Todd Ashker v. Gavin Newsom

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD LEWIS ASHKER; DANNY Nos. 21-15839

TROXELL; GEORGE RUIZ; 22-15345

JEFFREY ANTHONY FRANKLIN;

GEORGE FRANCO; GABRIEL D.C. No. 4:09-

RALPH REYES; RICHARD K. cv-05796-CW

JOHNSON; PAUL A. REDD, Jr.;

LUIS ESQUIVEL; RONNIE N.

DEWBERRY, OPINION

Plaintiffs-Appellees,

v.

GAVIN NEWSOM, Governor of the

State of California; MATTHEW

CATE; ANTHONY CHAUS, Chief,

Office of Correctional Safety, CDCR;

GREG LEWIS, Warden,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, District Judge, Presiding

Argued and Submitted May 18, 2023

SD Carter & Keep U.S. Courthouse

2 ASHKER V. NEWSOM

Filed August 24, 2023

Before: J. Clifford Wallace and Ryan D. Nelson, Circuit

Judges, and James S. Gwin, * District Judge.

Opinion by Judge R. Nelson;

Concurrence by Judge R. Nelson

SUMMARY **

Prisoner Civil Rights

The panel (1) reversed the district court’s order granting

inmates a twelve-month extension of a 2015 settlement

agreement in which the State of California agreed to stop

housing inmates in solitary confinement for long-term or

indefinite periods based on gang affiliation; and (2) vacated

on jurisdictional grounds the district court’s order granting

inmates a second twelve-month extension of the settlement

agreement, and dismissed the appeal from that order as

moot.

Pursuant to the 2015 settlement agreement, the

California Department of Corrections and Rehabilitation and

state officials (collectively “CDCR”) agreed to implement

various reforms. The inmates’ counsel would monitor

compliance for twenty-four months and could seek a twelve-

*

The Honorable James S. Gwin, United States District Judge for the

Northern District of Ohio, 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.

ASHKER V. NEWSOM 3

month extension if the inmates demonstrated a continuing

constitutional violation that was either alleged in their

complaint or resulted from the settlement agreement’s

reforms.

The panel reversed the district court’s order granting the

first twelve-month extension of the settlement

agreement. First, the panel held that there was no basis for

extending the agreement based on the inmates’ claim that the

CDCR regularly mischaracterizes the confidential

information used in disciplinary hearings and fails to verify

the reliability of that information. The claim was not alleged

in the inmates’ complaint, CDCR’s alleged misuse of

confidential information was not caused by the agreement’s

reforms, and plaintiffs failed to demonstrate current and

ongoing systemic Fourteenth Amendment due process

violations arising from CDCR’s confidential information

disclosures and reliability determinations.

Next, the panel held that there was no basis for extending

the agreement based on the inmates’ claim that CDCR

unconstitutionally validates inmates as gang affiliates and

fails to tell the parole board that old gang validations are

flawed or unreliable. The claim was not included in, or

sufficiently related to, the complaint. Moreover, even if the

prior validation process and resulting validations were

deficient, an extension was not justified because CDCR had

no reason to doubt the reliability of the validations and did

not misrepresent or omit information to the parole board

deliberately or with reckless disregard for the truth.

Finally, the panel held that there was no basis for

extending the agreement based on the inmates’ claim that

CDCR violates due process by placing inmates with safety

concerns in the Restrictive Custody General Population Unit

4 ASHKER V. NEWSOM

(“RCGP”). The inmates do not have a liberty interest in

avoiding RCGP placement, which does not impose an

atypical and significant hardship in relation to the ordinary

incidents of prison life. Moreover, CDCR employed

constitutionally sufficient procedural protections in effecting

the placements.

Because the first twelve-month extension of the

settlement agreement was improper, the district court’s

jurisdiction over the matter terminated when the agreement’s

initial twenty-four-month monitoring period ended. The

district court therefore lacked jurisdiction to order the second

twelve-month extension of the settlement agreement. The

panel vacated the district court’s second extension order and

dismissed the appeal from that order as moot.

Concurring, Judge R. Nelson, joined by Judge Gwin,

noted that this court has not definitively resolved what the

proper baseline is for measuring what constitutes an atypical

and significant hardship in evaluating whether inmates have

a liberty interest in avoiding certain conditions of

confinement. In his view, the conditions of administrative

segregation or protective custody are the proper baseline

comparators when determining whether a challenged prison

condition is atypical and significant.

COUNSEL

Sarah M. Brattin (argued), Deputy Attorney General;

Monica N. Anderson, Senior Assistant Attorney General;

Rob Bonta, California Attorney General; California

Attorney General’s Office, Sacramento, California; Jeffrey

T. Fisher, and Neah Huynh, Supervising Deputy Attorneys

ASHKER V. NEWSOM 5

General; Cassandra J. Shryock (argued), Deputy Attorney

General; California Attorney General’s Office, San

Francisco, California; for Defendants-Appellants.

Jules Lobel (argued), Pittsburgh, Pennsylvania; Carmen E.

Bremer (argued), Bremer Law Group PLLC, Seattle,

Washington; Rachel A. Meeropol, American Civil Liberties

Union, Criminal Law Reform Project, New York, New

York; Samuel Miller, Center for Constitutional Rights, New

York, New York; Charles F.A. Carbone, Law Offices of

Charles Carbone, San Francisco, California; Matthew D.

Strugar, Law Office of Matthew Strugar, Los Angeles,

California; Anne M. Cappella, Weil Gotshal & Manges LLP,

Redwood Shores, California; Anne Butterfield Weills,

Siegel Yee & Brunner, Oakland, California; Caitlin Sandley,

Center for Constitutional Rights, Birmingham, Alabama;

Baher Azmy, Center for Constitutional Rights, New York,

New York; for Plaintiffs-Appellees.

Donald Specter, Margot Mendelson, and Patrick Booth,

Prison Law Office, Berkeley, California, for Amici Curiae

Former Corrections Officials.

Paula Mitchell, The Project for the Innocent at Loyola Law

School, Loyola Law School, Los Angeles, California; Linda

Starr, The Northern California Innocence Project, Santa

Clara University School of Law, Santa Clara, California;

Anton Robinson and Faith Barksdale, The Innocence Project

Inc., New York, New York; Alexander Simpson, The

California Innocence Project, California Western School of

Law, San Diego, California; for Amici Curiae The California

Innocence Project, The Innocence Project, The Northern

California Innocence Project, and The Project for the

Innocent at Loyola Law School.

6 ASHKER V. NEWSOM

OPINION

R. NELSON, Circuit Judge:

A settlement agreement generally ends a legal dispute.

Here, it was just the beginning. In August 2015, the State of

California settled a dispute with a plaintiff class of inmates

over alleged constitutional violations. Eight years later, the

dispute continues.

In settlement, the State agreed to stop housing inmates in

solitary confinement for long-term or indefinite periods

based on gang affiliation. The inmates’ counsel would

monitor the state’s compliance for two years. The settlement

agreement and monitoring period could be extended for

twelve months if the inmates demonstrated continuing

constitutional violations that were either alleged in their

complaint or resulted from the agreement’s reforms.

The inmates twice successfully extended the settlement

agreement before the district court. We are tasked with

determining whether the settlement agreement was properly

extended based on the alleged constitutional violations. For

the reasons below, we reverse in part, vacate in part, and

dismiss in part the district court’s extensions of the

settlement agreement.

I

Nearly fourteen years ago, California inmates Todd

Ashker and Danny Troxell filed a pro se action challenging

their conditions of confinement in the Pelican Bay solitary

housing facility. They ultimately secured counsel and

converted their action into a putative class action with other

long-term inmates incarcerated in Security Housing Units

(“SHU”) and living in similar conditions. The plaintiff class

ASHKER V. NEWSOM 7

of California inmates (“Inmates”) sued the California

Department of Corrections and Rehabilitation, the Governor

of California, and other state correctional officials

(collectively, “CDCR”). The Inmates alleged violations of

the Eighth Amendment and the Fourteenth Amendment Due

Process Clause based on CDCR’s practice of housing

inmates in SHU based solely on “gang validation”—the

prison’s determination that an inmate is affiliated with a

prison gang.

The parties ultimately settled the action in a written

settlement agreement (“Settlement Agreement”). Under the

Settlement Agreement, CDCR agreed to implement various

reforms within Pelican Bay and other CDCR SHU facilities.

Those reforms were chiefly intended to end the practice of

SHU placement based on gang validation alone, eliminate

indeterminate SHU sentences, reevaluate the placement of

inmates currently serving indeterminate SHU sentences

based on gang validation, and implement related reforms.

A

Several of the Settlement Agreement’s reforms are

relevant to this appeal. For instance, rather than place

inmates in SHU based on gang validation status alone, an

inmate can now be housed there only if found guilty of a

SHU-eligible offense in a disciplinary hearing. The

Settlement Agreement also states that CDCR must continue

adhering to existing state regulations about the use of

confidential information in disciplinary proceedings and

train staff who use that information. And CDCR was

required to produce documents relating to determinations

about whether class members were guilty of SHU-eligible

offenses, including confidential information.

8 ASHKER V. NEWSOM

The Settlement Agreement also created the Restrictive

Custody General Population Unit (“RCGP”), designed to

house inmates released from SHU under the Settlement

Agreement who face threats to their safety. The RCGP is

designed to increase social interaction, including educational

opportunities, out-of-cell time in small group yards,

religious services, job assignments, leisure time activity

groups, and contact visits from family members—all

without the use of mechanical restraints.

CDCR must also regularly review inmates’ RCGP

placement. The Institution Classification Committee

(“ICC”) reviews the placement of inmates every 180 days.

If the ICC determines that an inmate no longer faces a threat

to his safety, it refers the inmate to the Departmental Review

Board (“DRB”) for review. In the DRB hearing, an inmate

is aided by a staff assistant in presenting his case.

The parties also agreed that the Inmates’ counsel (under

the district court’s supervision) would monitor CDCR’s

compliance with the Settlement Agreement for twenty-four

months. During that time, CDCR had to produce certain

documents, and the Inmates’ counsel collected attorney’s

fees from CDCR for monitoring and enforcing CDCR’s

compliance. The Inmates can extend the Settlement

Agreement for twelve months if they establish by a

preponderance of the evidence a “current and ongoing

systemic” constitutional violation “as alleged in” either the

Inmates’ Second Amended Complaint or Supplemental

Complaint (collectively, the “Complaint”) or “as a result of

CDCR’s reforms to its Step Down Program or the SHU

ASHKER V. NEWSOM 9

policies contemplated by this Agreement.” 1 The Settlement

Agreement provides that if the Inmates fail to make this

showing, the “Agreement and the Court’s jurisdiction over

this matter shall automatically terminate, and the case shall

be dismissed.”

