RICHARD JOHNSON V. CHARLES RYAN

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD JOHNSON, No. 20-15293

Plaintiff-Appellant, D.C. No.

2:18-cv-03055-

v. MTL-ESW

CHARLES L. RYAN, named as

Charles Ryan, Director of Arizona OPINION

Department of Corrections;

STACEY CRABTREE,

Administrator of Offender Services

Bureau; P. DAYS, Deputy Warden

of Browning Unit; MONTONO,

AKA Unknown Montano, First

name unknown; Deputy Warden of

Central Unit on or about 4-12-18

till 4-23-18, alias added pursuant to

Doc #53; BELT, First name

unknown; SSU Sergeant B, Special

Security Unit Sergeant at Central

Unit,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

2 JOHNSON V. RYAN

Argued and Submitted April 13, 2022

San Francisco, California

Filed December 15, 2022

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,

and Jed S. Rakoff,* District Judge.

Opinion by Judge Bybee;

Partial Concurrence and Partial Dissent by Judge Rakoff

SUMMARY **

Prisoner Civil Rights

In an action brought pursuant to 42 U.S.C. § 1983 by

Arizona inmate Richard Johnson, the panel (1) affirmed the

district court’s dismissal of Johnson’s claim that the Arizona

Department of Corrections’s (“ADC’s”) annual reviews of

his maximum security confinement were insufficient to

satisfy the Due Process Clause of the Fourteenth

Amendment; and (2) reversed the district court’s summary

judgment for defendants and remanded on Johnson’s claims

that his removal from the Department’s Step-Down

Program—a program by which inmates may reintegrate into

close custody confinement—violated his rights under the

*

The Honorable Jed S. Rakoff, United States District Judge for the

Southern District of New York, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

JOHNSON V. RYAN 3

First and Fourteenth Amendments.

Johnson’s complaint alleged, in part, that after he was

validated as a member of a Security Threat Group (“STG”),

he was moved to maximum security confinement where he

is confined to his cell for twenty-four hours per day, strip

searched every time he leaves his cell, takes meals in his cell,

and has limited access to rehabilitation programs. These

conditions are substantially more restrictive than the general

population from which he was moved. Johnson also alleges

that he was denied the opportunity for restoration of lost

earned release credits.

Addressing Johnson’s claim that the ADC’s annual

review process of his confinement status violates due

process, the panel held that Johnson has a liberty interest in

avoiding assignment to maximum custody as a consequence

of his STG validation. Nevertheless, Johnson failed to state

a claim for a due process violation under the three-prong

framework set forth in Mathews v. Eldridge, 424 U.S. 319,

335 (1976). Johnson did not challenge the procedures by

which he was initially validated as an STG

member. Instead, he argued that ADC’s annual reviews of

his confinement status do not afford him adequate process

because they are based solely on his alleged gang affiliation,

without regard to his criminal history, propensity of

violence, or disciplinary record within his past reclass

review period or his disciplinary record overall. The panel

held that ADC is entitled to substantial deference in its

determination that an inmate’s STG membership and failure

to renounce and debrief poses a continuing security

threat. Although Johnson disagreed with ADC’s judgment,

he failed to plausibly allege how that judgment created a risk

that he will be erroneously classified as a security threat.

4 JOHNSON V. RYAN

The panel next Johnson’s claim that his removal from the

Step-Down Program (“SDP”) in 2018 violated his due

process rights under the Fourteenth Amendment. The panel

disagreed with the assertion that ADC has created a liberty

interest in Johnson’s participation in the SDP, concluding

rather that the SDP is a process by which Johnson can leave

maximum custody and regain eligibility for good-time credit

and parole. Although Johnson had no liberty interest

created by the SDP, he adequately stated a liberty interest in

avoiding a return to maximum custody from close

custody. Thus, it was not Johnson’s removal from the SDP

per se that created an atypical and significant hardship, but

the change in Johnson’s underlying conditions of

confinement when he was moved. Because Johnson was

not given a meaningful opportunity to learn of the factual

basis for his transfer from close custody to maximum

custody or to prepare a defense to the accusations, Johnson

was likely denied due process in the procedures that resulted

in his return to maximum custody. At the very least, the

district court should not have granted summary judgment to

defendants on this claim.

Addressing Johnson’s First Amendment retaliation

claim that he was removed from the SDP and returned to

maximum custody because of his lawsuit against various

ADC defendants, the panel noted that Johnson had a pending

appeal in this court when he was removed from the SDP and

transferred back to maximum custody. The panel held that

viewing the evidence, including Johnson’s declaration, in

the light most favorable to Johnson, there was a genuine

dispute of material fact with respect to whether Johnson’s

removal from the SDP and return to maximum security

confinement reasonably advanced a legitimate penological

purpose.

JOHNSON V. RYAN 5

Concurring in part and dissenting in part, Judge Rakoff

stated that while Arizona provides the mirage that a once

validated member of an STG can later escape solitary

confinement, the reality is that he will be kept there for the

entire duration of his sentence. Believing that this is

unconstitutional, as well as contrary to past holdings of this

Court, Judge Rakoff dissented from the majority’s analysis

in Part III.A of its opinion, pertaining to Johnson’s claim that

Arizona’s refusal to consider factors other than his initial

STG validation and his subsequent failure to debrief denies

him due process. And while Judge Rakoff concurred in Part

III.B of the majority’s opinion, which reverses and remands

the district court’s entry of summary judgment against

Johnson on his claim that his removal from the SDP program

violated due process, he wrote separately to emphasize that

his claim is validly broader than the majority

contends. Finally, Judge Rakoff concurred fully in Part

III.C of the majority opinion with respect to Johnson’s

retaliation claim.

COUNSEL

Brian Wolfman (argued) and Daniel Wassim (argued),

Hannah M. Mullen, Madeline H. Meth, Samuel Myers,

Sanders Keyes Gilmer, and Rebecca Van Voorhees,

Georgetown University Law Center Appellate Courts

Immersion Clinic, Washington, D.C., for Plaintiff-Appellant

Patrick J. Boyle (argued), Assistant Attorney General; Mark

Brnovich, Attorney General of Arizona; Office of the

Arizona Attorney General, Phoenix, Arizona; for

Defendants-Appellees.

6 JOHNSON V. RYAN

OPINION

BYBEE, Circuit Judge:

Arizona Department of Corrections (ADC) inmate

Richard Johnson is a validated member of a Security Threat

Group (STG) and, pursuant to ADC’s policy, has been

assigned to maximum custody confinement. Johnson

challenges two aspects of ADC’s STG determination. First,

he argues that ADC’s annual reviews of his maximum

security confinement are insufficient to satisfy the Due

Process Clause of the Fourteenth Amendment. Second,

Johnson claims that his removal from ADC’s Step-Down

Program (SDP)—a program by which STG inmates may

reintegrate into close custody confinement—violated his

rights under the First and Fourteenth Amendments. The

district court screened his complaint, dismissing his claim

regarding ADC’s annual reviews for failure to state a claim.

The district court later granted summary judgment to

Defendants on Johnson’s claims regarding his removal from

the SDP. Johnson appealed, challenging both orders. We

have jurisdiction under 28 U.S.C. § 1291. We affirm in part

and reverse and remand in part.

I. BACKGROUND AND PROCEEDINGS

A. Regulatory Background

1. ADC’s security threat group policy

In 2005, the Supreme Court observed that “[t]he use of

Supermax prisons has increased over the last 20 years, in

part as a response to the rise in prison gangs and prison

violence.” Wilkinson v. Austin, 545 U.S. 209, 213 (2005)

(citing Chase Riveland, U.S. Dep’t of Justice, Nat’l Inst. of

Corr., Supermax Prisons: Overview and General

JOHNSON V. RYAN 7

Considerations 1 (1999)). These facilities, sometimes

referred to as “jails within prisons,” Riveland, supra, at 1,

are “more restrictive than any other form of incarceration,”

Wilkinson, 545 U.S. at 214.

In 1991, ADC addressed its own prison gang challenges

by adopting a Security Threat Group policy, referred to as

Department Order (DO) 806. The policy’s purpose is to

“minimize the threat that inmate gang or gang like activity

poses to the safe, secure and efficient operation of

institutions.” The policy defines an STG as “[a]ny

organization, club, association or group of individuals, either

formal or informal (including traditional prison gangs), . . .

whose members engage in activities that include . . .

committing or attempting to commit unlawful acts or acts

that violate the Department’s written instructions, which

detract from the safe and orderly operation of prisons.”

Ariz. Dep’t of Corr., Dep’t Order Manual, Dep’t Order 806,

at 25 (2017) [hereinafter DO 806]. The policy

contemplates “[m]inimizing gang or gang like activity”

through two programs: (1) “the debriefing and segregation

of inmates who disavow gang membership,” and (2) “a step-

down process for gang members who participate in

programming, reject gang activity and affiliation, and

remain disciplinary free.” DO 806 at 1.

ADC’s process for confirming an inmate’s membership

in an STG is called “validation,” and entails the following

process. When an inmate is first suspected of being an STG

member, the inmate is monitored for any STG-related

activity. ADC collects any documentation and physical

evidence in support of the inmate’s STG membership in an

STG Suspect File held by the Special Security Unit (SSU).

DO 806.03. Once an inmate accrues at least ten points in

two or more of ADC’s validation criteria, a “validation

8 JOHNSON V. RYAN

packet” is prepared and sent to the STG Validation Hearing

Committee. In the hearing, SSU presents the validation

packet, the inmate presents his defense, and the STG

Validation Hearing Committee determines whether the

documentation supports validation as an active STG

member. DO 806.04.1.7. If the committee finds that the

documents support validation, the inmate has three options:

He may renounce his STG membership, he may accept the

validation but refuse to renounce his STG membership, or

he may appeal his validation to the STG Appeals Committee.

DO 806.04.1.8.

Validated STG members who refuse to renounce are

assigned to maximum custody. DO 806.07. Male

validated STG members, like Johnson, are housed in the

ASPC-Eyeman Browning Unit (Browning Unit) for the

duration of their incarceration. Validated STG inmates are

ineligible for “restoration of forfeited time credits [and] . . .

rescission of Parole Class III time.” Id. 806.07.1.1.

Furthermore, Johnson alleges that ADC conducts an annual

review of maximum security inmates’ status, but for STG

inmates, these annual reviews consider only whether they

are validated STG members and whether they have

renounced and debriefed.

Conditions in maximum custody facilities such as the

Browning Unit are very restrictive. Johnson alleges that he

and other STG inmates in maximum custody are confined to

their cells twenty-four hours per day, strip searched, and

handcuffed behind their backs every time they leave their

cells. In the Browning Unit, STG inmates are entitled to

between $60 to $160 in weekly allowance at the store, one

to three fifteen-minute phone calls per week, one to three

two-hour non-contact visit blocks per week, and three three-

hour recreation blocks per week in a chute enclosure with

JOHNSON V. RYAN 9

the possibility that one block may be in a ten-by-ten foot

enclosure. They also have access to the library, television,

and mandatory rehabilitation programming, with the

possibility of further access to hobby supplies, the job of pod

porter, and eligibility for unrestrained escorts out of their

cells. ADC has promulgated an Inmate Maximum Custody

Management and Incentive System. Ariz. Dep’t of Corr.,

Dep’t Order Manual, Dep’t Order 812 (2019) [hereinafter

DO 812]. The program uses a “step incentive system” that

provides inmates “the opportunity to participate in jobs,

programs, and other out of cell activities” by which “inmates

may progress from controlled based housing to open

privilege based housing.” DO 812.1.

2. Pathways out of maximum security

STG-validated inmates have two distinct paths to

become eligible for custody reductions and housing status

change. They must either renounce their STG membership

and debrief or they must complete the SDP. DO 806.07.1.2.

a. Renouncing and debriefing

Renunciation is “[t]he process, in which a validated STG

member agrees to renounce STG affiliation, successfully

completes a debriefing, and is considered a former member.”

DO 806 at 25. Debriefing is a process by which the inmate

provides ADC with information to convince ADC that the

inmate has withdrawn from the STG. Debriefing permits

ADC to get additional information about the STG so that

ADC may manage the threat and to determine whether the

inmate will need to be protected from other STG members

and suspects. DO 806.06.1.1. A validated STG member is

“[p]ermitted to renounce and debrief at any time.” DO

806.07.1.1.9. If the inmate has debriefed to the satisfaction

of the STG Validation Hearing Committee, the inmate is

10 JOHNSON V. RYAN

placed in protective custody pending review of eligibility for

lower custody housing or a double cell environment. DO

806.07.1.5.1. Inmates who successfully debrief may also

request out-of-state placement. DO 806.07.1.5.2.

b. The Step-Down Program

The SDP “permits active inmates who have been

validated as STG members, to remove themselves from STG

activity and demonstrate to Department staff that they are no

longer involved with STG activity.” ADC considers it to be

an “alternative, indirect way of demonstrating a

disassociation with gang activity [that] does not require

renunciation and debriefing.” In order to participate in the

SDP, a validated STG member must notify ADC in writing

of his desire to participate in the program and must do so

after a twenty-four-month period in which the inmate did not

participate in STG activity or receive documented violations.

DO 806.1.2.

The SDP is split into five “Phases.” Phases I through

III take place in the Browning Unit and each lasts 180 days.

DO 806.08. At Phase I, inmates complete “general

evidence based programs” such as diversity training, high

school equivalence preparation, cognitive thinking, and

other rehabilitative programming. At Phase II, inmates are

allowed outside of their cells individually and unrestrained

in order to complete job assignments, and may walk to and

from the shower and recreation unrestrained. DO

806.08.1.5.2. They may also participate in town hall

meetings in non-contact cells, restorative justice

programming, and other rehabilitative programming. DO

806.08.1.5.2.1. At Phase III, inmates are allowed two-

person recreation periods, job assignments, and one meal

each day with other SDP inmates in which they are

JOHNSON V. RYAN 11

unrestrained. DO 806.08.1.5.3. They also continue

programming, such as substance abuse activities, conflict

resolution, domestic violence, and other treatment

programs. DO 806.08.1.5.3. Phase IV involves transfer

from the Browning Unit to a close custody unit and a four-

week transition period in the close custody unit. DO

806.10.1.2. In the first week, SDP inmates may only eat

and have recreation periods with other SDP inmates. DO

806.10.1.3. In the second, they may eat with other close

custody inmates. DO 806.10.1.4.2. In the third, they may

also have recreation periods with close custody inmates.

DO 806.10.1.5.3. In the fourth week, inmates begin

employment. DO 806.10.6.4. Upon completion of Phase

IV, inmates begin Phase V, which is an indefinite period of

monitoring. DO 806.10.1.7.

Inmates may be removed from the SDP for participating

in STG activity or having a documented incident involving

violence, a threat, a weapon, an improper use of a cell phone,

or drug usage. DO 806.08.1.2. They may also be removed

for participating in activities that adversely affect the safety

of staff and the public, failing to complete all programming,

and for disciplinary behavior that changes the inmate’s

classification or housing assignment. DO 806.11.1.4. At

Phases I through IV, removals are documented, and the

deputy warden for the inmate’s assigned housing unit makes

the final decision of whether to reinstate the inmate or

terminate them from the SDP. DO 806.11.1. In these

phases, inmates are not entitled to a revocation hearing or an

appeal before the STG Appeals Committee, but the regular

inmate grievance procedure remains available. Inmates

removed at Phase V are entitled to a hearing before the STG

Validation Hearing Committee with the right to an appeal to

the STG Appeals Committee. DO 806.11.5.

12 JOHNSON V. RYAN

An inmate terminated from the SDP must remain in

maximum security for two years before he is eligible to

participate again. DO 806.11.12. If an inmate is removed

twice, he is permanently ineligible to participate in the SDP,

although he may still renounce and debrief at any time. DO

806.11.13.

B. Johnson’s Removal from the SDP

In October 2014, the STG Validation Hearing

Committee classified Johnson as a validated member of the

Warrior Society STG. He appealed, and the STG Appeals

Committee affirmed his validation. He was transferred to

the ASPC-Eyman Browning Unit in November 2014.

Johnson enrolled in the SDP in November 2016. He

was terminated from the program in December 2017, due to

an inconclusive polygraph. After Johnson submitted an

inmate grievance and received a hearing, ADC determined

that he successfully passed a polygraph and was eligible for

Phase IV. In April 2018, Johnson began Phase IV and was

transferred to the ASPC-Florence Central Unit, a close

custody unit.

Pursuant to ADC policy, SSU officers searched Johnson

and his belongings when he arrived at the close custody unit.

