States Department of Justice, 1983-1984.
In re Rock (Monterey County Superior Court 1984). Appointed to evaluate conditions of confinement in Soledad State Prison in Soledad, California.
31

In re Mackey (Sacramento County Superior Court, 1985). Appointed to evaluate conditions of confinement at Folsom State Prison mainline housing units.
Bruscino v. Carlson (United States District Court, Southern District of Illinois 1984 1985). Evaluation of conditions of confinement at the United States Penitentiary at Marion, Illinois [654 F. Supp. 609 (1987); 854 F.2d 162 (7th Cir. 1988)].
Dohner v. McCarthy [United States District Court, Central District of California, 1984-1985; 636 F. Supp. 408 (1985)]. Evaluation of conditions of confinement at California Men’s Colony, San Luis Obispo.
Invited Testimony before Joint Legislative Committee on Prison Construction and Operations hearings on the causes and consequences of violence at Folsom Prison, June, 1985.
Stewart v. Gates [United States District Court, 1987]. Evaluation of conditions of confinement in psychiatric and medical units in Orange County Main Jail, Santa Ana, California.
Duran v. Anaya (United States District Court, 1987-1988). Evaluation of conditions of confinement in the Penitentiary of New Mexico, Santa Fe, New Mexico [Duran v. Anaya, No. 77-721 (D. N.M. July 17, 1980); Duran v. King, No. 77-721 (D. N.M. March 15, 1984)].
Gates v. Deukmejian (United States District Court, Eastern District of California, 1989). Evaluation of conditions of confinement at California Medical Facility, Vacaville, California.
Kozeak v. McCarthy (San Bernardino Superior Court, 1990). Evaluation of conditions of confinement at California Institution for Women, Frontera, California.
Coleman v. Gomez (United States District Court, Eastern District of California, 1992-3; Magistrate Moulds, Chief Judge Lawrence Karlton, 912 F. Supp. 1282 (1995). Evaluation of study of quality of mental health care in California prison system, special mental health needs at Pelican Bay State Prison.
Madrid v. Gomez (United States District Court, Northern District of California, 1993, District Judge Thelton Henderson, 889 F. Supp. 1146 (N.D. Cal. 1995). Evaluation of conditions of confinement and psychological consequences of isolation in Security Housing Unit at Pelican Bay State Prison, Crescent City, California.
Clark v. Wilson, (United States District Court, Northern District of California, 1998, District Judge Fern Smith, No. C-96-1486 FMS), evaluation of screening
32

procedures to identify and treatment of developmentally disabled prisoners in California Department of Corrections.
Turay v. Seling [United States District Court, Western District of Washington (1998)]. Evaluation of Conditions of Confinement-Related Issues in Special Commitment Center at McNeil Island Correctional Center.
In re: The Commitment of Durden, Jackson, Leach, & Wilson. [Circuit Court, Palm Beach County, Florida (1999).] Evaluation of Conditions of Confinement in Martin Treatment Facility.
Ruiz v. Johnson [United States District Court, Southern District of Texas, District Judge William Wayne Justice, 37 F. Supp. 2d 855 (SD Texas 1999)]. Evaluation of current conditions of confinement, especially in security housing or “high security” units.
Osterback v. Moore (United States District Court, Southern District of Florida (97-2806-CIV-MORENO) (2001) [see, Osterback v. Moore, 531 U.S. 1172 (2001)]. Evaluation of Close Management Units and Conditions in the Florida Department of Corrections.
Valdivia v. Davis (United States District Court, Eastern District of California, 2002). Evaluation of due process protections afforded mentally ill and developmentally disabled parolees in parole revocation process.
Ayers v. Perry (United States District Court, New Mexico, 2003). Evaluation of conditions of confinement and mental health services in New Mexico Department of Corrections “special controls facilities.”
Disability Law Center v. Massachusetts Department of Corrections (Federal District Court, Massachusetts, 2007). Evaluation of conditions of confinement and treatment of mentally ill prisoners in disciplinary lockup and segregation units.
Plata/Coleman v. Schwarzenegger (Ninth Circuit Court of Appeals, Three-Judge Panel, 2008). Evaluation of conditions of confinement, effects of overcrowding on provision of medical and mental health care in California Department of Corrections and Rehabilitation. [See Brown v. Plata, 131 S.Ct. 1910 (2011).]
33

 Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 1 of 17

1 PRISON LAW OFFICE DONALD SPECTER (SBN 83925)
2 WARREN E. GEORGE (SBN 53588) REBEKAH EVENSON (SBN 207825)
3 1917 Fifth Street Berkeley, California 94710-1916
4 Telephone: 510.280.2621 Facsimile: 510.280.2704
5 dspecter@prisonlaw.com wgeorge@prisonlaw.com
6 revenson@prisonlaw.com

7 BINGHAM MCCUTCHEN LLP GEOFFREY HOLTZ (SBN 191370)
8 MANU PRADHAN (SBN 253026) Three Embarcadero Center
9 San Francisco, CA 94111-4067 Telephone: 415.393.2000
10 Facsimile: 415.393.2286 warren.george@bingham.com
11 manu.pradhan@bingham.com

12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16

17 ROBERT MITCHELL, et al.,

No. 08-CV-1196 TLN EFB

18

Plaintiffs,

v.

19

MATTHEW CATE, et al.,

20

Defendants.

21

22

23

JOSEPH MCGRATH’S EXPERT REPORT AND DECLARATION IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Magistrate Judge: Hon. Edmund F. Brennan

Date:

June 12, 2013

Time:

10:00 a.m.

Courtroom:

24

Action Filed: May 30, 2008

24

25

26

27

28

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 2 of 17

1 I, Joseph McGrath, hereby declare:

2

1. I am a former employee of the California Department of Corrections (CDCR),

3 with a career of more than 30 years in corrections, 10 years of it at Pelican Bay State

4 Prison, including four years as warden of the prison. I have personal knowledge of the

5 matters set forth herein, and if called as a witness I could competently so testify.

6

2. I was retained by the Prison Law Office to review relevant documents in the case

7 of Plaintiff Robert Mitchell, et al., and prepare an expert witness report. Specifically, I was

8 asked to provide my expert opinion regarding Mr. Mitchell’s claim that the California

9 Department of Corrections and Rehabilitation (CDCR) imposes lengthy race-based

10 lockdowns.

11

3. My experience and training over the past 30 plus years provide me with the

12 expertise to testify in this matter as an expert witness. I have 30 years of experience with

13 the California Department of Corrections (CDC) and the California Youth Authority

14 encompassing administration, management, supervision, and line-staff duties and

15 responsibilities, as well as in recent years, consulting. Since 1979 I have been assigned to

16 work in four different California prisons and by the end of my career was responsible for

17 administering the operation of all 33 California adult state prisons and parole operations

18 state-wide. My knowledge and experience includes, but is not limited to, policy and

19 procedure for prison programs, prison security, inmate classification and gang

20 management.

21

4. In various administrative, managerial and supervisory capacities I held the

22 responsibility of making decisions involving inmates including rule violations and

23 discipline, appeals, investigations, access to health care services, program/housing

24 placements and classification actions. I was responsible as well for making and managing

25 decisions involving employees including, for example, training, performance,

26 investigations and discipline, labor negotiations and evaluating uses of force. In these

27

28 1

MCGRATH REPORT AND DECL. ISO MOT FOR PRELIM INJUNCTION, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 3 of 17

1 capacities I have managed every aspect of inmate programming including prison

2 lockdowns.

3

5. I served 10 years at Pelican Bay State Prison, California’s most secure prison,

4 between 1994 and 2004. Pelican Bay State Prison had a population of approximately 3400

5 and housed California’s most dangerous, violent and difficult to manage inmates. I held

6 positions as Associate Warden, Chief Deputy Warden and for the final four years as

7 Warden. While at Pelican Bay, in the mid to late 1990’s, I coauthored the use of force

8 policy and procedure which was subsequently adopted by the CDC state-wide. In 2004 I

9 also authored the employee investigation and discipline policy and procedure for the CDC

10 including a disciplinary matrix used as a standard for determining employee disciplinary

11 penalties. In 2005 I authored a chapter for a text book entitled, “Managing the Security

12 Housing Unit: Lessons from the California Experience,” Managing Special Populations in

13 Jails and Prisons, New York: Civic Research Institute, written by Joe McGrath and Rick

14 Lovell.

15

6. From June 2006 until June 2009 I worked for the California Prison Health Care

16 Receivership, Inc. I served as the prison “custody expert” to the Federal Receiver in his

17 efforts to develop and implement a health care delivery system in the California adult

18 prisons state-wide. My purpose was to identify and remediate all the impediments to the

19 delivery of health care that inherently exist in prison operations. My knowledge and

20 experience with prison security and correctional operations enabled and provided for the

21 design and development of new clinical space and health care delivery programs consistent

22 with the sound security practices required in the prison setting.

23

7. Currently, I am consulting on corrections matters in both prisons and jails. I am a

24 member of the American Correctional Association and the American Jail Association.

25 Appendix A contains a list of cases in which I have consulted and testified, and identifies

26 my compensation.

27

28 2

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Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 4 of 17
1 FACTS CONSIDERED IN FORMING MY OPINION
2 8. The opinions I express below about CDCR’s lockdown practices are based upon
3 my thirty years of experience working in CDCR prisons, including experience managing
4 and ending lockdowns.
5 9. In addition, I reviewed the current lockdown policy, program status reports, data
6 concerning lockdowns implemented over the last three years, and depositions of prison
7 officials charged with managing prison lockdowns. I also visited Salinas Valley State
8 Prison and Kern Valley State Prison, and toured locked down facilities there. During my
9 prison visits, I spoke with inmates and prison staff about the management and impacts of
10 the lockdowns. A full list of documents reviewed is attached hereto as Appendix B.
11 SUMMARY AND ANALYSIS OF CDCR’S LOCKDOWN PRACTICES
12 10. The CDCR has a policy and practice of identifying all inmates by racial/ethnic
13 categories. Each inmate is identified as belonging in one of the five following racial/ethnic
14 categories: Black, White, Northern Hispanic, Southern Hispanic or Other. The Other
15 category encompasses all racial/ethnic groups not in one of the first four categories such as,
16 American Indian, Pacific Islander, or Asian. Inmates are assigned based on appearance,
17 self-identification, association and staff review of case factors. The racial designation is
18 used in decisions affecting housing assignments and when lockdown/modified programs
19 are imposed for specific racial groups.
20 11. The policy and procedure for the implementation of lockdowns and modified
21 programs is contained in DOM 55015.1 – 55015.18. This directive allows the Warden the
22 discretion to separate inmates by their race or ethnicity in modified programs for up to 14
23 days, requiring the approval of the Associate Director when the race-based program
24 modification lasts beyond the two week duration. The directive further allows the Warden
25 to make decisions about who should be subject to modified program based on individual
26 behavior or group behavior.
27
28 3
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Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 5 of 17

1

12. After reviewing Program Status Reports, touring two level IV prisons, talking

2 with staff and managers, talking with inmates and reviewing several CDCR manager

3 depositions, it is evident that inmates are routinely placed on lockdown/modified program

4 status following incidents of violence based on their racial/ethnic identification regardless

5 of whether they were involved in the violence, whether they have a history of violence,

6 whether they have any history of gang or security threat group association, or in some

7 cases, whether they were even in the prison when the violence occurred. In the last three

8 years there have been hundreds of lockdown/modified programs throughout CDCR prisons

9 that have lasted for more than one month; some lasting for more than a year.

10

13. When incidents of violence occur, the racial identity of the inmates involved is

11 determined. As a result, it is common practice that all the inmates who are identified to be

12 within that same racial designation(s) are placed on modified program status while officials

13 begin to investigate the causes and circumstances of the incident and complete threat

14 assessments on all the inmates placed on modified program status. CDCR’s policy is to

15 return inmates to normal programming as soon as it is safe to do so. DOM 55015.8 page

16 55015-7. Yet many inmates arrive at a prison, are assigned a racial identity in a group that

17 happens to be on a modified program, are placed on modified program status and are then

18 restricted to their cell with limited or no outside exercise or other program opportunities for

19 the duration of the modified program, even though they were not even in the prison when

20 the violent incident precipitating the modified program occurred.

21

14. Sometimes modified programs are imposed on a particular racial/ethnic group

22 because an anonymous note is received that indicates inmates of a particular racial group

23 may be planning an incident of violence. Routinely, a modified program is imposed on all

24 inmates of that racial group to begin the investigation of the anonymous note. One manager

25 testified that in his experience over the past several years as many as eight such notes

26 resulted in modified programs for different racial groups even though 100% of the

27 anonymous notes turned out to be false. (Chris Arthur Deposition page 175 and 176).

28 4

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Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 6 of 17

1

15. In California prisons inmates in general populations are spending days, weeks

2 and months in their cells without outdoor exercise, without work and educational

3 opportunities and without normal religious program activities because of

4 lockdown/modified programs that are based on racial designations. Many of these inmates

5 are not associated with a gang or security threat group and have not been involved in

6 violence.

7

16. When an incident of violence occurs, the inmates involved in the violence are

8 removed from the general population and placed in administrative segregation housing. In

9 administrative segregation these inmates are given at least five hours a week of outdoor

10 exercise, a monthly draw from the inmate store/canteen and non-contact visits with

11 approved visitors. Conversely, the inmates of the same racial group who were not involved

12 in the violent incident are often placed on a lockdown/modified program in their general

13 population housing unit and given no outdoor exercise, no canteen draws and no visits.

14 And, as stated above, these lockdown/modified programs often last for months.

15

17. All the information reviewed and my personal experience as a Level IV prison

16 manager indicates to me that the impetus behind the practice of locking down inmates

17 based on racial/ethnic designations has its roots in a serious concern by prison managers

18 that the inmate prison gang structure is able to control the behavior of groups of inmates,

19 many of whom are not members/associates of gangs or security threat groups (STG). For

20 example, one manager indicated in deposition that if an inmate housed on a general

21 population yard is Hispanic and from southern California, he must associate with the STG

22 known as the Southern Hispanics. It was his belief that all Hispanic inmates on a general

23 population yard who are from southern California, even those who are not or do not want

24 to be associates of the Southern Hispanic STG, are obligated to follow the directions and

25 orders passed down from STG leadership. And, that not following this direction from the

26 prison gang/STG leadership would result in an individual being assaulted or required to

27 lock up and leave the general population yard. (Kelly Harrington deposition at page 104).

28 5

MCGRATH REPORT AND DECL. ISO MOT FOR PRELIM INJUNCTION, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 7 of 17

1 Further, he testified that if inmates of a particular ethnic group are attacked by inmates of a

2 different ethnic group, the inmates of both ethnic groups must defend each other and get

3 involved in the violence. The consequences of not doing so would be to be forced to leave

4 the yard by one’s own ethnic group. (Kelly Harrington deposition pages 247 and 248). So,

5 in order to control the violence that is promulgated by the prison gangs, STG’s and the

6 ethnic/racial groups, the practice in the CDCR has for many years been to lock down

7 groups of inmates based on race to prevent violence that is imposed upon even those

8 inmates who are not members or associates of prison gangs or STGs.

9

18. I am of the opinion that the prison gangs and STGs have a tremendous influence

10 on the prison culture on some general population yards and can influence the behavior of

11 inmates who are not associates of these groups, but I disagree with the notion that all 12 inmates are obligated to follow the direction of the prison gangs and STGs.1 I am also of

13 the opinion that there is a sizable population of inmates, who given what they believe is a

14 real opportunity to do their own time and program without violence or prison gang

15 influence, would chose to do so. Conversely, I believe many inmates simply go along to

16 get along by following the direction of the prison gang influence because they do not think

17 the alternative (possibly being the victim of retaliation) is acceptable.

18

19. Having said all this, I do not believe race-based lockdowns and extended

19 modified programs in general population facilities is the answer to managing the problem

20 of the prison gang influence that so negatively affects the prisons in California. The across-

21 the-board application of race-based lockdowns will only add to the culture of separation

22 that breeds violence and resentment among the population. I believe it also contributes to a

23 subtle acceptance of the gang culture and empowers the gangs to continue to influence the

24 general population facilities in a negative way.

25

26 27 1 In my experience some inmates are not subject to the coercions of the culture of gang politics
involving the expectation to carry out violence. 28
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Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 8 of 17

1

NEGATIVE IMPACTS FROM RACE-BASED LOCKDOWNS

2

20. The negative impacts of race-based lockdowns and modified programs are

3 many. Probably the first and most important impact is that this approach legitimizes the

4 gang culture and the control it has over the operation of the general population facilities

5 around the state. By taking this approach the prison management is acknowledging the

6 influence and control of the prison gangs and separates the inmates down racial lines. The

7 inmates get the message that the prison management accepts and condones the culture of

8 separation by race and the power the prison gangs have to determine and control that

9 culture. I believe the majority of inmates would choose a positive program without

10 violence if they believed that prison management had a zero tolerance for gang behavior.

11

21. Inmates also resent losing their program and being placed on twenty-four hour

12 house arrest when they individually have not done anything to deserve such treatment.

13 Many view this as unjust punishment. After all, the inmate is involuntarily placed in a

14 prison facility that is heavily influenced and controlled by the prison gang culture,

15 routinely has violent incidents and requires that he either attempt to comply with the

16 authority of the prison gangs or request to be stigmatized by placement in a “sensitive 17 needs” facility.2

18

19

20 2 The CDCR developed the concept of Sensitive Needs Yards (SNY) to make designated general population facilities available to house gang dropouts, informants and sex

21 offenders. These inmates are generally stigmatized in general population housing units,

22

and are at risk of attack. The concept is to house inmates with these type safety concerns in common housing facilities which have general population programs. Over time these

23 programs have grown to include inmates who are not informants, gang dropouts or sex

offenders; rather, many inmates have opted to be placed in a SNY simply so they can “do 24 their own time” and not have to participate in the prison gang culture of violence on the

25 regular general population facilities. Unfortunately, many chose to remain on the general population facilities and face the gang violence because they are more afraid of the

26 stigma that is associated with accepting placement on a SNY. For example, being

27

associated with and residing with child molesters is not something that is accepted by most. Inmates should not have to make such a choice to remain safe.