B

The district court approved the Settlement Agreement,

and the twenty-four-month monitoring period commenced.

Once the monitoring period concluded, the Inmates invoked

the extension provision based on three alleged violations of

the Fourteenth Amendment Due Process Clause. The

magistrate judge recommended granting the Inmates’

extension motion, relying on two of the alleged violations.2

Considering the magistrate judge’s recommendation, the

district court granted the motion but relied on all three of the

Inmates’ alleged due process violations. The district court

also permitted the Inmates to move for a second extension of

the Settlement Agreement. CDCR appealed.

After the first twelve-month extension, the Inmates

sought a second extension of the monitoring period based on

nearly identical allegations of due process violations. This

1

The “Step Down Program” is an incentive-based, multi-step process

designed to afford validated inmates a way to transfer into the general

population.

2

The magistrate judge initially granted the motion outright. We held

that the magistrate judge’s order was not final and dismissed the appeal,

allowing the district court on remand to “constru[e] the magistrate

judge’s extension order ‘as a report and recommendation and afford the

parties reasonable time to file objections.’” Ashker v. Newsom, 968 F.3d

975, 985 (9th Cir. 2020) (Ashker I) (quoting Allen v. Meyer, 755 F.3d

866, 869 (9th Cir. 2014)). This appeal follows the district court’s order

on remand.

10 ASHKER V. NEWSOM

time, the magistrate judge recommended denying the

motion. But the district court disagreed and granted the

second extension as well. CDCR again appealed.

The two appeals challenging the district court’s

extension orders were consolidated for argument. We

address each appeal below.

II

We have subject-matter jurisdiction over district courts’

final orders under 28 U.S.C. § 1291. We review the district

court’s enforcement of a settlement agreement for abuse of

discretion, Parsons v. Ryan, 949 F.3d 443, 453 (9th Cir.

2020), but we review the interpretation of a settlement

agreement de novo, Ashker v. Newsom, 968 F.3d 939, 944

(9th Cir. 2020) (Ashker II). “We defer to any factual findings

made by the district court in interpreting the settlement

agreement unless they are clearly erroneous.” Parsons, 949

F.3d at 453 (quoting City of Emeryville v. Robinson, 621

F.3d 1251, 1261 (9th Cir. 2010)) (alteration adopted).

III

We first address CDCR’s appeal of the district court’s

first extension order. Under paragraph 41 of the Settlement

Agreement, the Inmates must satisfy two requirements for

an extension. They must demonstrate by a preponderance of

the evidence (1) a current and ongoing systemic

constitutional violation (2) either alleged in the Complaint or

resulting from the Settlement Agreement’s reforms to its

Step Down Program or SHU policies. 3

3

Paragraph 41 of the Settlement Agreement reads:

Plaintiffs shall have thirty days after the end of the

twenty-four-month period to seek an extension, not to

ASHKER V. NEWSOM 11

The Inmates raise three claims, each independently

sufficient to extend the Settlement Agreement if successful.

The “Confidential Information Claim” alleges that CDCR

regularly mischaracterized the confidential information used

in disciplinary hearings, and failed to verify the reliability of

that information. The “Parole Claim” alleges that CDCR

unconstitutionally validated inmates as gang affiliates and

failed to tell the parole board that old gang validations were

constitutionally suspect. The “RCGP Claim” alleges that

CDCR’s notice and periodic reviews provided inadequate

due process for inmates placed in the RCGP. We must first

determine whether each claim is alleged in the Complaint or

results from the Settlement Agreement’s SHU or Step Down

Program reforms. Next, because all three claims allege

violations of the Fourteenth Amendment Due Process

exceed twelve months, of this Agreement and the

Court’s jurisdiction over this matter by presenting

evidence that demonstrates by a preponderance of the

evidence that current and ongoing systemic violations

of the Eighth Amendment or the Due Process Clause

of the Fourteenth Amendment of the United States

Constitution exist as alleged in Plaintiffs’ Second

Amended Complaint or Supplemental Complaint or as

a result of CDCR’s reforms to its Step Down Program

or the SHU policies contemplated by this Agreement.

Defendants shall have an opportunity to respond to

any such evidence presented to the Court and to

present their own evidence. If Plaintiffs do not file a

motion to extend court jurisdiction within the period

noted above, or if the evidence presented fails to

satisfy their burden of proof, this Agreement and the

Court’s jurisdiction over this matter shall

automatically terminate, and the case shall be

dismissed.

12 ASHKER V. NEWSOM

Clause, we must determine whether each claim alleges an

ongoing and systemic due process violation.

A

We begin with the Inmates’ Confidential Information

Claim. When prison officials learn information about an

inmate from a confidential source, under CDCR regulations,

that information is documented in a confidential

memorandum not disclosed to the inmate. Cal. Code Regs.

tit. 15 § 3321; Ashker v. Newsom, No. 09-cv-05796 CW,

2021 WL 5316414, *16 (N.D. Cal. Apr. 9, 2021) (Ashker

III). If that confidential information is subsequently used in

a disciplinary proceeding, prison officials provide the inmate

with a confidential disclosure form, which summarizes the

information without revealing anything sensitive or

confidential, such as the informant’s identity. Cal. Code

Regs. tit. 15 § 3321; Ashker III, 2021 WL 5316414, at *16.

The Inmates argue that CDCR violates inmates’ due

process rights by misrepresenting the evidence in

confidential disclosure forms as more inculpatory and by

failing to verify the confidential information’s reliability.

The district court ruled that the Confidential Information

Claim resulted from the Settlement Agreement’s SHU or

Step Down Program reforms, and is thus a proper basis for

extension. Ashker III, 2021 WL 5316414, at *14. The

district court then determined that CDCR systemically

denies inmates due process. Id. at *19–20. We disagree with

the district court on both counts.

1

We interpret the Settlement Agreement de novo to

determine whether it authorizes extension based on the

Confidential Information Claim. See Ashker II, 968 F.3d at

ASHKER V. NEWSOM 13

944. In doing so we apply state law—here, the law of

California as provided in the Settlement Agreement. See

Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d

1083, 1089 (9th Cir. 2015).

In California, contract law applies to settlement

agreements. Ashker II, 968 F.3d at 944. “The fundamental

goal of contractual interpretation is to give effect to the

mutual intention of the parties.” California v. Continental

Ins., 281 P.3d 1000, 1004 (Cal. 2012) (citations omitted).

“Such intent is to be inferred, if possible, solely from the

written provisions of the contract.” Id. (citations omitted).

“The clear and explicit meaning of these provisions,

interpreted in their ordinary and popular sense, unless used

by the parties in a technical sense or a special meaning is

given to them by usage, controls judicial interpretation.” Id.

(cleaned up).

The Inmates contend that the Confidential Information

Claim falls within the extension provision both because it is

alleged in the Complaint and because it results from CDCR’s

reforms to its Step Down Program or SHU policies. We

disagree.

First, the Inmates’ Complaint does not allege the same

due process violation as the Confidential Information Claim.

The Inmates mainly rely on paragraph 202 of the second

amended complaint, which alleges that CDCR is

violating plaintiffs’ due process rights by

retaining plaintiffs and the class in conditions

that amount to an atypical and significant

hardship without legitimate penological

interest, as this detention occurs without

reliable evidence that plaintiffs and the class

14 ASHKER V. NEWSOM

are committing any acts on behalf of a prison

gang and are thus active gang members.

The Complaint also addresses how confidential information

is used for validating gang membership and alleges that

CDCR unlawfully places inmates in SHU based on gang

validation status alone, that is, without proof that an inmate

committed any overt SHU-eligible act.

By contrast, the Confidential Information Claim alleges

that CDCR violates due process by inadequately disclosing

confidential information and failing to verify its reliability in

inmate disciplinary hearings. This claim is necessarily

distinct because the Complaint contends that CDCR failed

to conduct disciplinary hearings at all, instead relying on

gang validation status to place inmates in SHU. The

Complaint does not allege that confidential information is

being misrepresented to inmates.

Second, the Confidential Information Claim is not “a

result of” the Settlement Agreement’s SHU or Step Down

Program reforms. The district court concluded otherwise by

emphasizing paragraph 34 of the Settlement Agreement,

Ashker III, 2021 WL 5316414, at *13–14, which requires

CDCR to “adhere to the standards for the consideration of

and reliance on confidential information set forth in” the

California Code of Regulations and “implement appropriate

training for impacted staff members” to “ensure that the

confidential information used against inmates is accurate.”

The district court also highlighted paragraph 37, which

requires CDCR to produce a sample of documents, including

confidential information, that CDCR relied on to find

inmates guilty of SHU offenses. Id. The Inmates add that

their Confidential Information Claim also results from the

Settlement Agreement’s reform that inmates must now go

ASHKER V. NEWSOM 15

through the disciplinary process to be placed in SHU rather

than being placed based on gang validation alone.

Applying California contract law to interpret the

Settlement Agreement, Ashker II, 968 F.3d at 944, we give

the terms their “clear and explicit meaning . . . interpreted in

their ordinary and popular sense,” Continental Ins., 281 P.3d

at 1004 (internal quotation marks and citation omitted). In a

statutory context, the Supreme Court of California held that

“[t]he phrase ‘as a result of’ in its plain and ordinary sense

means ‘caused by’ and requires a showing of a causal

connection or reliance.” Kwikset Corp. v. Superior Ct., 246

P.3d 877, 887 (Cal. 2011) (citations omitted); accord Ass’n

de Eleveurs de Canards et d’Oies du Quebec v. Harris, 729

F.3d 937, 945 (9th Cir. 2013); see also Paroline v. United

States, 572 U.S. 434, 445 (2014) (“The words ‘as a result of’

plainly suggest causation.”). We conclude that the phrase

“as a result of” in the Settlement Agreement has the same

ordinary and popular meaning.

Under the Settlement Agreement’s extension provision,

the Inmates bear the burden to show by a preponderance of

the evidence that their alleged due process violation is a

proper basis for extension. They must produce evidence

showing that it is more likely than not, Conservatorship of

O.B., 470 P.3d 41, 44 (Cal. 2020), that CDCR’s alleged

confidential information misuse was caused by the

Settlement Agreement’s SHU or Step Down Program

reforms, see Kwikset Corp., 246 P.3d at 887.

