Petition for Writ of Certiorari — Johnson v. California

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Supreme Court, U.S.

~ FILED

OCT 2 7 2003

No. 05 36

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

)

GARRISON S. JOHNSON,

| Petitioner,

JAMES H. GOMEZ and JAMES ROWLAND,

Respondents.

On PETITION FOR A Writ OF CERTIORARI 10 THE ~

Unitep States Court OF APPEALS FOR THE NinTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Bert H. DeixLer

Counsel of Record

Lois D. THompson

AARON P. ALLAN

Lee K. CrawrorpD

PROSKAUER Rose LLP

2049 Century Park East

Suite 3200

Los Angeles, California 90067

(310) 557-2900

Counsel for Petitioner

183620 c

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Is a state’s practice of routine racial segregation of

state prisoners for at least a 60-day period subject to the same

strict scrutiny generally applicable to all other challenges

to intentional racial segregation, or is it excused from such

scrutiny and subject only to the more relaxed review afforded

under Jurner v. Safley, 482 U.S. 78 (1987)?

2. Does California’s practice of routine racial

segregation of state prisoners for at least a 60-day period

violate the Equal Protection Clause?

TABLE OF CONTENTS

Questions Peesemteg ...nccccccceseveceseceses

Telbbe OF Camtems wc cece ccccvcsecessucsoeass

Table of Cited Authorities .............2028000:

Table OC AGBOREIOES nes ccccscccvessnceseaes

Cpmtians BeIeW ... cc ccccccccccccccdussesawes

Statement of Jurisdiction ..............00e0 08

Constitutional and Statutory Provisions Involved

Statement of the Case ..........ccsccceccevces

Reasons for Granting the Petition ..............

I. The Ninth Circuit’s Decision Conflicts with

This Court’s Decisions Subjecting All

Government Racial Classifications, Including

Those in Prisons, to Strict Scrutiny .......

II. The Decision Below Conflicts with Holdings

of Four Other Circuit Courts That Prison

Regulations Based on Suspect Classifications

Require Heightened Scrutiny ............

Page

Contents

Page

Ill. The Issue Presented Is Recurring and of

Exceptional Importance ................ 15

Eek eu cecbccnccccccccceccece: 18

TABLE OF CITED AUTHORITIES

Page

Cases:

Adarand Constructors, Inc. v. Pena,

SUS UD. FEO CSTE) cccccccccccccccces 9, 10, 13, 17

Betts v. McCaughtry,

827 F. Supp. 1400 (W.D. Wis. 1993) .......... 14

Black v. Lane,

824 F.2d 561 (7th Cir. 1987) ..............-. 13, 14

Brown v. Board of Education,

SEF De GR GD oc ccccccecceccceccesocs 10

Glover v. Johnson,

198 F.3d 557 (6th Cir. 1999) ............555. 15

Gratz v. Bollinger,

123 S. Ct. 2411 (2003) ............. 3, 9, 10, 13, 16

Grutter v. Bollinger,

123 S. Ct. 2325 (2003) .......... 2, 9, 10, 11, 13, 17

Johnson v. California,

207 F.3d 650 (9th Cir. 2000) ..........-.45. 5

Johnson v. California,

321 F.3d 791 (9th Cir. 2003) ............455. 8

Korematsu v. United States,

FD a SEED cnccnccccesccecccconees 17

Cited Authorities

Page

Lee v. Washington,

I oo as passim

Mason v. Schriro, |

45 F. Supp. 2d 709 (W.D. Mo. 1999) .......... 14

Morrison v. Garraghty,

239 F.3d 648 (4th Cir. 2001) ................ 14

Nedea v. Voinovich,

994 F. Supp. 910 (N.D. Ohio 1998) ........... 15

Palmore v. Sidoti,

DIE 5 « nan dcnhadeouneedanes 16

Pargo v. Elliott,

49 F.3d 1355 (8th Cir. 1995) ................ 12, 14

Pitts v. Thornburgh,

866 F.2d 1450 (D.C. Cir. 1989) .............. 14

Richmond v. J. A. Croson Co..,

4B8 U.S. 469 (19G9) cc ccc ccccccces 9,10, 11,17

Saucier v. Katz,

PE «.endiceuseanauesesenes 5

Simpson v. Horn,

25 F. Supp. 2d 563 (E.D. Pa. 1998) ........... 15

Sockwell v. Phelps,

ype fF oe le ye) eee 6, 13

Cited Authorities

Page

Turner v. Safley, ,

Ge POG ccccccccecccéccvecoesss passim

United States v. Wyandotte County,

480 F.2d 969 (10th Cir. 1973), cert. denied,

GOO ULE. FR GRUED cece cccccccccccccscess 6

Washington v. Harper,

Se ED dcedccecesessesnesasses 6, 12

Washington v. Lee,

263 F. Supp. 327 (M.D. Ala. 1966), aff'd, 390 U.S.

DEE <i Cai cuiededcteecudsaceseeunes 11

Wilson v. Schomig,

863 F. Supp. 789 (N.D. Ill. 1994) ............ 14

Constitution and Statutes:

U.S. Const. Amend. XIV, §2 ..... Seduiaeneenda 1

Se OF GED Secccsecsccccevccoscesces l

ee ee REED Seccdccocccedsaccceions l

Other Authorities:

International Convention on the Elimination of All

Forms of Racial Discrimination, opened for

signature March 7, 1966,660 U.N.T.S.195 .... 16

TABLE OFAPPENDICES

Appendix A — Opinion Of The United States

Court Of Appeals For The Ninth Circuit Filed

SEE Wo bh S68 i rs ic oe cas

Appendix B — Decision Of The United States

District Court For The Central District Of

California Dated July 30,2001 ..............

Appendix C — Order Of The United States Court

Of Appeals For The Ninth Circuit Filed

RT cebecusaddsendediesudeckseecke

Page

32a

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 321 F.3d 791 (9th Cir. 2003).

Pet. App. at la. The Ninth Circuit affirmed the July 30, 2001,

decision of the United States District Court for the Central

District of California, which is unreported. Pet. App. at 32a.

The Ninth Circuit’s opinion denying a petition for rehearing

with suggestion for rehearing en banc (with four judges

dissenting) is reported at 336 F.3d 1117 (9th Cir. 2003).

Pet. App. at 36a.

STATEMENT OF JURISDICTION

The court of appeals’ judgment was entered on

February 25, 2003. Pet. App. at la. A timely petition for

rehearing with suggestion for rehearing en banc was denied

on July 28, 2003. Pet. App. at 37a. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution provides in pertinent part: “No State shall make

or enforce any law which shall . . . deny to any person within

its jurisdiction the equal protection of the laws.” U.S. Const.

Amend. XIV, § 2.

Title 42 U.S.C. § 1983 provides, in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen bed

the United States or other person —_— che

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress. . . .

STATEMENT OF THE CASE

For more than 25 years, the California Department of

Corrections (CDC) has followed a practice of segregating

prisoners by race in two-person cells upon arrival at or

on transfer between its institutions. CDC administrators

contend that security concerns related to possible a

among inmates necessitate its segregationist oro en

petitioner Garrison S. Johnson (Johnson), an A —-

American, first arrived at a CDC institution in 1986, CD -

personnel told him that he had to be placed in a “black col

On each subsequent occasion when the CDC transferre

Johnson to a different institution, his initial cell assignment

was based on his race and he was placed in a cell with another

African-American.

Johnson filed his original complaint on February 24,

1995, alleging that the CDC’s policy of racial ——

violated his right to equal protection under the Fourteent

Amendment. In ultimately rejecting Johnson s position,

the Ninth Circuit declined to follow this Court’s decision

holding such segregation unlawful in Lee v. Washington,

390 U.S. 333 (1968), and also declined to follow this Court S

decisions in a long line of cases holding that all state actions

discriminating on the basis of race are subject to strict scrutiny,

most recently Grutter v. Bollinger, 123 S. Ct. 2325 (2003),

—

Re ae ee a ee qn Ae

“a ~~ Rote ohn te hie pe

Pri Soomnen

and Gratz v. Bollinger, 123 S. Ct. 2411 (2003). Instead,

the court applied the more relaxed standard articulated

in Turner v. Safley, 482 U.S. 78 (1987), which evaluated

whether certain prison regulations that were not race-based

were reasonably related to leyitimate penological interests.

While noting that the standard of review was outcome

determinative, the Ninth Circuit declined to apply the strict

scrutiny ordinarily accorded racial classifications. Pet. App.

at lla. Applying 7urner 's relaxed review, the court upheld

the CDC’s policy of racial segregation.

A. The CDC’s Policy of Routine Racial Segregation

All newly arriving CDC inmates, whether on first

assignment or on transfer, are initially housed in a “reception

center.” The CDC requires such inmates to complete a

form that asks only: “Name/Number,” “Security/Custody

Level,” and “Ethnicity/Race.” The CDC admittedly “use[s]

. .. race as the predominant factor” to determine double-cell

housing assignments in the reception center. /d. at 3a, 20a

(emphasis added).

Prison officials’ testimony demonstrated that this CDC

segregation practice stems from anecdotally-based views

of the tendencies that inmates of particular races have to be

violent toward inmates of other races, rather than from

specific data or evidence. Jd: at 3a-4a. The CDC bases

its practice of racial segregation on the grounds that “in its

experience, race is very important to inmates and it plays a

significant role in antisocial behavior.” /d. at 3a. Thus, the

CDC immediately classifies inmates as “black, white, Asian,

and other.” Jd. Officials further subclassify inmates based

on national origin. By CDC practice, inmates of particular

national origins are not housed together because, according

to CDC administrators, “they tend to be at odds with one

another.” /d. “[F]or example[,] Japanese and Chinese inmates

are not housed together, nor are Laotians, Vietnamese,

Cambodians, and Filipinos.” /d. In support of its —

the CDC offered no evidence of particular instances of racia

tension in two-person cells causing damage to prison ——

discipline, or order. The CDC instead relied on generalize

accounts of racial conflict in certain prisons (not prisons 4

which Johnson has resided), without specific omen

any relation between housing assignments and the outbre

of violence.

The CDC contends that the confined nature of cells

makes them different from non-segregated facilities oe

CDC prisons. /d. at 4a. Because they have been —

unsuccessful in preventing the existing level of racia

violence in areas where staff can easily observe the inmates,

CDC administrators worry that they would be unable to

protect inmates in their cells from the violence they on

would likely arise from interracial assignments. Id. The -- ;

argues that each prison routinely needs a 60-day perl ( a

racial segregation to determine whether a newly rae

inmate poses a danger to others. Jd. After 60 days, the — e

is assigned a cell or transferred to another institution, w a

during its reevaluation, the CDC will continue to racially

segregate him for another 60 days. Id. at 4a-5Sa.

