Appendix — McCarthy v. Toussaint (Nos. 86-1587, 86-1588)

ig

Vr

Supreme Court, U.S.

2G ] ad 88 ea B&D

MAR 30 1987

EPH F. SPAWIOL, JR.

IN THE SUPREME COURT OF THE UNE TED S BAERS

October Term, 1986

DANIEL J. McCARTHY, DANIEL VASQUEZ

and ROBERT BORG, Petitioners,

Ve

JOSEPH TOUSSAINT, et al., Respondents.

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN K. VAN DE KAMP

Attorney General of the

State of California

STEVE WHITE

Chief Assistant

Attorney General

KENNETH C. YOUNG

Assistant Attorney General

PAUL D. GIFFORD

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Telephone: (415) 557-3299

Attocneys for Petitioners

TABLE OF CONTENTS

Ninth Circuit Opinion filed

September 30, 1986

United States District Court

Findings of Fact and

Conclusions of Law filed

October 18, 1984

Order of Reference filed

October 18, 1984

Judgment of Permanent Injunction

filed October 18, 1984

Ninth Circuit Order

Denying Rehearing

filed December 31, 1986

Statutes

ae U.8.C. § 2263

28 U.S.C. § 2254

42 U.S.C. § 1983

PAGE

267

277

300

301

303

309

FOR PUBLICATION

Filed

9-30-86

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH TOUSSAINT,

C.A. Nos. 84-2833

et al., 85-1507

85-1878

Plaintiffs/ 85-2526

Appellees/

Cross- D.C. No.

Appellants, CV 73-1422 SAW

vs. OPINION

DANIEL MCCARTHY,

et al.,

Defendants/

Appellants/

Cross-

Appellees.

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On Appeal From the United States

District Court for the Northern District

of California

Stanley A. Weigel

Senior District Judge, Presiding

Argued and Submitted December 13, 1985

San Francisco, 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

Ka

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 decree.

I

BACKGROUND

This class action was commenced on

behalf of prisoners committed to

administrative segregation in four

California prisons: 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

Ze

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 the

state's practice of removing prisoners from

the general population and placing them in

maximum security segregation units violated

the prisoners' 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 prisoners for administrative

reasons. See id. at 404-05. The Supreme

Court summarily affirmed the district

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

(1978).

In the next phase of the litigation,

the district court issued an unpublished

comprehensive preliminary injunction

Be

—iiieccne perce: |

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 applied 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

4.

aan

continuing propriety of procedural

requirements in light of the Supreme

Court’s decision in Hew v. Helms, 459

U.S. 460 (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. 1984). 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 of 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

5.

aera ties

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's 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

previded with adequate legal assistance,

that health care services provided at

Folsom do not meet minimum constitutional

6.

standards, and that denial of contact

visitation constitutes cruel and unusual

punishment.

The opinions cited 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 (5th

Cir. 1982), amended, 688 F.2d 266 (5th Cir.

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

7.

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. 361],

380 (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).

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 (1977) (remedy must be

related to condition alleged to offend the

constitution); Swann v. Charlotte-

Mecklenburg Board of Education, 402 U.S. l,

16 (1971) (task is 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

9.

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 (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 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 (1984).

"The federal courts do not sit to supervise

state prisons, the administration of which

is of acute interest to the States."

Meachum v. Fano, 427 U.S. 215, 229 (1976).

10.

In fashioning a remedy for

constitutional violations, a federal court

must order effective relief. Smith v.

Sullivan, 611 F.2d 1039, 1044 (5th Cir.

1980). Therefore, a federal court may

order relief that the Constitution would

not of its own force initially require if

such relief is necessary to remedy a

constitutional violation. See Worth

Carolina State Board of Education v. Swann,

402 U.S. 43, 46 (1971); Swann v. Charlotte

Mecklenburg Board of Education, 402 U.S. at

15-16. 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 (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 U.S. at 16; Wright v. Rushen, 642 F.2d

ll.

AL2Z9, 2133-34 (9ER Cis. L988). The

commission of a federal judge is not a

"general assignment to go about doing

good." Jett v. Castaneda, 578 F.2d 842,

845 (Sth 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 at State

Reformers, 35 Wash. & Lee L. Rev. 949

(1978).

III

SCOPE OF APPELLATE REVIEW

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,

105 S.Ct. 1504, 1510-11 (1985); Fed. R.

Civi #0 6S. We review the district

court's legal conclusions de novo. In_ re

+ #

———

McLinn, 739 F.2d 1395, 1398 (9th Cir. 1984)

(en banc); United States v. McConney, 728

F.2d 1195, 120I (9th Cir.) (en banc), cert.

denied, 105 S.Ct. 101 (1984). We review

the scope of injunctive relief for an abuse

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

at 687-88; Swann v. Charlotte-Mecklenburg

Board of Education, 402 U.S. at 15;

Hoptowi* 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 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.S. 33, 39 (1952)

13.

*

(Frankfurter, J., dissenting)). Judge

Friendly notes that

[tJ]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 extremes.

Friendly, supra, at 763.1/ MThe Third

Circuit has reasoned that

[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 justification

for committing decisions to the

discretion of the court are not

1. We have recognized implicitly that

the abuse of discretion standard varies

with the decision being reviewed. See,

e.qg., C-Y Development Co. v. City of

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

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

14.

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 discretion in the

first instance.

United States v. Criden, 648 F.2d 814, 817

(3d Cir. 1981) (footnote omitted). We

agree with Criden. The extent of our

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 injunction2/ in which a United

2. The term, “structural injunction,"

refers to the course of litigation and the

series of orders that seek to "effectuate

the reorganization of an ongoing social

institution." QO. Fiss, The Civil Rights

Injunction 7 (1978). This form of

injunctive relief is also known as an

"institutional decree," an “administrative

injunction," see Fletcher, The

Discretionary Constitution: Institutional

Remedies and Judicial Legitimacy, 91 Yale

L. J. 635, 635 and n.l (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

iS.

States district court has enjoined state

administrative officials in order 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).3/ The ability to hear

Judge in Public Law Litigation, 89 Harv. L.

Rev. 1281, 1313 (1976), and as “complex

enforcement," see Note, Complex

Enforcement; Unconstitutional Prison

Conditions, 94 Harv. L. Rev. 626, 626 n.l

(1981).

‘3. For instance, in the Arkansas

prison litigation, Chief Judge Henley of

the -Eastern District of Arkansas continued

16.

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

Adjudication, 6 Law & Human Behav. 121, 126

to sit as a district judge by designation

even after his appointment to the Eighth

Circuit. See Finney v. Hutto, 410 F.Supp.

251 (B.D. ‘Agck. £376)3 Gs Figs. & ©.

Rendleman, Injunctions 528-752 (2d ed.

1984) (case study of Arkansas prison

litigation). See generally M. Harris & K.

Spiller, After Decision: Implementation of

Judicial Decrees inCorrectional Settings (1977).

or

(1982). The court of appeals, which enjoys

greater 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 the future

standard of conduct.4/ The precedential

4. We do not mean to imply that the

adoption of a 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. See

Grummett_v. Rushen, 779 F.2d 491, 496-97

(9th Cir. 1985) (Sneed, J., concurring).

18.

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

raises 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 that appellate review, few

effective external controls check the

district court's power.

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

Nevertheless, we recognize the tendency to

adopt remedies that have survived appellate

review.

19.

a

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

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. 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. 215

(1976).

20.

| minnie

A liberty interest may arise from

either of two sources: the due process

clause itself or state law. Hewitt, 459

U.S. at 466. In Wright I, the district

court held that California prisoners

possessed liberty interests on both

grounds. First, the court held that the

due process clause itself prohibits

arbitrary 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

21.

state-created liberty interest.5/ The

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

5. At the time of the district

court's decision in Wright I, 15 Cal.

Admin. Code § 3330 provided:

§ 3330. General Policy. (a)

Inmates must be segregated from

others when it is reasonably

believed that they are a menace

to themselves and others or a

threat to the security of the

institution. Inmates may be

segregated for medical,

psychiatric, disciplinary, or

administrative 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.

pe RB

proceeds through preliminary stages,

generally matures at trial, and produces a

judgment, to which after appeal, the

binding finality of res judicata and

° collateral estoppel will attach." Arizona

v. California, 460 U.S. 605, 618-19 (1983).

Here, however, we review a structural

injunction, which involves the ongoing

application of changing law to changing

circumstances.

Because permanent injunction 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

rae

doing has been turned through

changing circumstances into an

instrument of wrong.

United States v. Swift & Co., 286 U.S. 105,

114-15 (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 (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 (1976) (when

intervening clarification of constitutional

law reduced obligations of state officials,

district court abused its discretion by

refusing to modify injunction accordingly).

"When a change in the law authorizes what

had previously been forbidden, it is an

abuse of dis retion for a court to refuse

to modify an injunction founded on

superseded law." American Horse Protection

24.

ye ®

eed

iia ata dee aS bia

Association yv. Watt, 694 F.2d 1310, 1316

(D.C. Cir. 1982) .6/

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 erue2 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 that incorporated defendants'

timetable for elimination of overcrowding.

