John Armstrong v. Gavin Newsom

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; JAMES Nos. 20-16921

AMAURIC; RICHARD PONCIANO; 21-15614

JACK SWENSEN; BILLY BECK;

JUDY FENDT; WALTER FRATUS;

GREGORY SANDOVAL; D.C. No. 4:94-cv-

DARLENE MADISON; PETER 02307-CW

RICHARDSON; STEVEN HILL;

DAVID ROSE; DAVID BLESSING;

ELIO CASTRO; ELMER OPINION

UMBENHOWER; RAYMOND

HAYES; GENE HORROCKS; KIAH

MINCEY; CLIFTON FEATHERS;

WILLIE JOHNSON; DAVID

BADILLO; JAMES SIMMONS;

FLORA ABRAMS; JOEY GOUGH;

TIMOTHY WHISMAN,

Plaintiffs-Appellees,

v.

GAVIN NEWSOM, Governor;

CALIFORNIA DEPARTMENT OF

CORRECTIONS AND

REHABILITATION,

Defendants-Appellants.

2 ARMSTRONG V. NEWSOM

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted September 21, 2022

San Francisco, California

Filed February 2, 2023

Before: Susan P. Graber, Michelle T. Friedland, and Eric

D. Miller, Circuit Judges.

Opinion by Judge Friedland

SUMMARY *

Prisoner Civil Rights

The panel affirmed one district court order, and affirmed

in part and vacated in part a second district court order, in an

ongoing action initiated nearly thirty years ago by a class of

California prisoners who challenged the State’s treatment of

disabled inmates.

This case began in 1994 when Plaintiffs sued the

California Department of Corrections and Rehabilitation and

the Governor (collectively, “Defendants”) alleging

widespread violations of the Americans with Disabilities Act

and the Rehabilitation Act (collectively “ADA”). The

*

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

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

ARMSTRONG V. NEWSOM 3

district court concluded that California prisons were failing

to provide legally required accommodations, and this court

affirmed. In these appeals, Defendants challenge two orders

issued in 2020 in which the district court found ongoing

violations of disabled prisoners’ rights at the R.J. Donovan

Correctional Facility (“RJD”) and at five additional prisons

(“Five Prisons”) resulting from Defendants’ failure to

adequately investigate and discipline staff misconduct. The

district court entered injunctions requiring Defendants to

adopt additional remedial measures at the six prisons.

The panel first rejected Defendants’ threshold contention

that the district court did not have authority to issue either of

the orders because the orders addressed misconduct that was

“categorically distinct” from the allegations of wrongdoing

in the Complaint. The panel determined that the new

allegations in the motions at issue here were closely related

to those in the operative Complaint and alleged misconduct

of the same sort—that Defendants failed to accommodate

class members’ disabilities, in direct contravention of the

ADA.

The panel next considered whether the district court’s

orders comported with the Prison Litigation Reform Act of

1995 (“PLRA”). The panel held that the record supported

the district court’s conclusions that there were ongoing ADA

violations at each of the prisons and that a common source

of those violations was the lack of sufficient accountability

measures to address officer misconduct, which fostered a

staff culture of targeting inmates with disabilities.

The panel affirmed the particular provisions of each

order that address the prisons’ investigatory and disciplinary

failures. For example, the panel affirmed the district court’s

requirements that Defendants utilize additional surveillance

4 ARMSTRONG V. NEWSOM

cameras and provide additional staff training. The panel also

held that the district court’s requirement that Defendants

reform the complaint process to better investigate, track, and

discipline offending staff members was also justified; and

that the investigatory and disciplinary reform measures

complied with the PLRA’s requirements that injunctive

relief be narrowly drawn and no more intrusive than

necessary.

Addressing the measures in the district court’s orders

that focused on preventing officer misconduct directly, the

panel upheld those measures as to RJD, but could not affirm

them as to the Five Prisons on the current record. Thus, the

panel affirmed the district court order that Defendants

develop a plan to “more effectively monitor and control the

use of pepper spray” by RJD staff. The panel vacated,

however, the pepper-spray measure in the Five Prisons

order, finding that the evidence on which the district court

relied was insufficient to justify the ordered relief. The panel

concluded that the district court abused its discretion by

ordering Defendants to reform their pepper-spray policies at

the Five Prisons and vacated that portion of the order.

The panel further concluded that the district court was

justified in ordering that Defendants “significantly increase

supervisory staff by posting additional sergeants” on prison

watches at RJD. But the record did not support an equivalent

finding with respect to the Five Prisons. The panel therefore

held that the district court abused its discretion by ordering

Defendants to increase supervisory staff at the Five Prisons

and vacated that portion of the district court’s order.

The panel addressed Defendants’ remaining arguments

in a concurrently filed memorandum disposition.

ARMSTRONG V. NEWSOM 5

COUNSEL

Jamie M. Ganson (argued), Deputy Attorney General; Alicia

Anne Bower, Deputy Attorney General; Trace Maiorino,

Deputy Attorney General; Neah Huynh, Supervising Deputy

Attorney General; Monica N. Anderson, Senior Assistant

Attorney General; Rob Bonta, Attorney General of

California, Office of the California Attorney General,

Sacramento, California; for Defendants-Appellants

Gay Crosthwait Grunfeld (argued), Michael W. Bien,

Michael L. Freedman, Benjamin Joseph Bien-Kahn, Ernest

Galvan, and Adrienne Pon Harrold, Rosen Bien Galvan &

Grunfeld LLP, San Francisco, California; Donald Specter,

Rita K. Lomio, Alison Hardy, Sara Norman, and Margot

Mendelson, Prison Law Office, Berkeley, California; Linda

D. Kilb Claudia Center, and Arlene B. Mayerson, Disability

Rights Education & Defense Fund Inc., Berkeley,

California; Geoffrey Holtz, Morgan Lewis & Bockius LLP,

San Francisco, California; for Plaintiffs-Appellees.