B. Proceedings in the District Court

After having been racially segregated numerous times,

Johnson filed a complaint, in pro per, in federal district —

alleging that the CDC’s policy violated his ee

rights. On January 8, 1998, the district court dismissed t -

Third Amended Complaint without leave to amend an

Johnson appealed. The court of appeals reversed in part the

district court’s dismissal on March 21, 2000, and remanded,

holding that Johnson’s allegations were sufficient to state a

claim for racial discrimination in violation of the Fourteenth

Amendment. Johnson vy. California, 207 F.3d 650, 655

(9th Cir. 2000) (relying on Lee vy. Washington and citing

Turner v. Safley).

On remand, the district court appointed counsel for

Johnson and granted leave to file a Fourth Amended

Complaint, in which Johnson sought monetary damages and

injunctive relief. Discovery was conducted and all parties

sought summary judgment on the equal protection claims.

On June 11, 2001, the district court denied the summary

judgment motions, as well as the CDC administrators’ motion

for summary judgment based on qualified immunity.

After the Supreme Court decided Saucier v. Katz, 533 U.S.

194 (2001), however, respondents Rowland and Gomez

successfully moved for reconsideration of the denial of their

motion for summary judgment based on qualified immunity.

On July 30, 2001, the district court granted this motion,

holding that under Saucier the former administrators were

entitled to qualified immunity because their actions were not

clearly unconstitutional. Pet. App. at 34a-35a.

C. Proceedings in the Ninth Circuit

The Ninth Circuit Court of Appeals affirmed the district

court, holding that the segregation policies were entitled to

a presumption of constitutionality and that Johnson had not

rebutted that presumption. /d. at 31a.

The court recognized that under Lee v. Washington, racial

segregation in prisons violates equal protection, except when

prison authorities, acting in good faith, find segregation

necessary in particularized circumstances to maintain se

discipline, and order. /d. at 8a-9a. The court discounte

decisions from sister circuits’ applying Lee to invalidate

~ segregationist prison policies, reasoning that in those cases

— which it characterized as featuring more invidious and

pervasive racial segregation — “the standard of the court's

review probably did not matter.” /d. at la. By contrast,

the panel saw this case as a close one requiring determination

of the applicable standard of scrutiny. /d.

The court applied Turner's “relaxed standard” to

Johnson’s racial equal protection claim, rather than the strict

scrutiny evidently applied in Lee, based on its understanding

that the Turner standard applied to determine the

constitutionality of all prison regulations, including those

involving racial segregation.” Jd. at 11a-13a. The court also

relied on Washington v. Harper, 494 U.S. 210, 224 (1990),

in which this Court, considering a substantive due process

claim related to forced administration of anti-psychotic drugs,

described the Turner standard as applicable when the needs

1. The court discounted United States v. Wyandotte County,

480 F.2d 969, 971 (10th Cir. 1973), cert. denied, 414 U.S. 1068

(1973), in which the Tenth Circuit held that an unsubstantiated fear

of racial violence does not provide authority to segregate inmates on

the basis of race into separate tanks or cell blocks. Pet. App. at 10a-

lla. The court similarly discounted the Fifth Circuit s ruling,

in Sockwell v. Phelps, 20 F.3d 187, 191-92 (Sth Cir. 1994), vr

permanent segregation of cell mates based on race violated the Equa

Protection Clause. Pet. App. at 10a-1 la.

2. The court conceded, however, that Turner is not in fact

applied to determine the constitutionality of all prison regulations.

As the court noted, the Ninth Circuit has refused to apply Turner in

the Eighth Amendment context. Pet. App. at 12a n.6.

aa,

of prison administration implicate constitutional rights.

Pet. App. at 12a.

Johnson petitioned unsuccessfully for rehearing with

a suggestion for rehearing en banc. Four judges dissented

from the denial of rehearing. /d. at 38a. For the dissenters,

Judge Ferguson observed that this Court has not overruled

Lee, and distinguished Turner because it was not a case

involving racial segregation:

[G]eneral expressions, in every opinion, are to be

taken in connection with the case in which those

expressions are used. If they go beyond the case, 7

they may be respected, but ought not to control

the judgment in a subsequent suit when the very

point is presented for decision.

Id. at 41a n.1 (alteration in original) (quoting Cohens vy.

Virginia, 19 U.S. 264, 399 (1821)). Judge Ferguson also noted

that “[bJoth the Fifth and Seventh Circuits have refused to

accord such extreme deference [to racial segregation by

prisons], recognizing that, in the context of race, more must

be required.” Pet. App. at 44a. The dissenting judges found

Lee controlling, especially in light of this Court’s recent and

repeated command that lower courts apply strict scrutiny to

all race-based classifications. /d. at 39a-40a, 42a. Opining

that the panel had effectively overruled Lee, the dissenters

maintained that the panel was not free to apply 7urner rather

than Lee:

[T]he panel simply does not have the authority

to interpret Turner as requiring a different level

of review. “If a precedent of th{e Supreme] Court

had direct application in a case, yet appears to rest

on reasons rejected in some other line of decisions,

the Court of Appeals should follow the case which

directly controls, leaving to th[e Supreme] Court

the prerogative of overruling its own decisions.

Iteration in original)

Id. at 41a (Ferguson, J., dissenting) (a ,

(quoting Rodriguez de Ouijas v. Shearson/American Express,

Inc., 490 U.S. 477, 484 (1989)).

Unlike the panel, the dissenters concluded that ware

did not supply the standard applicable toa state s practice 0

intentional racial segregation in the prison setting. a

issue with the panel’s analysis that Johnson has a ‘reasonable

alternative’ to exercise his right to be free from eno

because he is not subject to segregation during meals an

recreational time,” Judge Ferguson pointed out that “the pane

essentially asserts that if the state only discriminates sometimes,

no harm is done.” Pet. App. at 45a-46a (Ferguson, J., ree

(quoting Johnson v. California, 321 F.3d 791, 804 (9th Cir.

2003)).

REASONS FOR GRANTING THE PETITION

Johnson respectfully requests that this Court grant a

petition, and either summarily reverse or set this case for

briefing and argument.

e raises important, recurring questions relating

to osama the Equal Protection Clause’s prohibition of

state-imposed racial segregation. The decision below Is in

direct conflict with decisions of this Court and two cisoust

courts. More specifically, the decision below conflicts —

(a) the Court’s decision in Lee v. Washington, holding that

the Equal Protection Clause bars racial segregation in peicens,

except where found necessary in particularized circumstances

to maintain security, discipline, and order; (b) the Court’s

decisions in Richmond vy. J. A. Croson Co., 488 U.S. 469

(1989); Adarand Constructors, Inc. v. Pena, $15 U.S. 200

(1995); Grutter v. Bollinger, 123 S. Ct. 2325 (2003); and

Gratz v. Bollinger, 123 S. Ct. 2411 (2003), holding that all

intentional state racial segregation is subject to strict scrutiny

when challenged under the Fourteenth Amendment;

that intentional state racial segregation in prisons always

requires strict scrutiny; and (d) decisions from the District

of Columbia and Eighth Circuits, holding that prison

regulations that discriminate based on suspect classifications

require heightened scrutiny. Moreover, the Ninth Circuit’s

extension of the relaxed standard of review employed in

Turner v. Safley to claims of racial segregation raises an

important issue that was either settled by this Court in Lee,

or should be settled now. Permitting the Ninth Circuit's

decision to stand would excuse state prison officials from

having to justify their intentional racial segregation under

strict judicial scrutiny, notwithstanding that intentional state

racial segregation has been outlawed in this country for over

half a century.

I. The Ninth Circuit’s Decision Conflicts with This

Court's Decisions Subjecting All Government Racial

Classifications, Including Those in Prisons, to Strict

Scrutiny

The standard of review applied by the Ninth Circuit

conflicts with the Court’s applicable precedents. The Court

has repeatedly and definitively held that all governmental

racial classifications are subject to strict scrutiny. This

unwavering standard of scrutiny was reaffirmed last term

in Grutter, 123 S. Ct. 2325, and Gratz, 123 S. Ct. 2411,

and has applied to state actors since 1989, when the Court

decided Croson, 488 U.S. 469; accord Adarand, 515 U.S.

200. The Court has been unambiguous on this issue:

“/A]ll racial classifications imposed by government ‘must

be analyzed by a reviewing coust u” der strict scrutiny.’ This

means that such classifications are constitutional only if they

are narrowly tailored to further compelling governmental

interests.” Grutter, 123 S. Ct. at 2337-38 (quoting Adarand,

$15 U.S. at 227) (emphasis added); accord Gratz, 123 S. Ct.

at 2427 (“It is by now well established that ‘all racial

classifications reviewable under the Equal Protection Clause

must be strictly scrutinized.’ ”) (quoting Adarand, 515 U.S.

at 224). The Court applies “strict scrutiny to all racial

classifications to ‘smoke out illegitimate uses of race by

assuring that [government] is pursuing a goal important

enough to warrant use of a highly suspect tool.’ " Grutter,

123 S. Ct. at 2338 (alteration in original) (quoting Croson,

488 U.S. at 493).

This Court has also made clear that strict scrutiny applies

to racial segregation practiced by state prison authorities. This

was established in the Court’s opinions in Lee v. Washington,

by the Fifth Circuit decision summarily affirmed in Lee, and

by subsequent reference to Lee by this Court and its members.

The holding in Lee was that racial segregation in prison

violates the Equal Protection Clause. Nothing in the decision

reflects any different standard than that applied in Brown v.

Board of Education, 347 U.S. 483 (1954), and its progeny.

The Court noted the state’s objection that “the specific orders

directing desegregation of prisons and jails make no

allowance for the necessities of prison security and

discipline,” but stated that it did not read the district court’s

order to bar consideration of those factors in implementing

a remedy. Lee, 390 U.S. at 333-34. Similarly, the concurrence

of Justices Black, Harlan, and Stewart cautioned the states

that the reference to those considerations should not be taken

“as evincing any dilution of this Court’s firm commitment

to the Fourteenth Amendment’s prohibition of racial

discrimination.” /d. at 334. The decision of the three-judge

court summarily affirmed in the brief decision was itself

squarely based on the principle of strict scrutiny reflected

in “Brown v. Board of Education and the numerous

cases implementing that decision, [namely that] racial

discrimination by governmental authorities in the use of

public facilities cannot be tolerated.” Washington v. Lee,

263 F. Supp. 327, 331 (M.D. Ala. 1966), aff'd, 390 U.S. 333

(1968) (citations omitted).

