Appendix — Toussaint v. McCarthy

a7 L5 a?

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1986

JOSEPH TOUSSAINT, et al.,

Petitioners,

VS.

DANIEL J. MCCARTHY,

Respondent.

| MAR $1 1987

No. 2H F. SPANIOL, JR,

a a

———

SEPARATE APPENDIX

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANFORD JAY ROSEN

(Counsel of Record)

BARBARA Y. PHILLIPS

SuSAN S. FIERING

PauL A. Di DONATO

ROSEN & PHILLIPS

155 Montgomery Street

8th Floor

San Francisco, CA 94014

Telephone: (415) 433-6830

Attorneys for Petitioners*

* Additional Counsel on Inside of Cover

Supreme Court, U.S,

FILED

|

BERNARD ZIMMERMAN

SARAH G. FLANAGAN

MarK A. CHAVEZ

PAULA LEVITAN

235 Montgomery Street

12th Floor

San Francisco, CA 94104

Telephone: (415) 983-1100

DONALD H. SPECTER

MARGARET LITTLEFIELD

STEVEN FAMA

PRISON LAW OFFICE

Main Street

General Delivery

San Quentin, CA 94964

Telephone: (415) 457-9144

ELLEN SUE GOLDBLATT

c/o Protection &

Advocacy, Inc.

1330 Broadway, Ste. 1550

Oakland, CA 94612

Telephone: (415) 839-0811

SIDNEY M. WOLINSKY

ANITA P. ARRIOLA

PuBLic ADVOCATES, INC.

1535 Mission Street

San Francisco, CA 94103

Telephone: (415) 431-7430

JAMES C. STURDEVANT

STURDEVANT & ELION

120 Montgomery Street

Suite 1800

San Francisco, CA 94104

Telephone: (415) 392-4140

ANTONIA HERNANDEZ

DENISE M. HULETT

MEXICAN AMERICAN LEGAL

DEFENSE AND

EDUCATION FUND

604 Mission Street

10th Floor

San Francisco, CA 94105

Telephone: (415) 543-5598

JULIUS CHAMBERS

DEBORAH FINS

99 Hudson Street

16th Floor

New York, NY 10013

Telephone: (212) 219-1900

APPENDIX TABLE OF CONTENTS

Page

Toussaint v. McCarthy,

801 F.2d 1080 (1986) eeeevevee A-1

Appendix of State Statutes and

Regulations to Ninth Circuit

Toussaint v. McCarthy

GBIMION cc cicewerdericccviees An14a]

Toussaint v. McCarthy,

Toussaint v. McCarthy,

Written Order Confirming

Minute Order Denying Motion

For New Trial occccesce sosece. MPSST

Toussaint v. McCarthy,

ORDER (July sh 1985) eoeeeee A-358

Toussaint v. McCarthy,

ORDER (June 27, 1985) ...... A-359

Toussaint v. McCarthy,

ORDER (June a3» 1985) eeeeee A-362

McCartiiy v. Altamirano,

ORDER (June 8, 1985) ......-. A-364

McCarthy v. Altamirano,

ORDER (May 24, 1985) eoeeeeer A-365

Toussaint v. McCarthy,

ORDER (May ys 1985 eeseevevevee A-367

Toussaint v. McCarthy,

ORDER (April 23, 1985) ..... A-368

Toussaint v. McCarthy,

ORDER (April 17, 1985) ..... A-370

Toussaint v. McCarthy,

Order Releasing Prisoners

From Segregation ;

(ABELA Ekg Bee acbiwkeness A-372

Toussaint v. McCarthy,

Memorandum And Order Denying

Request To Withdraw Sixth

Review Memorandum And Order

(March. 25 ,° 1965). ssavsstvcae A-376

Toussaint v. McCarthy,

In re Valentino Altamirano

Sixth Review Memorandum

And Order

(Mase EF, BPeehsscsecteve A-383

Toussaint v. Yockey,

722 F.2d 1490 (1984) ....... A-408

Toussaint v. Rushen,

553 F.Supp. 1365 (1983) .... A-435

Enomoto v. Wright,

434 U.S. 1052,

55 L.Ed.2d 756,

96 §.CE. Bass ccsseesticcass £2OO

Wright v. Enomoto,

462 F.Supp. 397 (1976) ..... A-549

Toussaint v. McCarthy,

Order (December 31, 1986) .. A-585

Toussaint v. McCarthy,

Mandate of Ninth Circuit

(January 12, 1967 )« scsi cokes A-586

Constitution of United States

AmenG@ment Vill. iiss sess oes A-587

Amendment ZIV .scscccsssasscsesss A-587

Federal Statues

42 U.8.€i | 29Se ni ceeecee ee A-588

iii

Page

Excerpt of Petition For Rehearing/

Suggestion of Rehearing

_ En Banc

(October 14, 1986) .cccce ~e. A=-590

[Argued and Submitted Dec. 13, 1985.

Decided Sept. 30, 1986]

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

)

Joseph TOUSSAINT, et al., ) No. 84-2833

Plaintiffs/Appellees/ ) No. 85-1507

Cross-Appellants, ) No. 85-1878

) No. 85-2526

Vv. )

)

Daniel McCARTHY, et al., ) 801 F.2d

Defendants/Appellants/ ) 1080 (9th

Cross-Appellees. ) Cir. 1986)

)

On Appeal From the United States

District Court for the Northern District

of California.

Before WRIGHT, KENNEDY and BEEZER,

Circuit Judges.

BEEZER, Circuit Judge:

Both parties appeal from the

district court's order granting permanent

injunctive relief against California

prison officials. Although this appeal

presents a variety of discrete issues,

the case presents this general issue:

Does the protection afforded by the

United States Constitution require that

San Quentin and Folsom prison officials

remain subject to controls imposed by the

district court or should prison control

be returned to California prison

officials? We conclude that, in general,

the district court assumed too much

control over the day to day affairs of

the prisons. Therefore, constitutional

restraints require modification of the

district court's degree.

I.

BACKGROUND

This class action was commenced on

behalf of prisoners committed to

administrative segregation in four

California prison: San Quentin, Folsom,

Devel Vocational Institute at Tracy, and

the Correctional Training Facility at

Soledad. The defendants are the Director

of the California Department of

Corrections and the wardens of the

prisons involved. We address orders

pertaining to San Quentin and Folsom.

The complaint was filed in 1973. In

the first phase of the proceedings, a

three-judge district court held that he

state's practice of removing prisoners

from the general population and placing

them in maximum security segregation

units violated the prisoner's fourteenth

amendment right to due process of law.

See Wright v. Enomoto, 462 F.Supp. 397

(N.D. Cal. 1976) (hereinafter referred to

as "Wright I"). In Wright I, the

defendants were ordered to employ a

variety of procedures before segregating

prisoner for administrative reasons. See

id. at 404-05. The Supreme Court

summarily affirmed the district court.

Enomoto v. Wright, 434 U.S. 1052, 98

S.Ct. 1223, 55 L.Ed.2d 756 (1978).

In the next phase of the litigation,

the district court issued an umpublished

comprehensive preliminary injunction

governing the conditions of confinement

in the segregation units of the four

prisons. We reversed the district court

and vacated the injunction on the grounds

that the district court appealed the

incorrect legal standard in assessing the

plaintiffs' eighth amendment claims. See

Wright v. Rushen, 642 F.2d 1129 (9th Cir.

1981). ,

On remand, the district reevaluated

the conditions of confinement under the

standard prescribed by Wright v. Rushen

and issued a detailed preliminary

injunction governing conditions of

confinement and procedures for placement

and retention in administrative

segregation. See Toussaint v. Rushen,

553 F.Supp 1365 (N.D. Cal. 1983).

-Although we affirmed the district court

for the most part, we vacated a portion

of the order which was not supported by

the record. Toussaint v. Yockey,

722 F.2d 1490 (9th Cir. 1984). We also

directed the district court to reconsider

its conclusions regarding the continuing

propriety of procedural requirements in

light of the Supreme Court's decision in

Hewitt v. Helms, 459 U.S. 460, 103 S.Ct.

864, 74 L.Ed.2d 675 (1983). See

Toussaint v. Yockey, 722 F.2d at 1494

n. 6.

In the present phase of this case,

the district court entered an injunction,

which we refer to as the Permanent

Injunction, governing conditions of

confinement and segregation procedures at

San Quentin and Folsom. Toussaint v.

McCarthy, 597 F.Supp. 1388 (N.D. Cal.

1964). The court appointed a special

master, known as the Monitor, to assist

in the implementation of the Permanent

Injunction and to advise the court

regarding the need for further

modifications to the Injunction. Id. at

1420-22. Pursuant to the order of

reference, the Monitor ordered the

release of a number of prisoners from

administrative segregation.

Defendants now challenge various

aspects of the Permanent Injunction and

the district court's affirmance of the

Monitor's order to release a number of

prisoners from administrative

segregation. Defendants urge us to

vacate Parts III, IV(B), (C), and (D),

and to modify Parts II(6), (10), and (15)

of the Permanent Injunction. Defendants

also complain about the district court's

affirmance of the Monitor decision to

release prisoners Altamirano, Mendoza,

Ramos, Castro, Gallegos, Hayes, Ferrel,

Shryock, Pina, Elmore and Barela.

Plaintiffs cross-appeal the district

court's refusal to extend the sweep of

the injunction to cover additional prison

conditions. Plaintiffs urge us to hold

that enforced idleness in administrative

segregation constitutes cruel and unusual

punishment, that inmates legitimately

barred from the prison law library be

provided with adequate legal assistance,

that health care services provided at

Folsom do not meet minimum constitutional

standards, and that denial of contact

visitation constitutes cruel and unusual

punishment.

The opinions above offer additional

discussion of the facts. We will discuss

specific facts and arguments in turn.

II.

SCOPE OF FEDERAL INJUNCTIVE RELIEF

In Ruiz v. Estelle, 679 F.2d 1115

(Sth Cir. 1982), amended, 688 F.2d 266

(Sth Cir. 1982), cert. denied, 460 U.S.

1042, 103 S.Ct. 1438, 75 L.Ed.2a 795

(1983), the Fifth Circuit reviewed a

district -court's order of injunctive

relief against state prison officials.

The Fifth Circuit described the role of

the federal courts as follows:

There is no iron curtain drawn

between the Constitution and the

prisons of this country. When the

remedial powers of a federal court

are invoked to protect the

constitutional rights of inmates,

the court may not take a hands-off

approach.

The duty to protect inmates'

constitutional rights, however, does

not confer the power to manage

prisons, for which courts are

ill-equipped, or the capacity to

second-guess prison administrators.

Federal courts should not, in the

name of the Constitution, become

enmeshed in the minutiae of prison

operations. Our task is limited to

enforcing constitutional standards

and does not embrace superintending

prison administration.

679 F.2d at 1126 (notes and quotations

omitted). The court also stated that

As a matter of respect for the

state's role and for the allocation

of functions in our federal system,

as well as comity toward the state,

the relief ordered by federal courts

must be consistent with the policy

of minimum intrusion into the

affairs of state prison

administration that the Supreme

Court has articulated for the

federal courts. "(T]he principles

of federalism which play such an

important part in governing the

relationship between federal courts

and state governments" are

applicable “where injunctive relief

is sought ... against those in

charge of an executive branch of an

agency of state" government.

[Rizzo v. Goode, 423 U.S. 362, 380,

A-10

96 S.Ct. 598, 608, 46 L.Ed.2d 561

(1976).] We should, therefore,

fashion the least intrusive remedy

that will still be effective. In

shaping that remedy, we must also,

as a matter of judicial

administration, regard the essential

nature of federal courts in an

adversary system. Our remedial

powers are inherently judicial, not

administrative.

679 F.2d at 1145 (notes and quotations

omitted). —

is We agree with the Fifth

Circuit's description of the role of the

federal courts. Injunctive relief

against a state agency or official must

be no broader than necessary to remedy

the constitutional violation. See

Milliken v. Bradley, 433 U.S. 267, 280,

97 &8.Ct. 2749, 27357, 53 L.BG.2G 743

(1977) (remedy must be related to

condition alleged to offend the

constitution); Swann v.

Charlotte-Mecklenburg Board of Education,

402 U.S. 1, 16,91 8.Ct. 1267, 1276, 28

A-11

L.Ed.2d 554 (1971) (task én to correct,

by a balancing of the interests, the

condition that offends the constitution;

judicial powers may be exercised only on

the basis of a constitutional violation) ;

Hoptowit v. Spellman, 753 F.2d 779, 785

(9th Cir. 1985) (judge must order

correction of specific violations and may

require only that these corrections bring

the conditions above constitutional

minima); Newman v. Alabama, 683 F.2d

1312, 1319 (5th Cir. 1982) (relief must

be no broader than necessary to remedy

the constitutional violation), cert.

denied, 460 U.S. 1083, 103 S.Ct. 1773, 76

L.Ed.2d 346 (1983); Hoptowit v. Ray, 682

F.2d 1237, 1246 (9th Cir. 1982) (function

of court is limited to determining

whether a constitutional violation has

occurred and to fashioning a remedy that

does no more and no less than correct

|

A-12

that particular constitutional

violation) ; Ruiz v. Estelle, 679 F.2d at

1144-46 (court must fashion the least

intrusive remedy that will still be

effective). A federal court may not

enjoin a state official to follow state

law. Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89,

97-121, 104 S.Ct. 900, 906-19, 79 L.Ed. 2d

67 (1984). "The federal courts do not

sit to supervise state prisons, the

administration of which is acute interest

to the States." Meachum v. Fano,

427°U.S. 215, 229, 96 S.Ct. 2532, 2540,

49 L.ED.2d 451 (1976).

2. In fashioning a remedy for

constitutional violations, a federal

court must order effective relief.

Smith v. Sullivan, 611 F.2d 1039, 1044

(Sth Cir. 1980). Therefore, a federal

court may order relief that the

A-13

Constitution would not of its own force

initially require if such relief is

necessary to remedy a constitutional

violation. See North Carolina State

Board of Education v. Swann, 402 U.S. 43,

46, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586

(1971); Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. at 15-16, 91

S.Ct. at 1276. A defendant's history of

noncompliance with prior court orders is

a relevant factor in determining the

necessary scope of an effective remedy.

Hutto v. Finney, 437 U.S. 678, 687, 98

S.Ct. 2965, 2971, 57 &.BA.24 $22 (1978);

Hoptowit v. Ray, 682 F.2d at 1247;

Ruiz v. Estelle, 679 F.2d at 1155-56.

However, our goal is to cure only

constitutional violations. Swann v.

Charlotte-Mecklenburg Board of Education,

402 0.8. eat 16, 91. &.Ct. at 1276;

Wright v. Rushen, 642 F.2d 1129, 1133-34

A-14

(9th Cir. 1981). The commission of a

federal judge is not a "general

assignment to go about doing good."

Jett v. Castaneda, 578 F.2d 842, 845 (9th

Cir. 1978). Accordingly, injunctive

restraints that exceed constitutional

minima must be narrowly tailored to

prevent repetition of proved

constitutional violations, and must not

intrude unnecessarily on state functions.

Ruiz v. Estelle, 679 F.2d at 1156. See

generally Mishkin, Federal Courts as

State Reformers, 35 Wash. & Lee L.Rev.

949 (1978).

ait.

SCOPE OF APPELLATE REVIEW

[3,4] We are guided by three standards

of review. We defer to the district

court's findings of fact unless they are

clearly erroneous. Anderson v. City of

Bessemer, 470 U.S. 564, 105 S.Ct. 1504,

Abhi iinet Ot ane NE Si ae (ante

A-15

1510-11, 84 L.Ed.2d 518 (1985);

Fed.R.Civ.P. 52(a). We review the

district court's legal conclusions de

novo. In re McLinn, 739 F.2d 1395, 1398

(9th Cir. 1984) (en banc), cert. denied,

469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d

46 (1984). We review the scope of

injunctive relief for an abuse of

discretion. Hutto v. Finney, 437 U.S. at

687-88, 98 S.Ct. at 2572; Swann v.

Charlotte-Mecklenburg Board of Education,

402 U.S. at 15, 91 S.Ct. at 1275-76;

Hoptowit v. Ray, 682 F.2d at 1245-46.

The term “abuse of discretion," is

often misunderstood and, perhaps, is an

unfortunate label. See Pearson v.

Dennison, 353 F.2d 24, 28 n. 6 (9th Cir.

1965); R. Aldisert, The Judicial Process,

759 (1976). Yet, the legacy of hundreds

of cases renders "abuse of discretion" a

term of art. See Friendly Indiscretion

|

A-16

About Discretion, 31 Emory L.J. 747,

762-63 (1982). We must recognize,

however, that the term is a "verbal coat

of many colors." Id. at 763 (quoting

United States v. L.A. Tucker Truck

Lines, 344 U.8. 33, 39, 73 8.Ct. 67, 76,

97 L.Ed. 54 (1952) (Frankfurter, J.,

dissenting)). Judge Friendly notes that

{[t]here are half a dozen different

definitions of "abuse of

discretion," ranging from ones that

would require the appellate court to

come close to finding that the trial

court had taken leave of its senses

to others which differ from the

definition of error by only the

slightest nuance, with numerous

variations between the extremities.

1/

Friendly, supra at 763.— The Third

Circuit has reasoned that

1/ We have recognized implicitly that

the abuse of discretion standard varies

with the decision being reviewed. See

e.g. C-Y Development Co. v. City of

Redlands, 703 F.2d 375, 377 (9th Cir.

1983); see also LeSportsac, Inc. v. K

(Footnote Continued)

A-17

[iJn our judicial system, a wide

variety of decisions covering a

broad range of subject matters, both

procedural and substantive, is left

to the discretion of the trial

court. The justifications for

committing decisions to the

discretion of the court are not

uniform, and may vary with the

specific type of decisions.

Although the standard of review in

such instances is generally framed

as “abuse of discretion,” in fact

the scope of review will be directly

related to the reason why that

category or type of decision is

committed to the trial court's

discretior in the first instance.

United States v. Criden, 648 F.2d 814,

817 (3rd Cir. 1981) (footnote omitted).