28 7

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1

22. Inmates are not able to effectively participate in programs to educate and

2 improve themselves when on lock down/modified programs. Inmate activity groups, such

3 as veterans groups, are shut down; self-help groups, such as Alcoholics Anonymous, are

4 shut down; and, education and work training programs are shut down as well for inmates

5 on modified programs.

6

23. It goes without saying that sitting in a cell twenty-four hours a day without

7 outdoor exercise and without opportunities to occupy time in a productive manner is not

8 conducive to pursuing any kind of positive change. And while restricted programs such as

9 the Security Housing Unit programs in the CDCR are absolutely necessary to control

10 individual behavior and protect other inmates from being victimized, many of the inmates

11 on modified programs have demonstrated no individual behavior to warrant the isolation.

12

ALTERNATIVES TO RACE-BASED LOCKDOWNS

13

24. So what is the answer? I have acknowledged that the issue of violence in the

14 general population facilities of the CDCR is a difficult one. Having managed a Level IV

15 prison I have first-hand knowledge of just how difficult.

16

25. When I became Warden at Pelican Bay State Prison, the general population

17 yards there had been on and off of race-based lockdowns for many years. Rather than

18 simply continuing the race-based lockdowns, I undertook a process to unlock the general

19 population facilities without regard to race. It began with an individual assessment of each

20 inmate. Any known gang-related behavior was documented and considered in each

21 assessment. Inmates were brought before classification committees and asked point blank

22 if they were willing to participate in a general population program by “doing their own

23 time;” programming without violence; and, without influence from gang leadership. If they

24 were in agreement they were then told that there would be zero tolerance for gang-related

25 behavior; that participation in the gang politics would result in disciplinary documentation

26 and they would be removed from the yard. They were asked to sign a written agreement to

27 program without violence.

28 8

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1

26. Unlocking the prison after a lengthy lockdown was a slow, deliberate and

2 arduous process. It was a resource intensive undertaking to conduct in-depth individual

3 assessments and to make the effort to actually document individual behaviors that we had

4 not previously taken the time or dedicated the resources to document

5

27. Nonetheless, we were successful in stopping race-based lockdowns at Pelican

6 Bay. Inmates of all races and ethnic groups began to program as we moved forward with

7 this effort of individually assessing the inmates and approving them for release. We began

8 to promote interracial programs and activities that enhance race relations. Multi-cultural

9 videos designed to promote better understanding of cultures other than one’s own were

10 purchased by the education department and shown to the population on the closed circuit

11 television channels.

12

28. The inmates started an inmate activity group on each general population yard

13 called “Choices for a Common Ground” that met weekly and promoted positive

14 relationship between the races. The group was well attended and planned interracial events,

15 intermural activities and tournaments in conjunction with the recreation supervisor.

16

29. Prior to taking these steps at Pelican Bay I would not have believed that the

17 inmates there would have participated and responded in the positive way they did. It was

18 not the total solution and some inmates clung to their deeply held racist or gang culture

19 beliefs, but it did make a difference and it let the population know that we expected

20 positive relationships among the races rather that continuing to condone the culture of

21 separation between the races that had been the norm for so long. Moreover, it allowed us to

22 stop imposing race-based lockdowns and to focus on individual behavior instead.

23

30. Unfortunately, sometime after I left Pelican Bay the approach to lockdowns we

24 had established was discontinued and there was a return to race-based lockdowns. And,

25 while I do not believe our approach was perfect it was a good first step in the right

26 direction toward setting clear expectations, treating inmates as individuals and holding

27 them accountable for their own behavior.

28 9

MCGRATH REPORT AND DECL. ISO MOT FOR PRELIM INJUNCTION, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 11 of 17

1

31. Based on my experience at Pelican Bay, I do not believe the issue can be

2 effectively improved on a long-term basis by one Warden at one prison. In my opinion it

3 will take an entire department to stop doing race-based lockdowns, to rethink the approach

4 to managing the gang culture and to take significant steps to establish a zero tolerance

5 approach to gang-related behavior.

6

32. In my opinion step one is to say, and really mean, as a department that, “we

7 don’t care by what name you call yourself; what your race is; by what label you call

8 yourself; where you are from; what your personal beliefs are; or, who you associate with.

9 What we do care about is your behavior. And, gang-related behavior; behavior that

10 promotes or leads to violence and disrupts the tranquility of the program, will not be

11 tolerated.”

12

33. Step two then is to actually establish a zero tolerance for gang-related behavior.

13 This means that any behavior that is akin to, part of, or in any way supports the gang

14 culture, is not acceptable and will not be tolerated. And, I think this is critically important

15 in ways that may not be readily apparent. For example, prison staff must not continue to

16 tolerate all the gang rules about who is allowed to sit at what table on the yard; or who

17 owns what part of the yard real estate; or the practice of asking a new arrival inmate to

18 show his paperwork to prove where he is from and what he is in prison for.

19

34. Step three is having an alternative to general population placement for those who

20 fail to comply with the no tolerance policy for gang-related behavior. And, having that

21 alternative designed to establish positive patterns of behavior so that return to the general

22 population is possible with conforming behavior. For example, when gang-related behavior

23 is identified, remove the individual from the general population and place him in

24 segregation. While segregated, inmates must be required to demonstrate that they can

25 follow the rules and not participate in gang-related behavior before being allowed to return

26 to the general population.

27

28 10

MCGRATH REPORT AND DECL. ISO MOT FOR PRELIM INJUNCTION, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 12 of 17

35. In my opinion worrying less about labels and race identification and more about

2 ehavior is the key to being able to have a successfully programming general population.

3 nitially upon adopting such an approach there would be many placed in the step-down

4 rograms to begin changing their behavior and working their way back to the general

5 opulation. However, over time conforming behavior in the general population would

6 .ncrease as the need for step-down program separation would decrease. And, of course,

7 here will always be those who will long-term refuse to conform and will need to be kept

8 ut of the general population programs. But, in my opinion these will be the small

9 inority.

10

36. Continuing on the path of separating inmates by race, locking down inmates

11 who have not been involved in the violence and condoning the prison gang culture will

12 not reduce the violence or improve the general population programs. Focusing on

13 individual inmate behavior, rewarding good choices and imposing consequences on

14 unacceptable behavior is, in my opinion, the only way to decrease the violence in the

15 general populations. But it will require a change 'in thinking, a change in approach and a

16 strong commitment to apply the necessary resources to see it through.

17

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

18 United States of America that the foregoing is true and correct.

19 20 Executed this 15th day of May, 2013 at Lodi, California.

21

22

23

24

25

26

27

28
11

MCGRATH REPORT AND DECL. ISO MOT FOR PRELIM INJUNCTION, 08-CV-1196-TLN-EFB

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 13 of 17
Appendix A

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 14 of 17
Cases in which I have consulted or testified since 2005:
 Andres Herrera – California State Personnel Board - Case No. 04-2960 (2005) - Hearing testimony for State as use of force expert – Case related to a California Youth Authority Officer’s use of force (canine) against inmate.
 In Re Disciplinary Appeals by San Joaquin County Correctional Officers Gregory Fuher and Michael Griggs (2006) - Expert testimony for San Joaquin County as use of force and employee discipline expert – Cases related to use of force resulting in inmate death.
 People v Stephen Jones, Los Angeles County Superior Court Criminal Case (2009) - Provided expert consultation to the LA County District Attorney regarding California prison operations in capital case.
 Godoy v Wadsworth USDC ND Case NO. C05-2913 PJH (PR) (2010) - Court testimony regarding the Pelican Bay State Prison Use Of Force Policy & Procedure – Civil Rights case related to a use of force resulting in GBI.
 James Grandy vs. United States of America, Department of Justice USDC CD Case No. CV09-01270 FMC JTLx (2010) - Expert witness report to the Court for Plaintiff and testimony at trial – expert testimony related to maximum security prison operations.
 People v William Austin, Los Angeles County Superior Court Criminal Case No. MA045012 (2010) – Expert witness written report for the Public Defender regarding the impact of mental health treatment delivery systems within the California state prison system for consideration by the Los Angeles County District Attorney in capital case.
 Henderson v Petersen, et al., United States District Court, Northern District of California, Case No. C 07-2838 SBA (2011) – Expert consultation and report to the Court for Defendants regarding the use of force by correctional officers. Deposition given on April 20, 2011. Trial testimony given on July 25, 2011.
 Rojas v Loza, et al., United States District Court, Northern District of California, Case No. C 07-4662 MMC (2011) – Expert consultation for Defendants regarding the use of force by correctional officers. Case settled prior to trial/testimony.
 Coleman v Brown, United States District Court, Eastern District of California, Case No. Civ S 90-0520 LKK-JFM (2011) – Expert consultation, declaration and testimony for Plaintiff’s regarding security at Coalinga State Hospital with recommendations for housing high custody mental health inmate-patients. Deposition given on August 15, 2011.
 In re Jose Morales, Habeas Corpus Case No. A132816, Del Norte County Superior Court, Case No. HCPB 10-5015 (2011) – Expert consultation and declaration for Plaintiff regarding the management of inmate violence and the implementation of lockdowns at Pelican Bay State Prison. Declaration to the Court dated September 7, 2011.
 People v Earl Ellis Green, Riverside Superior Court Case Number RIF 10005956 (2012) – Expert consultation with the Riverside County Capital Defenders Office regarding the prison adjustment of the defendant while

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 15 of 17
serving prior prison terms in California. Provided testimony at trial related to the defendants in-custody disciplinary history and his mental health treatment program in prison.  In Re Disciplinary Appeals by Correctional Officer Matthew Ackernecht, et, al, State Personnel Board Nos. 12-0839, 12-0840, 12-0841, 12-0841 & 12-0875 (2012) – Provided expert testimony on behalf of CDCR regarding employee investigations and discipline – Cases related to an excessive use of force against a CDCR inmate and dishonesty in reporting.  Young v Holmes, et, al, USDC, Northern District of California, Case No. 091042 JSW (2012) – Provided expert analysis for the California Attorney General – Case related to the use of force by CDCR correctional officers against an inmate.  Los Angeles Sheriff’s Department (2012) - Retained by the Los Angeles County Board of Supervisors as an expert to consult with and advise the Sheriff, Los Angeles County, on the development and implementation of the recommendations by the Citizens Commission on Jail Violence and to consult with County Counsel and private counsel on Federal DOJ investigations into alleged Civil Rights violations and potential criminal indictments arising from incidents of force by Los Angeles County Jail deputies.  People v Carlos Contreras, Riverside County Superior Court Case Number INF061947 (2012) - Expert consultation with the Riverside County Capital Defenders Office regarding the prison adjustment of the defendant while serving prior prison terms in Arizona and California.  Hall v Mims, USDC, Eastern District of California, Case NO.1;11 –CV-02047LJO-BAM (2012) – Provided expert consultation to Plaintiff regarding conditions of confinement in the Fresno County Jail.  Robert Mitchell, et al., v Cate, USDC, Eastern District of California, Case No. 08-CV-1196 JAM EFB (2012) – Providing expert consultation/analysis for the Plaintiff regarding the “lockdown” policy and practices in the CDCR.
Compensation
My fees are as follows: $150.00 per hour for consultation, review, research and preparation of documents or expert witness reports; $200.00 per hour for testimony at deposition or trial; $1,500 per day for on-site inspections; other fees include reimbursement for actual expenses such as travel incurred in the course of the work or testimony.

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 16 of 17
Appendix B

Case 2:08-cv-01196-TLN-EFB Document 190 Filed 05/15/13 Page 17 of 17
Documents Reviewed
1. CDCR Department Operations Manual, Section 55015, Oct. 2012, AGOMITCHELL021205 – 021232
2. Deposition of Kelly Harrington, Vols I and II, and Exhibits 3. Deposition of Chris Arthur, and Exhibits 4. Deposition of Jeffrey Beard 5. Deposition of Darin Bradbury 6. Deposition of Greg Lewis 7. Program status reports and investigatory memoranda reflecting lockdowns in
effect during inspections at SVSP and KVSP 8. “Respondent’s Submission of Plans Required by December 10, 2002 Order” In
re Escalera, Del Norte County Superior Court No. 00-5164 (June 9, 2004). 9. “Respondent’s Second Submission re: Compliance with December 10, 2002
Order” In re Escalera, Del Norte County Superior Court No. 00-5164 (Oct 12, 2004). 10. Escalera v. Terhune, Cal. Ct. of Appeal Case No. A101614, Feb. 10, 2004) 2004 WL 238763. 11. In re Morales, 212 Cal. App. 4th 1410 (2013). 12. Declaration and Supplemental Declaration of Devin McDonnell and accompanying spreadsheets describing prison lockdowns from 2010 through March 2013.

 Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 1 of 45
PRISONER_CIVIL_RIGHTS,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento)
CIVIL DOCKET FOR CASE #: 2:08−cv−01196−TLN−EFB

(PC) Mitchell, et al. v. Felker et al Assigned to: District Judge Troy L. Nunley Referred to: Magistrate Judge Edmund F. Brennan Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 05/30/2008 Date Terminated: 06/03/2016 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Robert Mitchell

represented by Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: dspecter@prisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz Morgan, Lewis & Bockius LLP One Market, Spear Street Tower San Francisco, CA 94105 415−442−1414 Fax: 415−442−1001 Email: gholtz@morganlewis.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Gail Flairty Morgan, Lewis & Bockius LLP One Market, Spear Street Tower San Francisco, CA 94105 415−442−1103 Fax: 415−442−1001 Email: matthew.flairty@morganlewis.com TERMINATED: 02/26/2016 LEAD ATTORNEY

Warren E. George , Jr. Prison Law Office 1917 Fifth Street Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: wgeorge@prisonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aman Pradhan Office Of The San Francisco City Attorney 1 Dr. Carlton B. Goodlett Place City Hall, Room 234 San Francisco, CA 94102 415−554−4658 Fax: 415−554−4699 Email: manu.pradhan@sfgov.org TERMINATED: 10/16/2013

Brendan Eugene Radke

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 2 of 45

Goodwin Procter LLP 3 Embarcadero Ctr, Ste 2400 San Francisco, CA 94111−4071 415−733−6000 Fax: 415−677−9041 Email: bradke@goodwinlaw.com ATTORNEY TO BE NOTICED

Heather L. Shook Littler Mendelson, PC 633 West 5th Street 63rd Floor Los Angeles, CA 90071 213−443−4300 Fax: 213−443−4299 Email: hshook@littler.com TERMINATED: 06/06/2013

Rebekah B. Evenson Prison Law Office 1917 Fifth St. Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: revenson@prisonlaw.com TERMINATED: 04/12/2016

Plaintiff Hanif Abdullah

represented by Donald Specter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Gail Flairty (See above for address) TERMINATED: 02/26/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) TERMINATED: 04/12/2016 LEAD ATTORNEY

Warren E. George , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aman Pradhan (See above for address) TERMINATED: 10/16/2013

Heather L. Shook (See above for address) TERMINATED: 06/06/2013

Plaintiff Alvaro Quezada

represented by

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 3 of 45

Donald Specter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Gail Flairty (See above for address) TERMINATED: 02/26/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) TERMINATED: 04/12/2016 LEAD ATTORNEY

Warren E. George , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aman Pradhan (See above for address) TERMINATED: 10/16/2013

Heather L. Shook (See above for address) TERMINATED: 06/06/2013

Plaintiff Tony Trujillo

represented by Donald Specter (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew Gail Flairty (See above for address) TERMINATED: 02/26/2016 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebekah B. Evenson (See above for address) TERMINATED: 04/12/2016 LEAD ATTORNEY

Warren E. George , Jr. (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aman Pradhan (See above for address) TERMINATED: 10/16/2013

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 4 of 45

Heather L. Shook (See above for address) TERMINATED: 06/06/2013

V. Defendant T. Felker

represented by Christopher James Becker Attorney General's Office for the State of California Department of Justice 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 (916) 322−2201 Fax: (916) 324−5205 Email: christopher.becker@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damon Grant McClain Department of Justice, Office of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 703−5750 Fax: (415) 703−5843 Email: damon.mcclain@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin B. Sullivan Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5716 Fax: 415−703−5843 Email: erin.sullivan@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Grant Lien Attorney General's Office of the State of California P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA 94244−2550 916−327−6749 Fax: 916−324−5205 Email: grant.lien@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julianne Mossler California Office of the Attorney General San Francisco Department of Justice 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 5 of 45

(415) 703−5746 Fax: (415) 703−5843 Email: julianne.mossler@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer California Department of Justice Office of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−1380 Fax: 415−703−5843 Email: marisa.kirschenbauer@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins Office Of The Attorney General PO Box 85266 600 West Broadway, Suite 1800 San Diego, CA 92101 (619) 738−9561 Fax: 619−645−2581 Email: Michelle.DesJardins@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris Law Offices of Mark H. Harris 2207 J Street Sacramento, CA 95816 916−442−6155 Fax: 916−444−5921 Email: harris.law@att.net TERMINATED: 04/22/2011

Defendant
J. Walker TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 6 of 45

C. Buckley TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
Service Representative CSR

Defendant D. Vanderville

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 7 of 45

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
D. Leiber TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
J. Mayfield TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
A. Masuret TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 8 of 45

ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
T. Barnard TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant J. Owen

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 9 of 45

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant D. Hellwig

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
T. Kimzey TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 10 of 45

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
D. Cade TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
R. Blanthorn TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 11 of 45

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
R. Beamon TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant
N. Grannis TERMINATED: 08/09/2010

represented by Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant Inmate Appeals Examiner

Defendant
T. Lockwood TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 12 of 45