SSU Sergeant Belt prepared a memorandum that described

three STG-specific documents found in Johnson’s

belongings: (1) a calendar code specific to the Warrior

Society with the name and ADC number of another Warrior

Society validated inmate written in code; (2) a roster of

Warrior Society members housed in Wing IV at the

Browning Unit; and (3) a micro-note from one Dine Pride

STG member to another that included a roster of Dine Pride

members in the Browning Unit and described other Dine

JOHNSON V. RYAN 13

Pride activities. 1 Then-Deputy Warden Ruben Montano

stated that Belt’s memorandum and evidence was sufficient

to remove Johnson from the SDP because it demonstrated

that he violated the program’s prohibition on STG activity.

Johnson was terminated from the SDP on April 23, 2018.

When Johnson asked Belt why he was terminated from the

SDP, Belt told him that “higher-ups” wanted Johnson off the

yard and “jailhouse lawyers” were not welcome in Belt’s

unit. After Johnson asked Belt why he was labeled a

“jailhouse lawyer,” Belt said, “you know why.”

On April 23, 2018, Johnson received a notice of hearing

regarding his proposed placement in maximum custody.

He also submitted a written statement in connection with the

hearing, but the copies provided by both parties are illegible.

Johnson attended the hearing on April 25, 2018. ADC staff

determined that he would be returned to the Browning Unit

because of his role as an active, validated STG member.

Johnson was transferred back to the Browning Unit on April

30, 2018.

1

Johnson contests ADC’s characterization of these documents. While

noting that he “can only speculate” about the true nature of these objects,

Johnson guesses that the calendar code was actually a “mind teaser,” the

roster of Warrior Society members was a list for a Native American pipe

ceremony, and the micro-note was never given to him by its alleged

author. He provided declarations from other Native American inmates,

who stated that they have been asked by SSU officers to make a list of

pipe ceremony participants. He also provided a declaration from Ladle

Joey, the alleged author of the micro note, who stated that he never gave

Johnson the micro note, but also admitted that “I am neither confirming

nor denying that I am the author of the alleged ‘micro note’” and that “I

have not seen the actual ‘micro note.’” Finally, Johnson alleges that

SSU officers have a history of submitting unreliable evidence as STG

material because he previously had some materials seized for this reason

and later returned, including an Apache-English dictionary.

14 JOHNSON V. RYAN

Johnson contested his transfer back to the Browning Unit

in two ways: through the grievance process and through an

appeal of his maximum custody placement. On May 2,

2018, he filed an informal grievance, and on May 15, 2018,

he filed a formal grievance. Both grievances argued that he

did not receive adequate process for his removal from the

SDP and raised the possibility of retaliation. They further

alleged that Johnson was not told the reason for his

reassignment to maximum custody other than his status as

an active STG member. Deputy Warden Days denied his

formal grievance, confirming that he was terminated for

being an active STG member. On June 8, 2018, Johnson

appealed the denial of his formal grievance, and the appeals

office told him that his removal was in compliance with

department policy and that he failed to provide evidence of

retaliation.

In the meantime, on June 17, 2018, Johnson filed an

appeal of his maximum custody placement. His appeal

form repeated that he was not told the reason for his

reassignment other than his status as an active STG member.

The administrator of the Offender Services Bureau, Stacey

Crabtree, denied the appeal, finding that Johnson was

correctly classified to maximum custody based on the

discovery of STG-specific documents in his belongings.

After Johnson returned to the Browning Unit, SSU officers

refused to tell him why he was terminated from the SDP,

with one officer telling him that he “would need a ‘court

order’ to know why [he] was terminated.” Johnson also

sent a letter to ADC Director Charles Ryan. Ryan never

responded, but Johnson received a response from a division

director stating that the current SDP policy did not require a

hearing for inmates removed from Phases I–IV.

JOHNSON V. RYAN 15

C. Proceedings Below

Johnson filed suit under 42 U.S.C. § 1983 in the District

of Arizona against Ryan, Crabtree, Days, Montano, and Belt

seeking damages and an injunction ordering ADC to

implement a behavior-based model for dealing with STG

members. His amended complaint raised three claims: (1)

violation of his due process rights under the Fourteenth

Amendment for the failure to consider factors other than

STG membership at annual reviews of his maximum custody

status, (2) violation of his due process rights under the

Fourteenth Amendment for his removal from the SDP, and

(3) retaliation in violation of the First Amendment for his

removal from the SDP for his previous litigation. The

district court screened his complaint under 28 U.S.C.

§ 1915A and dismissed Johnson’s due process challenge to

ADC’s annual review process for failure to state a claim. In

that claim, Johnson had argued that the reviews should also

consider his “criminal history, propensity of violence, or

disciplinary record within his past reclass review[] period or

Plaintiff’s disciplinary record overall.” The district court

held that “ADC’s periodic review, combined with the ability

to debrief at any time, satisfies due process,” citing four

other cases from the District of Arizona holding the same. 2

On cross-motions for summary judgment, the district

court granted summary judgment to Defendants on

Johnson’s remaining two claims. With respect to Johnson’s

2

See Mendez v. Ryan, No. CV-12-0271-PHX-RHB (MHB), 2013 WL

6408389, at *8 (D. Ariz. 2013); Standley v. Ryan, No. CV 10-1867-PHX-

DGC (ECV), 2012 WL 3288728, at *9–10 (D. Ariz. 2012); Faulkner v.

Ryan, No. CV 10-2441-PHX-SMM (JFM), 2012 WL 407452, at *9–10

(D. Ariz. 2012); Hernandez v. Schriro, No. CV 05-2853-PHX-DGC

(JJM), 2011 WL 2910710, at *8–9 (D. Ariz. 2011).

16 JOHNSON V. RYAN

due process claim against Ryan, the district court held that

Ryan was not involved in the decision to remove Johnson

from the SDP and Johnson failed to allege that his removal

was attributable to an unconstitutional policy, practice, or

custom that could be attributed to Ryan. With respect to

Crabtree and Days, the district court found that neither

defendant had the authority to order additional procedural

safeguards for Johnson’s termination. Finally, with respect

to Montano, the district court held that Johnson’s liberty

interest in avoiding the conditions of solitary confinement

was adequately protected by ADC’s periodic reviews of his

confinement in addition to his ability to debrief at any time.

The district court further held that Johnson did not have an

independent liberty interest in remaining in the SDP because

it is a program voluntarily administered by ADC and not

required by the Due Process Clause. On Johnson’s First

Amendment retaliation claim against Montano and Belt, the

district court found that Johnson’s previous lawsuits

constituted protected conduct, but that Johnson failed to

show how that conduct was the “substantial or motivating

factor” behind his removal from the SDP.

Johnson timely appealed.

II. STANDARD AND SCOPE OF REVIEW

We review de novo a district court’s dismissal under 28

U.S.C. § 1915A. Byrd v. Phx. Police Dep’t, 885 F.3d 639,

640 (9th Cir. 2018).

To survive § 1915A review, a complaint must

contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible

on its face. Moreover, we have an obligation

where the petitioner is pro se, particularly in

civil rights cases, to construe the pleadings

JOHNSON V. RYAN 17

liberally and to afford the petitioner the

benefit of any doubt.

Id. at 642 (citations and quotations omitted).

We review de novo a district court’s grant of summary

judgment. Transgender L. Ctr. v. Immigr. & Customs

Enf’t, 46 F.4th 771, 778 (9th Cir. 2022). “We therefore

employ the same standard used by the district court and must

‘view the evidence in the light most favorable to the

nonmoving party, determine whether there are any genuine

issues of material fact, and decide whether the district court

correctly applied the relevant substantive law.’” Id.

(quoting Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989

(9th Cir. 2016) (en banc) (per curiam)).

Johnson raises three issues on appeal. First, he raises a

challenge under the Due Process Clause to ADC’s policy of

conducting annual reviews of the validation of STG

members. Second, he claims the he had a liberty interest in

the Step-Down Program and that his removal without a

hearing violated his due process rights under the Fourteenth

Amendment. Third, Johnson claims that the district court

erred in granting summary judgment on his claim that prison

officials retaliated against him by removing him from the

SDP for filing prior lawsuits, in violation of the First

Amendment. We will consider each issue in turn.

III. WHETHER ADC’s STG REVIEW VIOLATES DUE

PROCESS

We first consider whether the district court erred when it

screened Johnson’s claim that ADC’s annual reviews of his

confinement status violate his due process rights under the

Fourteenth Amendment. The Due Process Clause of the

18 JOHNSON V. RYAN

Fourteenth Amendment prohibits states from “depriv[ing]

any person of life, liberty, or property, without due process

of law.” U.S. Const. amend. XIV, § 1. In order to analyze

a procedural due process claim, we engage in a two-step

analysis: First, we determine whether the inmate was

deprived of a constitutionally protected liberty or property

interest. Second, we examine whether that deprivation was

accompanied by sufficient procedural protections. See

United States v. 101 Houseco, LLC, 22 F.4th 843, 851 (9th

Cir. 2022). In order to determine whether the procedural

protections provided are sufficient at the second step, we

look to (1) the private interest affected; (2) the risk of an

erroneous deprivation and the probable value of any

additional or substitute procedural safeguards; and (3) the

government’s interest. Mathews v. Eldridge, 424 U.S. 319,

335 (1976).

A. Johnson’s Liberty Interest in Avoiding Maximum

Security

A liberty interest “may arise from the Constitution itself

. . . or it may arise from an expectation or interest created by

state laws or policies.” Wilkinson, 545 U.S. at 221. The

Constitution does not give rise to a liberty interest in

avoiding transfer to more adverse conditions of confinement,

but such an interest may “arise from state policies or

regulations.” Id. at 221–22; Meachum v. Fano, 427 U.S.

215, 225 (1976) (“[T]he Due Process Clause [does not] . . .

protect a duly convicted prisoner against transfer from one

institution to another within the state prison system.

Confinement in any of the State’s institutions is within the

normal limits or range of custody.”). However, an interest

in avoiding certain conditions of confinement “will be

generally limited to freedom from restraint which, while not

exceeding the sentence in such an unexpected manner as to

JOHNSON V. RYAN 19

give rise to protection by the Due Process Clause of its own

force, nonetheless imposes atypical and significant hardship

on the inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations

omitted). “After Sandin, it is clear that the touchstone of

the inquiry into the existence of a protected, state-created

liberty interest in avoiding restrictive conditions of

confinement is not the language of regulations regarding

those conditions but the nature of those conditions. . . .”

Wilkinson, 545 U.S. at 223.

Johnson has alleged sufficient facts to establish a liberty

interest in avoiding maximum security confinement in the

Browning Unit as a result of his STG validation. Johnson

was not initially placed in the Browning Unit as a

consequence of the crimes for which he was convicted and

sentenced. See Wilkinson, 545 U.S. at 216 (noting that

initial assignment to Ohio’s supermax might follow “if the

inmate was convicted of certain offenses”); Myron v.

Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (holding that an

inmate has no liberty interest in his initial classification); see

also Prieto v. Clarke, 780 F.3d 245, 254 (4th Cir. 2015)

(rejecting a due process challenge to harsh conditions on

death row). Johnson’s complaint states that after he was

validated as an STG member in 2014, he was moved to the

Browning Unit, where he is confined to his cell for twenty-

four hours per day, strip searched every time he leaves his

cell, takes meals in his cell, and has limited access to

rehabilitation programs. These conditions are substantially

more restrictive than the general population from which he

was moved. Johnson also alleges that he was denied the

opportunity for restoration of lost earned release credits.

The Supreme Court has held that similar conditions in an

Ohio Supermax facility created a liberty interest because

20 JOHNSON V. RYAN

they “impose[d] an atypical and significant hardship under

any plausible baseline.” Wilkinson, 545 U.S. at 223–24; see

also Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th Cir.

2014) (holding that solitary confinement for a fixed and

irreducible twenty-seven month period created a liberty

interest). We hold that Johnson has a liberty interest in

avoiding assignment to maximum custody as a consequence

of his STG validation.

B. Sufficiency of Process

Although we find that Johnson has a liberty interest, he

fails to state a claim for a due process violation under the

Mathews three-prong framework. In this appeal, Johnson

does not challenge the procedures by which he was initially

validated as an STG member. Instead, he argues that

ADC’s annual reviews of his confinement status do not

afford him adequate process because they “are based solely

on Plaintiff’s alleged gang affiliation, without regard to his

criminal history, propensity of violence, or disciplinary

record within his past reclass review[] period or Plaintiff’s

disciplinary record overall.”

1. Balancing inmate and prison interests

In the context of prison gangs, the balance of private and

public interests—that is, the first and third prongs of the

Mathews analysis—weigh heavily in favor of ADC. On the

inmate side, Johnson must accept that almost any placement

in the Arizona prison system is a severely restricted

environment, and that “the procedural protections to which

[inmates] are entitled are more limited than in cases where

the right at stake is the right to be free from confinement at

all.” Wilkinson, 545 U.S. at 225. On the state’s side,

“[p]rison security, imperiled by the brutal reality of prison

gangs, provides the backdrop of the State’s interest” and is a

JOHNSON V. RYAN 21

“dominant consideration.” Id. at 227. Indeed, we have

described prison gangs as a “chronic problem” in which

“gangs engage in extortion, drug trafficking, assault, and

murder within the prisons.” Griffin v. Gomez, 741 F.3d 10,

12 (9th Cir. 2014); see United States v. Silverstein, 732 F.2d

1338, 1341 (7th Cir. 1994) (describing the court’s

“horrifying glimpse of the sordid and lethal world of modern

prison gangs”). We have observed that the assignment of

gang affiliates to administrative segregation “is not a

disciplinary measure, but an administrative strategy

designed to preserve order in the prison and protect the

safety of all inmates” and that “the assignment of inmates

within the [State’s] prisons is essentially a matter of

administrative discretion.” Munoz v. Rowland, 104 F.3d

1096, 1098 (9th Cir. 1997); see also Bruce v. Ylst, 351 F.3d

1283, 1289 (9th Cir. 2003) (acknowledging that “prisons

have a legitimate penological interest in stopping prison

gang activity”); Mark S. Fleisher & Scott H. Decker, An

Overview of the Challenge of Prison Gangs, Corr. Mgmt. Q.,

vol. 5, issue 1, at 2–5 (2001) (recounting the history,

organization, and impact of prison gangs). And in this

context, “courts must give substantial deference to prison

management decisions before mandating additional

expenditures for elaborate procedural safeguards when

correctional officials conclude that a prisoner has engaged in

disruptive behavior.” Wilkinson, 545 U.S. at 228.

In this case, ADC has determined that an inmate’s STG

status—the fact of membership in a gang, irrespective of his

prison disciplinary record—is a sufficient indication of that

inmate’s security risk to justify continuing solitary

confinement. Arizona is not alone in this assessment. As

a report from the National Institute of Justice at the U.S.

Department of Justice found: “Numerous responses to

22 JOHNSON V. RYAN

combat gangs have been implemented throughout U.S.

prison systems, but only one has been described as a ‘silver

bullet:’ removing gang affiliates from the general population

and placing them in restrictive housing.” David C. Pyrooz,

U.S. Dep’t Justice, Nat’l Inst. of Just., Using Restrictive

Housing to Manage Gangs in U.S. Prisons (June 30, 2018),

https://nij.ojp.gov/topics/articles/using-restrictive-housing-

manage-gangs-us-prisons (footnote omitted). As a

consequence, “Corrections officials have, overwhelmingly,

endorsed the use of restrictive housing for gang affiliates.”

Id.; see, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1240–44

(N.D. Cal. 1995) (describing California’s program for

segregating prison gang affiliates). The proposition is not

without controversy, even among corrections experts, but we

owe substantial deference to ADC’s judgment in making this

prison management decision. ADC’s judgment is broadly

shared by other corrections officials, and we should not

impose additional procedures lightly. See Wilkinson, 545

U.S. at 228.

2. Risk of erroneous deprivation

With these considerations in mind, we turn to the second

prong of the Mathews analysis. Given the procedures that

ADC has in place, what is the risk that ADC officials will

erroneously determine that Johnson remains a security risk

to the prison? Johnson, with vigorous support from our

dissenting colleague, argues two points. First, citing our

decision in Toussaint v. McCarthy, 801 F.2d 1080, 1102 (9th

Cir. 1986) (Toussaint III), overruled in part on other

grounds, Sandin v. Connor, 515 U.S. 472 (1995), he argues

that reviews of his confinement status cannot be

“meaningless gestures” and must be held more frequently

than once a year. See Dissenting Op. at 4 (Toussaint III

“requires review of [segregated] placement more than once

JOHNSON V. RYAN 23

per year”). Second, he argues that irrespective of the

frequency of such retention reviews, the ADC’s review

process is inadequate because periodic reviews have never

considered whether he remains a threat to the institution, but

“consider[] only an initial STG validation and the

subsequent failure to debrief.” See id. at 9. We will

address both points.