As discussed, paragraphs 34 and 37 of the Settlement

Agreement require CDCR to continue adhering to state

regulations concerning confidential information use,

implement training, and produce documents containing

confidential information that CDCR relied on in disciplinary

16 ASHKER V. NEWSOM

hearings. CDCR correctly points out that adhering to state

regulations is not a “reform” because CDCR has always

been subject to these regulations. See Reform, Merriam-

Webster, https://www.merriam-

webster.com/dictionary/reform (last visited July 27, 2023)

(listing definitions that require some form of change from

previous practice). Implementing training and producing

documents are new practices required by the Settlement

Agreement (and therefore reforms), but they are not reforms

to CDCR’s “Step Down Program or the SHU policies

contemplated by” the Settlement Agreement because they

effected no change—and so no reform—to the Step Down

Program or SHU policies.

That is not to say the Inmates had no recourse if CDCR

failed to meet these obligations. Under the “Compliance”

heading of the Settlement Agreement, paragraph 53

authorized the Inmates to seek enforcement in the district

court if CDCR did not substantially comply with the terms

of the Settlement Agreement. Paragraph 53 encompasses

noncompliance insufficient to justify extending the

Settlement Agreement. This includes CDCR’s obligations

to abide by state regulations, implement training, and

produce documents. Indeed, the Inmates moved for several

enforcement orders during the initial twenty-four-month

monitoring period.

Our conclusion does not make the provisions requiring

CDCR to produce confidential documents meaningless, as

the district court suggested. See Ashker III, 2021 WL

5316414, at *14 (concluding that CDCR’s interpretation

“gives no effect to [the document production] provisions”).

For one thing, our task is to determine whether the alleged

constitutional violation was caused by the Settlement

Agreement’s SHU or Step Down Program reforms—not to

ASHKER V. NEWSOM 17

speculate about why the parties included certain provisions.

Regardless, the document production obligations are not

meaningless simply because they do not support extending

the Settlement Agreement on this basis. The Settlement

Agreement includes several provisions and obligations that

are not “reforms to [CDCR’s] Step Down Program or the

SHU policies contemplated by” the Settlement Agreement.

And the Inmates could have enforced CDCR’s compliance

with those obligations under paragraph 53 during the twenty-

four-month period. But the parties agreed to a narrower set

of grounds for extending the Settlement Agreement. It is no

surprise that the grounds for extending the Settlement

Agreement are narrower because extension is stronger

medicine than enforcement during the initial monitoring

period.

Even if the obligations in paragraphs 34 and 37 could be

grounds for an extension, the Inmates’ alleged constitutional

violation in the Confidential Information Claim was not “as

a result of” or “caused by” these reforms. See Kwikset Corp.,

246 P.3d at 887. The same is true for the shift in SHU

placement criteria from gang validation to disciplinary

hearings—undisputedly a reform to CDCR’s Step Down

Program or SHU policies. The Confidential Information

Claim is that CDCR misrepresents confidential information

in disciplinary proceedings and fails to verify that

information’s reliability. But the Inmates have not proven

by a preponderance of the evidence that adhering to state

regulations, implementing training, producing documents,

or changing SHU placement criteria from gang validation to

disciplinary hearings caused CDCR’s alleged misuse of

confidential information. See id. Nothing in the record

suggests that CDCR changed the way it handles confidential

information because of the Settlement Agreement.

18 ASHKER V. NEWSOM

The Inmates’ position that the Confidential Information

Claim results from the Settlement Agreement’s reforms

stems from an overly broad reading of the extension

provision and would stretch that provision to encompass

more constitutional violations than its text reaches. We must

interpret the Settlement Agreement according to its terms.

See Continental Ins., 281 P.3d at 1004 (the parties’ intent “is

to be inferred, if possible, solely from the written provisions

of the contract” (citations omitted)). The Settlement

Agreement carefully limits extension to constitutional

violations that are alleged in the Complaint or “as a result

of” the Settlement Agreement’s SHU or Step Down Program

reforms. And the plain meaning of “as a result of” is “caused

by.” Kwikset Corp., 246 P.3d at 887. Because CDCR’s

alleged misuse of confidential information was not caused

by the Settlement Agreement’s reforms, the Confidential

Information Claim is an improper basis for extending the

Settlement Agreement.

2

Regardless, the Confidential Information Claim still

would not justify extending the Settlement Agreement

because it does not demonstrate a current and ongoing

systemic due process violation. The Inmates’ Confidential

Information Claim alleges two categories of misconduct.

The district court held that, regarding both insufficient

confidential information disclosures and the lack of

reliability determinations, the Inmates had presented

evidence of an ongoing and systemic due process violation.

Ashker III, 2021 WL 5316414, at *15–20.

ASHKER V. NEWSOM 19

Inmates’ due process rights in disciplinary hearings are

governed by Wolff v. McDonnell, 418 U.S. 539 (1974). 4

Among other requirements, Wolff requires that an inmate

facing a disciplinary hearing be provided written notice of

the charges and the ability to call witnesses and present

documentary evidence in his defense. Id. at 564–66. We

have explained that Wolff’s requirement that an inmate be

allowed to present evidence in his defense means that the

inmate “must also have the right to access evidence that he

might use in preparing or presenting his defense.” Melnik v.

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

a

As for inaccurate disclosures, the district court held that

CDCR violated due process by (1) failing to provide inmates

“with adequate notice of the charges and evidence against

them” and (2) failing “to disclose non-sensitive information

or evidence that class members could have used to mount a

defense at their disciplinary hearings.” Ashker III, 2021 WL

5316414, at *17–18. These holdings rested on the district

court’s factual findings that “disclosures provided to class

members contained inaccurate information or failed to

disclose relevant and non-sensitive exculpatory information

derived from confidential sources.” Id. at *18. In “many

instances,” the district court found, the “disclosure forms

attributed to confidential informants statements that the

confidential informants did not actually make.” Id. at *16.

4

The parties do not dispute that the Inmates have a liberty interest in

avoiding SHU placement. See Zimmerlee v. Keeney, 831 F.2d 183, 186

(9th Cir. 1987) (per curiam) (“The parties do not discuss and we assume

that [the plaintiff] has a protected liberty interest in not being subject to

disciplinary segregation.”).

20 ASHKER V. NEWSOM

The district court provided three examples that it found were

“representative of the evidence” presented. Id. at *16–17.

We review the district court’s factual findings for clear

error. Parsons, 949 F.3d at 453. “A factual finding is clearly

erroneous if it ‘is illogical, implausible, or without support

in inferences that may be drawn from the record.’”

Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 1133

(9th Cir. 2021) (quoting United States v. Hinkson, 585 F.3d

1247, 1263 (9th Cir. 2009) (en banc)).

i

We start with the district court’s holding that CDCR’s

inaccurate disclosures of confidential information violate

Wolff’s notice requirement. See 418 U.S. at 564. When

determining the extent of notice required, we must

“remember ‘the legitimate institutional needs of assuring the

safety of inmates and prisoners’ and avoid ‘burdensome

administrative requirements that might be susceptible to

manipulation.’” Zimmerlee, 831 F.2d at 188 (quoting

Superintendent v. Hill, 472 U.S. 445, 454–55 (1985)).

Our circuit has not expounded on the specificity of notice

required under Wolff. See id. (“Wolff provides little guidance

as to the specificity of notice necessary to satisfy due

process.”). Notice satisfying due process, the Second Circuit

held, “need not painstakingly detail all facts relevant to the

date, place, and manner of charged inmate misconduct; it

must simply permit a reasonable person to understand what

conduct is at issue so that he may identify relevant evidence

and present a defense.” Elder v. McCarthy, 967 F.3d 113,

128 (2d Cir. 2020) (cleaned up).

Again, the district court identified three examples

“which are representative of the evidence that [the Inmates]

ASHKER V. NEWSOM 21

have presented” involving discrepancies between the

confidential memoranda and the disclosure forms given to

inmates. Ashker III, 2021 WL 5316414, at *17. “[B]ased

on the[se] examples,” the district court held that the Inmates

had shown due process violations arising out of CDCR’s

failure to provide accurate summaries of confidential

information. Id. Reviewing for clear error, we uphold the

district court’s finding that these three examples are

representative of the evidence presented and also evaluate

the Inmates’ claim based on these examples. See Parsons,

949 F.3d at 453. Unlike the district court, however, we

conclude that Wolff’s notice requirement was satisfied in

these examples.

In the first example, the disclosure form detailed that two

confidential informants said the accused inmate wanted

another inmate killed. Ashker III, 2021 WL 5316414, at *16.

The disclosure form stated that the planned killing was

because the other inmate had not provided the accused

inmate with his portion of contraband proceeds. Id. But the

confidential memorandum stated that one of the two

confidential informants gave a different reason why the

accused inmate wanted the other inmate killed. Id.

In the second example, four inmates were accused of

conspiring to murder another inmate. Id. at *16–17.

According to the confidential memorandum, an informant

told prison authorities that “there is a possibility” the four

inmates would order the murder of the other inmate, though

the four inmates had not yet determined what to do. Here,

the district court clearly erred in finding that “the disclosure

forms failed to disclose to the four prisoners that the

confidential informant stated that the inmate who was the

alleged victim of the murder conspiracy had not been

ordered murdered by the four co-conspirators.” See id. at

22 ASHKER V. NEWSOM

*16. The disclosure form did convey the informant’s

uncertainty by stating that the other inmate’s “fate was still

in the process of being deliberated.” At most, the disclosure

form exaggerated the informant’s confidence by stating that

“it was almost certain that [the other inmate] would be

[ordered killed],” when the informant only said that “there is

a possibility” that he would be killed.

In the third example, the accused inmate had allegedly

been identified in a confidential note as ordering an attack

against two other inmates. Id. at *17. The disclosure form

only said that the accused inmate was identified. Id. It did

not disclose that the accused inmate was identified by a

nickname without connecting the accused inmate to that

nickname. Id.

We conclude that even with the discrepancies, these

inmates were “inform[ed] . . . of the charges and [enabled]

to marshal the facts and prepare a defense.” See Wolff, 418

U.S. at 564. Each inmate received notice “sufficiently

specific as to the misconduct with which [he was] charged

to inform [him] of what he [wa]s accused of doing so that he

c[ould] prepare a defense to those charges and not be made

to explain away vague charges.” See Elder, 967 F.3d at 128

(internal quotation marks and citations omitted). In the first

example, the accused inmate had notice that an informant

said the accused inmate ordered another inmate’s murder,

even if the notice partially misstated his alleged motivation

for ordering the murder. Ashker III, 2021 WL 5316414, at

*16. In the second example, the four accused inmates had

notice that an informant said they were deliberating a

potential murder, even if the notice exaggerated the

likelihood. Id. at *16–17. In the third example, the accused

inmate had notice that a confidential note identified him as

ASHKER V. NEWSOM 23

ordering an attack on other inmates, even if the notice failed

to state that he was identified by a nickname. Id. at *17.