6 ARMSTRONG V. NEWSOM

OPINION

FRIEDLAND, Circuit Judge:

Nearly thirty years ago, a class of California prisoners

challenged in federal court the State’s treatment of disabled

inmates. The district court concluded that California prisons

were failing to provide legally required accommodations,

and our court affirmed. Since then, the State has struggled

to remedy the recognized violations, and the class has

repeatedly returned to court, prompting the district court to

order iterative injunctions that our court has largely

affirmed. In this appeal, California officials challenge two

orders in which the district court again imposed

requirements on the State to correct ongoing violations of

disabled inmates’ rights. We affirm almost the entirety of

the district court’s orders.

I.

A.

This case began in 1994 when Plaintiffs, a class of

California prisoners (the “Armstrong class”), sued the

California Department of Corrections and Rehabilitation

(“CDCR”) and the Governor (collectively, “Defendants”). 1

In the operative Complaint, Plaintiffs alleged widespread

violations of the Americans with Disabilities Act (“ADA”)

and the Rehabilitation Act (“RA”), accusing Defendants of

1

Initially, the litigation also included state parolees but subsequently was

bifurcated, with parolees litigating their claims against the Board of

Parole Hearings separately from the prisoners’ claims against CDCR.

See Armstrong v. Brown, 768 F.3d 975, 978 n.1 (9th Cir. 2014). The

appeals now before us concern only those orders relating to

accommodations for prisoners.

ARMSTRONG V. NEWSOM 7

“discriminat[ing] against plaintiffs and the class they

represent by reason of their disability.” Some of the

allegations focused on physically inaccessible facilities in

California’s prisons. Other allegations accused Defendants

of failing “to make reasonable accommodations to

individuals with disabilities in the programs, activities,

services, benefits, and jobs they offer.”

The district court certified a class of “all present and

future California state prisoners . . . with mobility, sight,

hearing, learning[,] and kidney disabilities that substantially

limit one or more of their major life activities,” and held that

Defendants’ treatment of disabled prisoners violated the

ADA and RA. See Armstrong v. Wilson, 124 F.3d 1019,

1020–21 (9th Cir. 1997). 2 Accordingly, the district court

ordered Defendants to produce a plan describing how they

would remedy the violations of the class members’ rights.

Defendants produced what has come to be known as the

Armstrong Remedial Plan (“ARP” or “Plan”), see

Armstrong v. Schwarzenegger, 622 F.3d 1058, 1063 (9th

Cir. 2010), portions of which the district court subsequently

ordered Defendants to implement, see Armstrong v. Davis,

58 F. App’x 695, 697 (9th Cir. 2003). See also

Schwarzenegger, 622 F.3d at 1063 (describing the history of

this litigation through 2010).

Realizing the promise of the ARP has not been easy.

Since the district court directed enforcement of the Plan,

Plaintiffs have filed a series of motions contending that

2

When it comes to discrimination by public entities, the ADA and RA

“provide identical ‘remedies, procedures, and rights.’” Vos v. City of

Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (quoting Hainze v.

Richards, 207 F.3d 795, 799 (5th Cir. 2000)). We therefore refer only to

the ADA throughout the remainder of this opinion.

8 ARMSTRONG V. NEWSOM

Defendants have failed to comply with the court’s mandates.

In response, the district court has issued further injunctions,

most of which have been affirmed by our court, directing

Defendants to take additional measures to ensure

compliance with the court-ordered portions of the ARP and

to prevent further violations of class members’ rights. See

Armstrong v. Brown, 768 F.3d 975, 988–89 (9th Cir. 2014)

(affirming in large part); Schwarzenegger, 622 F.3d at 1063

(affirming the district court’s holdings about the defendants’

responsibility for violations and about the need for relief but

remanding for further evidence on specific remedial

measures); Davis, 58 F. App’x at 696 (affirming in full);

Armstrong v. Davis, 275 F.3d 849, 879 (9th Cir. 2001)

(affirming in large part).

In 2007, for example, the district court held that, “[w]hile

some individual prisons have improved their compliance”

with the ADA and ARP, “it has become increasingly clear

that defendants are unable to meet their obligations,” causing

“significant harm to the plaintiff class.” Accordingly, the

district court entered a permanent injunction requiring

Defendants to “develop a system” for holding prison staff

“accountable for compliance with the Armstrong Remedial

Plan and the orders of th[e] Court.” The injunction was

modified in 2012 to “clarif[y] and ma[k]e more detailed”

Defendants’ obligations regarding reporting and

accountability after the district court concluded that

Defendants’ accountability system was ineffective. The

district court modified the injunction again in 2014.

B.

In 2020, Plaintiffs returned to court alleging pervasive

violations of class members’ rights under the ADA, filing

one motion focused on a single prison and a second motion

ARMSTRONG V. NEWSOM 9

focused on several more. In ruling on the motions, the

district court found that there were ongoing violations of

disabled prisoners’ rights at six California prisons, resulting

from Defendants’ failure to adequately investigate and

discipline staff misconduct. The district court entered two

injunctions requiring Defendants to adopt additional

remedial measures at the prisons.

1.

Plaintiffs’ first motion sought relief at R.J. Donovan

Correctional Facility (the “RJD Motion”). RJD has the

second largest population of disabled inmates of any prison

in California and houses nearly a thousand Armstrong class

members. In 2018, auditors from within CDCR conducted a

compliance review, jointly with Plaintiffs’ counsel, of the

disability policies at RJD. The auditors’ resulting memo

documented that inmates reported, among other allegations

of misconduct, instances of “staff members forcefully

removing some inmates from wheelchairs” and “assaulting

inmates [who] were already secured with restraint

equipment.”

The State sent a “strike team” to RJD to investigate the

reports of staff misconduct identified by the auditors. The

strike team conducted a series of interviews in which

inmates described prison staff targeting disabled inmates for

abuse and retaliating against those who reported abuse. The

strike team found that 48 of the 102 inmates interviewed

“provided specific, actionable information, relevant to the

foundational concerns” of staff misconduct that had

prompted the review. In an email, CDCR’s chief

ombudsman and strike-team member wrote:

10 ARMSTRONG V. NEWSOM

I have never heard accusations like these in

all my years. . . . Many of the inmates have

expressed fear of what will happen to them

tomorrow when the team is not there. . . .