Defendant
J. McClure TERMINATED: 09/23/2011

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant J. Tilton

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant Lien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 13 of 45

ATTORNEY TO BE NOTICED

Mark H. Harris (See above for address) TERMINATED: 04/22/2011

Defendant F. Foulk

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant M. Wright

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 14 of 45

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matthew Cate CDCR Secretary

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) ATTORNEY TO BE NOTICED

Defendant
Scott Kernan CDCR Undersecretary of Operations

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 15 of 45

Defendant Terri McDonald CDCR Chief Deputy Secretary of Adult Operations
Defendant George Giurbino CDCR Director of the Division of Adult Institutions
Defendant

represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher James Becker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erin B. Sullivan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marisa Yee Kirschenbauer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michelle A. Des Jardins (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 16 of 45

J. Beard

represented by Damon Grant McClain (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Julianne Mossler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Equal Justice Society

represented by Benjamin Jonathan Fox Morrison and Foerster LLP (Los Angeles) 555 West Fifth Street Suite 3500 Los Angeles, CA 90013−1024 213−892−5207 Fax: 213−892−5454 Email: bfox@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Hanna Abrams Morrison & Foerster LLP 707 Wilshire Blvd., Suite 6000 Los Angeles, CA 90017−3543 213−892−5200 Fax: 213−892−5454 Email: habrams@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus United States of America

represented by Laura Lee Coon U.S. Department Of Justice 901 Pennsylvania Avenue, NW Washington, DC 20530 202−514−1089 Email: Laura.Coon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/30/2008 05/30/2008 06/02/2008 06/02/2008 06/06/2008 09/02/2008 11/24/2008

# Docket Text
1 COMPLAINT against all defendants by Robert Mitchell.(Manzer, C) (Entered: 06/02/2008)
2 MOTION to proceed IFP by Robert Mitchell. (Manzer, C) Modified on 5/27/2009 (Mena−Sanchez, L). (Entered: 06/02/2008)
3 PRISONER NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms) (Manzer, C) (Entered: 06/02/2008)
SERVICE BY MAIL: 3 Prisoner New Case Documents for JAM served on Robert Mitchell (Manzer, C) (Entered: 06/02/2008)
4 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Robert Mitchell. (Matson, R) (Entered: 06/09/2008)
5 SUPPLEMENT to 1 Complaint by Robert Mitchell. (Becknal, R) (Entered: 09/05/2008)
6 ORDER REASSIGNING CASE TO VISITING JUDGE signed by Chief Judge Anthony W. Ishii. Case reassigned to Chief Judge Robert S. Lasnik for all further

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 17 of 45

11/24/2008 01/22/2009
01/22/2009 05/27/2009
05/27/2009 06/12/2009 06/12/2009 08/13/2009 08/13/2009 08/13/2009
08/13/2009 08/13/2009 10/02/2009 10/22/2009 10/22/2009 11/10/2009

proceedings. Magistrate Judge Edmund F. Brennan and Judge John A. Mendez no longer assigned to case. (Donati, J) (Entered: 11/24/2008)
SERVICE BY MAIL: 6 Order Reassigning Visiting Judge, served on Robert Mitchell (Donati, J) (Entered: 11/24/2008)
7 ORDER REASSIGNING CASE TO VISITING JUDGE signed by Chief Judge Robert S. Lasnik. Case reassigned to District Judge Richard A. Jones for all further proceedings. Chief Judge Robert S. Lasnik no longer assigned to case. All dates currently set in this matter shall remain pending, subject to further order of the court. (Waggoner, D) (Entered: 01/22/2009)
SERVICE BY MAIL: 7 Order Reassigning Visiting Judge served on Robert Mitchell (Waggoner, D) (Entered: 01/22/2009)
8 ORDER signed by Judge District Judge Richard A. Jones on 5/26/09 ORDERING that Plaintiff's Request for leave to proceed in forma pauperis 2 is GRANTED. Plaintiff shall, within 30 days of the date of this order, submit a second financial affidavit and account certification from prison officials. Service is at least potentially appropriate for the 18 Defendants listed in Mr. Mitchell's complaint. The Clerk shall send Plaintiff 19 USM−285 forms, one summons, an instruction sheet and a copy of the complaint filed 5/30/08.(Mena−Sanchez, L) (Entered: 05/27/2009)
SERVICE BY MAIL: 8 Order served on Robert Mitchell together with 19 USM−285 forms, one summons, an instruction sheet and a copy of the complaint filed 5/30/08. (Mena−Sanchez, L) (Entered: 05/27/2009)
9 NOTICE OF SUBMISSION OF DOCUMENTS: 1 Summons, 18 USM−285 Forms, and 18 copies of the complaint, by Robert Mitchell. [TEXT ONLY] (Reader, L) (Entered: 06/15/2009)
10 MOTION to PROCEED IN FORMA PAUPERIS by Robert Mitchell. (Reader, L) Modified on 8/13/2009 (Streeter, J). (Entered: 06/15/2009)
11 ORDER DIRECTING MONTHLY PAYMENTS be made from Prison Account of Robert Mitchell signed by District Judge Richard A. Jones on 08/12/09. (cc CDC Prisoner Pymt. Orders and Sac Financial).(Streeter, J) (Entered: 08/13/2009)
12 DOCUMENT(S) SERVED ELECTRONICALLY: 10 Motion to Proceed IFP served on CDC Prisoner Payment Orders. (Streeter, J) (Entered: 08/13/2009)
13 ORDER DIRECTING USM signed by District Judge Richard A. Jones on 08/12/09 to serve * Complaint * filed on * 5/30/08,* on * J. Mayfield, A. Masuret, T. Barnard, J. Owen, D. Hellwig, T. Kimzey, D. Cade, R. Blanthorn, R. Beamon, N. Grannis, Robert Mitchell, T. Lockwood, J. McClure, J. Tilton, T. Felker, J. Walker, C. Buckley, D. Vanderville, D. Leiber*. Service Deadline set for 12/14/2009. (cc: USM Priority Sac). (Streeter, J) (Entered: 08/13/2009)
SERVICE BY MAIL: 13 Order Directing Service by USM, 11 Order Directing Prisoner Payment served on Robert Mitchell. Also served copy of Local Rules. (Streeter, J) (Entered: 08/13/2009)
14 ORDER RE CONSENT OR REQUEST FOR REASSIGNMENT Consent or Decline due by 12/14/2009 signed by District Judge Richard A. Jones on 08/12/09. (Streeter, J) (Entered: 08/13/2009)
15 SUMMONS RETURNED UNEXECUTED as to C. Buckley. (Benson, A.) (Entered: 10/06/2009)
16 ANSWER TO PRISONER CIVIL RIGHTS COMPLAINT with Jury Demand by all dfts. Attorney Harris, Mark H added. (Harris, Mark) Modified on 10/23/2009 (Duong, D). (Entered: 10/22/2009)
17 CERTIFICATE of SERVICE re 16 Answer by dfts. (Harris, Mark) Modified on 10/23/2009 (Duong, D). (Entered: 10/22/2009)
18 ORDER SETTING PRETRIAL AND DISCOVERY SCHEDULE, signed by District Judge Richard A. Jones on 11/10/09. The parties may conduct discovery until 3/31/10. Any motions necessary to compel discovery shall be filed by that date. All pretrial

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 18 of 45

11/10/2009 11/25/2009
11/30/2009 12/02/2009
02/02/2010 02/02/2010 02/05/2010
02/05/2010
02/17/2010 03/02/2010 03/02/2010 03/12/2010 03/16/2010 03/16/2010 03/23/2010 04/15/2010 04/26/2010

motions, except motions to compel discovery, shall be filed on or before 6/30/10. (Kastilahn, A) (Entered: 11/10/2009)
SERVICE BY MAIL: 18 Order served on Robert Mitchell. (Kastilahn, A) (Entered: 11/10/2009)
19 WAIVER of SERVICE RETURNED EXECUTED: J. Mayfield Waiver sent on 8/25/2009; A. Masuret Waiver sent on 8/25/2009; N. Grannis Waiver sent on 8/25/2009; T. Lockwood Waiver sent on 8/25/2009; J. McClure Waiver sent on 9/14/2009; J. Walker Waiver sent on 8/25/2009; D. Leiber Waiver sent on 8/25/2009. (Suttles, J) (Entered: 11/30/2009)
20 WAIVER of SERVICE RETURNED EXECUTED: T. Barnard Waiver, J. Owen, D. Hellwig, R. Blanthorn, J. Tilton, T. Felker, C. Buckley, and D. Vanderville, Waivers sent on 11/19/2009, answers due 1/19/2010. (Kastilahn, A) (Entered: 12/01/2009)
21 WAIVER of SERVICE RETURNED EXECUTED: T. Kimzey Waiver sent on 11/19/2009, answer due 1/19/2010; D. Cade Waiver sent on 11/19/2009, answer due 1/19/2010; R. Beamon Waiver sent on 11/19/2009, answer due 1/19/2010. (Kastilahn, A) (Entered: 12/04/2009)
22 MOTION to COMPEL defendant's Responses discovery requests by plaintiff Robert Mitchell. (Marciel, M) (Entered: 02/03/2010)
23 MOTION to modify Scheduling Order to extend time to conduct Discovery by plaintiff Robert Mitchell. (Marciel, M) (Entered: 02/03/2010)
24 OPPOSITION by J. Mayfield, A. Masuret, T. Barnard, J. Owen, D. Hellwig, T. Kimzey, D. Cade, R. Blanthorn, R. Beamon, N. Grannis, T. Lockwood, J. McClure, J. Tilton, T. Felker, J. Walker, C. Buckley, D. Vanderville, D. Leiber to 22 Motion to Compel defendant's Responses discovery requests. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Harris, Mark) Modified on 2/8/2010 (Kaminski, H). (Entered: 02/05/2010)
25 CERTIFICATE of SERVICE by J. Mayfield, A. Masuret, T. Barnard, J. Owen, D. Hellwig, T. Kimzey, D. Cade, R. Blanthorn, R. Beamon, N. Grannis, T. Lockwood, J. McClure, J. Tilton, T. Felker, J. Walker, C. Buckley, D. Vanderville, D. Leiber. (Harris, Mark) (Entered: 02/05/2010)
26 MOTION to COMPEL Responses to Discovery by Robert Mitchell. (Attachments: # 1 Part 2)(Reader, L) (Entered: 02/18/2010)
27 ORDER signed by District Judge Richard A. Jones on 03/01/10 ORDERING that plf's 22 Motion to Compel is DENIED as moot and plf's 23 Motion to modify the court's scheduling order is DENIED as premature. (Benson, A.) (Entered: 03/02/2010)
SERVICE BY MAIL: 27 Order served on Robert Mitchell. (Benson, A.) (Entered: 03/02/2010)
28 MOTION for sanctions for dft's failure to file an opposition or statement of non opposition to plt's motion to compel by Robert Mitchell. (Duong, D) (Entered: 03/15/2010)
29 OPPOSITION by dfts to 26 MOTION to COMPEL Responses to Discovery. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit D)(Harris, Mark) Modified on 3/17/2010 (Duong, D). (Entered: 03/16/2010)
30 CERTIFICATE of SERVICE by dfts re 29 Opposition. (Harris, Mark) Modified on 3/17/2010 (Duong, D). (Entered: 03/16/2010)
31 REPLY in support of re 26 MOTION by Robert Mitchell. (Becknal, R) (Entered: 03/24/2010)
32 NOTICE of CHANGE of ADDRESS to FSP, PO Box 71, Represa, CA 95671−4071 by Robert Mitchell. (Duong, D) (Entered: 04/16/2010)
33 NOTICE of CHANGE of ADDRESS by plaintiff Robert Mitchell to: Folsom State Prison at P. O. Box 71 in Represa, CA 95671. (Marciel, M) (Entered: 04/27/2010)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 19 of 45

04/28/2010 05/28/2010 06/09/2010 06/09/2010 06/09/2010 07/22/2010 07/28/2010 08/05/2010 08/09/2010
08/09/2010 08/27/2010 09/29/2010
09/29/2010

34 NOTICE of CHANGE of ADDRESS by plaintiff Robert Mitchell to: Folsom State Prison at P. O. Box 71 in Represa, CA 95671−5071. (Marciel, M) (Entered: 04/29/2010)
35 NOTICE of CHANGE of ADDRESS to Folsom State Prison P.O. Box 950 Represa, CA 95671 by Robert Mitchell. REQUEST for copies. (Owen, K) Modified on 6/1/2010 (Owen, K). (Entered: 06/01/2010)
36 MOTION for LEAVE to AMEND the 1 Complaint by Robert Mitchell. (Carlos, K) (Entered: 06/10/2010)
37 FIRST AMENDED PRISONER CIVIL RIGHTS COMPLAINT against all defendants by Robert Mitchell.(Carlos, K) (Entered: 06/10/2010)
38 NOTICE of VOLUNTARY DISMISSAL by Robert Mitchell (Carlos, K) (Entered: 06/10/2010)
39 MOTION to impose Sanctions by Robert Mitchell. (Mena−Sanchez, L) (Entered: 07/23/2010)
40 OPPOSITION by dfts to 39 MOTION to impose Sanctions. (Harris, Mark) Modified on 7/29/2010 (Duong, D). (Entered: 07/28/2010)
41 REPLY by Robert Mitchell to 40 Opposition to Motion. (Williams, D) (Entered: 08/06/2010)
42 ORDER signed by District Judge Richard A. Jones on 8/6/10, ORDERING that 38 pltf's motion to dismiss claims against dfts Grannis and Allen with prejudice is GRANTED. Dfts N. Grannis and Allen are DISMISSED. Pltf's 36 motion to amend his complaint is GRANTED. Pltf's 39 motion for sanctions is DENIED. Pltf's 26 motion to compel discovery responses remains pending. The court will set a trial date or other pretrial ddls in conjunction with its order resolving that motion. (Kastilahn, A) (Entered: 08/09/2010)
SERVICE BY MAIL: 42 Order served on Robert Mitchell. (Kastilahn, A) (Entered: 08/09/2010)
43 MOTION for a copy of the first amended complaint and an order directing the USM to serve process by Robert Mitchell. (Matson, R) (Entered: 08/30/2010)
44 ORDER signed by District Judge Richard A. Jones on 9/28/2010 ORDERING that the court GRANTS the 26 motion to compel, DENIES the 28 motion for sanctions, GRANTS the 43 motion for service, and makes additional orders to begin bringing this action to a resolution. Defendants shall provide complete responses to Mr. Mitchells four sets ofdiscovery requests, and shall do so no later than October 29. Defendants have waived any objections to those requests by failing to properly respond to Mr. Mitchell's 26 motion to compel. Defendants shall be responsible for arranging a telephone call with Mr. Mitchell during the week of November 8−12 to determine if he is satisfied with their discovery responses and whether further responses are necessary. The parties shall attempt to resolve any disputes. If Mr. Mitchell chooses, he may file an additional motion to compel no later than November 30 if he finds Defendants' responses unsatisfactory. The court emphasizes that it does not encourage Mr. Mitchell to file such a motion, and that this order in no way excuses Mr. Mitchell from his obligation to reasonably limit the scope of his discovery requests. After November 30, either in conjunction with an order addressing Mr. Mitchells motion to compel or in a separate order if he does not file such amotion, the court will require the parties to meet and confer regarding a trialdate and dates for pretrial submissions as described in paragraph 8 of thecourt's November 10, 2009 scheduling order. The court grants Mr. Mitchell's 43 unopposed motion for service of his amended complaint on Defendants M. Wright and F. Foulk. No later than October 11, Defendants' counsel shall file a notice with the court stating whether he will accept service of the amended complaint on behalf of those Defendants. If counsel declines to do so, the court will issue an order directing the United States Marshal to complete service. All future motions and oppositions to motions in this action shall be limited to 25 pages. All future reply briefs shall be 12 pages or fewer. (Duong, D) (Entered: 09/29/2010)
SERVICE BY MAIL: 44 Order served on Robert Mitchell. (Duong, D) (Entered: 09/29/2010)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 20 of 45

10/11/2010
11/05/2010 11/07/2010
11/15/2010 11/17/2010
11/23/2010 11/29/2010
12/01/2010 12/08/2010 12/09/2010 12/15/2010
12/17/2010 12/22/2010
12/22/2010 12/27/2010 12/27/2010 01/21/2011