We agree with Criden. The extent of our

(Footnote Continued)

Mart Corp., 754 F.2d 71, 74-75 (2d Cir.

1985) (the term, “abuse of discretion,"

is capable of widely varying

interpretations); Roland Machinery Co. v.

Dresser Industries, 749 F.2d 380, 390

(7th Cir. 1984) ("abuse of discretion"

describes a range of standards);

Osuchukwu v. INS, 744 F.2d 1136, 1142

(5th Cir. 1984) ("abuse of discretion" is

variable standard).

A-18

deference to the district court is

determined by several competing factors.

The remedy prescribed by the

district court is something more than a

mere permanent injunction. We address a

"structural injunction"2/ in which a

United States district court has enjoined

state administrative officials in order

2/ The term, “structural injunction,"

refers to the course of litigation and

the series of orders that seek to ‘i

"effectuate the Seok eeenge ge of an

ongoing social institution." Fiss

The Civil Rights Injunction 7 Tis78y

This form of injunctive relief is known

as an “institutional decree," and

"administrative injunction,” see

Fletcher, The Discretionary Constitution:

Institutional Remedies and Judicial

Legitimacy, 91 Yale L.J. 635, 635 and

a. 2 (1982) , a “public law remedy ," see

Hinkle, Appellate Supervision of Remedies

in Public Law Adjudication, 4 Fla.St.U.

L.Rev. 411, 411-13 (1976); Chayes, The

Role of the Judge in Public Law ~

Litigation, 89 Harv.L.Rev. 1281, 1313

(i976), and as “complex enforcement ," see

Note, Complex Enforcement:

Unconstitutional Prison Conditions,

94 Har.L.Rev. 626, 626 n. 1 (1981).

A-19

to force a state agency to comply with

constitutional standards. Such an

injunction presents several relevant

considerations, some of which militate

towards great deference, and others which

demand close and exacting scrutiny.

In protracted, complex litigation,

the district court will acquire a close

familiarity with the facts, parties, and

nuances of the case, especially, as is

the situation here, when the same judge

has presided throughout. See Hinkle,

Appellate Supervision of Remedies in

Public Law Adjudication, 4 Fla.St.U.

L.Rev. 411, 440 (1976).2/ ‘The ability to

3/ For instance, in the Arkansas prison

litigation, Chief Judge Henley of the

Eastern District of Arkansas continued to

sit as a district judge by designation

even after his appointment to the Eighth

Circuit. See Finney v. Hutto, 410

F.Supp. 251 (E.D. Ark. 1976); O. Fiss &

(Footnote Continued)

a

hear witnesses and directly view prison

conditions places the district court

judge in a superior position to consider

alternative forms of relief. A district

court's ability to fashion the most

effective remedy may be hampered by

unnecessary appellate interference.

However, the choice of remedy in

structural litigation also involves

several factors weighing in favor of

close appellate review. First, the very

familiarity that allows a district court

to design an effective remedy may lead to

excessive involvement and a breakdown of

institutional perspective. See Fiss, The

Social and Political Foundations of

(Footnote Continued)

D. Rendleman, Injunction 528-752 (2d ed.

1984) (case study of Arkansas prison

litigation). See generally M. Harris &

K. Spiller, After Decision:

Implementation of Judicial Degrees in

Correctional Settings (1977).

A-21

Adjudication, 6 Law & Human Behav. LZi,

126 (1982). The court of appeals, which

enjoys gyveater distance from the daily

affairs of the litigation, is in a better

position to assure detached neutrality.

See Hinkle, supra, at 441.

Second, structural litigation

frequently involves a close association

of rights and remedies. See Note,

Complex Enforcement: Unconstitutional

Prison Conditions, 94 Harv.L.Rev. 626,

637-40 (1981). As we have noted above,

the scope of federal injunctive relief

against an agency of state government

must be narrowly tailored to enforce

constitutional requirements only. The

adoption of a remedy in a particular case

tends to establish the norm that defines

4/

the future standard of conduct. The

precedential value of the adoption of a

particular remedy raises questions of

consistency and authoritativeness that

can be resolved similarly to resolution

of legal questions.

Third, and perhaps most importantly,

a federal district court's exercise of

discretion to enjoin state political

bodies rasies serious questions regarding

the legitimacy of its authority. See

Fletcher, The Discretionary Constitution:

————

Institutional Remedies and Judicial

Legitimacy, 91 Yale L.J. 635, 642-44

(1982). Other than appellate review, few

4/ We do not mean to imply that the

adoption ofa particular remedy in a

given case requires the use of that

remedy in another case. Indeed, we share

Judge, Sneed's view that courts should

hesitate before "constitutionalizing" a

remedy.

A-23

effective external controls check the

district court's power.

S. Our weighing of the above

factors leads us to the following

standard of review. We will scrutinize

the injunction closely to make sure that

the remedy protects the plaintiffs'

constitutional rights and does not

require more of state officials than is

necessary to assure their compliance with

the constitution. Within these

parameters, we will defer to the district

court.

IV.

THE EXISTENCE OF A LIBERTY INTEREST

6. The fourteenth amendment

provides that no state shall "deprive any

person of life, liberty, or property

without due process of law..." U.S.

Const. amend. XIV, § 1; see Hewitt v.

Helms, 459 U.S. at 466, 103 S.Ct. at 868.

A-24

Our threshold inquiry, therefore, is

whether plaintiffs have a liberty

interest in remaining in the general

population. If plaintiffs do not

possess a liberty interest, the

constitution does not require prison

officials to accord plaintiffs any

procedural protections when deciding to

segregate plaintiffs for administrative

reasons. See Meachum v. Fano, 427 U.S.

214, 96 S.Ct. 2532, 49 L.Ed.2d 451

(1976).

Te A liberty interest may arise

from either of two sources: the due

process clause itself or state law.

Hewitt, 459 U.S. at 466, 103 S.Ct. at

868. In Wright I, the distict court held

that California prisoners possessed

liberty interests on both grounds.

First, the court held that the due

process clause itself prohibits arbitrary

A-25

placement of prisoners in administrative

segregation. The court reasoned that:

When a prisoner is transferred from

the general prison population to the

grossly more onerous conditions of

maximum security, be it for

disciplinary or for administrative

reasons, there is a severe

impairment of the residuum of

liberty which he retains as a

prisoner -- an impairment which

triggers the requirement for due

process safeguards.

462 F.Supp. at 402. Second, the court

held that section 3330 of Chapter 4,

Article 6 of the Rules and Regulations of

the Director of Corrections constituted a

state-created liberty interest .>/ The

5/ At the time of the district court's

decision in Wright I, 15 Cal.Admin.Code

§ 3330 provided:

General Policy. (a) Inmates must be

segregated from other when it is

reasonably believed that they are a

menace to themselves and other or a

threat to the security of the

institution. Inmates may be

segregated for medical, psychiatric,

disciplinary, or administrative

(Footnote Continued)

A-26

district court assumed that the Wright I

decision was law of the case in these

proceedings. 597 F.Supp. at 1416.

Plaintiffs, similarly, contend that we

are bound by Wright I, especially in

light of the Supreme Court's summary

affirmance.

A. LAW OF THE CASE

The doctrine of law of the case was

"crafted with the course of ordinary

litigation in mind. Such litigation

proceeds through preliminary stages,

generally matures at trial, and produces

a judgment, to which after appeal, the

binding finality of res judicata and

(Footnote Continued)

reasons. The reason for ordering

segregated housing must be clearly

documented by the official ordering

the action at the time the action is

taken.

462 F.Supp. at 403.

A-27

collateral estoppel will attach."

Arizona v. California, 460 U.S. 605,

618-19, 103 S.Ct. 1382, 1391, 75 L.Ed.2d

318 (1983). Here, however, we review a

structural injunction, which involves the

ongoing application of changing law to

changing circumstances.

8. Because permanent injunctive

relief controls future conduct, we are

sensitive to the need for modification

when circumstances change.

A continuing decree of injunction

directed to events to come is

subject always to adaptation as

events may shape the need. The

distinction is between restraints

that give protection to rights fully

accrued upon facts so nearly

permanent as to be substantially

impervious to change, and those that

involve the supervision of changing

conduct or conditions and are thus

provisional and tentative ... [A]

court does not abdicate its power to

revoke or modify its mandate if

satisfied that what it has been

doing has been turned through

changing circumstances into an

instrument of wrong.

A-28

United States v. Swift & Co., 286 U.S.

106, 114-15, 52 S.Ct. 460, 462, 76 L.Ed

999 (1932 (citations omitted). A change

in the law may constitute a changing

circumstance requiring the modification

of an injunction. System Federation No.

91 v. Wright, 364 U.S. 642, 647-48, 81

S.Ct. 368, 371, 5 L.Ed.2d 349 (1961). An

intervening judicial opinion may require

modification of an injunction. See

Pasadena City Board of Education v.

Spangler, 427 U.S. 424, 437-38, 96 S.Ct.

2697, 2705, 49 L.Ed.2d 599 (1976) (when

intervening clarification of

constitutional law reduced obligations of

state officials, district court abused it

discretion by refusing to modify

injunction accordingly). "When a change

in the law authorizes what had previouslv

been forbidden, it is an abuse of

discretion for a court to refuse to

modify an injunction founded on

superseded law." American Horse

Protection Association v. Watt, 694 F.2d

1310, 1316 (D.c.cir. 1982)8/

The Fourth Circuit's decision in

Nelson v. Collins, 659 F.2d 420 (4th Cir.

1981), is closely analogous to the

instant case. In Nelson, the district

court found “double celling” of inmates

to be cruel and unusual punishment and

ordered the prison administration to

cease double celling. Id. at 421. The

Fourth Circuit affirmed the district

court's legal conclusions but remanded

with instructions to fashion a decree

6/ See also Wright & Miller, Federal

Practice & Procedure, § 2961, pp. 604-605

(1973) ("The three traditional reasons

for ordering the modification or vacation

of an injunction are (1) changes in

operative facts, (2) changes in the

relevant decisional law, and (3) changes

in any applicable statutory law").

A-30

that incorporated defendant's timetable

for elimination of overcrowding. Id. see

Johnson v. Levine, 588 F.2d 1378 (th Cir.

1978) (en banc). The district court

modified its decree accordingly. See 659

F.2d at 421 (procedural background of

case). When defendants realized that

they could not comply with prescribed

timetables, they moved to modify the

injunction. See id. at 423. In April of

1981, the district court denied the

motion, found defendants in civil

contempt, and imposed sanctions. See id.

Defendants appealed. Id. On June 15,

1981, the Supreme Court decided Rhodes v.

Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69

L.Ed.2d 59 (1981), which held, in short,

that double celling does not violate the

eighth amendment. The Fourth Circuit

vacated the district court's order

disapproving double celling. See

A-31

659 F.2da at 429. The Fourth Circuit also

vacated the civil contempt citation and

imposition of sanctions. Id. The Fourth

Circuit reasoned that "(t]he question for

purposes of decision here becomes,

therefore, whether there have been, since

the entry of the original Decree in these

cases, changes in either operative facts

or laws which cast a new light upon the

facts or law as originally ruled on in

these cases." Id. at 424. The Nelson

court found that Rhodes v. Chapman, and

Bell v. Wolfish, 441, U.S. 520, 39 S.Ct.

1861, 60 L.Ed.2d 447 (1979), mandated a

different result from that reached by the

court sitting en banc. 659 £.2d at

424-29 .2/

7/ The standards for modification of an

injunction should apply with equal,, if

not greater vigor, to direct appeals of

(Footnote Continued)

The Eleventh Circuit's opinion in

Newman v. Graddick, 740 F.2d 1513 (llth

Cir. 1984), similarly demonstrates that

(Footnote Continued)

an order of permanent injunctive relief.

A modification under Fed.R.Civ.P.

60(b) (5) implicates the judicial ideals

of repose and finality; a settled

Gecision may be overturned. A direct

appeal of an order of a permanent

injunction, however, does not implicate

repose or finality. Therfore, the

procedural distinctions between a motion

to modify an injunction and a direct

appeal do not justify a more deferential

approach in the case of direct appeals.

The Eighth Circuit's decision in

Finney v. Arkansas Board of Correction,

505, ra 194 (8th Cir. 1974), supports

this conclusion. In Finney, the district

court granted injunctive relief regarding

disciplinary procedures employed in the

Arkansas prison system. Id. at 208.

After the district court ordered relief,

the Supreme Court decided Wolff v.

McDonnell, 418 U.S. 539, 94 S.Ct. 2963,

41 L.Ed.2a 935 (1974). The Eighth

Circuit found that Wolff required a

greater measure of relief and ordered the

district court to modify its decree

accordingly. 505 F.2d at 208. In

Pinney, the court of appeals applied

intervening law in a direct appeal of a

district court's order of injunctive

relief. We find ourselves in a similar

procedural position.

A-33

structural injunctive relief must follow

the changing contours of constitutional

law. In Newman, the district court

ordered prison administrators to show

cause why they should not be held in

contempt for violating prior orders of

the court concerning the Alabama state

prison system. Id. at 1519. The

district court also ordered that

prisoners be released from confinement to

relieve overcrowding. Id. The Eleventh

Circuit vacated the order. Id. at 1522.

The court held that “total compliance

with a prior judgment or consent decree

is not required before a court can

entertain a request for modification."

Id. at 1519-20. The Eleventh Circuit

further held that the Supreme Court's

intervening decision in Rhodes v.

Chapman, along with changed factual

circumstances, required reconsideration

aa aii

A-34

of the propriety of injunctive relief.

Ia. at 1521.8/

9. Similarly, we cannot rely on

Wright I. Neither premise upon which the

Wright I court relied in finding a

liberty interest still exists.

In Hewitt v. Helms, the Supreme

Court held that the due process clause

does not of its own force create a

8/ In Graddick, the Eleventh Circuit

considered the prospect that a motion to

modify an injunction would be used as a

dilatory tactic. The Eleventh Circuit

reasoned that:

The contention could be made that

this decision would simply mean that

the defendants could continually

delay enforcement of a remedy for

unconstitutionality by seeking

modification every time enforcement

is sought. This should not be a

necessary result. The good faith of

the defendants and the

substantiality of the alleged

improvements would always be a

consideration before a hearing on

modification would be required.

740 F.2d at 1521. We agree.

\

A-35

liberty interest in freedom from

administrative segregation.

It is plain that the 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

--e- Accordingly, administrative

segregation is the sort of

confinement that inmates should

reasonably anticipate receiving at

some point in their incarceration.

Hewitt, 459 U.S. at 468, 103 S.Ct. at

869. A liberty interest does not arise

even when administrative segregation

imposes "severe hardships," such as

"denial of access to vocational,

educational, recreational, and

rehabilitative programs, restrictions on

exercise, and confinement to [one's] cell

for lengthy periods of time." See id. at

467 n. 4, 103 S.Ct. at 869 n. 4; Clark v.

Brewer, 776 F.2d 226, 228-390 (8th Cir.

1985) (due process clause itself does not

create liberty interest notwithstanding

the fact that conditions in "close

management” are significantly more harsh

than conditions in general population) ;

see also McFarland v. Cassady, 779 F.2d

1426, 1427-28 (9th Cir. 1986) (Supreme

Court in Hewitt held that due process

clause does not give inmate liberty

interest in remaining in general

population). Therefore, the Wright I

court's holding that the due process

clause creates a liberty interest in

remaining in the general population is no

longer correct.

10. The Wright I court's reliance

on section 3330 is entitled to no

deference.. The version of section 3330

upon which the Wright I court relied has

been repealed. See 15 Cal.Admin.Code

§ 3330 (former section 3330 was repealed

A-37

en April 18, 1980) .2/ A iticdvinted

liberty interest exists only as long as

the statute or regulation creating it

remains effective. If the state repeals

the statute or eliminates the regulation,

the liberty interest ceases to exist.

Clark v. Brewer, 775 F.2d at 232. The

Wright I liberty interest determinations,

therefore, neither guide nor control our

consideration today.— 10/

9/ Because section 3330 has been

repealed, we need not consider whether

the language of that section would create

a liberty interest under current

standards.

10/ The plaintiffs argue that the

Supreme Court in Hewitt reaffirmed its

summary affirmance of Wight I. We

disagree. In Hewitt, the Court merely

noted that its summary affirmance of

Wight I was the only case in which the

Court had found that state statutes or

regulations created a liberty interest in

freedom from segregated housing within a

prison. 459 U.S. at 469, 103 S.Ct. at

870. The Court neither reaffirmed nor

(Footnote Continued)

A-38

Therefore, the doctrine of law of

the case does not preclude review of the

continuing propriety of permanent

11/

injunctive relief.— The relevant

(Footnote Continued)

rejected its holding in Wright I; the

reference to Wright I was entirely

neutral.

Plaintiffs point out that the Court

in Hewitt had the opportunity to reject

its earlier affirmance of Wright I yet

failed to do so. Plaintiffs argue that

the Court's silence indicates approval of

Wright I. This argument seriously

misapprehends the nature of judicial

opinions. It is a well recognized maxim

that a court ought to avoid unnecessary

decisions. Such decisions are dicta.

The Court in Hewitt had no need to

revisit Wright I. We refuse to attribute

a hidden meaning to the Court's failure

to engage in obiter dictum.

11/ Even if the doctrine of law of the

case applied in its usual manner, its

strictures would not require blind

obeisance to outdated legal principles.

As the Supreme Court noted in Arizona v.

California, supra:

Unlike the more precise requirement

of res judicata, law of the case is

an amorphous concept. As most

commonly defined, the doctrine

posits that when court decides upon

(Footnote Continued)

A-39

question becomes whether intervening

(Footnote Continued)

a rule of law, that decision should

continue to govern the same issues

in subsequent stages in the same

case. Law of the case directs a

court's discretion, it does not

limit the tribunal's power.

460 U.S. at 618, 103 S.Ct. at 1319

(citations omitted). We have recognized

that the doctrine is not to be applied

woodenly. Russell v. Commissioner,

678 F.2d 782, 785 (9th Cir. 1982), and

that we will reconsider issues that have

previously been decided "if such a course

is warranted by ‘considerations of

substantial justice.'" United States v.