This is a very serious situation and needs

immediate attention. If there is any means of

installing cameras immediately I would

strongly suggest it . . . . We will provide you

any help you need.

The strike team recommended that prison management

install surveillance cameras at certain locations, increase the

presence of supervisory staff, and provide mandatory staff

training, among other things.

Plaintiffs’ counsel communicated with CDCR

throughout 2019 about remedying the problems at RJD.

Unsatisfied with the State’s progress, Plaintiffs filed the RJD

Motion in February 2020, asking the district court to impose

further remedial measures at RJD. In support of the motion,

Plaintiffs submitted 87 declarations from 66 inmates who

claimed to have experienced or witnessed violations of class

members’ rights at RJD, along with two expert reports

criticizing RJD staff’s treatment of disabled inmates and the

State’s failure to investigate and discipline staff in response.

After briefing and argument, the district court granted

Plaintiffs’ motion in large part. The court found Plaintiffs’

declarations uncontroverted because Defendants had not

submitted competing declarations or any other evidence

contesting the declarants’ accounts. The district court also

found the declarants credible, explaining that they “paint[ed]

a very consistent picture of the conduct by RJD staff that

disabled inmates experience[d].”

ARMSTRONG V. NEWSOM 11

In its order, the district court recounted numerous

incidents, which it described as “illustrative examples” of

Plaintiffs’ evidence that Armstrong class members were

being denied reasonable accommodations or discriminated

against because of their disabilities. In one such illustrative

example, a mobility-impaired class member requested not to

be handcuffed behind his back because he used a cane and

walker. Instead of granting that accommodation, an RJD

officer slammed the class member to the ground, causing

him to hit his head on the concrete floor and lose

consciousness for several seconds. When the class member

awoke, the officer put his knee on the class member’s throat

and then kneed him in the face. As the district court noted,

other mobility-impaired class members were also thrown to

the ground rather than accommodated after requesting

handcuffing accommodations. In another incident, an

officer refused to stop shining a flashlight into the eyes of a

vision-impaired class member who said that the light was

painful and exacerbated his disability. When the class

member asked to speak with a sergeant, another officer

punched the class member in the jaw. Multiple incidents

recounted by the district court described officers denying

class members’ requests for wheelchair pushers and for

showers after incontinence incidents; others described

officers closing doors on class members with mobility

disabilities.

The district court also recounted incidents of retaliation.

In one such incident, a class member asked an officer to help

him lift a heavy package of mail. The officer refused, and

the class member replied that he intended to file a complaint.

In response, the officer pepper-sprayed the class member in

the face, hit him in the face with the pepper-spray canister,

and then kicked him. In another incident, an officer

12 ARMSTRONG V. NEWSOM

threatened to lodge a fabricated rules-violation report against

a class member if the class member filed a grievance

reporting the officer’s earlier failure to accommodate him.

Multiple class members reported that they were afraid to

request accommodations due to the threat of retaliation.

Relying on Plaintiffs’ declarations and expert reports,

the district court concluded that “RJD staff have denied

reasonable accommodations to class members on many

occasions, and that such denials were by reason of the class

members’ disabilities.” The “root cause” of these violations,

the district court found, was Defendants’ “systemic and

long-term failure” to “effectively investigate and discipline

violations” of class members’ ADA rights. The district court

concluded that additional remedial measures were

“necessary to prevent further violations” at RJD.

2.

While the RJD Motion was pending, Plaintiffs moved for

similar relief at additional California prisons. 3 In support of

that motion (the “Five Prisons Motion”), Plaintiffs

incorporated the material they had filed with the RJD Motion

and submitted two new expert reports plus declarations from

seventy-five additional inmates describing incidents at those

prisons (the “Five Prisons”).

Those declarations differed from the declarations

Plaintiffs had submitted in support of the RJD Motion in two

ways. First, whereas the RJD declarations were all

submitted by Armstrong class members, about half the

3

Plaintiffs requested relief at seven prisons, but the district court

ultimately declined to order relief at two of them—a ruling that Plaintiffs

have not challenged. As a result, only five prisons are at issue with

respect to the appeal from the ruling on that motion.

ARMSTRONG V. NEWSOM 13

declarations submitted in support of the Five Prisons Motion

were from disabled inmates who were not members of the

Armstrong class. Rather, those declarations came from class

members in a separate prison-conditions class action brought

on behalf of “all [California state] inmates with serious

mental disorders.” Coleman v. Schwarzenegger, 922 F.

Supp. 2d 882, 898 n.11 (E.D. Cal. & N.D. Cal. 2009). 4

Second, whereas the RJD declarations were not disputed, the

Five Prisons declarations were partially disputed.

Defendants filed their own declarations—about one hundred

in all—contesting some of the events described in the Five

Prisons declarations. The district court did not attempt to

resolve the factual disputes raised by the competing

declarations. Instead, it recounted “illustrative examples” of

incidents from Plaintiffs’ declarations in which inmates

described being denied reasonable accommodations and for

which Defendants’ declarations did not contest the relevant

portions of the episodes. The district court recounted twelve

such illustrative incidents—six of which involved

Armstrong class members and all of which the district court

found credible. 5

Relying on the cited declarations and Plaintiffs’ expert

reports, the district court concluded that “staff have denied

reasonable accommodations to inmates with disabilities on

multiple occasions” at the Five Prisons, and “such denials

were by reason of the inmates’ disabilities.” As with RJD,

the district court found that the “root cause” of the ongoing

4

The parties agree that mental illness is not a ground for Armstrong class

inclusion.

5

The district court did not make credibility determinations as to the

inmate declarations that it did not explicitly reference in the Five Prisons

Order.

14 ARMSTRONG V. NEWSOM

violations in the Five Prisons was the “ineffectiveness” of

Defendants’ system for “investigating and disciplining”

violations, which led to a “staff culture that condones abuse

and retaliation against disabled inmates.” The district court

therefore concluded that additional remedial measures were

“necessary to prevent further violations” of the ADA rights

of disabled inmates at the Five Prisons.