45 NOTICE Regarding Acceptance of Service of Amended Complaint on Behalf of Defendants Wright and Foulk by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. (Harris, Mark) (Entered: 10/11/2010)
47 MOTION for Sanctions by Robert Mitchell. (Zignago, K.) (Entered: 11/08/2010)
46 OPPOSITION by Defendants T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker to 47 Motion for Sanctions. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Harris, Mark) Modified on 11/9/2010 (Zignago, K.). (Entered: 11/07/2010)
48 REPLY by Robert Mitchell to RESPONSE to 47 MOTION for Sanctions. (Matson, R) (Entered: 11/16/2010)
49 RESPONSE by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker to 47 MOTION for Sanctions. (Harris, Mark) (Entered: 11/17/2010)
50 MOTION to COMPEL and for SANCTIONS relating to 9/28/2010 44 Order by plaintiff Robert Mitchell. (Marciel, M) (Entered: 11/24/2010)
51 OPPOSITION by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker to 50 Motion to Compel and for Sanctions relating to 9/28/2010 44 Order. (Harris, Mark) (Entered: 11/29/2010)
52 DECLARATION of Mark H. Harris in OPPOSITION TO 50 Motion to Compel and for Sanctions relating to 9/28/2010 44 Order. (Harris, Mark) (Entered: 12/01/2010)
53 MOTION for APPOINTMENT OF COUNSEL by Robert Mitchell. (Mena−Sanchez, L) (Entered: 12/10/2010)
54 REPLY BRIEF by Robert Mitchell in SUPPORT of 50 Motion to Compel and for Sanctions relating to 9/28/2010 44 Order. (Mena−Sanchez, L) (Entered: 12/10/2010)
55 REQUEST for Early Settlement Conference (Joint) by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. (Harris, Mark) (Entered: 12/15/2010)
56 DECLARATION of Mark H. Harris re Status of Meet and Confer Efforts. (Harris, Mark) Modified on 12/20/2010 (Owen, K). (Entered: 12/17/2010)
57 ORDER signed by District Judge Richard A. Jones on 12/22/2010 ORDERING that this case is set for a settlement conference on 1/27/2011 at 9:00 AM at FSP, 300 Prison Road, Represa CA 95671. Dfts' lead counsel and a person with full and unlimited autority to negotiate shall attend in person. After the settlement conference, the parties shall promptly inform the court whether they have resolved this case. The Clerk is directed to serve a copy of this order on the Litigation Office at FSP. (Zignago, K.) (Entered: 12/22/2010)
SERVICE BY MAIL: 57 Order served on Robert Mitchell and copy faxed to FSP. (Zignago, K.) (Entered: 12/22/2010)
58 DECLARATION by Robert Mitchell in SUPPORT of 53 MOTION to APPOINT COUNSEL. (Manzer, C) (Entered: 12/28/2010)
59 RESPONSE by Robert Mitchell to telephonic conferences. (Manzer, C) (Entered: 12/28/2010)
60 ORDER granting 53 Motion to Appoint Counsel signed by District Judge Richard A. Jones on 1/20/11: Rebekah Bella Evenson is appointed limited purpose counsel. This appointment is for the limited purpose of assisting plaintiff in settlement negotiations and will terminate thirty days after completion of the January 27th settlement conference, or any continuation of the settlement conference. The Clerk of the Court is

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 21 of 45

01/21/2011 01/21/2011 01/24/2011 01/27/2011 01/27/2011 01/27/2011 02/07/2011 03/14/2011 03/16/2011 04/22/2011 04/27/2011 05/04/2011 05/04/2011
05/11/2011
05/16/2011

directed to serve a copy of this order upon Rebekah Evenson, Prison Law Office. (Kaminski, H) (Entered: 01/21/2011)
SERVICE BY MAIL: 60 Order on Motion to Appoint Counsel, served on Robert Mitchell and Rebekah Evenson. (Kaminski, H) (Entered: 01/21/2011)
61 MINUTE ORDER: (TEXT ONLY) signed by District Judge Richard A. Jones on 1/21/2011. The settlement conference currently scheduled to occur at Folsom State Prison, January 27, 2011, before Magistrate Judge Craig M. Kellison, will now occur at California State Prison, Solano. (Crouch, J) (Entered: 01/21/2011)
62 LETTER from Bruce Senator re Robert Mitchell. (Kaminski, H) (Entered: 01/25/2011)
63 ANSWER TO PRISONER CIVIL RIGHTS COMPLAINT with Jury Demand by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. (Harris, Mark) (Entered: 01/27/2011)
64 CERTIFICATE of SERVICE re 63 ANSWER by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. (Harris, Mark) Modified on 1/28/2011 (Kaminski, H). (Entered: 01/27/2011)
65 MINUTES (Text Only) for proceedings held before Magistrate Judge Craig M. Kellison: SETTLEMENT CONFERENCE held on 1/27/2011; CASE NOT SETTLED. (Pine, C) (Entered: 01/28/2011)
66 OPPOSITION by dfts to 50 Motion to Compel and for Sanctions relating to 9/28/2010 44 Order. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8)(Harris, Mark) Modified on 2/8/2011 (Duong, D). (Entered: 02/07/2011)
67 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. (Lien, Grant) (Entered: 03/14/2011)
68 MOTION to APPOINT COUNSEL by Robert Mitchell. (Manzer, C) (Entered: 03/17/2011)
69 ORDER SUBSTITUTING ATTORNEY signed by District Judge Richard A. Jones on 4/22/2011 Attorney Grant Lien, Esquire for defendants, Mark H. Harris TERMINATED. (Reader, L) (Entered: 04/22/2011)
70 MOTION for LEAVE to file SECOND 37 AMENDED COMPLAINT by Robert Mitchell. (Attachments: # 1 Exhibit A (Proposed Second Amended Complaint), # 2 Proposed Order) (Evenson, Rebekah) Modified on 5/25/2011 (Marciel, M). (Entered: 04/27/2011)
71 ASSOCIATION of ATTORNEY: Deputy Attorneys General Damon McClain, Erin Sullivan and Christopher Becker are added as to defendants. (McClain, Damon) Modified on 5/6/2011 (Zignago, K.). (Entered: 05/04/2011)
72 STIPULATION and PROPOSED ORDER for to Modify the Briefing and Hearing Schedule for Plaintiff's Motion for Leave to File a Second−Amended Complaint by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker. Attorney McClain, Damon Grant added. (McClain, Damon) (Entered: 05/04/2011)
73 ORDER signed by District Judge Richard A. Jones on 5/10/2011 re 72 Stipulation and Proposed Order, IT IS ORDERED that defendants' response to Plaintiff's motion is due on or before 5/24/2011; Plaintiff's reply is due on or before 6/3/2011; and the court will contact parties if it decides to hear oral argument before deciding Plaintiff's motion. (Waggoner, D) (Entered: 05/11/2011)
74 NOTICE of APPEARANCE by Heather L. Shook on behalf of Robert Mitchell. Attorney Shook, Heather L. added. (Shook, Heather) (Entered: 05/16/2011)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 22 of 45

05/24/2011 05/24/2011 05/24/2011 05/24/2011 05/25/2011 05/25/2011 06/03/2011 08/01/2011
09/23/2011 09/23/2011 10/03/2011 10/07/2011 10/11/2011 10/13/2011
10/14/2011 10/19/2011

75 OPPOSITION by defendants to 70 Motion for Leave to file Second 37 Amended Complaint. Attorney McClain, Damon Grant added. (McClain, Damon) Modified on 5/25/2011 (Marciel, M). (Entered: 05/24/2011)
76 DECLARATION of Damon McClain in support of 75 Opposition to Motion. (Attachments: # 1 Exhibit A) (McClain, Damon) Modified on 5/25/2011 (Marciel, M). (Entered: 05/24/2011)
77 REQUEST for JUDICIAL NOTICE in support of defendants' 75 Opposition to Motion for Leave. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C) (McClain, Damon) Modified on 5/25/2011 (Marciel, M). (Entered: 05/24/2011)
78 [DISREGARD − Docketed in error] (Waggoner, D) Modified on 5/25/2011 (Waggoner, D). (Entered: 05/25/2011)
79 [DISREGARD − Docketed in the wrong case] ORDER signed by District Judge Richard A. Jones on 5/25/2011 setting trial date of 10/3/2011. Final Pretrial Conference will be set at a later date.(Waggoner, D) Modified on 5/25/2011 (Waggoner, D). (Entered: 05/25/2011)
80 CLERK'S NOTICE of DOCKET CORRECTION re 78 Minute Order and 79 Scheduling Order shall be disregarded as docketed in this case in error. (TEXT ONLY ENTRY) (Waggoner, D) (Entered: 05/25/2011)
81 REPLY IN SUPPORT by Robert Mitchell of 70 Motion for Leave to file a Second Amended Complaint. (Evenson, Rebekah) Modified on 6/6/2011 (Reader, L). (Entered: 06/03/2011)
82 ORDER of RECUSAL signed by District Judge Richard A. Jones on 8/1/11 ORDERING this action REASSIGNED to Eastern District of California Judges. This case is REASSIGNED back to District Judge John A. Mendez and Magistrate Judge Edmund F. Brennan for all further proceedings. The case number on all future filed documents shall be 2:08−cv−1196 JAM EFB. 47 Motion for Sanctions, 50 Motion to Compel and for Sanctions and 68 Motion to Appoint Counsel are TERMINATED. (Donati, J) (Entered: 08/01/2011)
83 ORDER signed by Magistrate Judge Edmund F. Brennan on 9/22/11 GRANTING 70 Motion to Amend the Complaint. Defendants have 30 days from the date this order is served to respond to the amended complaint.(Dillon, M) (Entered: 09/23/2011)
84 SECOND AMENDED COMPLAINT against All Defendants by Robert Mitchell.(Dillon, M) (Entered: 09/29/2011)
85 SUMMONS ISSUED as to *Matthew Cate, George Giurbino, Scott Kernan, Terri McDonald* with answer to complaint due within *21* days. Attorney *Rebekah Evenson* *Prison Law Office* *1917 Fifth Street* *Berkeley, CA 94710−1916*. (Donati, J) (Entered: 10/03/2011)
86 REQUEST FOR RECONSIDERATION by the District Court re 83 Order by Defendants. (McClain, Damon) Modified docket text and added link on 10/12/2011 (Waggoner, D). (Entered: 10/07/2011)
87 SUMMONS RETURNED EXECUTED: Matthew Cate served on 10/7/2011, answer due 10/28/2011; George Giurbino served on 10/7/2011, answer due 10/28/2011; Scott Kernan served on 10/7/2011, answer due 10/28/2011; Terri McDonald served on 10/7/2011, answer due 10/28/2011. (Evenson, Rebekah) (Entered: 10/11/2011)
88 STIPULATION and PROPOSED ORDER for To Modify Defendants' Deadline to Respond to Second Amended Complaint by T. Barnard, R. Beamon, R. Blanthorn, C. Buckley, D. Cade, T. Felker, F Foulk, D. Hellwig, T. Kimzey, D. Leiber, T. Lockwood, A. Masuret, J. Mayfield, J. McClure, J. Owen, J. Tilton, D. Vanderville, J. Walker, M. Wright. (McClain, Damon) (Entered: 10/13/2011)
89 OPPOSITION by Plaintiff Robert Mitchell to 86 Request for reconsideration. (Evenson, Rebekah) Modified on 10/17/2011 (Plummer, M). (Entered: 10/14/2011)
90 STIPULATION and ORDER signed by Magistrate Judge Edmund F. Brennan on 10/19/11: If the Court denies Defendants' request for reconsideration, Defendants' response to Plaintiff's second−amended complaint must be filed by October 24, 2011,

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 23 of 45

10/28/2011 11/02/2011
11/02/2011 11/02/2011 11/04/2011 11/16/2011
11/16/2011 11/18/2011 11/23/2011
11/28/2011 11/30/2011 12/01/2011 12/07/2011 12/07/2011

or within five days after the Court rules on Defendants' request for reconsideration, whichever date is later. This proposed deadline will apply to all Defendants named in the second−amended complaint. (Kaminski, H) (Entered: 10/20/2011)
91 ORDER signed by Judge John A. Mendez on 10/27/2011 ORDERING 86 Defendants Request for Reconsideration is DENIED. (Reader, L) (Entered: 10/28/2011)
92 MOTION to DISMISS by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney McClain, Damon Grant added. Motion Hearing set for 12/14/2011 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Attachments: # 1 Points and Authorities)(McClain, Damon) Modified on 11/9/2011 (Yin, K). (Entered: 11/02/2011)
93 DECLARATION of D. Foston in SUPPORT OF 92 MOTION to DISMISS. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(McClain, Damon) (Entered: 11/02/2011)
94 REQUEST for JUDICIAL NOTICE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright in re 92 Motion to Dismiss,. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClain, Damon) (Entered: 11/02/2011)
95 MOTION (Request) for Status Conference by Robert Mitchell. (Evenson, Rebekah) Modified on 11/14/2011 (Yin, K). (Entered: 11/04/2011)
96 ORDER signed by Magistrate Judge Edmund F. Brennan on 11/16/2011 ORDERING that parties shall file status reports not later than 21 days from the date of this order; Clerk is directed to resend consent forms to the parties; parties shall return the consent forms within 14 days of the date of this order to inform the court whether they consent or decline to have this case before the assigned magistrate judge for all purposes. (Waggoner, D) (Entered: 11/16/2011)
97 ORDER RE CONSENT ISSUED; Consent or Decline due by 12/19/2011 (Waggoner, D) (Entered: 11/16/2011)
98 STIPULATION and PROPOSED ORDER for to Modify the Briefing Schedule for Defendants' Motion to Dismiss by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 11/18/2011)
99 STIPULATION and ORDER signed by Magistrate Judge Edmund F. Brennan on 11/22/2011 re: 98 Stipulation and Proposed Order ORDERING that the Court approves modifications as follows: plaintiffs' opposition to Motion to Dismiss due on or before 11/28/2011; defendants' reply due 12/7/2011; and hearing on the Motion to Dismiss will be on 12/14/2011. (Waggoner, D) (Entered: 11/23/2011)
100 OPPOSITION by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 92 MOTION to DISMISS. Attorney Pradhan, Aman added. (Attachments: # 1 Declaration of Rebekah Evenson, # 2 Exhibit A)(Pradhan, Aman) Modified on 11/29/2011 (Plummer, M). (Entered: 11/28/2011)
101 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (Evenson, Rebekah) (Entered: 11/30/2011)
102 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 12/01/2011)
103 REPLY by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 92 MOTION to DISMISS. (McClain, Damon) (Entered: 12/07/2011)
104 JOINT STATUS CONFERENCE STATEMENT by Robert Mitchell. (Evenson, Rebekah) Modified on 12/8/2011 (Plummer, M). (Entered: 12/07/2011)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 24 of 45

12/08/2011 01/11/2012 06/28/2012
06/29/2012
07/05/2012 07/12/2012 07/24/2012 07/24/2012 07/26/2012 07/27/2012
07/30/2012

105 MINUTE ORDER by CRD: DEFT'S MOTION TO DISMISS 92 presently calendared for hearing on 12/14/2011 is CONTINUED to 1/11/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Text only entry) (Cannarozzi, N) (Entered: 12/08/2011)
106 MINUTES (Text Only) for MOTION HEARING held on 1/11/2012 before Magistrate Judge Edmund F. Brennan re: DEFT'S MOTION TO DISMISS 92 . All parties present. Arguments heard. The motion was submitted. Findings and Recommendations to issue. Plaintiffs Counsel Rebekah Evenson and Donald Spector present. Defendants Counsel Damon McClain and Christopher Becker present. Court Reporter/CD Number: Jonathan Anderson, ECRO. (Cannarozzi, N) (Entered: 01/11/2012)
107 FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 06/28/12 recommending that defendants' motion to dismiss 92 be denied in all respects except that: a. Plaintiff Mitchell's Eighth and Fourteenth Amendment claims based on lockdowns that occurred before 09/12/06 be dismissed as unexhausted; and b. Plaintiff Mitchell's state law damages claims be limited to the period from 2/28/07 through 12/05/07. MOTION to DISMISS 92 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M) (Entered: 06/28/2012)
108 REQUEST for Letter re Request to Reopen Discovery by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 107 FINDINGS and RECOMMENDATIONS recommending that defendants' motion to dismiss 92 be denied in all respects except that: a. Plaintiff Mitchell's Eighth and Fourteenth Amendment claims based on lockdowns that occurred before 09/12/06 be dismissFINDINGS and RECOMMENDATIONS recommending that defendants' motion to dismiss 92 be denied in all respects except that: a. Plaintiff Mitchell's Eighth and Fourteenth Amendment claims based on lockdowns that occurred before 09/12/06 be dismissFINDINGS and RECOMMENDATIONS recommending that defendants' motion to dismiss 92 be denied in all respects except that: a. Plaintiff Mitchell's Eighth and Fourteenth Amendment claims based on lockdowns that occurred before 09/12/06 be dismiss. (Pradhan, Aman) (Entered: 06/29/2012)
109 REQUEST for by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney Sullivan, Erin B. added. (Sullivan, Erin) (Entered: 07/05/2012)
110 OBJECTIONS to FINDINGS and RECOMMENDATIONS 107 by Defendants Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 07/12/2012)
111 RESPONSE by Robert Mitchell to 110 Objections to Findings and Recommendations. (Evenson, Rebekah) (Entered: 07/24/2012)
112 APPLICATION for Matters To Be Heard By District Court Pursuant to Local Rule 302(d) by Robert Mitchell. (Evenson, Rebekah) (Entered: 07/24/2012)
113 MINUTE ORDER: Plaintiffs filed a request pursuant to Local Rule 303(d) for the District Court to retain this matter 112 . Defendants are ordered file a response not exceeding 5 pages by 12:00PM on July 30, 2012. No party is permitted to file a reply brief. IT IS SO ORDERED (TEXT ENTRY ONLY)(Vine, H) (Entered: 07/26/2012)
114 ORDER signed by Judge John A. Mendez on 7/27/12 ORDERING 107 Findings and Recommendations are adopted in full; and 92 Motion to Dismiss is denied in all respects except that: Plaintiff Mitchell's Eighth and Fourteenth Amendment claims based on lockdowns that occurred before September 12, 2006 are dismissed as unexhausted, and Plaintiff Mitchell's state law damages claims are limited to the period from February 28, 2007 through December 5, 2007.(Matson, R) (Entered: 07/27/2012)
115 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 112 Application. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11)(McClain, Damon) (Entered: 07/30/2012)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 25 of 45

07/30/2012
07/31/2012 08/10/2012 08/15/2012 08/22/2012
08/28/2012
09/13/2012 09/17/2012 09/18/2012 09/28/2012 10/03/2012 10/03/2012 10/10/2012