The frequency of review of Johnson’s gang status. In

Hewitt v. Helms, the Supreme Court set forth the general

standard:

[A]dministrative segregation may not be used

as a pretext for indefinite confinement of an

inmate. Prison officials must engage in

some sort of periodic review of the

confinement of such inmates. This review

will not necessarily require that prison

officials permit the submission of any

additional evidence or statements. The

decision whether a prisoner remains a

security risk will be based on facts relating to

a particular prisoner—which will have been

ascertained when determining to confine the

inmate to administrative segregation—and

on the officials’ general knowledge of prison

conditions and tensions, which are singularly

unsuited for “proof” in any highly structured

manner.

459 U.S. 460, 477 n.9 (1983), abrogated in part on other

grounds, Sandin, 515 U.S. 472.

We addressed the question of retention reviews in

Toussaint III, 801 F.2d at 1101. To understand our

24 JOHNSON V. RYAN

statements, some context is required. Toussaint was a class

action spanning nearly two decades and broadly addressing

the conditions of confinement at four California prisons—

San Quentin, Folsom, Deuel Vocation Institute at Tracy, and

Correctional Training Facility at Soledad. The litigation

had an extensive history in the district court and in our

court. 3 Relevant to this case, the district court addressed

the segregated housing practices at San Quentin and Folsom

and described three justifications for segregating inmates:

(1) because of “disciplinary rule infractions”; (2) because of

“an institutional perception that they pose a threat to the

safety of other inmates or staff, or to the security of the

institution”; and (3) “because of a perception that the

inmates themselves may be harmed by other inmates if they

must mingle in the general population.” Toussaint II, 597

F. Supp. at 1393–94. The district court also identified a

fourth category, known as “administrative segregation,”

which was a catch-all for inmates assigned to segregated

housing “pending a determination of whether he should be

assigned more permanent ‘segregated’ status for one of the

three reasons.” Id. at 1394. It was for this fourth category

that the district court expressed concern that “the decision to

segregate is based on unverifiable hearsay or ‘confidential

3

See generally Wright v. Enomoto, 462 F. Supp. 397 (N.D. Ca. 1976),

aff’d 434 U.S. 1052 (1978); Wright v. Rushen, 642 F.2d 1129 (9th Cir.

1981), on remand, 553 F. Supp. 1365 (N.D. Cal. 1983), aff’d in part and

vacated in part sub nom. Toussaint v. Tockey, 722 F.2d 1490 (9th Cir.

1984) (Toussaint I), on remand sub nom. Toussaint v. McCarthy, 597 F.

Supp. 1388 (N.D. Cal. 1984) (Toussaint II), aff’d in part and rev’d in

part, 801 F.2d 1080 (9th Cir. 1986) (Toussaint III), on remand sub nom.

Toussaint v. Rowland, 711 F. Supp. 536 (N.D. Cal. 1989) (Toussaint IV),

aff’d in part and rev’d in part sub nom. Toussaint v. McCarthy, 926 F.2d

800 (9th Cir. 1991) (Toussaint V). See also Rowland v. U.S. Dist. Ct.

for N.D. Cal., 849 F.2d 380 (9th Cir. 1988).

JOHNSON V. RYAN 25

information’ from a source of unproven reliability

identifying the inmate as a gang member” and that inmates

had been held continuously in lockup for more than one year,

and “[some] had been so held for over two years.” Id. at

1407 (footnote omitted). The district court issued a

permanent injunction “to correct [the prisons’] arbitrary

practices in imposing segregation for ‘administrative’

reasons, and in retaining prisoners in segregation” and

required such inmates to “be released from segregation upon

his Minimum Eligible Release Date (MERD), if any, or at

the expiration of twelve (12) months” unless the inmate is

afforded a hearing and it is determined that he fits one of the

three justifications described above. Id. at 1424.

Both parties appealed the district court’s injunction.

We held that “the state’s interest in maintaining security in

San Quentin and Folsom is at least as great, if not greater,

than the state’s interest shown in Hewitt,” as California’s

facilities were “composed of the most violent and anti-social

offenders in the California prison system.” Toussaint III,

801 F.2d at 1100. With respect to the decision to make the

initial placement, we held that “due process only requires . .

. an informal nonadversary hearing within a reasonable time

after the prisoner is segregated.” Id. (footnote omitted); see

id. at 1100 n.20 (stating that “the district court’s requirement

that a hearing be held within 72 hours of segregation

constitutes a ‘reasonable time’” and “intimat[ing] no view as

to whether due process would tolerate a more lengthy

delay.”). With respect to retention reviews, we noted recent

decisions of the Third and Eighth Circuits 4 approving

4

Those cases involved a very different set of circumstances, and neither

case addressed the Mathews test. In Mims v. Shapp, 744 F.2d 946 (3d

Cir. 1984), Burton had been segregated for five years for his role in a

Pennsylvania prison riot in which a deputy warden was killed. The

26 JOHNSON V. RYAN

monthly reviews of a prisoner’s segregated status and,

without further analysis, we concluded, “[w]e do not believe

that annual review sufficiently protects plaintiffs’ liberty

interest. However, we intimate no view as to the frequency

of periodic review required. That is for the parties to

recommend and the district court to decide in the first

instance.” Id. at 1101.

On remand, the district court addressed objections from

the parties in response to a report from the prison monitor

appointed to supervise the injunction. Toussaint IV, 711 F.

Supp. at 537. The monitor recommended that inmates in

prison had reviewed his status every 30 days. The question for the court

was whether Burton had been denied “meaningful periodic review.” Id.

at 948. The district court found that Burton’s retention was based on

the subjective evaluation of prison officials, ordered Burton’s release,

and awarded damages. The Third Circuit reversed. The fact of the 30-

day review period used by the prison to retain Burton for violation of

prison disciplinary proceedings was not at issue and was mentioned only

in passing. Id. at 952.

In Clark v. Brewer, 776 F.2d 226 (8th Cir. 1985), Clark had been

held in segregated status for seven years after he killed an inmate and a

guard. Id. at 228. Under the Iowa prison procedures, an inmate’s

segregated placement was reviewed every seven days for the first two

months and then monthly thereafter. The district court ordered more

frequent review, and the Eighth Circuit reversed with the observation

that “[a] wide variety of situations will confront penitentiary officials,

and while in one case the type of situation involved will necessarily

require a relatively long period of segregation, in another only a short

period of segregation may be necessary.” Id. at 234. The court

concluded that “the frequency of that review must in most cases be left

to the informed discretion of prison officials” and “the frequency of

hearings presently required by state policy is constitutionally sufficient.

To require more frequent hearings would be of little or no benefit to any

individual inmate while at the same time significantly increasing the

administrative burden on penitentiary officials.” Id.

JOHNSON V. RYAN 27

“indeterminate segregation” be reviewed every 90 days.

The state objected and contended that review every 120 days

was sufficient. Although the district court had previously

approved up to a one-year retention review policy, the

district court ordered the state to review inmates’ segregated

status every 90 days. Id. at 539–40. We reversed, with

little analysis and without citation to any decision of any

court, including our prior decision in Toussaint III:

The Constitution does not support a nice

distinction between 90 days and 120 days.

The question is one of discretion. Is it to be

the discretion of the prison administrators or

the discretion of a district court? Nothing in

the Constitution invests the district court with

discretion to override the discretion of the

prison officials on this administrative point.

Here administrative discretion must prevail;

120 days satisfies due process.

Toussaint V, 926 F.2d at 803.

The Toussaint litigation is of limited usefulness in this

case. Between Toussaint III and Toussaint V, we are left

with bare ipse dixit that 120-day review of segregated status

is constitutionally acceptable, a one-year period is too long,

but anything in between those poles is to be left to the

discretion of prison officials. Nevertheless, our declaration

in Toussaint III that an annual review period was too long

would bind us—if annual review were the exclusive form of

relief for Johnson. It is not. Johnson may renounce his

gang status and debrief at any time. At a minimum, his

willingness to renounce and debrief would earn Johnson a

28 JOHNSON V. RYAN

hearing to determine whether he had satisfied the criteria for

renounce-and-debrief relief.

Because Johnson has not sought to renounce and debrief,

we are hard-pressed to understand why annual review of

STG status is not sufficient to satisfy the Due Process

Clause. We need to be very precise here so that we cannot

be misunderstood. We do not have inmates before us who

are subject to maximum custody in Arizona for violations of

disciplinary rules or have been segregated for their own

protection, to use the language of the Toussaint litigation.

See Toussaint II, 597 F. Supp. at 1393–94. Instead, Johnson

is subject to segregation because he has been classified as a

threat to the safety of the prison staff, other inmates, or the

general security of institution. See id. That classification

may encompass a variety of concerns. See Clark, 776 F.2d

at 228 (inmate was subject to long-term segregation after

numerous disciplinary reports and after he killed a guard and

an inmate); Mims, 744 F.2d at 948 (inmate was subject to

long-term segregation after killing a deputy warden). In

Johnson’s case, Arizona has articulated a particular concern.

It has not alleged that Johnson has violated disciplinary rules

or is an immediate threat to the staff or other inmates.

Rather, Arizona is concerned that Johnson’s gang

membership presents an ongoing threat to the security of the

prison, its staff, and its inmates. ADC’s immediate concern

is not conduct-based. It is based on Johnson’s status as a

member of the Warrior Society, which ADC has determined

is an active prison gang and presents a general threat to the

security of the prison. See Ariz. Dep’t of Corr., Security

Threat Group (STG) Program Evaluation 4 (2001) (noting,

as of 2001, that the Warrior Society and the Sureños were

the most recently certified STGs); see also Greybuffalo v.

Kingston, 581 F. Supp. 2d 1034, 1048–50 (W.D. Wis. 2007)

JOHNSON V. RYAN 29

(finding that the Warrior Society was created for the self-

protection of Native American prisoners and is involved in

criminal activities in prison); Nat’l Gang Intel. Ctr., 2013

National Gang Report, FBI, https://www.fbi.gov/file-

repository/stats-services-publications-national-gang-report-

2013 (last visited Oct. 24, 2022) (listing the Warrior Society

as one of the most significant prison gangs).

As we discuss in greater detail in the next section,

Johnson’s argument really amounts to a disagreement about

what criteria the prison should consider in determining

whether he remains a security risk and only secondarily

challenges how often ADC reviews his STG status. But as

the Supreme Court noted in Hewitt, periodic reviews do not

necessarily require additional evidence and may rely on facts

that were ascertained when the initial decision to confine the

inmate to administrative segregation was made. 439 U.S. at

477 n.9. Unless Johnson can show that his initial validation

as an STG was in error—a claim Johnson does not make—

then his recourse for the time being is to renounce his

membership, thereby altering his status as a Warrior Society

member. 5 Neither Johnson nor the state has anything to

gain by conducting monthly, 90-day, or 120-day reviews of

Johnson’s status as a gang member because nothing about

his STG status has changed. Such periodic reviews would

be useful to review conduct-based threats to prison security,

but that is not the basis for Johnson’s segregation. See

Madrid, 889 F. Supp. at 1278 (noting that the “lack of

continuing evidence of gang membership or activity is

5

We need not address hypotheticals such as whether Arizona would have

the same interest in segregating Johnson as an STG if, for example, by

reason of age or infirmity, Johnson no longer represented a threat to the

institution, even by virtue of his gang affiliation.

30 JOHNSON V. RYAN

simply considered irrelevant since the justification for

administrative segregation is the fact of gang membership

itself, not any particular behavior or activity” and “the

premise for finding that the inmate is a security risk—gang

membership or association—is not affected by the lack of

subsequent gang activity”). Because Johnson can initiate

review of his segregated status at any time by indicating that

he is prepared to renounce his membership, Johnson has

some control over the review process. We will not engage

in the empty formalism of requiring ADC to conduct a

review at some point less than annually—every 364 days, for

example—just to satisfy our broad statement in Toussaint

III. 6 We hold that annual review of Johnson’s gang status

plus the possibility of the opportunity to renounce and

debrief is sufficient to satisfy the demands of the Due

Process Clause. See Wilkinson, 545 U.S. at 217 (noting that

once an inmate has been placed in the Ohio supermax

facility, “his placement is reviewed on at least an annual

basis”).

Gang status as a threat to security. That brings us to

Johnson’s second, and perhaps most important point:

Johnson, buoyed by the dissent, believes that, irrespective of

his validated membership in a prison gang, Johnson must be

given the opportunity to demonstrate that he is not a threat-

in-fact. See Dissenting Op. at 69 (“Johnson plausibly

alleges that Arizona’s current review process offers him and

prisoners like him no effective way out of maximum custody

even if they no longer pose any threat to prison security.”).

6

In the end, even the dissent concedes the formalism of requiring a more

frequent periodic review because it would not matter to the dissent’s

analysis how often Arizona reviewed Johnson’s placement. Dissenting

Op. at 69.

JOHNSON V. RYAN 31

But here is the dissent’s critical premise: “gang affiliation,

without regard to [Johnson’s] criminal history, propensity

for violence, or disciplinary record” is not sufficient cause to

hold Johnson in segregated housing. Dissenting Op. at 73.

Thus by “den[ying Johnson] any ‘meaningful opportunity’

to demonstrate he was no longer a threat,” Arizona has

denied Johnson due process. Id. at 75.

Johnson has framed his argument as a Mathews v.

Eldridge challenge to Arizona’s procedures. Properly

considered, his argument does not sound in procedural due

process. Rather, it is a fundamental disagreement with

ADC’s judgment that gang status is a sufficient grounds for

placing Johnson, or any other gang member, in segregated

housing. Johnson and the dissent challenge ADC’s

judgment about what criteria the prison should consider in

determining whether Johnson remains a security risk.

Johnson’s argument sounds in substantive due process, not

procedural due process. 7 See United States v. Salerno, 481

U.S. 739, 746 (1987) (describing the difference between the

substantive and procedural components of the Due Process

Clause); Mills v. Rogers, 457 U.S. 291, 299 (1982) (similar);

7

We are not aware of any published decision from any court that

supports Johnsons’s and the dissent’s theory. We are aware that in 2001

an Arizona district court held that “due process requires more than just

proof of status” and that holding an inmate in segregated housing on the

basis of his validation as a member an STG without “evidence of

misconduct . . . offends the Due Process Clause.” Koch v. Lewis, 216

F. Supp. 2d 994, 1007 (D. Ariz. 2001). The district court in that case

acknowledged that the argument sounded in substantive due process.

Id. at 1003 (“the procedural component of due process is not at issue.”).

When the state’s appeal became moot, the district court vacated its

injunction but left its orders in place “for future ‘persuasive force.’” We

vacated the district court’s orders “in their entirety.” Koch v. Schriro,

399 F.3d 1100, 1100–01 (9th Cir. 2005).

32 JOHNSON V. RYAN

United States v. Quintero, 995 F.3d 1044, 1051–52 (9th Cir.

2021) (similar). No additional process would satisfy the

dissent’s claim that status alone is not sufficient cause for

maximum custody—hence the dissent’s candid

acknowledgment that it wouldn’t matter “if Arizona

reviewed Johnson’s placement monthly or even daily”

Dissenting Op. at 69—because it would not change ADC’s

judgment that STG status is a critical, determinative fact.

See Reno v. Flores, 507 U.S. 292, 301–02 (1993) (stating

that due process “includ[es] a substantive component, which

forbids the government to infringe certain ‘fundamental’

liberty interests at all, no matter what process is provided,

unless the infringement is narrowly tailored to serve a

compelling state interest”); Daniels v. Williams, 474 U.S.

327, 331 (1986) (characterizing certain substantive due

process rights as “bar[ring] certain government actions

regardless of the fairness of the procedures used to

implement them”).

The proposition that gang membership alone threatens

prison security is both outside of our expertise and too well

established for us to consider sua sponte a substantive due

process challenge to ADC’s judgment. Hewitt established

that prison officials’ judgment that an inmate represents a

threat to the safety of the prison may “turn[] largely on

‘purely subjective evaluations and on predictions of future

behavior’” and may be appropriate “even if [the inmate]

himself has committed no misconduct.” 459 U.S. at 474

(emphasis added) (quoting Conn. Bd. of Pardons v.

Dumschat, 452 U.S. 458, 464 (1981)). In this case, ADC

has made a subjective evaluation for which it is entitled to

significant deference—it determined that an inmate’s STG

membership and failure to debrief represents a continuing

and significant risk to prison safety such that it justifies the

JOHNSON V. RYAN 33

inmate’s confinement to maximum custody. Thus, it is of

no moment that Johnson and the dissent think there are

“other factors bearing on Johnson’s dangerousness [that]

might lead to a different outcome.” Dissenting Op. at 70.

So long as Arizona considers his STG status sufficient to

merit maximum custody, other factors are irrelevant. The

irrelevance of these “other factors” reflects a substantive

judgment about prison conditions and is far from a “typical

procedural due process argument.” Id. Mathews is of no

application to the dissent’s argument here. 8

Johnson’s confinement in maximum security is based on

the well-documented, near existential threat that gangs pose

to prison order. See Wilkinson, 545 U.S. at 227

(“Clandestine, organized, fueled by race-based hostility, and

committed to fear and violence as a means of disciplining

their own members and their rivals, gangs seek nothing less

than to control prison life and to extend their power outside

prison walls.”); Fleisher & Decker, supra, at 2–5. In a

lengthy, thorough opinion in Madrid v. Gomez, the district

court for the Northern District of California reviewed

California’s approach to prison gangs and considered the

conditions at Pelican Bay Prison, a modern facility designed

to hold “the worst of the worst.” 889 F. Supp. at 1155.