3.

Having found that additional remedial measures were

necessary to prevent further violations of class members’

rights, the district court ordered Defendants to draft two

remedial plans—one for RJD and one for the Five Prisons.

The district court ordered Defendants to include, in both

plans, measures in the following categories: (1) installing

fixed surveillance cameras and body-worn cameras; (2)

reforming staff complaint, investigation, and discipline

processes; (3) monitoring by a court-appointed expert of

staff investigation and discipline processes; 6 (4) sharing

information with Plaintiffs’ counsel and the court expert; (5)

increasing supervisory staffing; (6) adding more staff

training; (7) implementing anti-retaliation mechanisms; and

(8) reforming pepper-spray policies. For each category, the

district court outlined certain requirements that Defendants

must include in the plans. For example, the court specified

a retention policy for camera footage and required the

investigation and discipline section of the plans to provide

for quarterly interviews of disabled inmates. The district

court also ordered Defendants to develop an electronic

6

The expert was appointed pursuant to Federal Rule of Evidence 706 “to

monitor Defendants’ implementation of their plan to reform the staff

complaint, investigation, and discipline policies and procedures.”

ARMSTRONG V. NEWSOM 15

“early-warning” tracking system for incidents of staff

misconduct involving disabled inmates at the Five Prisons. 7

4.

Defendants timely appealed both orders. We

consolidated the appeals for the purposes of oral argument

and address both in this opinion.

II.

“We review the district court’s legal conclusions de

novo, the factual findings underlying its decision for clear

error, and the injunction’s scope for abuse of discretion.”

Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014).

III.

We first consider and reject Defendants’ threshold

contention that the district court did not have authority to

issue either of the orders because the orders address

misconduct that is “categorically distinct” from the

allegations of wrongdoing in the Complaint.

“[A] district court has broad discretion to fashion

injunctive relief.” Melendres v. Maricopa County, 897 F.3d

1217, 1221 (9th Cir. 2018). But that discretion is not

unbounded, particularly as to allegations of misconduct

raised after a complaint is filed. Because “[t]he authority of

the court is invoked at the outset [of litigation] to remedy

particular . . . violations,” a remedy is justified “only insofar

as it advances the ultimate objective of alleviating the

initial . . . violation.” Freeman v. Pitts, 503 U.S. 467, 489

(1992). “[N]ew assertions of misconduct” do not support

7

Defendants were not ordered to include this measure in the RJD

remedial plan.

16 ARMSTRONG V. NEWSOM

injunctions “entirely unrelated to the conduct asserted in the

underlying complaint”—there must be a “sufficient nexus”

between the new allegations and the complaint. Pac.

Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d

631, 636 (9th Cir. 2015).

The new allegations in the motions at issue here are

closely related to those in the operative Complaint. The

Complaint alleged broad violations of class members’ rights

under the ADA. Plaintiffs alleged, for example, that

Defendants “discriminate against [class members] by reason

of their disability,” and that Defendants “failed to make

reasonable accommodations to individuals with disabilities

in the programs, activities, services, benefits, and jobs they

offer.” In the RJD and Five Prisons Motions, Plaintiffs

allege misconduct of the same sort—that Defendants failed

to accommodate class members’ disabilities, in direct

contravention of the ADA.

Defendants protest that the requisite nexus is lacking

between the conduct alleged in the Complaint and that

alleged in Plaintiffs’ motions because the Complaint focuses

narrowly on the provision of accommodations and does not

allege the use of excessive force. But the mere fact that the

ADA violations alleged in Plaintiffs’ motions were

sometimes accompanied by excessive force does not negate

that they were also textbook denials of reasonable

accommodations under the ADA—the precise type of

conduct challenged in the Complaint. For example, in the

RJD Order, the district court recounted an incident in which

an officer punched an inmate in the face when the inmate

requested that the officer communicate with him in writing,

so as to accommodate his hearing disability. Refusing to

communicate in writing with a deaf inmate and beating a

deaf inmate who requests such a method of communication

ARMSTRONG V. NEWSOM 17

are both denials of a reasonable accommodation. That the

allegations raised in Plaintiffs’ recent motions described

violent denials of accommodations makes injunctive relief

all the more appropriate.

Similarly, retaliating against inmates who request

accommodations or who report denials of accommodations

deters inmates from pursuing accommodations in the first

place. The result is that inmates do not receive the

accommodations required by the ADA—exactly what the

Complaint alleged. 8

IV.

We next consider whether the district court’s orders

comport with the Prison Litigation Reform Act of 1995

(“PLRA”). The PLRA sets the standards for when a court

may grant prospective relief concerning prison conditions.

The Act instructs that a “court shall not grant or approve any

prospective relief unless the court finds that such relief is

narrowly drawn, extends no further than necessary to correct

the violation of the Federal right, and is the least intrusive

means necessary to correct the violation of the Federal

right.” 18 U.S.C. § 3626(a)(1)(A). The PLRA “mean[s] just

what it says—before granting prospective injunctive relief,

the trial court must make the findings” the PLRA mandates.

8

Defendants briefly argue that the district court did not have the

authority to issue the orders in the absence of a finding of a “changed

condition” that hindered Defendants’ compliance with the existing

injunction. But the authority to which Defendants point, America Unites

for Kids v. Rousseau, 985 F.3d 1075 (9th Cir. 2021), describes the

conditions under which a defendant may be relieved from its legal

obligations under a consent decree. See id. at 1097–98. That test does

not apply here, where Plaintiffs are requesting that the court impose

additional obligations on Defendants to effectuate its prior orders.

18 ARMSTRONG V. NEWSOM

Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). We

call those findings the “need-narrowness-intrusiveness”

findings for short, see, e.g., Armstrong v. Schwarzenegger,

622 F.3d 1058, 1070 (9th Cir. 2010), and we review them

for clear error, see Brown v. Plata, 563 U.S. 493, 541 (2011).

A.

In both of its orders, the district court found not only

ongoing violations of class members’ rights at the prisons,

but also a common source of those violations: the lack of

sufficient accountability measures to address officers’

misconduct, which fostered a staff culture of targeting

inmates with disabilities. The record amply supports both

conclusions.

