Jamel Walker v. James H. Gomez Kingston W. Prunty R.R. Rath, Correctional Sergeant

RYMER, J.

dissenting.

I part company with the majority’s conclusion that Calipatria State Prison’s (CSP) critical worker listings ran afoul of Walker’s rights to equal protection. We measure an equal protection challenge as we would any other constitutional challenge in the prison environment under Turner v. Safley, 482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987). 1 Applying the *979 Turner factors leads me to conclude that the critical worker listings comport with constitutional requirements, even though they were race-based, because the listings were a rational, temporary response by an otherwise fully integrated prison to a series of extremely violent, race-based incidents. Accordingly, I would affirm.

There is no question that equal protection does not stop at the prison gate. See Wolff v. McDonnell, 418 U.S. 539, 556 , 94 S.Ct. 2963 , 41 L.Ed.2d 935 (1974); Lee v. Washington, 390 U.S. 333 , 88 S.Ct. 994 , 19 L.Ed.2d 1212 (1968). However, unlike normal equal protection analysis, prison policies are not subject to strict scrutiny and no compelling government interest need be shown. “Subjecting the day-today judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.” Turner, 482 U.S. at 89 , 107 S.Ct. 2254 . Instead, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 85 , 107 S.Ct. 2254 .

Under Turner, rather than the administrators bearing the burden of proving their policy constitutional, the inmate bears the burden of proving that prison officials acted outside their broad discretion. See Overton v. Bazzetta, 539 U.S. 126, 132 , 123 S.Ct. 2162 , 156 L.Ed.2d 162 (2003); Shaw v. Murphy, 532 U.S. 223, 232 , 121 S.Ct. 1475 , 149 L.Ed.2d 420 (2001). Walker has not done this.

There is no dispute that CSP was plagued with a number of violent incidents over a period of several months. They started on May 2, 1994, with a fight between Hispanic and African-American inmates. To ensure safety of inmates and staff, all inmates were confined to their cells except for those whose work assignments were considered critical. Hispanic and African-American inmates were not included on the critical workers’ list to prevent weapons from being passed between members of either side, to prevent the making of plans to continue the fighting, and to calm things down. A full investigation was conducted that included a search of all facilities and surrounding areas for inmate-manufactured weapons. Walker was not on the critical workers list but was allowed to return to work at the Facility “A” law library on June 1, 1994.

On November 28 a group of African-American inmates attacked eleven Hispanic inmates in the Facility “D” yard. Six Hispanic inmates received stab wounds or lacerations. The inmates continued to fight after prison officials ordered them to stop and fired three warning shots. Six more warning shots were fired to quell the disturbance. As a result of this incident, the warden ordered a lockdown of all inmates, declared a state of emergency that included a prison-wide search for weapons, and developed another critical workers’ list that excluded African-American and Hispanic inmates. On December 9, 1994, while the lockdown was still in effect, an Hispanic inmate (who was on his way to shower) stabbed an African-American inmate (who was using the telephone). The *980 state of emergency was terminated December 15.

A staff member was assaulted on May 4 by an African-American inmate and on May 5, 1995, five African-American inmates attacked staff members in the Facility “A” program office with inmate-manufactured weapons. Four staff members received multiple stab wounds and four others sustained injuries. Pending an investigation, Warden Prunty suspended all activities except family visits, ordered a search of the prison for weapons, and allowed only critical workers who were not African-American to report to their jobs. The investigation revealed that the May 5 attack was instigated by the “East Coast Crips,” an African-American prison gang. Walker was added to the critical workers’ list on May 18, 1995 and returned to work at the law library.

On June 18, 1995, two African-American members of the East Coast Crips stabbed two staff members in the Facility “B” dining hall. Warden Prunty ordered another lockdown, a search for weapons in common areas such as the law library, and a review of the central files of all African-American inmates to identify members of the East Coast Crips and their associates. The warden allowed African-American inmates to be placed on the critical workers’ list after the central file review. Thirty-six inmates identified with the “East Coast Crips” were transferred to Corcoran State Prison on June 21. Walker was placed on the critical workers’ list the same day and reported for work on June 22. The state of emergency ended on September 12.

On October 31, 1995, an African-American inmate stabbed a staff member. Warden Prunty ordered a temporary suspension of all programs for the safety of inmates and staff. A search and investigation were conducted, after which African-Americans who had not been included on the critical workers’ list following this incident were permitted to go back to work.

Against this backdrop, which unfortunately is one of racial unrest, it is clear to me that the prison’s policy of not considering Walker, as an African-American, as a critical worker is reasonably related to the legitimate penological interests of prison security and safety.