In each example, the discrepancy between the

confidential memorandum and the disclosure form did not

deprive the inmate of notice of the charges against him and

the ability to defend against those charges. See Wolff, 418

U.S. at 564. That is all that notice requires under Wolff—it

does not require disclosure of every piece of evidence that

might provide a basis for “challeng[ing] or otherwise

rais[ing] questions as to the reliability of confidential

information that could have been or was used against

[inmates] during their disciplinary proceedings,” as the

district court concluded. Ashker III, 2021 WL 5316414, at

*17; see also Elder, 967 F.3d at 128 (“The notice given need

not painstakingly detail all facts relevant to the date, place,

and manner of charged inmate misconduct.” (cleaned up)).

We have cautioned that when “identifying the safeguards

due process requires in this context, courts should remember

‘the legitimate institutional needs of assuring the safety of

inmates and prisoners’ and avoid ‘burdensome

administrative requirements that might be susceptible to

manipulation.’” Zimmerlee, 831 F.2d at 188 (quoting Hill,

472 U.S. at 454–55). Assuring the safety of inmates and

prisoners sometimes requires prison officials to rely on

confidential information in disciplinary proceedings. To

balance the safety of informants and other inmates with the

due process rights of accused inmates, CDCR provides

accused inmates with disclosure forms summarizing the

confidential information against them. See Cal. Code Regs.

tit. 15 § 3321(b)(3). Summarizing and synthesizing

information inherently includes some omissions and

generalizations. To hold that anything less than complete

accuracy and precision in those summaries violates due

24 ASHKER V. NEWSOM

process would impose a “burdensome administrative

requirement[] that might be susceptible to manipulation.”

See Zimmerlee, 831 F.2d at 188 (quoting Hill, 472 U.S. at

454–55).

To be sure, intentional misrepresentation of evidence and

material mischaracterization would raise due process

concerns. See Edwards v. Balisok, 520 U.S. 641, 647 (1997)

(“The due process requirements for a prison disciplinary

hearing are in many respects less demanding than those for

criminal prosecution, but they are not so lax as to let stand

the decision of a biased hearing officer who dishonestly

suppresses evidence of innocence.”). But there is no

evidence of that here. The inconsistencies identified by the

district court reveal inaccuracies ranging from the

exaggerated to the inconsequential. See Ashker III, 2021

WL 5316414, at *16–17. The accused inmates in the

examples received the notice required by Wolff. See 418

U.S. at 564. Thus, the Inmates have not established by a

preponderance of the evidence that CDCR is systemically

violating Wolff’s notice requirement.

ii

Next, we turn to the district court’s holding that CDCR’s

inaccurate disclosures of confidential information violate

inmates’ due process right to access evidence. See Ashker

III, 2021 WL 5316414, at *17. The Inmates rely on Melnik,

14 F.4th at 986, to contend that “when a prisoner is provided

a fabricated summary of the confidential evidence, he is

denied access to the evidence the hearing officer will

consider, and thus has lost the opportunity to defend himself

or challenge reliability within the hearing.”

Melnik involved an inmate who faced discipline for

allegedly smuggling drugs into the prison, after prison

ASHKER V. NEWSOM 25

officials intercepted two envelopes addressed to him

containing drugs. Id. at 984. Before his disciplinary

proceeding, the inmate repeatedly asked to examine the

envelopes but was not allowed to do so. Id. At the

disciplinary hearing, “images of the envelopes and

information about their contents were the only evidence

presented to support the charges” and the inmate was found

guilty. Id.

We held that the inmate had a constitutional “right to

access evidence that he might use in preparing or presenting

his defense,” thus giving him the right to access the

envelopes (or copies) that were withheld from him. Id. at

986–87. But “a prisoner’s right to access and prepare

evidence for a disciplinary hearing is not unlimited nor

unfettered. It may be limited by prison officials if they have

a ‘legitimate penological reason.’” Id. at 986 (quoting

Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992)).

Prison officials may deny access to evidence if it would “be

unduly hazardous to institutional safety or correctional

goals.” Id. at 986–87 (quoting Wolff, 418 U.S. at 566). Of

course, “[t]he penological reason must be legitimate” and

“not merely pretense or pretext.” Id. at 987. And

“administrative efficiency is not an adequate justification for

denying a prisoner access to evidence to be used in forming

his defense.” Id.

The Inmates have not shown a violation of their due

process right to access evidence. See id. at 986. The inmate

in Melnik was denied access to “the only evidence presented

to support the charges” when preparing his defense. Id. at

987–98. Here, by contrast, the inmates in the district court’s

three examples received confidential disclosure forms

summarizing the evidence used against them. Ashker III,

2021 WL 5316414, at *16–17. This is not a case about

26 ASHKER V. NEWSOM

inmates who sought evidence that the prison refused to turn

over. See Melnik, 14 F.4th at 987–88.

The Inmates argue that CDCR effectively withholds

evidence by misrepresenting confidential information in the

disclosure forms. But as discussed, the summaries provided

are largely accurate. Moreover, any discrepancies between

the confidential memoranda and the disclosure forms here,

even if characterized as withheld evidence, are minor and do

not violate the right set forth in Melnik because legitimate

penological reasons warrant limiting an inmate’s access to

confidential information. Id. at 986. Access may be denied

“[i]f granting a prisoner access to the requested evidence

would ‘be unduly hazardous to institutional safety or

correctional goals.’” Id. at 986–87 (quoting Wolff, 418 U.S.

at 566).

Safeguarding confidential and sensitive information is a

legitimate penological reason for limiting inmates’ access to

evidence. See id. Recall that in the Wolff notice context,

institutional safety and correctional goals inform the degree

of notice required by due process. Zimmerlee, 831 F.2d at

188. Similar concerns inform whether legitimate

penological reasons justify limiting access to evidence.

Melnik, 14 F.4th at 986–87. The Supreme Court has

instructed that when “identifying the safeguards required by

due process,” courts must be conscious of “the legitimate

institutional needs of assuring the safety of inmates and

prisoners, avoiding burdensome administrative requirements

that might be susceptible to manipulation, and preserving the

disciplinary process as a means of rehabilitation.” Hill, 472

U.S. at 454–55. We heed this instruction and “will not get

into the business of telling state prison officials how best to

protect the inmates they are charged with keeping safe.”

Johnson v. Ryan, 55 F.4th 1167, 1191 (9th Cir. 2022).

ASHKER V. NEWSOM 27

Once again, summarizing information to ensure the

safety of confidential informants, other inmates, and prison

personnel necessarily requires generalizations and

omissions. Assuring confidentiality is not as simple as

removing the confidential informant’s name and other

identifying information. See Wolff, 418 U.S. at 562 (“The

reality is that disciplinary hearings . . . necessarily involve

confrontations between inmates and authority and between

inmates who are being disciplined and those who would

charge or furnish evidence against them. . . . [T]he basic and

unavoidable task of providing reasonable personal safety for

guards and inmates may be at stake . . . .”); see also Bell v.

Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators

therefore should be accorded wide-ranging deference in the

adoption and execution of policies and practices that in their

judgment are needed to preserve internal order and discipline

and to maintain institutional security.”); Dawson v. Smith,

719 F.2d 896, 899 (7th Cir. 1983) (deferring to prison

officials’ judgment concerning confidential information

disclosure and concluding that “we leave it to prison officials

to make judgments in these sensitive matters; as all too often

they happen to be matters of life and death” (cleaned up)).

The Constitution does not require prison officials to disclose

every piece of information that an inmate might use in

support of his defense, such as minor and immaterial

inconsistencies that may “raise questions as to the reliability

of confidential information.” See Ashker III, 2021 WL

5316414, at *17; see also Melnik, 14 F.4th at 986–97;

Dawson, 719 F.2d at 899.

We reiterate that if prison officials deny or limit an

inmate’s access to evidence for penological reasons, those

reasons cannot be “mere[] pretense or pretext.” Melnik, 14

F.4th at 987. Overt evidence that officials intentionally

28 ASHKER V. NEWSOM

misrepresented confidential information would raise due

process concerns. See Edwards, 520 U.S. at 647.

But such evidence is not present here. The Inmates point

to nothing showing an intent to misrepresent. The record

shows that CDCR provided disclosure forms and any

discrepancies between the disclosure forms and the

confidential memoranda were minor and immaterial.

CDCR’s disclosure forms in the district court’s examples

satisfy due process because providing confidential evidence

to inmates in summary form is justified by legitimate

penological reasons. See Melnik, 14 F.4th at 986–87. Thus,

the Inmates have not established by a preponderance of the

evidence that CDCR is systemically violating Melnik’s

access-to-evidence requirement.

Because the inaccuracies and omissions in CDCR’s

disclosure forms identified by the district court do not violate

the Inmates’ due process rights, see Wolff, 418 U.S. at 564–

66, the alleged insufficient confidential disclosure forms do

not demonstrate “current and ongoing systemic violations of

. . . the Due Process Clause.” Thus, these allegations do not

justify extending the Settlement Agreement.

b

The district court also identified “many instances in

which [CDCR] relied upon confidential information without

first establishing its reliability as required by Zimmerlee.”

Ashker III, 2021 WL 5316414, at *19–20. In Zimmerlee,

831 F.2d at 186–87, we addressed the evidentiary standard

set by the Supreme Court for disciplinary hearings: prison

disciplinary “[f]indings that result in the loss of liberty will

satisfy due process if there is some evidence which supports

the decisions of the disciplinary board.” Id.; see also Hill,

472 U.S. at 455. That means that along with Wolff’s other

ASHKER V. NEWSOM 29

requirements, prison disciplinary determinations must be

supported by “some evidence.” Edwards, 520 U.S. at 648.

We then held that for confidential information to constitute

“some evidence” under this standard, the hearing officer

must establish and record the evidence’s reliability to avoid

a due process violation. Zimmerlee, 831 F.2d at 186–87

(setting forth methods by which a hearing officer may

establish the reliability of confidential information).