This Court’s repeated citation to Lee demonstrates the

case’s continued vitality and plainly reflects that strict

scrutiny, not any lesser standard, was applied. The Court cited

Lee in Hudson v. Palmer, for example, for the holding

“that invidious racial discrimination is as intolerable within

a prison as outside, except as may be essential to ‘prison

security and discipline.’ ” 468 U.S. 517, 523 (1984) (quoting

Lee, 390 U.S. at 334) (emphasis added). More recently,

Justice Scalia specifically noted that Lee's “necessities”

exception is applicable “only [in] a social emergency rising

to the level of imminent danger to life and limb . . . [such as]

a prison race riot.” Croson, 488 U.S. at 521 (Scalia, J.,

concurring). Last term, Justice Thomas cited Lee as

“indicating that protecting prisoners from violence might

justify narrowly tailored racial discrimination.” Grutter,

123 S. Ct. at 2352 (Thomas, J., dissenting) (emphasis added).

The more relaxed level of judicial scrutiny held

applicable to different claims by prisoners, which the

Ninth Circuit panel applied (and indicated was outcome-

determinative here), was not formulated in a case involving

racial segregation. In Turner v. Safley, the Court fashioned a

standard of review for prisoner’s constitutional claims that

would accommodate a policy of judicial restraint necessitated

by the special problems of prison management. Turner,

482 U.S. at 85. Reviewing prison rules that were claimed to

violate prisoners’ rights of expression and the right to marry,

the Turner Court determined that a lower level of scrutiny

was appropriate. Although these claims implicated important

constitutional rights, the Court in Turner was not called upon

to consider issues or cases related to equal protection,

let alone race or other suspect classifications historically

accorded heightened scrutiny under the Court’s equal

protection jurisprudence.

In Turner, the Court held that the proper standard for

determining the validity of the First Amendment and due

process claims then before it was to ask whether the

regulation is “reasonably related to legitimate penological

interests.” Jd. at 89. Thus, to evaluate whether those prison

regulations could withstand scrutiny under the First

Amendment and the Due Process Clause of the Fourteenth

Amendment, the Court first applied a test comparable to

rational basis review. See, e.g., Harper, 494 U.S. at 224-25

(describing the Turner test as requiring “rational” connection

between the prison regulation and government interest put

forward to justify it); Pargo v. Elliott, 49 F.3d 1355, 1356

(8th Cir. 1995) (same).

The Ninth Circuit’s decision extends Turner s relaxed

standard of review to prisoners’ race-based equal protection

claims. If strict scrutiny applies to determine the constitu-

tionality of well-intentioned policies such as affirmative

action in higher education, see Grutter and Gratz, this Court’s

cases should not be construed as abandoning that standard

when the challenged decision involves segregation of

African-American prisoners, especially given the history of

stigma and racial discrimination that such segregation calls

to mind. As this Court has repeatedly held, equal protection

demands strict scrutiny because racial classifications

have the potential to cause severe societal harm. Adarand,

515 U.S. at 236. Racial classifications — let alone racial

segregation — must be demonstrated to be “unquestionably

legitimate” to counter their “pernicious” effects. /d.

Il. The Decision Below Conflicts with Holdings of Four

Other Circuit Courts That Prison Regulations Based

on Suspect Classifications Require Heightened

Scrutiny

Four courts of appeal — the Fifth, Seventh, Eighth,

and District of Columbia Circuits — have held that the

strict scrutiny prescribed by this Court’s equal protection

jurisprudence applies to governmental racial (or gender)

discrimination in jails and prisons. See, e.g., Sockwell vy.

Phelps, 20 F.3d 187, 191 (Sth Cir. 1994) (applying heightened

scrutiny to a policy of segregating two-person cells based on

race; racial segregation of offending individual prisoners

would require prison officials to make “an individualized

analysis” that such action was “needed to stifle particular

instances of racial violence”); Black v. Lane, 824 F.2d 561,

562 (7th Cir. 1987) (applying strict scrutiny in a case of racial

segregation of prisoners, holding that “absent a compelling

state interest, racial discrimination in administering prisons

violates the Equal Protection Clause”);’ Pitts v. Thornburgh,

866 F.2d 1450, 1453 (D.C. Cir. 1989) (heightened scrutiny

applies, notwithstanding 7urner, in cases involving gender-

based discrimination by prison officials, citing Lee v.

Washington); and Pargo, 49 F.3d at 1356-57 (8th Cir. 1995)

(“Not all reviews of prison policies or practices require

judicial deference. . . .”; holding that the district court erred

in applying Turner's relaxed scrutiny, instead of the

heightened scrutiny traditionally accorded gender-based

equal protection claims).*

By contrast, two circuit courts of appeals — the Ninth

Circuit in this case and the Fourth Circuit — apply the rational

basis standard of Turner. See Morrison v. Garraghty, 239

F.3d 648, 654-66 (4th Cir. 2001) (“This more deferential

standard applies even when the alleged infringed constitutional

right would otherwise warrant higher scrutiny, such as when

an inmate claims that his constitutional right to equal protection

of the laws has been violated by the prison’s implementation

of a racial classification.”) (citations omitted).

3. The Seventh Circuit decided Black v. Lane 12 days after the

Supreme Court decided Turner v. Safley, and the precedent continues

to bind courts in that circuit. See, e.g., Wilson v. Schomig, 863

F. Supp. 789, 793 (N.D. Ill. 1994) (citing Black v. Lane in context

of prison racial equal protection claim).

4. Consistent with Pargo, district courts within the Eighth

Circuit have held that strict scrutiny applies to prison racial

classifications. See Mason v. Schriro, 45 F. Supp. 2d 709, 714 (W.D.

Mo. 1999) (strict scrutiny applied to examine claim that prison

officials used race as a primary factor for making housing assign-

ments); accord Betts v. McCaughtry, 827 F. Supp. 1400, 1404 (W.D.

Wis. 1993) (“Racial discrimination in the administration of prisons

violates the [E)qual [P]rotection [C}lause, unless it is justified by a

compelling state interest.”) (citing Black v. Lane, 824 F.2d at 562).

Other circuit courts have refrained from deciding whether

heightened scrutiny should apply to suspect-class equal

protection claims in the prison setting, though some district

courts within those circuits have considered the issue.

The Sixth Circuit has expressly reserved judgment on the

issue, Glover v. Johnson, 198 F.3d 557, 561 (6th Cir. 1999)

(declining to decide what standard of review applied to

prisoners’ gender-based equal protection claims because the

law of the case and fact-finding below obviated the need to

do so), although a district court in that circuit has held that

the Equal Protection Clause prohibits discrimination in

prisons based on race absent a compelling state interest.

Nedea v. Voinovich, 994 F. Supp. 910, 916 (N.D. Ohio 1998)

(confirming strict scrutiny would apply to an inmate’s claim

of racially motivated parole denial). Similarly, the Third

Circuit has not yet opined on the issue, but a district court

in that circuit reached the question, following the rule of.

Turner rather than Lee. Simpson v. Horn, 25 F. Supp. 2d 563,

572-73 (E.D. Pa. 1998).

Without resolution of this conflict by this Court, lower

courts will continue to apply inconsistent standards in

adjudicating race-based constitutional claims brought by

prisoners.

Ill. The Issue Presented Is Recurring and of Exceptional

Importance

Resolving the proper standard of review for examining

segregationist prison policies is essential because of the

far-reaching impact of state-sponsored discrimination. Over

one hundred thousand California inmates are subject to

admittedly segregationist government policies. Under the

ruling of the court below, and in spite of this Court’s

longstanding insistence that all intentional renege

racial segregation be strictly scrutinized, such sent

practices will escape appropriate judicial review in both the

Ninth and Fourth Circuits.

The decision below undermines a national imperative

to eliminate racial discrimination.’ The very fact of

California’s official racial classification 1s offensive to the

Fourteenth Amendment, a “core purpose” of which ‘was to

do away with all governmentally imposed discrimination

based on race.” Grutter, 123 S. Ct. at 2346 (quoting Palmore

v. Sidoti, 466 U.S. 429, 432 (1984)). Furthermore,

“fejnshrining a permanent justification for racial

[discrimination] would offend this fundamental equal

protection principle.” Grutter, 123 S. Ct. at 2346. In the face

of this significant national goal, the Ninth Circuit’s ruling

permits the CDC’s policy of routine racial segregation to

continue without requiring the policy to be either narrowly

tailored or to be in direct response to any extraordinary

circumstance involving prison security, as required by Lee.

As this Court again recognized last term, the Equal

Protection Clause prohibits the state from employing policies

that look only at skin color and that fail to afford any

individualized consideration to persons in recognition that

they likely have relevant qualities other than skin color.

See Gratz, 123 S. Ct. at 2428. It would be incongruous permit

the CDC to dispense with the same individualized

consideration in prison housing. Certainly strict scrutiny

5. See, e.g., International Convention on the Elimination of

All Forms of Racial Discrimination, opened for signature March 7,

1966, 660 U.N.T.S. 195 (entered into force January 4, 1969; entered

into force for the United States November 20, 1994).

should be required when state actors, in any context, replace

individualized treatment with gross racial stereotyping.

The application of a lesser standard of review to prison-

based claims of race discrimination not only subverts the

Court’s jurisprudence; it does so unnecessarily. Since Lee v.

Washington, prison authorities have had “the right, acting

in good faith and in particularized circumstances, to take into

account racial tensions in maintaining security, discipline,

and good order in prisons and jails.” 390 U.S. at 334

(concurrence). While running a prison is inordinately difficult

and requires expertise, Turner, 482 U.S. at 85, the judiciary

is uniquely able to review governmental policies of racial

classification. Croson, 488 U. S. at 493; Grutter, 123 S. Ct.

at 2338. Hence, it is for the judiciary to use strict scrutiny to

“ “smoke out’ illegitimate uses of race.” Grutter, 123 S. Ct.

at 2338 (quoting Croson, 488 U.S. at 493).

Strict scrutiny would not prohibit prison officials from

acting where “a social emergency rising to the level of

imminent danger to life and limb — for example, a prison

race riot, requiring temporary segregation of inmates. . . can

justify an exception to the principle embodied in the

Fourteenth Amendment that ‘ [oJur Constitution is colorblind,

and neither knows nor tolerates classes among citizens.’ ”

Croson, 488 U.S. at 520 (Scalia, J., concurring) (alteration

in original) (quoting Plessy v. Ferguson, 163 U.S. 537, 559

(1896) (Harlan, J., dissenting)). Strict scrutiny is not “strict

in theory, but fatal in fact.” Adarand, 515 U.S. at 35:

see, e.g., Korematsu v. United States, 323 U.S. 214 (1944);

Grutter, 123 S. Ct. 2325. If prison policies of racial

Segregation are required to be narrowly tailored by a

compelling government interest, this will not prevent prison

authorities from instituting such policies when necessary.

There is no reason, in the prison context or any other context,

to dilute the standard of review consistently applied by this

Court to government policies of racial segregation.

CONCLUSION

For the foregoing reasons, petitioner respectfully requests

that the Supreme Court grant a writ of certiorari, and either

summarily reverse or set the case for full briefing and oral

argument.

Respectfully submitted,

Bert H. DEIXLER

Counsel of Record

Lots D. THOMPSON

AARON P. ALLAN

Lee K. CRAWFORD

PROSKAUER Rose LLP

2049 Century Park East

Suite 3200

Los Angeles, California 90067

(310) 557-2900

Counsel for Petitioner

APPENDIX |

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED FEBRUARY 25, 2003

UNITED STATES COURT OF APPEALS -

FOR THE NINTH CIRCUIT

No. 01-56436

GARRISON S. JOHNSON,

Plaintiff-Appellant,

STATE OF CALIFORNIA; JAMES H. Gomez, Director,

Department of Corrections; JAMES ROWLAND,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Consuelo B. Marshall, Chief Judge, Presiding

Argued and Submitted

October 10, 2002—Pasadena, California

Filed February 25, 2003

Before: Procter Hug, Jr., Melvin Brunetti and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge O’Scannlain

Appendix A

OPINION

O’SCANNLAIN, Circuit Judge.