First, plenty of evidence demonstrates ongoing ADA

violations at each of the prisons. Plaintiffs submitted more

than 150 declarations in which inmates described prison staff

denying accommodations to which they were entitled,

retaliating against them for requesting accommodations, and

retaliating against them for reporting officers’ misconduct.

With respect to RJD, the declarations were uncontroverted.

And although Defendants submitted competing declarations

contesting many of the incidents described by inmates at the

Five Prisons, the district court nonetheless identified a dozen

“illustrative” incidents described in the inmate declarations

that were uncontested and “remarkably consistent” across

the different prisons. Plaintiffs’ experts also described

ongoing violations at the prisons, concluding that (as we will

further discuss shortly) the violations were a result of

failures in Defendants’ investigatory and disciplinary

systems. Considered as a whole, the record supports the

district court’s conclusion that there were ongoing violations

at each of the prisons at which it ordered relief. After all, it

ARMSTRONG V. NEWSOM 19

is not simply the number of incidents that matters. “[I]f the

injury is the result of . . . policies or practices pervading the

whole system,” system-wide relief is appropriate even if

only a “relatively small number of plaintiffs” are injured.

Schwarzenegger, 622 F.3d at 1072–73 (quoting Armstrong

v. Davis, 275 F.3d 849, 870 (9th Cir. 2001)).

Second, the failures in Defendants’ investigatory and

disciplinary systems were well illustrated by Plaintiffs’ two

experts, both of whom opined that Defendants’

accountability systems were inadequate systemwide. As one

of the experts described the problems at the Five Prisons,

when prison investigators reviewed a reported incident, they

often “overlooked or intentionally ignored” evidence that

supported the inmate’s version of events or undermined the

officer’s version of events. Relying on a review of inmate

declarations, incident reports, and case files, the expert

described multiple occasions in which investigators

discredited inmates’ reports simply because they conflicted

with prison officials’ versions of the events—a conclusion

that follows only if one assumes that prison officials’

statements are never inaccurate and always truthful. The

other expert described similar problems at RJD, noting that

there is a “deep and ubiquitous” staff bias against disabled

inmates and that inmates’ testimony is commonly

discounted or ignored during investigations there. That

expert ultimately concluded that the failures were systemic

and statewide.

Other evidence in the record also showed failures to

investigate and to discipline wrongdoers. California’s

Office of the Inspector General (“OIG”) issued a report

concluding that the statewide system for investigating

allegations of prison-staff misconduct was flawed and

ineffective. Much like Plaintiffs’ experts, the OIG

20 ARMSTRONG V. NEWSOM

determined that prison investigators “displayed signs of bias

in favor of their fellow staff when conducting their staff

complaint inquiries” and “sometimes ignored corroborating

evidence offered by inmate witnesses.” Defendants’ own

data, produced to Plaintiffs during this litigation, also were

consistent with systemic failures of accountability. The data

showed that, despite dozens of allegations of abuse, only a

relatively small number of incidents resulted in staff

discipline. 9

The district court found that those failures of

accountability corrupted the staff culture at the prisons. As

one expert described the problem, Defendants’ failure to

adequately investigate and discipline misconduct creates a

vicious cycle in which individual failures of accountability

escalate into a prison-wide culture of abuse. If prison staff

are not held accountable when they unlawfully fail to

accommodate disabled inmates—or when they retaliate

against inmates who report such misconduct—disabled

inmates will stop speaking up. And if prisoners do not speak

up, there is less opportunity to hold officers accountable.

Failing to hold officers accountable, in turn, can embolden

staff by suggesting that they can violate inmates’ rights with

impunity—further discouraging disabled inmates from

9

The district court observed that disabled inmates were

“overrepresented” in the proportion of incidents that resulted in staff

discipline. Defendants argue that this observation undermines the

district court’s finding that their disciplinary systems are inadequate,

because it suggests that Defendants were disciplining staff who violated

disabled inmates’ rights. But the data are consistent with another

interpretation—that the incidents of misconduct against disabled inmates

were more egregious than those against non-disabled inmates. That the

evidence is susceptible to competing interpretations does not mean that

the district court clearly erred in its interpretation.

ARMSTRONG V. NEWSOM 21

speaking up, as the threat of retaliation grows.

B.

Defendants raise two specific challenges to the district

court’s conclusions that further relief was necessary at RJD

and the Five Prisons, respectively. We reject both.

1.

First, as to RJD, Defendants argue that judicial

intervention was unnecessary because they already had

taken steps to protect class members’ rights and to improve

accountability at that prison, obviating the need for further

reform there. Defendants do not dispute that ADA violations

occurred at RJD. Rather, they assert that they implemented

several corrective measures at RJD in late 2018, including

additional training for prison staff and changes to several

management positions. Such reforms, they argue, have

addressed the problems that the district court identified.

Defendants point to data showing that reported incidents

involving the use of force decreased in one facility within

RJD by 44% between 2018 and 2019 and that staff-

misconduct complaints at the same facility decreased by

40% over the same period.

The district court found that “reliable inferences about

whether conditions for class members at RJD have improved

cannot be drawn from Defendants’ data.” That conclusion

was reasonable. First, the district court pointed out that

Defendants’ data involved only one facility at RJD, while

other data suggested that reported incidents may have

increased at other facilities within the prison. Second, and

more fundamentally, Defendants’ data concerned reported

incidents involving the use of force. The utility of

Defendants’ data, then, was undermined by the district

22 ARMSTRONG V. NEWSOM

court’s finding—drawn from inmate declarations and expert

reports—that a “significant number” of incidents “are not

reported and therefore not reflected” in the data, at least in

part because of class members’ fear of retaliation by prison

officers.