116 MINUTE ORDER: Plaintiffs filed a request pursuant to Local Rule 302(d) for the District Court to retain this matter 112 . Defendants opposed the request 115 . The Court finds that Plaintiffs do not show unusual and compelling circumstances sufficient to meet the standard contained in Local Rule 302(d). Accordingly, Judge Brennan will retain this matter in accordance with Local Rule 302. IT IS SO ORDERED. (TEXT ENTRY ONLY)(Vine, H) (Entered: 07/30/2012)
117 MINUTE ORDER by CRD: IT IS HEREBY ORDERED that this action is set for a Status Conference set for 8/22/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. The parties shall file an amended Joint Status Conference Statement 104 no later than 8/15/2012. (Text only entry) (Cannarozzi, N) (Entered: 07/31/2012)
118 ANSWER TO PRISONER CIVIL RIGHTS COMPLAINT by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Attachments: # 1 Proof of Service)(Sullivan, Erin) (Entered: 08/10/2012)
119 JOINT STATUS REPORT by Robert Mitchell. (Evenson, Rebekah) (Entered: 08/15/2012)
120 MINUTES (Text Only) for proceedings held before Magistrate Judge Edmund F. Brennan: STATUS CONFERENCE held on 8/22/2012. Counsel for parties present. Court and counsel discussed scheduling and discovery in the case. Scheduling order to issue. Plaintiffs Counsel Donald Specter and Rebekah Evenson present. Defendants Counsel Damon McClain and Christopher Becker present. Court Reporter/CD Number: ECRO/1. (Shaddox−Waldrop, A) (Entered: 08/22/2012)
121 STATUS (PRETRIAL SCHEDULING) ORDER signed by Magistrate Judge Edmund F. Brennan on 8/27/12. All Rule 26 initial disclosures shall be provided on or before 9/21/2012. The parties may conduct non−expert discovery until 3/13/2013. Motions to compel non−expert discovery must be heard no later than 2/13/2013. The parties shall make their initial expert disclosures on or before 3/13/2013, and rebuttal expert disclosures on or before 4/8/2013. The parties may conduct expert discovery until 5/20/2013. All pretrial motions, except motions to compel discovery, shall be completed as described herein on or before 7/3/2013. Final Pretrial Conference SET for 8/28/2013 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. Jury Trial SET for 10/21/2013 at 09:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Kastilahn, A) Modified on 8/28/2012 (Kastilahn, A). (Entered: 08/28/2012)
122 STIPULATION and PROPOSED ORDER for Protective Order governing discovery by Robert Mitchell. (Evenson, Rebekah) (Entered: 09/13/2012)
123 STIPULATION and ORDER signed by Magistrate Judge Edmund F. Brennan on 09/17/12 regarding confidential material. (See order for further details) (Plummer, M) (Entered: 09/17/2012)
124 MOTION for DISCOVERY by Robert Mitchell. Motion Hearing set for 10/10/2012 at 10:00 AM in Courtroom 24 (EFB) before Magistrate Judge Edmund F. Brennan. (Evenson, Rebekah) (Entered: 09/18/2012)
125 MOTION For Protective Order Regarding the Timing of Defendants' Responses to Plaintiffs' Requests for Production and Interrogatories by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney Becker, Christopher James added. (Becker, Christopher) (Entered: 09/28/2012)
126 STATEMENT of Joint Statement re Discovery Dispute by Plaintiff Robert Mitchell re 124 MOTION for DISCOVERY . (Attachments: # 1 Declaration Joseph McGrath, # 2 Declaration Eldon Vail)(Evenson, Rebekah) (Entered: 10/03/2012)
127 MOTION to COMPEL Discovery Responses by Robert Mitchell. (Pradhan, Aman) (Entered: 10/03/2012)
128 MINUTES (Text Only) for MOTION HEARING held on 10/10/2012 before Magistrate Judge Edmund F. Brennan re: PLTF'S MOTION REGARDING PRISON INSPECTIONS 124 . All parties present. Arguments heard. For the reasons as stated

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 26 of 45

10/12/2012 10/15/2012 10/17/2012 10/17/2012 10/24/2012
10/26/2012
11/08/2012 11/09/2012 11/16/2012 11/21/2012

on the record, the Court denied pltf's motion. Defense counsel to prepare a summary order for the Court's review and signature. Plaintiffs Counsel Rebekah Evenson present. Defendants Counsel Damon McClain and Christopher Becker present. Court Reporter/CD Number: Alex Waldrop, ECRO. (Cannarozzi, N) (Entered: 10/10/2012)
129 PROPOSED ORDER re Discovery Dispute by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 10/12/2012)
130 NOTICE of APPEARANCE by Marisa Kirschenbauer on behalf of Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) Modified on 10/22/2012 (Yin, K). (Entered: 10/15/2012)
131 ORDER signed by Magistrate Judge Edmund F. Brennan on 10/17/12 DENYING 124 Plaintiffs request that their counsel accompany Defendants experts during any prison visits. (Dillon, M) (Entered: 10/17/2012)
132 JOINT STATEMENT regarding Discovery Disagreement ( 125 Defendants' Motion for Protective Order and 127 Plaintiffs' Motion to Compel) by Plaintiffs Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (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 Declaration of X.CANO)(Pradhan, Aman) Modified on 10/22/2012 (Yin, K). (Entered: 10/17/2012)
133 MINUTES (Text Only) for MOTION HEARING held on 10/24/2012 before Magistrate Judge Edmund F. Brennan re: DEFT'S MOTION FOR PROTECTIVE ORDER 125 and PLTF'S MOTION TO COMPEL DISCOVERY RESPONSES 127 . All parties present. Arguments heard. Court order to follow. Plaintiffs Counsel Aman Pradhan, Rebekah Evenson and Heather Shook present. Defendants Counsel Christopher Becker and Erin Sullivan present. Court Reporter/CD Number: Jonathan Anderson, ECRO. (Cannarozzi, N) (Entered: 10/24/2012)
134 ORDER signed by Magistrate Judge Edmund F. Brennan on 10/25/12 ordering defendants shall respond to plaintiff's request for production of documents by producing all readily available documents now, and the remainder on a rolling basis in accordance with the schedule proposed by defendants in the parties joint statement. The parties shall meet and confer to define the scope of electronic discovery with their respective information technology specialists by close of business on 10/31/12. Defendant Cates's objections to plaintiff's interrogatories are overruled. Defendant Cate shall substantively respond to interrogatories 1−11 by 10/30/12. Defendant Cate shall substantively respond to interrogatories 12−17 by 11/06/12. The clerk of the court shall terminate docket entries 125 and 127 . (Plummer, M) (Entered: 10/26/2012)
135 STIPULATION and PROPOSED ORDER for TO EXTEND DEADLINE TO HEAR DEFENDANTS MOTION TO QUASH PLAINTIFFS THIRD−PARTY SUBPOENA by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Attachments: # 1 Proof of Service)(Sullivan, Erin) (Entered: 11/08/2012)
136 MOTION to QUASH DEFENDANTS NOTICE OF MOTION TO QUASH PLAINTIFFS THIRD PARTY SUBPOENA by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Attachments: # 1 Proof of Service)(Sullivan, Erin) (Entered: 11/09/2012)
137 ORDER signed by Magistrate Judge Edmund F. Brennan on 11/15/12 ORDERING that the Parties shall have until November 28, 2012 to file a Joint Statement re Discovery Dispute in accordance with Local Rule 251(c). Defendants Motion to Quash will be heard on December 5, 2012 at 10:00 a.m, or at the Courts earliest convenience. (Dillon, M) (Entered: 11/16/2012)
138 MOTION for Leave of Court to Depose Incarcerated Witnesses by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Attachments: # 1 Proposed Order)(Becker, Christopher) (Entered: 11/21/2012)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 27 of 45

11/26/2012 11/28/2012 01/09/2013 01/09/2013 01/17/2013 01/17/2013 01/22/2013
01/30/2013
01/30/2013 02/04/2013 02/06/2013

139 ORDER signed by Magistrate Judge Edmund F. Brennan on 11/26/2012 ORDERING that defendants may take the deposition of the plaintiffs and any other incarcerated witnesses as requested in the 138 motion. (Yin, K) (Entered: 11/26/2012)
140 NOTICE to Court re Defendants' Motion to Quash Plaintiffs' Third−Party Subpoena by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Kirschenbauer, Marisa) (Entered: 11/28/2012)
141 STIPULATION and PROPOSED ORDER for re Defendants' Initial Disclosures by Robert Mitchell. (Evenson, Rebekah) (Entered: 01/09/2013)
142 MOTION for DISCOVERY and to Extend Pretrial Deadlines by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. Attorney Holtz, Geoffrey Thomas added. Motion Hearing set for 1/30/2013 at 10:00 AM in Courtroom 24 (CKD) before Magistrate Judge Edmund F. Brennan. (Holtz, Geoffrey) (Entered: 01/09/2013)
143 STIPULATION and PROPOSED ORDER for re Defendants' Supplemental Production by Robert Mitchell. (Evenson, Rebekah) (Entered: 01/17/2013)
144 AMENDED NOTICE of MOTION for DISCOVERY amending 142 MOTION for DISCOVERY and to Extend Pretrial Deadlines by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. Motion Hearing set for 2/6/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Holtz, Geoffrey) Modified on 1/18/2013 (Cannarozzi, N). Modified on 1/18/2013 (Plummer, M). (Entered: 01/17/2013)
145 MINUTE ORDER: The parties' January 9, and January 17, 2013 stipulations are approved with the following modification and additions. The last two sentences of Paragraph 3 of the January 17 stipulation are modified to read, " Defendants agree not to rely on any Program Status Reports generated after March 13, 2013, IN THAT Defendants agree that they will not argue or present evidence that CDCR's policy or practice regarding modified programs and/or lockdowns changed after March 13, 2013." As for both stipulations, the court adds that when parties agree to conduct discovery beyond the discovery completion deadline set by the court, it does not have the effect of modifying the court's schedule and the parties assume the risk that the court will not decide disputes relating to that discovery. Any request to modify the discovery completion deadline set in the scheduling order must satisfy the requirements of Rule 16(b)(4) of the Federal Rules of Civil Procedure. (Text only entry) (Cannarozzi, N) (Entered: 01/22/2013)
146 JOINT STATEMENT regarding Discovery Motion 142 by Plaintiffs Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo (Attachments: # 1 Declaration of Manu Pradhan, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 14, # 14 Declaration of Damon McClain, # 15 Exhibit A, # 16 Exhibit B, # 17 Exhibit C, # 18 Exhibit D!, # 19 Exhibit D2, # 20 Exhibit D3, # 21 Exhibit D4, # 22 Exhibit D5, # 23 Exhibit E, # 24 Exhibit F1, # 25 Exhibit F2, # 26 Exhibit F3, # 27 Exhibit F4, # 28 Exhibit F5, # 29 Exhibit F6, # 30 Exhibit F7, # 31 Exhibit F8, # 32 Exhibit F9, # 33 Exhibit F10, # 34 Exhibit F11, # 35 Exhibit F12, # 36 Exhibit F13, # 37 Declaration of Marisa Kirshenbauer, # 38 Exhibit A1, # 39 Exhibit A2, # 40 Exhibit A3, # 41 Exhibit A4, # 42 Exhibit A5, # 43 Exhibit A6, # 44 Exhibit A7, # 45 Exhibit A8, # 46 Exhibit A9, # 47 Exhibit A10, # 48 Exhibit B, # 49 Exhibit C)(Holtz, Geoffrey) Modified on 1/31/2013 (Plummer, M). (Entered: 01/30/2013)
147 REQUEST for Seal Documents by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 146 Statement,,,, filed by Hanif Abdullah, Tony Trujillo, Robert Mitchell, Alvaro Quezada. (Holtz, Geoffrey) (Entered: 01/30/2013)
148 ORDER signed by Magistrate Judge Edmund F. Brennan on 02/04/13 ordering plaintiff's request to seal 147 is granted. The clerk of court shall file the documents listed above under seal. (Plummer, M) Modified on 2/4/2013 (Plummer, M). (Entered: 02/04/2013)
149 MINUTES (Text Only) for MOTION HEARING held on 2/6/2013 before Magistrate Judge Edmund F. Brennan re: PLTF'S MOTION FOR DISCOVERY AND TO EXTEND PRETRIAL DEADLINES 142 . All parties present. Arguments heard.

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 28 of 45

02/07/2013 02/08/2013
02/11/2013
02/27/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/05/2013
03/05/2013 03/05/2013 03/05/2013 03/05/2013

Motion submitted. Court order to issue. Plaintiffs Counsel Geoffrey Holtz present. Defendants Counsel Damon McClain and Marisa Kirschenbauer present. Court Reporter/CD Number: ECRO, CD 1 of 1. (Cannarozzi, N) (Entered: 02/06/2013)
150 STIPULATION and PROPOSED ORDER for Amending Scheduling Order by Robert Mitchell. (Shook, Heather) (Entered: 02/07/2013)
151 STIPULATION and ORDER signed by Magistrate Judge Edmund F. Brennan on 2/8/2013 and agreed between the parties to AMEND the pre−trial schedule as to: Non−Expert Discovery due 4/30/2013; Expert Discovery due 7/19/2013; Law and Motions due on or before 8/19/2013; Joint Pretrial Statement due 11/20/2013; Pretrial Conference is set for 12/4/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan; and Jury Trial is set for 3/3/2014 at 08:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Yin, K) (Entered: 02/08/2013)
152 ORDER signed by Magistrate Judge Edmund F. Brennan on 2/11/2013 ORDERING plaintiffs may depose Matthew Cate and Dr. Jeffrey Beard, each deposition shall not exceed four hours; plaintiffs' request for an order directing defendants "to produce Dr. Beard's reports analyzing and making recommendations regarding CDCR's lockdown policy and related documents," Dckt. No. 146 at 10, is DENIED, without prejudice; defendants shall produce all e−mails relevant to the noticed depositions by 3/8/2013; defendants shall produce all remaining electronic discovery by 3/29/2013; and the Clerk shall terminate docket entry 142 . (Yin, K) (Entered: 02/11/2013)
153 NOTICE of APPEARANCE by Donald Specter on behalf of Robert Mitchell. (Specter, Donald) (Entered: 02/27/2013)
154 NOTICE of Request to Seal Document(s) in Support of 155 Motion to Certify Class pursuant to L.R. 141 by Robert Mitchell. (Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
155 MOTION to CERTIFY CLASS And Memorandum of Points and Authorities by Robert Mitchell. Motion Hearing set for 4/3/2013 at 10:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Attachments: # 1 Proposed Order)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
156 MOTION for PRELIMINARY INJUNCTION And Memorandum of Points and Authorities by Robert Mitchell. Motion Hearing set for 4/3/2013 at 10:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Attachments: # 1 Proposed Order)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
157 REQUEST for JUDICIAL NOTICE by Robert Mitchell in re 155 Motion to Certify Class, 156 Motion for Preliminary Injunction,. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Holtz, Geoffrey) (Entered: 03/05/2013)
158 DECLARATION of R. Evenson in SUPPORT OF 155 Motion to Certify Class, 156 Motion for Preliminary Injunction. (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, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
159 DECLARATION of Eldon Vail in SUPPORT OF 156 Motion for Preliminary Injunction, 155 Motion to Certify Class. (Attachments: # 1 Exhibit 1)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
160 DECLARATION of Devin McDonell in SUPPORT OF 155 Motion to Certify Class , 156 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
161 DECLARATION of Robert Mitchell in SUPPORT OF 156 Motion for Preliminary Injunction, 155 Motion to Certify Class. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
162 DECLARATION of Hanif Abdullah in SUPPORT OF 155 Motion to Certify Class, 156 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 29 of 45

03/05/2013 03/05/2013 03/05/2013 03/05/2013 03/06/2013
03/07/2013 03/07/2013 03/07/2013 03/11/2013 03/11/2013 03/11/2013
03/12/2013 03/13/2013 03/20/2013

Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
163 DECLARATION of Alvaro Quezada in SUPPORT OF 155 Motion to Certify Class, 156 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
164 DECLARATION of Tony Trujillo in SUPPORT OF 155 Motion to Certify Class, 156 Motion for Preliminary Injunction. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
165 DECLARATION of Geoffrey T. Holtz in SUPPORT OF 155 Motion to Certify Class. (Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
166 DECLARATION of Donald Specter in SUPPORT OF 155 Motion to Certify Class. (Attachments: # 1 Exhibit A)(Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/05/2013)
167 MINUTE ORDER: Plaintiffs have mistakenly noticed a motion to certify class 155 and a motion for preliminary injunction 156 before Judge Mendez on April 3, 2013, and as a consequence, these matters will not be set for hearing. Counsel should contact Mr. Nic Cannarozzi to obtain a hearing date before Magistrate Judge Brennan. Mr. Cannarozzi can be reached at 916−930−4172, or via e−mail at: ncannarozzi@caed.uscourts.gov. (TEXT ENTRY ONLY) (Vine, H) (Entered: 03/06/2013)
168 NOTICE of Change of Firm re Warren E. George by Robert Mitchell. (Holtz, Geoffrey) Modified on 3/8/2013 (Yin, K). (Entered: 03/07/2013)
169 NOTICE to RESCHEDULE HEARING on 155 Motion to Certify Class: Motion Hearing set for 4/3/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Evenson, Rebekah) Modified on 3/8/2013 (Yin, K). (Entered: 03/07/2013)
170 NOTICE to RESCHEDULE HEARING on 156 Motion for Preliminary Injunction: Motion Hearing set for 4/3/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Evenson, Rebekah) Modified on 3/8/2013 (Yin, K). (Entered: 03/07/2013)
171 MOTION for 72−DAY EXTENSION OF TIME to File Oppositions to Plaintiffs' Motions for Class Certification and a Preliminary Injunction by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 03/11/2013)
172 DECLARATION of Damon McClain re 171 MOTION for 72−DAY EXTENSION OF TIME to File Oppositions to Plaintiffs' Motions for Class Certification and a Preliminary Injunction. (McClain, Damon) (Entered: 03/11/2013)
173 PROPOSED ORDER re 171 Motion for Extension of time to File Oppositions to Plaintiffs' Motions for Class Certification and a Preliminary Injunction by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) Modified on 3/12/2013 (Yin, K). (Entered: 03/11/2013)
174 MINUTE ORDER: IT IS HEREBY ORDERED that Plaintiffs' opposition, if any, to Defendants' motion for a 72−day extension of time 171 shall be filed no later than close of business on Wednesday, March 13, 2013. (Text only entry) (Cannarozzi, N) (Entered: 03/12/2013)
175 OPPOSITION by Robert Mitchell to 171 MOTION for 72−DAY EXTENSION OF TIME to File Oppositions to Plaintiffs' Motions for Class Certification and a Preliminary Injunction. (Holtz, Geoffrey) (Entered: 03/13/2013)
176 ORDER signed by Magistrate Judge Edmund F. Brennan on 3/20/2013 ORDERING that defendants' 171 motion for an extension of time is GRANTED, and defendants shall have until 5/31/2013 to oppose plaintiff's motions for class certification and preliminary injunction. The 4/3/2013 hearing on the motions is VACATED, and the