The court found that “[a]lthough both prison gangs and

8

Separating the strands of the Due Process Clause answers the dissent’s

claim that the district court erred in screening Johnson’s complaint under

28 U.S.C. § 1915A. See Dissenting Op. at 73–79. Johnson has only

brought a procedural challenge to ADC’s STG review process. The

dissent has doubled-down on that argument and denies that Johnson has

brought a substantive due process challenge. Id. at 69–70. Because it

is clear that no change in ADC’s review process would bring about a

change in Johnson’s classification, it was proper for the district court to

screen Johnson’s complaint.

34 JOHNSON V. RYAN

disruptive groups [such as motorcycle and street gangs] pose

threats to prison security, prison gangs are considered the

greater threat.” Id. at 1240. Under California’s policies,

gang members or associates could be placed in segregated

housing for an indefinite term, unless an inmate debriefs.

Id. at 1241. The district court found that although segregated

housing “contains an element of punishment and creates a

deterrent effect,” restrictive “conditions in the SHU serve to

undermine [gang] networks and opportunities by separating

gang members from one another.” Id. at 1275. The court

also found that California “considered [an inmate] to be a

security threat so long as the inmate is validated as a gang

affiliate and has not yet debriefed . . . . even if the inmate

has, for some period of time ‘remained clean.’” Id. at 1278.

It further explained that “[t]he lack of continuing evidence

of gang membership or activity is simply considered

irrelevant since the justification for administration

segregation is the fact of gang membership itself, not any

particular behavior or activity. . . . Therefore, the premise

for finding that the inmate is a security risk—gang

membership or association—is not affected by the lack of

subsequent gang activity.” Id. The court accepted the

state’s explanation and concluded that prison officials “do

not violate due process by failing to give persuasive value to

the fact that an inmate’s record reflects an absence of gang-

related activity or association over some period of time.”

Id. (footnote omitted).

As in Madrid, it is Johnson’s continuing status as a gang

member that is critical to the state’s interest in maintaining

him in maximum security. It is appropriate for ADC to rely

on Johnson’s STG validation status as justification for its

conclusion that he remains a security threat, and ADC is not

required to consider additional evidence such as his criminal

JOHNSON V. RYAN 35

history, propensity for violence, or his immediate past

disciplinary history. If the only evidence in Johnson’s file

was “for specific, serious misbehavior,” then “more formal,

adversary-type procedures might be useful” to avoid the

possibility of administrative error. Wilkinson, 545 U.S. at

228.

Johnson has not alleged any facts that would demonstrate

that ADC’s determination that he is a member of the Warrior

Society is erroneous or that his STG status is being used

pretextually. For instance, Johnson does not allege that the

ADC determination in his case is based on stale information

or is so outdated as to be irrelevant to a current risk analysis.

To the contrary, ADC’s evaluation focuses on information

that remains unchanged: Johnson was properly validated as

a member of the Warrior Society, he has not renounced his

membership and debriefed, and the Society still operates as

a prison gang and has active members in Arizona prisons.

See Ariz. Dep’t of Corr., Certified and Monitored Security

Threat Groups, https://corrections.az.gov/warrior-society-0

(last visited Oct. 24, 2022); but see Dissenting Op. at 74

(“Arizona would still need to show that a years or decades–

old STG validation, coupled with a prisoner’s subsequent

failure to debrief, actually establishes current gang status.”).

Thus, Johnson does not adequately allege that there exists a

risk that ADC has erroneously declared him to be a security

threat—Johnson (like the dissent) simply disagrees with

ADC’s judgment about what criteria are relevant. But

Johnson has not brought a substantive due process claim, and

the Supreme Court has said that periodic reviews may be

based on facts ascertained when initially assigning the

inmate to administrative segregation. See Hewitt, 459 U.S.

at 477 n.9.

36 JOHNSON V. RYAN

Johnson also suggests that ADC’s reliance on his STG

status and failure to debrief does not meet the “some

evidence” standard because these periodic reviews consider

only whether the prisoner “was previously validated” and

“has debriefed.” The “some evidence” standard requires

courts to determine “whether there is any evidence in the

record that could support the conclusion reached by the

disciplinary board.” Superintendent, Mass. Corr. Inst.,

Walpole v. Hill, 472 U.S. 445, 455–56 (1985). This

evidence must have “sufficient indicia of reliability.”

Bruce, 351 F.3d at 1288. Although the age of evidence

could affect its weight, Castro v. Terhune, 712 F.3d 1304,

1315 (9th Cir. 2013), we do not reweigh evidence when

determining whether there is “some evidence” for due

process purposes, Bruce, 351 F.3d at 1287. Johnson does

not challenge his initial validation or otherwise allege that

this evidence is unreliable.

* * *

Our review of the three Mathews prongs shows that

ADC’s annual reviews of Johnson’s STG status are not

constitutionally deficient. ADC is entitled to substantial

deference in its determination that an inmate’s STG

membership and failure to renounce and debrief poses a

continuing security threat. Although Johnson disagrees

with ADC’s judgment, he has failed to plausibly allege how

that judgment creates a risk that he will be erroneously

classified as a security threat. We affirm the district court’s

dismissal of Johnson’s claim under 28 U.S.C. § 1915A for

failure to state a claim.

C. Response to the Dissent

Our dissenting colleague comes to the conclusion that

ADC’s description of its system for dealing with gang

JOHNSON V. RYAN 37

membership is unconstitutional, see Dissenting Op. at 68 (“I

do not believe that the possibility of debriefing suffices to

render Arizona’s otherwise unconstitutional practice

constitutional”), and that additional factfinding is required to

bring Arizona’s program in line with the Constitution, see

Id. at 73–79. In addition to accepting Johnson’s arguments,

the dissent makes two additional points that merit response.

1. Renouncing and debriefing as process

The dissent argues that renouncing and debriefing is not

an effective way out of segregated housing. Id. at 66, 73–

75. The dissent calls debriefing “euphemistic,” “practically

impossible,” “a pseudo remedy,” and a “mirage.” Id. at 66.

Where the ADC regulations specify that a validated STG

member is “[p]ermitted to renounce and debrief at any time,”

DO 806.07.1.1.9, and will then be considered to be a “former

[gang] member,” DO 806 at 25, the dissent dismisses

renouncing and debriefing as “theoretical eligibility” that

may not offer inmates “a plausible path” out of segregated

housing. Dissenting Op. at 76. The dissent’s principal

explanation is a hypothetical that Johnson “may not be able

to successfully debrief even if [he] wished.” Id. at 77. The

dissent explains that under ADC’s regulation, an inmate who

is renouncing and debriefing must “provide additional

information regarding the STG’s structure, activity and

membership that would adversely impact the STG and assist

in management of the STG population.” DO 806.061.1.2.

Even though Johnson has never attempted to renounce and

debrief, the dissent hypothesizes that Johnson will not be

able to satisfy these criteria because “it is not at all clear how

a prisoner who was validated eight years ago and has been

held in solitary confinement ever since could possibly be in

a position to provide any information that would ‘adversely

38 JOHNSON V. RYAN

impact the STG’ or ‘assist’ the prison in ‘management of the

STG population.’” Dissenting Op. at 77.

These claims are not established anywhere in this record

or the record of any other case, but are entirely of the

dissent’s own imagination. Debriefing has been widely

used in prisons in this circuit. See, e.g., Hinojosa v. Davey,

803 F.3d 412, 416–17 (9th Cir. 2015) (describing

California’s debriefing program), rev’d on other grounds,

578 U.S. 412 (2016); Griffin, 741 F.3d at 12 (same), Madrid,

889 F. Supp. at 1240–44 (same); Nev. Dep’t of Corr., AR

446.03(3) (providing for a debriefing process); Wash. Dep’t

of Correc., DOC 470.500(IV) (providing for a debriefing

process); see also Pyrooz, supra, (“Debriefing . . . remains

an established route out of restrictive housing . . . .”). 9 And

the record in one of our cases disclosed that debriefing has

been used with success in the California system. Griffin,

741 F.3d at 12 (noting that “[o]ver a thousand inmates have

been debriefed and released from [security housing units] in

recent decades”); see also U.S. Dep’t of Just., Report and

Recommendations Concerning the Use of Restrictive

Housing 25 (Jan. 2016) (describing the success of the federal

STG Drop-Out Units). Arizona has not told us the recent

history of its debriefing program, but in an academic study

prepared in 2001 for ADC, the authors found that in the time

frame for the study (1997–2001), some fourteen percent of

validated STG members “renounced their gang affiliation

9

Although debriefing remains a well-established off-ramp for STG

members and affiliates—“particularly in prison systems that house large

gang populations”—states have adopted “a broader range of policies and

programs that encourage disengagement . . . including segregation

diversion, gang renouncement, step-down and debriefing.” Pyrooz,

supra (footnote omitted). Arizona has adopted several of these policies

and programs.

JOHNSON V. RYAN 39

and were successfully debriefed by the STG Unit.”

Security Threat Group (STG) Program Evaluation, supra, at

iii.

So long as Johnson refuses to renounce and debrief, the

dissent’s objection is not ripe. We will not make up

objections to the debriefing program in the name of due

process.

2. Protective custody and segregated housing

The dissent claims that renouncing and debriefing is

ineffective as a way out of segregated housing because once

an inmate renounces his gang membership he may be

targeted by the gang and will end up in segregated housing

as a protective measure. Dissenting Op. at 65–66, 75–76.

The dissent objects that even if Johnson renounces and

debriefs, he would be given “the opportunity to trade one

form of solitary confinement for another.” Id. at 76.

The problem the dissent identifies is real and is

sometimes referred to as the “snitching” dilemma. See

Hinojosa, 803 F.3d at 416 & n.3; Griffin, 741 F.3d at 13; see

also Gonzales v. Calif. Dep’t of Corr., 739 F.3d 1226, 1234–

35 (9th Cir. 2014). In the 2001 Arizona study of STGs, the

authors found that “[t]he rate of renouncement . . . [was] low

in part due to the threat of retaliation from members of the

gang, and in part to the lack of a strong incentive to

renounce, i.e., most renounced members remain in a

supermax security unit.” Security Threat Group (STG)

Program Evaluation, supra, at iii. ADC is not blind to the

problem. Its regulations contemplate that an inmate who

has renounced and debriefed will be eligible for lower

custody housing or transfer out of state, but ADC has

acknowledged the reality that some inmates who renounce

their gang membership may have to be placed in protective

40 JOHNSON V. RYAN

custody, voluntarily or involuntarily. DO 806.07.1.5.1,

806.07.1.5.2; Report and Recommendations Concerning the

Use of Restrictive Housing, supra, at 23 (observing that

many inmates in protective custody have requested their

removal from the general population; others are

involuntarily removed).

The dilemma identified by the dissent cannot be avoided.

But protective custody in segregated housing is only

necessary as long as ADC or the inmate believes it is

necessary to guarantee the safety of the inmate. It is not

intended to be punishment for violation of prison rules or to

protect others from the segregated inmate. It is for the

protection of the former gang member and is the direct result

of the inmate’s own unfortunate past associational choices.

The Supreme Court has reminded us that “[t]he safety of the

institution’s guards and inmates is perhaps the most

fundamental responsibility of the prison administration.”

Hewitt, 459 U.S. at 473. Accordingly, “prison officials

have a duty . . . to protect prisoners from violence at the

hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,

833 (1994) (quotation marks and citation omitted). Prison

officials must strike a careful balance to determine who must

be protected from whom and for how long. See Babcock v.

White, 102 F.3d 267, 268 (7th Cir. 1996) (describing the

“logistical nightmare” prison gangs pose to safely housing

inmates). We will not get into the business of telling state

prison officials how best to protect the inmates they are

charged with keeping safe.

Moreover, the dissent’s ultimate conclusion cannot be

correct. Having decided that renouncing and debriefing as

a way out of segregated housing is illusory and that an

inmate who debriefs will end up in segregated housing

anyway as a protective measure, the dissent concludes that

JOHNSON V. RYAN 41

“Arizona cannot satisfy due process.” Dissenting Op. at 76.

And if the Due Process Clause cannot be satisfied, then the

inmate must be released from maximum custody. Put

another way, in the dissent’s view, if Johnson does not have

a way out of segregated housing, he cannot be placed in

segregated housing at all. The conclusion is contrary to the

judgment of federal and state correctional officials and

inconsistent with the studies showing that segregated

housing is an effective means for controlling the threat of

prison gangs to the safety of correctional officers and

inmates. We cannot find any warrant in the Due Process

Clause for this line of reasoning.

IV. REMOVAL FROM SDP AND DUE PROCESS

We now consider whether the district court erred in

granting summary judgment to Defendants on Johnson’s

claim that his removal from the SDP violated his due process

rights under the Fourteenth Amendment. As we have

explained, inmates have a liberty interest in avoiding

conditions of confinement that “impose[] atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin, 515 U.S. at 484.

Johnson’s argument is more specific—he argues that he not

only has a liberty interest in avoiding the conditions of

maximum custody, but that he has an independent liberty

interest in the SDP such that ADC cannot remove him from

the SDP without providing him with some kind of

explanation and hearing. We will first consider whether

Johnson has alleged a liberty interest in participating in the

SDP. We conclude that he has not, but that he has a liberty

interest in avoiding a change in his custody status that would

return him to maximum custody. We will then discuss

whether ADC has provided the adequate process to Johnson

before depriving him of his liberty.

42 JOHNSON V. RYAN

A. Participating in the SDP as a Liberty Interest

As we discussed in the prior section, a liberty interest

“may arise from the Constitution itself . . . or it may arise

from an expectation or interest created by state laws or

policies.” Wilkinson, 545 U.S. at 221. Not every program

or policy implemented by a state, however, creates a life,

liberty, or property interest protected by the Due Process

Clause itself. See, e.g., Wolff v. McDonnell, 418 U.S. 539,

557 (1974). We are not aware of any principle of

constitutional law that would require Arizona to create a

program such as SDP to permit a prisoner to exit solitary

confinement. Thus, we turn to the doctrine of state-created

liberty interests.

1. The law of state-created liberty interests

The doctrine of state-created liberty interests, which

developed primarily in the prisoners’ rights context, has

evolved parallel to the Supreme Court’s doctrine of state-

created property interests that began in the 1970s. See id. at

557–58. The “new property” revolution began with

Goldberg v. Kelly, in which the Supreme Court

acknowledged that welfare entitlements are “more like

‘property’ than a ‘gratuity’” and concluded that the

withdrawal of such statutory entitlements called for due

process. 397 U.S. 254, 262 n.8 (1970). The Court

developed the doctrine further in Board of Regents of State

Colleges v. Roth, in which it held that property interests

“may take many forms” and “are defined by existing rules or

understandings that stem from an independent source such

as state law.” 408 U.S. 564, 576–77 (1972); see also Perry

v. Sindermann, 408 U.S. 593, 601 (1972). The Court stated

that “[t]o have a property interest in a benefit, a person

clearly must have more than an abstract need or desire for

JOHNSON V. RYAN 43

it. . . . He must, instead, have a legitimate claim of

entitlement to it.” Roth, 408 U.S. at 577. Thus, the

Supreme Court has instructed that a right to due process does

not exist in the absence of some “underlying substantive

interest” that “rises to the level of a legitimate claim of

entitlement.” Town of Castle Rock v. Gonzales, 545 U.S.

748, 757 (2005) (quoting Memphis Light, Gas & Water Div.

v. Craft, 436 U.S. 1, 9 (1978)).

In Wolff v. McDonnell, the Court addressed for the first

time the extent to which incarcerated inmates have state-

created liberty interests. A Nebraska statute awarded

inmates “good-time credits,” which allowed inmates credit

toward early release for good behavior. 418 U.S. at 546 n.6.

Nebraska’s statutory disciplinary scheme allowed for

forfeiture or withholding of such credit only for serious

misconduct. Id. at 546–47. The Court held that nothing in

the U.S. Constitution guaranteed inmates good-time credits,

but once the state of Nebraska created a statutory framework

for such credits, it created a liberty interest for which due

process procedures were required before the inmate could be

deprived of his interest. Id. at 557.

The Court further developed the doctrine in Meachum v.