Imperial Irrigation District, 559 F.2d

509, 520 (9th Cir. 1977) (quoting

Lehrman v. Gulf Oil Corp., 500 F.2d 659,

662-63 (5th Cir. 1974), cert. denied,

420 U.S. 929, 95 S.Ct. 1128, 43 L.Ed.2a

400 (1975)). We have also recognized

that a prior decision should not be

followed if "controlling authority has

since made a contrary decision of the law

applicable to such i sues." Kimball v.

Callahan, 590 F.2d 768, 771-72 (9th

Cir.), cert. denied, 444 U.S. 826,

100 S.Ct. 49, 62 L.Ed.2d 33 (1979); see

Handi Investment Co. v. Mobil Oil Corp.,

653 F.2d 391, 392-93 (9th Cir. 1981)

(examining intervening case law to

determine whether contrary result was

proper); see also Amen v. City of

Dearborn, 718 F.2d 789, 794 (6th Cir.

1983) (doctrine of law of the case "must

(Footnote Continued)

a

A-40

changes in law or fact require different

results.

B. EIGHTH AMENDMENT LIBERTY

INTEREST

i Plaintiffs argue that the

existence of eighth amendment violations

in the administrative segregation units

(Footnote Continued)

yield to an intervening change of

controlling law between the date of the

first ruling and the retrial"); In re

Multi-Piece Rim Products Liability

Litigation, 653 F.2d 671, 678 (D.C. Cir.

1981 ecision may be reexamined in

light of changes in governing law);

EEOC v. International Longshoreman's

Ass'n, 623 F.2d 1054, 10 (5th Cir.

1980) (law of the case does not apply

when controlling authority has since made

a contrary decision of law inapplicable),

cert. denied, 451 U.S. 917, 101 S.Ct.

1997, 68 L.Ed.2d 310 (1981); White v.

Murtha, 377 F.2d 428, 431-32 (5th Cir.

1967) (intervening controling decision

constitutes exception to doctrine of the

law of the case), cited with approval in

Arizona v. California, 460 U.S. at 618 n.

S, 403 Bese. Gt aaee Oy Be

A-41

bs Bi nh Aine As OAs Data it

raises a due process liberty interest.

bien vs Wee

We disagree.

Plaintiffs’ sole authority for this

; proposition is a footnote from Justice

Stevens' dissenting opinion in Hewitt v.

Helm. We find this a curious use of

authority. Not only is the sole

authority a footnote from a dissenting

opinion, but the footnote does not

support plaintiffs' position. Justice

Stevens indicated that if such eighth

amendment violations existed, "the

Constitution would impose substantive,

rather than procedural limits on

transfers into segregated status.”

459 U.S. at 481 n. 4, 103 S.Ct. at 876

n. 4 (emphasis added).

| i2. Some fundamental considerations

support Justice Stevens' conclusion. The

state has no right to subject a prisoner

to cruel and unusual punishment. The

|

A-42

eighth amendment is not a "maybe" or a

"sometimes" proposition. If conditions

violate the eighth amendment, all

prisoners have the right to be free of

such conditions. The right does not vary

depending on the threat that the

individual prisoner represents to

institutional security. No amount of

process can justify subjecting a prisoner

to cruel and unusual punishment.

Moreover, acceptance of such an

argument would create an unworkable

standard. The assumption implicit in

plaintiffs' argument is that eighth

amendment viclations exist in the

segregation unit but do not exist in the

general population. If both locations

were infected with eighth amendment

violations, process would be a

meaningless gesture; it would make no

sense to interpose a constitutional

aU inch Sh; Sh re C

A-43

impediment to transfer from one place to

another when the conditions in both

locations are constitutionally

impermissible .22/

Assuming arguendo that the

conditions in the general population

lacked significant eighth amendment

violations, we would have to determine

what quantum of violation in

administrative segregation would be

12/ The conditions at San Quentin

perfectly illustrate the infirmities of

plaintiffs' arguement. While we focus on

the conditions in administrative

segregation, state-court litigation is

currently addressing the problems in San

Quentin's general population. See

Wilson v. Deukmejian, No. 103454 (Sup.ct.

Marin County, August 5, 1983) (Tentative

Decision and Proposed Statement of

Decision; Savitt, J.). Although we

hesitate to venture into areas beyond the

scope of this case, we cannot ignore

reality. Judge Savitt's proposed

decision paints as bleak a picture of the

conditions in San Quentin's general

population as does Judge Weigel's

description of the segregation units.

A-44

sufficient to create an eighth amendment

liberty interest. Wright v. Rushen,

642 F.2d at 1133-35, counsels that we

consider separately each condition that

allegedly contributes to the violation of

plaintiffs’ eighth amendment rights; a

variety of discrete conditions exist in

the segregation units. If we were to

find that the defendants cured one of the

conditions, would the eighth amendment

liberty interest evaporate? Or if we

were to find that a particular condition

in the general population violated the

eighth amendment, would the liberty

interest vanish? Or perhaps plaintiffs

would have us hold that a prisoner has an

interest in remaining with his own eighth

amendment violation and not being

subjected to another in its place.

Plaintiffs’ approach would require a

comprehensive determination regarding the

A-45

conditions throughout the prison, if not

the entire state prison system, to

determine whether the eighth amendment

created a due process liberty interest.

We decline to require such an ambitious

task in the name of such a dubious

proposition.

The presence of eighth amendment

violations in the segregation units,

therefore, does not create a liberty

interest. We will not parlay one

constitutional right into another.

Cc. STATE-CREATED LIBERTY INTEREST

Ave Several cases decided after the

Supreme Court affirmed the district

court's decision in Wright I illuminate

our perspective on state-created liberty

interests. Before we will recognize a

constitutionally protected liberty

A-46

interest, state law must direct that a

given action will be taken or avoided

only on the existence or nonexistence of

specified substantive predicates. See

Olim v. Wakinekona, 461 U.S. 238, 249,

103 S.Ct. 1741, 1747, 75 L.Ed.2d 813

(1983); Hewitt v. Helms, 459 U.S. 460,

470-72, 103 S.Ct. 864, 870-71, 74 L.Ed.2d

675 (1983); Greenholtz v. Inmates of the

Nebraska Penal and Correctional Complex,

422 U.S. 1, 11-12, 99 S.Ct. 2100, 2106,

60 L.Ed.2d 668 (1979); Meachum v. Fano,

427 U.S. 215, 226-27, 96 S.Ct. 2532,

2539, 49 L.Ed.2d 451 (1976); Allen v.

Board of Pardons, 792 F.2d 1404 (1986);

Roberts v. Spalding, 783 F.2d 867, 870

(9th Cir. 1986); MacFarland v. Cassady,

779 F.2d 1426, 1428 (9th Cir. 1985);

Baumann v. Arizona Department of

Corrections, 754 F.2d 841, 844 (9th Cir.

1985).

A-47

14. The adoption of guidelines to

structure the exercise of discretion does

not necessarily create a liberty

. interest. Roberts v. Spalding, 783 F.2d

at 870; Baumann v. Arizona Department of

Corrections, 754 F.2d at 844. As the

) Supreme Court has stated,

The creation of procedural

guidelines to channel the

decision-making of prison officials

is, in the view of many experts in

the field, a salutory development.

It would be ironic to hold that when

a state embarks on such desirable

experimentation it thereby opens the

. door to scrutiny by the federal

court, while states that choose not

| to adopt such procedural provisions

entirely avoid the strictures of the

Due Process Clause. The adoption of

such procedural guidelines, without

more, suggests that it is these

restrictions alone, and not those

federal courts might also impose

under the Fourteenth Amendment, that

the state chose to require.

Hewitt v. Helms, 459 U.S. at 471,

103 S.Ct. at 871.

i. The California Statutory

Sentence Credit Scheme

a

A-48

The district court held that

California Penal Code sections 2931

through 293343/ create a liberty interest

in sentence reducing credits. 597 F.Supp

at 1416-17.

In a nutshell, sections 2931 and

2933 create a two-tiered scheme:

Penal Code section 2933 provides

that a state prison inmate may

receive six months of worktime

credit for every six months of

full-time performance in a credit

qualifying work, training or

education program established by the

Director of Corrections. Prisoners

willing to participate ina

full-time credit qualifying

assignment, but who either are not

assigned to such a program, or are

to earn credits under the formula

provided for by Penal Code section

2931, which is a four-month combined

work and good behavior credit for

each eight months served.

People v. Vallardes, 162 Cal.App.3d 312,

320, 208 Cal.Rptr. 604, 608 (1984).

13/ See Appendix.

A-49

43. Examination of section 2933

leads to the conclusion that prisoners

have no right to earn the one-for-one

worktime credits provided by that

section. Section 2933 provides that

"([w]orktime credit is a privilege, not a

right." Cal.Penal Code § 2933(b).

Section 2933 expressly contemplates that

not all prisoners will be assigned to a

credit qualifying program. See Cal.Penal

Code § 2933(a) ("... every prisoner

willing to participate in a full-time

credit qualifying assignment but who is

either not assigned to full-time

assignment or is assigned to a program

for less that full time, shall receive no

less credit than is provided under

section 2931"). Although the California

legislature intended the worktime

sentence reducing scheme to instill a

work ethic, see People v. Vallardes,

A-50

162 Cal.App.3d at 321, 208 Cal.Rptr. at

609, it did not create an absolute right

to participate in work programs; the

legislature created only a "reasonable

opportunity." See Cal.Penal Code

§ 2933(b).

Moreover, a prisoner's “reasonable

opportunity to participate" must be

"consistent with institutional security

and available resources." See Cal.Penal

Code § 2933(b). Section 2933 delegates

broad authority to the Director of

Corrections to allocate worktime

resources between various categories of

prisoners. See, e.g., In re Barnes,

176 Cal.App.3d 235, 221 Cal.Rptr. 415,

416-17 (1985) (Department of Corrections

has established priority list;

segregation unit prisoners are at bottom

of list). Prisoners are not entitled

automatically to participate in worktime

ek Arnal lind tate Mises aceite is tc he GAAP axe

credit programs. People v. Rosaia,

157 Cal.App.3d 832, 848, 203 Cal.Rptr.

856, 867 (1984). There is no guarantee

that work programs will be available.

People v. Caruso, 161 Cal.App.3d 13, 16

n. 5, 207 Cal.Rptr. 221, 224 n. 5 (1984).

In sum, section 2933 merely creates a

possibility of early release; it does not

create a constitutionally protected

liberty interest. See Greenholtz v.

Inmates of the Nebraska Penal and

=

Correctional Complex, 442 U.S. 1,8-11,

99 S.Ct. 2100, 2104-05, 60 L.Ed.2d 668

(1979). Therefore, we conclude that

section 2933 does not create a liberty

interest in one-for-one worktime credits.

This conclusion, however, does not

address the question of whether section

2933 creates a liberty interest in the

one-for-two goodtime credits provided by

section 1931. Section 2931 applies by

A-52

its own terms to prisoners who are

incarcerated for crimes committed prior

to January 1, 1983 and who have not

waived the right to receive credits under

section 2931. Cal.Penal Code §§ 2931(d),

2934; see In re Ramirez, 39 Cal.3d 931,

933, 705 P.2d 897, 899, 218 Cal.Rptr.

324, 325-26 (1985), cert. denied,

U.S. , 106 S.Ct. 2266, 90 L.Ed.2d

711 (1986). More importantly for our

purposes, section 2933 establishes that

prisoners who are willing to participate

in the worktime credit scheme but who are

denied the opportunity to do so through

no fault of their own “shall receive no

less credit that is provided under

Section 2931." Cal.Penal Code § 2933(a).

Section 2931 provides that a

prisoner's sentence may be reduced by

four months for every eight months that

the prisoner serves. Three of the four

i A-53

months accrue automatically if the

prisoner commits no illegal acts or

serious disciplinary infractions.

Cal.Penal Code § 2931(b). One of the

four months is based solely on

participation in “work, educational,

vocational, therapeutic or other prison

activities." Cal.Penal Code § 2931l(c).

In practice, this one month credit is

granted unless a prisoner refuses to

accept work when offered. People v.

Austin, 30 Cal.3d 155, 161-62, 636 P.2d

1, 5, 178 Cal.Rptr. 312, 316 (1981);

15 Cal.Admin.Code § 3043; Cal.Penal Code

§§ 2931(c), 2932 (b); see also People v.

Sage, 26 Cal.3d 498, 510 n. 1, 611 P.2d

874, 880-81 n. 1, 165 Cal.Rptr. 280, 286

n. 1 (1980) (Bird, C.J., concurring and

dissenting).

16. While section 2931 differs

somewhat from the Nebraska statute at

/ |

A-54

issue in Greenholtz v. Inmates of the

Nebraska Penal and Correctional Complex,

442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668

(12979), in all material respects ‘it is

identical. Section 2931 contains the

"shall/unless" formula that we find

dispositive. See Baumann v. Arizona

Department of Corrections, 754 F.2d 841,

844 (9th Cir. 1985). Therefore, we

conclude that section 2931 creates a

constitutionally protected liberty

interest.

{[17, 18] The conclusion that

section 2931 creates a liberty interest,

however, does not assist plaintiffs in

this case. Since the defendants

generally grant the credit to segregated

prisoners, administrative segregation

does not implicate the liberty interest

arising from sections 2931 and 2933. The

existence of a liberty interest,

| A-55

therefore, is irrelevant and cannot

support the district court's holdings.24/

he California Decisional Law

The plaintiffs argue that "by virtue

niinteania sald cecil te te aie Bee Pe a

of its appellate court decisions applying

its constitution, California has created

a “substantial liberty interest in not

being placed in lockup by arbitrary

procedures." Plaintiffs primarily rely

on Conti v. Dyer, 593 F.Supp. 696

(N.D.Cal. 1984).

In Conti, the district court held

that California state-court decisions

14/ The distict court found that credits

due under sections 2931 and 2933 are not

invariably afforded. To the extent that

the defendants may from time to time deny

the credits due under sections 1931 and

2933, without affording a prisoner due

process of law, that prisoner may obtain

habeas corpus relief. See Preiser v.

Rodriguez, 411 U.S. 475, 500, 93 S.Ct.

1827, 1841, 36 L.Ed.2d 439 (1973).

a

A-56

created a liberty interest cognizable

under the federal Constitution. Id. at

700-02. The Conti court found that

California decisional law created a

federal liberty interest notwithstanding

the fact that the California courts

expressly reject federal due process

analysis and recognize a liberty interest

in freedom from all arbitrary state

action, Id. at 701; see People v.

Ramirez, 25 Cal.Rptr. 316, 320 (1979)

("When an individual is subjected to the

deprivatory governmental action he always

has a due process liberty interest both

in fair and unprejudiced decision making

and in being treated with respect and

dignity."); see also Inmates of Sybil

Brand Institute for Women v. County of

Los Angeles, 130 Cal.App.3d 89, 108,

181 Cal.Rptr. 599, 609 (1982).

ee eee ate a

A-57

The district court's decision in

Conti is not persuasive for several

reasons. First, the court failed to

acknowledge that the due process clause

of the fourteenth amendment and the due

process clause of the California

constitution seek to protect

qualitatively different inmates. Under

the fourteenth amendment, when the state

deprives a person of liberty, it must

provide that person with procedural

protection. Mathews v. Eldridge,

424 U.S. 319, 335, 96 S.Ct. 893, 903,

47 L.Ed.2d 18 (1976). Unless a liberty

interest is implicated, arbitrary' state

action does not violate the fourteenth

amendment. Hewitt, 459 U.S. at 466-69,

103 S.Ct. at 868-70. The due process

clause of the fourteenth amendment

focuses in relevant part on protecting

liberty. The due process clause of the :

A-58

California constitution also seeks to

protect liberty. But in addition, the

due process clause of the California

constitution seeks to promote accuracy

and reasonable predictability in all

government decision making when

individuals are subject to any

deprivatory action. People v. Ramirez,

158 Cal.Rptr. at 320. The California

constitution does not impose the

threshold requirement that a liberty

interest exist. Id.

Even though the distinction between

the two approaches will be academic in

some instances, the distinction is

critical in prisoners' rights cases.

Under federal due process analysis, a

legally incarcerated prisoner is stripped

of all but the most incremental interest

in liberty. Hewitt, 459 U.S. at 467,

103 S.Ct. at 869; Greenholtz v. Inmates

| A-59

of the Nebraska Penal and Correctional

Complex, 442 U.S. 1, 99 S.Ct. 2100,

60 L.Ed.2d 668 (1979). The federal

perspective instructs that arbitrary

decision making cannot deprive a person

of that which has already been taken.

Greenholtz, 442 U.S.at 8-ll, 99 S.Ct. at

2104-05. The threshold inquiry,

; therefore, is whether the state has given

back to the prisoner some liberty

interest that previously the state had

taken away. Stated alternatively, we

must determine to what extent the state

- Oo ee Re we Ber, 2h

has deprived a criminal defendant of

liberty in the first place.

{[19, 20] For federal purposes, the

extent and nature of the prisoners'

remaining or re-created liberty is

determined by looking for the substantive

conditions or predicates that must exist

before the state can again take the

Inertial

A-60

liberty away. Baumann v. Arizona

Department of Corrections, 754 F.2d. 841,

843-45 (9th Cir. 1985).42/ ‘the quantity

of procedural protections that a state

may offer prisoners is not dispositive in

determining the existence of a federal

liberty interest. Greenholtz, 442 U.S.

at 7, 99 S.Ct. at 2103. As the Court in

Olim v. Wakinekona, stated,

"{a) liberty interest is of course a

substantive interest of an

individual; it cannot be the right

to demand needless formality.”

{[Shango v. Jurich, 681 F.2d 1091,

1t00-61 (7th Cir. 1982).] Process

is not an end in itself. Its

15/ The difference between substantive

and procedural predicates to denial of

liberty can be illustrated as follows. A

person cannot be imprisoned unless he is

tried. The trial is the procedural

predicate to imprisonment. But merely

affording a person a trial does not

entitle the state to imprison a person;

the state must prove the person's guilt.