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 30 of 45

03/26/2013 04/03/2013 04/15/2013 04/15/2013 04/22/2013
04/29/2013 04/29/2013 05/02/2013 05/02/2013 05/08/2013
05/15/2013 05/15/2013 05/15/2013

court will hear argument on the motions on 6/12/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Yin, K) (Entered: 03/20/2013)
177 MOTION for RECONSIDERATION re 176 Order on Motion for Extension by Robert Mitchell. (Evenson, Rebekah) Modified on 4/22/2013 (Mena−Sanchez, L). (Entered: 03/26/2013)
178 ORDER by Chief Judge Morrison C. England, Jr.: Due to the appointment of *District Judge Troy L. Nunley* to the bench of the Eastern District, this action is reassigned from District Judge *John A. Mendez* for all further proceedings. (Donati, J) (Entered: 04/03/2013)
179 RESPONSE to 177 Motion for Reconsideration of Order Granting Extension of Time by T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright, J Beard . Attorney McClain, Damon Grant added. (McClain, Damon) Modified on 4/18/2013 (Yin, K). (Entered: 04/15/2013)
180 NOTICE of Association of Counsel by J Beard, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney Mossler, Julianne added. (Mossler, Julianne) (Entered: 04/15/2013)
181 ORDER signed by District Judge Troy L. Nunley on 4/19/13 ORDERING that upon reconsideration of the order of the Magistrate Judge filed 9/23/11 is affirmed. If plaintiffs would like the court to modify the briefing schedule and/or hearing date in order to provide them additional time to prepare their reply briefs, they may do so by filing an appropriate motion before the assigned Magistrate Judge. (Mena−Sanchez, L) (Entered: 04/22/2013)
182 REQUEST for District Court to Hear under L.R. 302(d) Pending Motions for Class Certification and Preliminary Injunction by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 156 motion for preliminary injunction filed by Robert Mitchell, 155 motion to certify class filed by Robert Mitchell. (Holtz, Geoffrey) (Entered: 04/29/2013)
183 PROPOSED ORDER re District Court to Hear Motions under Local Rule 302(d) re 182 Request,. (Holtz, Geoffrey) (Entered: 04/29/2013)
184 MOTION to SEAL documents by Robert Mitchell. (Attachments: # 1 Proposed Order)(Evenson, Rebekah) Modified on 5/3/2013 (Plummer, M). (Entered: 05/02/2013)
185 MOTION Remove Confidentiality Designation or Modify Protective Order by Robert Mitchell. Motion hearing set for 06/05/13 at 10:00 a.m. in courtroom 8 before Magistrate Judge Edmund F. Brennan. (Attachments: # 1 Declaration Rebekah Evenson, # 2 Proposed Order)(Evenson, Rebekah) Modified on 5/3/2013 (Plummer, M). (Entered: 05/02/2013)
186 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 182 MOTION. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(McClain, Damon) (Entered: 05/08/2013)
187 DECLARATION of Devin M. McDonell in SUPPORT OF 155 motion to certify class, 156 motion for preliminary injunction. (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)(Pradhan, Aman) (Entered: 05/15/2013)
188 DECLARATION of Supplemental Declaration of Eldon Vail re 156 motion for preliminary injunction. (Evenson, Rebekah) (Entered: 05/15/2013)
189 DECLARATION of Craig Haney re 156 motion for preliminary injunction. (Evenson, Rebekah) (Entered: 05/15/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 31 of 45

05/15/2013 05/15/2013 05/20/2013 05/20/2013 05/20/2013
05/20/2013
05/20/2013 05/20/2013
05/21/2013 05/21/2013
05/22/2013 05/22/2013

190 DECLARATION of Joseph McGrath re 156 motion for preliminary injunction. (Evenson, Rebekah) (Entered: 05/15/2013)
191 DECLARATION of Scott Allen re 156 motion for preliminary injunction. (Evenson, Rebekah) (Entered: 05/15/2013)
192 MOTION to SHORTEN TIME for Hearing Defendants' Motion to Strike and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney Mossler, Julianne added. (Mossler, Julianne) (Entered: 05/20/2013)
193 DECLARATION of Julianne Mossler re 192 MOTION to SHORTEN TIME for Hearing Defendants' Motion to Strike and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions . (Attachments: # 1 Exhibit A)(Mossler, Julianne) (Entered: 05/20/2013)
194 PROPOSED ORDER re 192 MOTION to SHORTEN TIME for Hearing Defendants' Motion to Strike and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Mossler, Julianne) Modified on 5/21/2013 (Plummer, M). (Entered: 05/20/2013)
195 MOTION to STRIKE and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions; Supporting Memorandum of Points and Authorities by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Motion Hearing set for 6/19/2013 at 10:00 AM in Courtroom 8 (EFB) before Magistrate Judge Edmund F. Brennan. (Mossler, Julianne) (Entered: 05/20/2013)
196 DECLARATION of Damon McClain re 195 MOTION to STRIKE and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions; Supporting Memorandum of Points and Authorities. (Mossler, Julianne) (Entered: 05/20/2013)
197 PROPOSED ORDER re 195 MOTION to STRIKE and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions; Supporting Memorandum of Points and Authorities by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Mossler, Julianne) Modified on 5/21/2013 (Plummer, M). (Entered: 05/20/2013)
198 OPPOSITION by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 192 MOTION to SHORTEN TIME for Hearing Defendants' Motion to Strike and Impose Sanctions for Plaintiffs' Late−Filed Declarations or, in the Alternative, for Extension of Time to File Oppositions . (Attachments: # 1 Declaration)(Holtz, Geoffrey) Modified on 5/22/2013 (Plummer, M). (Entered: 05/21/2013)
199 ORDER signed by Magistrate Judge Edmund F. Brennan on 5/21/2013 ORDERING 192 MOTION to STRIKE and 195 MOTION to SHORTEN TIME are DENIED; defendants shall file oppositions to plaintiff' motions for preliminary injunction and class certifications on or before 7/1/2013; plaintiffs shall file their replies to defendants' opposition briefs on or before 7/22/2013; the 6/12/2013 hearing on plaintiffs' 155 motions for preliminary injunction and 156 class certification on 6/12/2013 is CONTINUED to 8/14/2013 at 10:00 a.m. in Courtroom #8.(Waggoner, D) Modified on 5/21/2013 (Hinkle, T). (Entered: 05/21/2013)
200 OPPOSITION by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 185 MOTION Remove Confidentiality Designation or Modify Protective Order. (Mossler, Julianne) (Entered: 05/22/2013)
201 DECLARATION of Clark Ducart in OPPOSITION TO 185 MOTION Remove Confidentiality Designation or Modify Protective Order. (Mossler, Julianne) (Entered: 05/22/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 32 of 45

05/22/2013 05/29/2013 06/03/2013 06/05/2013
06/06/2013
06/06/2013
06/06/2013 06/06/2013 06/06/2013 06/07/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013

202 MOTION for Leave of Court to Depose Incarcerated Witnesses by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (Attachments: # 1 Declaration Manu Pradhan, # 2 Exhibit A to Pradhan Declaration, # 3 Proposed Order)(Pradhan, Aman) Modified on 5/23/2013 (Plummer, M). (Entered: 05/22/2013)
203 REPLY by Robert Mitchell re 185 MOTION Remove Confidentiality Designation or Modify Protective Order. (Evenson, Rebekah) (Entered: 05/29/2013)
204 MINUTE ORDER: Defendants' opposition, if any, to plaintiffs' motion for leave of court to depose incarcerated witnesses 202 , shall be filed no later than 5:00 p.m. on Tuesday, June 4, 2013. (Text only entry) (Cannarozzi, N) (Entered: 06/03/2013)
205 MINUTES (Text Only) for MOTION HEARING held on 6/5/2013 before Magistrate Judge Edmund F. Brennan re: Pltf's Motion Remove Confidentiality Designation or Modify Protective Order 185 . All parties present. Arguments heard. The Court further discussed with the parties, Pltf's Motion for Leave of Court to Depose Incarcerated Witnesses 202 , not on calendar. Court order to issue. Plaintiffs Counsel Rebekah Evenson present. Defendants Counsel Julianne Mossler present. Court Reporter/CD Number: ECRO. (Cannarozzi, N) (Entered: 06/05/2013)
206 ORDER signed by Magistrate Judge Edmund F. Brennan on 6/6/13 ORDERING that plaintiffs may take the depositions of these witnesses as requested in the motion, so long as such discovery is completed by August 1, 2013. The word completed means that all discovery shall have been conducted so that all depositions have been taken and any disputes relative to discovery shall have been resolved by appropriate order if necessary and, where discovery has been ordered, the order has been complied with. (Dillon, M) (Entered: 06/06/2013)
207 ORDER signed by Magistrate Judge Edmund F. Brennan on 6/6/2013 ORDERING that plaintiff's 185 request to remove the confidentiality desination from pages of Mr. Kelly Harrington's 3/12/13, deposition transcript, as well as accompanying exhibits is GRANTED as to pages 362−367, and 369 and Exhibit 238, and DENIED as to Exhibit 241; plaintiffs' 185 request to submit Exhibit 241 to the state court under seal is also DENIED; plaintiff's 184 request to seal is GRANTED in part and DENIED in part; the Clerk shall file UNDER SEAL Exhibit C. (See Order for Details) (Yin, K) (Entered: 06/06/2013)
208 OBJECTIONS by Defendants to Plaintiffs' Subpoena Duces Tecum to Knipp. (Mossler, Julianne) Modified on 6/13/2013 (Yin, K). (Entered: 06/06/2013)
209 SEALED EVENT (Waggoner, D) (Entered: 06/06/2013)
210 DESIGNATION of COUNSEL FOR SERVICE., attorney Heather L. Shook terminated (McDonell, Devin) (Entered: 06/06/2013)
211 NOTICE of Errata by J Beard, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 208 Objections. (Mossler, Julianne) (Entered: 06/07/2013)
212 NOTICE of Association of Counsel by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Attorney Des Jardins, Michelle A. added. (Des Jardins, Michelle) (Entered: 07/01/2013)
213 OPPOSITION by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 155 motion to certify class. (McClain, Damon) (Entered: 07/01/2013)
214 OPPOSITION by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 156 motion for preliminary injunction. (Des Jardins, Michelle) (Entered: 07/01/2013)
215 DECLARATION of Nick Albonico re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
216 DECLARATION of Anthony Baer re , 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 33 of 45

07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013
07/01/2013 07/01/2013

217 DECLARATION of Ryan Carpentiari re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
218 DECLARATION of Jeanette Crandall re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
219 DECLARATION of K. R. Cortes re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Attachments: # 1 Exhibit A)(Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
220 DECLARATION of M. Des Jardins re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Attachments: # 1 Exhibit A)(Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
221 DECLARATION of John Garza re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
222 DECLARATION of Dr. Jeffrey Beard re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
223 DECLARATION of Ralph Diaz re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Attachments: # 1 Exhibit K)(Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
224 DECLARATION of Andre Gonzales re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
225 DECLARATION of George Becerra re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
226 DECLARATION of Henry Cervantez re 213 , 214 Opposition to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
227 DECLARATION of Robert Furster re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
228 DECLARATION of George Giurbino re 214 Opposition to Motion, 213 Opposition to Motion. (Attachments: # 1 Exhibit A−Part 1, # 2 Exhibit A−Part 2)(Mossler, Julianne) (Entered: 07/01/2013)
229 DECLARATION of Laura Gillespie re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
230 DECLARATION of Dennis Halverson re 213 , 214 Oppositions to Motion for class certification and preliminary injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
231 DECLARATION of Brenda Grealish re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
232 DECLARATION of Margaret Pieper re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
233 DECLARATION of Michael Nilsson re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 34 of 45

07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013 07/01/2013
07/01/2013
07/01/2013

234 DECLARATION of Mayme Hand re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
235 DECLARATION of Alexsia I. Rincon re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
236 DECLARATION of Lisa Pierini re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
237 DECLARATION of Brain Skaggs re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
238 DECLARATION of Kelly Harrington re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
239 DECLARATION of Linda Valencia re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
240 DECLARATION of Richard Pimentel re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
241 DECLARATION of Dirk Williams re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
242 DECLARATION of Frances Hernandez re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
243 DECLARATION of Michael Ruff re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
244 DECLARATION of Rick Hill re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
245 DECLARATION of Dennis Kent re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
246 DECLARATION of Lieutenant Jeffrey M. Smith re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
247 DECLARATION of Robert Marquez re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Attachments: # 1 Exhibit A)(Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
248 CERTIFICATE of SERVICE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re Oppositions to Motion, 213 , 214 . (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
249 DECLARATION of David Tristan re 213 , 214 Oppositions to Motions. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit I, # 7 Exhibit J)(Sullivan, Erin) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
250 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 07/01/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 35 of 45

07/01/2013
07/01/2013 07/17/2013 07/17/2013
07/17/2013
07/17/2013
07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013 07/17/2013

251 OBJECTIONS by Defendants Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to plaintiff's summaries of program status reports. 160 , 187 . (McClain, Damon) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
252 DECLARATION of D. Foston re 213 , 214 Oppositions to Motions for class certification and preliminary injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mossler, Julianne) Modified on 7/2/2013 (Plummer, M). (Entered: 07/01/2013)
253 MOTION for SUMMARY JUDGMENT by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Sullivan, Erin) (Entered: 07/17/2013)
254 MEMORANDUM by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright in SUPPORT of 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 07/17/2013)
255 STATEMENT of Undisputed Facts by Defendants Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 07/17/2013)
256 PROPOSED ORDER re Motion for Summary Judgment re 253 MOTION for SUMMARY JUDGMENT by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Sullivan, Erin) (Entered: 07/17/2013)
257 DECLARATION of Anthony Baer in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A)(McClain, Damon) (Entered: 07/17/2013)
258 DECLARATION of J. Castro in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. Attorney Mossler, Julianne added. (Attachments: # 1 Exhibit A)(Mossler, Julianne) (Entered: 07/17/2013)
259 DECLARATION of D. Hellwig in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 07/17/2013)
260 DECLARATION of L. Cahayla in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A to F)(McClain, Damon) (Entered: 07/17/2013)
261 DECLARATION of Lupe Cartagena in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A and B (Part 1), # 2 Exhibit B (Part 2) and C)(McClain, Damon) (Entered: 07/17/2013)
262 DECLARATION of N. Justin in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A−E, # 2 Exhibit F)(Sullivan, Erin) (Entered: 07/17/2013)
263 DECLARATION of F. Foulk in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A−F, # 2 Exhibit G−J)(Mossler, Julianne) (Entered: 07/17/2013)
264 DECLARATION of J. Owen in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 07/17/2013)
265 DECLARATION of Andre Gonzales in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A−B)(Mossler, Julianne) (Entered: 07/17/2013)
266 DECLARATION of J. Smith in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A)(Sullivan, Erin) (Entered: 07/17/2013)
267 DECLARATION of Erin Sullivan in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A−K)(Sullivan, Erin) (Entered: 07/17/2013)
268 DECLARATION of D. Vanderville in SUPPORT OF 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 07/17/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 36 of 45

07/22/2013 07/22/2013 07/22/2013
07/22/2013
07/22/2013 07/22/2013 07/22/2013 07/25/2013
07/30/2013
08/05/2013 08/07/2013
08/07/2013 08/07/2013 08/07/2013 08/07/2013

269 REPLY by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 213 Opposition to Motion. (Pradhan, Aman) (Entered: 07/22/2013)
270 REPLY by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 214 Opposition to Motion. (Pradhan, Aman) (Entered: 07/22/2013)
271 DECLARATION of Manu Pradhan in SUPPORT OF 155 motion to certify class, 156 motion for preliminary injunction. (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, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y)(Pradhan, Aman) (Entered: 07/22/2013)
272 DECLARATION (Corrected Supplemental) of Devin M. McDonell in SUPPORT OF 155 motion to certify class, 156 motion for preliminary injunction. (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)(Pradhan, Aman) Modified on 7/29/2013 (Yin, K). (Entered: 07/22/2013)
273 OBJECTIONS by Plaintiffs Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 214 Opposition to Motion, 213 Opposition to Motion. (Pradhan, Aman) (Entered: 07/22/2013)
274 REPLY by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 251 Objections,. (Pradhan, Aman) (Entered: 07/22/2013)
275 REQUEST to SEAL by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 269 Reply, 271 Declaration,, 270 Reply. (Pradhan, Aman) Modified on 7/29/2013 (Yin, K). (Entered: 07/22/2013)
276 MOTION for 14−DAY EXTENSION OF TIME to Stipulated Joint Application Regarding Briefing Schedule and Related Pre−Trial Deadlines for Defendants' Motion for Summary Judgment re 253 MOTION for SUMMARY JUDGMENT by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (Attachments: # 1 Proposed Order)(Pradhan, Aman) (Entered: 07/25/2013)
277 ORDER signed by Magistrate Judge Edmund F. Brennan on 07/30/13 ordering that the parties request 276 is granted. Plaintiff's shall file any papers in opposition to defendants' motion by 08/07/13. Defendants shall file any reply papers in support of their motion by 08/21/13. The matter is set for hearing on 10/02/13 at 10:00 a.m. in courtroom 8, before Magistrate Judge Edmund F. Brennan. (Plummer, M) (Entered: 07/30/2013)
278 ORDER signed by District Judge Troy L. Nunley on 8/2/13 GRANTING 182 Motion; the court retains all matters asociated with this case going forward. Any pending motions before the magistrate judge are hereby vacated. (Manzer, C) (Entered: 08/05/2013)
279 AMENDED DOCUMENT by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo: Amended 271 Declaration,, 161 Declaration, 158 Declaration,. (Attachments: # 1 Exhibit Corrected Exhibit ECF 158.4, # 2 Exhibit Corrected Exhibit ECF 271.6, # 3 Exhibit Corrected Exhibit ECF 271.7, # 4 Exhibit Corrected Exhibit ECF 161 3)(Pradhan, Aman) (Entered: 08/07/2013)
280 OPPOSITION by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 253 MOTION for SUMMARY JUDGMENT. (Evenson, Rebekah) (Entered: 08/07/2013)
281 RESPONSE by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 255 Statement. (Evenson, Rebekah) (Entered: 08/07/2013)
282 RESPONSE by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo to 265 Declaration, 262 Declaration, 263 Declaration, 260 Declaration, 266 Declaration, 258 Declaration. (Evenson, Rebekah) (Entered: 08/07/2013)
283 STATEMENT of DISPUTED FACTS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT by Plaintiffs Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 253 MOTION for SUMMARY JUDGMENT. (Evenson,