Id.; see Johnson v. Levine, 588 F.2d 1378

(4th Cir. 1978) (en banc). The district

court modified its decree accordingly. See

659 F.2d at 421 (procedural background of

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").

25.

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 (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 659 F.2d

at 429. The Fourth Circuit also vacated

the civil contempt citation and imposition

of sanctions. Id. The Fourth Circuit

reasoned that "[t]Jhe 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

26.

vr

STEEN MAINE TH GE eR

originally ruled on in these cases." d.

at 424. The Nelson court found that Rhodes

v. Chapman, and Bell v. Wolfish, 441 U.S.

520 (1979), mandated a different result

from that reached by the court sitting en

banc. 659 F.2d at 424-29.7/

7. The standards for modification of

an injunction should apply with equal, if

not greater vigor, to direct appeals of 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 decision may be

overturned. A direct appeal of an order of

a permanent injunction, however, does not

implicate repose or finality. Therefore,

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

F.2d 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 (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 Finney, 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.

27.

The Eleventh Circuit's opinion in

Newman v. Graddick, 740 F.2d 1513 (11th

Cir. 1984), similarly demonstrates that

structural injunctive relief (aust 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 gies

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

28.

SRE AINE es A EE NI AR sy ~

ype.

Pa NET

SSS RE EE eg ons

reconsideration of the propriety of

injunctive relief. Id. at 1521.8/

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 liberty interest

in freedom from administrative segregation.

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.

29.

—7_™-SF

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.... 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. A liberty

interest does not arise even wnen

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; Clark v. Brewer, 776 F.2d 226,

228-30 (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

30.

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.

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 on April 18,

1980).9/ A state-created 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,

476 P.2G at 232. The Wright I liberty

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.

31.

interest determinations, therefore, neither

guide nor control our cdénsideration

today.10/ | .

Therefore, the doctrine of law of the

case does not preclude review of the

10. The plaintiffs argue that the

Supreme Court in Hewitt reaffirmed its

summary affirmance of Wright I. We

disagree. In Hewitt, the Court merely

noted that its summary affirmance of Wright

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. The Court neither reaffirmed

nor 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 "ailed 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 dec’sions are dicta. The

Court in Hewitt hed no need to revisit

Wright I. We refure to attribute a hidden ‘

meaning to the Cou.t's failure to engage in

BEST AVI

obiter dictum.

32.

continuiaAg -ropriety of permanent

injunctive -cclief.1l/ The relevant

ll. 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

requirements of res judicata, law

of the case is an amorphous

concept. As most commonly

defined, the doctrine posits that

when a court decides upon 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 (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

(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 issues." Kimball v. Callahan, 590

F.2d 768, 771-72 (9th Cir.), cert. denied,

444 U.S. 826 (1979); see Handi Investment

ILABLE COPY

33.

question becomes whether intervening

changes in law-or fact require different

results.

B. Eighth Amendment Liberty Interest

Plaintiffs argue that the existence of :

eighth amendment violations in the

administrative segregation units raises a

due process liberty interest. We disagree.

Plaintiffs" sole authority for this

Proposition is a footnote from Justice

Co. v. Mobil, Oil Corp., 663 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

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) (decision may be reexamined in light

of changes in governing law); EEOC v.

International Longshoreman's Ass'n, 623

F.2d 1054, 1058 (5th Cig. 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 (1981); White v.

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

1967) (intervening controlling decision -

constitutes exception to doctrine of the

law of the case), cited with approval in

Arizona v. California, 460 U.S. at 618 n.8.

34.

PO ica S88 i i MS lia

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 (emphasis added).

Some fundamental considerations

Support Justice Stevens' conclusion. The

state has no right to subject a prisoner to

cruel and unusual punishment. The 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 presents to

institutional security. No amount of

356

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 violations 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 impediment to transfer from

One place to another when the conditions in

both locations are constitutionally

impermissible.12/

12. The conditions at San Quentin

perfectly illustrate the infirmities of

plaintiffs' argument. 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

36.

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 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

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.

37.

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

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.

C. State-Created Liberty Interest

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

38.

constitutionally protected liberty

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 (1983);

Hewitt v. Helms, 459 U.S. 460, 470-72

(1983); Greenholtz v. Inmates of the

Nebraska Penal and Correctional Complex,

442 U.S. 1, 11-12 (1979): Meachum v. Fano,

427 U.S. 215, 226-27 (1976); Allen v. Board

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

v. Spalding, 783 F.2d 867, 870 (9th Cir.

1986); McFarland v. Cassady, 779 F.2d 1426,

1428 (9th Cir. 1986); Rizzo v. Dawson, 778

F.2d 527, 530 (9th Cir. 1985): Baumann v.

Arizona Department of Corrections, 754 F.2d

841, 844 (9th Cir. 1985).

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

39.

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 hoid 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.

1) The California Statutory Sentence

Credit Scheme

The district court held that

California Penal Code sections 2931 through

293313/ create a liberty interest in

sentence reducing credits. 597 F.Supp. at 4

1416-17.

13. See Appendix.

40. ,

| PEST

7

Tr a nutshell, sections 2931 and 2933

create 1 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

in a full-time credit qualifying

assignment, but who either are

not assigned to such a program,

Or are assigned for less than

full time, 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).

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]lorktime 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.

4l.

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 than full time, shall receive no less

credit than is provided under section

(2 Fo Soe Although the California

legislature intended the worktime sentence

reducing scheme to instill a work ethic,

see People v. Vallardes, 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

42.

; - - - F -

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

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 (1979). Therefore, we

conclude that section 2933 does not create

a liberty interest in one-for-one worktime

credits.

43.

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 2931. Section 2931 applies by its

own terms to prisoners who are incarcerated

for crimes committed prior to January l,

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, 106 S.Ct. 2266 (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 than is

provided under Section 2931." Cal. Penal

Code § 2933(a).

» Section 2931 provides that a

prisoner's sentence may be reduced by four

44.

months for every eight months that the

prisoner serves. Three of the four 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

S$ 2393i(¢). 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 l,

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.l, 611 P.2d 874, 880-

81 n.1, 165 Cal. Rptr. 280, 286 n.1 (1980)

(Bird, C.J., concurring and dissenting).

While section 2931 differs somewhat

from the Nebraska statute at issue in

Greenholtz v. Inmates of the Nebraska Penal

and Correctional Complex, 442 U.S. 1l

45.

—————

(1979), 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.

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,

therefore, is irrelevant and cannot support

the district court's holdings.14/

14. The district 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 2931

and 2933, without affording a prisoner due

46.

2) California Decisional Law

The plaintiffs argue that "by virtue

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. D ’

593 F.Supp. 696 (N.D. Cal. 1984).

In Conti, the district court held that

California state-court decisions created a

liberty interest cognizable under the

fede: .1 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 4

liberty interest in freedom from all

arbitrary state action. Id. at 701; see

People v. Ramirez, 25 Cal.3d 260, 268, 599

rocess of law, that prisoner may obtain

abeas corpus relief. See Preiser v,.

Rodriquez, 411 U.S. 475, 500 (1973).

47,

P.2d 622, 627, 158 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).

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 interests. 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 (1976). Unless a liberty interest

is implicated, arbitrary state action does

48.

not violate the fourteenth amendment.

Hewitt, 459 U.S. at 466-69. The due

process clause of the fourteenth amendment

focuses in relevant part on protecting

liberty. The due process clause of the

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,

49.

459 U.S. at 467; Greenholtz v. Inmates of

the Nebraska Penal and Correctional

Complex, 442 U.S. 1 (1979). The federal

perspective instructs that arbitrary

decision making cannot deprive a person of

that which has already been taken.

Greenholtz, 442 U.§. at- 8-11. 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 has deprived a criminal

defendant of liberty in the first place.

For federal purposes, the extent and

nature of the prisoner's 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 liberty away. Baumann

v. Arizona Department of Corrections, 754

50.

F.2d 841, 843-45 (9th Cir. 1985).15/ 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 GiB. at 7. 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, 1100-01 (7th Cir.

1981).] Process is not an end in

itself. Its constitutional

purpose is to protect a

substantive interest to which the

individual has a legitimate claim

of entitlement.

461 U.S. at 250 (footnote omitted).

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.

5l.

In contrast, the California due

process clause requires process

notwithstanding the absence of substantive

predicates or conditions. People v.

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

create a federally evqni sabia liberty

interest.

3) California Prison Regulations

The plaintiffs argue that sections

3335 and 3336 of Title 15 of the California

Administrative Code create a liberty

$2.