Guilt is the substantive predicate to

imprisonment. The procedural predicate

merely assists in determining the

existence of the substantive predicate.

a

A-61

constitutional purpose is to protect

a substantive interest to which the

individual has a legitimate claim of

entitlement.

461 U.S. at 250, 103 S.Ct. at 1748

(footnote omitted).

In contrast, the California due

process clause requires process

notwithstanding the absence of

substantive predicates or conditions.

People . Ramirez, 158 Cal.Rptr. at 320.

The state's provision of additional

protection is entirely permissible. But

the fact that the state courts call this

additional protection a liberty interest

does not make it so for the purposes of

the federal constitution. Although a

state court's determination of state law

binds the federal courts, interpretation

of the federal constitution cannot be

circumscribed by state definitions. The

California cases requiring heightened

procedural protection, therefore, do not

A-62

create a federally cognizable liberty

interest.

2. California Prison Regulation

The Plaintiffs argue that sections

3335 and 3336 of Title 15 of the

California Administrative Code create a

liberty interest. These sections govern

the placement and retentions of prisoners

in administrative segregation.

Our hesitance to construe a statute

or regulation as creating a liberty

interest is especially great when the

statute or regulation governs the

day-to-day administration of a prison.

Again, Hewitt instructs that

The deprivation imposed in the

course of daily operations of an

institution are likely to be minor

when compared to the release from

custody at issue in parole decisions

and goodtime credits. Moreover, the

safe and efficient operation of a

prison on a day-to-day basis has

traditionally been entrusted tot he

expertise of prison officials ....

These facts suggest that regulations

structuring the authority of prison

administrators may warrant

treatment, for purposes of creation

of entitlements to "liberty,"

different from statutes and

regulations in other areas.

Hewitt v. Helms, 459 at 470, 103 S.Ct. at

870 (citations omitted). Accordingly, we

have noted in the context of

inter-institutional transfers that

"{uJnless there is some guarantee that

transfer will not be effected except for

misbehavior or some other specified

reason, due process protections cannot

apply." Rizzo v. Dawson, 778 £.2d at 530

(emphasis added).

2i. We are convinced that sections

3335 and 3336, standing alone, do not

create a liberty interest. However, when

read in conjunction with section 3339 of

the California Administrative Code,

sections 3335 and 3336 withstand our

exacting scrutiny; they create a

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constitutionally protected liberty

interest.

Section 333526/ specifies those

circumstances requiring the immediate

removal of an inmate from the general

population. Nothing in section 3335

purports to limit the Department of

Correction's authority to segregate

inmates to the circumstances enumerated

in that section. The only mandatory

language in section 3335 runs to the

benefit of prisoners in the general

population; they have some expectation

that their dangerous neighbors will be

removed to administrative segregation.

Nothing in section 3335 suggests that a

prisoner shall be allowed to remain in

16/ See Appendix.

the general population absent the

specified circumstances.

Section 333622/ contains mandatory

language running to the benefit of the

segregated prisoner. Specifically,

section 3336 requires that a sufficiently

senior officer make the segregation

decision, that the decision be

documented, that the prisoner receive

assistance, if needed, in presenting bie

case, and that the prisoner be informed

of the reason for his segregation.

Sections 3335 and 3336 standing alone,

therefore, constitute a procedural

guideline that "channel[s] the

decision-making of prison officials."

See Hewitt, 459 U.S. at 471, 103 S.Ct. at

871. Such procedural requirements, even

17/ See Appendix.

if mandatory, do not raise a

constitutionally cognizable liberty

interest. Olim v. Wakinekona, 461 U.S.

at 250, 103 S.Ct. at 1748.

However, section 3339(a) provides

that "([rJelease from segregation status

shall occur at the earliest possible time

in keeping with the circumstances and

reasons for the inmate's initial

placement in administrative segregation.”

15 Cal.Admin.Code § 3339(a) (emphasis

added). Section 3339(a) indicates that

absent justification, a prisoner may not

be retained in administrative

segregation. The use of the word, shall,

constitutes the mandatory language needed

to create a liberty interest. See

Hewitt, 459 U.S. at 471-72, 103 S.Ct. at

871.

As the Supreme Court reasoned in

Hewitt, the word "shall" alone is not

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sufficient. Rather, the liberty interest

is created when the word "shall" is used

to mandate certain procedures "in

connection with requiring specific

substantive predicates for action."

459 U.S. at 472, 103 S.Ct. at 871

(emphasis added). Those substantive

predicates are contained in section 3335,

and include standards for removal from

the general inmate population where there

is an immediate threat to the inmate's

own safety or the safety of others, or

when institutional security is endangered

or the integrity of an investigation put

in jeopardy. These standards are

incorporated into section 3339 by that

section's reference to "the circumstances

and reasons for the inmate's initial

placement in administrative segregation."

We think, therefore, that the word

"shall," read in conjunction with these

specific substantive predicates, does

create a liberty interest in the present

case. We note, moreover, that the word

’

"shall" is not used simply to mandate an

investigation but to mandate immediate

release, absent procedures that determine

that the substantive predicates for

retaining the inmate in restrictive

custody are demonstrated.

V.

PROCEDURAL REQUIREMENTS GOVERNING

PLACEMENT AND RETENTION IN

ADMINISTRATIVE SEGREGATION

A. PLACEMENT

Our conclusion that the state has

created a liberty interest in freedom

from administrative segregation requires

us to determine the quantum of process

required by the fourteenth amendment.

The determination of what process is due

generally requires consideration of

three distinct factors: First, the

private interest that will be

affected by the official action;

A-69

second, the risk of an erroneous

deprivation of such interest through

the procedures used, and the

probable value, if any, of

additional or substitute procedural

safeguards; and finally, the

Government's interest, including the

function involved and the fiscal and

administrative burdens that the

additional or substitute procedural

requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335,

96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

"It is axiomatic that due process ‘is

flexible and calls for such procedural

protections as the particular situation

demands.'" Greenholtz v. Inmates of the

Nebraska Penal and Correctional Complex,

442 U.S. 1, 12, 99 S.Ct. 2100, 2106,

60 L.Ed.2d 668 (1979) (quoting

Mors issey v. Brewer, 408 U.S. 471, 481,

92 S.Ct. 2593, 2600, 33 L.Ed.2d 484

(1972)).

The district court incorporated the

procedural requirements mandated by the

three-judge court in Wright I. See

A-70

597 F.Supp. at 1424. The Wright I order

followed the procedures required for

disciplinary confinement and denial of

good time credits established in Wolff v.

McDonnell, 418 U.S. 539, 94 S.Ct. 2963,

41 L.Ed.2d 935 (1974). See Wright I,

462 F.Supp. at 403-05 .28/ The district

court also established additional

procedural requirements. The court

ordered the defendants to release a

18/ The Wolff procedures apply when a

state, for disciplinary reasons, seeks to

withdraw sentence credits that a prisoner

already has acquired. See Wolff,

418 U.S. at 555-58, 94 S.Ct. at 2974-75.

In Wolff, the Supreme Court held that a

prisoner facing misconduct charges be

accorded 24 hours' advance written notice

of the charges against him; the right to

call witnesses and present documentary

evidence in a manner consistent with

institutional security; if illiterate,

staff assistance in preparing a defense;

an impartial tribunal; and a written

statement explaining the basis of the

tribunal's decision. See Wolff v.

McDonnell, 418 U.S. at 563-72, 94 S.Ct.

at 2978-82.

A-71

prisoner no later than twelve months

after placement in administrative

segregation unless that prisoner is

afforded all the hearing rights that

attend the initial segregation decision.

597 F.Supp. at 1424. The court also

required disclosure of the identity of

any person providing information to

prison authorities unless disclosure

would endanger the safety of the source.

Id. at 1424-25. Finally, the court

prohibited segregation on the basis of

undisclosed information. Id. at 1425.

In Hewitt v. Helms, 459 U.S. 460,

103 S.Ct. 864, 74 L.Ed.2d 675 (1983), the

Supreme Court held that a lesser quantum

of process is due when a prisoner is

placed in administrative segregation than

is required by Wolff. The Court stated:

We think an informal, nonadversary

evidentiary review is sufficient

both for the decision that an inmate

represents a security threat and the

decision to confine an inmate to

administrative segregation pending

completion of an investigation into

misconduct charges against him. An

inmate must merely receive some

notice of the charges against him

and an opportunity to present his

views to the prison official charged

with deciding to transfer him to

administrative segregation.

Ordinarily, a written statement by

the inmate will accomplish this

purpose, although prison

administrators may find it more

useful to permit oral presentations

in cases where they believe a

written statement would be

ineffective. So long as this

occurs, and the decisionmaker

reviews the charges and then

available evidence against the

prisoner, the Due Process Clause is

satisfied,

459 U.S. at 476, 103 S.Ct. at 874. The

process mandated for administrative

segregation under Hewitt, therefore, is

substantially less than that required by

Part III of the Permanent Injunction.

Plaintiffs nonetheless argue that

Hewitt is distinguishable and a higher

quantum of process is due in the instant

Plaintiffs argue that they have a

iciceidteaenceeeceiaanenainait aaa

A-73

greater private interest than did the

prisoner in Hewitt, that the presence of

eighth amendment violations requires

heightened process, and that the

defendant’ noncompliance with prior court

orders requires a highly structured

administrative proceeding.

We disagree. We recognize that the

segregation units at issue in Hewitt were

modern facilities and that the

segregation units at San Quentin and

Folsom, in contrast, are riddled with

conditions that violate the plaintiffs'

eighth amendment rights. Nevertheless,

the Court in Hewitt proceeded on the

premise that placement in administrative

segregation would result in "severe

hardships." 459 U.S. at 467 ii. 4,

103 S.Ct. at 869 n. 4. The hardships

that a segregated prisoner in Hewitt

would face included "denial of access to

vocational, educational, recreational,

and rehabilitative programs, restrictions

on exercise, and confinement to [one's]

cell for lengthy periods of time." Id.;

see id. at 479-80 n. 1, 103 S.Ct. at

875-76 n. 1 (Stevens, J., dissenting).

the distinction between the private

interest at issue in Hewitt and that at

issue here is not as extreme as the

plaintiffs assert.

In addition, the state's interest in

maintaining security in San Quentin and

Folsom is at least as great, if not

greater, than the state's interest shown

in Hewitt. The inmate population at San

Quentin and Folsom is composed of the

most violent and anti-social offenders in

the California prison system. See

597 F.Supp. at 1394, 1404-05. Given the

disruptive propensities of the inmate

populat/ »n, we are especially sensitive

A-75

to the Supreme Court's admonition that

"([t)he safety of the institution's guards

and inmates is perhaps the most

fundamental responsibility of the prison

administration." Hewitt, 459 U.S. at

473, 103 s.ct. at 872.42/ ‘the state's

interest in maintaining safety and

security weighs heavily in favor of

avoiding prolonged and cumbersome

administrative proceedings.

Finally, the value of Wolff-type

procedures was minimal in the context of

the decision to segregate a prisoner for

19/ Once again, we note that failure to

remove dangerous prisoners from the

general population may amount to a breach

of the state’ constitutional duties. See

Wright v. Rushen, 642 F.2d. at 1134 n. 3

(citing Williams v. Edwards, 547 F.2d.

1206, 1211 (5th Cir. 1977); see also

Thomas v. Booker, 784 £.2d 299, 303 (8th

Cir.) fen banc), cert. denied, U.S.

, 106 S.Ct. 1975, 90 L.Ed.2d 659

(1586).

A-76

administrative reasons. When determining

whether the prisoner was guilty of

misconduct, as was the case in Wolff, the

inquiry is essentially factual. The

prison administrator seeks to determine

whether the prisoner committed the

alleged offense. When deciding whether

administrative segregation is needed,

however, the administrator relies largely

on subjective factors:

In assessing the seriousness of a

threat to institutional security,

prison administrators necessarily

draw on more than specific facts

surrounding a particular incident;

instead, they must consider the

character of the inmates confined in

the institution, recent and

longstanding relations between

prisoners and guards, prisoners

inter se, and the like. In the

volatile atmosphere of a prison, an

inmate easily may constitute an

unacceptable threat to the safety of

other prisoners and guards even if

he himself has committed no

misconduct; rumor, reputation, and

even more imponderable factors may

suffice to spark potentially

disastrous incidents. The judgment

of prison officials in this context,

like that of those making parole

A-77

decisions, turns largely on purely

subjective evaluations and on

predictions of future behavior;

indeed, the administrators must

predict not just one inmates future

actions, as in parole, but those of

an entire institution.

Hewitt v. Helms, 45f9 U.S. at 474,

103 S.Ct. at 872-73 (citations omitted);

see also Jones v. North Carolina

Prisoner' Labor Union, Inc., 433 U.S.

119, 132-33, 97 S.Ct... 2532, 2541,

53 L.Ed.2d 629 (1977); 15 Cal.Admin. Code

§ 3338(da), (e). A trial-like proceeding

is unlikely to inform a prison

administrator regarding such subjective

considerations. See Clark v. Brewer,

776 F.2d at 235.

[22] We conclude that when prison

officials initially determine whether a

prisoner is to be segregated for

administrative reasons due process only

requires the following procedures:

Prison officials must hold an informal

A-78

nonadversary hearing within a reasonable

time after the prisoner is segregatea.22/

The prison officials must inform the

prison of the charges against the

prisoner or their reasons for considering

segregation; Prison officials must allow

the prisoner to present his views.

[23] We specifically find that the

due process clause does not require

detailed written notice of charges,

representation by counsel or

counsel-substitute, an opportunity to

present witnesses, or a written decision

describing the reasons for placing the

prisoner in administrative segregation.

20/ The district court's requirement

that a hearing be held within 72 hours of

segregation constitutes a "reasonable

time." See Hewitt v. Helms, 459 U.S. at

476-78 nn. 8 & 9, 103 S.Ct. at 874 nn. 8

& 9. We intimate no view as to whether

due process would tolerate a more lengthy

delay.

A-79

Cf. Wright I, 462 F.Supp at 404-05;

Toussaint III, 597 F.Supp. at 1424. We

also find that due process does not

require disclosure of the identity of any

person providing information leading to

the placement of a prisoner in

administrative segregation. Cf.

Toussaint III, 597 F.Supp. 1424-25.

B. RETENTION

In Part III(B)(1) of the Permanent

Injunction, the district court ordered

defendants to release prisoners form

administrative segregation on the

prisoner's Minimum Eligible Release Date

or at the expiration of twelve months of

consecutive confinement, whichever is

shorter, unless the defendants afford the

prisoner all the hearing rights that

attend initial placement in segregation.

A-80

In Hewitt, the Supreme Court

instructed that administrative

segregation --

may not be used as a pretext for

indefinite commitment of an inmate.

Prison officials must engage in some

sort of periodic review of the

confinement of such inmates. This

review will not necessarily require

that prison officials permit the

submission of any additional

evidence of statements. The

decision whether a prisoner remains

a security risk will be based on

facts relating to a particular

prisoner -- which will have been

ascertained when determining to

confine the inmate to administrative

segregation -- and on the official's

general knowledge of prison

conditions and tensions, which are

singularly unsuited for "proof" in

any highly structured manner.

Likewise, the decision to continue

confinement of an inmate pending

investigation of misconduct charges

depends upon circumstances that

prison officials will be aware of --

most typically, the progress of the

investigation.

Hewitt, 459 U.S. at 477 n. 9, 103 8.Ct.

at 874 n. 9. The Third Circuit,

similarly, has stated "the governmental

interest involved in a good faith

A-81

decision to subject a prisoner to

administrative segregation may fluctuate

with the passage of time and change of

circumstances." Mims v. Shapp, 744 F.2d.

946, 953 (3rd Cir. 1984).

[24] In Mims v. Shapp, the Third

Circuit found that monthly review of a

prisoner's status satisfied due process

concerns. 744 F.2d at 952. Similarly,

in Clark v. Brewer, the Eighth Circuit

held that review every seven days for the

first two months of segregation followed

by regular review hearings every thirty

days thereafter satisfied due process

requirements. 776 F.2d at 234. Here,

however, segregation may continue without

review for as long as twelve months. We

do not believe the annual review

sufficiently protects plaintiffs' liberty

interest. However, we intimate no view

as to the frequency of periodic review

A-82

required. That is for the parties to

recommend and the district court to

decide in the first instance.

vi.

SUBSTANTIVE CRITERIA GOVERNING

PLACEMENT AND RETENTION IN

ADMINISTRATIVE SEGREGATION

[25] In Parts III(B) and IV(B) of

the Permanent Injunction, the district

court imposed criteria governing

placement and retention of prisoners in

administrative segregation. See

597 F.Supp. at 1424, 1426. The district

court required that a prisoner not be

placed or retained in segregation unless

allowing the prisoner to remain in the

general population would severely

endanger the lives of prisoners, the

security of the institution, or the

integrity of an investigation into

suspended criminal activity or serious

A-83

misconduct. Defendants argue that these

criteria impose unwarranted limitations

on prison management.

On their face, the substantive

requirements merely restate the reasons

justifying administrative segregation.

See 15 Cal.Admin. Code § 3335(a). In

Hewitt, the Supreme Court recognized that

"(t]he safety of the institution's guard

and inmates is perhaps the most

fundamental responsibility of the prison

administration." 459 U.S. at 473,

103 S.Ct. at 872. The substantive

requirements accommodate this concern.

The Court in Hewitt also stated that

administrative segregation of a prisoner

"pending investigation of charges against

him serves important institutional

interests relating to the insulating of

possible witnesses from coercion or

harm." Id. The substantive criteria

A-84

accommodate the prison administration's

interests in this regard as well.

Moreover, the substantive criteria apply

only to placement or retention in

administrative segregation. The criteria

do not impinge on defendant's ability to

hold disciplinary hearings and to punish

prisoners for misconduct. Since

administrative segregation must not be a

pretext for punitive isolation, Hewitt,

459 U.S. at 477 n. 9, 103 S.Ct. at 874

n. 9, the substantive criteria assure

that plaintiffs' due process rights are

not meaningless gestures. The district

court, therefore, did not abuse its

discretion in fashioning these

substantive criteria.