Once again, the district court cited examples that it found

“representative of the evidence that [the Inmates] have

presented.” Ashker III, 2021 WL 5316414, at *20. The

district court found that the examples showed hearing

officers assuming without verifying that confidential

information is reliable, hearing officers refusing to allow

prisoners to ask questions about the reliability of confidential

informants, and confidential information being found

corroborated by other sources when those sources did not in

fact provide corroboration. Id. at *19. The district court

concluded that, based on these examples, the Inmates “have

shown ongoing and systemic due process violations arising

out of [CDCR’s] failure to conduct the reliability

determinations required by Zimmerlee before relying on

evidence provided by confidential informants.” Id. at *20.

The district court erred by holding that insufficient

reliability determinations alone violate due process. In

Zimmerlee, we held that a prison disciplinary determination

violates due process when it is “derived from” confidential

information that is unreliable. 831 F.2d at 186. That is,

unreliable confidential information cannot qualify as “some

evidence.” See id. But it is the lack of “some evidence” that

violates due process—not necessarily the lack of sufficient

reliability determinations alone. See id. If the disciplinary

determination is supported by “some evidence,” the due

30 ASHKER V. NEWSOM

process evidentiary standard is satisfied. See id. And that

holds true even if other confidential information has not been

found reliable.

The Inmates have not demonstrated that CDCR

systemically finds inmates guilty in disciplinary hearings

without “some evidence” to support its determinations. See

id. Recall that the Settlement Agreement placed the burden

of proof on the Inmates. The Inmates must demonstrate a

current and ongoing systemic due process violation by a

preponderance of the evidence to extend the Settlement

Agreement.

The Inmates have not carried this burden. The examples

they cite show that CDCR’s reliability determinations are

usually sufficient because officials established reliability

under Zimmerlee. See id. (“Review of . . . the reliability

determination . . . should be deferential.”). Regardless, the

Inmates have not shown by a preponderance of the evidence

that CDCR’s disciplinary determinations are systemically

unsupported by “some evidence”—a “minimally stringent”

standard requiring only that “there is any evidence in the

record that could support the conclusion reached by the

disciplinary board.” See Cato v. Rushen, 824 F.2d 703, 705

(9th Cir. 1987) (quoting Hill, 472 U.S. at 455–56). The lack

of reliability determinations alone does not violate due

process. See Zimmerlee, 831 F.2d at 186.

***

The Inmates’ Confidential Information Claim does not

allege a current and ongoing systemic violation of the due

process clause. Thus, it cannot justify extension of the

Settlement Agreement.

ASHKER V. NEWSOM 31

B

The district court also extended the Settlement

Agreement based on the Inmates’ Parole Claim. Ashker III,

2021 WL 5316414, at *20–23. The district court determined

that inmates are systemically denied due process because

CDCR continues to rely on flawed gang validations when

evaluating inmates’ eligibility for parole. Id. at *23. We

disagree with the district court. The Parole Claim is an

improper basis for extending the Settlement Agreement and

does not demonstrate a due process violation. 5

1

CDCR contends that the Parole Claim is an improper

basis for extending the Settlement Agreement because it is

neither alleged in the Complaint nor a result of CDCR’s

reforms to its Step Down Programs or SHU policies. The

district court concluded otherwise, holding that the Parole

Claim was alleged in the Inmates’ Complaint. Ashker III,

2021 WL 5316414, at *21. Interpreting the Settlement

Agreement de novo to determine whether it authorizes

extension based on the Parole Claim, see Ashker II, 968 F.3d

at 944, we disagree with the district court. The paragraphs

of the Complaint that the district court relied on allege an

unwritten policy preventing anyone in SHU from receiving

parole, that the denial of parole deprives inmates of a basic

human need, and that CDCR’s “SHU policies and practices

are atypical in effectively prolonging incarceration, in that

prisoners in the SHU are . . . rendered functionally ineligible

for parole.” See Ashker III, 2021 WL 5316414, at *21.

5

CDCR also argues that the Inmates are judicially estopped from making

the Parole Claim. Though CDCR’s judicial estoppel argument is

persuasive, we resolve this issue on other grounds.

32 ASHKER V. NEWSOM

Those allegations differ from the Parole Claim, which

argues “that [CDCR’s] retention of the old gang validations

in their system without adding any qualifications to indicate

to the Parole Board that they are unreliable has deprived

class members of a fair opportunity for parole.” Id. at *20.

The Complaint does not allege a due process violation based

on CDCR’s failure to flag faulty gang violations for the

parole board. Again, the Settlement Agreement carefully

limits the bases for extending the monitoring period. The

“clear and explicit meaning” of the Settlement Agreement’s

provisions controls our interpretation and provides that only

due process violations alleged in the Complaint or resulting

from the Step Down Program or SHU reforms justify

extension. See Continental Ins., 281 P.3d at 1004. The

Inmates cannot obtain an extension by alleging due process

violations that have some peripheral relation to the

allegations in the Complaint. 6

2

The Parole Claim also does not justify extension because

it does not allege a current and ongoing systemic due process

violation. The district court held that CDCR’s “continued

retention and use of old gang validations without any

acknowledgement of the fact that they are flawed and

unreliable gives rise to violations of class members’ right to

a meaningful hearing in the context of parole.” Ashker III,

2021 WL 5316414, at *23. But the district court imposed

due process requirements that the Constitution does not.

6

We also reject the Inmates’ alternative argument that the Parole Claim

results from the Settlement Agreement’s reforms to its Step Down

Program or SHU policies. The district court did not adopt this argument

and the Inmates point to no provision of the Settlement Agreement to

support their argument.

ASHKER V. NEWSOM 33

In Greenholtz v. Inmates of Nebraska Penal and

Correctional Complex, 442 U.S. 1, 16 (1979), the Supreme

Court addressed the procedural due process required in

parole proceedings. 7 The Court held that “an opportunity to

be heard, and when parole is denied [informing] the inmate

in what respects he falls short of qualifying for parole . . .

affords the process that is due.” Id. The Court held that

“[t]he Constitution does not require more.” Id.

The Court reiterated this holding in Swarthout v. Cooke,

562 U.S. 216, 220 (2011) (per curiam). “In the context of

parole, we have held that the procedures required are

minimal.” Id. The Court then determined that the California

habeas petitioners in that case received an opportunity to be

heard and a statement of the reasons why parole was denied.

Id. “That should have been the beginning and the end of the

. . . inquiry into whether [the petitioners] received due

process.” Id. We, too, have underscored that when the

Greenholtz procedures are employed, “that is the end of the

matter for purposes of the Due Process Clause.” Roberts v.

Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).

The district court did not heed this instruction. It

concluded that CDCR’s prior procedures for generating

gang validations and the resulting gang validations

themselves violated the Constitution. Ashker III, 2021 WL

5316414, at *22. It then held that these deficiencies deprived

inmates of due process because the parole board considers

these flawed validations, depriving inmates of a “meaningful

hearing.” Id. at *22–23.

7

The parties do not dispute that the Inmates have a liberty interest in

parole. See Pearson v. Muntz, 639 F.3d 1185, 1190–91 (9th Cir. 2011).

34 ASHKER V. NEWSOM

The district court added due process requirements

contrary to the Supreme Court’s holding that “[t]he

Constitution does not require more.” See Greenholtz, 442

U.S. at 16. There is no evidence that the Greenholtz

requirements were not satisfied here.

The Inmates maintain that they allege a different kind of

due process violation. They argue it is not the parole board

considering prior gang validations that violates due process,

but that CDCR is obstructing meaningful access to the parole

process by recklessly or deliberately providing the parole

board with unconstitutional gang validations. The Inmates

rely on Benavidez v. County of San Diego, 993 F.3d 1134,

1152 (9th Cir. 2021), and Costanich v. Department of Social

and Health Services, 627 F.3d 1101, 1108 (9th Cir. 2010),

arguing that “a party extrinsic to an administrative or judicial

proceeding who recklessly or deliberately misrepresents the

facts to the decision-making body can be liable for violating

the Constitution regardless of whether the decision-maker is

also subject to suit.”

These cases are not on point. Both hold that deliberately

fabricating evidence in child custody proceedings violates

due process. Benavidez, 993 F.3d at 1152; Costanich, 627

F.3d at 1108. “Precisely what procedures the Due Process

Clause requires in any given case is a function of context.”

Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149

F.3d 971, 983 (9th Cir. 1998). The context of civil child

custody cases is meaningfully different from the prison

parole context. The Inmates do not explain why the same

due process procedures that apply in child custody cases

should be imported here.

Even if an analogous claim could lie in the prison parole

context, there is no deliberate or reckless fabrication of

ASHKER V. NEWSOM 35

evidence here. See Benavidez, 993 F.3d at 1152; Costanich,

627 F.3d at 1108. CDCR merely provided the parole board

with the existing gang validation information it had. The

district court concluded that CDCR’s prior validation

process and the resulting validations were illegitimate—a

conclusion on which we express no view. See Ashker III,

2021 WL 5316414, at *22. But even if the prior process and

resulting validations were deficient, CDCR did not provide

gang validations to the parole board recklessly or

deliberately because CDCR had no reason to doubt the

validations’ reliability. The Settlement Agreement states

that CDCR made no “admission or concession . . . of any

current and ongoing violations of a federal right.” And the

parties told the district court that the Settlement Agreement

“does not contemplate the ‘exoneration’ of past validations.”

Before the district court concluded that CDCR’s previous

validation process was flawed, id., no court had reached that

conclusion. Indeed, we have previously held that CDCR’s

validation of inmates satisfies due process when

accompanied by certain minimum procedures. See, e.g.,

Bruce v. Ylst, 351 F.3d 1283, 1287–88 (9th Cir. 2003)

(upholding validation of an inmate housed at Pelican Bay).

Thus, CDCR did not misrepresent or omit information to the

parole board deliberately or with reckless disregard for the

truth by failing to somehow signify that the validations were

defective. 8 See Benavidez, 993 F.3d at 1147; Costanich, 627

F.3d at 1108.

8

We likewise reject the Inmates’ argument that the parole process is

subject to systemic bias. The Inmates have not shown that the parole

board was biased or prejudiced. See O’Bremski v. Maass, 915 F.2d 418,

422 (9th Cir. 1990).

36 ASHKER V. NEWSOM

***

The Inmates’ Parole Claim does not allege a current and

ongoing systemic violation of the due process clause. Thus,

it cannot justify extension of the Settlement Agreement.

C

The Inmates’ RCGP claim is the third basis the district

court relied on for extending the Settlement Agreement.