Cee Atl et ST tt AB HR na i a sth Ne as sara 0 ahaa tanese Le.

interest. These sections govern the

placement and retention 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 deprivations imposed in the

rE course %f daily operations of an

institution are likely to be

minor when compared to the

release from custody at issue in

parole decisions and good-time

credits. Moreover, the safe and

efficient operation of a prison

On a day-to-day basis has

traditionally been entrusted to

the expertise of prison officials

- « e « These facts suggest that

regulations structuring the

SaQteewesaeey 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 U.S. at 470 (citations

omitted). Accordingly, we have noted in

the context of inter-institutional

53.

transfers that "[u]Jnless 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 F.2d at 530 (emphasis added).

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 constitutionally

protected liberty interest. -

Section 333516/ 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

16. See Appendix.

54.

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 the general population absent

the specified circumstances.

Section 333617/ 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 his 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

17. See Appendix.

55.

decision-making of prison officials." See

Hewitt, 459 U.S. at 471. Such procedural

requirements, even if mandatory, do not

raise a constitutionally cognizable liberty

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

250.

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." 45 Cai.

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.

As the Supreme Court reasoned in

Hewitt, the word "shall" alone is not

sufficient. Rather, the liberty interest

56.

is created when the word "shall" is used to

mandate certain procedures "in connection

with requiring specific substantive

oredicates for action." 459 U.S. at 472

(emphasis added). Those substantive

predicates are contained in section 3335,

and include standards fer 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

57.

nk ee ae ee hm OO ae ow

immediate release, absent procedures that

determine that the substantive predicates

for retaining the inmate in restrictive

custody are demonstrated.

Vv

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; 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.

58.

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

(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 (1979) (quoting Morrissey v.

Brewer, 408 U.S. 471, 481 (1972)).

The district court incorporated the

procedural requirements mandated by the

three-judge court in Wright I. See 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 (1974). See Wright

I, 462 F.Supp. at 403-05.18/ The district

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. 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

59.

a» liane Dasha Re Sem me

court also established additional

procedural requirements. The court ordered

the defendants to release a 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

(1983), the Supreme Court held that a

lesser quantum of process is due when a

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.

60.

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 whether 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. The process mandated for

administrative segregation under Hewitt,

therefore, is substantially less than that

required by Part III of the Permanent

Injunction.

61.

Plaintiffs nonetheless argue that

Hewitt is distinguishable and a higher

guantum of process is due in the instant

case. Plaintiffs argue that they have a

greater private interest than did the ~ ‘

prisoners in Hewitt, that the presence of

eighth amendment violations requires

heightened process, and that the

defendants’ 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 n.4.

The hardships that a segregated prisoner in

Hewitt would face included “denial of

62.

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.]

(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 population, we

are especialiy sensitive to the Supreme

Court's admonition that "“"[t]Jhe safety of

the institution's guards and inmates is

perhaps the most fundamental responsibility

63.

of the prison administration." Hewitt, 459

U.S. at 473.19/ 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

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

19. Once again, we note that failure

to remove dangerous prisoners from the

general population may amount to a breach

of the state's 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 F.2d 299, 303 (8th Cir.) (en

banc), cert. denied, 106 S.Ct. 1975 (1986).

64.

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

decisions, turns largely on

purely subjective evaluations and

on predictions of future

behavior; indeed, the

administrators must predict not

just one inmate's future actions,

as in parole, but those of an

entire institution.

Hewitt v. Helms, 459 U.S. at 474 (citations

omitted); see also Jones v. North Carolina

Prisoners' Labor Union, Inc., 433 U.S. 119,

132-33 (1977); 15 Cal. Admin. Code §

65.

3338(d), (e). A trial-like proceeding is

unlikely to inform a prison administrator

regarding such subjective considerations. é

See Clark v. Brewer, 776 F.2d at 235.

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 nénudeareacy beaetee within a

reasonable time after the prisoner is

segregated.20/ The prison officials must

inform the prisoner of the charges against

the prisoner or their reasons for

considering segregation. Prison officials

must allow the prisoner to present his

views.

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. We intimate no view as .

to whether due process would tolerate a

more lengthy delay.

66.

We specifically find that the due

process clatse 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. 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. at 1424-25.

B. RETENTION

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

Injunction, the district court ordered

defendants to release prisoners from

administrative segregation on the

prisoner's Minimum Eligible Release Date or

at the expiration of twelve months of

consecutive confinement, whichever is

67.

—————————————— ~~ ~&~&=«~«©=~7;}.

shorter, unless the defendants afford the

prisoner all the hearing rights that attend™

initial placement in segregation.

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 or

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 J.S. at 477 n. 9. The third

circuit, similarly, has stated "the

governmental interest involved in a good

faith decision to subject a ce saeuinx to

administrative segregation may fluctuate

with the passage of time and change of

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

946, 953 (3d Cir. 1984).

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

nay continue withou- review for as long as

twelve months. We do not believe that

annual review sufficiently protects

plaintiffs' liberty interest. However, we

intimate no view as to the frequency of

69.

————————————— OO ii“. ..

periodic review 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

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

suspected criminal activity or serious

misconduct. Defendants argue that these

criteria impose unwarranted limitations on

prison management. 4

70.

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 guards and

inmates is perhaps the most fundamental

responsibility of the prison

administration." 459 U.S. at 473. 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 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 defendants' ability to hold disciplinary

yp

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, 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.

VII

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 on which the

Monitor2l1/ certifies that defendants are

"in full compliance with the Permanent

21. The Monitor is a special master,

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

See 597 F. Supp. at 1425.

72.

Injunction and that conditions of

confinement in segregation units at San

Quentin and Folsom do not violate the

Constitution." 597 F. Supp. at 1425.22/

The court ordered that any prisoner

assigned to segregation could request

release and, if the defendants denied the

request, the prisoner could obtain review

by the Monitor. The court empowered 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

22. Although Part IV of the Permanent

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.

1986). Of course, this litigation has not

reached a point demanding resolution of

this question.

73.

administrative segregation-23/ Defendants

contend that under Preiser v. Rodriquez,

411 U.S. 475 (1973), the writ of habeas

corpus is the exclusive federal remedy

available to a prisoner who seeks to e

challenge the fact of conf inenent, and that

the district court's order evades the

requirement that the prisoner exhaust state

23. We note sua sponte that the

district court's delegation to the Monitor

of the power to order release raises

serious constitutional questions. See,

-€.g., Northern Pipeline Construction Co. v.

Marathon Pipeline Co., 458 U.S. 50 (1982);

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

(1980); Fiss, The Social and Political

Foundations of Adjudication, 6 Law & Human

Behav. 121 (1982); Note, Article III

Constraints and the Expanding Civi

Jurisdiction of Federal Magistrates: A

Dissenting View, 88 Yale L. J. 1023 (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

refrain from deciding the question.

However, we do not wish our silence to be

taken as a ratification of the district

court's order.

74.

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

good-time credits improperly. 411 U.S. at

476. 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 the imprisonment, his sole federal

remedy is a writ of habeas corpus." Id. at

500.24/

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. at 499. One court has followed this

reasoning and held that habeas corpus

provided the exclusive remedy for obtaining

an order compelling release from

75.

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

554-55 (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 appropriate remedies for any

constitutional violations ascertained,

short of ordering the actual restoration of

good time already cancelled.” Id. at 555

(footnote omitted; emphasis added).

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

administrative detention. Boudin v.

Thomas, 732 F.2d 1107, 1111-12 (2d Cir.

1984).

76.

core ..f 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.

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 "[iJf 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.

77.

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 question here is who

should apply those standards and how much

evidence is required in support of a

segregation or retention decision.

Prison administrators, not courts,

must 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 ge himself has

committed no misconduct; rumor,

reputation, and even more

imponderable factors may suffice

to spark potentially disastrous

78.

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 one inmate's future actions,

as in parole, but those of an

entire institution.

Hewitt, 459 U.S. at 474 (citations

omitted); see also Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119,

132-33 (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 (1979).

"{[W]here 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 (1974). We

recognize, moreover, "that ‘the

79.

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 (1974)

(quoting Preiser v. Rodriguez, 411 U.S.

475, 492 (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, 105 S. Ct. 2768

(1985), indicates that the due process

clause requires only the existence of "some

evidence" in support of a prison

administrator's segregation decision. Id.

at 2770.

80.

In Hill, the plaintiff, a prisoner,

was charged with misconduct for assaulting

another inmate. Id. At the disciplinary

hearing, a prison 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 prison disciplinary

board withdrew 100 days of plaintiff's good

time credit and ordered that 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.

81.

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

(citation omitted). The Court held that

the evidence recited above was sufficient.

Id. at 2775. The Court's reasoning merits

recitation at length:

Where a prisoner 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

£64" Consequently, in

identifying the safeguards

required by due process, the

Court has recognized the

legitimate institutional needs of

assuring the safety of inmates

82.

and prisoners, avoiding

burdensome administrative

requirements that might be

susceptible to manipulation, and

preserving the disciplinary

Process aS a means oOf

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 that due process

requires some evidentiary basis

for a decision to revoke good

time credits will not impose

significant new burdens on

proceedings within the prison.