A-85

vil.

THE INTERIM PERIOD REMEDIES

In Part IV of the Permanent

Injunction, the district court

established an additional layer of relief

to apply during the “interim period."

The court defined the interim period as

that time between the date on which the

Permanent Injunction issued and the date

21/

on which the Monitor— certifies that

defendants are "in full compliance with

the Permanent Injunction and that

conditions of confinement in segregation

units at San Quentin and Folsom do not

violate the Constitution." 597 F.Supp.

22/

at 1425.— The court ordered that any

21/ The Monitor is a special master,

appointed pursuant to Fed.R.Civ.P. 53.

See 597 F.Supp. at 1425.

22/ Although Part IV of the Permanent

(Footnote Continued)

A-86

prisoner assigned to segregation could

request release and, if the defendants

denied the request, the prisoner could

obtain review by the Monitor to order the

release of individual prisoners from

administrative segregation. Id. at 1426.

A. Habeas Corpus Jurisdiction

The defendants argue that the

district court lacks jurisdiction under

42 U.S.C. § 1983 to order prisoners

released from administrative segregation .2>/

(Footnote Continued)

Injunction speaks of “interim” relief, we

question whether the district court can

retain jurisdiction once the defendants

meet the conditions specified in Part IV.

See generally Riddick v. School Board of

the City of Norfolk, 784 F.2d 521 (4th

Cir. 19 . Of course, this litigation

has not reached a point demanding

resolution of this question.

23/ We note sua sponte that the district

“(Footnote Continued)

A-87

Defendants contend that under Preiser v.

Rodriquez, 411 U.S. 475, 93 S.Ct. 1827,

36 L.Ed.2d 439 (1973), the writ of habeas

corpus is the exclusive federal remedy

(Footnote Continued)

court's delegation to the Monitor of the

power to order release raises serious

constitutional questions. See e.g.,

Northern Pipeling Construction Co. ¥.

Marathon Pipe ine Co., 458 U. z 50,

S.Ct. 9 L.Ed.2d 598 (1982);

United States v. Raddatz, 447 U.S. 667,

". ’ L.Ed.2d 424 (1980);

Fiss, The Social and Political Foundation

of Adjudication, 6 Law & Human Benav. 121

; Note, Article III constraints and

the. Expanding Civil Jurisdiction of

Federal Magistrates: A Dissenting View,

Yale L.J. (1979). We have found

no case in which such a broad delegation

of power to a special master has

withstood review. Nevertheless, the

defendants do not object to the

delegation of power to the Monitor;

defendants contest the authority of the

court itself to order the release of

prisoners from administrative

segregation. Therefore, we do not wish

our silence to be taken as a ratification

of the distict court's order.

A-88

available to a prisoner who seeks to

challenge the fact of confinement, and

that the district court's order evades

the requirement that the prisoner exhaust

state remedies. Preiser does not support

defendants" contentions.

In Preiser, state prisoners sued in

federal district court under 42 U.S.C.

§ 1983 alleging that they were deprived

of goodtime credits improperly. 411 U.S.

at 476, 93 S.Ct. at 1829. The prisoners

sought injunctive relief to compel

restoration of the credits. Id. The

Supreme Court held that "when a state

prisoner is challenging the very fact or

duration of his physical imprisonment,

and the relief he seeks is a

determination that he is entitled to

immediate release or a speedier release

from that imprisonment, his sole federal

A-89

remedy is a writ of habeas corpus." Id.

at 500, 93 s.ct. at 1941.24/

In Wolff v. McDonnell, 418 U.S. 539,

554-55, 94 S.Ct. 2963, 2973-74,

41 L.Ed.2d 935 (1974), however, the

Supreme Court held that Preiser only

precludes restoration of credits under

42 U.S.C. § 1983. The Court stated “that

it was proper for the Court of Appeals

and the District Court to determine the

validity of the procedures for revoking

good-time credits and to fashion

24/ The Court also stated in dictum that

“when a prisoner is put under additional

and unconstitutional restraints during

his lawful custody, it is arguable that

habeas corpus will lie to remove the

restraints making the custody illegal.”

Id. 411 U.S. at 499, 93 S.Ct. at 1841.

One court has followed this reasoning and

held that habeas corpus provided the

exclusive remedy for obtaining an order

compelling release from administrative

detention. Boudin v. Thomas, 732 F.2d

1107, 1111-12 (2d Cir. 1984).

A-90

appropriate remedies for any

constitutional violations ascertained,

short of ordering the actual restoration

of good time already cancelled.” Id. at

555, 94 S.Ct. at 2974 (footnote omitted;

emphasis added).

[26] Here, the district court did

not restore credits nor release any

prisoner from prison. The court, in

essence, authorized the Monitor to move

individual prisoners from one location to

another within the prison. We do not

believe that such relief falls within the

traditional core of habeas corpus.

Consequently, the plaintiffs need not

exhaust state remedies before seeking

relief in federal court. The district

court did not exceed its jurisdiction by

authorizing the release of prisoners from

administrative segregation.

|

a ee

A-91

B. Standard of Review Employed by the

Monitor

Part IV(D) of the Permanent Injunction

authorizes the Monitor to review records

of defendants' placement and retention

decisions, to accept additional evidence,

and to order a prisoner's release "[i]f

the Monitor concludes on the basis of all

evidence submitted, that the prisoner was

placed or retained in segregation in

violation of any provision of [the]

Permanent Injunction ...." 597 F.Supp.

at 1416. Defendants argue that the

district court abused its discretion by

authorizing the Monitor to review

defendants’ placement and retention

decisions de novo.

We have already determined that the

district court properly imposed

substantive standards to be used in

deciding whether to segregate a prisoner

or retain a prisoner in segregation. The

A-92

question here is who should apply those

standards and how much evidence is

required in stipport of a segregation or

retention decision.

must

Prison administrators, not courts,

run prisons:

[A] prison's internal security is

peculiarly a matter normally left to

the discretion of prison

administrators. In assessing the

seriousness of a threat to

institutional security, prison

administrators necessarily draw on

more than specific facts surrounding

a particular incident; instead, they

must consider the character of the

inmates confined in the institution,

recent and longstanding relations

between prisoners and guards,

prisoners inter se, and the like.

In the volatile atmosphere of a

prison, an inmate easily may

constitute an unacceptable threat to

the safety of other prisoners and

guards even if he himself has

committed no misconduct; rumor,

reputation, and even more

imponderable factors may suffice to

spark potentially disastrous

incidents. The judgment of prison

officials in this context, like that

of those making parole decisions,

turns largely on purely subjective

evaluations and on predictions of

future behavior; indeed, the

administrators must predict not just

eee

A-93

one inmate's future actions, as in

parole, but those of an entire

institution.

Hewitt, 459 U.S. at 474, 103 S.Ct. 873

(citations omitted); see also Jones v.

North Carolina Prisoners' Labor Union,

Inc., 433 U.S. 119, 132-33, 97 S.Ct.

2532, 2541, 53 1.Ed.2d 629 (1977).

Courts must accord wide-ranging

deference to prison administrators "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." Bell v. Wolfish, 441 U.S.

520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d

447 (1979). "“[W)jhere state penal

institutions are involved, federal courts

have a further reason for deference to

the appropriate prison authorities."

Procunier v. Martinez, 416 U.S. 396, 405,

94 S.Ct. 1800, 1807, 40 L.Ed.2d 224

A-94

(1974). We recognize, sinenawer "that

‘the relationship of state prisoners and

the state officers who supervise their

confinement is far more intimate than

that of a state and a private citizen,'

and that the "internal problems of state

prisons involve issues ... peculiarly

within state authority and expertise.'"

Pell v. Procunier, 417 U.S. 817, 825-26,

94 S.Ct. 2800, 2805, 41 L.Ed.2d 495

(1974) (quoting Preiser v. Rodriquez,

411 U.S. 475, 492, 93 S.Ct. 1827, 1837,

36 L.Ed.2d 439 (1973)). The need to

restrict injunctive relief to enforcement

of minimum constitutional rights is

especially great when federal judicial

relief threatens to usurp such highly

discretionary state functions.

The Supreme Court's decision in

Superintendent v. Hill, U.S. ’

105 S.Ct. 2768, 86 L.Ed2d 356 (1985),

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A-95

indicates that the due process clause

requires only the existence of "some

evidence" in support of a prison

ateinistecator's segregation decision.

Id. at 2770.

In Hill, the plaintiff, a prisoner,

was charged with misconduct for

assaulting another inmate. Id. At the

disciplinary hearing, a guard testified

that he heard a scuffle, found the victim

bleeding from the mouth, and observed the

plaintiff and two other inmates jogging

away down an enclosed corridor. Id. No

evidence was adduced concerning which of

the three retreating inmates caused the

victim's injuries. Id. The victim

providwi written statements that the

other inmates had not caused his

injuries. Id. The prison disciplinary

board withdrew 100 days of plaintiffs'

good time credit and ordered that

A-96

plaintiff be confined in isolation for 15

days. Id. The plaintiff challenged the

prison administration's decision in state

court, which granted summary judgment in

plaintiff's favor. Id. The

Massachusetts Supreme Court affirmed on

the ground that the record failed to

reflect any evidence that would support

the disciplinary board's findings. Id.

at 2771. The United States Supreme Court

reversed. Id.

The Court held that "revocation of

good time does not comport with minimum

requirements of procedural due process

unless the findings of the prison

disciplinary board are supported by some

evidence in the record." Id. at 2773

(citations omitted). The Court held that

the evidence recited above was

sufficient. Id. at 2775. The Court's

reasoning merits recitation at length:

De entered oar.

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Where a prison has a liberty

interest in good time credits, the

loss of such credits threatens his

prospective freedom from confinement

by extending the length of

imprisonment. Thus the inmate has a

strong interest in assuring that the

loss of good time credits is not

imposed arbitrarily. This interest,

however, must be accommodated in the

distinctive setting of a prison,

where disciplinary proceedings "take

place in a closed, tightly

controlled environment peopled by

those who have chosen to violate the

criminal law and who have been

lawfully incarcerated for doing so."

Consequently, in identifying the

safeguards required by due process,

the Court has recognized 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.

Requiring a modicum of evidence

to support a decision to revoke good

time credits will help to prevent

arbitrary deprivations without

threatening institutional interests

imposing undue administrative

burdens.

Because the written statement

mandated by Wolff requires a

disciplinary board to explain the

evidence relied upon, recognizing

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that due process requires some

evidentiary basis for a decision to

revoke good time credits will not

impose significant new burdens on

proceedings with the prison. Nor

does it imply that a disciplinary

board's factual findings or

decisions with respect to

appropriate punishment are subject

to second-guessing upon review.

We hold that the requirements

of due process are satisfied if some

evidence supports the decision by

the prison disciplinary board to

revoke good time credits. This

standard is met if "there was some

evidence from which the conclusion

of the administrative tribunal could

be deduced ..." Ascertaining

whether this standard is satisfied

does not réquire examination of the

entire record, independent

assessment of the credibility of

witnesses, Or weighing of the

evidence. Instead, the relevant

question is whether there is any

evidence in the record that could

support the conclusion reached by

the disciplinary board. We decline

to adopt a more stringent

evidentiary standard as a

constitutional requirement. Prison

disciplinary proceedings take place

in a highly charged atmosphere, and

prison administrators must often act

Swiftly on the basis of evidence

that might be insufficient in less

exigent circumstances. The

fundamental fairness guaranteed by

the Due Process Clause does not

require courts to set aside

+ senate cumciaiiaiaa.

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»

decisions of prison administrators

that have some basis in fact.

Id. at 2774 (quotations and citations

omitted, emphasis added).

[27,28] The Court's decisions in

Hewitt and Hill lead to two conclusions:

First, the exigencies of prison

administration allow prison

eisiateccotase to make segregation

decisions on the basis of "some

evidence," including the administrator's

evidence and awareness of general prison

conditions; second, a reviewing court may

not reverse the administration's decision

if "some evidence" supports the

administration's decision.

[29] Plaintiffs seek to distinguish

i in litinn ne BP Ln OA

Hill on the basis that "the issue before

this Court is not what due process

requires, but rather, whether the

district court abused its discretion in

formulating a remedy for proven

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violations of the Constitution (including

Eighth Amendment Rights)." We reject

this argument for reasons similar to

those we gave in holding that eighth

amendment violations do not create a

liberty interest. See supra pages

1093-94. A prisoner who presents a clear

security risk enjoys exactly the same

eighth amendment protection as does the

most placid prisoner. The fact that

justification exists for segregating a

particular prisoner will not assuage his

sufferings. Therefore, close scrutiny of

prison officials' segregation decisions

will do little to protect plaintiffs'

eighth amendment rights.2>/

25/ Moreover, if Judge Savitt's

conclusions regarding the conditions in

the general population are correct, see

supra note 12, interfering in segregation

decisions, would be futile, at least as

(Footnote Continued)

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[30,31] We also do not consider

the defendants’ history of noncompliance

with prior orders to constitute a valid

reason for this court to arrogate to

itself the discretion imposed on the

defendants. The earlier orders demanded

much more of the defendants than the law

now requires. Our purpose is not to

punish defendants for their past

failures, but to enforce compliance with

current constitutional standards. We

perceive no reason why the defendants

would be unwilling to comply with the

requirements we have established. But

even if defendants failed to comply, de

novo review by the court or the Monitor

would be unwarranted. The district court

could assure itself that the defendants

(Footnote Continued)

far as the San Quentin plaintiffs are

concerned.

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were complying with the constitution

simply by examining the record for "some

evidence" in support of each challenged

segregation decision. The district court

abused its discretion by allowing the

Monitor to substitute his discretion for

that of the defendants. 2°!

VIIt.

THE WORK REQUIREMENT

In Part III(C) of the Permanent

Injunction, the district court ordered

that no prisoner assigned to

26/ We note that Part IV(D) of the

Permanent Injunction appears to allow a

segregated prisoner to obtain repeated

review of his status. As we have

discussed above, due process requires

only reasonable periodic review. See

Clark v. Brewer, 776 F.2d at 234. On

remand, if the district court decides

that review by the court or the Monitor

is required, the court shall not require

more frequent review than is necessary to

protect plaintiffs' due process rights.

rt itt

A~103

administrative segregation be denied the

opportunity to participate in work,

education, or vocational training

programs. 597 F.Supp. at 1425.

Re Due Process

[32,33] Plaintiffs contend that

Part III(C) is necessary to the

enforcement of plaintiffs' due process

rights. This is not true. Requiring

prison officials to provide work programs

is an inappropriate remedy. The due

process clause seeks to prevent denial of

life, liberty or property by arbitrary

decision. Hewitt, 459 U.S. at 7,

103 S.Ct. at 873; Greenholtz, 442 U.S. at

7, 99 S.Ct. at 2103. The due process

clause requires procedure. See

Mathews v. Eldridge, 424 U.S. at 335,

96 S.Ct. at 903. The district court's

order, however, does not relate to

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endorsement of procedural protections.

The work requirement relates only to the

conditions of confinement. To the extent

Part III(C) merely constitutes an

enforcement of state law, it violates the

eleventh amendment. Pennhurst State

School and Hospital v. Halderman,

465 U.S. 89, 97-121, 104 S.Ct. 900,

906-919, 79 L.Ed.2d 67 (1984).

B. Eighth Amendment

[34] In Hoptowit v. Ray,

682 F.2d at 1254-55, 1258, we held that

"{i]Jdelness and the lack of programs are

not eighth amendment violations. The

lack of these programs simply does not

amount to the infliction of pain.” The

district court recognized this language

as controlling. 597 F.Supp. at 1414.

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27/

Plaintiffs,—’ nonetheless, urge us to

27/ Plaintiffs failed to brief this

issue in their opposition brief and

opening brief on cross-appeal, but

instead refer us to the briefs filed by

amici, the Bar Association of San

Francisco, the San Francisco Lawyers

Committee on Urban Affairs, and the

California Attorneys for Criminal

Justice. Defendants object to

consideration of this issue on the basis

that an argument made on appeal by amici,

but not by the parties, is not properly

before the reviewing court. In each of

the cases cited by defendants, the courts

refused to tonsider issues not raised by

the parties. See United States Parcel

Service, Inc. v. Mitchell, 451 U.S. 56,

60 n. 2, 1015.Ct. 1559, 1562 n. 7

67 L.Ed.2d 732 (1981); Bell v. Wolfish,

441 U.S. 520, 531 n. 13, 99 S.Ct. 1861,

1870 n. 13, 60 L.Ed.2d 447 (1979);

Nietsch v. United States, 364 U.S. 361,

370, 81 S.Ct. 132, 137, 5 L.Ed.2da 128

(1970); Wiggins Bros., Inc. v. Department

of Energy, 287 F.2d 7, 83 (Temp. Emer.

Ct.App. 1981), cert denied, 456 U.S. 905,

102 S.Ct. 1749, 72 L.Ed.2d 161 (1982);

National Comm'n on Egg Nutrition v.

Federal ‘Trade ‘Comm'n, 570 F.2d 157, 160

n. 3 (7th Cir. 1977), cert. denied,

439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113

(1978). In the instant case, however,

plaintiffs raised the issue but failed to

breif it. Moreover, plaintiffs argue

this issue in their reply brief on

(Footnote Continued)

A-106

reverse the Jjistrict court's decision

that enforced idleness is not a violation

of the eighth amendment. Plaintiffs

implicitly urge us to overrule

Hoptowit v. Ray.

To arrive at the desired result,

plaintiffs believe that two logical steps

must be taken. First, plaintiffs urge us

(Footnote Continued)

cross-appeal. The plaintiffs obtained

leave of court to file the 75 page brief.

The amici briefs add 39 pages of argument

in support of plaintiffs' request on this

issue. By incorporating amicis'

arguments by reference, plaintiffs have

circumvented the page limits set by the

court.

Although we do not condone such

practices generally, we recognize that

this case presents a number of weighty

constitutional issues. The defendants

have had every opportunity to respond to

the arguments of plaintiffs and amici

and, in fact, have briefed this issue.