Ashker III, 2021 WL 5316414, at *5–13. The Inmates

contend that CDCR violates the Inmates’ due process rights

by placing them in the RCGP—a new unit created by the

Settlement Agreement for housing inmates with safety

concerns. Unlike the first two claims, there is no dispute that

the RCGP Claim results from CDCR’s Step Down Program

or SHU reforms. See id. at *6. The district court held (1)

that there is a liberty interest in avoiding RCGP placement

and (2) that CDCR’s procedures for placing inmates in the

RCGP are insufficient because CDCR fails to provide

meaningful notice or periodic review. Id. at *10, 12. We

disagree on both counts.

1

“The Fourteenth Amendment’s Due Process Clause

protects persons against deprivations of life, liberty, or

property; and those who seek to invoke its procedural

protection must establish that one of these interests is at

stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To

show a due process violation, the Inmates must establish a

liberty interest in avoiding RCGP placement. See Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Though “[t]he

Constitution does not give rise to a liberty interest in

avoiding transfer to more adverse conditions of confinement,

[] such an interest may ‘arise from state policies or

ASHKER V. NEWSOM 37

regulations.’” Johnson, 55 F.4th at 1180 (quoting Wilkinson,

545 U.S. at 221–22). An interest in avoiding certain

conditions of confinement constitutes a liberty interest

protected by the Due Process Clause if the challenged

condition “imposes atypical and significant hardship on the

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

Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).

Though there “is no single standard” for determining

when circumstances are atypical and significant, we have

detailed three guiding 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 1195–96 (quoting Ramirez v. Galaza, 334 F.3d 850,

861 (9th Cir. 2003)) (internal quotation marks omitted).

We have also acknowledged inconsistency among courts

in “identifying the baseline from which to measure what is

atypical and significant in any particular prison system.” Id.

at 1195 (quoting Wilkinson, 545 U.S. at 223); Brown v. Or.

Dep’t of Corr., 751 F.3d 983, 988 (9th Cir. 2014) (“We . . .

have not clearly held that conditions in the general

population, as opposed to those in other forms of

administrative segregation or protective custody, form the

appropriate baseline comparator.”). The district court

acknowledged this uncertainty about the proper baseline.

38 ASHKER V. NEWSOM

Ashker III, 2021 WL 5316414, at *7. It then concluded “that

the conditions in the general prison population are the

appropriate basis for comparison” because inmates who

were placed in the RCGP “otherwise would have been

placed in the general population.” Id.

In supplemental briefing addressing this question, the

parties largely agreed. 9 Both parties maintain that the proper

baseline when deciding whether a challenged condition is

atypical and significant is fact-specific and varies from case

to case. The parties also agree that the baseline here is Level

IV general population facilities. See Cal. Code Regs. tit. 15

§ 3377(d). Given the agreement between the parties, we

assume that the conditions in Level IV general population

facilities form the appropriate baseline comparator here.

Using this baseline, we address whether the conditions

of the RCGP are atypical and significant. See Sandin, 515

U.S. at 484. Recall that the RCGP was “designed to provide

increased opportunities for positive social interaction with

other prisoners and staff,” including educational

opportunities, out-of-cell time in small group yards,

religious services, job assignments, leisure time activity

groups, and contact visits from family members—all

without the use of mechanical restraints.

All inmates who enter the RCGP are initially placed on

walk-alone status—an orientation and observation period to

determine whether an inmate can program safely with

others. After this period, an inmate appears before the ICC,

which determines whether the inmate can be safely placed in

a programming group with other RCGP inmates. If the ICC

9

Along with their supplemental brief, the Inmates moved to file

supplemental excerpts of record under seal. We grant the motion.

ASHKER V. NEWSOM 39

does not find that the inmate can be safely placed in a

programming group, he remains on walk-alone status

subject to periodic reviews that occur every six months.

Like general placement in the RCGP, an inmate remains on

walk-alone as long as CDCR determines it is necessary, and

an inmate may remain on walk-alone status for his entire

time in the RCGP.

Inmates on walk-alone status experience increased

restrictions compared to other RCGP inmates, but they retain

several privileges. In declarations, inmates state that walk-

alone inmates can exercise for two hours a day in fenced,

outdoor enclosures without exercise equipment. During that

time, they can speak to other walk-alone inmates also

exercising in separate enclosures. Walk-alone inmates can

also visit the “dayroom” one to three times per week for

about one hour. During dayroom time, walk-alone inmates

may talk to other inmates from outside their cell doors. They

also have opportunities for 15-minute phone calls and

educational programming, though the programming is

limited to self-study with some teacher contact. Walk-alone

inmates have access to a law library kiosk and the “canteen”

(store) is brought to them once a month.

These inmate declarations track RCGP Captain J. Berg’s

declaration. Captain Berg states that “[i]nmates on walk-

alone status have access to educational opportunities, yard

and out-of-cell time commensurate with the general

population, religious services, job assignments, leisure time

opportunities, and privileges like canteen and non-contact

visits, and telephone calls.” Further, “[a]ll RCGP inmates

receive a housing review every six months” and “[s]eparate

from those periodic reviews,” walk-alone inmates can

“inform[] staff that [they] can safely program with [general

RCGP] inmates” and the “staff evaluates the request at that

40 ASHKER V. NEWSOM

time.” They can receive work assignments that “take

inmates out of their cells as much as six-and-one-half hours

a day” and “present opportunities for further interaction with

other inmates and staff.” Captain Berg testifies that RCGP

conditions are “very similar” to his experience in “Pelican

Bay’s Level IV general-population housing unit.”

Because all RCGP inmates are initially placed on walk-

alone status with no predetermined end date, we consider

both general RCGP conditions and walk-alone conditions in

our liberty interest analysis. The first guidepost directs us to

consider whether RCGP conditions mirror those in

administrative segregation and protective custody, “and thus

comport[] with the prison’s discretionary authority.”10

Ramirez, 334 F.3d at 861. California regulations describe

the conditions of administrative segregation. 11 Cal. Code

Regs. tit. 15 § 3343. In many ways, the conditions of

10

As discussed, we assume here that the conditions of Level IV general

population facilities are the baseline when determining whether RCGP

conditions are atypical and significant. That said, our precedent still

directs us to consider the conditions of administrative segregation and

protective custody. Ramirez, 334 F.3d at 861; see also Chappell v.

Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013) (“[A]t least” these three

guideposts “should be considered in each case[.]”). This makes sense

because even if Level IV general population facilities are the primary

baseline, administrative segregation and protective custody are forms of

confinement that a prison has discretion to impose. See Chappell, 706

F.3d at 1064–65. The conditions of these “discretionary confinement

settings” should inform the atypical-and-significant analysis even if

those conditions are not the primary baseline comparator. See id. at

1064; Sandin, 515 U.S. at 486 (“Conner’s confinement did not exceed

similar, but totally discretionary, confinement . . . .”).

11

In this case, we assume that the conditions of “administrative

segregation” and “protective custody” are equivalent. See Pierce v.

County of Orange, 526 F.3d 1190, 1196 n.3 (9th Cir. 2008).

ASHKER V. NEWSOM 41

administrative segregation are like those of the general

population. See id. § 3343(a). The regulations state that

inmates in administrative segregation are permitted

non-contact visits, id. § 3343(f), “a minimum of one hour per

day, five days a week, of exercise outside of their rooms or

cells unless security and safety considerations preclude such

activity,” id. § 3343(h), “[l]ibrary services” representing “a

cross-section of material available to the general

population,” id. § 3343(i), telephone calls with supervisor

approval, id. § 3343(j), and “access to such programs and

services as can be reasonably provided within the unit

without endangering security or the safety of persons,” id.

§ 3343(k).

Walk-alone conditions mirror these conditions. As

discussed, walk-alone inmates receive similar daily exercise

time and opportunities for programs and services. The

district court focused on the fact that contact visits for RCGP

inmates are limited to weekdays and concluded that this

restriction is atypical. Ashker III, 2021 WL 5316414, at *8.

The district court also noted the diminished opportunities for

socializing and programming provided to walk-alone

inmates. Id. at *9. But these limitations do not impose

atypical and significant hardship. In Johnson, we stressed

that restrictions constituting atypical and significant

hardship should cause a “material change in the underlying

conditions of [an inmate’s] confinement,” with “incidental,

fleeting benefits” such as “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” failing to rise to that level. 55

F.4th at 1196 (emphasis omitted). Receiving fewer contact

visits than other inmates does not constitute “a beyond-

standard deviation from the ordinary circumstances of prison

42 ASHKER V. NEWSOM

life.” See id.; see also Gerber v. Hickman, 291 F.3d 617,

621 (9th Cir. 2002) (en banc) (“[I]t is well-settled that

prisoners have no constitutional right while incarcerated to

contact visits . . . .”). Likewise, RCGP inmates receive

multiple opportunities for socializing and programming.

The limitations on these privileges are not atypical and

significant compared to administrative segregation. See Cal.

Code Regs. tit. 15 § 3343.

The second guidepost is “the duration of the condition,

and the degree of restraint imposed.” Ramirez, 334 F.3d at

861. We addressed this balance in Brown, and held that an

inmate’s twenty-seven-month confinement in the Intensive

Management Unit, or “IMU,” which “subjected [the inmate]

to solitary confinement for over twenty-three hours each day

with almost no interpersonal contact, and denied him most

privileges afforded inmates in the general population” gave

rise to a liberty interest. 751 F.3d at 988. We also observed

that the inmate “was given a fixed and irreducible period of

confinement in the IMU for twenty-seven months, in

contrast to the limited period of confinement with periodic

review afforded inmates in [the Oregon prison system’s]

other segregated-housing units.” Id.

Conditions in the RCGP are far removed from those in

Brown. As to the “duration of the condition,” RCGP

placement and walk-alone status are designed as “limited

period[s] of confinement with periodic review,” not “fixed

and irreducible period[s] of confinement.” See id. at 987–

88. Still, there is no maximum term of confinement, and the

duration of confinement is a “crucial factor.” Id. at 988.

But here, the potential duration of confinement is offset

by the minimal “degree of restraint imposed” on inmates in

the RCGP. See id. at 987. Even RCGP walk-alone

ASHKER V. NEWSOM 43

conditions are significantly less severe than the IMU

conditions addressed in Brown. See id. at 987–88. Unlike

the IMU inmate who was held in “solitary confinement for

over twenty-three hours each day with almost no

interpersonal contact” and denied “most privileges afforded

inmates in the general population,” id. at 988, inmates on

walk-alone status receive two hours of daily exercise, the

opportunity to talk with other inmates, dayroom visits, phone

calls, and programming such as educational opportunities, a

law library kiosk, and access to the canteen.