Nor does it imply that a

disciplinary board's factual

findings or decisions with

respect to appropriate punishment

are subject to second-gquessing

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 ...."

83.

Ascertaining whether this

standard is satisfied does not

reaquire 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

Gisciplinary 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 quaranteed

by the Due Process Clause does

not require courts to set aside

Geeisi ons o f prison

administrators that have some

basis in fact.

Id. at 2774 (quotations and citations

omitted, emphasis added).

The Court's decisions in Hewitt and

Hill lead to two conclusions: First, the

exigencies of prison administration allow

prison administrators to make segregation

decisions on the basis of "some evidence,”

including the administrator's experience

and awareness of general prison conditions;

84.

second, a reviewing court may not reverse

the administration's decision if "some

evidence” supports the administration's

decision.

Plaintiffs seek to distinguish 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 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 20-22.

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

85.

will do little to protect plaintiffs'

eighth amendment rights.25/

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 the defendants failed to

comply, de novo review by the court or the

Monitor would be unwarranted. The district

court could assure itself that the

25. Moreover, if Judge Savitt's

cenclusions regarding the conditions in the

general population are correct, see supra

note 12, interfering in segregation

decisions, would be futile, at least as far

as the San Quentin plaintiffs are concerned.

86.

defendants were complying with the

constitution simply by examining the record

for "some evidence" in support of each

challenged segregation decision. The

Gistrict court abused its discretion by

allowing the Monitor to substitute his

discretion for that of the defendants.26/

VIII

THE WORK REQUIREMENT

In Part III(C) of the Permanent -

Injunction, the district court ordered that

no prisoner assigned to administrative

segregation be denied the opportunity to

participate in work, education, or

vocational training programs. 597 F. Supp.

at 1425.

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.

87.

A. Due Process

Plaintiffs contend that P: rt 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, 457 U.S. at 476;

Greenholtz, 442 U.S. at 7. The due process

Clause requires procedure. See Mathews v.

Eldridge, 424 U.S. at 335. The district

court's order, however, does not relate to

enforcement 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 (1984).

88.

B. Eighth Amendment

In Hoptowit v. Ray, 682 7.2d at 1254-

. 55, 1258, we held that “[iJdleness 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. Plaintiffs,27/ nonetheless, urge us

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 consider issues not raised by

the paries. See United Parcel Servi

Inc. v. Mitchell, 451 U.S. 56, 60 n.

(1981); Bell v. Wolfish, 441 U.S. 520, 531

n.13 (1979); Knetsch v. United States, 364

‘ U.S. 361, 370 (1970); Wiggins Bros., Inc.

v. Department of Energy, 667 F.2d 77, 83

(Temp. Emer. Ct. App. 1981), cert. denied,

456 U.S. 905 (1982); National Comm'n on Egg

Nutrition v. Federal Trade Comm'n, 570 F.2d

: 157, 160, n.3 (7th Cir. A977), Certs

denied, 439 U.S. 821 (1978). In the

instant case, however, plaintiffs raised

89.

to reverse the district 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

to clarify the language in our prior

the issue but failed to brief it.

Moreover, plaintiffs argue this issue in

their reply brief on cross-appeal. The

piaintiffs obtained leave of court to file

their 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 ard 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.

90.

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.

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

conditions" 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 ambiguity regarding the

analytical framework employed in this

circuit, such uncertainty or ambiguity may

be rectified easily. We meant that a

91.

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.

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,

92s

sanitation, medical care, and personal

safety. Id.; Wright v. Rushen, 642 F.2d at

1132-3). 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/

Second, plaintiffs do not identify any

related conditions that would support a

finding that enforced idleness created an

28. Although methods 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

P.28@ S76, S8i-83 (286. Cis. £29833

(cataloging decisions of other circuits);

see also Madyun v. Thompson, 657 F.2d 868,

874 (7th Cir. 1981); Ramos _v. Lamm, 639

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

denied 450 U.S. 1041 (1981); Bono v. Saxbe,

620 F.2d 609, 614-15 (7th Cir. 1980);

Newman v. Alabama, 559 F.2d 283 (5th Cir.

1977), rev'd in part on other grounds sub

num. Alabama v. Pugh, 438 U.S. 781 (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 (2d Cir. 1971), cert. denied, 404

U.S. 1049 (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 (1981). We adhere to our

holding in Hoptowit v. Ray.

93.

eighth amendment violation in this case.

Plaintiffs point to the vViatenes and

psychological pain that enforced idleness

engenders. Related conditions, however,

are not those that result from another .

condition, but those that in combination

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

(Sth Cir. i979)» 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 constitutionally mandated."

Plaintiffs, therefore, implicitly ask us to

overrule 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

94.

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

95.

————— LOO = =EAhni TS

justification.' At least in

theory, each plaintiff has been

selected for 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.29/

The plaintiffs' argument largely

depends on the assertion that enforced

idleness engenders a high degree of

violence. Plaintiffs attempt to draw a

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).

96.

close connection between enforced idleness

and violence in the instant case by stating

that "The District Court specifically found

that ‘'[lJockup 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 two

institutions. _In part, it is

caused by the horrendous physical

conditions, including double-

celling. In part, it is due to

the crowding of both facilities

beyond design capacity. In part,

97.

it may be 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 and

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 of state-

created work programs is the province of

prison officials, not of the district

court.

98.

Ix

ACCESS TO THE PRISON LAW LIBRARY

In Part I1I(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"30/

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

tc {le libraries be permitted to order five

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.

99.

books per week, which would be delivered to

the prisoner's cell. Id.

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

(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; see Lindguist v. Idaho State

Board of Corrections, 776 F.2d 85l, 855

(Stan. €ixc.. 2963} @ 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 a

reasonable amount of time 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).

100.

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 security

needs. Plaintiffs also argue, however,

that the district court abused its

discretion by failing to require defendants

to provide legal cssistance 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.

101.

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 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

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

1978), cert. denied, 441 U.S. 911 (1979),

the Fourth Circuit held that allowing é@

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

102.

than five books in that amount of time.

The Williams court noted that

° 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 chance 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

unr6alistic to expect a prisoner

to know in advance exactly what

materials he needs to consult.

Id. at 1339.

The 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

103.

legal counsel or 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' request. See Nordgren v,

Milliken, 762 F.2d 851, 853-55 (10th Cir.

1985) (state provided access to courts by

providing legal assistance in drafting

pleadings), cert. denied, 106 S. Ct. 593

(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

materials and research legal questions for

23 death-row inmates; Corgain v. Miller,

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

(where state actually provided legal

assistance, access to legal materials could

be restricted); Holt v. Pitts, 702 F.2d

104.

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, 644 F.2d

41, 43 (lst Cir. 1981) (state must show

that 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 legitimate 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.

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

105.

prisoner legal assistance. If the parties

fail to agree on a plan 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 I1(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.

The fact that a remedy is costly does

not preclude a district court from ordering

the remedy. Hoptowit, 682 F.2d at 1247.

106.

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.

XI

ADJUSTABLE HOT AND COLD WATER CONTROLS

In Part I1(10) of the Permanent

Injunction, the district court ordered that

tne 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 could have required

defendants to provide warm water, rather

than hot and cold water.

107.

The court's order is not overly

intrusive. The requirement that defendants

install hot and cold water controls will

necessitate the expenditure 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 affect the daily

Operation of the prison. The adjustable

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 the

108.

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 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.

109.

Denial of 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 (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 district court found that

segregated inmates could be examined or

treated by a doctor during the weekly visit

Or insist on an earlier appointment.

Folsom, therefore, does not deliberately

deny or delay a prisoner's access to

medical care. See Estelle v. Gamble, 429

U.S. at 104-05. 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

110.

indifference to serious medical needs.”

Gamble, 429 U.S. at 106 (emphasis added).

B. Use of Unqualified Medical Personnel

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

noiprescription 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. $

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

lll.

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 level of medical

qualification, and the level of

qualification required to adequately render

the services that they perform.

es Confidentiality of Records

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 (5th 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 causal connection between lack

112.

of confidentiality and inadequacy of

records. We reject plaintiffs' argument.

D. Lack of Special Medical Diets

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 indicates that if a 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.

113.

E. Medical Facilities

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 included the

storage of live fish in a whirlpool bath.

Id. In Newman v. Alabama, 503 F.2d 1320,

1323 (5th Cir. 1974), cert. denied, 421

U.S. 948 (1975), the lack of sanitation

included the cleaning of linens from

patients with hepatitis and tuberculosis

along with the linens of other infirmary

inmates.31/ In Lightfoot v. Walker, 486 F.