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 37 of 45

08/07/2013
08/07/2013 08/07/2013 08/07/2013 08/07/2013 08/07/2013 08/08/2013 08/08/2013 08/12/2013
08/14/2013 08/16/2013 08/16/2013

Rebekah) (Entered: 08/07/2013)
284 DECLARATION of GEOFFREY T. HOLTZ in OPPOSITION TO 253 MOTION for SUMMARY JUDGMENT. (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, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U)(Evenson, Rebekah) (Entered: 08/07/2013)
285 DECLARATION of ROBERT MITCHELL in OPPOSITION TO 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Evenson, Rebekah) (Entered: 08/07/2013)
286 DECLARATION of ELDON VAIL in OPPOSITION TO 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A)(Evenson, Rebekah) (Entered: 08/07/2013)
287 DECLARATION of JOSEPH MCGRATH in OPPOSITION TO 253 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit A)(Evenson, Rebekah) (Entered: 08/07/2013)
288 REQUEST for JUDICIAL NOTICE by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo in re 280 Opposition to Motion. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Evenson, Rebekah) (Entered: 08/07/2013)
289 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (Attachments: # 1 Proposed Order [Proposed Order] Granting Plaintiffs' Request to Seal Documents Submitted in Support of Plaintiffs' Opposition to Motion for Summary Judgment)(Evenson, Rebekah) Modified on 11/6/2013 (Meuleman, A). (Entered: 08/07/2013)
290 REQUEST for Permission to Exceed Page Limit by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Sullivan, Erin) (Entered: 08/08/2013)
291 PROPOSED ORDER re Granting Defendants' 290 Request to Exceed Page Limit by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Sullivan, Erin) Modified on 8/9/2013 (Kastilahn, A). (Entered: 08/08/2013)
292 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 8/12/2013: Pursuant to this Court's online procedures, parties are limited to twenty (20) pages on motions and oppositions before this Court. In addition, all requests for page limit increases must be made in writing to the Court setting forth any and all reasons for any increase in page limits at least fourteen (14) days prior to the filing of the motion. Both parties have exceeded the page limit without written permission by the Court. Given the nature of this case, the Court is willing to entertain increasing the limit. However, if the parties require an increase, they must explain to the Court in detail as to why such an increase is necessary. Any requests for an increase of more than ten (10) pages will be heavily scrutinized. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 08/12/2013)
293 REQUEST for Permission to Exceed Page Limits by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo. (Attachments: # 1 Proposed Order)(Evenson, Rebekah) Modified on 8/15/2013 (Plummer, M). Modified on 8/19/2013 (Krueger, M). (Entered: 08/14/2013)
294 REQUEST for Permission to Exceed Page Limit by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) Modified on 8/19/2013 (Plummer, M). Modified on 8/19/2013 (Krueger, M). (Entered: 08/16/2013)
295 PROPOSED ORDER re Permission to Exceed Page Limit re 294 Request by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 08/16/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 38 of 45

08/19/2013
08/21/2013 08/21/2013 08/21/2013 08/21/2013 10/09/2013 10/09/2013 10/10/2013
10/10/2013 10/16/2013 10/18/2013 10/31/2013 11/05/2013

296 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 8/19/2013: The Court is in receipt of the parties request for page extensions. The parties should be prepared to address with specificity the reasons that such extension is necessary at the Hearing for Defendants' Motion for Summary Judgment. The Hearing on Defendants' Motion for Summary Judgment 253 is set for 10/17/2013 at 2:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 08/19/2013)
297 REPLY by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 253 MOTION for SUMMARY JUDGMENT. (Sullivan, Erin) (Entered: 08/21/2013)
298 REQUEST for JUDICIAL NOTICE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright in re 297 Reply. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Sullivan, Erin) (Entered: 08/21/2013)
299 DECLARATION of Erin Sullivan re 297 Reply. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Sullivan, Erin) (Entered: 08/21/2013)
300 CORRECTED EXHIBIT B to Foulk Declaration by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 263 Declaration. (Attachments: # 1 Exhibit B)(Sullivan, Erin) Modified on 8/22/2013 (Plummer, M). (Entered: 08/21/2013)
301 [DISREGARD] BRIEF OF AMICI CURIAE in support of 156 Motion for Preliminary Injunction by Equal Justice Society. Attorney Fox, Benjamin Jonathan ADDED. (Attachments: # 1 Notice of Motion, # 2 Corporate Disclosure Statement) (Fox, Benjamin) Modified on 10/9/2013 (Michel, G). Modified on 10/9/2013 (Becknal, R). (Entered: 10/09/2013)
302 AMENDED 301 Brief of Amici Curiae in Support of 156 Motion for Preliminary Injunction by Equal Justice Society. (Attachments: # 1 Notice of Motion, # 2 Corporate Disclosure Statement)(Fox, Benjamin) Modified on 10/9/2013 (Becknal, R). (Entered: 10/09/2013)
303 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 10/10/2013: On the Court's own motion, Defendants' Motion for Summary Judgment 253 is hereby SUBMITTED without oral argument. Accordingly, the hearing set for 10/17/2013 is VACATED. If the Court determines oral argument is necessary, it will be scheduled at a later date. It is Further Ordered that the Final Pretrial Conference set for 12/4/2013, and the Trial date of 3/3/2014 are VACATED and will be reset, if necessary, after the Court's ruling on the motion. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 10/10/2013)
304 STATEMENT of Notice of Recent Material Events re Defs Mot for Summary Judgment by Plaintiffs Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 253 MOTION for SUMMARY JUDGMENT. (Evenson, Rebekah) (Entered: 10/10/2013)
305 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Matthew Flairty for Hanif Abdullah,Matthew Flairty for Robert Mitchell,Matthew Flairty for Alvaro Quezada,Matthew Flairty for Tony Trujillo, attorney Aman Pradhan terminated (Flairty, Matthew) (Entered: 10/16/2013)
306 STATEMENT of Interest of the United States of America by Amicus United States of America. Attorney Coon, Laura Lee added. (Coon, Laura) (Entered: 10/18/2013)
307 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 302 Amended Document. (Des Jardins, Michelle) (Entered: 10/31/2013)
308 MOTION to Appear Telephonically at Hearing on Motion for Leave to File Amicus Brief by Equal Justice Society. Attorney Abrams, Hanna added. (Attachments: # 1 Proposed Order)(Abrams, Hanna) Modified on 11/6/2013 (Plummer, M). (Entered: 11/05/2013)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 39 of 45

11/06/2013 11/06/2013 11/06/2013 11/06/2013 11/06/2013 11/07/2013
11/08/2013 02/11/2014 02/20/2014 03/13/2014
03/14/2014 03/19/2014 03/19/2014 03/21/2014
03/21/2014 03/21/2014 06/06/2014

309 REPLY by Hanif Abdullah, Robert Mitchell, Alvaro Quezada, Tony Trujillo re 302 Amended Document. (Evenson, Rebekah) (Entered: 11/06/2013)
310 ORDER signed by District Judge Troy L. Nunley on 11/5/13 GRANTING 289 Notice to Seal. (Meuleman, A) (Entered: 11/06/2013)
311 ORDER signed by District Judge Troy L. Nunley on 11/5/13 GRANTING 154 Notice of Request to Seal Document(s). The Clerk of Court shall file the documents listed under seal. (Meuleman, A) (Entered: 11/06/2013)
313 SEALED EVENT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Meuleman, A) (Entered: 11/07/2013)
314 SEALED EVENT (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Meuleman, A) (Entered: 11/07/2013)
312 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 11/7/2013: On the Court's own motion, the Brief of Amici Curiae in Support of Motion for Preliminary Injunction filed by Equal Justice Society 302 is hereby SUBMITTED without oral argument. Accordingly, the hearing set for 11/14/2013 is hereby VACATED. If the Court deteremines oral argument is necessary, it will be scheduled at a later date. The Amici Curiae's Request to Appear Telephonically 308 is DENIED as MOOT. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 11/07/2013)
316 ORDER signed by District Judge Troy L. Nunley on 11/7/2013. Court is DENYING EJS's 302 Motion for Leave to file Brief of Amici Curiae in support of Preliminary Injunction. (Marciel, M) (Entered: 11/08/2013)
317 ORDER signed by District Judge Troy L. Nunley on 2/7/2014 ORDERING that Defendants' 253 Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. (Zignago, K.) (Entered: 02/11/2014)
318 MOTION to Set for Status Conference, Pretrial Conference, and Trial by Robert Mitchell, Alvaro Quezada. (Attachments: # 1 Declaration Rebekah Evenson)(Evenson, Rebekah) (Entered: 02/20/2014)
319 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 318 MOTION to Set for Status Conference, Pretrial Conference, and Trial. (McClain, Damon) (Entered: 03/13/2014)
320 ORDER signed by District Judge Troy L. Nunley on 3/13/14 DENYING 318 Motion to Set Status Conference, Pretrial Conference, and Trial. (Meuleman, A) (Entered: 03/14/2014)
321 ORDER signed by District Judge Troy L. Nunley on 3/18/2014 GRANTING 250 Notice of Request to Seal Document(s). (Zignago, K.) (Entered: 03/19/2014)
322 ORDER signed by District Judge Troy L. Nunley on 3/18/2014 GRANTING 275 Notice of Request to Seal Document(s). (Zignago, K.) (Entered: 03/19/2014)
323 SEALED EVENT (Part 1) pursuant to 321 Order. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6, # 6 Part 7, # 7 Part 8, # 8 Part 9, # 9 Part 10, # 10 Part 11, # 11 Part 12, # 12 Part 13, # 13 Part 14, # 14 Part 15) (Donati, J) Modified on 3/21/2014 (Donati, J). (Entered: 03/21/2014)
324 SEALED EVENT (Part 2) pursuant to 321 Order. (Attachments: # 1 Part 17, # 2 Part 18, # 3 Part 19, # 4 Part 20, # 5 Part 21, # 6 Part 22, # 7 Part 23, # 8 Part 24, # 9 Part 25, # 10 Part 26, # 11 Part 27, # 12 Part 28) (Donati, J) (Entered: 03/21/2014)
325 SEALED EVENT pursuant to 322 Order. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6, # 6 Part 7, # 7 Part 8, # 8 Part 9, # 9 Part 10, # 10 Part 11) (Donati, J) (Entered: 03/21/2014)
326 NOTICE of Supplemental Authority by Robert Mitchell re 155 motion to certify class. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Evenson, Rebekah) Modified on 6/9/2014 (Plummer, M). (Entered: 06/06/2014)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 40 of 45

06/13/2014 06/25/2014 07/23/2014
08/01/2014 02/27/2015 02/27/2015 02/27/2015 03/02/2015 04/09/2015 04/09/2015
04/09/2015 05/01/2015

327 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 326 Notice − Other. (McClain, Damon) (Entered: 06/13/2014)
328 ORDER signed by District Judge Troy L. Nunley on 6/24/2014 DENYING Plaintiff's 156 Motion for Preliminary Injunction. (Zignago, K.) (Entered: 06/25/2014)
329 ORDER signed by District Judge Troy L. Nunley on 7/21/14 ORDERING the Court hereby GRANTS Plaintiffs' Motion in Support of Class Certification (ECF No. 155 ). The Court finds that the named Plaintiffs are adequate representatives of the class of male inmates within the CDCR. The Court further finds that Plaintiff Quezada is an adequate representative of the aforementioned class. Finally, the Court finds that Plaintiffs' litigation team comprised of the Prison Law Office and Bingham McCutchen LLP, is competent to pursue this action on behalf of the class. In light of the foregoing and the Court's determination that Plaintiffs' Motion for Class Certification should be granted, the Court hereby appoints the Prison Law Office and Bingham McCutchen LLP as class counsel. (Becknal, R) (Entered: 07/23/2014)
330 ORDER signed by District Judge Troy L. Nunley on 8/1/2014 re: Impermissible communication. Ex parte communications are IMPERMISSIBLE and thus the court DECLINES to consider the attached communication. (Donati, J) (Entered: 08/01/2014)
331 MOTION 1) Preliminary Approval of Settlement Agreement, 2) A Stay of the Proceedings, and 3) Notice to the Class by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Motion Hearing set for 4/9/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (McClain, Damon) (Entered: 02/27/2015)
332 DECLARATION of Damon McClain in SUPPORT OF 331 MOTION 1) Preliminary Approval of Settlement Agreement, 2) A Stay of the Proceedings, and 3) Notice to the Class. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(McClain, Damon) (Entered: 02/27/2015)
333 PROPOSED ORDER re Granting Preliminary Approval of Class Action Settlement re 331 MOTION 1) Preliminary Approval of Settlement Agreement, 2) A Stay of the Proceedings, and 3) Notice to the Class by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 02/27/2015)
334 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 3/2/2015: On the Court's own motion, the Hearing on Plaintiffs' Motion for Preliminary Approval, a Stay of the Proceedings, and Notice to the Class (ECF No. 331 ) set for 4/9/2015 is hereby VACATED and RESET for 5/7/2015 at 2:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 03/02/2015)
335 MOTION for ATTORNEY FEES by Robert Mitchell. Motion Hearing set for 5/7/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Attachments: # 1 Declaration of Rebekah Evanson, # 2 Proposed Order, # 3 Stipulation)(Evenson, Rebekah) Modified on 4/10/2015 (Plummer, M). (Entered: 04/09/2015)
336 NOTICE of Joint Supplemental MOTION and MOTION Regarding Class Notice About Agreement to Settle Plaintiffs' Request for Attorneys' Fees by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Motion Hearing set for 5/7/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Attachments: # 1 Exhibit A, # 2 Proof of Service)(McClain, Damon) Modified on 4/10/2015 (Plummer, M). (Entered: 04/09/2015)
337 PROPOSED ORDER re Granting Preliminary Approval of Class Action Settlement re 336 MOTION Notice of Joint Supplemental Motion and Motion Regarding Class Notice About Agreement to Settle Plaintiffs' Request for Attorneys' Fees. (McClain, Damon) (Entered: 04/09/2015)
338 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 5/1/2015: The parties are hereby notified that the Time for the Hearing on

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 41 of 45

05/05/2015
05/05/2015 05/08/2015 05/11/2015 05/21/2015

Plaintiffs' Motion for Preliminary Approval of Settlement (ECF No. 331 ), Plaintiffs' Motion for Attorney Fees (ECF No. 335 ), and Joint Motion regarding Class Notice (ECF No. 336 ) set for 5/7/2015 is RESET for 1:30 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 05/01/2015)
339 ORDER signed by District Judge Troy L. Nunley on 5/4/15 ORDERING that 1): the stipulated settlement is GRANTED preliminary approval and incorporated by reference herein, subject to the right of class members to challenge the fairness, reasonableness, or adequacy of the Stipulated Settlement; 2): Under FRCP 23(e)(1), the Court APPROVES the substance, form and manner of the 336 Notice and finds that the proposed method of disseminating the Class Notice meets all due process and other legal requirements and is the best notice practicable under the circumstances; 3): Within 30 days of this order, the parties are DIRECTED to prepare a final version of the Notice, incorporating the dates set forth in this Order; 4).: Within 30 days of this Order, CDCR is DIRECTED to post the Notice in English and Spanish in all housing units of all prisons housing prisoners subject to CDCR's modified program and lockdown policy in such a manner as to make the notice visible to all prisoners. Within 30 days of this Order, CDCR is also DIRECTED to place a copy of this Order and the full Stipulated Settlement in every CDCR library. Defendants must file and serve on plaintiffs' counsel a declaration affirming that notice was published as required in this order. A Final Fairness Hearing shall take place at 2 p.m. on 9/24/15 before Judge Troy L. Nunley, in Courtroom 2, to determine whether the proposed settlement of this action on the terms and conditions provided for in the Stipulated Settlement is fair, reasonable, and adequate and should be finally approved by the Court, and whether this action should be dismissed under the settlement. Plaintiff's 335 MOTION for ATTORNEY FEES should be heard at the same time as the hearing for final approval of the settlement agreement. The hearing may be continued from time to time without further notice to the class. Any further briefing from the parties in advance of the hearing shall be filed no later than 9/10/15. Any member of the class may enter an appearance on his or her own behalf in this action through that class member's own attorney (at their own expense), but need not do so. Class members who do not enter an appearance through their own attorneys will be represented by Class counsel. (Meuleman, A) (Entered: 05/05/2015)
340 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 5/5/2015: Pursuant to the Court's Order (ECF No. 339 ), the Hearing set for 5/7/2015 has been VACATED. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 05/05/2015)
341 MOTION Status Conference by Robert Mitchell. Motion Hearing set for 6/18/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (Attachments: # 1 Declaration Rebekah Evenson)(Evenson, Rebekah) (Entered: 05/08/2015)
342 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on May 11, 2015: The Court is receipt of Plaintiff's Motion for Status Conference (ECF No. 341 ), and the Motion is Denied. The Court hereby ORDERS the parties to meet and confer and to provide at least four (4) sets of mutually agreeable dates to start trial within the period of June 2016 through September 2016. The parties shall email those mutually agreeable dates to mkrueger@caed.uscourts.gov no later than Friday, May 22, 2015. The Court will then reset the jury trial and pretrial dates for Plaintiff's damages claim. Accordingly, the hearing set for June 18, 2015 is VACATED. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 05/11/2015)
343 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on 5/21/2015: The Court is in receipt of the parties availability for trial as to Plaintiff's damages claim, and hereby SETS the following dates: The Final Pretrial Conference is SET for 6/2/2016 at 2:00 PM, and the Jury Trial is SET for 8/8/2016 at 9:00 AM in Courtroom 2 before District Judge Troy L. Nunley. The trial is expected to last five to ten (5−10) court days. The parties shall file a Joint Pretrial Conference Statement on or before 5/26/2016. The provisions of Local Rule 281 shall apply with respect to the matters to be included in the Joint Final Pretrial Conference Statement. It is the Court's practice to hear motions in limine on the first day of trial. However, depending on the number and nature of the parties' motions, the need to special set a hearing date to hear such motions shall be addressed at the Final Pretrial Conference. The parties shall file their trial briefs not later than fourteen (14) days before trial, and