Fano, which addressed a claim by Massachusetts inmates

that they were entitled to due process protection before being

transferred from the general prison population to a maximum

security institution for administrative reasons. 427 U.S. at

216–22. Looking to the nature of the interest at stake, the

Court found that “[c]onfinement in any of the State’s

institutions is within the normal limits or range of

custody . . . . That life in one prison is much more

disagreeable than in another does not in itself signify that a

Fourteenth Amendment liberty interest is implicated when a

prisoner is transferred.” Id. at 225. The Court

44 JOHNSON V. RYAN

acknowledged that Wolff’s approach to state-created liberty

interests was consistent with Roth, Sindermann, Kelly, and

other state-created property interest cases. Id. at 226.

Unlike in Wolff, however, in Meachum, Massachusetts

had not created a right for prisoners to remain in a particular

prison or security level—Massachusetts did not condition

transfer between prisons on the occurrence of specific

events, and instead vested transfer decisions to the discretion

of prison officials. Id. at 226–28. Thus, the Court held that

the inmates did not have a liberty interest in avoiding transfer

to less favorable conditions. Id. at 228–29. The Court

reasoned that recognizing a liberty interest in any change in

prison conditions “would subject to judicial review a wide

spectrum of discretionary actions that traditionally have

been the business of prison administrators rather than of the

federal courts.” Id. at 225.

After Meachum, the Court began to employ a

methodology that required parsing mandatory language in

state statutes and regulations to determine whether the state

had created a liberty interest “by placing substantive

limitations on official discretion.” Olim v. Wakinekona,

461 U.S. 238, 249 (1983), abrogated in part on other

grounds, Sandin v. Conner, 515 U.S. at 472.10 In Sandin

v. Conner, the Court abrogated this methodology in the

10

See, e.g., Ky. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,

463–65 (1989) (finding that the absence of “substantive predicates” to

guide discretion counseled against finding a liberty interest in visitation

privileges); Wakinekona, 461 U.S. at 249 (finding that the absence of

substantive limitations on official discretion in transferring prisoners

negated any claim to a state-created liberty interest); Hewitt, 459 U.S. at

472 (finding that “repeated use of explicitly mandatory language in

connection with requiring specific substantive predicates” created a

liberty interest in avoiding administrative segregation).

JOHNSON V. RYAN 45

prison context. 515 U.S. at 483 (“[W]e believe that the

search for a negative implication from mandatory language

in prisoner regulations has strayed from the real concerns

undergirding the liberty protected by the Due Process

Clause.”). Instead, the Court “return[ed] to the due process

principles . . . applied in Wolff and Meachum” that turned on

the “nature of the deprivation.” Id. at 481, 483. After

Sandin, states may create liberty interests, but “these

interests will be generally limited to freedom from restraint

which . . . imposes atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life.”

Id. at 484 (citations omitted). The Court ultimately held

that disciplinary segregation was not a dramatic departure

from the ordinary incidents of prison life and therefore did

not implicate a constitutional liberty interest. Id. at 486.

After Sandin, we no longer parse state statutes and

regulations for “mandatory language,” but we look to the

nature of the deprivation to determine if the state has created

some “underlying substantive interest” that rises to the level

of a legitimate claim of entitlement. See Town of Castle

Rock, 545 U.S. at 757.

The Supreme Court has also made clear that, for

purposes of due process analysis, substantive rights—life,

liberty, and property—are distinct from the procedures that

are designed to protect them. See id. at 758–68; id. at 772

(Souter, J. concurring) (“[T]he property interest recognized

in our cases has always existed apart from state procedural

protection.”). In Olim v. Wakinekona, the Court held that

an inmate did not have an independent liberty interest in

processes that might protect him from transfer from a prison

in Hawaii to a prison in California. 461 U.S. at 250. The

Court noted that “[p]rocess is not an end in itself. Its

constitutional purpose is to protect a substantive interest to

46 JOHNSON V. RYAN

which the individual has a legitimate claim of entitlement.”

Id. The mere fact that the State had provided procedures

“d[id] not create an independent substantive right” in those

procedures. Id. at 250–51. Similarly, in Cleveland Board

of Education v. Loudermill, the Court found that a state civil

service statute created a property right, the scope of which

was not defined by the procedures described in the statute.

470 U.S. 532, 538–41 (1985). The Court distinguished

between the substantive rights of life, liberty, and property

guaranteed by the Due Process Clause and constitutionally

adequate procedures. It noted, “The categories of substance

and procedure are distinct. Were the rule otherwise, the

[Due Process] Clause would be reduced to a mere tautology.

‘Property’ cannot be defined by the procedures provided for

its deprivation any more than can life or liberty.” Id. at 541.

And, in Town of Castle Rock v. Gonzales, the Court held that

the plaintiff did not have a substantive interest in

enforcement of a restraining-order statute. 545 U.S. at 765–

66. In so holding, the Court rejected the argument that the

plaintiff was entitled to any “precise means of enforcement,”

such as an arrest warrant, that might be used to implement

the statute. Id. at 763. It noted that an entitlement to an

arrest warrant “would be an entitlement to nothing but

procedure—which we have held inadequate even to support

standing, much less can it be the basis for a property

interest.” Id. at 764 (citation omitted).

In sum, although “[a] state-created right can, in some

circumstances, beget yet other rights to procedures essential

to the realization of the parent right,” Dumschat, 452 U.S. at

463, a plaintiff does not have an independent right to those

procedures. See Dist. Att’y’s Off. for Third Jud. Dist. v.

Osborne, 557 U.S. 52, 67–68 (2009) (holding that because a

plaintiff did not have a liberty interest in state executive

JOHNSON V. RYAN 47

clemency, he therefore did not have an interest in “any

procedures available to vindicate an interest in state

clemency”). Only if a party has shown a liberty interest

does the Due Process Clause require procedural protections

before the state may deprive the party of his state-conferred

interest. See Dumschat, 452 U.S. at 463 (“[T]he underlying

right must have come into existence before it can trigger due

process protection.”). In this way, the Court’s consistent

adherence to the distinction between a substantive interest

and procedure is consistent with the two-step analysis for the

Due Process Clause. At the first step, we must be careful

not to confuse procedure with the underlying substantive

interest that gives rise to a legitimate claim of entitlement,

because we will consider the adequacy of those procedures

in protecting that entitlement at the second step.

Johnson argues that he has an independent liberty

interest in remaining in the SDP under two theories:

completion of the SDP is one way for him to secure good-

time credits and parole eligibility, and completion of the

SDP allows him to return to close custody and avoid the

harsh conditions of maximum custody. We will address

each theory separately.

2. Liberty interests and continued participation in the

SDP

We disagree that ADC has created a liberty interest in

Johnson’s participation in the SDP. Completion of the SDP

may be a means for acquiring eligibility for good-time

credits, parole, and avoiding maximum security, but that

does not establish an independent liberty interest in mere

participation in the SDP. The SDP is one of several

programs that ADC has provided Johnson to permit him to

change his confinement status, including renouncing his

48 JOHNSON V. RYAN

STG membership and debriefing, which he may do at any

time. But the mere fact that ADC has provided Johnson

with these programs does not create a liberty interest in

them—the SDP “is not an end in itself.” Wakinekona, 461

U.S. at 250. The SDP is no different than the procedures

protecting an inmate from transfer in Wakinekona, the post-

discharge review in Loudermill, or the arrest warrant in

Town of Castle Rock. That is, the SDP is a process by

which Johnson can leave maximum custody and regain

eligibility for good-time credit and parole. It is not itself a

liberty interest, but only one means by which Johnson can

prove that he is prepared to return to the general prison

population.

Johnson’s loss of eligibility for good-time credits and

parole is a consequence of his STG status, not a direct

consequence of his failure to complete the SDP. See DO

806.07.1.1. That those benefits may be restored to a

prisoner who reaches Phase V of the SDP or who completes

other methods, such as debriefing, does not create a liberty

interest in participating in the program at all. Johnson’s

participation in the SDP is the functional equivalent of an

application for reassignment and restoration of eligibility for

good-time credits and parole. The Court, however, has

“never held that applicants for benefits, as distinct from

those already receiving them, have a legitimate claim of

entitlement protected by the Due Process Clause.” Lyng v.

Payne, 476 U.S. 926, 942 (1986) (citing Walters v. Nat’l

Ass’n of Radiation Survivors, 473 U.S. 305, 320 n.8 (1985));

see Harisiades v. Shaughnessy, 342 U.S. 580, 584–85 (1952)

(rejecting the argument that “admission for permanent

residence confers a ‘vested right’ on the alien”). Similarly,

his placement in maximum custody results from his STG

status, not the SDP.

JOHNSON V. RYAN 49

Removal from the SDP does not itself constitute an

“atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life,” for two reasons.

See Sandin, 515 U.S. at 484. First, removal from the SDP

during Phases I–III does not result in any significant change

in an inmate’s conditions of confinement. Phases I–III all

take place in the Browning Unit, where STG validated

inmates are housed. So underlying conditions of

confinement are the same throughout these phases. Second,

inmates in the general population and in other forms of

administrative segregation do not have access to the SDP.

The inmate removed from SDP has only lost access to one

of several procedures by which he might change his

conditions of confinement, and that alone is insufficient to

create a liberty interest independent of any underlying

change to Johnson’s conditions. Our understanding is

consistent with Sandin’s instruction that state-created liberty

interests in the prison context are “generally limited to

freedom from restraint.” Id.

Our dissenting colleague disagrees. The dissent

catalogues changes in an inmate’s living conditions as he

moves from Phase I to Phase III and concludes that

“participation in any stage of the SDP . . . entails

significantly more freedom from restraint and social

exposure than ordinary placement in maximum custody.”

Dissenting Op. at 83. In addition, the Dissent argues that

Johnson’s underlying housing assignment is merely

“collateral” to the SDP. Id. at 86.

We are not persuaded. As we noted supra, following

Sandin and Wilkinson, only a change in placement that

works an “atypical and significant hardship” creates a liberty

interest protected by the Due Process Clause. Wilkinson,

545 U.S. at 224; Sandin, 515 U.S. at 484. In Wilkinson, the

50 JOHNSON V. RYAN

Supreme Court observed that “[i]n Sandin’s wake the

Courts of Appeals have not reached consistent conclusions

for identifying the baseline from which to measure what is

atypical and significant in any particular prison system.” 545

U.S. at 223; see Aref v. Lynch, 833 F.3d 242, 253–56 (D.C.

Cir. 2016) (surveying the cases). In Ramirez v. Galaza,

however, we addressed what kinds of circumstances count

as “atypical and significant.” 334 F.3d 850 (9th Cir. 2003).

Acknowledging that “[t]here is no single standard,” we said

that the inquiry should be guided by three considerations:

1) whether the challenged condition

“mirrored those conditions imposed upon

inmates in administrative segregation and

protective custody,” and thus comported with

the prison’s discretionary authority; 2) the

duration of the condition, and the degree of

restraint imposed; and 3) whether the state’s

action will invariably affect the duration of

the prisoner’s sentence.

Id. at 861 (quoting Sandin, 515 U.S. at 486–87); see also

Aref, 833 F.3d at 255 (adopting similar criteria). Not every

transfer accompanied by marginally harsher conditions

creates a liberty interest. As the Court said in Hewitt,

“transfer of an inmate to less amenable and more restrictive

quarters for non-punitive reasons is well within the terms of

confinement ordinarily contemplated by a prison sentence.”

459 U.S. at 468. And in Meachum, the Court held that no

liberty interest was implicated by a transfer that “place[d] the

prisoner in substantially more burdensome conditions”

because such transfers may be made on the basis of

“informed predictions as to what would best serve

institutional security or the safety and welfare of the inmate.”

427 U.S. at 215, 225.

JOHNSON V. RYAN 51

We have had few occasions to apply the guideposts we

set forth in Ramirez, and the cases we have decided are not

particularly helpful here.11 Nothing, however, in our cases

would suggest that denying an inmate a two-person

recreation period, favorable job assignments, unrestrained

meals, unrestrained walks and access to the showers and

recreation areas, or access to a GED program rises to the

level of an “atypical or significant hardship.” See

Dissenting Op. at 83–84. It is true that these changes to

Johnson’s circumstances in Phases II and III of the SDP are

perquisites of the program, put in place by Arizona to

encourage inmates to continue participating in the

SDP. These benefits may not feel trivial to an inmate who

has been isolated and experienced only limited social

contact. But they do not represent a beyond-standard

deviation from the ordinary circumstances of prison life.

See Sandin, 515 U.S. at 484.

In these initial phases, Johnson remains in maximum

custody. Thus, there has been no material change in the

underlying condition of his confinement. Depriving an

inmate like Johnson of these incidental, fleeting benefits

does not introduce an “atypical and significant hardship” that

would trigger a liberty interest. Id. If, as the dissent would

hold, any incidental deprivation counts under Sandin, then

we would have to “subject to judicial review a wide

spectrum of discretionary actions that traditionally have

been the business of prison administrators rather than of the

federal courts.” Meachum, 427 U.S. at 225. We decline to

11

See, e.g., Serrano v. Francis, 345 F.3d 1071, 1078–79 (9th Cir. 2003)

(holding an inmate denied the use of his wheelchair in a Special Housing

Unit that was not designed to be handicapped accessible gave rise to a

protected liberty interest).

52 JOHNSON V. RYAN

follow the dissent down that road. We thus disagree with

the dissent that removing an inmate from “any prior phase”

implicates a liberty interest under the Due Process Clause.

Dissenting Op. at 84.12

3. Liberty interests and avoiding a return to maximum

custody

Although we conclude that Johnson has no liberty

interest created by the SDP, we think that Johnson has

adequately stated a liberty interest in avoiding a return to

maximum custody from close custody. Once Johnson

attained Phase IV, he was moved from maximum custody in

the Browning Unit to a close custody facility—and that

12

We will not get ourselves in the business of second-guessing every

decision that ADC officials must make to determine whether an inmate

may advance to another phase or remain in the SDP program. See

Sandin, 515 U.S. at 482–83 (noting that an “undesirable effect[]” of

Hewitt was “the involvement of federal courts in the day-to-day

management of prisons” and cautioning against the broad establishment

of liberty interests). Only if an inmate successfully completes Phases I–

IV will the inmate advance to Phase V, “an indefinite period of

monitoring.” DO 806.10.1.7. At all stages, the SDP process is fraught

with discretionary judgment calls by ADC officials. For example, to

complete Phases I–III at the Browning Unit, an inmate must “[n]ot

participate in any activity that could adversely affect the safety of staff,

inmates and the general public”; “[c]omplete all positive programming”;

and “refrain from disciplinary behavior.” DO 806.09.1.1. These

criteria invoke nearly every norm that prison officials hope to encourage

in the prison setting. Those criteria continue to apply to Phases IV and

V, which take place at a close custody facility. See id. 806.11.1. Any

violation of these criteria may result in the inmate being removed from

the program or returned to repeat any phase. }plain Id. 806.11.1.2, .6.

At Phase V, the decision to terminate an inmate’s participation or return

an inmate to a previous phase rests with the STG Validation Hearing

Committee, which has “full discretion based on the severity of the

violation.” Id. 806.11.1.6.

JOHNSON V. RYAN 53

move constituted a material change in his living conditions.

His expulsion from Phase IV of the SDP meant that he was

removed from close custody and returned to maximum

custody. Johnson’s liberty interest in avoiding maximum

custody is clearly established: “After Sandin, it is clear that

the touchstone of the inquiry into the existence of a

protected, state-created liberty interest in avoiding restrictive

conditions of confinement is . . . the nature of those

conditions themselves ‘in relation to the ordinary incidents

of prison life.’” Wilkinson, 545 U.S. at 223 (quoting

Sandin, 515 U.S. at 484).13

In considering whether conditions of confinement

impose an “atypical and significant hardship on the inmate

in relation to the ordinary incidents of prison life,” Sandin,

515 U.S. at 484, we may consider “whether the challenged

condition mirrored those conditions imposed on inmates in

administrative segregation and protective custody”; “the

duration of the condition, and degree of restraint imposed”;

and “whether the state’s action will invariably affect the

duration of the prisoner’s sentence.” Brown, 751 F.3d at

987 (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.

2003)). In Brown, we held that an inmate had a liberty

interest in avoiding confinement in an “Intensive

Management Unit” because inmates in the unit were held in

13

Our disagreement with the dissent regarding the SDP is limited: we

agree that Johnson has a liberty interest in avoiding a return to maximum

custody. See Dissenting Op. at 82–83. The dissent argues that “at the

very least” Johnson should also have a liberty interest in Phases II and

III because they “entail significantly more freedom from restraint and

social exposure.” Id. at 83. But as we explain, Sandin requires us to

compare the SDP’s perquisites to “ordinary incidents of prison life,” 545

U.S. at 223, not simply whether those perquisites involve any change in

the kinds of restraint imposed.

54 JOHNSON V. RYAN

solitary confinement for over twenty-three hours a day, with

limited exceptions for recreation and non-contact visits, and

inmates were confined for minimum periods of twenty-

seven months without meaningful annual review. Id. at

985, 988. In Wilkinson, the Supreme Court held that similar

conditions, coupled with a loss of parole consideration,

constituted an atypical and significant hardship that gave

prisoners a liberty interest in avoiding assignment to Ohio’s

Supermax facility. 545 U.S. at 223–24.