31. The lack of health care in the

Alabama prisons, which were the subject of

Newman v. Alabama, provides a stark

contrast with the level of health care at

Folsom:

Immediately before [court]

intervention, medical services

for Alabama's almost 4,000

prisoners were provided largely

at a state medical and diagnostic

center. The center maintained no

full-time physician; instead,

care was provided by three

private doctors working part-time

at the center, three registered

nurses, eight unlicensed former

military medics, and a part-time

dentist. Facilities at

individual prisons were even

worse. One unit housing 850

inmates, for example, had no

full-time physician and a dentist

available only one-half day of

each week. Because of

understaffing, unsupervised and

untrained inmates regularly

provided medical services,

including minor surgery. The

horror stories coming out of such

a setting were numerous.

Bedsores of a quadraplegic who

spent many months at the medical

and diagnostic center, for

example, became infested with

maggots. In the month before his

. death, he was bathed, and his

bandages changed only once.

Yarbrough, The Alabama Prison Litigation, 9

115.

Supp. at 512, surgical instruments were not

sterilized, the surgical suite was not

Cleaned routinely, and clean and soiled

linens were stored together.

Unlike Lightfoot and Williams, surgery

is not performed at the Folsom infirmary.

597 F. Supp. at 1404. Unlike Williams, the

Folsom infirmary is not subject to vermin

infestation. Id. Unlike Newman, there is

no indication in this case that infirmary

officials were so callous to the health

needs of the inmates as to mix the laundry

of patients with highly communicable

infectious diseases with that of the

general infirmary inmates. Id.

F. Conclusions Regardi»;, Health Care at

Folsom

In sum, Folsom's health care

conditions fall below medical standards.

The fact that a given condition might

constitute medical malpractice, however,

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

omitted).

116.

does not necessarily mean that the

condition constitutes cruel and unusual

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

106. It is only deliberate indifference to

serious medical needs that can offend

"evolving standards of decency" in

violation of the eighth amendment. § Id.

However, the district court's failure to

render specific factual findings regarding

the level of reliance on unqualified

personnel requires a remand for entry of

such findings.

XIII

CONTACT VISITATION

The district court held that denial of

contact visits to inmates in administrative

segregation does not constitute cruel and

unusual punishment. 597 F. Supp. at 1413.

Plaintiffs assert that the district

court improperly applied a per _se rule.

They urge us to remand the case to the

district court with instructions to

reconsider whether all prisoners in

117.

administrative segregation in San Quentin

and Folsom are entitled to individualized

determinations on their suitability for

contact visits.

Plaintiffs cite no authority for the

proposition that denial of contact visits

constitutes cruel and unusual punishment.

Instead, they argue that the evidence

adduced at trial demonstrates that contact

visitation would have beneficial

rehabilitative effects. They contend that

"there was unanimity of evidence that

contact visits thus are vital to inmate

health, as the deprivation of human contact

involves extreme suffering and affects both

physical and mental health.”

Judicial authority uniformly

contradicts plaintiffs' assertions. See

Ramos v. Lamm, 639 F.2d 559, 580 n.26 (10th

Cir. 1980) ("weight of present authority

clearly establishes that there is no

constitutional right to contact visitation

- + « We agree with this view."), cert.

118.

denied, 450 U.S. 1041 (1981); Lynott v,

Henderson, 610 F.2d 340, 342 (5th Cir.

1980) ("convicted prisoners have no

absolute constitutional right to

visitation"); Feeley v. Sampson, 570 F.2d

364, 372-73 (lst Cir. 1978) ("we can

discover no constitutional guarantee that

[contact visits] may take place.");

Oxendine v. Williams, 509 F.2d 1405, 1407

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

constitutional right to physical contact

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

Coughlin, 748 F.2d 783, 788 (2d Cir. 1984)

(contact visits with persons other than

priest, lawyer, and doctor could disrupt

prison administration, create security

risks, and allow smuggling of contraband;

denial of contact visits did not violate

prisoners' first amendment rights); O'Bryan

v. County of Saginan, 741 F.2d 283, 284-85

(6th Cir. 1984) (denial of constitution);

Inmates of Allegheny County Jail v. Pierce,

612 F.2d 754, 758-60 (3d Cir. 1979) (ban on

119.

contact visits does not violate due process

rights of prisoners). Expert opinion is

entitled to little weight in determining

whether a punishment is cruel and unusual.

See Rhodes v. Chapman, 452 U.S. at 348

n.i3. Plaintiffs' argument, therefore,

lacks support. Denial of contact

visitation simply does not amount to the

infliction of pain. Cf. Hoptowit v. Ray,

682 F.2d at 1254-55.

Even if denial of contact visitation

amounted to an infliction of pain, the

eighth amendment would not prohibit the

denial unless the pain were inflicted

wantonly and without penological

justification. Rhodes v. Chapman, 452 U.S.

at 346. The district court found that no

segregated inmate was deprived of all

visits and most were allowed contact ’

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

found that despite thorough searches,

contact visits result in the smuggling of

contraband, particularly drugs. Id. at

120.

1403. The court commended defendants for

their efforts to improve visiting

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

The court noted that San Quentin was one of

the very few maximum security prisons in

the nation to allow conjugal visitation for

any of its inmates. Id. at 1402 n.25. The

court's findings hardly indicate that

defendants wantonly inflict pain on the

plaintiffs. To the contrary, the district

court's findings indicate that denial of

contact visitation is based on sound

penological justifications.32/

32. Plaintiffs fault the district

court for relying on Block v. Rutherfords,

468 U.S. 576 (1984). In Block, the Supreme

Court held that denial of contact visits to

pretrial detainees did not violate due

process. Id. at 589. As plaintiffs

assert, Block is distinguishable on the

basis that the pretrial detainees in Block

were subject to denial of contact

visitation only for a limited period of

time. Cf. Hutto v. Finney, 437 U.S. at

686-87 (conditions tolerable for a short

. period of time are intolerable for a long

period of time). The fact that Block is

distinguishable, however, does not improve

plaintiffs' position.

121.

To the extent that denial of contact

visitation is restrictive and even harsh,

it is part of the penalty that criminals

pay for their offenses against society.

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

XIV

CONCLUSION

For the reasons stated above, we

direct as follows:

1. We reverse the district court's

conclusion that Cal. Penal Code §§ 2931,

2933 create a liberty interest triggering

due process protections. The Wright I

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

the Permanent Injunction are vacated. All

release orders are vacated. We hold,

however, that 15 Cal. Admin. Code § 3339(a)

Creates a liberty interest. On remand, the

district court shall determine whether the

defendants' segregation procedures meet the

due process requirements as stated above.

If the district court determines that

defendants' procedures do not meet the

122.

requirements stated above, and that the

defendants are unlikely to comply

voluntarily, the district court shall order

Such relief as it deems necessary to obtain

compliance.

20 The district court's conclusions and

orders regarding noise reduction (Part

II(6)) and adjustable controls for hot and

cold running water (Part I1(10)) are

affirmed.

36 The district court's conclusions and

order regarding access to the prison law

library (Part I1(15)) are affirmed to the

extent that the court required defendants

to permit segregated prisoners access to

the law library. The district court's

conclusions are reversed and its order

vacated to the extent that the court

allowed defendants to rely on a paging

system for those prisoners who are denied

access because of security reasons. On

remand, the district court shall determine

how best to accommodate plaintiffs' right

123.

to meaningful access to the courts and

defendants' interest in institutional

security and economy.

4. The district court's conclusions that

denial of work programs and contact

visitation does not constitute cruel and

unusual punishment are affirmed.

5. The district court's conclusion that

the health care system at Folsom does not

constitute cruel and unusual punishment is

affirmed. However, on remand the district

court, if necessary, shall render explicit

factual findings regarding the

qualifications of personnel rendering

medical services in order to allow further

appellate review.

6. Each party shall bear its own costs.

AFFIRMED in part, REVERSED in part,

VACATED in part, and REMANDED.

124.

APPENDIX

Cal. Penal Code § 2931. Reduction of term

for good behavior and participation;

conditions

(a) In any case in which a prisoner was

sentenced to the state prison pursuant to

Section 1170, or if he committed a felony

before July 1, 1977, and he would have been

sentenced under Section 1170 if the felony

had been committed after July 1, 1977, the

Department of Corrections shall have the

authority to reduce the term prescribed

under such section by one-third for good

behavior and participation consistent with

subdivision (d) of Section 1170.2. A

document shall be signed by a prison

official and given to the prisoner, at the

time of compliance with Section 2930,

outlining the conditions which the prisoner

shall meet to receive the credit. The

conditions specified in such document maybe

modified upon any of the following:

(1) Mutual consent of the prisoner and

the Department of Corrections.

(2) The transfer of the prisoner from

one institution to another.

(3) The department's determination of

the prisoner's lack of adaptability or

succets in a specific program or

assignment. In such case the prisoner

shall be entitled to a hearing regarding

the department's decision.

(4) A change in custodial status.

(b) Total possible good behavior and

participation credit shall result in a

four-month reduction for each eight months

served in prison or in a reduction based on

this ration for any lesser period of time.

125.