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06/05/2015 06/05/2015 06/05/2015 06/08/2015 06/11/2015 06/12/2015 06/12/2015 06/22/2015 06/22/2015 06/25/2015 06/29/2015 06/29/2015 07/06/2015
07/10/2015 07/23/2015 08/05/2015 08/14/2015 08/26/2015
08/27/2015 08/27/2015
08/31/2015 08/31/2015 09/10/2015
09/10/2015

are directed to Local Rule 285. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 05/21/2015)
344 LETTER from Roy Jackson III, regarding lock downs. (Reader, L) (Entered: 06/09/2015)
345 LETTER from Jermaine Clay re hearing of fairness. (Reader, L) (Entered: 06/09/2015)
346 LETTER from Paul J. Reynolds re lock downs. (Reader, L) (Entered: 06/09/2015)
347 LETTER from Dervin Foster as to Mitchel v. Cates. (Reader, L) (Entered: 06/09/2015)
348 LETTER from Lou R. Pacheco (Reader, L) (Entered: 06/12/2015)
349 DECLARATION of Xavier Cano. (McClain, Damon) (Entered: 06/12/2015)
350 STATEMENT re Proposed Class Action Settlement by Steve M Castillo. (Becknal, R) (Entered: 06/15/2015)
351 LETTER from Demontreal Beauchamp re lock downs (Benson, A) (Entered: 06/23/2015)
352 LETTER from Kenny MacDonald re eligibility to participate in class action (Benson, A) (Entered: 06/23/2015)
353 LETTER from (illegible) (Benson, A) (Entered: 06/26/2015)
354 LETTER from Derrick Sledge re Class Action. (Manzer, C) (Entered: 06/30/2015)
355 LETTER from Frank Grim re class action. (Manzer, C) (Entered: 06/30/2015)
356 LETTER from inmate Dean C. Rodriguez regarding fairness of Settlement and Proposed Settlement of Class Action regarding lockdown and modified programs. (Marciel, M) (Entered: 07/08/2015)
357 LETTER from Paul Mitchell regarding class action settlement. (Manzer, C) (Entered: 07/13/2015)
358 LETTER from Ronald F. Martinez fairness of settlement. (Michel, G.) (Entered: 07/24/2015)
359 REQUEST to comment on the medical/dental agreement by Pedro Izquierdo. (Becknal, R) (Entered: 08/07/2015)
360 LETTER from Erik Forgatsch. (Kaminski, H) (Entered: 08/17/2015)
363 LETTER re Proposed Class Action Settlement from Ricky Tyrone Foster D−16470, High Desert State Prison, P.O. Box 3030, Susanville, CA 96127. (Michel, G.) (Entered: 09/10/2015)
364 LETTER re Proposed Class Action Settlement from Keyawn Cook K−98054, CCCF, P.O. Box 2610, California City, CA 93504. (Michel, G.) (Entered: 09/10/2015)
365 LETTER re Proposed Class Action Settlement from Chanh Nguyen V−07324, CSP − Solano, P.O. Box 4000, Vacaville, CA 95696−4000. (Michel, G.) (Entered: 09/10/2015)
361 COMMENTS CONCERNING the final decision on dental/Medical Health Care from Juan Carlos Suarez. (Mena−Sanchez, L) (Entered: 09/02/2015)
362 LETTER from Enrique Diaz re Settlement Hearing Schedule. (Mena−Sanchez, L) (Entered: 09/02/2015)
366 MOTION for Final Approval of Class Action Settlement by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. Motion Hearing set for 9/24/2015 at 02:00 PM in Courtroom 2 (TLN) before District Judge Troy L. Nunley. (McClain, Damon) (Entered: 09/10/2015)
367 DECLARATION of Damon McClain in SUPPORT OF 366 MOTION for Final Approval of Class Action Settlement. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 43 of 45

09/10/2015 09/10/2015 09/16/2015 09/16/2015 09/17/2015 09/24/2015
10/06/2015 10/06/2015 10/08/2015
10/08/2015 10/08/2015 02/25/2016 02/26/2016 03/04/2016

Exhibit 3, # 4 Exhibit 4)(McClain, Damon) (Entered: 09/10/2015)
368 DECLARATION of Rebekah Evenson in SUPPORT OF 366 MOTION for Final Approval of Class Action Settlement. (Evenson, Rebekah) (Entered: 09/10/2015)
369 SUPPLEMENTAL BRIEF in Support of 335 MOTION for ATTORNEY FEES by Robert Mitchell . (Evenson, Rebekah) Modified on 9/17/2015 (Yin, K). (Entered: 09/10/2015)
370 PROPOSED ORDER re Granting Final Approval of Class Action Settlement re 366 MOTION for Final Approval of Class Action Settlement. (McClain, Damon) (Entered: 09/16/2015)
372 MOTION TO INTERVENE, supplemental order to enforce terms of settlement agreement by Robert D. Gibson. (Reader, L) (Entered: 09/17/2015)
371 ATTACHMENT by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright re 370 Proposed Order. (McClain, Damon) Modified on 9/18/2015 (Plummer, M). (Entered: 09/17/2015)
373 MINUTES (Text Only) for proceedings before District Judge Troy L. Nunley: MOTION HEARING held on 9/24/2015 regarding Plaintiffs' MOTION for Final Approval of Class Action Settlement (ECF No. 366 ) and MOTION for Attorney Fees (ECF No. 335 ). The Court APPROVES the Class Action Settlement and GRANTS Plaintiffs' Motion for Attorney Fees. A formal Order to issue. Plaintiffs Counsel Rebekah Evenson and Geoffrey Holtz present. Defendants Counsel Damon McClain, Michael Mueller, and Christopher Becker present. Court Reporter: Kimberly Bennett. (Krueger, M) (Entered: 09/24/2015)
374 RESPONSE by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 372 Request. (McClain, Damon) (Entered: 10/06/2015)
375 PROPOSED ORDER re Denying Robert Gibson's Motion to Intervene and Demand for Damages and Injunctive Relief re 374 Response by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 10/06/2015)
376 ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT signed by District Judge Troy L. Nunley on 10/7/15. The parties are directed to meet and confer regarding the contents of a notice to the Plaintiff Class regarding final approval of the settlement, and the timing and manner by which such notice will be provided.(Mena−Sanchez, L) (Entered: 10/08/2015)
377 ORDER signed by District Judge Troy L. Nunley on 10/7/15 ORDERING that the Request for $2.375 million in Attorneys' Fees and Expenses is APPROVED as fair, adequate and reasonable, and Plaintiffs' Unopposed Motion for Attorneys' Fees and Expenses 335 is GRANTED. (Mena−Sanchez, L) (Entered: 10/08/2015)
378 ORDER DENYING ROBERT GIBSON'S MOTION TO INTERVENE AND DEMAND FOR DAMAGES AND INJUNCTIVE RELIEF signed by District Judge Troy L. Nunley on 10/7/15. (Mena−Sanchez, L) (Entered: 10/08/2015)
379 JOINT REQUEST for Referral to Settlement Conference with Magistrate Judge by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) Modified on 3/3/2016 (Dillon, M). (Entered: 02/25/2016)
380 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Brendan Eugene Radke for Robert Mitchell, attorney Matthew Gail Flairty terminated (Radke, Brendan) (Entered: 02/26/2016)
381 MINUTE ORDER issued by Courtroom Deputy M. Krueger for District Judge Troy L. Nunley on March 4, 2016: Pursuant to the parties' Request (ECF No. 379 ), a Settlement Conference is hereby SET for April 27, 2016 at 9:30 a.m. in Courtroom 25 before Magistrate Judge Kendall J. Newman. The parties are directed to submit confidential settlement conference statements no later than April 20, 2016, to the

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 44 of 45

03/22/2016
04/12/2016 04/20/2016 04/20/2016 04/27/2016
06/02/2016 06/03/2016
06/09/2016 06/24/2016 07/01/2016 07/20/2016 07/20/2016

following email address: kjnorders@caed.uscourts.gov. Such statements are neither to be filed with the Clerk's Office nor served on opposing counsel. Furthermore, each party shall e−file a one page document entitled "Notice of Submission of Confidential Settlement Conference Statement." (Rule 270 (d)). All parties are required to have principals present at the settlement conference. (TEXT ONLY ENTRY) (Krueger, M) (Entered: 03/04/2016)
382 ORDER and WRIT of HABEAS CORPUS AD TESTIFICANDUM ISSUED signed by Magistrate Judge Edmund F. Brennan on 03/21/16 ordering the custodian to produce Robert Mitchell on 4/27/16 at 9:30 a.m. in courtroom 25 before Magistrate Judge Kendall J. Newman. Custodian is ordered to notify the court of any changes in custody and to provide new custodian with a copy of this writ. Clerk shall serve a copy of this order and writ on the Custodian and Out−to−Court Desk. (cc: OTCD and KJN)(3 certified copies of this writ sent to the Warden, CSATF) (Plummer, M) Modified on 3/22/2016 (Plummer, M). (Entered: 03/22/2016)
383 NOTICE of Withdrawal of Counsel by All Plaintiffs. Attorney Specter, Donald added. (Specter, Donald) (Entered: 04/12/2016)
384 NOTICE of Submission of Confidential Settlement Conference Statement by Robert Mitchell re 381 Minute Order,,,, Set/Reset Deadlines and Hearings,,,. (Radke, Brendan) (Entered: 04/20/2016)
385 NOTICE of Submission of Confidential Settlement Conference Statement by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (McClain, Damon) (Entered: 04/20/2016)
386 MINUTES for SETTLEMENT CONFERENCE proceedings before Magistrate Judge Kendall J. Newman on 4/27/2016: After settlement negotiations conducted, the parties reached a verbal settlement agreement. The court read the terms of the settlement for the record. All parties agreed to the terms as stated. Dispositional documents to be filed within 30 days. All previously set hearings and deadlines are hereby VACATED. Plaintiffs Counsel Geoffrey Holtz and Brendan Radke present. Defendants Counsel Damon McClain and Christopher Becker present. Plaintiff Robert Mitchell present. Michael Mueller, attorney for CDCR present.ECRO/CD Number: 1 of 1. (Text Only) (Caspar, M) (Entered: 04/27/2016)
387 STIPULATION and PROPOSED ORDER for Joint Stipulation of Dismissal of Action with Prejudice Pursuant to FRCP 41(A) by Robert Mitchell. (Radke, Brendan) (Entered: 06/02/2016)
388 STIPULATION and ORDER OF DISMISSAL signed by District Judge Troy L. Nunley on 6/2/16. Plaintiff Robert Mitchell's individual claims for damages against Defendants are dismissed with prejudice from this action pursuant to the Settlement Agreement and Release between the Parties. Each side shall bear its own attorneyss' fees and costs with respect to Plaintiff's individual claims for damages. (Mena−Sanchez, L) (Entered: 06/03/2016)
389 LETTER from Russell James McAllister. (Kaminski, H) (Entered: 06/15/2016)
390 MOTION to intervene and request for sanctions from Dean C. Rodriguez. (Becknal, R) Modified on 7/1/2016 (Plummer, M). (Entered: 06/30/2016)
391 OPPOSITION by Matthew Cate, T. Felker, F Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright to 390 MOTION to intervene and request for sanctions. (McClain, Damon) (Entered: 07/01/2016)
392 ORDER signed by District Judge Troy L. Nunley on 7/19/16 DENYING 390 Motion to Intervene. Rodriguez is directed to submit his concerns to his class counsel so that they can determine whether his concerns are valid and meet and confer with Defendants if they are, pursuant to the Settlement Agreement. (Washington, S) (Entered: 07/20/2016)
SERVICE BY MAIL: 392 Order on Motion for Miscellaneous Relief, served on Dean C. Rodriguez. (Washington, S) (Entered: 07/20/2016)

Case: 2:08-cv-1196 As of: 07/09/2018 01:14 PM PDT 45 of 45

12/20/2016

393 NOTICE of Automatic Termination of Court's Jurisdiction and Dismissal of Class Action with Prejudice Under the Parties' Stipulated Settlement by Matthew Cate, T. Felker, F. Foulk, George Giurbino, D. Hellwig, Scott Kernan, Terri McDonald, J. Owen, J. Tilton, D. Vanderville, M. Wright. (Attachments: # 1 Exhibit 1)(McClain, Damon) (Entered: 12/20/2016)


On May 21, 2008, a California inmate filed a lawsuit in the U.S. District Court for the Eastern District of California under 42 U.S.C. § 1983 against the California Department of Corrections and Rehabilitation (CDCR). The plaintiff, originally proceeded pro se but eventually represented by private counsel and the Prison Law Center, asked the court for declaratory, injunctive, and monetary damages, alleging that the CDCR acted unconstitutionally by segregating the prisoners by race and locking down an entire race of prisoners. The prison staff had informed the plaintiff that it was the policy of the CDCR that "when there is an incident involving any race, all inmates of that race are locked up." 

During court mandated settlement negotiations, Judge Jones temporarily assigned counsel to the plaintiff. That counsel ultimately agreed to represent the plaintiff for the case and filed a leave to amend the complaint in order to transform the case into a class action challenging the allegedly race-based lockdowns throughout California's men's prisons. On September 23, 2011, Magistrate Judge Edmund Brennan granted that motion. 2011 WL 4458784. In the second amended complaint, three additional plaintiffs were added as representatives of a class of all prisoners who were currently or would be in the future subject to the CDCR's policy and practice of implementing race-based lockdowns. 

Following the filing of the second amended complaint, the defendants filed a motion to dismiss. On June 28, 2012, in his findings and recommendations, Judge Brennan concluded that the plaintiffs had indeed properly exhausted their grievances under the Prison Litigation Reform Act, so the defendant's motion to dismiss should be largely denied. 2012 WL 2521827. On July 27, 2012, the new district court judge, Judge John Mendez, adopted the findings and recommendations in full. 2012 WL 3070084.

On March 5, 2013, the plaintiffs filed a motion for class certification as well as a motion for a preliminary injunction. The defendants then filed for summary judgment. On February 11, 2014, Judge Troy L. Nunley granted part of the defendants' motion for summary judgment, leaving the following claims: claims for injunctive relief based on Fourteenth Amendment violations, a claim for compensatory damages for violations of Fourteenth Amendment rights, and state law claims for intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. 2014 WL 546338.

On June 25, 2014, Judge Nunley denied the plaintiffs' motion for a preliminary injunction finding that the plaintiffs had not met the high burden required to obtain the extraordinary relief sought. 2014 WL 2895232.  A month later, Judge Nunley granted the plaintiffs' motion for class certification. 2014 WL 3689287.

On October 20, 2014, the parties entered into a stipulated settlement agreement. Under the terms of the agreement, the CDCR agreed to a number of terms, including: to cease race-based modified programs or lockdowns; to use individualized threat assessment forms to determine who would be retained on a modified program or lockdown; to provide outdoor activity to prisoners in a modified program or lockdown for longer than fourteen days; to revise its policies concerning modified programs and lockdowns, including modifying its definitions; to train its staff; and to provide status reports to plaintiffs' counsel for a defined period of time. The defendants also agreed to pay attorneys fees and costs. The agreement specified that its provisions would control for 18 months after the Court's preliminary approval or 4 months after final approval, whichever was later; plaintiffs could seek 12 months' extension at the end of that period.  

The parties sought approval of the agreement on Feb. 27, 2015, and on May 5, 2015, the court granted preliminary approval. Then, the parties jointly moved for final approval on September 10, 2015 which the court granted on October 8, 2015. 2015 WL 5920755. That same day, the court also granted the plaintiffs’ unopposed motion for attorneys’ fees and costs, totaling $2.375 million in attorneys’ fees and costs. 2015 WL 5920797. 

On June 2, 2016, the parties jointly proposed an order of dismissal of this action with prejudice. The following day, Judge Nunley dismissed the case with prejudice while retaining jurisdiction to enforce the terms of the agreement until the settlement agreement ends. The agreement was to last 18 months after preliminary approval, leaving the settlement to terminate on November 5, 2016. 

On December 20, 2016, the parties filed notice that the court’s jurisdiction to enforce the settlement agreement had terminated and that the case was dismissed with prejudice in its entirety. The case is now closed.