We must decide whether a prison reception center

housing policy, which uses race as one factor in assigning a

new inmate’s initial cell mate for 60 days, violates the Equal

Protection Clause.

Garrison Johnson is an African-American prisoner in the

California Department of Corrections (“CDC”), serving his

sentence for murder, robbery, and assault with a deadly

weapon. On June 22, 1987, he was received at the California

Institution for Men in Chino, California, and since that time

has been transferred to a number of different facilities within

the CDC. He has been through the inmate reception centers

at Chino, Folsom, Calipatria, and is currently incarcerated

at Lancaster. At each facility he was double-celled with

another African-American inmate.

According to the staff testimony in the record, when an

inmate arrives at a CDC institution either as a transfer from

another facility or as a new inmate, he' is initially housed in

a reception center. At the reception center, the inmate goes

through a classification process. The CDC evaluates the

inmate’s physical, mental, and emotional health. The inmate

must also provide vocational and educational goals that he

wants to accomplish while incarcerated. Finally, the inmate

1. The complaint does not raise the question of female housing

policies and the only plaintiff is male.

Appendix A

is given a battery of tests. In making its decision, the

CDC reviews the inmate’s history in jail and any

previous commitments to determine his security needs and

classification level. The CDC also looks to see if the inmate

has any enemies in the prison, such as people who testified

against him in the past or in his criminal case, co-defendants,

or inmates with whom he may have had disputes during

previous incarcerations.

To determine the double-cell housing placement at the

reception center, the CDC looks at several factors including,

but not limited to, gender, age, classification score, case

concerns, custody concerns, mental and physical health,

enemy situations, gang affiliation, background, history,

custody designation, and race. Although race is only one of

many factors, it is a dominant factor; according to the CDC,

the chances of an inmate being assigned a cell mate of another

race is “[p]retty close” to zero percent. The CDC considers

race when making an initial housing assignment because, in

its experience, race is very important to inmates and it plays

a significant role in antisocial behavior.

Generally, inmates are listed in four general ethnic

categories, black, white, Asian, and other. Within each of

these categories, officials at the reception center further

divide inmates, for example Japanese and Chinese inmates

are generally not housed together, nor are Laotians,

Vietnamese, Cambodians, and Filipinos. Also, Hispanics

from Northern California and Hispanics from Southern

California are not housed together because, in the

administrators’ experience, they tend to be at odds with one

another.

Appendix A

Linda Schulteis, the Associate Warden at California State

Prison-Lancaster, testified that if race were not considered

in making this initial housing assignment, she is certain that

there would be racially based conflict in the cells and in the

yard. She stated, “I am therefore not willing to knowingly

disregard the factors and place an inmate into jeopardy and

would not compromise an inmate [sic] or group of inmates

[sic] safety by taking steps that | know would result in

violence and conflict.” This view is unanimously seconded

by other prison officials.

Although the rest of the prison is fully integrated—

there is no distinction based on race as to jobs, meals,

yard and recreation time, and vocational and educational

assignments—according to the administrators, the confined

nature of the cells makes them different from the other areas

of the prison. Staff cannot see into the cells without going

up to them, and inmates are capable of placing coverings

over the windows so that staff cannot see in them at all.

Moreover, inmates are confined to their cells for much of

their day. Because of the current levels of racial violence

occurring in areas where the staff can easily observe the

inmates, the administrators are concerned that they would

not be able to protect inmates who are confined in their cells.

Thus, the administrators argue that they need 60 days to

analyze each inmate on an individual basis to determine

whether the inmate poses a danger to others.

After 60 days, the inmate either is assigned a cell within

the current institution where he will be permanently housed

or is transferred to another institution where his classification

indicates that he would be more suited. If the inmate is

Appendix A

transferred, he again goes through the initial housing

screening process. If the inmate stays at the institution and

has the appropriate security classification, he may be

transferred to a dormitory or a single cell.

Inmates assigned to a dormitory are considered

nonviolent, and, thus, inmates of all races are housed together.

The CDC does not use race as a factor to determine who is

assigned toa dormitory, but within each dormitory it attempts

to maintain a racial balance so as to reduce the likelihood of

racial violence. Single-cell housing decisions are made

completely independent from race. Johnson does not allege

that either of these two housing policies violate equal

protection.

If the inmate remains in a double cell, the CDC’s goal is

for inmates to select their own cell mate, so as to maximize

the inmates’ compatibility and to reduce the possibility of

violence. There are designated forms that both inmates must

sign indicating that they would like to share a cell together.

Unless there are security reasons for not granting an inmate’s

request to share a cell with another inmate, the CDC will

usually grant these requests. Race is not a consideration in

such decisions.

On February 24, 1995, Johnson as a pro se plaintiff filed

his original complaint, alleging that the CDC’s reception

center housing policy violated his constitutional rights by

assigning inmates’ cell mates on the basis of race. In January

1998, the district court dismissed Johnson’s Third Amended

Appendix A

Complaint without leave and Johnson appealed. We reversed

the district court’s dismissal in part on March 21, 2000 and

remanded, holding that Johnson's allegations were ‘sufficient

to state a claim for racial discrimination in violation of the

Equal Protection Clause of the Fourteenth Amendment.

Johnson vy. California, 207 F.3d 650, 655 (9th Cir. 2000).

remand, Johnson was appointed counsel and granted

ea amend his complaint. He filed his Fourth Amended

Complaint on July 5, 2000, seeking monetary damages.

He alleged that James Gomez and James Rowland, former

CDC Directors, in their individual capacities violated his

constitutional rights by formulating and implementing the

CDC housing policy. He also sought injunctive relief against

Stephen Cambra, the current CDC director. Discovery was

conducted, and both parties moved for summary judgment

on the equa! protection claims. Both were denied. The district

court denied the administrators’ summary judgment motion

because the court concluded that there was a question of

material fact regarding what happens to double-celled

inmates following the 60 days in the initial reception center.

The district court also denied the administrators’

qualified immunity-based motion for summary judgment.

After the Supreme Court issued its decision in Saucier v.

—_

2. The parties to this appeal, however, no longer contend that

the aftermath of the 60-day policy is relevant, Johnson's counsel at.

oral argument explicitly disavowed any challenge to the =

effects of the CDC’s housing policy and limited the challenge only

to the 60-day policy itself. Thus, the only question before this court

is whether the CDC's use of race to make the temporary 60-day

housing decision violates the Equal Protection Clause.

Appendix A

Katz, 533 U.S. 194 (2001), however, Rowland and Gomez

successfully moved for reconsideration of the denial of

summary judgment. This time, the district court granted the

motion, holding that under Saucier the former administrators

were entitled to qualified immunity because their actions were

not clearly unconstitutional. Johnson now appeals from

the district court’s grant of summary judgment for the

administrators.

Ill

The Supreme Court in Saucier v. Katz, 533 U.S. 194

(2001), instructed that before we can determine whether state

officials are entitled to qualified immunity, we must first

address the merits of the alleged constitutional violation. The

first question we must ask is whether “[t)aken in the light

most favorable to the party asserting the injury, do the facts

alleged show the [officials’] conduct violated a constitutional

right?” 533 U.S. at 201. If we answer this question in the

negative, then the inquiry is over and the case should be

dismissed: we never reach the issue of qualified immunity.

It is only when “a violation could be made out on a favorable

view of the parties’ submissions” that a court evaluating a

claim of qualified immunity should proceed to “the next,

sequential step [of] ask[ing] whether the night was clearly

established.” /d. Thus, in accordance with Saucier, we first

turn to the merits of the case.’

3. Although a question of material fact did exist when the district

court considered the case, precluding summary judgment on the

merits, Johnson conceded that he 1s not challenging this question of

fact anymore. As such, we must first address the merits of Johnson’s

claim. Saucier, 533 U.S. at 201.

Appendix A

Johnson alleges that the state’s use of race in making

initial housing assignments constitutes an impermissible

racial classification afoul of the Equal Protection Clause.‘

The Equal Protection Clause provides that “[njo State shall

_.. deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend. XIV, § 1.

The central mandate of this Clause “is racial neutrality in

governmental decisionmaking.” Miller v. Johnson, 51 5 U.S.

900, 904 (1995); see also Shaw v. Hunt, 517 US. 899, 907

(1996) (“Racial classifications are antithetical to the

Fourteenth Amendment, whose central purpose was to

eliminate racial discrimination emanating from official

sources in the States.” (citation and internal quotations

omitted)). Ultimately the Equal Protection Clause strives

“to do away with all governmentally imposed discrimination

based on race,” Palmore v. Sidoti, 466 U.S. 429, 432 (1984)

(citation and footnote omitted), because “[d]istinctions

between citizens solely because of their ancestry are by their

very nature odious to a free people whose institutions are

founded upon the doctrine of equality,” Hirabayashi v. United

States, 320 U.S. 81, 100 (1943).

The goal of eradicating invidious race discrimination is

no less laudable in the prison context. In Lee v. Washington,

4. The state admits considering race when it assigns inmates

their cell mate. Thus, the policy is suspect on its face, and Johnson

need not prove a discriminatory intent or impact. See Regents of Univ.

of Cal. v. Bakke, 438 U.S. 265, 289 n.27 (1978); see also Hunter v.

Erickson, 393 U.S. 385, 389 (1969); Loving v. Virginia, 388 U.S. 1,

8-9 (1967).

Appendix A

390 U.S. 333 (1968), the Supreme Court tackled the issue of

racial segregation in prisons. In a per curiam opinion, the

Court held that an Alabama state statute requiring segregated

cell blocks in jails and prisons violated the Equal Protection

Clause of the Fourteenth Amendment. 390 U.S. at 333.

Lee, however, also recognized that prisons present an

inherently different situation than society at large. A three

justice concurrence explicitly noted what the per curiam

opinion implicitly recognized, that “prison authorities have

the right, acting in good faith and in particularized

circumstances, to take into account racial tensions in

maintaining security, discipline, and good order in prisons

and jails.” /d. at 334. The Lee majority has since been

interpreted as holding racial discrimination within prisons

unconstitutional, save for “the necessities of prison security

and discipline.” See, e.g., Cruz v. Beto, 405 U.S. 319, 321

(1972). Thus, while recognizing the important need to combat

racial discrimination, even in prisons, the Court also

recognized that the very nature of prisons may require the

use of race-based criteria in official decisionmaking under

limited circumstances.

Johnson does not dispute that Lee acknowledges that

under some circumstances race may be considered in prison

decisionmaking, but denies that this is one such instance.

The “particularized circumstances” or “necessities of prison

security and discipline” under which racial discrimination is

permissible have never been defined by the Supreme Court

or this court, and the meaning of these terms is not axiomatic.