\_-

Three months of this four-month reduction,

Or a reduction based on this ration for any

lesser period, shall be based upon

forebearance from any act for which the

prisoner could be prosecuted in a court of

law, either as a misdemeanor or a felony,

Or any act of misconduct described as a

serious disciplinary infraction by the

Department of Corrections.

(c ) One month of this four-month

reduction, or a reduction based on this

ratio for a lesser period, shall be based

solely upon participation in work,

educational, vocational, therapeutic or

other prison activities. Failure to

succeed after demonstrating a reasonable

effort in the specified activity shall not

result in loss of participation credit.

Failure to participate in the specified

activities can result in a maximum loss of

credit of 30 days for each failure to

participate. However, those confined for

other than behavior problems shall be given

specified activities commensurate with the

custodial status.

(d) This section shall not apply to

any person whose crime was committed on or

after January l, 1983.

Cal. Penal Code § 2932. Denial of time

credits; grounds; limitations; procedure;

effect; review; criminal prosecution

(a) For any time credit accumulated

pursuant to Section 2931 or to Section

2933, not more than 180 days of credit may

be denied or lost for a single act of

misconduct which could be prosecuted as a

felony whether or not prosecution is

undertaken, except that not more than one

year of credit may be denied or lost for a

single act of battery in which great bodily

injury is inflicted upon a nonprisoner.

126.

Not more than 90 days of credit may be

denied or lost for a single act of

misconduct which could be prosecuted as a

misdemeanor, whether or not prosecution is

undertaken. Not more than 30 days of

credit may be denied or lost for a single

act of misconduct defined by regulation as

a serious disciplinary offense by the

Department of Corrections. Any person

confined due to a change in custodial

Classification following the commission of

any serious disciplinary infraction shall,

in addition to any loss of time credits, be

ineligible to receive participation or

worktime credit for a period not to exceed

the number of days of credit which have

been lost for such act of misconduct. In

unusual cases, an inmate may be denied the

opportunity to participate in a credit

qualifying assignment for up to six months

beyond the period specified in this

subdivision if the Director of Corrections

finds, after a hearing, that no credit

qualifying program may be assigned to the

inmate without creating a substantial risk

of physical harm to staff or other inmates.

At the end of the six-month period and of

successive six-month periods, the denial of

the opportunity to participate in a credit

qualifying assignment may be renewed upon a

hearing and finding by the director.

The prisoner may appeal the decision

through the department's review procedure,

which shall include a review by an

individual independent of the institution

who has supervisorial authority over the

Situation.

(b) For any credit accumulated pursuant to

Section 2931, not more than 30 days of

participation credit may be denied or lost

for a single failure or refusal to

participate. Any act of misconduct

described by the Department of Corrections

127.

as a serious disciplinary infraction if

committed which participating in work,

educational, vocational, therapeutic or

other prison activity shall be deemed a z

failure to participate.

(c) Any procedure not provided for by this

section, but necessary to carry out the FS

purposes of this section, shall be those

procedures provided for by the Department

of Corrections for serious disciplinary

infractions if those procedures are not in

conflict with this section.

(1) The Department of Corrections

Shall, using reasonable diligence to

investigate, provide written notice to the

prisoner. The written notice shall be

given within 15 days after the discovery of

information leading to charges that may

result in a possible denial of credit,

except that if the prisoner has escaped,

the notice shall be given within 15 days of

the prisoner's return to the custody of the

Director of Corrections. The written

notice shall include the specific charge,

the date, the time, the place that the

alleged misbehavior took place, the

evidence relied upon, a written explanation

of the procedures that will be employed at

the proceedings and the prisoner's rights

at the hearing. The hearing shall be

conducted by an individual who shall be

independent of the case and shall take

place within 30 days of the written notice.

(2) The prisoner may elect to be °

assigned an employee to assist in the

investigation, preparation, or presentation

of a defense at the disciplinary hearing if

it is determined by the department that:

(i) the prisoner is illiterate; or (ii) the

complexity of the issues or the prisoner's

confinement status makes it unlikely that

the prisoner can collect and present the

128.

Y

evidence necessary for an adequate

comprehension of the case.

(3) The prisoner may request

witnesses to attend the hearing and they

shall be called unless the person

conducting the hearing has specific reasons

to deny this request. Such specific

reasons shall be set forth in writing and a

copy of the document shall be presented to

the prisoner.

(4) The prisoner has the right, under

the direction of the person conducting the

hearing, to question all witnesses.

(5) At the conclusion of the hearing

the charge shall be dismissed if the facts

do not support the charge, or the prisoner

may be found guilty on the basis of a

preponderance of the evidence.

(d) If found guilty the prisoner shall be

advised in writing of the guilty finding

and the specific evidence relied upon to

reach this conclusion and the amount of

time-credit loss. The prisoner may appeal

such decision through the Department of

Corrections' review procedure, and may,

upon final notification of appeal denial,

within 15 days of such notification demand

review of the department's denial of credit

to the Board of Prison Terms, and the board

may affirm, reverse, or modify the

department's decision or grant a hearing

before the board at which hearing the

prisoner will have the rights specified in

Section 3041.5.

(e) Each prisoner subject to Section 2931

shall be notified of the total amount of

good behavior and participation credit

which may be credited pursuant to Section

2931, an his anticipated time-credit

release date. The prisoner shall be

129.

notified of any change in the anticipated

release date due to denial or loss of

credits, award of worktime credit, under

Section 2933, or the restoration of any ,

credits previously forfeited.

(f) If the conduct the prisoner is charged

with also constitutes a crime, the

Department of Corrections may refer the

case to criminal authorities for possible

prosecution. The department shall notify

the prisoner, who may request postponement

of the disciplinary proceedings pending

such referral.

The prisoner may revoke his request

for postponement of the disciplinary

proceedings up until the filing of the

accusatory pleading. In the event of the

revocation of the request for postponement

of the proceeding, the department shall

hold the hearing within 30 days of the

revocation.

In the case where the prisoner is

prosecuted by the district attorney, the

Department of Corrections shall not deny

time credit where the prisoner is found not

guilty and may deny credit if the prisoner

is found guilty, in which case the

procedures in subdivision (c) shall not

apply.

(g) If time credit denial proceedings or

criminal prosecution prohibit the release

of a prisoner who would have otherwise been

released, and the prisoner is found not

guilty of the alleged misconduct, the

amount of time spent incarcerated, in

excess of what the period of incarceration

would have been absent the alleged

misbehavior, shall be deducted form the

prisoner's parole period.

130.

(h) Nothing in the amendments to this

section made at the 1981-82 Regular Session

of the Legislature shall affect the

Granting or revocation of credits

attributable to that portion of the

prisoner's sentence served prior to January

1, 1983.

. Cal. Penal Code § 2933. Worktime credits

On sentences; amount; receipt; forfeiture;

restoration; review

(a) It is the intent of the Legislature

that persons convicted of crime and

sentenced to state prison, under Section

1170, serve the entire sentence imposed by

the court, except for a reduction in the

time served in the custody of the Director

of Corrections for performance in work,

training or education programs established

by the Director of Corrections. Worktime

credits shall apply for performance in work

assignments and performance in elementary,

high school, or vocational education

programs. Enrollment in a two- or four-

year college program leading to a degree

shall result in the application of time

credits equal to that provided in Section

2931. For every six months of full-time

performance in a credit qualifying program,

as designated by the director, a prisoner

shall be awarded worktime credit reductions

from his term of confinement of six months.

A lesser amount of credit based on this

ration shall be awarded for any lesser

period of continuous performance. Less

than maximum credit shall be awarded

, pursuant to regulations adopted by the

director for prisoners not assigned to a

full-time credit qualifying program. Every

prisoner who refuses to accept a full-time

credit qualifying assignment or who is

denied the opportunity to earn worktime

credits pursuant to subdivision (a) of

Section 2931 shall be awarded no worktime

131.

credit reduction. Every prisoner who

voluntarily accepts a half-time credit

qualifying assignment in lieu of a full-

time assignment shall be awarded worktime :

credit reductions from his term of

confinement of three months for each six-

month period of continued performance.

Except as provided in subdivision (a) of

Section 2932, every prisoner willing to

participate in a full-time credit

qualifying assignment but who is either not

assigned to a full-time assignment or is

assigned to a program for less than full

time, shall receive no less credit than is

provided under Section 293l. Under no

Circumstances shall any prisoner receive

more than six months' credit reduction for

any six-month period under this section.

(b) Worktime credit is a privilege, not a

right. Worktime credit must be earned and

may be forfeited pursuant to the provisions

of Section 2932. Except as provided in

subdivision (a) of Section 2932, every

Prisoner shall have a reasonable

opportunity to participate in a full-time

credit qualifying assignment in a manner

consistent with institutional security and

available resources.

(c) Under regulations adopted by the

Department of Corrections, which shall

require a period of not more than one year

fee of disciplinary infractions, worktime

creuit which has been previously forfeited

may be restored by the director. The

regulations shall provide for separate ‘

Classifications or serious disciplinary

infractions a they relate to restoration of

credits; the time period required before

forfeited credits or a portion thereof may

be restored; and the percentage of :

forfeited credits or a portion thereof may

be restored; and the percentage of

forfeited credits that may be restored for

132.