Defendants quibble with the district court’s

interpretation of the data, arguing that the court erroneously

failed to focus on the period after Defendants implemented

corrective measures. They also contend that the district

court should have looked at per capita figures instead of total

use-of-force incidents, because the prison population

changed over the relevant period. But even if Defendants

have persuasive reasons for their comparator preferences,

the district court’s overarching conclusion was that no

reliable inferences could be drawn from the data, because the

data did not reflect unreported incidents. That conclusion

was reasonable. Moreover, even if conditions were

improving somewhat, the district court referenced numerous

episodes continuing well into 2020 in which RJD staff

violated class members’ rights—a finding that Defendants

do not meaningfully contest. Neither Plaintiffs nor the

district court had to sit idly by while Defendants violated

class members’ rights, even if Defendants were already

making marginal improvements. Cf. Barcia v. Sitkin, 367

F.3d 87, 102–04 (2d Cir. 2004) (holding that the rate of

violations was too high to find that the State was in

compliance with a consent decree, notwithstanding some

improvements). 10

10

Defendants similarly argue that reforms to staff-misconduct policies

were unnecessary at all of the prisons because they reformed their

statewide system for reviewing staff misconduct in 2020. But the district

ARMSTRONG V. NEWSOM 23

2.

Second, as to the Five Prisons, Defendants argue that the

district court erred in relying on evidence of staff misconduct

directed at disabled inmates who were not members of the

Armstrong class, alongside evidence of staff misconduct

directed at Armstrong class members. 11 Defendants further

assert that, once the evidence of violations against disabled

inmates outside the Armstrong class is disregarded, the

record does not support the district court’s determination that

further relief was required at the Five Prisons.

The district court explained its reliance on evidence of

violations against non-class members in two ways. First, the

district court reasoned that it could rely on evidence of staff

misconduct directed at any disabled inmate because such

misconduct violated its prior orders. According to the

district court, many of the court-ordered provisions of the

ARP extend to any “qualified inmate . . . with a disability,”

not merely those inmates whose disabilities fall within the

ambit of the Armstrong class. We need not address

Defendants’ objections to that theory because the district

court was justified in relying on the non-class-member

evidence under its second rationale: that the declarations

were relevant because they contain evidence that is probative

of the conditions that class members experience at the

court considered—and did not err in rejecting—that argument. As the

district court noted, the OIG expressly found in a February 2021 report

that the problems with staff investigations and discipline that it had

documented in its initial report “still persist[],” notwithstanding the

implementation of Defendants’ new system.

11

As noted earlier, it is undisputed that mental illness is not a ground for

Armstrong class inclusion, even if such mental illness renders the inmate

“disabled” within the meaning of the ADA.

24 ARMSTRONG V. NEWSOM

prisons.

The district court was justified in viewing the non-class-

member evidence as highly probative of the conditions faced

by class members. For example, the district court described

an incident at one of the Five Prisons in which an inmate

who suffered from debilitating depression and anxiety was

assaulted by officers after he asked to speak to his mental

health clinician—and then experienced retaliation when he

filed a complaint reporting the misconduct. Although that

inmate’s specific disabilities fell outside the Armstrong class

definition, the incident is probative of Plaintiffs’ claim that

prison officials denied accommodations to disabled inmates

and retaliated against those who reported such denials. More

generally, if an inmate sees officers retaliating against

inmates who request accommodations for their disabilities,

that inmate may think twice before requesting

accommodations of his own, even if his disabilities are of a

different kind. Witnessing retaliation against any disabled

inmate—whether or not the inmate is a member of the

Armstrong class—may accordingly deter class members

from speaking up, contributing to the vicious cycle described

above.

C.

Defendants’ remaining challenges to the district court’s

orders focus on particular provisions of each order that they

claim cannot survive the need-narrowness-intrusiveness

inquiry required by the PLRA. The provisions can be

divided broadly into two buckets: those related to

investigation and discipline, and those that attempt to

prevent misconduct directly. Defendants’ arguments are

unpersuasive as to the first bucket because of the substantial

proof of ongoing systemic failures of accountability that the

ARMSTRONG V. NEWSOM 25

district court had previously—and unsuccessfully—tried to

remedy. As to the second bucket, there is sufficient evidence

that the measures were necessary at RJD, but we agree with

Defendants that there is not enough evidence to support the

ordered measures at the Five Prisons.

1.

Under the PLRA, “[t]he overarching inquiry is ‘whether

the same vindication of federal rights could have been

achieved with less involvement by the court in directing the

details’” of prison operations. Armstrong v. Brown, 768

F.3d 975, 983–84 (9th Cir. 2014) (quoting Schwarzenegger,

622 F.3d at 1071). A district court may, however, “provide

specific instructions to the State without running afoul of the

PLRA.” Id. at 986. In particular, when a district court “has

previously tried to correct the deficiencies” in prison

operations “through less intrusive means, and those attempts

have failed, relief prescribing more specific mechanisms of

compliance is appropriate.” Id.

Less intrusive means have been tried—and have failed—

here. In 2007, the district court ordered Defendants to

“develop a system for holding [prison staff] accountable for

compliance with the Armstrong Remedial Plan and the

orders of this Court.” Five years later, however, “there had

been no meaningful improvement to the State’s tracking and

accountability system,” despite the injunction. Id. at 984.

So the district court tried again, modifying its injunction to

address the specific ways in which Defendants’

accountability system had failed. Id. at 985. We upheld that

modification, holding that, although its terms “might leave

the State less discretion than injunctions typically approved

in the PLRA context,” that “level of intrusiveness [was]

acceptable based on the history and circumstances of the

26 ARMSTRONG V. NEWSOM

case”—particularly, Defendants’ failure to comply with the

previous, less-intrusive remedy. Id. at 986.

We are now back in a similar spot. Given the history and

circumstances of this case, our precedents counsel

heightened deference to the district court’s factual findings.

Keeping this in mind, we hold that the measures ordered by

the district court to improve officers’ accountability comply

with the PLRA.

a.

The district court did not clearly err in finding that the

remedial measures it ordered to address the prisons’

investigatory and disciplinary failures were necessary to

correct violations of class members’ rights. 12 Turning first

to the requirement that Defendants utilize additional

surveillance cameras, the district court did not err in finding

that additional cameras, both stationary and body-worn,

were necessary. With more direct evidence showing what

happened during an incident, it will matter less whether

investigators are inclined to credit officers’ accounts of

incidents over inmates’ accounts. And, as even Defendants’

experts noted, the installation of additional cameras will

itself help to deter further violations.