Justice would not be served by ignoring

the amicis' arguments. Therefore, we

exercise our discretion to consider this

issue.

To avoid confusion, henceforth, we

will refer to plaintiffs and amici solely

as plaintiffs.

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A-107

to clarify the language in our prior

opinions regarding the proper framework

for analyzing an alleged eighth amendment

violation. Second, plaintiffs urge us to

reject or limit our holding in

Hoptowit v. Ray, regarding idleness.

[35] In Hoptowit v. Ray, we

considered the eighth amendment

analytical framework at length. See

682 F.2d at 1246-47. Our discussion

leads to the undeniable conclusion that

we follow the “related condition"

approach urged by plaintiffs. Plaintiffs

object, however, to one statement in

Hoptowit. In Hoptowit we stated, inter

alia, that "[a] number of conditions,

each of which satisfy Eighth Amendment

requirements, cannot in combination

amount to an Eighth Amendment violation."

682 F.2d at 1247. To the extent that

this sentence creates uncertainty or

A-108

ambiguity regarding the analytical ‘

framework employed in this circuit, such

uncertainty or ambiguity may be rectified

easily. We meant that a number of

unrelated conditions, each of which

satisfy eighth amendment requirements,

cannot in combination amount to an eighth

amendment violation. See Wright v.

Rushen, 642 F.2d at 1133.

Plaintiffs contend that Hoptowit v.

Ray, ignores related conditions’ by

creating a per se rule that enforced

idleness does not constitute cruel and

unusual punishment. Plaintiffs argue

that by applying Hoptowit's per se rule,

the district court failed to consider

related conditions that, when combined

with enforced idleness, would create a

cruel and inhuman situation.

[36] Plaintiffs' arguments are

unpersuasive for several reasons. First,

related conditions are those conditions

that combine to deprive a prisoner of a

discrete basic human need. Hoptowit v.

Ray, 682 F.2d at 1246. The discrete

basic human needs that prison officials

must satisfy include food, clothing,

shelter, sanitation, medical care, and

personal safety. Id.; Wright v. Rushen,

642 F.2d at 1132-33. Enforced idleness,

taken alone, simply does not deprive a

prisoner of any of these basic needs.

See Hoptowit v. Ray, 682 F.2d at 1254-55.

28/ Although medthods of analysis

differ, each circuit that has considered

the issue has held that enforced idleness

does not constitute cruel and unusual

punishment. See Jackson v. Meachum,

699 F.2d 578, 581-85 (ist Cir. 1983)

(cataloging decisions of other circuits);

see also Madyun v. Thompson, 657 F.2d

868, 874 (7th Cir. 1981); Ramos v. Lamn,

639 F.2d 559, 566-67 (10th Cir. 1980),

cert. denied 450 U.S. 1041, 101 S.Ct.

(Footnote Continued)

A-110

Second, plaintiffs do not identify

any condition that would support a

finding that enforced idleness created an

eighth amendment violation in this case.

Plaintiffs point to the violence and

psychological pain that enforced idleness

engenders. Related conditions, however,

are not those that result from another

condition, but those that in combination

(Footnote Continued)

1759, 68 L.Ed.2d 239 (1981); Bono v.

Saxbe, 620 F.2d 609, 614-15 (7th Cir.

1980); Newman v. Alabama, 559 F.2d 283

(Sth Cir. 1977), rev'd in part on other

grounds sub nom. Alabama v. Pugh,

438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d

1114 (1978); Sweet v. South Carolina

Department of Corrections, 529 F.2d 854,

861 (4th Cir. 1975); Sostre v. Mcginnis,

442 F.2d 178, 192-93 (2nd Cir. 1971),

cert. denied 404 U.S. 1049, 92 S.Ct. 719,

30 L.Ed.2d 740 (1972). The expert

opinions cited by plaintiffs are entitled

to little weight in determining whether a

particular condition constitutes cruel

and unusual punishment. Rhodes v.

Chapman, 452 U.S. 337, 348 n. 13,

101 S.Ct. 2392, 2400 n. 13, 69 L.Ed.2d 59

(1981). We adhere to our holding in

Hoptowit v. Ray.

create a cruel and unusual punishment.

See, e.g. Wright v. Rushen, 642 F.2d at

1134; Spain v. Procunier, 600 F.2d 189,

199 (9th Cir. 1979). In reality,

plaintiffs urge us to hold as a matter of

law that "lengthy enforced idleness does

not comport with contemporary standards

of decency, and that work, educational,

and vocational programs are

édamktintionntiy mandated." Plaintiffs,

therefore, implicitly ask us to ieatreie

Hoptowit v. Ray, and create a per se rule

to the contrary.

Third, even if we held that enforced

idleness in administrative segregation

constitutes cruel and unusual punishment,

it does not follow that mandating work

programs is the appropriate remedy. An

injunction must be narrowly tailored to

cure the constitutional violation and

must not intrude on the functions of

state officials unnecessarily. We would

violate this principle by holding as a

matter of law that provision of work

programs is the necessary remedy for

enforced idleness. See supra note 4;

Grummett v. Rushen, 779 F.2d at 496-97

(Sneed, J., concurring).

Fourth, whether or not Hoptowit

states a per se rule, the district court

did not apply it as such. Plaintiffs

distort the district court's factual

findings and legal reasoning to create

the impression that the district court

failed to consider the effect of enforced

idleness on the plaintiffs. The district

court, however, considered several

factors in concluding that idleness did

not rise to an eighth amendment

violation. The court stated that --

the denial of programs to plaintiffs

is not ‘totally without penological

justification.' At least in theory,

each plaintiff has been selected for

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segregation on the basis of criteria

indicating that he is in some way

unfit or unsuited for intermingling

with other inmates, whether because

he has misbehaved, because he

presents a threat to the safety of

other inmates, or because he has

requested isolation from other

inmates for his own protection.

597 F.Supp. at 1414. The district court,

therefore, did not blindly follow a per

se approach .22/

[37] The plaintiffs' argument

largely depends on the assertion that

enforced idleness engenders a high degree

29/ Regardless of the ambiguity in this

circuit's description of the eighth

amendment analytical framework, it is

abundantly clear that the district court

adopted and applied the related

conditions approach throughout its

opinion. See e.g. 597 F.Supp. at 1408

(if all other conditions are

satisfactory, segregating inmates in

small cells is not eighth amendment

violation); id. at 1409 (under prevailing

conditions, double celling is cruel and

inhuman); id. at 1411 (conditions of

filth require that inmates be provided

with hot running water or periodic

showers.)

A-114

of violence. Plaintiffs attempt to draw

a close connection between enforced

idleness and violence in the instant case

by stating that "The District Court

specifically found that '[l]ockup units

at San Quentin and Folsom are counted

among the most violence-racked

correctional facilities in the United

States.... In part, it may be due to the

fact that lockup units have no

programs.'" The district court's

findings indicate that the connection

between violence and enforced idleness in

administrative segregation is

substantially more attenuated than

plaintiffs would have us believe. The

district court stated in full:

Lockup units at San Quentin and

Folsom are counted among the most

violence-racked correctional

facilities in the United States. In

part, this is due to the California

Department of Corrections policy of

concentrating the most

violence-prone offenders in these

A-115

two institutions. In part, it is

caused by the horrendous physical

conditions, including

double-celling. In part, it is due

to the fact that lockup units have

no programs. But in large measure,

it originates in the violent

propensities of segregated inmates

themselves.

597 F.Supp. at 1404-05.

The plaintiffs’ argument also

depends on the assertion that enforced

idleness inflicts psychological pain

without penological justification.

Again, plaintiffs ignore the actual

findings ana reasoning of the district

court. The district court expressly

found that "denial of programs is not

totally without penological

justification." 597 F.Supp. at 1414.

Plaintiffs' argument that the district

court failed to consider related

conditions, therefore, is incorrect.

We vacate Part III(C) of the

Permanent Injunction. The administration

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of state-created work programs is the

province of prison officials, not of the

district court.

IX.

ACCESS TO THE PRISON

LAW LIBRARY

In Part II(15) of the Permanent

Injunction, the district court ordered

defendants to allow segregated prisoners

access to the prison law Library as

reasonably necessary, absent documented

security reasons. 597 F. Supp at 1424.

The court found that the “paging system"22/

30/ A paging system allows a prisoner to

request specific volumes. The

significant features of such a system are

that the prisoner must know in advance

which volumes he will need to review and

that the process of ordering and

returning books drastically prolongs

legal research.

A-117

in use at San Quentin and Folsom

rendered effective legal research

virtually impossible. Id. at 1403.

However, the district court allowed the

defendants to deny physical access to the

libraries to those plaintiffs who are

documented security risks. Id. at 1424.

The court specified that any prisoner

denied access to the libraries be

permitted to order five books per week,

which would be delivered to the

prisoner's cell. Id.

In Bounds v. Smith, 430 U.S. 817,

97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the

Supreme Court held that prisoners have a

constitutional right of access to the

courts which in turn requires prison

authorities to provide prisoners with

adequate law libraries or adequate

assistance from persons trained in the

Law. Id. at 828, 97 S.Ct. at 1498; see

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Lindquist v. Idaho State Board of

Corrections, 776 F.2d 851, 855 (9th Cir.

1985). In Lindquist, we recognized that

The existence of an adequate law

library does not provide for

meaningful access to the courts if

the inmates are not allowed to use

the library. However, the

Constitution does not guarantee a

prisoner unlimited access to a law

library. Prison officials of

necessity must regulate the time,

manner, and place in which library

facilities are used. The fact that

an inmate must wait for a turn to

use the library does not necessarily

mean that he has been denied

meaningful access to the court.

Id. at 858 (citations omitted).

Defendants do not challenge the

validity of the district court's factual

findings. Defendants argue that the

district court should have limited

injunctive relief to remedying the

deficiencies in the paging system.

Plaintiffs argue that the district court

did not abuse its discretion in ordering

physical access absent compelling

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security needs. Plaintiffs also argue,

however, that the district court abused

its discretion by failing to require

defendants to provide legal assistance to

inmates barred from physical access.

The district court's order

accommodates defendants' interests by

allowing them to limit physical access to

the law library. They need only permit

reasonably necessary use. Moreover, even

if a segregated inmate needs to use the

law library, defendants may preclude

physical access if such access would

interfere with institutional security.

The Defendants interpret the portion

of the court's order allowing limited use

of the paging system as an

acknowledgement of the efficacy of the

system. This interpretation is incorrect.

The district court expressly found that

the paging system significantly impairs

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effective legal research. 597 F.Supp. at

1403., 1413. Allowing a limited use of

the paging system merely recognizes

defendants' interest in institutional

security.

Plaintiffs contend that even as

"improved" by the district court, the

paging system is constitutionally

deficient. This argument has merit. In

Williams v. Leeke, 584 F.2d 1336 (4th

Cir. 1978), cert. denied, 441 U.S. 911,

99 S.Ct. 2825, 61 L.Ed.2d 276 (1979), the

Fourth Circuit held that allowing a

prisoner physical access to a law library

for 45 minutes a day, three days a week

did not constitute a meaningful

opportunity to conduct legal research.

Id. at 1340. Presumably, a prisoner

could examine more that five books in

that amount of time. The Williams court

noted that

RRR SEO ITT

A-121

Ordinarily, a prisoner should have

direct access to a law library if

the state chooses to provide a

prison law library as its way of

satisfying the mandate of Bounds.

Simply providing a prisoner with

books in his cell, if he requests

them, gives the prisoner no

meaningful change to explore the

legal remedies that he might have.

‘Legal research often requires

browsing through various materials

in search of inspiration; tentative

theories may have to be abandoned in

the course of research in the face

of unfamiliar adverse precedent.

New theories may occur as a result

of a chance discovery of an obscure

or forgotten case. Certainly a

prisoner, unversed in the law and

the methods of legal research, will

need more time or more assistance

than the trained lawyer exploring

his case. It is unrealistic to

expect a prisoner to know in advance

exactly what materials he needs to

consult.

Id. at 1339.

Th Williams court permitted the

state to use a paging system when the

state did not rely solely on access to a

law library to satisfy Bounds. In

Williams, Virginia and South Carolina

provided state-funded legal counsel or

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A-122

trained legal assistants to prisoners

contesting the legality or conditions of

confinement. Id.

Plaintiffs in the instant case

request research assistance for all

prisoners denied physical access to the

law libraries. The great weight of

authority in the courts of appeals

supports plaintiffs' requests. See

Nordgren v. Milliken, 762 F.2d 651,

853-55 (10th Cir. 1985) (state provided

access to courts by providing legal

assistance in drafting pleadings), cert.

denied, U.S. ,» 106 &.Ce. 593,

88 L.Ed.2d 573 (1986); Williams v.

Wyrick, 747 F.2d 1231, 1232 (8th Cir.

1984) (state satisfied Bounds by

providing two inmate paralegals and one

runner to procure law books, copy

material and research legal questions for

23 death-row inmates); Corgain v. Miller,

A-123

708 F.2d 1241, 1247-50 (7th Cir. 1983)

(where state actually provided legal

assistance, access to legal materials

could be restricted); Holtz v. Pitts,

702 F.2d 639, 640-41 (6th Cir. 1983)

(state may deny physical access to law

library to ensure security when prisoner

has access to person trained in law);

Rich v. Zitnay, 622 F.2d 41, 43 (lst Cir.

1981) (state must show alternatives to

access to prison library satisfy Bounds);

Williams v. Leeke, 584 F.2d at 1339. Cf.

Arsberry v. Sielaff, 586 F.2d 37, 44 (7th

Cir. 1978) ("as long as adequate

alternatives are available in light of

legitirate penological objectives, a

limitation on a prisoner's constitutional

rights will not be deemed

impermissible"). Moreover, plaintiffs'

suggested remedy would not be overly

intrusive. The defendants would only be

required to provide legal assistance to

those prisoners that defendants deem to

be a security risk.

[38] Therefore, we conclude that all

prisoners are entitled to meaningful

access to the courts. If the state

denies a prisoner reasonable access to a

law library, the state must provide that

prisoner legal assistance. If the

parties fail to agree on a plain that

provides meaningful access to the courts,

the district court shall fashion one that

comports with the requirements

established in this opinion.

X.

ACOUSTICAL WALL COVERINGS

In Part II(6) of the Permanent

Injunction, the district court ordered

defendants to install, inter alia,

\

sound-absorbing wall coverings in the

five-tier units. 597 F.Supp. at 1423.

Defendants do not object to the district

court's conclusion that the level of

noise in the five tier units inflicts

pain without penological justification.

They contest the court's remedy. They

argue that wall coverings would not

reduce the noise perceptibly and would be

costly.

[39,40] The fact that a remedy is

costly does not preclude a district court

from ordering the remedy. Hoptowit,

682 F.2d at 1247. The testimony of

defendants' expert witness supports the

conclusion that the remedy ordered by the

court would reduce the noise levels

perceptibly. The district court's choice

of remedy was a proper exercise of

discretion.

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XI.

ADJUSTABLE HOT AND COLD

WATER CONTROLS

In Part II(10) of the Permanent

Injunction, the district court ordered

that the shower facilities used by

inmates in segregation be equipped with

adjustable valves for hot and cold water.

597 F.Supp. at 1423. The court found

showers necessary to protect the

plaintiffs' interest in proper shelter,

sanitation, and medical care. Id. at

1399-1400, 1411.

The defendants contend that the

remedy was too intrusive. Defendants

claim that the district court covld have

required defendants to provide warm

water, rather than hot and cold water.

[41] The court's order is not overly

intrusive. The requirement that

defendants install hot and cold water

controls will necessitate the expenditure

Nee es ome 8

A-127

of public funds. Defendants, however, do

not complain that the cost would be

prohibitive. Nor do defendants complain

that adjustable controls will interfere

with prison security or other legitimate

penological concerns. Most importantly,

requiring defendants to install

adjustable controls will not not affect

the daily operation of the prison. the

atjestinia controls will encourage

showering and help reduce the adverse

effects of confinement in a filthy

environment.

We uphold Part II(10) of the

Permanent Injunction.

XII.

HEALTH CARE AT FOLSOM

The district court determined that

the system of health care at Folsom does

not manifest deliberate indifference to

A-128

the serious medical needs of the

prisoners. See 597 F.Supp. at 1414.

Plaintiffs appeal this conclusion in

respect to several aspects of Folsom's |

health care system. We will discuss each

separately.

A. Access to Medical and

Psychiatric Care

The district court found that Folsom

employs five physicians, two

psychiatrists, and a psychologist to care

for 3,500 prisoners. 597 F.Supp. at

1403-04. Medical technical assistants

(MTAs) screen inmate complaints. Id. at

1404. MTAs conduct sick call in the

lockup units on a daily basis. Id. A

physician passes by the cells once a

week. Id. MTAs generally determine

which inmates will be sent to the

infirmary for medical treatment. Id.

However, inmates will be allowed to

a

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consult a physician if they insist. Id.

The court found “that while there may be

isolated exceptions, Folsom provides most

strictly 'necessary' treatment on a

timely, medically sound basis." Id.

[42,43] Denial of a medical

attention to prisoners constitutes an

eighth amendment violation if the denial

amounts to deliberate indifference to

serious medical needs of the prisoners.

Estelle v. Gamble, 429 U.S. 97, 106,

97 S.Ct. 285, 292, 50 L.Ed.2da 251 (1976).

"Prison officials show deliberate

indifference to serious medical needs if

prisoners are unable to make their

medical problems known to medical staff."

Hoptowit v. Ray, 682 F.2d at 1253. The

Gistrict court found that segregated

inmates could be examined or treated by a

doctor during the weekly visit or insist

on an earlier appointment. Folsom,

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therefore, does not deliberately deny or

delay a prisoner's access to medical

care. See Estelle v. Gamble, 429 U.S. at

104-05, 97 S.Ct. at 291. Plaintiffs’

citations to isolated occurrences of

neglect do not amount to a constitutional

violation. “In order to state a

cognizable claim, a prisoner must allege

acts or omissions sufficiently harmful to

evidence deliberate indifference to

serious medical needs." Gamble, 429 U.S.

at 106, 97 S.Ct. at 292. (emphasis

added).