Valid, rational connection. .Restricting the critical workers’ list for the limited period following a disturbance until an investigation could be completed served the prison’s interest in maintaining order and assuring safety. This- objective was legitimate and neutral, although the decision to keep African-American inmates, (and after the first two incidents, Hispanic inmates) off of the list during the lockdown was obviously related to their ethnicity. To this extent it was not neutral and was discriminatory. However, “prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.” Lee, 390 U.S. at 334 , 88 S.Ct. 994 (three justice concurrence); Cruz v. Beto, 405 U.S. 319, 321 , 92 S.Ct. 1079 , 31 L.Ed.2d 263 (1972) (noting that racial segregation is unconstitutional outside and inside prisons “save for ‘the necessities of prison security and discipline’ ” as Lee held).

Walker argues that a triable issue exists because of evidence that the incidents were gang-related and not racially-motivated. The fact remains, however, that the East Coast Crips were an African-American gang, and African-Americans were involved in the violent incidents. It was not irrational (though -it may have been uhnecessary) to keep all African-American, as well as all other inmates who had non-critical jobs, loeked-down until ev *981 erything — including gang membership or association — got sorted out. Inmates involved in the incidents had used inmate-manufactured weapons, and common sense suggests that such weapons could be exchanged in common areas such as the law library. So could messages, threats, and the like.

Walker also maintains that it was particularly nonsensical to keep him from his job in light of the fact that African-American prisoners with court deadlines were allowed access to the library. He points out that a single vocation instructor supervised an average of twenty-two African-American library users per day without incident. However, this makes the officials’ decision no'less rational. Inmates using the library may have been there one at a time. In any event, allowing inmates to use the law library even during an emergency serves the important function of maintaining their access to the courts, a function not served by allowing Walker to work in the library. Further, officials could well conclude that supervising an inmate who is using the library is easier than supervising an inmate who is working in the library, because an inmate-librarian may have more freedom of movement and interaction with prisoners using the library and, therefore, may pose an increased risk of passing weapons or messages.

Alternative means to assert the right. Walker could not pursue any job opportunity during the lockdown without being on the critical workers’ list, but he had no right to work or to work in the library to begin with. The question is not whether the prison provided reasonable alternatives from using race as a factor for the critical workers’ list, but whether it provided reasonable alternatives from racial discrimination in general. The work restrictions were temporary in nature and only in place for a limited period of time when imposed. Each critical workers’ list directly followed a serious racial incident. Nothing about the character or duration of the restriction suggests that prison officials overreacted to the violence with which they, and all inmates, were confronted. Walker was able to return to his job once the government’s interest in safety and security was satisfied. In these circumstances, even assuming that disparate treatment impermissibly occurred in the critical workers’ listing, none occurred with respect to Walker’s primary right — to be housed at a fully integrated facility.

Impact on guards, inmates and prison resources. There is no dispute that continued, or renewed, violence posed a significant risk to the safety of inmates and staff. Walker made no showing otherwise. Nor did he show that eliminating, or changing, the critical workers’ policy would have no harmful impact.

Reasonable alternatives. Walker suggests that the prison could have used a screening process to identify those African-American inmates who were gang members or associates instead of excluding all African-American inmates from critical job assignments. Perhaps so. However, it is not self-evident that any such screening process would have worked, or would have worked effectively enough, quickly enough, to have done Walker any good. 2 At least Walker makes no such showing. Absent evidence of ready alternatives that would have come at de minimus cost to valid, penological interests, I cannot say *982 that the prison’s decision falls short of the reasonable relationship test.

In sum, the administrators’ response was not unreasonable. It was a temporary fix that I believe was within the discretion of prison officials to impose given the nature of the incidents that precipitated the emergency situations, and the need to maintain critical operations at the facility. The critical work list was terminated once the facility had been searched, an investigation had been conducted, and order appeared to have been restored. Beyond this, we are not “to second guess the details of prison management.” Bradley v. Hall, 64 F.3d 1276, 1280 (9th Cir.1995). Accordingly, I conclude that the critical workers’ lists, although race-based, were reasonably related to the government’s legitimate interest in prison safety. I would therefore affirm on Walker’s equal protection claim.

. Turner instructs courts to consider (1) whether there is a "valid, rational connection *979 between the prison regulation and the legitimate governmental interest put forward to justify it;” (2) "whether there are alternative means of exercising the right that remain open to the prison inmates;” (3) "the impact accommodation of the asserted constitutional right will have on guards and inmates, and on the allocation of prison resources generally;” and (4) "the absence of ready alternatives” which is evidence of the reasonableness of a prison regulation. 482 U.S. at 89-90 , 107 S.Ct. 2254 .

. Walker was only off work for thirteen days after the May 5 incident, which investigation revealed had been instigated by East Coast Crips, and for three days after the June 18 incident. By June 23, thirty-six East Coast Crips members had been identified and transferred.