# Appendix — Toussaint v. McCarthy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2052%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1069 ## Text 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 A-64 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 A-67 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), ; : i 4 j ; i H d | Re eer eS ee 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. ‘ ‘ % ; : : H ‘ : 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 A-98 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. -99 » 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 A-100 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) Se ee A-101 [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. A-102 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 A-104 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. | ; A-105 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. ; : : : 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 A-113 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 A-116 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 A-118 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 A-119 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 A-120 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 ee ee ee 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. A-126 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 A-129 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, A-130 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 A-132 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 A-133 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 A-135 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 diagn [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2052%3A2. Public record. Not legal advice.