Defendants argue that it was nonetheless unnecessary to

12

Again, those measures fall into the following categories: (1) installing

fixed surveillance cameras and body-worn cameras; (2) reforming staff

complaint, investigation, and discipline processes; (3) monitoring staff

investigation and discipline processes by a court-appointed expert; (4)

sharing information with Plaintiffs’ counsel and the court expert; (5)

adding more staff training; (6) implementing anti-retaliation

mechanisms; and (7) developing an electronic “early-warning tracking

system” for staff misconduct incidents involving disabled inmates at the

Five Prisons.

ARMSTRONG V. NEWSOM 27

order Defendants to install additional cameras, because the

State was already committed to doing so voluntarily. But

voluntary plans may change. Particularly considering

Defendants’ prior failures to improve their accountability

systems in the absence of specific, court-ordered

instructions, it was reasonable for the district court to include

measures in its orders that Defendants may have adopted

voluntarily. 13 See Brown, 768 F.3d at 985 (holding that the

district court did not err in finding that further relief was

necessary after its previous orders had failed to protect

inmates’ rights). For a similar reason, we affirm the district

court’s requirement that Defendants provide additional staff

training. The mere fact that Defendants already provide

some training to staff does not undermine the district court’s

finding that further training is necessary.

The district court’s requirement that Defendants reform

the complaint process to better investigate, track, and

13

The RJD and Five Prisons Orders required Defendants to retain

indefinitely footage of use-of-force incidents involving disabled inmates.

The remedial plans that the district court ultimately approved, however,

required Defendants to retain such footage for only five years. We hold

that the district court had jurisdiction to make that minor change to its

orders because the change “preserved the status quo and did not

materially alter the status of the case on appeal.” NRDC, Inc. v. Sw.

Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). We therefore consider

the provision as it appears in the ultimately ordered remedial plans,

rather than in the original orders, for purposes of the need-narrowness-

intrusiveness inquiry. Although Defendants challenged the indefinite

retention period, they do not challenge the five-year retention period—

which, in any event, is an appropriate length of time to ensure that the

footage exists throughout the course of any investigation.

28 ARMSTRONG V. NEWSOM

discipline offending staff members was also justified. 14

Each of those remedial measures was selected to address the

specific shortcomings in Defendants’ accountability systems

that the district court identified, such as Defendants’

frequent failure to initiate investigations into alleged ADA

violations, and their inability to identify staff who repeatedly

violate class members’ rights. Addressing those failures will

help to reform the problematic staff culture of targeting

inmates with disabilities for abuse. And requiring

Defendants to “develop mechanisms” to end and prevent

retaliation against disabled inmates who report violations is

directly responsive to the district court’s finding that prison

staff retaliate against disabled inmates.

Defendants urge us to vacate portions of the district

court’s orders that they contend are redundant and thus

unnecessary. But “[p]rospective relief for institutions as

complex as prisons is a necessarily aggregate endeavor,

composed of multiple elements that work together to redress

violations of the law.” Schwarzenegger, 622 F.3d at 1070.

The district court was not required to take a piecemeal, wait-

and-see approach—for example, by first ordering additional

14

The original orders required Defendants to “ensure that officers

accused of serial violations of the ARP or ADA . . . are reassigned.” The

remedial plans that the district court ultimately approved clarify that

Defendants need not reassign officers automatically based on mere

accusations. Rather, the court approved a policy whereby the hiring

authority considers a range of factors—including the nature of the

allegation, strength of the evidence, and previous misconduct by the

officer—when deciding whether reassignment is appropriate. For the

reasons explained, see supra note 13, we consider the provision as it

appears in the final remedial plans for purposes of the need-narrowness-

intrusiveness inquiry. In its narrower form, that provision appropriately

addresses Defendants’ failure to discipline serial offenders adequately.

ARMSTRONG V. NEWSOM 29

surveillance cameras to see whether they were sufficient to

remedy the situation before also ordering body-worn

cameras. “What is important, and what the PLRA requires,

is a finding that the set of reforms being ordered . . . corrects

the violations of prisoners’ rights with the minimal impact

possible on defendants’ discretion over their policies and

procedures.” Id. at 1071.

In any event, many of the provisions that Defendants

contest as redundant serve distinct purposes. To return to the

same example, the district court reasonably found that body-

worn cameras were necessary, even considering the

requirement that CDCR install additional stationary

surveillance cameras. As one of Plaintiffs’ experts

explained, body-worn cameras can provide information that

stationary surveillance cameras cannot—including sound

and views into remote prison spaces—that will be useful in

investigating alleged misconduct by officers. That expert

also noted that the use of body-worn cameras in prisons has

been shown to result in fewer uses of force, particularly

when used in conjunction with stationary surveillance

cameras.

b.

The district court’s investigatory and disciplinary reform

measures also comply with the PLRA’s requirements that

injunctive relief be narrowly drawn and no more intrusive

than necessary. Arguably the most intrusive of the district

court’s remedial measures was the requirement that

Defendants conduct quarterly interviews of randomly

selected disabled inmates using the methodology and

interview questions that Defendants had utilized in

connection with the 2018 investigation of RJD. But as we

recognized in Armstrong v. Brown, such specificity is

30 ARMSTRONG V. NEWSOM

permissible where, as here, the district court was confronting

noncompliance with its prior, less intrusive, orders. 768

F.3d at 986. The district court included the quarterly

interview requirement to address Defendants’ failure, in

violation of prior court orders, to investigate and track staff

misconduct and to hold staff accountable for ADA

violations. Considering that history, the district court was

justified in concluding that more specific measures were

required to remedy violations of class members’ rights this

time around.