To make his argument, Johnson cites cases from our sister

circuits that have addressed this issue and have held that an

unsubstantiated fear of racial violence or a desire to protect

10a

Appendix A

individuals against racial insensitivity does not provide con

authority to segregate inmates on the basis of row ms . ;

separate tanks or cell blocks, see, e.g., Unite | y*

Wyandotte County, 480 F.2d 969, 971 (10th a ~

(holding assignment of inmates to East or West tan : ~ - :

unconstitutional); McClelland v. Sigler, 456 F.2d 1 ( :

Cir. 1972) (holding segregated prison wing pannegper sone .

or to 2507 assign inmates permanent cell mates so + oe

the basis of race, see, e.g., Sockwell v. Phelps, 20 oe ~

(Sth Cir. 1994). These cases, however, while weed oO

understand what is clearly unconstitutional, do little to define

the contours of “particularized circumstances or —

of prison security and discipline” in the case at hand.

5. Unlike Lee, Wyandotte County, and McClelland, = hn

prison officials segregated the prison into black and white cell oc we

tanks under the guise of promoting racial harmony, the C a is ——

in full. Inmates of all races work together, eat together, an rea e —

together. This case simply does not involve a similarly broa —— “we

policy. Moreover, unlike the permanent policies in place in - 2

aforementioned cases, this 1s a temporary arrangement, lasting oo

days, which, according to the CDC, permits 1t to learn more a —

inmates before assigning them to a cell on a more oor omg “ '

The Tenth Circuit recognized this distinction in voce - ~

In deciphering the meaning of “particularized coma eon — -

Circuit stated that Lee did “no more than recognize] e - ; ed

accepted principle that in the administration of prison — oe

arise unusual situations in which security and discip eo haye =

segregation for limited periods.” Wyandotte County, 480 F. -oghnd

(footnote omitted). In this case, to run a safe prison — he a

contends that it must assign cell mates, partly based on the —

race, for 60 days so that it can find out more about the anor an oe ma

violence within the prison system. The policy 1s limited to the dange

seeks to alleviate. (Cont’d)

lla

Appendix A

Given the invidious and pervasive nature of the

segregation at issue in Lee, Wyandotte County, McC lelland,

and Sockwell, the standard of the court’s review probably

did not matter; in a close case such as the one at hand,

however, the standard of review is paramount. In 1987, in

recognition of the unique circumstances that prisons present,

the Supreme Court promulgated a new deferential test for

examining the constitutional rights of prisoners, Turner vy.

Safley, 482 U.S. 78, 89 (1987), a test that had not been applied

in any of the cases Johnson relies upon.

In Turner, the Court held that although prisoners do not

check their constitutional rights at the prison gates, see Wolff

v. McDonnell, 418 U.S. 539, 555-56 (1974) (“There is no

iron curtain drawn between the Constitution and the prisons

of this country.”’), a relaxed standard is used in determining

(Cont'd)

Paramount, in this case, there is also no indication that the use

of race in the CDC’s decisionmaking disparately affects the inmates.

In Sockwell, “white cells” received preferential treatment to “black

cells"—“white two-man cells were called to showers and to sell

plasma first, enjoyed better telephone and store privileges, and had

a better view of the televisions,” 20 F.3d at 190—and black inmates

were deprived of privileges, such as work and plasma donation, while

waiting for another black two-man cell to have an opening, id.;

see also McClelland, 456 F.2d at 1267 (white cell blocks had better

living conditions than black cell blocks). Similar disparate treatment

is not present in this case: there are no allegations that African-

American inmates receive unfavorable cell locations or disparate

treatment as compared to their white or Hispanic counterparts. This

is not a situation where prison administrators are rewarding inmates

for their “intransigent racial attitudes.” McClelland, 456 F.2d at 1267.

l2a

Appendix A

the constitutionality of all prison regulations.® See, e.g., Shaw

v. Murphy, 532 U.S. 223, 229 (2001) (“[1)n Turner we adopted

a unitary, deferential standard for reviewing prisoners

constitutional claims. .. .” (emphasis added)); Washington

v. Harper, 494 U.S. 210, 224 (1990) (“We made quite clear

that the standard of review we adopted in Turner applies to

all circumstances in which the needs of prison eee

implicate constitutional nghts.”); Morrison v. Garraghty, “0

F.3d 648, 654-55 (4th Cir. 2001) (holding more deferentia

standard of Turner applies to equal protection claims within

prisons). Turner recognized that “courts are ill equipped to

deal with the increasingly urgent problems of prison

administration and reform,” and that “the problems of prisons

in America are complex and intractable, and, more to the

point, they are not readily susceptible of resolution by

decree.” 482 U.S. at 84 (citation and internal quotations

omitted). According to the Court, “[s]ubjecting day-to-day

judgments of prison officials to an inflexible strict scrutiny

analysis would seriously hamper their ability to mn

security problems and to adopt innovative solutions to 4

intractable problems of prison administration. Id. at 8

Thus, “when a prison regulation impinges on inmates

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” /d. at 89.

6. Although we refused to apply 7urner in the Eighth

Amendment context, we held that 7urner is appropriate “where the

constitutional right is one which 1s enjoyed by all persons, but the

exercise of which may necessarily be limited due to the amgee

circumstances of imprisonment.” Jordan v. Gardner, 986 F.2d 1521,

1530 (9th Cir. 1993) (en banc). Equal protection concerns come

within Zurner. See id. (citing Griffin v. Coughlin, 743 F. Supp. 1006,

1010-19 (N.D.N.Y. 1990) (applying Turner to equal protection claim

but not to Eighth Amendment claim)).

l3a

Appendix A

Jurner was not merely a cosmetic change in the. Court’s

language. Turner ostensibly expanded the definition of

“particularized circumstances” and “necessary for sec urity and

discipline,” and lowered the prison administrators’ burden to

justify race-based policies. Under Jurner, rather than the

administrators bearing the burden of proving their housing policy

constitutional, the inmate bears this “heavy burden”: “To prevail,

[Johnson] must overcome the presumption that the prison

officials acted within their “broad discretion.’ ” Shaw, 532 U.S.

at 232. Thus, to the extent, if any, that Zurner’s “reasonably

related” standard and Lee’s “particularized circumstances”

inquiry point to divergent paths, we are bound to follow Turner

With Turner as our guide, we now consider whether the

administrators’ temporary housing policy is reasonably related

to their concern for increased racial violence.

In Zurner, the Court provided four factors to examine in

determining whether the prison administrators’ actions are

reasonably related to a legitimate penological interest. First, a

‘valid, rational connection’ [must exist] between the prison

regulation and the legitimate governmental interest put forward

to justify it.” Turner, 482 U.S. at 89 (quoting Block y. Rutherford,

408 U.S. 576, 586 (1984)). Second, we must determine

“alternat' ve means of exercising the right that remain open to

prison inmates.” /d. Third, we must assess “the impact

accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison

resources generally.” /d. Fourth, we must determine whether

“ready alternatives” to the CDC’s policy are available. /d

The “existence of obvious, easy alternatives may be evidence

that the regulation is not reasonable.” /d.

l4a

Appendix A

The first factor we must consider is whether there is a

“valid, rational connection” between the policy and a

legitimate government interest. “This requires us to oe

whether the governmental objective underlying the “ icy “

(1) legitimate, (2) neutral, and (3) whether the omg

‘rationally related to that objective. Mauro v. sg

F.3d 1054, 1059 (9th Cir. 1999) (en banc) (quoting

Thornburgh y. Abbott, 490 U.S. 401, 414 (1989)).

The prison administrators assert that their oe

housing policy protects the safety of inmates _ :

pursuant to the first 7urner factor. This is undou = 7.

legitimate penological interest. Mauro, 188 ne at —

(“(T]here is no doubt that protecting the safety of guar

general is a legitimate interest. °).

The government objective must also be neutral. In this

context, neutrality means that the government erry

~ musi be unrelated to racial discrimination. Cf. id. ~ | 59.

Although the CDC uses race to make its temporary | —

assignments, the housing policy does not poove rod

advantage or disadvantage to any particular race, an

7. If, for example, whites were treated more ar nee

locations or privileges than blacks as they were In ae 9 2 7 ;

at 190, the policy could not be sustained as neutral an t A - 7

would likely be struck down under Turner. See ss 2 A ne

at 656 (“The perniciousness of a race-based classi erwarngeh tran

lessened simply because we afford more leeway to prison 0

in the operation of their facilities. . . .”).

objective, reducing violence among the inmates and against

15a

Appendix A

the staff, has nothing to do with race, but rather with inmate

and staff safety. Because the prison administrators use race

as a factor in making their initial housing assignments, “solely

on the basis of [its] potential implications for prison security,”

the policy is considered neutral in the manner that Turner

used that term. Thornburgh v. Abbott, 490 U.S. 401, 415

(1989) (“Where . . . prison administrators draw distinctions

between publications solely on the basis of their potential

implications for prison security, [as opposed to reasons

related to the ‘suppression of expression,’] the regulations

are ‘neutral’ in the technical sense in which we meant and

used that term in 7urner.”’); Mauro, 188 F.3d at 1059.

Finally, we must determine whether a prison regulation

is rationally related to the state’s interest. According to

Johnson, before the state’s use of race as a factor in its

decisionmaking can so qualify, Lee requires that it must first

have an instance, specific to cell assignments, to which it

can point to prove the necessity of such a policy. For example

in White v. Morris, 832 F. Supp. 1129, 1130(S.D. Ohio 1993),

the court allowed double cells segregated strictly along racial

lines only after ten people, nine inmates and one corrections

officer, were murdered during an eleven-day racial riot, and

the integrated double-celling was cited as a primary factor

in the riot. 832 F. Supp. at 1130.

Under Johnson’s view, the same violence would have to

occur within the CDC in order to permit race to be considered

as a factor in making initial housing decisions. We disagree.*

8. Although we decline to decide if indeed Johnson is correct

that Lee would have required actual violence arising out of double-

(Cont'd)

l6a

Appendix A

While the administrators simply cannot make es

automatic arguments” that protecting the ‘con ~ a

rights of prisoners will lead to a breakdown eo ae ae

discipline and security,”” Cleavinger-v. Saxner, S. 193,

(Cont'd) |

celling specifically, Johnson’s argument nn

consistent application of Turner. See, e.g., Casey v. Lewis,

1516 (9th Cir. 1993).

. — ‘c

9. In this case, the administrators reasoning Is not — “pepe

response. The high level of racial pape nae! ap Pit

} inistrators are well within the

documented, and the admin | ) ae

to attempt to rectify or to reduce further violence by taking reaso

measures.

As one example, B. O'Neil, Associate Warden of sean

California State prison, described the perigee rage

n loc

e that have caused Pelican Bay to be 0

tae rade couple of years. The current gop os a 2

involving oO |

998, when a riot broke out invo |

seals inmates. The Hispanic population was put . 7 “~<a

Facility A and although attempts — a ae = 7 —

, .

Southern population continued to be loc ~ betes

d release of Southern Hispan

In August 1999, a controlle | Se

ber of incidents with Northern Hispanics.