“[T]he transfer of an inmate to less amenable and more

restrictive quarters for nonpunitive reasons is well within the

terms of confinement ordinarily contemplated by a prison

sentence.” Hewitt v. Helms, 459 U.S. 460, 468 (1983),

abrogated in part on other grounds by Sandin, 515 U.S. at

472. Thus, on balance, the “duration of the condition” and

the “degree of restraint imposed” do not suggest that the

RCGP imposes atypical and significant hardship compared

to Level IV general population facilities. See Brown, 751

F.3d at 987. Indeed, we previously held that the limitations

of walk-alone status “are only minor deviations” from what

the Settlement Agreement required. Ashker II, 968 F.3d at

945–46. The restrictions the district court and the Inmates

rely on—contact visits limited to weekdays, no maximum

term of confinement, and walk-alone status—“do not

represent a beyond-standard deviation from the ordinary

circumstances of prison life.” Johnson, 55 F.4th at 1196.

Considering the third guidepost, RCGP placement will

not “invariably affect the duration of the prisoner’s

sentence.” Ramirez, 334 F.3d at 861. The district court

determined “that diminished opportunities for programming

. . . can negatively impact inmates’ eligibility for parole . . .

which in turn can lengthen the duration of inmates’

44 ASHKER V. NEWSOM

sentences.” Ashker III, 2021 WL 5316414, at *9. But our

question is “whether the state’s action will invariably affect

the duration of the prisoner’s sentence.” Ramirez, 334 F.3d

at 861 (emphasis added). Even if RCGP placement can have

a potential negative effect on parole eligibility, it does not

“invariably” lengthen the sentence of RCGP inmates. See

id.

We conclude that RCGP placement, including walk-

alone status, does not “impose[] atypical and significant

hardship on the [I]nmate[s] in relation to the ordinary

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

holding tracks our recent opinion in Johnson. In that case,

the inmate asserted several liberty interests. First, we

addressed whether the inmate had “a liberty interest in

avoiding maximum security confinement in the Browning

Unit.” 55 F.4th at 1180; see also id. at 1197–98 (addressing

the related question of whether the inmate “stated a liberty

interest in avoiding a return to maximum custody from close

custody”). The inmate alleged that “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.” Id. at 1180; see also id. at 1198

(maximum custody also “permits inmates a maximum of

three phone calls per week, three non-contact visits per week

. . . three three-hour recreation opportunities per week,” and

requires “single-cell housing, [being] escorted in full

restraints any time [inmates] move within the institution . . .

frequent[] monitor[ing], and . . . only limited work

opportunities within the secure perimeter”). The inmate also

alleged that he was “denied the opportunity for restoration

of lost earned release credits.” Id. at 1180. We concluded

that these conditions imposed atypical and significant

hardship and held that the inmate had a liberty interest in

ASHKER V. NEWSOM 45

avoiding these maximum security conditions. Id.; see also

id. at 1198.

Second, we addressed whether the inmate had a liberty

interest in participating in the Arizona prison system’s step

down program, or “SDP.” Id. at 1194. We concluded that

the inmate did not have a liberty interest because “[t]he

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 [the

inmate’s] conditions.” Id. at 1195. We also held that

removal from the first three phases of the SDP did “not result

in any significant change in an inmate’s conditions of

confinement” because nothing “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.’” Id. at 1195–96.

The conditions of RCGP walk-alone status are more like

the first three phases of the SDP than maximum security

confinement in the Browning unit. As described above,

walk-alone status conditions are less restrictive than the

conditions of maximum security confinement in Johnson.

See id. at 1180, 1198. The privileges that are limited by

RCGP walk-alone status are like those privileges we

described as “incidental, fleeting benefits” that do “not

introduce an ‘atypical and significant hardship’ that would

trigger a liberty interest.” See id. at 1196.

“Not every transfer accompanied by marginally harsher

conditions creates a liberty interest.” Id. That is the case

here because the conditions of the RCGP and walk-alone

46 ASHKER V. NEWSOM

status do not impose “atypical and significant hardship” on

inmates “in relation to the ordinary incidents of prison life.”

See Sandin, 515 U.S. at 484. “[T]ransfer 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.” Johnson, 55 F.4th at

1196 (quoting Hewitt, 459 U.S. at 468). So the Inmates have

not established a liberty interest.

2

Further, the Inmates’ RCGP Claim would not justify

extending the Settlement Agreement even if the Inmates had

a liberty interest in avoiding RCGP placement. That is

because CDCR employs constitutionally sufficient

procedural protections when placing inmates in the RCGP.

To determine whether procedures provide sufficient due

process, we evaluate (1) the private interest affected; (2) the

risk of an erroneous deprivation and the probable value of

additional or substitute safeguards; and (3) the government’s

interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

For prison housing placement that is administrative, not

disciplinary, “informal, nonadversary review” is sufficient.

Hewitt, 459 U.S. at 476. Those procedures include notice of

the reason for confinement, an opportunity to be heard, and

periodic review. Id. at 476 & 477 n.9.

The district court held that CDCR’s RCGP placement

procedures fell short of this standard because CDCR failed

to provide meaningful notice or periodic review. Ashker III,

2021 WL 5316414, at *11. The Inmates rely on these same

purported shortcomings to argue that the RCGP placement

procedures are constitutionally deficient. We review these

arguments within the three-factor framework established by

Mathews. 424 U.S. at 335.

ASHKER V. NEWSOM 47

The first and third Mathews factors—the balance of

inmate private interests and the governmental interest—

weigh in CDCR’s favor. “Prisoners held in lawful

confinement have their liberty curtailed by definition, so the

procedural protections to which they 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.

When an inmate is “merely transferred from one extremely

restricted environment to an even more confined situation,”

the inmate’s private interest “is not one of great

consequence.” Hewitt, 459 U.S. at 473. By contrast, the

government-interest factor is a “dominant consideration” in

“the context of prison management,” because “[t]he State’s

first obligation must be to ensure the safety of guards and

prison personnel, the public, and the prisoners themselves.”

Wilkinson, 545 U.S. at 227. The government’s interest is of

“great importance” because the “safety of the institution’s

guards and inmates is perhaps the most fundamental

responsibility of the prison administration.” Hewitt, 459

U.S. at 473. Thus, the first and third Mathews factors favor

CDCR here.

The second Mathews factor also weighs in CDCR’s

favor. The district court held that CDCR’s procedures for

RCGP placement risked an erroneous deprivation because

they provided insufficient notice and periodic review.

Ashker III, 2021 WL 5316414, at *11. As to notice, the

district court found that CDCR “relied on findings that

releasing prisoners to the general population would pose a

threat to the safety of the institution even though [the

Settlement Agreement] does not contemplate the safety of

the institution as a reason for keeping prisoners in the

RCGP.” Id. The district court also found that “CDCR told

prisoners that participating in programming and remaining

48 ASHKER V. NEWSOM

incident-free for six months would result in transfer out of

the RCGP.” Id. The district court concluded that this

conflicted with the Settlement Agreement because it

“permits Defendants to retain inmates in the RCGP only if

the ICC verifies that ‘there continues to be a demonstrated

threat to the inmate’s personal safety.’” Id. Indeed, the

Inmates argue that CDCR “retained scores of people in

RCGP despite expressly noting they had positively

programmed and remained incident-free.”

These findings do not risk an erroneous deprivation of

RCGP inmates’ rights based on insufficient notice. For one,

relying on the safety of the institution to house an inmate in

the RCGP fits the notice the inmates were given. The district

court concluded otherwise because the Settlement

Agreement states the relevant consideration to be prisoner

safety and not institutional safety. Id. But a threat to an

inmate’s safety and to the institution’s safety are often

intertwined—a threat to an inmate endangers the safety of

the institution as a whole. See Farmer v. Brennan, 511 U.S.

825, 833 (1994) (“Prison officials have a duty to protect

prisoners from violence at the hands of other prisoners.”

(cleaned up)).

At any rate, notice sufficient to satisfy due process does

not require such granular detail. Hewitt involved an inmate

placed in administrative segregation because prison officials

determined that he could endanger the safety of others and

that it was wise to separate him from the general population

while his role in a prison riot was investigated. 459 U.S. at

473. The Supreme Court held that “some notice of the

charges against him” was sufficient to confine him in the

challenged housing conditions. Id. at 476–77. The Court

also addressed the notice requirement in Wilkinson. 545

U.S. at 225–26. The policy in that case provided that “an

ASHKER V. NEWSOM 49

inmate must receive notice of the factual basis leading to

consideration for [the challenged housing] placement and a

fair opportunity for rebuttal.” Id. The Court held that

“[r]equiring officials to provide a brief summary of the

factual basis for the classification review and allowing the

inmate a rebuttal opportunity safeguards against the inmate’s

being mistaken for another or singled out for insufficient

reason.” Id. at 226.

Here, the Inmates have not shown by a preponderance of

the evidence that they were given insufficient notice, that is,

“a brief summary of the factual basis” for their confinement

in the RCGP. See id. Providing inconsistent information

about exactly how to return to the general population is an

ignoble practice, but it does not violate the constitutional

notice requirement or create a risk of erroneous placement

or retention in the RCGP when the inmates were otherwise

told why they were housed there. According to their

declarations, inmates housed in the RCGP were given notice

that they were placed there because CDCR determined there

were threats to their safety. These inmates did not always

agree with CDCR’s assessment, but they received the notice

required. See id.

Further, we afford CDCR significant deference on its

safety determinations. “[A] prison’s internal security is

peculiarly a matter normally left to the discretion of prison

administrators.” Hewitt, 459 U.S. at 474 (quoting Rhodes v.

Chapman, 452 U.S. 337, 349 n.14 (1981)); see also id. (“The

judgment of prison officials in this context . . . turns on

purely subjective evaluations and predictions of future

behavior . . . indeed, the administrators must predict not just

one inmate’s future actions . . . but those of an entire

institution.” (internal quotation marks and citation omitted)).

“Prison officials must strike a careful balance to determine

50 ASHKER V. NEWSOM

who must be protected from whom and for how long,” thus,

“[w]e will not get into the business of telling state prison

officials how best to protect the inmates they are charged

with keeping safe.” Johnson, 55 F.4th at 1190–91.

As to periodic review, the district court found that

“instead of evaluating whether a safety concern continues to

exist, the ICC operates under what appears to be a

presumption that historical threats to prisoners’ safety

continue to exist in the absence of affirmative evidence that

the threats have abated.” Ashker III, 2021 WL 5316414, at

*11. This finding does not risk an erroneous deprivation of

the Inmates’ rights by depriving RCGP inmates of adequate

review. “[P]eriodic reviews do not necessarily require

additional evidence and may rely on facts that were

ascertained when the initial decision to confine the inmate .