Defendants argue that the remedial measures in the Five

Prisons Order fail the narrowness requirement because the

order repeatedly refers to “disabled inmates,” rather than

simply “class members.” For example, the order requires

that all correctional officers “who may have any interactions

with disabled inmates” wear body cameras and requires

CDCR to “develop an electronic system for tracking all staff

misconduct incidents involving disabled inmates” at the Five

Prisons. But as we explained above, the violations that the

district court sought to remedy stemmed from defective

systems of accountability and a problematic culture whereby

staff targeted disabled inmates for abuse. It would not be

possible to cordon off Armstrong class members from other

disabled inmates for the purposes of establishing effective

accountability measures and reforming the staff culture at

the Five Prisons. And Defendants nowhere contend that the

ordered relief helps non-class members without also helping

class members. The district court therefore did not clearly

err in including all disabled inmates in the scope of the relief

ARMSTRONG V. NEWSOM 31

ordered. 15

2.

We turn now to the measures in the district court’s orders

focused on preventing officer misconduct directly. We

uphold those measures as to RJD, but we cannot affirm them

as to the Five Prisons on the current record.

a.

First, the district court ordered Defendants to develop a

plan to “more effectively monitor and control the use of

pepper spray” by staff at the prisons.

We affirm this measure with respect to RJD. The record

describes numerous incidents in which RJD staff improperly

pepper-sprayed class members—frequently in response to a

class member’s request for a reasonable accommodation or

in retaliation for a class member’s reporting staff

misconduct. In one incident recounted by the district court,

a group of officers tackled an inmate who had become upset

after an officer denied his request to be handcuffed in a way

that accommodated his disability. The inmate blacked out,

and the officers pepper-sprayed him while he was

unconscious. Plaintiffs’ experts, too, described various

incidents in which RJD staff improperly pepper-sprayed

class members. For example, after a wheelchair-bound

inmate told an officer he was going to report him for

unprofessional conduct because the officer called him a

15

Defendants briefly argue that the provision requiring information-

sharing with Plaintiffs’ counsel and the court expert improperly fails to

make exceptions for “applicable privileges.” But as Plaintiffs point out,

there are protective orders in place, and nothing in the orders prevents

Defendants from raising a privilege concern, should one ever arise.

32 ARMSTRONG V. NEWSOM

“retard,” the officer pepper-sprayed the inmate, threw him

from his wheelchair, and stomped on his back. Those and

other incidents support the district court’s finding that

reforms to RJD’s pepper-spray policy are necessary to

correct violations of class members’ rights at RJD. And the

measure itself is narrowly tailored and minimally intrusive

of prison operations—the district court merely ordered

Defendants to “more effectively monitor and control” the

use of pepper spray by staff, without dictating how

Defendants were to do so.

We vacate, however, the pepper-spray measure in the

Five Prisons Order. The evidence on which the district court

relied in finding that this measure was necessary—three

incidents of disabled inmates being pepper-sprayed—was

insufficient to justify the ordered relief. As Plaintiffs point

out, those incidents were not the only ones in the record

describing inmates being pepper-sprayed. But many of the

additional incidents were contested by declarations

submitted by Defendants, and the district court did not

resolve those factual disputes or determine whether the

additional uses of pepper spray were improper. We therefore

decline to consider those additional incidents as evidentiary

support for the district court’s finding that modifications to

the prisons’ pepper-spray policies were necessary to prevent

further violations of class members’ rights at the Five

Prisons. Cf. Schwarzenegger, 622 F.3d at 1073 (considering

only the evidence that the district court relied upon in

making its PLRA findings, despite the existence of further

evidence in the record). As a result, the incidents of pepper-

spray misuse on which the district court relied are not so

pervasive to support a finding of a culture of improper

pepper-spray use targeting inmates. Rather, the pepper-

spray evidence is “composed largely of single incidents that

ARMSTRONG V. NEWSOM 33

could be isolated.” Id. Accordingly, we conclude that the

district court abused its discretion by ordering Defendants to

reform their pepper-spray policies at the Five Prisons.

b.

Second, the district court ordered Defendants to

“significantly increase supervisory staff by posting

additional sergeants” on prison watches. 16 We hold that the

district court was justified in ordering such relief at RJD.

The 2018 “strike team” that CDCR sent to investigate

allegations of staff misconduct at RJD recommended such a

measure, explaining that paperwork demands leave

overworked supervisory staff with little time for active

supervision that would prevent staff misconduct. Even

Defendants’ expert made a similar observation, commenting

on the heavy load of the administrative duties associated

with supervisory positions at RJD and recommending that

CDCR add sergeants at RJD to compensate. We therefore

hold that, on this record, the district court did not err in

finding that additional staff at RJD were necessary to correct

violations of class members’ rights and that the measure was

sufficiently tailored.

But the record does not support an equivalent finding

with respect to the Five Prisons. The reports from both the

strike team and Defendants’ expert concerning overworked

supervisors were specific to RJD, and there were no

equivalent expert opinions about the Five Prisons. Although

16

The original orders required Defendants to post “additional sergeants

on all watches on all yards.” The final orders approved by the district

court, however, increase the sergeants only on some of the watches on

some of the yards. For the reasons described above, see supra note 13,

we consider the narrower provision for the purposes of the need-

narrowness-intrusiveness inquiry.

34 ARMSTRONG V. NEWSOM

the district court found that there was a “pervasive lack of

timely follow through” by prison staff on many allegations

of staff misconduct at the Five Prisons, the record does not

suggest—and the district court did not find—that the failure

stemmed from an insufficient quantity of supervisory staff.

We therefore conclude that the district court abused its

discretion by ordering Defendants to increase supervisory

staff at the Five Prisons.

V.

For the reasons set forth above, we affirm all portions of

the RJD Order. We also affirm all of the Five Prisons Order

except the provisions requiring Defendants to increase

supervisory staffing (Section 5(g)) and to modify pepper-

spray policies (Section 5(j)), which we vacate. 17

No. 20-16921 AFFIRMED. No. 21-15614

AFFIRMED in part, VACATED in part.

17

We address Defendants’ remaining arguments, challenging discovery

and evidentiary rulings the district court made in the process of

adjudicating the Five Prisons Motion, in an unpublished memorandum

disposition filed concurrently with this opinion.