‘

f

such time periods. No credits may be

restored if they were forfeited for a

serious discipinary [sic] infraction in

. which the victim died or was permanently

disabled. Upon application of the prisoner

and following completion of the required

time period free of disciplinary offenses,

forfeited credits eligible for restoration

under the regulations shall be restored

unless, at a hearing, it is found that the

prisoner refused to accept or failed to

perform in a credit qualifying assignment

Or extraordinary circumstances are present

that require that credits not be restored.

"Extraordinary circumstances" shall be

defined in the regulations adopted by the

director.

The prisoner may appeal the finding

through the Department of Corrections

review procedure, which shall include a

review by an individual independent of the

institution who has supervisorial authority

over the institution.

(d) The provisions of subdivision (c)

shall also apply in cases of credit

forfeited under Section 2931 for offenses

and serious disciplinary infractions

occurring on or after January 1, 1983.

15 Cal. Admin. Code § 3335. Administrative

Segregation.

(a) When an inmate's presence within an

institution's general inmate population

presents an immediate threat to the

inmate's own safety, the safety of others,

endangers institution security or

jeopardizes the integrity of an

investigation into alleged serious

. misconduct or criminal activities, the

inmate will be immediately removed from

general population and be placed in

administrative segregation. Administrative

133.

segregation may be accomplished by

confinement in a unit designated for that

particular purpose or, in an emergency, to

any single cell unit capable of providing

segregation from the general population and

the degree of security and control required

of the reason for such placement.

(b) An inmate's removal from general

population and placement in a segregated

unit for any reason except as provided in

Section 3340 will be considered as

administrative segregation until such time

as a disciplinary or classification hearing

has been held on the reasons or need for

separation from the general population and

other housing is designated.

15 Cal. Admin. Code § 3336. Segregation

Order.

Authority to order an inmate to be placed

in administrative segregation, before such

action is considered and ordered by

Classification hearing, may not be

delegated below the staff level of

correctional lieutenant or correctional

program supervisor III, except when a lower

level staff member is the highest ranking

official on duty.

(a) The reason for ordering an

inmate's placement in administrative

segregation will be clearly documented on a

CDC Form 114-D (Order and Hearing on

Segregated Housing) by the official

ordering the action at the time the action

is taken.

(b) In addition to explaining the

reason and need for an inmate's placement

in administrative segregation, the official

Ordering the action will determine if a

staff member needs to be assigned to assist

the inmate in presenting the inmate's

134.

position at a classification hearing on the

need for retention in segregated housing.

Staff assistance will be assigned and the

assignment will be noted on the CDC Form

114-D if the inmate is illiterate or if the

complexities of the issues make it unlikely

that the inmate can collect and present

evidence necessary for an adequate

comprehension of the inmate's position at a

Classification hearing. If an inmate is

not illiterate and the issues are not

complex, staff assistance will not be

assigned. The reason for not assigning

staff assistance will be entered on the CDC

Form 114-D.

(c) In assigning staff assistance,

the official initiating the CDC Form 114-D

will designate the inmate's caseworker by

name, as the staff member to assist the

inmate. If the assigned caseworker's name

is not known or cannot be readily

determined by the official initiating the

CDC Form 114-D, the words "assigned

caseworker” will be entered on the form.

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

the "order" portion of the form completed,

will if practical, be given to the inmate

prior to placement in administrative

segregation but not later than 48 hours

after such placement. Copies of the CDC

Form 114-D with the "order" portion

completed will also be submitted to the

warden or superintendent or designated

staff for review and possible further

action as described in section 3337. A

copy of the CDC Form 114-D will also be

routed to the records office as a notice of

the inmate's current status and pending

actions.

135.

15 Cal. Admin. vcvude § 3339. Release From

Administrative Segregation and Retention in

Administrative Segregation.

(a) Release: Release 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. Nothing in

this article shall prevent the official

ordering an inmate's placement in

administrative segregation, or a staff

member of higher rank in the same chain of

command from withdrawing an administrative

segregation order before it is acted upon

or prior to a hearing on the order after

consulting with and obtaining the

concurrence of the administrator of the

general population unit to which the inmate

will be returned or assigned. Release from

segregated housing after such placement

shall be effected only upon the written

order of an equal or higher authority.

136.

Original Filed

Oct. 18, 1984

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOSEPH TOUSSAINT, et al.,

Plaintiffs,

No

C

ve -73-1422 SAW

DANIEL J. MCCARTHY, et al.,

)

)

)

)

)

)

)

)

Defendants. )

)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

The following Findings of Fact and

Conclusions of Law underlie the Court's

decision on the merits of a class action

challenging the legality of conditions of

confinement for prisoners held in

administrative segregation-~-hereafter

referred to as "“segregation"--in the

California State Prison at San Quentin

("San Quentin") .1/ The lengthy history of

the litigation was recounted in some detail

137.

in connection wit the preliminary

injunction entered in this case on January

14, 1983, see Toussajnt y. ushen, 553

F.Supp. 1365, 1367-69 (N.D.Cal. 1983),

vacated jn part, 722 F.2d 1490 (9th Cir.

1984), and need not be repeated here. The

preliminary injunction was affirmed by the

Ninth Circuit on January 5, 1984, except

for one portion dealing with food service,

which was vacated because unsupported by

specific findings, Toussaint y. Yockey, 722

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

The first phase of trial on the merits

commenced in this Court on November 7,

1983. It was limited to conditions at the

San Quentin and Folsom prisons largely

because of representations made by

defendants that segregation at Soledad and

Tracy would soon be discontinued. Trial

lasted nearly two months. More than 65

witnesses testified. There are well over

1000 trial exhibits. The transcript is

4643 pages long. In addition, the Court,

138.

accompanied by counsel for both sides,

inspected the premises at San Quentin.

The findings and conclusions which

follow are based upon the Court's

independent review of all the evidence as

well as upon consideration of the findings

and conclusion proposed by both sides. As

detailed below, the Court finds and

concludes that conditions of confinement

for segregated inmates at San Quentin and

Folsom violate the Eighth and Fourteenth

Amendments to the United States

Constitution and that relief previously

ordered in this case to correct

constitutional violations has not been

fully effective.2/ The Court accordingly

renders a Judgement of Permanent Injunction

ordering termination of the unlawful

conduct of defendants and providing for the

appointment of a Special Master to monitor

compliance.

The Eighth Amendment to the

Constitution prohibits the infliction of

139.

"cruel and unusual punishments." The

ultimate question in this case is whether

the defendants, officials of the State of

California, have violated this prohibition

by confining prisoners under the conditions “

that obtain in segregation units at

San Quentin and Folsom. To answer this

question is difficult, because no static

"test" can be formulated to determine

whether conditions of confinement are

"cruel and unusual." Rhodes vy. Chapman,

452 U.S. 337, 346 (1981). Rather, the

meaning of the Eighth Amendment prohibition

is to be drawn "from the evolving standards‘

of decency that mark the progress of a

maturing society." Id.; TILop vy- Dulles,

356 U.S. 86, 101 (1958) (plurality

opinion). Ordinarily, the Court's judgment

as to the nature of these standards should

be governed to the maximum possible extent

by objective indicia of what the general

public would consider decent. 3/ See

Rhodes, 452 U.S. at 346; Hoptowjit v. Ray,

140 -

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

public perceptions are not alone

conclusive. In the cogent words of Chief

Justice Warren, “[t]he basic concept

underlying the Eighth Amendment is nothing

less than the dignity of man." Trop, 356

U.S. at 100; see Gregg v. Georgia, 428 U.S.

153, 178 (1976) (plurality opinion).

In the context of cases challenging

prison conditions, courts in this circuit

and others have commented that "[a]n

institution's obligation under the eighth

amendment is at an end ,if it furnishes

sentenced prisoners with adequate food,

clothing, shelter, sanitation, medical care

and personal safety." Hoptowit, 682 F.2d

at 1246;1 Wright v. Rushen, 642 F.2d 1129,

1132-33 (9th Cir. 1981); Wolfish v. Levi,

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

other grounds, 441 U.S. 520 (1979); see

also Newman y. State of Alabama, 559 F.2d

283, 286 (5th Cir. 1977), rev'd on other

grounds sub nom. Alabama v. Pugh, 438 U.S.

141.

781 (1978). Of course, this enumeration is

not necesSarily exhaustive. For example,

it is settled that prisoners may not be

deprived of all exercise, because "some

form of regular outdoor exercise is

extremely important to the psychological

and physical well-being of the inmates."

Spain vy. Procunier, 600 F.2d 189, 199 (9th

Cir. 1979) (citing cases); Rujz v. Estelle,

679 ¥.24 1115, 1352 6 nm. 173 (Sth Cir.