7 nti of Southern Hispanics and the likelihood of ser

ames between the two groups caused the prison popes

move all Northern Hispanics to other institutions. 90 a toe

involved in a riot between the Fresno Bulldogs and the So

Hispanics on March-12, 1999.

“Whi ists” and “Skinheads”

On March 15, 1999, “White Supremac

attacked whites that were not affiliated with a gang eee

‘c inmates. In total, 31 inmates were involved in -

Hispanic 1 tt

17a

Appendix A

(Cont'd)

Three days later, a riot involving 39 inmates occurred when Northern

Hispanics attacked white inmates. The inmates were placed on

lockdown until April 14, 1999. On August 31, 1999, another riot

occurred in which over 100 black inmates attacked a smaller number

of white inmates. Nine days later, a racial disturbance involving

seven black inmates and four white inmates occurred on the yard.

On September 27, 1999, another riot occurred involving 30 black

inmates and three white inmates.

A major racial riot, involving 250-300 inmates, broke out on

February 23, 2000 when Southern Hispanics, joined by some of the

white inmates, attacked the black inmates. Prison administrators were

required to use lethal and non-lethal force to quell the riot. Sixteen

inmates were shot, one fatally, and in all, 25 inmates were taken to

outside hospitals. Again, the prison was placed on lockdown.

On March 24, 2000, Facility A began to allow segregated releases,

but Facility B remained on lockdown. In ight of information that

further assaults were going to take place, prison officials again locked

down the prison and searched the complex. The search revealed 78

deadly weapons and 142 items of “dangerous contraband.” Because

of the continuing danger of racial conflict, the prison remained on

lockdows As of April 20, 2001, the prison officials had thus far

failed to remove the lockdown without causing further violence.

Declaration of B. O'Neil, Associate Warden of Pelican Bay, at 1-4

(Apr. 20, 2001).

Numerous other incidents involving racial violence in the prison

system have been reported in the media. See, e.g., Sue Fox, Lancaster

Prison Locked Down after Riot Hurts | 0, L.A. Times, Aug. 9, 2000,

available at 2000 WL 2267920: Racial F ight Erupts at Prison, San

Diego Union Trib., Mar. 3, 2000, available at 2000 WL 13951973;

Ben Goad, Race Riot Hits Adelanto Prison: More than 100 men are

moved out of the private facility, Press Enterprise ( Riverside, Ca.),

(Cont'd)

18a

Appendix A

207 (1985), Tuxner clearly does not require such a high

threshold before a state can act. See Abbott, 490 U.S. at 417

(“We agree that it is rational for the Bureau to exclude

materials that, although not necessarily ‘likely’ to lead to

violence, are determined by the warden to create an

intolerable risk of disorder under the conditions of a particular

prison at a particular time.”); O'Lone v. Estate of Shabazz,

482 U.S. 342, 349 (1987) (“[ Turner] ensures the ability of

corrections officials ‘to anticipate security problems and to

adopt innovative solutions to the intractable problems of

prison administration. . . .’” (quoting Turner, 482 US. at

89)); Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir. 1989)

(“In the instant case, the defendants provided the penal

institution superintendent's affidavit stating that the materials

in question could lead to violence committed both by and

against its readers. This constitutes a threat to prison

security.”); see also Gates v. Rowland, 39 F.3d 1439, 1447-

48 (9th Cir. 1994). For example, in Casey v. Lewis, 4 F.3d

1516 (9th Cir. 1993), we held that under 7urner anticipated

security problems were sufficient to sustain regulations that

were reasonably related to the problem, even though the

(Cont'd)

Mar. 3, 2000, available at 2000 WL 7016883; Jeff Barnard, Racial

Fights an Inescapable Fact of Prison Life, San Diego Union-Trib.,

Feb. 26, 2000, available at 2000 WL 13950567; Steve Gessinger,

Violence Mounts as Racial Gangs War in Prisons, L.A. Sentinel, Mat.

25, 1998, available at 1998 WL 11413300; Newsday, Riot in Calif.

Prison, | Dead, L.A. Times, Sept. 28, 1996, available at 1996 WL

2538090; Newsday, 80 inmates Hurt in Calif. Jail Brawl, Jan. 11,

1994, available at 1994 WL 7431676.

In short, this is hardly a case where the prison administrators

are acting on an unsubstantiated record.

19a

Appendix A

state did not cite a specific instance justifying its policy:

“The [Arizona Department of Corrections’s] failure to oe

a past event wherein a contact visit resulted in assault, escape

or hostage-taking, does not render irrational the adoption and

implementation of a non-contact policy.” Casey, 4 F.3d at 1521.

The CDC simply does not have to wait until inmates or guards

are murdered specifically because race is not considered in

assigning an inmate’s initial cell mate; instead, Turner allows

the administrators to stave off potentially dangerous policies

without first “seeing what happens.”

Under our precedent, if there is a common-sense connection

between a legitimate objective and prison regulation, the inmate

bears the burden of production.'® Frost v. Symington, 197 F.3d

348, 357 (9th Cir. 1999). If the inmate fails to proffer sufficient

evidence to refute a common-sense connection between the

government's objective and the prison regulation, assuming that

‘the governmental objective is legitimate and neutral, Turner’s

first prong is satisfied.” /d. (internal citation omitted). On the

other hand, if an inmate presents “sufficient (pre or post) trial

evidence that refutes a common-sense connection between a

legitimate objective and a prison regulation,” id., then the

administrators bear the burden of proving that the “connection

1S Not so ‘remote as to render the policy arbitrary or irrational,’ ”

— Mauro vy. Arpaio, 188 F.3d 1054, 1060 (9th Cir.

10. Johnson cites a couple of cases from federal distri

istrict courts

where the defendants were required to prove the constitutionality

of their policies. See, e.g., Blevins v. Brew, 593 F. Supp. 245, 248

(W.D. Wis. 1984); Stewart v. Rhodes, 473 F. Supp. 1185, 1190

(S.D. Ohio 1979). Post-TJurner, this is no |

analysis. © longer the appropriate

20a

Appendix A

Given the admittedly high racial tensions and violence

already existing within the CDC, there ts clearly a ——

sense connection between the use of race as the sae !

factor in assigning cell mates for 60 days until it ts os .

the inmate will adjust to his new environment and ! —

racial violence and maintaining a safer environment. See lite

v Morris, 832 F. Supp. 1129, 1130 (S.D. Ohio 1993) —

that race-blind double-celling increased racial tensions ~ the

Ohio prison system). But see Stewart v. Rhodes, 473 F. =e.

1185, 1188 (S.D. Ohio 1979) (pre-Turner case holding at

prison administrators could not rely upon erty

attitude toward overall relations between the faces in the fac

of expert testimony supporting an equally ‘common —,

attitude” that “segregation ... tends to create racia

misunderstandings and tensions”). Indeed, in a age case

before us, a prisoner, alleging an Eighth Amendment violation

because administrators failed to consider race when releasing

inmates into the yards, argued that “individual pnson _

segregated because it is widely understood that — pe

different races would attempt to kill each other solely “ von

basis of gang membership or race.” Robinson v. por -

F.3d 862. 862 (9th Cir. 2001). Thus, the burden to refute this

connection lies on Johnson.

Johnson does not disagree that racial violence ~

pervasive in the CDC," but instead argues that the high levels

11. Referring to a racial riot at Calipatria State Prison, “o-

from which he had recently been transferred, Johnson — ‘ na

would have stayed there, | would have been involved in that een

vou have four facilities there and each facility went on a arin :

and a lot of people got hurt and injured just based apes oe ]

skin color. I'm Black, and if I was there | oom have been

Deposition of Garrison Johnson, at 3§ (Oct. 4, 2000).

2la

Appendix A

of racial violence are evidence that the CDC’s housing policy

does not work. Johnson proffered deposition testimony from

prison officials stating that the housing policy has been in

place for over 20 years and that racial violence continues to

permeate the CDC. Johnson also argues that some gangs are

not formed strictly along racial lines, and thus the

administrators’ use of race is irrational as it is connected to

reducing gang violence. This, according to Johnson, is

sufficient evidence to rebut the common-sense connection

that using race as a factor in determining initial housing

assignments reduces racial tension and violence.

Johnson, however, misconstrues the administrators’

argument and his burden on this point. The administrators

do not contend that their housing policy is a magical elixir

designed to cure all the racial and gang tensions within the

prison; they contend only that without their policy, racial

violence, both within the cells and in the recreation areas,

would increase. Johnson has failed to offer any evidence to

refute this connection. Just because racial violence already

exists does not mean that pre-existing policies do not work

to reduce that violence from being even more pervasive than

it already is. Similarly the fact that some gangs are not based

along racial lines does not rebut the connection between

gangs and racial violence in prisons,'? which even Johnson

concedes is a problem.

12. In the past, we have noted the connection between prison

gangs and racial violence. See, e.g., Stefanow v. McFadden, 103 F.3d

1466, 1472 (9th Cir. 1996) (“Anyone familiar with prisons

understands the seriousness of the problems caused by prison gangs

that are fueled by actively virulent racism and religious bigotry.”).

22a

Appendix A

Because Johnson failed to refute the common-sense

connection between the policy and prison violence, the

“government was not required to make any ne pene

showing concerning the connection.” Frost, 197 F.3d at 357.

Instead, we must presume the governmental —- is

legitimate. See id. We do not have to agree that the po ay

actually advances the CDC’s legitimate interest, but . y

“whether the defendants might reasonably have thought that

the policy would advance its interests.” Jd. at 355 —

Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1 $4

In short, “as long as it is plausible that prison a

believed the policy would further a legitimate nang t :

governmental defendant should prevail on Turner s ve

prong.” /d.; see also Casey, 4 F.3d at 1521 (holding rationa

connection was established when the anticipated security

concern was not “unreasonable”’). Here, it 1s plausible, =

the racial violence and tensions already present in the CD ?

and the knowledge that in other prison settings so

housing assignments have caused violence, that the

administrators believe using race as one factor in making _

initial housing determination is necessary for inmate and sta

safety. Therefore, Turner’s first prong has been met.

The second factor we must consider under Turner is

whether alternative means of exercising the right remain +r

to prison inmates. “Where ‘other avenues’ remain availa -

for the exercise of the asserted right, courts should be

particularly conscious of the ‘measure of judicial nme

owed to corrections officials ... in gauging the validity 0

the regulation.’ ” Mauro, 188 F.3d at 1061 (ellipsis in

23a

Appendix A

original) (quoting Turner, 482 U.S. at 90 (citations and

internal quotation omitted)). Here, Johnson asserts the right

to be free from race conscious decisionmaking while an

inmate at the CDC.