The facts of this case parallel Brown and Wilkinson.

Johnson’s declaration states that, in maximum custody, he is

confined to his cell twenty-four hours per day and is strip

searched and handcuffed when he leaves his cell. DO 812

permits inmates a maximum of three phone calls per week,

three non-contact visits per week, and three three-hour

recreation opportunities per week. Per Arizona regulations,

maximum-custody inmates require single-cell housing, are

escorted in full restraints any time they move within the

institution, are frequently monitored, and have only limited

work opportunities within the secure perimeter. DO

801.01.12.4. These conditions are similar to those

described in Brown and Wilkinson. See Wilkinson, 545 U.S.

at 214 (Supermax inmates are permitted one hour of

recreation per day and rare opportunities for non-contact

visitation); Brown, 751 F.3d at 985 (segregated inmates are

permitted thirty minutes of recreation per day and two non-

contact visits per month).

By contrast, inmates in close custody have significantly

greater freedom than those in maximum custody. Close-

custody inmates live at different facilities from maximum-

security inmates and enjoy reduced security protocols. See

generally Ariz. Dep’t of Corr., Dep’t Order Manual, Dep’t

Order 801 [hereinafter DO 801] at 2. Close-custody

JOHNSON V. RYAN 55

inmates are permitted double-cell housing, have greater

freedom to work, and can move inside the institution without

full restraints. DO 801.01.1.2.3. And although close-

custody SDP participants remain separate from other

inmates during meal and recreation times, DO 806.10.1.3.3,

1.4.2–.3, they are exempt from the Browning Unit’s

mandatory education programs. At Phase IV of the SDP,

inmates can reintegrate with a close-custody general

population unit, DO 806.09.1.2, just as Johnson transferred

to the ASPC-Florence Central Unit, a close custody unit, to

begin Phase IV.

Thus, it is not Johnson’s removal from the SDP per se

that creates an atypical and significant hardship, but the

change in Johnson’s underlying conditions of confinement

when he was moved from close custody and returned to the

Browning Unit. See Wolff, 418 U.S. at 571 n.19 (noting that

the “imposition of ‘solitary’ confinement” requires

procedural protection because it “represents a major change

in the conditions of confinement”). We conclude that

Johnson’s return to maximum security from close custody

implicates a liberty interest under the Due Process Clause.

We so conclude even though the SDP only contemplates a

four-week duration for Phase IV. DO 806.10.1.2. Our

holding is limited to Johnson’s removal from Phase IV of the

SDP and consequent return to maximum custody

confinement.

B. Removing Johnson from SDP and Sufficiency of

Process

Because we find that Johnson has alleged a liberty

interest in avoiding the conditions of maximum custody, we

must determine whether the procedures he was provided

when he was moved from the Florence Central Unit to the

56 JOHNSON V. RYAN

Browning Unit in April 2018 were constitutionally adequate.

We proceed with the Mathews analysis.

As we noted above, in the prison context, the first and

third Mathews factors—Johnson’s interests and ADC’s

interests—weigh heavily in favor of ADC. Because this

case involves the assignment of an inmate to maximum

custody based on his membership in a prison gang,

Johnson’s private interest is limited, and ADC has a strong

interest in mitigating the threat of STGs to prison security.

Compare Wilkinson, 545 U.S. at 225 (“The [inmate’s]

private interest at stake here, while more than minimal, must

be evaluated, nonetheless, within the context of the prison

system and its attendant curtailment of liberties.”), with id.

at 227 (“In the context of prison management, . . . [the

state’s] interest is a dominant consideration.”). Although

we must afford ADC great deference in its prison

management decisions, that deference is not unlimited.

Under the second Mathews factor, we consider the risk

that under its procedures, ADC will erroneously reassign

Johnson to maximum security. We may also consider “the

probable value, if any, of additional or alternative procedural

safeguards.” Id. at 225 (quoting Mathews, 424 U.S. at 335).

The district court held that Johnson’s liberty interest was

adequately protected by ADC’s annual reviews of his

confinement in addition to his ability to renounce and debrief

at any time. Although annual reviews and the opportunity

to renounce and debrief might be adequate to protect an

inmate’s liberty interest in avoiding retention in solitary

confinement, we conclude that they are insufficient for

protecting a liberty interest in avoiding reassignment to such

conditions. See Toussaint III, 801 F.2d at 1098–1101

(analyzing separately the adequacy of procedures for

placement and retention in solitary confinement).

JOHNSON V. RYAN 57

The Supreme Court’s “procedural due process cases

have consistently observed that [notice of the factual basis

for a decision and a fair opportunity for rebuttal] are among

the most important procedural mechanisms for purposes of

avoiding erroneous deprivations.” Wilkinson, 545 U.S. at

226. Under the SDP policy, an inmate removed from Phase

IV—which will result in the inmate’s transfer from close

custody to maximum custody—is entitled to a hearing

including ten days’ notice “to enable the inmate time to

prepare a defense,” written notice of the decision, and a right

of appeal. DO 806.11.1.4–.10. The SDP policy does not

provide for a hearing for inmates removed from the SDP at

Phases I–IV, but ADC has said that inmates may challenge

their removal through the ordinary grievance procedure.14

Before Johnson was transferred back to the Browning

Unit, he was given notice of and attended a hearing on his

maximum custody placement.15 However, the notice only

states that Johnson was being returned “as an active

validated security threat group inmate.” Nothing in that

notice would have apprised Johnson of the reason for his

14

The SDP removal policy, DO 806.11, was amended in 2018 and the

amended regulation applied to Johnson. Prior to 2017, the SDP

provided that “[a]ll recommendations for the removal of an inmate from

the Step-Down Program” were subject to the notice, written

recommendation, and appeal. DO 806.11.1.1 (July 12, 2017 version).

15

Johnson filed a statement on April 25, 2018, in connection with his

hearing in which he complained of his reclassification. There is

additional detail in his statement, but we cannot read the copies provided

by either Johnson or ADC. We are thus unable to discern how much

Johnson knew about the nature of the hearing and the grounds for ADC

deciding to return him to maximum custody. On remand, consistent

with the explanation that follows, the district court may wish to explore

this issue further.

58 JOHNSON V. RYAN

reassignment. Johnson had been a validated STG member

since 2014; thus, the notice did not propose a change in his

status, only a continuation of his status.

Johnson filed grievances indicating that he was never

told why he was being moved back to the Browning Unit

other than that his SDP status was revoked and he had been

determined to be an “active validated [STG] inmate.”

Deputy Warden Days denied Johnson’s formal grievance on

June 1, 2018. Days acknowledged that Johnson had asked

for a revocation hearing. For the first time, Johnson learned

that he had been removed from close custody because he had

violated “one or several of the criteria” in DO 806.08 and

806.09 for remaining in the SDP. Days stated, “No

revocation hearing is needed for inmates removed from

phases I through IV.” Johnson appealed and again

complained of the lack of process he received:

I was . . . led to believe that I would need a

court order to see what is being used against

me to have me transferred back to maximum

security. (I was perfectly clear in my I/M

grievance that I haven’t been told why I was

rolled up from central unit). . . . I don’t have

an administrative appeal process available to

me to dispute, rebut, and/or appeal this

arbitrary decision that (puts me) a level away

from being kept (in maximum security

indefinitely for a non-disciplinary reason.)

(spelling and punctuation in original). His grievance appeal

was denied, and he was told only that “[y]our removal from

the STG Step Down Program was done in accordance with

Department Policy.”

JOHNSON V. RYAN 59

Johnson’s notice of appeal from the hearing decision,

filed on June 17, 2018, tells a similar story. He complained

that he “was given no information other than box 5 being

checked on [the notice of hearing] and a statement saying I

am being returned to Browning as ‘an active validated [STG]

inmate.’” He further stated that he learned after the hearing

that he was accused of violating several criteria in DO 806:

I have learned that Central Unit’s deputy

warden removed me arbitrarily from the STG

Step-Down Program (SDP) due to violating 1

or several criteria’s outlined in Dept. Order

806. . . . Prison officials are refusing to tell

me how many incident(s) I have allegedly

violated and what are the substance of those

alleged incident[s]. . . . I am not being given

a revocation hearing to view, to dispute, to

rebut, or to appeal these alleged incident(s) of

violations.

His appeal was denied on July 24, 2018. In the denial,

Crabtree advised him in the most general terms that the

factual basis for his return to maximum custody was “your

recent [STG] documented activity found in your belongings

during a search by SSU officers on April 13, 2018.” This

bare-bones explanation came three months after Johnson’s

hearing.

In light of this record, the procedure that it appears

Johnson was given was not adequate to satisfy the Due

Process Clause. Johnson was not given a meaningful

opportunity to learn of the factual basis for his transfer from

close custody to maximum custody or to prepare a defense

to the accusations. Johnson may or may not have violated

the criteria for remaining in close custody, but the prison

60 JOHNSON V. RYAN

officials making that decision should make informed

decisions—and the record available to us does not specify

whether Johnson was made aware of the allegations against

him. Without notice of the evidence against him, Johnson

could not meaningfully respond and his hearing could not

constitute an informed one. See Hewitt, 459 U.S. at 476

(holding that an inmate being considered for transfer to

administrative segregation is entitled to “some notice of the

charges against him and an opportunity to present his views

to the prison official charged with deciding whether to

transfer him to administrative segregation”); cf. Melnik v.

Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021) (holding, in the

context of a prison disciplinary hearing, that a prisoner had

a due process right to access evidence to be used against

him). We have some frustration with the quality of the

copies in the excerpts of record that deal with Johnson’s

complaints concerning his hearing. From the evidence

before us, Johnson was not given an adequate hearing before

he was reassigned to maximum custody. At the very least,

the district court should not have granted summary judgment

to Defendants.

The district court addressed the individual liability of

Ryan, Crabtree, Days, and Montano based on their authority

for implementing the SDP, rather than their individual

responsibility for denying Johnson notice of the factual basis

for his change in conditions and an opportunity to present a

rebuttal. On remand, the district court should decide in the

first instance whether each defendant is individually liable

for the constitutional deprivation as described in this

opinion.

JOHNSON V. RYAN 61

* * *

In sum, the district court was correct in finding that

Johnson does not have an independent liberty interest in

participation in the SDP process, but it erred in concluding

that Johnson’s liberty interest in avoiding reassignment to

the restrictive conditions of the Browning Unit was

adequately protected by the procedures he was provided

when he was moved from close custody to maximum

custody in April 2018. We also conclude that Johnson was

likely denied due process in the procedures that resulted in

his return to maximum custody. We reverse the district

court’s grant of summary judgment for Defendants on

Johnson’s Fourteenth Amendment due process claim and

remand for further proceedings.

V. JOHNSON’S FIRST AMENDMENT RETALIATION

CLAIMS

Johnson alleges that he was removed from the SDP and

returned to maximum custody because of his lawsuits

against various ADC defendants. The district court granted

summary judgment to Defendants, finding that the record

did not support Johnson’s assertions that his lawsuits were a

substantial or motivating factor behind his removal.

“The most fundamental of the constitutional protections

that prisoners retain are the First Amendment rights to file

prison grievances and to pursue civil rights litigation in the

courts.” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir.

2017) (footnotes omitted). “[B]ecause purely retaliatory

actions taken against a prisoner for having exercised those

rights necessarily undermine those protections, such actions

violate the Constitution quite apart from any underlying

misconduct they are designed to shield.” Rhodes v.

Robinson, 408 F.3d 559, 567 (9th Cir. 2005). We have said

62 JOHNSON V. RYAN

that a First Amendment claim in this context has five

elements: (1) adverse action by a state actor against the

inmate (2) because of (3) that prisoner’s protected conduct,

and the action (4) chilled the inmate’s exercise of his First

Amendment rights and (5) did not reasonably advance a

legitimate correctional goal. Chavez v. Robinson, 12 F.4th

978, 1001 (9th Cir. 2021).

The parties agree that Johnson’s removal from the SDP

and transfer to maximum custody was an adverse action, that

his lawsuits were protected First Amendment conduct, and

that the adverse action chilled his exercise of such conduct.

For purposes of summary judgment, a factual issue is

genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Ochoa v. City of

Mesa, 26 F.4th 1050, 1055 (9th Cir. 2022) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

The parties disagree on the existence of a dispute of material

fact regarding whether Johnson’s removal was in retaliation

for his First Amendment activity and whether removal

advanced a legitimate penological goal.

A. Retaliatory Motive

To establish a retaliatory motive, an inmate “must show

that his protected conduct was the substantial or motivating

factor behind the defendant’s conduct.” Brodheim v. Cry,

584 F.3d 1262, 1271 (9th Cir. 2009) (quotations omitted)

(quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,

1314 (9th Cir. 1989)). In Bruce v. Ylst, we held that an

inmate presented a genuine dispute of material fact with

respect to a retaliatory motive when he was validated as a

gang member shortly after the success of his prison

grievances, stale evidence was used against him for

validation, and he offered a declaration alleging that a

JOHNSON V. RYAN 63

corrections officer told him that “higher-ups” instructed the

officer to validate him because of his “complaints and

protests.” 351 F.3d at 1288–89.

In this case, Johnson had a pending appeal before us

when he was removed from the SDP and transferred back to

the Browning Unit. See Johnson v. Bendel, 745 F. App’x

750, 751 (9th Cir. 2018). His declaration also described an

encounter with Belt—the author of the memorandum that

provided the basis for Johnson’s removal from the SDP—in

which Belt told Johnson that “higher-ups” wanted Johnson

off the yard and that “jailhouse lawyers” were not welcome

in Belt’s unit. Defendants characterize these facts as

speculative, but we must view this evidence in the light most

favorable to Johnson. See Transgender L. Ctr., 33 F.4th at

1193. These facts, if true, would allow a reasonable jury to

return a verdict in Johnson’s favor, so Johnson has raised a

genuine dispute of material fact. See Bruce, 351 F.3d at

1289.

B. Reasonable Advancement of a Legitimate

Correctional Goal

Johnson bears the burden of proving the absence of a

legitimate correctional goal for the adverse action. See

Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

Defendants argue that Johnson’s removal advanced the

legitimate correctional goal of curtailing prison gang activity

and that Johnson’s removal was supported by the evidence

described in the Belt memorandum. In Bruce, we

acknowledged that prisons have a legitimate interest in

stopping prison gang activity, but held that this general

justification was insufficient to show reasonable

advancement of a legitimate correctional goal on summary

judgment. 351 F.3d at 1289. We noted that, in light of the

64 JOHNSON V. RYAN

genuine dispute of material fact as to whether the action was

taken with retaliatory motive, the defendants could not

“assert that Bruce’s validation served a valid penological

purpose, even though he may have arguably ended up where

he belonged.” Id. (emphasis in original).

As in Bruce, even if Johnson “arguably ended up where

he belonged,” the presence of a genuine dispute of material

fact with respect to a retaliatory motive means that

Defendants’ general justification for the action is not

sufficient to defeat summary judgment. Id. (emphasis

omitted). Put differently, if Belt and Montano used

procedures outlined in ADC’s policies to remove Johnson

from the SDP and transfer him back to the Browning Unit in

order to punish Johnson for his lawsuits, their use of these

procedures was pretextual and not a reasonable

advancement of the legitimate penological goal of stopping

prison gang activity. Johnson contests whether the

documents described in the Belt memorandum are actually

STG-specific. He provided alternative characterizations of

the documents in question and evidence of SSU officers

seizing materials that they had mistaken for STG material.

Viewing this evidence in the light most favorable to

Johnson, we find that there is a genuine dispute of material

fact with respect to whether Johnson’s removal from the

SDP and return to the Browning Unit reasonably advanced a

legitimate penological purpose.

* * *

We reverse the district court’s grant of summary

judgment to Defendants on Johnson’s First Amendment

retaliation claim and remand for further proceedings.

JOHNSON V. RYAN 65

VI. CONCLUSION

We affirm the district court’s screening and dismissal of

Johnson’s Fourteenth Amendment due process claim

regarding the adequacy of ADC’s annual review process.

We reverse the district court’s grant of summary judgment

for Defendants on Johnson’s Fourteenth Amendment due

process claim, holding that Johnson had a liberty interest in

avoiding reassignment to maximum security and that there

is a genuine dispute of material fact with respect to whether

he was afforded constitutionally adequate process. Finally,

we reverse the district court’s grant of summary judgment

on Johnson’s First Amendment retaliation claim. We

remand this case to the district court for further proceedings

consistent with this opinion.

AFFIRMED in part, REVERSED and REMANDED

in part.