B. Use of Unqualified Medical

Personnel

[44] Plaintiffs argue that

defendants place an unconstitutional

degree of reliance on MTAs, registered

nurses (RNs), and inmate workers. The

district court found that the MTAs screen

inmates and administer nonprescription

A-131

drugs. 597 F.Supp. at 1404. Plaintiffs

cite testimony indicating that MTAs, RNs,

and inmates provide a number of services

which they are not qualified to perform.

Defendants respond that MTAs, RNs and

inmates are qualified to perform a number

of services. If plaintiffs correctly

contend that unqualified personnel

regularly engage in medical practice,

precedent indicates that the prison

health care delivery system may reflect

deliberate indifference to plaintiffs’

medical needs. See Hoptowit v. Ray,

682 F.2d at 1252 (district court

correctly found eighth amendment

violation where, inter alia, medication

was prepared and dispensed by unqualified

personnel). Therefore, we must remand

for entry of explicit factual findings

regarding the nature of services

performed by MTAs, RNs and inmates, their

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level of medical qualification, and the

level of qualification required to

adequately render the services that they

perform.

Ce Confidentiality of Records

[45] Plaintiffs argue that

constitutionally adequate medical care

cannot be provided without complete

medical records, and that medical records

are inadequate if they lack

confidentiality. Plaintiffs cite

Williams v. Edwards, 547 F.2d 1206, 1216

(Sth Cir. 1977), for the proposition that

medical records are inadequate if they

lack confidentiality. In Williams v.

Edwards, inmate medical assistants failed

to keep any medical records of certain

procedures. Id. Nothing in Williams v.

Edwards, indicates a casual connection

between lack of confidentiality and

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inadequacy of records. We reject

plaintiffs' argument.

D. Lack of Special Medical Diets

[46] The district court found that

the only special diet available at Folsom

is one designed for treating ulcers.

597 F.Supp. at 1404. Prisoners needing

other special diets must await transfer

to another institution. Id. Plaintiffs

argue that so long as prompt transfers

are unavailable, failure to provide

special diets is unconstitutional. We

disagree. A fair reading of the district

court's findings of fact indicated that

ifa prisoner needs a special diet,

eventually he will be transferred to an

institution that is equipped to provide

it. Neither precedent nor common sense

suggests that delay in providing a

special diet arises to the level of

deliberate indifference. The district

court did not abuse its discretion by

refusing to order defendants to provide

special diets.

E. Medical Facilities

[47] The district court found that

in comparison with other parts of the

prison, the Folsom infirmary is

relatively clean, but that sanitation

failed to meet medical standards.

597 F.Supp. at 1404. Plaintiffs argue

that inadequate and unsanitary health

care facilities violate the eighth

amendment.

Plaintiffs' authorities do not

support such a broad proposition. In

Williams v. Edwards, 547 F.2d at 1217, a

"filthy" emergency room was but one

factor in determining the existence of

deliberate indifference. The filth

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included the storage of live fish in a

whirlpool bath. Id. In Newmann v.

Alabama, 503 F.2d 1320, 1323 (5th Cir.

1974), cert. denied, 421 U.S. 948,

95 S.Ct. 1680, 44 L.Ed.2d 102 (1975), the

lack of sanitation included the cleaning

of linens from patients with hepatitis

and tuberculosis along with the linens of

- other infirmary inmates .22/ In

31/ The lack of health care in the

Alabama prisons, which were the subject

of Newmann v. Alabama, provides a stark

contrast with the level of health care at

Folsom:

Immediately before [court]

intervention, medical services for

Alabama's almost 4,000 prisoners

were provided largely at a state

medical and diagnostic center. The

center maintained no full-time

physician; instead, care was

provided by three private doctors

working part-time at the center,

three registered nursed, eight

unlicensed former military medics,

and a part-time dentist. Facilities

at individual prisons were even

worse. One unit housing 850

(Footnote Continued)

A-136

Lightfoot v. Walker, 486 F.Supp. at 512,

surgical instruments were not sterilized,

the surgical suite was not cleaned

routinely, and clean and soiled linens

were stored together.

Unlike Lightfoot and Williams,

surgery is not performed at the Folsom

infirmary. 597 F.Supp. at 1404. Unlike

Williams, the Folsom infirmary is not

subject to vermin infestation. Id.

(Footnote Continued)

inmates, for example, had no

full-time physician and a dentist

available only one-half day of each

week. Because of understaffing,

unsupervised and untrained inmates

regularly provided medical services,

including minor surgery. The horror

stories coming out of such a setting

were numerous. Bedsores of a

quadraplegic who spent many months

at the medical and diagnostic

center, for example, became infested

with maggots. In the month before

his death, he was bathed and his

bandages changed, only once.

Yarbrough, The Alabama Prison Litigation,

9 Just. Sys.J. 276, 277 (1984) (citations

omitted).

A-137

Unlike Newmann, there is no indication in

this case that infirmary officials were

so callous to the health needs of the

inmates as to mix the laundry of patients

with highly communicable infectious

diseases with that of the general

infirmary inmates. Id.

P. Conclusions Regarding Health

Care at Folsom

In sum, Folsom's health care conditions

fall below medical standards. The fact

that a given condition might constitute

medical malpractice, however, does not

necessarily mean that the condition

constitutes cruel and unusual punishment.

Estelle v. Gamble, 429 U.S. at 106,

97 S.Ct. at 292. It is only deliberate

indifference to serious medical needs

that can offend “evolving standards of

decency" in violation of the eighth

amendment. Id. However, the district

A-138

court's failure to render specific

factual findings regarding the level of

reliance on unqualified personnel

requires a remand for entry of such

findings.

XIII.

CONTACT VISITATION

The district court held that denial

of contact visits to inmates in

administrative segregation does not

constitute cruel and unusual punishment.

597 F.Supp. at 1413.

Plaintiffs assert that the district

court improperly applied a per se rule.

They urge us to remand the case to the

district court with instructions to

reconsider whether all prisoners in

administrative segregation in San Quentin

and Folsom are entitled to individualized

A-139

determinations on their suitability for

contact visits.

[48] Plaintiffs cite no authority

for the proposition that denial of

contact visits constitutes cruel and

unusual punishment. Instead, they argue

that the evidence adduced at trial

demonstrates that contact visitation

would have beneficial rehabilitative

effects. They contend that "there was

unanimity of evidence that contact visits

thus are vital to inmate health, as the

deprivation of human contact involves

extreme suffering and affects both

physical and mental health."

[49] Judicial authority uniformly

contradicts plaintiffs' assertions. See

Ramos v. Lamm, 639 F.2d 559, 580 n. 26

(10th Cir. 1980) ("weight of present

authority clearly establishes that there

is no constitutional right to contact

A-140

visitation ... We agree with this

view."), cert. denied, 450 U.S. 1041,

101 S.Ct. 1759, 68 L.Ed.2d 239 (1981);

Lynott v. Henderson, 610 F.2d 340, 342

(Sth Cir. 1980) ("convicted prisoners

have no absolute constitutional right to

visitation."); Feeley v. Sampson,

570 F.2d 364, 372-73 (lst Cir. 1978) ("we

can discover no constitutional guarantee

that [contact visits] may take place.");

Oxendine v. Williams, 509 F.2d. 1405,

1407 (4th Cir. 1975) ("{prisoner] has no

constitutional right to physical contact

with his family."); see also Smith v.

Coughlin, 748 F.2d 783, 788 (2d Cir.

1984) (contact visits with persons other

than priest, lawyer, and doctor could

disrupt prison administration, create

security risks, and allow smuggling of

contraband; denial of contact visits did

not violate prisoners' first amendment

A-141

rights); O'Bryan v. County of Saginan,

741 F.2d 283, 284-85 (6th Cir. 1984)

(denial of contact visits for pretrial

detainees did not violate constitution) ;

Inmates of Allegheny County Jail v.

Pierce, 612 F.2d 754, 758-60 (3rd Cir.

1979) (ban on contact visits does not

violate due process rights of prisoners).

Expert opinion is entitled to little

weight in determining whether a

punishment is cruel and unusual. See

Rhodes v. Chapman, 452 U.S. at 348 n. 13,

101 S.Ct. at 2400 n. 13. Plaintiffs'

argument, therefore, lacks support.

Denial of contact visitation simply does

not amount to the infliction of pain.

Cf.Hoptowit v. Ray, 682 F.2d at 1254-55.

[50] Even if denial of contact

visitation amounted to an infliction of

pain, the eighth amendment would not

prohibit the denial unless the pain were

A-142

inflicted wantonly and without

penological justification. Rhodes v.

Chapman, 452 U.S. at 346, 101 S.Ct. at

2399. The district court found that no

segregated inmate was deprived of all

visits and most were allowed contact

visits. 597 F.Supp. at 1413. The court

found that despite thorough searches,

contact visits result in the smuggling of

contraband, particularly drugs. Id. at

1403. The court commended defendants for

their efforts to improve visiting

facilities at Folsom. Id. at 1413 n. 44.

The court noted that San Quentin was one

of the very few maximum security prisons

in the nation to allow conjugal

visitation for any of its inmates. Id.

at 1402 n. 25. The court's findings

hardly indicate that defendants wantonly

inflict pain on the plaintiffs. To the

contrary, the district court's findings

A-143

indicate that denial of contact

visitation is based on sound penological

justifications.=2+/

To the extent that denial of contact

visitation is restrictive and even harsh,

it is part of the penalty that criminals

pay for their offenses against society.

Cf. Rhodes v. Chapman, 452 U.S. at 347,

101 S.Ct. at 2399,

32/ Plaintiffs fault the district court

for relying on Block v. Rutherford,

468 U.S. 576, 104 S.Ct. 3227, 82 L.Ed.24

438 (1984). In Block, the Supreme Court

held that denial of contact visits to

pretrial detainees did not violate due

process. Id. at 589, 104 S.Ct. at 3233.

As plaintiffs assert, Block is

distinguishable on the basis that the

pretrial detainees in Block were subject

to denial of contact visitation only for

a limited period of time. Cf. Hutto v.

Finney, 437 U.S. at 686-87, 98 S.Ct. at

2571 loundtéions tolerable for a short

period of time are intolerable for a long

period of time). The fact that Block is

distinguishable, however, does not

improve plaintiffs position.

A-144

XIV.

CONCLUSION

For the reasons stated above, we

direct as follows:

1. We reverse the district court's

conclusion that Cal. Penal Code §§ 2931,

2933 create a liberty interest triggering

due process protections. The Wright I

order is vacated. Parts III and IV(D) of

the Permanent Injunction are vacated.

All release orders are vacated. We hold,

however, that 15 Cal.Admin. Code

§ 3339(a) creates a liberty interest. On

xemand, the district court shall

determine whether the defendant's

segregation procedures meet the due

process requirements as stated above. If

the district court determines that

defendants' procedures do not meet the

requirements stated above, and that the

defendants are unlikely to comply

A-145

voluntarily, the district court shall

order such relief as it deems necessary

to obtain compliance.

2. The district court's conclusions and

order regarding noise reduction (Part

II(6)) and adjustable controls for hot

and cold running water (Part II(10)) are

affirmed.

3. The district court's conclusions and

order regarding access to the prison law

library (Part II(15)) are affirmed to the

extent that the court required defendants

to permit segregated prisoners access to

the law library. The district court's

conclusions are reversed and its order

vacated to the extent that the court

allowed defendants to rely on a paging

system for those prisoners who are denied

access because of security reasons. On

remand, the district court shall

determine how best to accommodate

plaintiffs' right to meaningful access to

the courts and defendants' interest in

institutional security and economy.

4. the dietrict court's conclusions

that denial of work programs and contact

visitation does not constitute cruel and

unusual punishment are affirmed.

Se The district court's conclusion that

the health care system at Folsom does not

constitute cruel and unusual punishment

is affirmed. However, on remand the

district court, if necessary, shall

render explicit factual findings

regarding the qualifications of personnel

rendering medical services in order to

allow further appellate review.

6. Each party shall bear its own costs.

AFFIRMED in part, REVERSED in part,

VACATED in part, and REMANDED.

heen ~pmeie

A-147

APPENDIX

Ninth Circuit Opinion

Cal. Penal Code § 2931. Reduction of

term for good behavior and participation;

| conditions

(a) In any case in which a prisoner was

sentenced to the state prison pursuant to

Section 1170, or if he committed a felony

OS inte BS Site LE i hon Eo

before July 1, 1977, and he would have

can Asin aes

been sentenced under Section 1170 if the

felony had been committed after July l,

1977, the Department of Corrections shall

have the authority to reduce the term

prescribed under such section by

one-third for good behavior and

participation consistent with subdivision

(d) of Section 1170.2. A document shall

be signed by a prison official and given

to the prisoner, at the time of

compliance with Section 2930, outlining

the conditions which the prisoner shall

A-148

APPENDIX

meet to receive the credit. The

conditions specified in such document may

be modified upon any of the following;

(1) Mutual consent of the prisoner and

the Department of Corrections.

(2) The transfer of the prisoner from

one institution to another.

(3) The department's determination of

the prisoner's lack of adaptability or

success in a specific program or

assignment. In such case the prisoner

shall be entitled to a hearing regarding

the department's decision.

(4) A change in custodial status.

(b) Total possible good behavior and

participation credit shall result in a

four-month reduction for each eight

months served in prison or in a reduction

based on this ratio for any lesser period

of time. Three months of this four-month

reduction, or a reduction based on this

nt a at eas at ANC nd

A~149

APPENDIX

ration for any lesser period, shall sine

based upon forbearance from any act for

which the prisoner could be piideduted in

a court of law, either as a misdemeanor

of a felony, or any act of misconduct

described as a serious disciplinary

infraction by the Department of

Corrections.

(c) One month of this four-month

reduction, or a reduction based on this

ratio for a lesser period, shall be based

solely upon participation in work,

educational, vocational, therapeutic or

other prison activities. Failure to

succeed after demonstrating a reasonable

effort in the specified activity shall

not result in loss of participation

credit. Failure to participate in the

specified activities can result ina

maximum loss of credit of 30 days for

each failure to participate. However,

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APPENDIX

those confined for other than behavior

problems shall be given specified

activities commensurate with the

custodial status.

(a) This section shall not apply to

any person whose crime was committed on

or after January 1, 1983.

Cal. Penal Code § 2932. Denial of time

credits; grounds; limitations; procedure;

effect; review; criminal prosecution

a) For any time credit accumulated

pursuant to Section 2931 or to Section

2933, not more than 180 days of credit

may be denied or lost for a single act of

misconduct which could be prosecuted as a

felony whether or not prosecution is

undertaken, except that not more than one

year of credit may be denied or lost for

a single act of battery in which great

bodily injury is inflicted upon a

nonprisoner. Not more than 90 days of

A-151

APPENDIX

credit may be denied or lost for a single

act of misconduct which could be

prosecuted as as misdemeanor, whether or

not prosecution is undertaken. Not more

than 30 days of credit may be denied or

lost for a single act of misconduct

defined by regulation as a serious

disciplinary offense by the Department of

Corrections. Any person confined due to

a change in custodial classification

following the commission of any serious

disciplinary infraction shall, in

addition to any loss of time credits, be

ineligible to receive participation or

worktime credit for a period not to

exceed the number of days of credit which

have been lost for such act of

misconduct. In unusual cases, an inmate

may be denied the opportunity to

participate in a credit qualifying

assignment for up to six months beyond

A-152

APPENDIX

the period specified in this subdivision

if the Director of Corrections finds,

after a hearing, that no credit

qualifying program may be assigned to the

inmate without creating a substantial

risk of physical harm to staff or other

inmates. At the end of the six-month

period and of successive six-month

periods, the denial of the opportunity to

participate in a credit qualifying

assignment may be renewed upon a hearing

and finding by the director.

The prisoner may appeal the decision

through the department's review

procedure, which shall include a review

by an individual independent of the

institution who has supervisorial

authority over the situation.

(b) For any credit accumulated pursuant

to Section 2931, not more than 30 days of

participation credit may be denied or

A-153

APPENDIX

lost for a single failure or refusal to

participate. Any act of misconduct

described by the Department of

Corrections as a serious disciplinary

infraction if committed while

participating in work, educational,

vocational, therapeutic or other prison

activity shall be deemed a failure to

participate.

(c) Any procedure not provided for by

this section, but necessary to carry out

the purposes of this section, shall be

those procedures provided for by the

Department of Corrections for serious

disciplinary infractions if those

procedures are not in conflict with this

section.

(1) The Department of Corrections

shall, using reasonable diligence to

investigate, provide written notice to

the prison. The written notice shall be

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APPENDIX

given within 15 days after the discovery

of information leading to charges that

may result in a possible denial of

credit, except that if the prisoner has

escaped, the notice shall be given with

15 days of the prisoner's return to the

custody of the Director of Corrections.

The written notice shall exclude the

specific charge, the date, the time, the

place, the evidence relied upon, a

written explanation of the procedures

that will be employed at the proceedings

and the prisoner's rights at the hearing.

The hearing shall be conducted by an

individual who shall be independent of

the case and shall take place within 30

days of the written notice.

(2) The prisoner may elect to be

assigned an employee to assist in the

investigation, preparation, or

presentation of a defense at the

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APPENDIX

disciplinary hearing if it is determined

by the department that: (i) the prisoner

is illiterate; or (ii) the complexity of

the issues or the prisoner's confinement

status makes it unlikely that the

prisoner can collect and present the

evidence necessary for an adequate

comprehension of the case.

(3) The prisoner may request witnesses

to attend the hearing and they shall be

called unless the person conducting the

hearing has specific reasons to deny this

request. Such specific reasons shall be

set forth in writing and a copy of the

document shall be presented to the

prisoner.

(4) The prisoner has the right, under

the direction of the person conducting

the hearing, to question all witnesses.

(5) At the conclusion of the hearing

the charge shall be dismissed if the

sia ceaenaienniieiieiaaial

A-156

APPENDIX

facts do not support the charge, or the

prisoner may be found guilty on the basis

of a preponderance of the evidence.