1982), cert. denied, 103 S.Ct. 1438 (1983);

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

(D.Ore. 1983).

The task before the Court is to

examine each specific challenged condition

= confinement and to determine whether

that condition, in the context of the

overall prison envircnment, comports with

human decency. Wright y. Rushen, 642 F.2d

at 1133. If found indecent, the condition

must be remedied. However, the relief

granted must be only so much as is required

to correct the specific deficiency.

142.

Hoptowit, 682 F.2d at 1247; Wright, 642

F.2d at 1134.

II. FINDINGS OF FACT

le San Quentin and Folsom are among

the oldest penal institutions still in use

in the United States today. San Quentin

first opened in 1853; Folsom in 1880. The

buildings presently used to house the

majority of segregated inmates are

relatively old and outmoded five-tier cell

blocks constructed between 1910 and 1934.4/

Segregated inmates are also housed in two

more modern buildings, SHU I at Folsom and

the "Adjustment Center” at San Quentin.

The latter was built in 1959 and 1960.

2° The class of plaintiffs in this

action is defined principally by reference

to the percentage of each day that they are

required to spend in their celis.>/ The

term "segregated inmate" means, at bottom,

one who is not permitted to mingle with the

general prison population. To accomplish

segregation, prison officials at San

143.

Quentin and Folsom lock inmates in their

cells on a round-the-clock basis. Under

this system, segregated inmates are allowed

out of their cells only for essential

activities such as showers, exercise,

visits, medical treatment and

Classification hearings. During all such

excursions, segregated inmates are made to

wear handcuff restraints except when they

are actually showering, exercising or

contact visiting. In the record and in

these findings, this form of confinement is

referred to interchangeably as

"segregation" or "lockup."

3. According to a former warden,

approximately 2100 inmates are typically

held in segregated confinement at

San Quentin at any one time. Upwards of

500 are so held at Folsom. Credible

testimony presented at trial disclosed that

the concentrated confinement of such large

numbers of segregated inmates is extremely

144,

rare, if not unprecedented, in the history

of American corrections.

4. The reasons why inmates are

assigned segregated status at San Quentin

and Folsom vary. Formally, they may be

placed in three categories. First, inmates

are segregated as punishment for

disciplinary rule infractions. This sort

of lockup is commonly referred to as

"segregated housing” or "SHU." Second,

inmates are segregated because of an

institutio.al perception that they pose a

threat to the safety of other inmates or

staff, or to the security of the

institution. This type of lockup is

sometimes called “management control."

Third, inmates are segregated because of a

perception that the inmates themselves may

be harmed by other inmates if they must

mingle in the general population. This

variety of lockup is sometimes called

"protective housing."

145.

5 In addition, there is a fourth

term used to describe a form of segregated

status: "Administrative segregation.”

Although sometimes used as a catchall to

refer to lock generally, “administrative .

segregation" technically refers only to a

temporary status to which an inmate is

assigned for a period of up to 30 days

prending a determination of whether he

should be assigned more permanent

"segregated" status for one of the three

reasons listed above. Evidence at trial

showed that many or most prisoners newly

arriving at San Quentin or Folsom are

initially placed in “administrative

segregation” for a period of "orientation."

6. Present policies of the California

Department of Corrections call for the

housing at San Quentin and Folsom “Level

Iv" inmates. These are inmates classified

as requiring the highest level of security

in custody, based on their precommitment

history, commitment offense, term of

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imprisonment, and other case factors. 6/

Most have had, in essence, a lire of crime,

sometimes going back to age six or seven.

San Quentin is particularly notorious for

its "“irascible population" and "aura of

brutality." In a report prepared by the

Board of Governors of the state Bar of

California, received in evidence,

San Quentin was characterized as

California's "Devil's Island." The inmate

population at Folsom is not materially

different. As many of the plaintiffs in

this case are among the most antisocial and

violent of the inmates held in the two

prisons, they pose formidable behavior

problems for correctional staff.

Following are the Court's findings

concerning each condition of confinement

challenged by plaintiffs.

A. egregation C Ss

7. The cells in which plaintiffs are

presently housed at San Quentin are located

in four buildings: The Adjustment Center

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(SHU), South Block (SHU "B" or “Badger,”

"c* or *Carson,” end °D” os *Doenner”

Sections), East Block (MCU) and North Block

(MCU). At Folsom, plaintiffs are housed in

two buildings, referred to herein as

"SHU I" (Building 4) and "SHU II" (Building

1, Sections B and C).

8. South Block, East Block, and North

Block at San Quentin, and SHU II at Folsom,

are five-tier cell blocks. MThat is, they

contain five rows, or "tiers," of cells

stacked vertically atop one another.

Outside the barred fronts of the cells runs

a walkway, also enclosed by bars, and

outside the walkway, approximately 20 to 30

feet of open space extends unbroken from

the bottom of the first tier to above the

top of the fifth tier. On the wall behind

the open space, opposite the cell fronts,

other walking platforms called "gunwalks”

are mounted. This wall also cimknine

windows. For most of the cells in these

cell blocks, the windows across the open

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space and behind the gunwalks are the sole

source of natural light.

9. The Adjustment Center at

San Quentin and SHU I at Folsom are more

modern in design. The cells are arranged

in separate floors, with their fronts

facing on enclosed corridors.

10. The cells used to house

segregated inmates in all of these units

are basically similar. All are between

five and six feet in width, and between

eight and ten feet in length. The smallest

is 45.5 square feet (Folsom SHU I), while

the largest is 56 square feet (San Quentin

Adjustment Center). Most lockup prisoners

are housed in cells measuring 48 (San

Quentin five-tier cell blocks) or 49.5

(Folsom SHU II) Square feet. These cells

are generally furnished with one or two

bunk beds, a coverless toilet, a sink, a

shelf, and a small mirror. The fronts of

the cells are open, except for bars. The

remaining walls, ceiling and floor are sold

149.

and windowless. The cells also- have a

light, sometimes mounted on the ceiling and

sometimes on the back wall. Most, if not

all contain one double electric outlet.

11. A small number of these cells

have, in addition, a solid outside door

with only a small window or now window.

Since the door admits virtually no natural

light, and the electric light is controlled

from the outside, these cells can be made

completely dark indefinitely at the

discretion of correctional sina thet: So

used, they are called “quiet cells."

Although the use of quiet cells is not

phtieiat iy permitted, evidence at trial

established that prisoners are in fact

confined in such cells during the daytime

with the solid door closed and the light

turned off from the outside.

oe Plaintiffs are restricted to

their cells at all times, except when there

is some specific reason for permitting them

to be elsewhere. Plaintiffs are thus

150.

required to perform all functions of

eating, sleeping, and elimination within

the cells. Not uncommonly, a segregated

inmate may languish five or more

consecutive days locked inside his cell,

never once setting foot outside the cell.

B. Double-Celling

13. Until recently, some lockup

inmates at both San Quentin and Folsom were

involuntarily double-celled. 7/ Because

only about eighteen inches separate the

bunks from the opposite wall, one of the

two inmates must remain on his bunk at all

times if the other is to move freely about

the cell. The distance between the surface

of the top bunk and the ceiling is

insufficient to permit a man to sit upright

on that bunk. Confining two inmates

together in a cell of the dimensions here

involved, under the conditions prevailing

in lockup at San Quentin and Folsom,

deprives each of any semblance of privacy,

since neither is permitted to leave the

151.

cell. Such confinement, in the midst of

the other abhorrent conditions detailed

below, engenders violence, particularly

violence between cellmates. The stronger

of the inmates generally establishes

psychological, physical, and often sexual

dominance over the other.

14. The overwhelming majority of

witnesses for both sides at trial sharply

Criticized the practice of double-celling

under conditions prevailing in lockup at

San Quentin and Folsom. Two witnesses who

have been defendants in this case (former

California Director of Corrections Ruth

Rushen and former San Quentin Warden George

Sumner) stated that such double-celling is

"inhuman." The Court so finds.

C. Heating and Ventjlation

15. In the San Quentin Adjustment

Center and Folsom SHU I, the heat in cells

used to house segregated inmates is

adequate. In the remaining buildings, used

to house most plaintiffs, it is not. At

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San Quentin, each five-tier cell block is

Supposed to be heated by an internal gas

heater and ventilating system. Frequently

these systems do not work, even in the

winter. The chill resulting from lack of

heat is compounded by numerous broken

windows, which admit cold air and

moisture. 8/ Moisture also enters the units

through leaky roofs and overflowing sinks,

toilets, and showers. The result has been

aptly described as a "chilly mist" that

Gampens everything in the cell blocks,

particularly at night. Conditions in

SHU II at Folsom are similar. Consequently

segregation inmates at both prisons

complain of "freezing." To combat the

chill, many wear all their clothing at all

times, even while sleeping. Many also

huddle under blankets for warmth, even

during the day. One inmate testified that

to combat what he called the "miserable

cold" inside Folsom SHU

This text is long and has been trimmed here. Open the source document for the complete record.