. . was made.” Johnson, 55 F.4th at 1185. Even if CDCR

assumes that a threat exists until new evidence shows

otherwise, that is no more likely to risk erroneous

deprivation than relying on gang status in Johnson. See id.

As in Johnson, the Inmates have not shown that RCGP

placement “is based on stale information or is so outdated as

to be irrelevant to a current risk analysis” and that threats to

the Inmates’ safety have abated. See id. at 1188. And just

as “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,’” id. at 1187 (quoting Hewitt, 459

U.S. at 474), the same is true for prison officials’ judgment

that an inmate’s own safety is at risk.

In sum, our review of the Mathews factors shows that

CDCR’s RCGP placement procedures are constitutionally

ASHKER V. NEWSOM 51

sufficient. The Inmates have not shown by a preponderance

of the evidence that inmates housed in the RCGP receive

constitutionally deficient notice or periodic review that risks

erroneous deprivation of inmates’ rights. See Mathews, 424

U.S. at 335. We owe substantial deference to CDCR’s

determination that an inmate faces safety concerns.

Johnson, 55 F.4th at 1190–91. Also considering the balance

of public and private interests, the Mathews factors favor

CDCR. Thus, CDCR’s procedures for RCGP placement and

retention do not systemically violate the Due Process Clause.

See Matthews, 424 U.S. at 335.

***

The Inmates’ RCGP Claim does not allege a current and

ongoing systemic violation of the due process clause. Thus,

it cannot justify extension of the Settlement Agreement.

IV

We reverse the district court because the first extension

of the Settlement Agreement was improper. Given that,

under the Settlement Agreement, the “Agreement and the

Court’s jurisdiction over this matter shall automatically

terminate, and the case shall be dismissed.” The initial

twenty-four-month monitoring period ended in October

2017, so the Settlement Agreement and the court’s

jurisdiction over the matter automatically terminated then. 12

12

This appeal does not require us to address any claims that the Inmates

may retain based on “limited jurisdiction” under paragraph 46 of the

Settlement Agreement, which provides that “[i]f there is a motion

contesting [CDCR’s] compliance with the terms of this Agreement

pending at the time the case is otherwise terminated, the Court will retain

limited jurisdiction to resolve the motion.”

52 ASHKER V. NEWSOM

Because the court’s jurisdiction terminated, the district

court lacked jurisdiction to order a second extension of the

Settlement Agreement. See Ashker v. Newsom, No. 09-cv-

05796 CW, 2022 WL 309862 (N.D. Cal. Feb. 2, 2022)

(Ashker IV). That order is the subject of the second appeal

before us. Without jurisdiction, the district court’s second

extension order is null. See Morongo Band of Mission

Indians v. Cal. St. Bd. of Equalization, 858 F.2d 1376, 1381

(9th Cir. 1988) (“If jurisdiction was lacking, then the

[district] court’s various orders . . . were nullities.”). Thus,

we vacate the district court’s second extension order and

dismiss the second appeal as moot.

REVERSED in part, VACATED in part, and

DISMISSED in part.

R. NELSON, Circuit Judge, joined by GWIN, District

Judge, concurring:

In the majority opinion, we identify the inconsistency

among courts in “identifying the baseline from which to

measure what is atypical and significant in any particular

prison system.” Johnson v. Ryan, 55 F.4th 1167, 1195 (9th

Cir. 2022) (quoting Wilkinson v. Austin, 545 U.S. 209, 223

(2005)); Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th

Cir. 2014) (“We . . . have not clearly held that conditions in

the general population, as opposed to those in other forms of

administrative segregation or protective custody, form the

appropriate baseline comparator.”). We also acknowledge

the parties’ agreement that the baseline for comparison here

is Level IV general population facilities. Given the lack of

dispute on the question, we assume the parties’ proposed

ASHKER V. NEWSOM 53

baseline for our analysis. But I believe that is the wrong

baseline for this case and for future cases.

Thus far, our court has taken a somewhat ad hoc

approach without definitively resolving whether the proper

baseline is the general prison population or a different form

of confinement, such as administrative segregation or

protective custody. See Johnson, 55 F.4th at 1198

(comparing the challenged conditions to the inmate’s

“underlying conditions of confinement”); Brown, 751 F.3d

at 988 (“[W]e need not locate the appropriate baseline here

because Brown’s [confinement] imposed an atypical and

significant hardship under any plausible baseline.”); Jackson

v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (“Sandin

requires a factual comparison between conditions in general

population or administrative segregation (whichever is

applicable) and disciplinary segregation . . . .”).

The D.C. Circuit surveyed the landscape on this question

in Aref v. Lynch, 833 F.3d 242, 253 (D.C. Cir. 2016), noting

that “lower court assessments have diverged.” “The Third,

Sixth, and Tenth Circuits all generally look to administrative

confinement as the baseline.” Id. (citing Griffin v. Vaughn,

112 F.3d 703, 706–08 (3d Cir. 1997); Jones v. Baker, 155

F.3d 810, 812–13 (6th Cir. 1998); Gaines v. Stenseng, 292

F.3d 1222, 1224–26 (10th Cir. 2002)). The Fourth Circuit,

by contrast, “looks to the general population as the baseline.”

Id. at 254 (citing Beverati v. Smith, 120 F.3d 500, 504 (4th

Cir. 1997)). The D.C. Circuit explained how the Second,

Fifth, and Seventh circuits take different approaches still.

“[T]he Second Circuit requires a fact-specific determination

that compares the duration and conditions of segregation

with conditions in both administrative confinement and the

general population.” Id. (citing Arce v. Walker, 139 F.3d

329, 336 (2d Cir. 1998)). “The Fifth Circuit . . . has held

54 ASHKER V. NEWSOM

disciplinary segregation can never implicate a liberty interest

unless it ‘inevitably’ lengthens a prisoner’s sentence . . . and

that administrative segregation—being an ordinary incident

of prison life—is essentially incapable of creating a liberty

interest.” Id. at 253 (citing Carson v. Johnson, 112 F.3d 818,

821 (5th Cir. 1997); Orellana v. Kyle, 65 F.3d 29, 31–32 (5th

Cir. 1995)). And “[t]he Seventh Circuit [holds] the baseline

is not just the conditions of confinement within that

particular prison, but those at the harshest facility in the

state’s most restrictive prison.” Id. at 253–54 (citing Wagner

v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997)). The D.C.

Circuit then reaffirmed its own approach identifying

administrative segregation as the proper baseline. Id. at

254–55.

In my view, the conditions of administrative segregation

or protective custody are the proper baseline comparators

when determining whether a challenged prison condition

imposes atypical and significant hardship. 1 The Supreme

1

Both parties suggest in their supplemental briefing that there is no

single baseline from which to measure atypical and significant hardship,

and that the proper baseline is fact-specific and varies case by case. For

most inmates, the ordinary incidents of prison life will include the

possibility of administrative segregation, making it the proper baseline.

See Hewitt v. Helms, 459 U.S. 460, 468 (1983), abrogated in part on

other grounds, Sandin v. Conner, 515 U.S. 472 (1995). That said, the

specific conditions of administrative segregation could vary from prison

to prison. And for certain inmates, the ordinary incidents of prison life

may deviate from the standard based on specific conditions imposed by

the sentence. See, e.g., Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 456

(3d Cir. 2020) (Porter, J., concurring in part and dissenting in part)

(describing an inmate whose “death sentence carries with it the statutory

requirement that he remain in solitary confinement,” thus concluding

that “solitary confinement is ‘within the sentence imposed’” and “not

atypical but exactly what [the inmate] could reasonably expect”). Thus,

ASHKER V. NEWSOM 55

Court held in Sandin that we ask whether the challenged

condition “imposes atypical and significant hardship on the

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

515 U.S. at 484 (emphasis added). “[A]dministrative

segregation is the sort of confinement that inmates should

reasonably anticipate receiving at some point in their

incarceration.” Hewitt, 459 U.S. at 468; see also Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[T]he Ninth

Circuit explicitly has found that administrative segregation

falls within the terms of confinement ordinarily

contemplated by a sentence.” (quoting May v. Baldwin, 109

F.3d 557, 565 (9th Cir. 1997)). Holding that the inmate in

Sandin had no liberty interest in avoiding the challenged

condition, the Supreme Court concluded that the challenged

condition “mirrored those conditions imposed upon inmates

in administrative segregation and protective custody.” 515

U.S. at 486.

Our precedent acknowledges this. In setting forth

“guideposts” for determining whether a condition is atypical

and significant, we have said that courts should consider

“whether the challenged condition mirrored those conditions

imposed on inmates in administrative segregation and

protective custody.” Johnson, 55 F.4th at 1195–96 (quoting

Ramirez, 334 F.3d at 861) (internal quotation marks

omitted).

This makes sense. Administrative segregation is a form

of confinement that prison officials may impose. Hewitt,

459 U.S. at 468; see also Chappell v. Mandeville, 706 F.3d

1052, 1064–65 (9th Cir. 2013) (characterizing

administrative segregation and protective custody as

I would leave open the possibility that the baseline could vary from case

to case. See Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).

56 ASHKER V. NEWSOM

“discretionary confinement settings.”). If the challenged

condition mirrors conditions that the prison may impose

without additional procedures, then the challenged condition

is not atypical and significant. See Chappell, 706 F.3d at

1064–65; see also Sandin, 515 U.S. at 486 (“Conner’s

confinement did not exceed similar, but totally discretionary,

confinement . . . .”); Johnson, 55 F.4th at 1196 (no liberty

interest is implicated by transfers that “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’” (quoting Meachum v. Fano, 427 U.S. 215, 225

(1976))). That is why we have framed our first guidepost as

“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.” Ramirez, 334

F.3d at 861 (quoting Sandin, 515 U.S. at 486–87) (emphasis

added).

In my view, discretionary confinement such as

administrative segregation and protective custody constitute

the proper baseline for whether a challenged prison

condition is atypical and significant. 2 See Aref, 833 F.3d at

253–54.

2

When comparing a challenged condition to the conditions of

administrative segregation or protective custody, we should also

consider the typical duration of confinement in administrative

segregation or protective custody. See Sandin, 515 U.S. at 486

(“Conner’s confinement did not exceed similar, but totally discretionary,

confinement in either duration or degree of restriction.” (emphasis

added)); Aref, 833 F.3d at 254–55. Our guideposts account for this

consideration. Ramirez, 334 F.3d at 861 (considering “the duration of

the condition, and the degree of restraint imposed”).