RAKOFF, District Judge, concurring in part and dissenting

in part:

Since 2014, Richard Johnson has been held in highly

restrictive conditions approximating solitary confinement

because Arizona at that time “validated” him as a member of

a prison gang or Security Threat Group (“STG”). Although

there is no basis to believe that Johnson has been involved in

any STG activity since then -- indeed, the restrictive nature

of his confinement virtually precludes such involvement --

Arizona, Johnson alleges, provides no reasonable way he can

demonstrate he is not a threat to prison security and exit

solitary confinement. It thus violates his constitutional

66 JOHNSON V. RYAN

liberty rights. Specifically, Johnson alleges that Arizona

offers validated STG members no viable way out of these

extremely restrictive conditions short of what is

euphemistically termed “debriefing.” But “debriefing”

consists not only of renouncing gang membership, but also

informing on other gang members, which is practically

impossible for someone who has had no access to other gang

members for eight years. In short, it is a pseudo remedy.

Moreover, Johnson alleges, since meaningful “debriefing” is

premised on being an informant, the fact that Johnson would

then be regarded as a “snitch” (even if he weren’t) would

mean that he would face potentially deadly threats to his

safety that could only be protected against by putting him

back in solitary confinement or its equivalent. In short, while

Arizona provides the mirage that a once validated member

of an STG can later escape solitary confinement, the reality

is that he will be kept there for the entire duration of his

sentence. Believing that this is unconstitutional, as well as

contrary to past holdings of this Court, I dissent from the

majority’s analysis in Part III.A of its opinion and would

instead reverse the district court’s dismissal on the pleadings

of Count III of Johnson’s complaint. And while I concur in

Part III.B of the majority’s opinion, which reverses and

remands the district court’s entry of summary judgment

against Johnson on his claim that his removal from the Step

Down Program (“SDP”) violated due process, I write

separately to emphasize that his claim is validly broader than

the majority contends. Finally, however, I do concur fully in

Part III.C of the majority opinion with respect to Johnson’s

retaliation claim.

JOHNSON V. RYAN 67

I. Whether Arizona may confine prisoners in

maximum custody based solely on prior STG

status and the failure to debrief.

A. The Alleged Deficiencies in Arizona’s Process

In Count III of his complaint, Johnson alleges that

Arizona has denied him due process by continuing to confine

him in “maximum security solitary confinement” 1 since

2014 based on his “validation” at that time as an STG

member. First Amended Complaint (“FAC”) ¶¶ 33–42. He

likewise alleges that the only way for him to ever leave

maximum custody is by participating in the SDP -- a limited-

eligibility program (described further below) that Arizona

maintains it need not allow prisoners to participate in even if

they are eligible -- or by “debriefing.” FAC ¶¶ 3, 39-42. As

to the latter, while Arizona conducts a yearly hearing to

review Johnson’s maximum security placement, hearing

officials have no discretion but to continue that placement so

long as Johnson has not debriefed. FAC ¶ 37.

I agree with the majority that Johnson has adequately

alleged a liberty interest in avoiding his extremely restrictive

conditions of confinement. Opinion at 18-20. I likewise

agree with the majority that Arizona, in order to deprive

Johnson of this liberty interest, must make some judgment

that Johnson remains a threat to prison safety. Opinion at 32.

But I disagree that Johnson “has failed to plausibly allege

1

As explained in the majority opinion, Arizona confines prisoners in

maximum custody to their cells for 24 hours per day outside a small

number of weekly recreation or visitation blocks or phone calls, before

which prisoners are strip searched and handcuffed behind their backs.

Opinion at 8-9. Prisoners in maximum custody are also denied eligibility

for various earned time credits that could result in reductions to their

custodial terms.

68 JOHNSON V. RYAN

how that judgment creates a risk that he will be erroneously

classified as a security threat.” Opinion at 34-35. This is so

for two reasons.

First, and very simply, we have previously held that the

risk that a prisoner will be wrongly confined in solitary

confinement or similarly restrictive conditions requires

review of that placement more than once per year. Toussaint

v. McCarthy (Toussaint III), 801 F.2d 1080, 1101 (9th Cir.

1986) (“We do not believe that annual review sufficiently

protects plaintiffs’ liberty interest.”). See also Toussaint v.

McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (“Toussaint

V”) (holding that review every 120 days satisfied due

process). Here, Johnson alleges that Arizona reviews his

placement in what he calls solitary confinement only once

per year. FAC ¶ 37. The majority describes our conclusion

in the Toussaint litigation -- that prisons must review

prisoners’ placement in extremely restrictive custodial

conditions such as Johnson’s more than once a year, but that

review every 120 days is sufficient -- as “bare ipse dixit.”

Opinion at 27. But this sensible balancing of the benefits and

costs of additional process is precisely the balancing

required under the Supreme Court’s familiar framework for

evaluating procedural due process claims. See Mathews v.

Eldridge, 424 U.S. 319, 335 (1976).

The majority nonetheless acknowledges that Toussaint

III is good law and that, under it, Arizona’s annual review

process would deny Johnson due process except (the

majority contends) for the fact that Johnson could

supposedly exit maximum security by “renounc[ing] his

gang status and debrief[ing] at any time.” Opinion at 27. For

the reasons described below, I do not believe that the

possibility of debriefing suffices to render Arizona’s

otherwise unconstitutional practice constitutional, and

JOHNSON V. RYAN 69

especially not at the pleading stage, where Johnson’s

plausible allegations regarding the limitations of the

debriefing process must be taken as true.

Second, and relatedly, it would not in any case matter if

Arizona reviewed Johnson’s placement monthly or even

daily, because Johnson plausibly alleges that Arizona’s

current review process offers him and prisoners like him no

effective way out of maximum custody even if they no

longer pose any threat to prison security. FAC ¶¶ 37-39.

Specifically, Johnson, who is proceeding pro se, alleges that

he “doesn’t receive a meaningful reviewment [sic] of his

yearly reclass as an STG inmate” because the annual

reviews, while appearing “[a]t face value . . . [to provide]

some due process,” in fact provide no real process of any

kind because the outcome is predetermined: Arizona will

“keep [Johnson] in maximum security solitary confinement

simply because [Johnson] is an STG inmate who hasn’t

debriefed.” FAC ¶ 37. Arizona’s “classification and

subsequent reassignment reviews are based solely on

Plaintiff’s alleged gang affiliation, without regard to his

criminal history, propensity for violence, or disciplinary

record. . . .” Id. Johnson alleges that Arizona’s “conditioning

release from STG status on debriefing” leads to a lack of any

“meaningful opportunit[y]” to contest his placement. FAC ¶

39. In my view, these allegations require at the very least that

Johnson be given the opportunity to proceed to discovery so

that he can test whether Arizona in fact makes his release

from solitary confinement solely conditional on his engaging

in debriefing, and, if so, whether there exist other

alternatives sufficient to Arizona’s legitimate security

interests.

In this regard, the majority argues, bewilderingly, that

“[t]his is not a Mathews v. Eldridge challenge to Arizona’s

70 JOHNSON V. RYAN

procedures” and instead “sounds in substantive due

process.” Opinion at 31. But Johnson’s claim is that

Arizona’s categorical refusal to consider any evidence other

than two facts -- a near-decade old STG validation, and

Johnson’s subsequent failure to debrief -- results in an

unreasonably high probability that Johnson will be

wrongfully deprived of his acknowledged liberty interest in

avoiding the conditions of maximum custody. He contends

that other procedures -- namely, procedures allowing

consideration of other factors bearing on Johnson’s

dangerousness -- might lead to a different outcome. It is hard

to imagine a more typical procedural due process argument.

See, e.g., Mathews, 424 U.S. at 333-34 (discussing, as part

of the Court’s evaluation of the probable value of additional

procedure, the types of evidence that would be relevant to a

given type of determination, and what procedures would be

necessary to enable consideration of the relevant evidence);

Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.

2000) (discussing, as an element of procedural due process,

the requirement that a decisionmaker consider relevant

evidence).

Indeed, it is the majority that abandons the familiar

Mathews balancing framework in favor of categorical

presumptions favoring one party. It insists that Arizona’s

“subjective evaluation . . . that an inmate’s STG membership

and failure to debrief represents a continuing and significant

risk to prison safety such that it justifies the inmate’s

confinement to maximum custody” must be accorded

“significant deference.” Opinion at 32-33. But the majority

in fact affords that “subjective” determination dispositive

weight, allowing Arizona’s mere assertion of it -- at the

pleading stage, no less -- to trump any and all other

considerations, including the likelihood that considering

JOHNSON V. RYAN 71

additional evidence might result in a different judgment as

to whether Johnson poses a threat, and the likely cost of

considering such additional evidence. Indeed, under the

majority’s telling, even if Johnson could show that some

other factor (perhaps a prisoner’s criminal or disciplinary

history, or the subjective opinion of prison staff) was both

easily ascertainable and had a 100% track record in

predicting whether or not that prisoner’s release from

maximum custody would pose any danger to other prisoners

or the prisoner himself, the prison’s “subjective” decision to

ignore that factor would be immune from challenge. That

cannot be right under the Mathews framework.

To support this counter-intuitive result, the majority cites

language from the Supreme Court’s decision in Hewitt v.

Helms, 459 U.S. 460 (1983), arguing that “Hewitt

established that prison officials’ judgment that an inmate

represents a threat to the safety of the prison may “turn[]

largely on ‘purely subjective evaluations and on predictions

of future behavior’ and may be appropriate ‘even if [the

inmate] himself has committed no misconduct.’” Opinion at

32 (quoting Hewitt, 459 U.S. at 474, abrogated in part on

other grounds, Sandin v. Conner, 515 U.S. 472 (1995)). But

while Hewitt certainly afforded significant weight to the

government’s interest in prison security -- and real deference

to prison officials’ judgment about how best to achieve that

interest -- it also carefully applied the Mathews framework,

independently weighing the government’s security interests

alongside the prisoner’s interest in avoiding solitary

confinement and the probable value of additional procedural

safeguards. Hewitt, 459 U.S. at 474.

In the context presented in that case -- the decision

whether to continue to segregate a particular prisoner mere

weeks after a prison riot, when the situation in the prison

72 JOHNSON V. RYAN

continued to be volatile -- the Court found the private interest

at stake (continuing to be held in segregation for a few more

weeks “pending completion of an investigation into

misconduct charges against” that prisoner, id. at 463-64,

476) not particularly weighty, and the proposed

requirement of a live adversary hearing unnecessary. Id. at

474-75. It also acknowledged that predictions about when a

particular prisoner’s presence in the general population

might cause violence are “subjective” and may turn in part

on facts about general prison conditions not attributable to a

particular prisoner’s conduct. Id. at 474. But the Court in

Hewitt made absolutely clear that “administrative

segregation may not be used as a pretext for indefinite

confinement of an inmate,” that “[p]rison officials must

engage in some sort of periodic review of the confinement

of such inmates,” and that such a review should take into

account both “facts relating to a particular prisoner,” “the

officials’ general knowledge of conditions and tensions,”

“the progress of [any] investigation,” and “a wide range of

administrative considerations.” Id. at 477 n.9. 2 In other

2

To be sure, Hewitt stated that the assessment that a particular prisoner

remains a continuing threat may in part “be based on facts relating to a

particular prisoner . . . ascertained when determining to confine the

inmate to administrative segregation.” Id. But the context for that

statement was a discussion of whether a prison could continue

segregating a prisoner mere weeks after a prison riot; the Court certainly

did not imply that the prison would never need to consider new facts

about the specific prisoner, and, indeed, its analysis was explicitly based

on the premise that new facts would be considered when an ongoing

investigation into the prisoner’s conduct was concluded. Id. at 463-64,

477 n.9. And in any event, the Court in Hewitt concluded that the prison

needed to consider any previously ascertained facts about the prisoner

alongside new facts about prison conditions, such as whether “prison

tensions in the aftermath” of the riot and an “ongoing state criminal

JOHNSON V. RYAN 73

words, Hewitt established that even for relatively brief

periods of administrative segregation, due process requires

consideration of a wide variety of factors. It provides no

support for Arizona’s determination to confine Johnson and

other prisoners in what amounts to solitary confinement for

years and possibly decades while considering only an initial

STG validation and the subsequent failure to debrief.

For these reasons, it seems clear to me that Johnson

should at least be entitled to proceed past the pleadings on

his claim that Arizona’s refusal to consider factors other than

his initial STG validation and his subsequent failure to

debrief denies him due process. He has alleged that the

consideration of additional factors -- specifically, his

“criminal history, propensity for violence, or disciplinary

record” -- might lead Arizona to determine, with greater

accuracy, whether he poses a threat to prison security. FAC

¶ 37. Perhaps he is wrong that consideration of these factors

would lead to a more accurate determination, or perhaps

Arizona could show that it is overly burdensome to consider

these factors, even if they are predictive of violence. But to

settle these questions against Johnson at the pleading stage

usurps the factfinder’s role and eliminates from the Mathews

analysis any consideration of the probable value of

additional procedures, instead collapsing it into a one-

pronged inquiry as to whether the government has asserted a

legitimate security interest. That inquiry stacks the deck

against the person asserting a liberty interest and in favor of

the government.

investigation” continued to warrant segregation. Id. at 477 n.9.

74 JOHNSON V. RYAN

B. The Significance of Debriefing

The majority’s response to all of this is to argue that

Johnson’s “recourse for the time being is to renounce his

membership, thereby altering his status as a Warrior Society

member.” Opinion at 29; id. at 34 (“[I]t is appropriate for

ADC to rely on Johnson’s STG validation status as

justification for its conclusion that he remains a security

threat. . . .”); id. at 37-39 (discussing the debriefing process).

But here, even granting the majority’s premise that

consideration of current gang affiliation standing alone and

to the exclusion of all other factors might justify prolonged

solitary confinement, Arizona would still need to show that

a years or decades-old STG validation, coupled with a

prisoner’s subsequent failure to debrief, actually establishes

current gang status. That premise is far from clear, and

cannot be ascertained at the pleading stage. See Boquist v.

Courtney, 32 F.4th 764, 773-74 (9th Cir. 2022) (“[D]ismissal

is proper under Rule 12(b)(6) if it appears beyond doubt that

the non-movant can prove no set of facts to support its

claims.”). Indeed, “where, as here, a plaintiff proceeds pro

se,” the district court was obliged to “‘construe the pleadings

liberally’ and ‘afford [Johnson] the benefit of any doubt.’”

Id. at 774; Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A

document filed pro se is ‘to be liberally construed,’ and ‘a

pro se complaint, however inartfully pleaded, must be held

to less stringent standards than formal pleadings drafted by

lawyers.’”).

Rather than draw plausible inferences in Johnson’s favor

and construe his pro se complaint liberally, the district court

-- and, now, the majority -- rush to resolve the disputed

factual question of whether a years-old STG validation

suffices to establish current gang status or dangerousness.

There is of course no factual record as yet as to Johnson’s

JOHNSON V. RYAN 75

claim that by conditioning his release from maximum

custody on debriefing, Arizona effectively denied him any

“meaningful opportunity” to demonstrate he was no longer

a threat. FAC ¶ 39. And it was not Johnson’s obligation at

this preliminary stage of the litigation to allege anything

more than that by conditioning his placement on debriefing,

Arizona had effectively denied him the opportunity to leave

maximum custody. But even looking ahead to future stages

of litigation, it seems likely -- and, at the very least, plausible

-- that Johnson could demonstrate that the opportunity to

debrief does not provide him any meaningful path out of his

extremely restrictive conditions of maximum security.

First, as the Supreme Court has emphasized,

“[t]estifying against, or otherwise informing on, gang

activities can invite one’s own death sentence.” Wilkinson v.

Austin, 545 U.S. 209, 227 (2005). Indeed, the concern that

prisons cannot easily investigate gang violence and prevent

retaliation after the fact is one of the reasons the Supreme

Court has instructed courts to be reasonably deferential to

prison procedures designed to prevent gang violence in the

first place. Id. At the pleading stage, it certainly seems

plausible that Johnson could demonstrate that he could not

debrief without facing deadly danger. See Madrid v. Gomez,

889 F. Supp. 1146, 1241 (N.D. Cal. 1995) (“[A] number of

prison staff agree that inmates who debrief and gain release

from the SHU are considered “snitches,” and thus face

serious risks of being attacked or even killed by other

inmates.”).

Second, largely because of the acknowledged danger that

prisoners who have debriefed face from other prisoners,

Arizona has pointed to prison regulations requiring that any

prisoner who debriefs be placed in a form of “protective

custody,” the purpose of which is to continue to separate the

76 JOHNSON V. RYAN

debriefed prisoner from other prisoners. DO § 806.07.1.5.1.