In examining whether alternative means for Johnson to

exercise his right exist, we must examine Johnson’s right

expansively and sensibly, Abbott, 490 U.S. at 417: thus, we

must look to Johnson’s right to be free from state-sponsored

racial discrimination at a macro level, and not just the alleged

violation, to determine whether alternatives open to the

inmate exist. Cf. id. For example, in Turner, the Court viewed

the alleged constitutional right at issue as the “freedom of

expression” in totality, not the specific right to communicate

with inmates at other institutions, although undoubtedly the

restriction upon inmates’ communication implicated their

First Amendment rights. Turner, 482 U.S. at 92. The Turner

Court held that because inmates had other means of

expression available the inmates had alternatives to exercise

their freedom of expression, even though their ability to

communicate with inmates at other institutions was

completely proscribed. /d. Likewise, in O’Lone, the Court

held that inmates had reasonable alternatives to exercise their

religious freedom by attending other Muslim ceremonies,

even though they were prohibited from participating in the

Jumu’ah religious ceremony in particular. 482 U.S. at 351;

see also Friedman vy. State of Arizona, 912 F.2d 328, 332

(9th Cir. 1990) (holding that inmates were not “denied ‘all

means of expression’ of their religion” due to their ability to

“participate in other aspects of their religion’’). Accordingly,

the correct analysis in this case is not whether the state has

provided reasonable alternatives from the CDC’s use of race

24a

Appendix A

as a factor for the first 60 days, but whether the state has

provided reasonable alternatives from racial discrimination

in general.

We conclude it has. The policy in question lasts only 60

days—after which discrimination is no longer alleged—and

there are no “black” cells or “white” cells. Moreover, the

remainder of the prison is integrated in full without regard

to race. There is no distinction based on race as to jobs, meals,

yard and recreation time, and vocational and educational

assignments. Just as the inmates in 7urner and O Lone had

reasonable alternatives to exercise their constitutional rights,

so too does Johnson."

The third 7urner factor requires us to examine what

impact accommodating the inmate’s asserted right will have

on prison personnel, inmates, and the allocation of prison

resources. Turner, 482 U.S. at 90. The CDC administrators

contend that failing to consider race in making initial housing

assignments would lead to increased racial violence both in

the cells and in the common areas. The impact would be

significant, jeopardizing the safety of all the inmates and

prison staff.

13. Even if the alleged constitutional right, however, were

viewed more narrowly and limited only to alternatives within

the 60-day period, our ultimate conclusion would not be altered.

See Casey, 4 F.3d at 1522 (refusing to remand to determine whether

inmates had a reasonable alternative to the right at issue “because

resolution of this factor in favor of the inmates would not alter our

ultimate legal conclusion—that the Turner test of reasonableness is

satisfied”).

25a

Appendix A

Johnson, however, contends that the administrators failed

to proffer evidence that not using race as a factor would cause

a strain on prison resources. Again, Johnson misconstrues

Turner. The CDC does not have to prove that eliminating

their policy would impact (1) prison personnel, (2) inmates,

and (3) prison resources; rather, Johnson must prove that

eliminating the CDC’s housing policy would not affect one

of these areas in a sufficient manner. See Harper, 494 U.S.

at 227. Johnson has failed to do so.

To begin with, Johnson did not rebut the CDC’s claim

that racial violence would occur both in cells and in the

recreation areas if the CDC did not take race into account.

See Frost, 197 F.3d at 358 (noting that Plaintiff’s failure to

bear his burden on Jurner’s first prong is relevant under the

third prong as well). The administrators, moreover,

affirmatively proffered evidence to show that inmate and

guard safety would be compromised. The CDC administrators

uniformly stated that failing to take race into account when

making an initial housing decision would be dangerous to

staff and inmates alike. Steven Cambra, the current CDC

Director, in his declaration stated,

If race were to be disregarded entirely ... I am

certain, based upon my experience with CDC

prisoners, that there will be problems within the

individual cells. These will be problems that the

staff will have a difficult time controlling. I

believe there will be fights in the cells and the

problems will emanate onto the prison yards. With

respect to inside individual cells, I do not feel that

prison housing staff are adequately able to deal

26a

Appendix A

with the problems that could arise. . . . | feel that

because there are limited staff to oversee

numerous cells, it would be very difficult to assist

inmates if the staff were needed in several places

at one time.

Declaration of Steven Cambra, Acting Director of

Corrections, in Support of Defendants’ Motion for Summary

Judgment, at 3 (April 9, 2001); see also Deposition of Linda

L. Schulteis, Associate Warden at California State Prison-

Lancaster, at 32 (Dec. 6, 2000) (“You cannot house a J apanese

inmate with a Chinese inmate. You cannot. They will kill

each other. They won’t even tell you about it. They will just

do it.”).

The Court found similar testimony persuasive in Jurner.

In Turner, the Court stated, “Prison officials have stated that

in their expert opinion, correspondence between prison

institutions facilitates the development of informal

organizations that threaten the core functions of prison

administration, maintaining safety and internal security.

Turner, 482 U.S. at 92. As a result, the Court held that the

asserted right could “be exercised only at the cost of

significantly less liberty and safety for everyone else, guards

and other prisoners alike.” Jd.

Furthermore, prohibiting race to factor into the officials’

decisionmaking process would have a “ripple effect” of not

only increasing the level of violence within the cells, but in

the common areas as well. See, e.g., White, 832 F. Supp. at

1130 (racially integrated double-celling attributed to a racial

riot in which ten people were murdered); Steven Cambra,

27a

Appendix A

Acting Director of Corrections, in Support of Defendants’

Motion for Summary Judgment, supra, at 3; cf. Turner, 482

U.S. at 92; Frost, 197 F.3d at 358. “When accommodation

of an asserted right will have a significant ‘ripple effect’ on

fellow inmates or on prison staff, courts should be particularly

deferential to the informed discretion of corrections

officials.” Turner, 482 U.S. at 90. Accommodating the

inmates’ rights, thus, would be dangerous to staff and inmates

in the views of the CDC. Without contrary evidence that the

accommodation of the inmates’ rights would not affect inmate

and staff safety, we must defer to the judgment of the

administrators.

The fourth factor we must examine is whether reasonable

alternatives to using race as a factor in the initial housing

policy would “fully accommodate[ ] the prisoner’s rights at

de minimis cost to valid penological interests. . . .” Turner,

482 U.S. at 91. This is not a “least restrictive alternative test”;

it is a reasonableness test. Thus, while the regulation need

not be a perfect fit to the solution at hand, it cannot be an

“exaggerated response.” /d. at 90. “(T]he absence of ready

alternatives is evidence of the reasonableness of a prison

regulation. By the same token, the existence of obvious, easy

alternatives may be evidence that the regulation is not

reasonable, but is an ‘exaggerated response’ to prison

concerns.” /d. “The burden is on the prisoner challenging

the regulation, not on the prison officials, to show that there

are obvious, easy alternatives to the regulation.” Mauro, 188

F.3d at 1062.

28a

Appendix A

Johnson argues that officials could screen inmates

(1) on the basis of professed gang affiliation or (2) by

examining the inmates’ racial animus or a history of

interracial violence, but he again has proffered no evidence

in support of his position. Johnson’s first proposed solution—

that the prison officials could ask inmates about their gang

affiliation or racial biases—is disingenuous. There is little

chance that inmates will be forthcoming about their past

violent episodes or criminal gang activity so as to provide

an accurate and dependable picture of the inmate.

See Deposition of Linda L. Schulteis, Associate Warden at

California State Prison-Lancaster, supra, at 24 (noting that

Northern Hispanic inmates cannot come to a Southern

institution without being in danger, but that they will not

inform the staff), 32-33 (noting that Japanese and Chinese

prisoners will not tell officials of their animosity toward one

another). Certainly, if this information was offered by the

inmate or if the CDC knew of the inmate’s past violence

against an ethnic group, the CDC should take it into account,

and perhaps even has a duty to consider it when making its

housing assignment. See Harper, 494 U.S. at 223 (“Prison

administrators have not only an interest in ensuring the safety

of prison staffs and administrative personnel, but also the

duty to take reasonable measures for the prisoners’ own

safety.” (internal citation omitted)); Robinson v. Prunty, 249

F.3d 862, 866 (9th Cir. 2001). Requesting that inmates

provide potentially self-incriminating information themselves,

however, does not provide sufficiently reliable data under

which the CDC could make a meaningful decision. Without

a guarantee of the veracity of the information, Johnson’s

argument does not provide a reasonable alternative.

29a

Appendix A

. Johnson also has not shown that an examination of an

inmate’s past is reasonable. Even if a background check

would provide accurate information regarding an inmate’s

propensity for racial violence outside prison, it is unclear

whether that information would provide a true picture of an

inmate’s propensity for racial violence in prison; the inmate’s

attitude outside of prison regarding race may change once

incarcerated. The same holds true for transferred inmates as

well. The racial make-up or individual inmates of the new

prison may Cause a previously benign inmate to become

potentially dangerous. The CDC cannot accurately gauge an

inmate’s propensity for racial violence without first observing

him in this new environment.

Johnson also never answered how the CDC could

accumulate the relevant information needed to make an

informed housing decision. As discussed above, inmates are

unlikely to be forthcoming regarding their potentially

incriminating history of violence, and, thus, the CDC would

have to conduct its own independent examination. There is

no indication that an independent examination would not be

more than a de minimis cost. Without some sort of showing

that the CDC could accomplish its goals without incurring a

— cost, Johnson cannot prevail. Mauro, 188 F.3d at

Our decision that the CDC policy is not an “exaggerated

response” is reinforced when we look to our Eighth

Amendment Cruel and Unusual Punishment Clause

jurisprudence. Prison authorities are required under the

Eighth Amendment to “take reasonable measures to guarantee

the safety of the inmates.” Farmer vy. Brennan, 511 U.S. 825,

30a

Appendix A

832 (1994) (internal citations and quotations omitted);

Harper, 494 U.S. at 223. See generally Robinson v.

California, 370 U.S. 660 (1962) (applying the Eighth

Amendment’s Cruel and Unusual Punishment Clause to the

states via the Fourteenth Amendment). In Robinson v. Prunty,

249 F.3d 862, 866 (9th Cir. 2001), we held that it was clearly

established that such reasonable measures included taking

an inmate’s race into account when allowing inmates to enter

the recreation yards. The court, in denying the prison

administrators qualified immunity, held that the inmate’s

“evidence paints a gladiator-like scenario, in which prison

guards are aware that placing inmates of different races in

the yard at the same time presents a serious risk of violent

outbreaks.” 249 F.3d at 868. According to the court, the

administrators were not entitled to qualified immunity

because the law clearly established that their actions were

unlawful. /d.

Similarly, the failure to take race into consideration

in cell assignments could be considered “deliberate

indifference” to prisoners’ safety and could itself constitute

a constitutional violation. Steven Cambra, the Acting Director

of the CDC, noted the risk of personal liability if race were

not considered in making housing decisions: “[I]f 1 just take

two inmates and have total disregard for their ethnicity .. .

I feel I am putting myself in a position that I could be charged

with setting up one of them to be injured.” Declaration of

Steven Cambra, Acting Director of Corrections, in Support

of Defendants’ Motion for Summary Judgment, supra, at 3.

To reduce its liability under the Eighth Amendment and to

protect inmates, the CDC crafted a policy, assigning cell

mates largely along racial lines for a limited time, so as to

3la

Appendix A

decrease the risk of racial violence that the administrators

are aware exists. Certainly, this is a reasonable response in

light of the conflicting responsibilities that the CDC must

balance.