(a) If found guilty the prisoner shall

be advised in writing of the guilty

finding and the specific evidence relied

upon to reach this conclusion and the

amount of time-credit loss. The prisoner

may appeal such decision through the

Department of Corrections’ review

procedure, and may, upon final

notification of appeal denial, within 15

days of such notification demand review

of the department's denial of credit to

the Board of Prison Terms, and the board

may affirm, reverse, or modify the

department's decision or grant a hearing

before the board at which hearing the

prisoner will have the rights specified

in Section 3041.5.

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APPENDIX

(e) Each prisoner subject to Section

2931 shall be notified of the total

amount of good behavior and participation

credit which may be credited pursuant to

Section 2931, and his anticipated

time-credit release date. The prisoner

shall be notified of any change in the

anticipated release date due to denial or

loss of credits, award of work time

credit, under Section 2933, or the

restoration of any credits previously

forfeited.

(f) If the conduct the prisoner is

charged with also constitutes a crime,

the Department of Corrections may refer

the case to criminal authorities for

possible prosecution. The department

shall notify the prisoner, who may

request postponement of the disciplinary

proceedings pending such referral.

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APPENDIX

The prisoner may revoke his request

postponement of the disciplinary

proceedings up until the filing of the

accusatory pleading. In the event of the

revocation of the request for

postponement of the proceeding, the

department shall hold the hearing within

30 days of the revocation.

In the case where the prisoner is

prosecuted by the district attorney, the

Department of Corrections shall not deny

time credit where the prisoner is found

not guilty, in which case the procedures

in subdivision (c) shall not apply.

(g) If time credit denial proceedings or

criminal prosecution prohibit the release

of a prisoner who would have otherwise

been released, and the prisoner is found

not guilty of the alleged misconduct, the

amount of time spent incarcerated, in,

excess of what the period of

ae

APPENDIX

incarceration would have been absent the

alleged misbehavior shall be deducted

from the prisoner's parole period.

(h) Nothing in the amendments to this

section made at the 1981-82 Regular

Session of the Legislature shall affect

the granting or revocation of credits

attributable to that portion of the

prisoner's sentence served prior to

January 1, 1983.

Cal. Penal Code § 2933. Worktime credits

on sentences; amount; receipt;

forfeiture; restoration; review

(a) It is the intent of the Legislature

that persons convicted of crime and

sentenced to state prison, under Section

1170, serve the entire sentence imposed

by the court, except for a reduction in

the time served in the custody of the

Director of Corrections for performance

in work, training or education programs

A-1625

APPENDIX

established by the Director of

Corrections. Worktime credits shall

apply for performance in elementary, high

school, or vocational educational

programs. Enrollment in a two- or

four-year college program leading to a

degree shall result in the application of

time credits equal to that provided in

Section 2931. For every six months of

full-time performance in a credit

qualifying program, as designated by the

director, a prisoner shall be awarded

worktime credit reductions from his term

of confinement of six months. A lesser

amount of credit based on this ratio

shall be awarded for any lesser period of

continuous performance. Less than

maximum credit shall be awarded pursuant

to regulations adopted by the director

for prisoners not assigned to a full-time

credit qualifying program. Every

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4

|

7

.

;

APPENDIX

prisoner who refuses to accept a

full-time credit qualifying assignment or

who is denied the opportunity to earn

worktime credits pursuant to subdivision

(a) of Section 2932 shall be awarded no

worktime credit reduction. Every

prisoner who voluntarily accepts a

half-time credit qualifying assignment in

lieu of a full-time assignment shall be

awarded worktime credit reductions from

his term of confinement of three months

for each six-month period of continued

performance. Except as provided in

subdivision (a) of Section 2932, every

prisoner willing to participate in a

full-time credit qualifying assignment

but who is either not assigned to a

full-time assignment or is assigned to a

program for less that full time, shall

receive no less credit than is provided

under Section 2931. Under no

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APPENDIX

circumstances shall any prisoner receive

more than six months' credit reduc*ion

for any six-month period under this

section.

(b) Worktime credit is a privilege, not

a right. Worktime credit must be earned

and may be forfeited pursuant to the

provisions of Section 2932. Except as

provided in subdivision (a) of Section

2932, every prisoner shall have a

reasonable opportunity to participate in

a full-time credit qualifying assignment

in a manner consistent with institutional

security and available resources.

(c) Under regulations adopted by the

Department of Corrections, which shall

require a period of not more than one

year free of disciplinary infractions,

worktime credit which has been previously

forfeited may be restored by the

director. The regulations shall provide

0

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APPENDIX

for separate classifications of serious

disciplinary infractions as they relate

to restoration of credits; the time

period required before forfeited credits

or a portion thereof may be restored; and

the percentage of forfeited credits that

may be restored for such time periods.

No credits may be restored if they were

forfeited for a serious disciplinary

infraction in which the victim died or

was permanently disabled. Upon

application of the prisoner and following

completion of the required time period

free of disciplinary offenses, forfeited

credits eligible for restoration under

the regulations shall be restored unless,

at a hearing, it is found that the

prisoner refused to accept or failed to

perform in a credit qualifying assignment

or extraordinary circumstances are

present that require that credits not be

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APPENDIX

restored. "Extraordinary circumstances"

shall be defined in the regulations

adopted by the director.

The prisoner may appeal the finding

through the Department of Corrections

review procedure, which shall include a

review by an individual independent of

the institution who has supervisorial

authority over the institution.

(d) The provisions of subdivision (c)

shall also apply in cases of credit

forfeited under Section 2931 for offenses

and serious disciplinary infractions

occurring on or after January 1, 1983.

15 Cal.Admin.Code § 3335. Administrative

Segregation.

(a) When an inmate's presence within an

institution's general inmate population

presents an immediate threat to the

inmate's own safety, the safety of

others, endangers institution security or

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APPENDIX

jeopardizes the integrity of an

investigation into alleged serious

misconduct or criminal activities, the

inmate will be immediately removed from

general population and be placed in

administrative segregation.

Administrative segregation may be

accomplished by confinement in a unit

designated for that particular purpose

or, in an emergency, to any single cell

unit capable of providing segregation

from the general population and the

degree of security and control required

of the reason for such placement.

(b) An inmate’s removal from general

population and placement in a segregated

unit for any reason except as provided in

Section 3340 will be considered as

administrative segregation until such

time as a disciplinary or classification

hearing has been held on the reasons or

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APPENDIX

need for separation from the general

population and other housing is

designated.

15 Cal.Admin.Code § 3336. Segregation

Order.

Authority to order an inmate to be placed

in administrative segregation, before

such action is considered and ordered by

a classification hearing, may not be

delegated below the staff level of

correctional lieutenant or correctional

program supervisor III, except when a

lower level staff member is the highest

ranking official on duty.

(a) The reason for ordering an

inmate's placement in administrative

segregation will be clearly documented on

a CDC Form 114-D (Order and Hearing on

Segregated Housing) by the official

ordering the action at the time the

' action is taken.

Seeman :Aiiaicaie mimi Hheciesn

A-167

*

APPENDIX

(b) In addition to explaining the

reason and need for an inmate's placement

in administrative segregation, the

official ordering the action will

determine if a staff member needs to be

assigned to assist the inmate in

presenting the inmate's position at a

classification hearing on the need for

retention in segregated housing. Staff

assistance will be assigned and the

assignment will be noted on the CDC Form

114-D if the inmate can collect and

present evidence necessary for an

adequate comprehension of the inmate's

position at a classification hearing. If

an inmate is not illiterate and the

issues are not complex, staff assistance

will not be assigned. The reason for not

assigning staff assistance will be

entered on the CDC Form 114-D.

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APPENDIX

(c) In assigning staff assistance, the

official initiating the CDC Form 114-D

will designate the inmate's caseworker by

name, as the staff member to assist the

inmate. If the assigned caseworker's

name is not known or cannot be readily

determined by the official initiating the

CDC Form 114-D, the words "assigned

caseworker" will be entered on the form.

(d) A copy of the CDC Form 114-D with

the “order” portion of the form

completed, will if practical, be given to

the inmate prior to placement in

administrative segregation but not later

than 48 hours after such placement.

Copies of the CDC Form 114-D with the

"order" portion completed will also be

submitted to the warden or superintendent

or designated staff for review and

possible further action as described in

section 3337. A copy of the CDC Form

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APPENDIX

114-D will also be routed to the records

office as a notice of the inmate's

current status and pending actions.

15 Cal.Admin.Code § 3339. Release From

Administrative Segrecqation and Retention

in Administrative Segregation.

(a) Release: Release from segregation

status shall occur at the earliest

possible time in keeping ‘ith the

circumstances and reasons for the

inmate's initial placement in

administrative segregation. Nothing in

this article shall prevent the official

ordering an inmate's placement in

administrative segregation, or a staff

member of higher rank in the same chain

of command, from withdrawing an

administrative segregation order before

it is acted upon or prior to a hearing on

the order after consulting with and

obtaining the concurrence of the

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APPENDIX

administrator of the general population

unit to which the inmate will be returned

or assigned. Release from segregated

housing after such placement shall be

effected only upon the written order of

an equal or higher authority.

A-171

[October 18, 1984]

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Joseph TOUSSAINT, et al., No.

Plaintiffs/Appellees/ C-73-1422

Cross-Appellants, SAW

Ve

Daniel McCARTHY, et al.,

Defendants/Appellants/

Cross-Appellees.

ee ee ee ee ee eee ee ee

WEIGEL, Senior District Judge.

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

I. INTRODUCTION

The following Findings of Fact and

Conclusions of Law underlie the Court's

decision on the merits of a class action

challenging the legality of conditions of

confinement for prisoners held in

administrative segregation--hereafter

referred to as "segregation"--in the

California State Prison at San Quentin

("San Quentin") and the California State

Prison at Folsom ("Folsom") .2/ The

lengthy history of the litigation was

recounted in some detail in connection

with the preliminary injunction entered

1/ Plaintiffs are a class, certified

February 25, 1976, comprising all

prisoners confined in or subject to

confinement in administrative segregation

in four California state prisons--in

addition to San Quentin and Folsom, Deuel

Vocational Institute at Tracy

("DVI-Tracy"), and the Correctional

Training Facility at Soledad ("Soledad").

See Toussaint v. Rushen, 553 F.Supp.

1365, 1367 & n. 1 (N.D.Cal.1983) (defining

term “administrative segregation").

Defendants are the Director of the

California Department of Corrections and

the wardens and superintendents of the

abcve-listed institutions. This decision

applies only to conditions at San Quentin

and Folsom, which were the subject of a

trial before the Court beginning

November 7, 1983, and ending January 11,

1984. The second phase of trial,

pertainine to conditions at DVI-Tracy and

Soledad, is presently scheduled to

commence in November, 1984. Segregated

units at these two prisons will continue

to be subject to the preliminary

injunction entered January 14, 1983.

in this case on January 14, 1983, see

Toussaint v. Rushen, 553 F.Supp. 1365

1367-69 (N.D.Cal. 1983) vacated in part,

722 F.2d 1490 (9th Cir. 1984) and need

not be repeated here. The preliminary

injunction was affirmed by the Ninth

Circuit on January 5, 1984, except for

one portion dealing with food service,

which was vacated because unsupported by

specific findings. Toussaint v. Yockey,

722 F.2d 1490 (9th Cir. 1984).

The first phase of trial on the

merits commenced in this Court on

November 7, 1983. It was limited to

conditions at the San Quentin and Folsom

prisons largely because of

representations made by defendants that

segregation at Soledad and Tracy would

soon be discontinued. Trial lasted

nearly two months. More than 65

witnesses testified. There are well over

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1000 trial exhibits. The ccensutat is

4643 pages long. In addition, the Court,

accompanied by counsel for both sides,

inspected the premises at San Quentin.

The findings and conclusions which

follow are based upon the Court's

independent review of all the evidence as

well as upon consideration of the

findings and conclusions proposed by both

sides. As detailed below, the Court

finds and concludes that conditions of

confinement for segregated inmates at San

Quentin and Folsom violate the Eighth and

Fourteenth Amendments to the United

States Constitution and that relief

previously ordered in this case to

correct constitutional violations has not

2/

been fully effective.— The Court

2/ See Wright v. Enomoto, 462 F.Supp.

(Footnote Continued)

en

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accordingly renders a Judgment of

Permanent Injunction ordering termination

of the unlawful conduct of defendants and

providing for the appointment of a

Special Master to monitor compliance.

[1] The Eighth Amendment to the

Constitution prohibits the infliction of

"cruel and unusual punishments." The

ultimate question in this case is whether

the defendants, officials of the State of

California, have violated this

prohibition by confining prisoners under

the conditions that obtain in segregation

units at San Quentin and Folsom. To

answer this question is difficult,

because no static "test" can be

formulated to determine whether

(Footnote Continued)

397, 399, 404 (N.D.Cal. 1976), aff'd, 434

U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756

(1978); Toussaint v. Rushen, 553 F.Supp.

1365 (N.D.Cal. 1983).

A-176

conditions of confinement are "cruel and

unusual." Rhodes v. Chapman, 452 U.S.

337, 346, 101 S.Ct. 2392, 2399, 69

L.Ed.2d 59 (1981). Rather, the meaning

of the Eighth Amendment prohibition is to

be drawn "from the evolving standards of

decency that mark the progress of a

maturing society." Id.; Trop v. Dulles,

356 U.S. 86, 101, 78 S.Ct. 590, 598,

2 L.Ed.2d 630 (1958) (Plurality opinion).

Ordinarily, the Court's judgment as to

the nature of these standards should be

governed to the maximum possible extent

by objective indicia of what the general

public would consider decent .2/ See

3/ Such indicia include, for example,

history, the provisions of law enacted by

state legislature, expert opinions and

professional standards. See, e.g.,

Rhodes, 452 U.S. at 346-47, 101 S.Ct. at

2399-2400; Estelle v. Gamble, 429 U.S.

97, 103-04 & n. 8, 97 S.Ct. 285, 290-91,

(Footnote Continued)

A-177

Rhodes, 452 U.S. at 346, 101 S.Ct. at

2399; Hoptowit v. Ray, 682 F.2d 1237,

1246 (9th Cir. 1982). But public

perceptions are not alone conclusive. In

the cogent words of Chief Justice Warren,

"(t]he basic concept underlying the

Eighth Amendment is nothing less than the

dignity of man." Trop, 356 U.S. at 100,

78 S.Ct. at 597; see Gregg v. Georgia,

428 U.S. 153, 178, 96 S.Ct. 2909, 2927,

49 L.Ed.2d 859 (1976) (plurality

opinion).

[2] In the context of cases

challenging prison conditions, courts in

this circuit and others have commented

that "[a]Jn institution's obligation under

the eighth amendment is at an end if it

furnishes sentenced prisoners with

(Footnote Continued)

& n. 8, 50 L.Ed.2d 251 (1976);

Toussaint v. Yockey, 722 F.2d at 1495.

A-178

adequate food, clothing, shelter,

sanitation, medical care and personal

safety." Hoptowit, 682 F.2d at 1246;

Wright v. Rushen, 642 F.2d 1129, 1132-33

(9th Cir. 1981); Wolfish v. Levi, 573

F.2d 118, 125 (2d Cir. 1978), rev'd on

other grounds, 441 U.S. 520, 99 S.Ct.

1861, 60 L.Ed.2d 447 (1979); see also

Newman v. State of Alabama, 559 F.2d 283,

286 (5th Cir. 1977), rev'd in part on

other grounds sub nom. Alabama v. Pugh,

438 U.S. 781, 98 &.Ct. 3057, 57 L.Ed.2d

1114 (1978). Of course, this enumeration

is not necessarily exhaustive. For

example, it is settled that prisoners may

not be deprived of all exercise, because

"some form of regular outdoor exercise is

extremely important to the psychological

and physical well-being of the inmates."

Spain v. Procunier, 600 F.2d 189, 199

(9th Cir. 1979) (citing cases); Ruiz v.

A-179

Estelle 679 F.2d 1115, 1152 & n. 173 (5th

Cir. 1982), cert. denied, 460 U.S. 1042,

103 S.Ct. 1438, 75 L.Ed.2d 795 (1983);

Martino v. Carey, 563 F.Supp. 984, 1001

(D.Ore. 1983). The task before the Court

is to examine each specific challenged

conditio: of confinement and to determine

whether that condition, in the context of

the overall prison environment, comports

with human decency. Wright v. Rushen,

642 F.2d at 1133. If found indecent, the

condition must be remedied. However, the

relief granted must be only so much as is

required to correct the specific

deficiency. Hoptowit, 682 F.2d at 1247;

Wright, 642 F.2d at 1134.

II. FINDINGS OF FACT

1. San Quentin and Folsom are among

the oldest penal institutions still in

use in the United States today. San

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Quentin first opened in 1853; Folsom in

1880. The buildings presently used to

house the majority of segregated inmates

are relatively old and outmoded five-tier

cell blocks constructed between 1910 and

1934.4/ Segregated inmates are also

housed in two more modern buildings,

SHU I at Folsom and the “Adjustment

Center" at San Quentin. The latter was

built in 1959 and 1960.

2. The class of plaintiffs in this

action is defined principally by

reference to the percentage of each day

that they are required to spend in their

4/ As of April 6, 1982, at least 1000

segregated inmates were housed in

five-tier cell blocks at San Quentin.

See Exhibit 56. About 64 were housed in

another unit, the Adjustment Center.

Likewise, at Folsom the great majority of

segregated inmates are housed in the

five-tier SHU II.

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5/

cells.— The term "segregated tamate*

means, at bottom, one who is not

permitted to mingle with the general

prison population. To accomplish

segregation, prison officials at San

Quentin and Folsom lock inmates in their

cells on a round-the-clock basis. Under

this system, segregated inmates are

allowed out of their cells only for

essential activities such as showers,

exercise, visits, medical treatment and

5/ The official definition of

plaintiffs' class is set forth in the

Order Determining that Action is

Maintainable as a Class Action, enter

Februar

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