As Johnson’s challenge to his current placement turns on his

“minimum human contact for years on end,” which, “even

within the context of the prison system . . . represents a

severe deprivation of liberty,” FAC ¶ 38, Arizona cannot

satisfy due process by offering Johnson the opportunity to

trade one form of solitary confinement for another form of

the same thing that would equally deprive him of a

constitutional liberty interest. Arizona points to regulations

that purportedly would allow a prisoner who has debriefed

and been placed into protective custody to one day become

eligible for “custody reductions and housing changes,”

including “lower custody housing or a double cell

environment.” DO § 806.07.1.5.1. But assuming we can

properly take notice of these regulations at the pleading

stage, there is simply no basis in the pleadings or record to

assess whether that theoretical eligibility actually offers

Johnson or prisoners like him a plausible path out of what is

effectively solitary confinement.

The majority acknowledges that this problem -- that a

prisoner may not be able to debrief without either risking

death or else simply trading one form of restrictive custody

for another -- “is real . . . [but] cannot be avoided.” Opinion

at 40. But if it really is true that debriefing requires braving

violent retaliation or indefinite solitary confinement, it

seems reasonable to ask whether consideration of any other

factors beyond a prisoner’s failure to debrief might satisfy a

prison’s legitimate security needs. Whatever the answer to

that question, I feel confident it cannot be resolved at the

pleading stage.

Third, Arizona’s regulations (again, assuming they are

even properly before us at this stage) on their face raise the

plausible inference that many prisoners (likely including

JOHNSON V. RYAN 77

Johnson) may not be able to successfully debrief even if they

wished. Under those regulations, no prisoner can debrief

without first “provid[ing] additional information regarding

the STG’s structure, activity and membership that would

adversely impact the STG and assist in management of the

STG population.” DO § 806.06. Even assuming that a

properly validated prisoner would be able to do this at the

time of his validation, it is not at all clear how a prisoner who

was validated eight years ago and has been held in solitary

confinement ever since could possibly be in a position to

provide any information that would “adversely impact the

STG” or “assist” the prison in “management of the STG

population.”

Johnson was validated in 2014 and Arizona has since

twice allowed him to begin the SDP program, which he

would not have been allowed to do on either occasion under

Arizona’s regulations if he had had any STG-related activity

within the past two years. FAC ¶¶ 4, 9; DO § 806.08.1.2.2.

It may be theoretically possible that, nearly a decade

following Johnson’s initial validation after which time he

was totally segregated from other prisoners, and despite

Arizona’s judgment that Johnson participated in no STG-

related activity for much or all of that time, Johnson could

still provide some information that “would adversely impact

the STG.” 3 Or perhaps Arizona could show that it does not

enforce this requirement for prisoners who are no longer in

a position to provide such information. But none of these

3

It bears mentioning that Johnson has denied that he was ever properly

validated as an STG member in the first place, and, in separate litigation,

this Court previously reversed a district court’s grant of summary

judgment against Johnson on this claim. Johnson v. Bendel, 745 F. App'x

750 (9th Cir. 2018). Following the appointment of counsel for Johnson,

Johnson obtained a cash settlement from Arizona.

78 JOHNSON V. RYAN

possibilities is clear from the face of Johnson’s complaint,

and none justifies dismissing it.

The majority dismisses this concern about the potential

unavailability of debriefing to a prisoner who has been

confined for years on-end and who therefore lacks current

information about the STG into which he was validated,

arguing that “[t]hese claims are not established anywhere in

this record” and belong instead to the “dissent’s own

imagination.” Opinion at 38. This, once again, ignores the

fact that this case is still at the pleading stage, not to mention

that it involves a pro se pleading. Johnson’s claim that

Arizona must consider more than his failure to debrief in

order to hold him in maximum custody for years on end has

never proceeded to discovery, so there is, of course, no

factual record affirming or disputing this point. But the

possibility that debriefing might not be a viable option for a

prisoner who has been held in maximum custody for many

years more than plausibly follows from Arizona’s

regulations requiring satisfactory debriefing to establish

information about the STG.

Instead, it is the majority that takes it upon itself to

imagine facts beyond the pleadings (and, for that matter, an

entire record as to this claim), where no such facts have yet

been established by either party. 4 Johnson has alleged that

4

In its rush to create a record where none exists, the majority has taken

upon itself to examine the website of Arizona’s Department of

Corrections to supposedly confirm that “[t]he Warrior Society still

operates as a prison gang and has active members in Arizona prisons.”

Opinion at 35 (citing Ariz. Dep’t of Corr., Certified and Monitored

Security Threat Groups, https://corrections.az.gov/warrior-society-0). It

thereby seeks to demonstrate that, at the very least, Arizona is not

confining Johnson over his supposed membership in a now-defunct gang

-- even though nothing about Arizona’s process, which looks only to the

JOHNSON V. RYAN 79

by “conditioning release from STG status on debriefing,”

Arizona effectively denied him any “meaningful

opportunit[y]” to leave solitary confinement. FAC ¶ 39.

Arizona may or may not be able to adduce evidence showing

that this was not the case, but Johnson was not obliged to

specifically anticipate and plead around such evidence in his

pro se complaint. Cf. Zivokovic v. S. Cal. Edison Co., 302

F.3d 1080, 1088 (9th Cir. 2002) (reasoning that “[a] defense

which demonstrates that plaintiff has not met its burden of

proof is not an affirmative defense” and therefore need not

be specifically pleaded in a defendant’s answer, let alone in

a plaintiff’s complaint).

Indeed, in dismissing Johnson’s claim at the pleading

stage, the district court cited cases sustaining Arizona’s

system of indefinite maximum security placement because

prisoners could theoretically leave maximum security by

debriefing at “any time.” But every case cited by the district

court came at the summary judgment stage, after the

plaintiffs (usually proceeding pro se and in prison) had failed

initial STG validation and the subsequent failure to debrief, requires that

the gang into which a prisoner was validated remains operational. But

the majority’s beyond-the-pleadings research only confirms why

Johnson’s claim should proceed to discovery. The webpage it cites states

that while “[t]he majority of the Native American inmates coming into

the prison system join the Native American Brotherhood,” or N.A.B.,

only “the younger, stronger and more aggressive inmates. . . . could be

considered the ‘elite’ N.A.B., the Warrior Society.” See Ariz. Dep’t of

Corr., Certified and Monitored Security Threat Groups,

https://corrections.az.gov/warrior-society-0 (last visited November 8,

2022). This characterization of the Warrior Society as constituted

primarily by the “younger, stronger, and more aggressive inmates” is not

wholly consistent with the majority’s assumption that prisoners remain

active members of the Warrior Society for years or even decades unless

and until they debrief.

80 JOHNSON V. RYAN

to meet their burden to affirmatively adduce evidence

demonstrating that debriefing was not a viable option. See

Hernandez v. Schriro, No. 05-cv-2853, 2011 WL 2910710,

at *8-9 (D. Ariz. July 20, 2011) (rejecting plaintiff’s

“unsupported assertion that risks to debriefed inmates are

‘common knowledge’. . . [because] [t]o defeat summary

judgment, Plaintiff must present evidence” (emphasis

added)); Mendez v. Ryan, No. 10-cv-1867, 2013 WL

6408389, at *8-*11 (D. Ariz. Aug. 13, 2013) (similar);

Standley v. Ryan, No. 10-cv-1867, 2012 WL 3288728, at *9-

10 (Aug. 13, 2012 D. Ariz. 2012) (similar); Faulkner v.

Ryan, No. 10-cv-2441, 2012 WL 407452, at *9-10 (D. Ariz.

Feb. 9, 2012) (similar). District courts that have considered

similar allegations at the pleading stage have routinely found

them sufficiently plausible to proceed to discovery. See

Askher v. Brown, No. 09-cv-5796, 2013 WL 1435148, at *7

(N.D. Cal. April 9, 2013) (finding allegations that the

possibility of debriefing did not offer a meaningful path out

of solitary confinement at California prisons plausible at the

pleading stage); Fanaro v. Cty. of Contra Costa, No. 09-cv-

03247, 2019 WL 5191018, at *5 (N.D. Cal. Oct. 15, 2019)

(similar); Gonzales v. Guirbino, No. 14-cv-00173, 2016 WL

1599449 at *2-5 (E.D. Cal. April 21, 2016) (similar).

Similarly, the majority relies extensively on a “lengthy,

thorough” 1995 district court decision in Madrid v. Gomez,

889 F. Supp. 1146 (N.D. Cal. 1995) that held that California

prisons could rely on the fact of a relatively old STG

validation -- even in the “absence of gang-related activity or

association over some period of time” -- to continue to hold

a prisoner in solitary confinement. Opinion at 34 (quoting

Madrid, 889 F. Supp. at 1278). But the court in Madrid

reached that determination only after a trial in which it

“heard testimony from 57 lay witnesses, including class

JOHNSON V. RYAN 81

members, defendants, and correctional employees at all

levels,” and “received into evidence over 6,000 exhibits,

including documents, tape recordings, and photographs, as

well as thousands of pages of deposition excerpts,” and even

“spent two days touring [the prison], accompanied by

counsel for both parties and prison officials.” Madrid, 889

F. Supp. at 1156. The court’s determination that a prisoner’s

status as a gang member might continue to demonstrate that

prisoner’s dangerousness and might be determined by an old

STG validation, notwithstanding the absence of recent gang-

related activity, was made only “in light of [the court’s]

factual findings,” and its resulting determination that “the

record supports defendants’ position that gang members and

associates are threats to prison security, and that inmates

who join such gangs join ‘for life’ . . . [even if] the inmate

may not have affirmatively engaged in gang activity” for

some time. Id. at 1278. Further, while the court in Madrid

heard evidence as to whether debriefing was in fact

“necessary to prove that renunciations of gang membership

are genuine,” and as to the threat debriefing might or might

not pose to particular prisoners, it also noted that the

plaintiffs in that case had not challenged the constitutionality

of the prison’s debriefing policy, and as such the court

declined to consider or address that issue. Id. at 1243, 1270

n.217.

Madrid, in other words, demonstrates precisely why

Johnson’s claim cannot be dismissed on the pleadings, even

assuming, as the majority does, that current gang status alone

demonstrates dangerousness. Whether a years-old STG

validation, coupled with a subsequent failure to debrief -- but

also an apparent absence of any gang-related activity --

actually demonstrates present gang affiliation and

dangerousness is a factual question, subject to factual

82 JOHNSON V. RYAN

dispute. The fact that a district court resolved this factual

question one particular way with respect to a specific

California prison’s policies almost 30 years ago following a

trial and the consideration of extensive evidence cannot

justify resolving this question the same way against Johnson

at the pleading stage.

For the reasons described above, I would hold that

Arizona must review Johnson’s placement in maximum

custody more than once a year, and I would also allow

Johnson to proceed to discovery as to his claim that Arizona

violates due process by failing to consider any factors

beyond a many-years-ago STG validation and a prisoner’s

subsequent failure to debrief before confining him

indefinitely in maximum custody. In my view, if Johnson

can demonstrate that consideration of other facts beyond a

prisoner’s current gang affiliation would both lead to more

accurate determinations about whether that prisoner poses a

threat and are not overly burdensome to consider, then

Arizona must then consider those other factors. But even if

that were not the case, and the majority were correct that a

prisoner’s current gang status, standing alone, justifies

indefinite solitary confinement, I do not view the bare fact

of a years-old STG validation and the mere possibility of

debriefing as sufficient to establish current gang status at the

pleading stage.

II. Whether Johnson’s removal from the SDP

violates due process.

I concur in the majority’s judgment reversing the district

court’s grant of summary judgment as to Count I of

Johnson’s complaint (which alleged that he was terminated

from the SDP program and reassigned to extremely

restrictive conditions of maximum custody in the Browning

JOHNSON V. RYAN 83

unit without adequate due process). I also agree with the

majority that “the procedure that it appears Johnson was

given was not adequate to satisfy the Due Process Clause.”

Opinion at 59. However, I do not agree with the majority’s

conclusion that only Johnson’s reassignment of housing

units -- rather than his underlying termination from the SDP

program, which is what led to his reassignment -- gave rise

to a constitutionally protected liberty interest. This is so for

two reasons.

First, the majority is wrong that “removal from the SDP

during Phases I–III does not result in any significant change

in an inmate’s conditions of confinement.” Opinion at 49.

Participation in any phase of the SDP has significant

implications for a prisoner’s current living conditions,

rendering those conditions materially freer than those of

most prisoners in maximum custody. See DOC 806.06, §

1.5.3 (explaining that prisoners in Phase III may receive two-

person recreation periods, job assignments, and an

unrestrained meal every day with other prisoners, along with

a variety of trainings and access to other programming); id.

§ 1.5.2, (explaining that prisoners in Phase II be allowed to

attend “peer group interaction (town hall meetings),”

unrestrained walks to and from the shower, unrestrained

walks to and from a recreation area, and access to various

other forms of programming); id. § 1.5, (in Phase I, prisoners

will have access to a “high school equivalency preparation

program,” as well as a number of other different classes and

programs).

As Arizona’s regulations make clear, participation in any

stage of the SDP -- and, at the very least, participation in

Phases II and III, as well as Phases IV and V -- entails

significantly more freedom from restraint and social

exposure than ordinary placement in maximum custody. So,

84 JOHNSON V. RYAN

to the extent that Johnson’s removal from Phase IV led to “a

material change in [Johnson’s] living conditions”

implicating a liberty interest, Opinion at 53, so too would a

prisoner’s removal from any prior phase -- and, at the very

least, from Phases II and III. The majority argues that

eliminating the freedoms enjoyed by prisoners in Phases I,

II, and III of the SDP would not “rise[] to the level of an

‘atypical or significant hardship.’” Opinion at 51 (quoting

Sandin, 515 U.S. at 484). But, as described, above, many of

the freedoms allowed in at least Phases II and III quite

literally involve giving prisoners limited “freedom from

restraint,” which is the quintessential sort of liberty interest

as to which due process rights attach. Sandin, 515 U.S. at

484.

Second, the majority is wrong to conclude that removal

from the SDP simply results in merely the loss of “one

means by which Johnson can prove that he is prepared to

return to the general prison population.” Opinion at 48. As

described above, except for the single alternative of

debriefing (the material shortcomings of which have already

been outlined), removal from the SDP effectively guarantees

that a prisoner will be confined in maximum custody for at

least 24 more months or, in the case of a second removal

from SDP, indefinitely. Whether or not the participating

prisoner’s transfer from maximum to close custody at the

beginning of Phase IV has already occurred simply sidesteps

the central issue, which is that at any phase of SDP, an SDP

participant remains eligible to ultimately “step down” from

maximum custody and ultimately transition to the general

population, whereas once that participant is removed from

SDP, he will face at least two more years of segregation in

the case of a first removal and indefinite segregation in the

JOHNSON V. RYAN 85

case of a second removal unless he debriefs. 5

Of course, the majority is in some sense correct that it is

a Johnson’s “STG status, not [his participation in] the SDP”

that results in his maximum custody placement. Opinion at

48. But for Johnson’s STG validation, he would not have

been confined in maximum custody and therefore would

never have been eligible for the SDP program, or had any

need to participate in it. But, by that logic, Johnson’s return

to maximum custody -- which the majority concedes

implicates a liberty interest, Opinion at 52-55 -- also

depended on Johnson’s STG status. So while the majority is

correct in holding that Johnson’s removal from less

restrictive custodial conditions caused by his removal from

Phase IV of the SDP implicates a liberty interest, its logic for

so holding necessarily implies more: that so long as the SDP

remains a prisoner’s only plausible mechanism out of

maximum custody, Arizona cannot terminate the prisoner

5

The majority claims that acknowledging the liberty interest associated

with SDP participation would put courts “in the business of second-

guessing every decision that ADC officials must make during Phases I-

V to determine whether an inmate may advance to another phase or

remain in the program.” Opinion at 52 n.12. But its approach would yield

exactly the same result for Phases IV and V, as a prisoner’s failure to

meet any of the criteria necessary to complete either phase would

necessarily result in that prisoner’s removal from close to maximum

custody, which the majority acknowledges infringes upon a liberty

interest and therefore must comply with due process. Opinion at 52-55.

To be sure, when prison officials act to deprive prisoners of a liberty

interest -- whether that interest is defined as participation in the SDP, or

removal from the freer custodial conditions that participation in a

particular stage of SDP necessarily implies -- they must afford the

prisoner basic due process, including notice and an opportunity to be

heard. But enforcing these basic guarantees of due process with all due

regard for the exigencies of prison management does not mean that

courts will be forced to second-guess everyday penological decisions.

86 JOHNSON V. RYAN

from SDP without providing due process.

For the foregoing reasons, I respectfully dissent from the

majority’s decision affirming the district court’s dismissal of

Count III of Johnson’s complaint. Put simply, the very real

problem of maintaining prison security in the face of gang

activity is not a blank check allowing prison officials to

overrule the Constitution and keep a prisoner once identified

as a gang member in solitary confinement forever without

any genuine possibility of release. And while I concur in the

majority’s judgment reversing the district court’s grant of

summary judgment against Johnson as to Count I, in my

view Johnson’s removal from the SDP itself, and not just his

collate

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