Although there may be many ways in which to achieve

the state’s objective in reducing racial violence in the CDC,

the path chosen by the State of California is reasonably related

to the administrators’ concern for racial violence and thus

must be upheld. If this policy were implemented beyond the

prison walls, undoubtedly, we would strike it down as

unconstitutional. The prison system, however, is inherently

different and we must defer our judgment to that of the prison

administrators until presented evidence demonstrating the

unreasonableness of the administrators’ policy. The Supreme

Court has instructed us that inmates bear a “heavy burden”

to show that prison officials acted unconstitutionally, and in

this case, Johnson failed to carry his burden. He presented

little to no evidence and could not rebut the presumption of

constitutionality that the administrators are afforded.

Because Johnson failed to prove that a constitutional

violation could be made out, we need not reach the ultimate

question of whether the CDC administrators are entitled to

qualified immunity. Saucier, 533 U.S. at 201.

AFFIRMED.

32a

APPENDIX B — DECISION OF THE UNITED STATES

DISTRICT COURT FOR THE CENTRAL DISTRICT

OF CALIFORNIA DATED JULY 30, 2001

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES—GENERAL

No. CV 95-1192 CBM (BQR)

July 30, 2001

GARRISON S. JOHNSON

. v.

STATE OF CALIFORNIA, et al.

+ i .

PRESENT

The Honorable Harry L. Hupp, Judge

. + .

PROCEEDINGS: MOTION FOR RECONSIDERATION

ORDER

The motion for reconsideration is granted on the issue

of qualified immunity as to defendants James Rowland and

James H. Gomez. The action is dismissed as to said

33a

Appendix B

defendants on the basis of qualified immunity by judgment

signed and filed this date.

This matter has been transferred to this court for the

decision of this motion only. All further proceedings will be

before Judge Marshall.

Defendants Rowland and Gomez seek reconsideration

of the denial in this court’s order of June 11, 2001, of

defendants’ motion for summary judgment insofar as it seeks

dismissal on the basis of qualified immunity. Reconsideration

is sought in view of the decision of the Supreme Court on

June 18, 2001, in Saucier v. Katz ‘01 121 SCT 2151, 2001

WL 67265. In the court’s opinion, that case demands

reconsideration of qualified immunity insofar as it applies

to the cases of defendants Rowland and Gomez (but not as

to defendant Cambra, against whom only injunctive relief is

sought).

The court adheres to its view expressed in the order of

6/11/01 that there is a triable issue of fact on the Equal

Protection question as to the policy of the California

Department of Corrections (CDC) of initially segregating

prisoners at the Inmate Reception Center and on transfer to

any new prison on the basis of race. Defendants defended

that policy on the basis of prisoner safety, citing substantial

danger posed by the existence of mutually hostile race based

gangs in the prison population, and on the necessity of taking

certain time to analyze the danger on an individual basis to a

newly arrived prisoner. This policy may on trial be held to

conflict with the non-segregation rule for prisons announced

in Lee ‘68 390 US 333, 19 LEd 2d 1212, applying the

34a

Appendix B

standards laid down in Turner ‘87 482 US 78, 96 LEd2d 64.

However, whether or not there is ultimately held to be a

constitutional violation, qualified immunity for defendants

Rowland and Gomez must be reconsidered in light of Saucier.

As to whether the law was clearly established in advance

of the alleged actions of those defendants, an element of

qualified immunity, there must be considered the caveat to

the no-segregation rule stated in Lee, as follows: “. . . prison

authorities have the right, acting in good faith and in

particularized circumstances, to take into account racial

tensions in maintaining security, discipline, and good order

in prisons and jails.” There are few cases applying this caveat

in practical prison situations and its application in any

particular situation is unclear. Jurner makes clear that the

test is one of deferential review. Applying the law of qualified

immunity, the Supreme Court in Saucier makes it clear in

reversing the Ninth Circuit that if there is any doubt about

the clarity of the law, or what is reasonable in the

circumstances, the defendant must be dismissed whatever

the ultimate ruling on the constitutional principle might be.

In this case, Rowland and Gomez were directors of CDC

and administered the alleged discriminatory policy. They are

sued for damages under § 1983 in their individual capacities.

Under the Lee caveat quoted above, there is a reasonable

argument that the CDC alleged policy does not violate the

Equal Protection Clause. Saucier makes it clear that qualified

immunity is a doctrine which is intended not to make a

defendant stand trial even if there is an arguable constitutional

violation which may be established against him unless the

law is clear that the actions certainly violated the

Constitution. While the Ninth Circuit may be argued to have

35a

Appendix B

watered down this doctrine (at least in excessive force cases),

it was emphatically corrected in Saucier, which this court

must recognize and follow. There is no use pointing out that

the Supreme Court left trial courts rudderless in how actually

to apply qualified immunity where the facts are not

undisputed—what the Supreme Court did in Saucier is to

make it clear that, in effect, when in doubt, qualified

immunity must be granted before trial. Sobeit.

The action is dismissed on the basis of qualified

immunity as to defendants Rowland and Gomez. Since

monetary relief is not requested as to defendant Cambra, he

has properly not asked for qualified immunity.

36a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED JULY 28, 2003

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 01-56436

D.C. No.

CV-95-01192-CBM

Central District of

California,

Los Angeles

ORDER

Filed July 28, 2003

Before: Procter Hug, Jr., Melvin Brunetti, and

Diarmuid F. O’Scannlain, Circuit Judges

Order; Dissent by Judge Ferguson

GARRISON S. JOHNSON,

Plaintiff-Appellant,

State OF CALIFORNIA; JAMES H. Gomez, Director,

DEPARTMENT OF CORRECTIONS; JAMES ROWLAND,

Defendants-Appellees.

37a

Appendix C

ORDER

The panel has voted unanimously to deny the petition

for rehearing. Judge O’Scannlain voted to deny the petition

for rehearing en banc, and Judges Hug and Brunetti so

recommended.

The full court was advised of the Suggestion for

Rehearing En Banc. A judge of this court requested a vote

on whether to rehear the matter en banc. The matter failed

to receive a majority of the votes of the nonrecused active

judges in favor of en banc consideration.

The Petition and the Suggestion are thus DENIED.

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Appendix C

ircul ircuit Judges

FERGUSON, Circuit Judge, with whom Circul dg

PREGERSON, D.W. NELSON, and REINHARDT join,

dissenting from our court’s denial of rehearing en banc.

I respectfully dissent from the order denying rehearing

en banc. Over thirty years ago, the Supreme Court sought to

end officially sanctioned racial segregation in our wg

system by striking down statutes requiring segregation :

the races in prisons and jails” as violating the Fourteent

Amendment. See Lee v. Washington, 390 U.S. 333, 334

(1968) (per curiam). The panel’s opinion threatens to undo

that achievement by altogether removing the burden on prison

officials to justify fundamentally suspect policies classifying

prisoners on the basis of race. The decision impermissibly

construes the Court’s decision in 7urner v. Safley, 482 US.

78, 89 (1987), to overrule Lee, in the process failing to accord

to the Supreme Court the exclusive “prerogative [to]

overrul[e] its own decisions.” Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 404 (1989).

The panel’s decision ignores the Supreme Court s repeated

and unequivocal command that “all racial classifications

imposed by the government ‘must be analyzed by a reviewing

court under strict scrutiny.’” Grutter v. Bollinger, 123 S.

Ct. 2325, 2337 (2003) (quoting Adarand Constructors, Inc.

v. Pena, 515 U.S. 200, 227 (1995)), ard fails to recognize

that Turner analysis is inapplicable in cases, such as this one,

in which the right asserted is not inconsistent with legitimate

penological objectives.

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Appendix C

I. Strict Scrutiny is the Applicable Standard for All

Race-Based Government Classifications, Regardless

of the Government Actor

In cases decided both before and after Turner v. Safley,

the Supreme Court has clearly held that government

classifications based on race are, without exception, subject

to strict scrutiny. See id.; see also Adarand, 515 U.S. at

227; Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989).

The purpose of strict scrutiny is to “ ‘smoke out’ illegitimate

uses of race by assuring that [a state actor] is pursuing a goal

important enough to warrant use of a highly suspect tool.

The test also ensures that the means chosen ‘fit’ this

compelling goal so closely that there is little or no possibility

that the motive for the classification was illegitimate

racial prejudice or stereotype.’ ” Adarand, 515 U.S. at 226

(quoting Croson, 488 U.S. at 493). The fact that a racially

discriminatory classification scheme has a “benign” or well-

intentioned purpose does not relieve a government actor from

the burden to justify such a policy. See id.

Consistent with the rule requiring strict scrutiny for all

government actors, the Court’s per curiam decision in

Lee placed the burden on prison officials to justify

segregationist policies, embracing in affirmance the Alabama

District Court’s rejection of prison officials’ argument that

“the practice of racial segregation in penal facilities is a matter

of routine prison security and discipline and is, therefore,

not within the scope of permissible inquiry by the courts.”

Washington v. Lee, 263 F. Supp. 327, 331 (M.D. Al. 1966);

see also Lee, 390 U.S. at 334. Although the Lee Court

acknowledged prisons’ continuing need to make “allowance

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Appendix C

for the necessities of prison security and discipline,” 390 U.S.

at 334, Lec nevertheless applied heightened scrutiny to the

contested regulations, as cases construing Lee have made

clear. In Hudson v. Palmer, for example, the Court cited Lee

for the holding “that invidious racial discrimination Is as

intolerable within a prison as outside, except as may be

essential to ‘prison security and discipline.’ ” 478 USS. 517,

523 (1984) (quoting Lee, 390 U.S. at 334) (emphasis added).

More recently, Justice Scalia specifically noted that Lees

“necessities” exception is applicable “only [in] a social

emergency rising to the level of imminent danger to life and

limb . . . [such as] a prison race riot.” Croson, 488 US. at

520-21 (Scalia, J., concurring); see also Grutter, | 23 S. Ct.

at 2352 (Thomas, J., dissenting) (citing Lee as indicating

that protecting prisoners from violence might justify narrowly

tailored racial discrimination.”).

The panel concedes that the Court’s decision in Lee has

direct application in this case, Johnson v. Rowland, 321 F.3d

791, 797-98 (2003), but nevertheless determines that

Turner is controlling. Jd. at 798. The panel announces,

without citing any support for its contention, that Turner “was

not merely a cosmetic change in the Court's language ve

[it] lowered the prison administrators’ burden to justify

race-based policies [and placed this ‘heavy burden on] the

inmate.” Jd. at 798-99. Implicitly, the panel presumes that

Lee required a heightened standard, but notes that even if

“Johnson is correct that Lee would have required actual

violence ... Johnson’s argument cannot withstand our

consistent application of Turner.” Id. at 801 n. 8.

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Appendix C

No Supreme Court case supports the panel’s claim that

Turner applies in the context of suspect-class equal protection

claims, let alone that it implicitly overruled Lee.' In light of

Lees directly controlling holding and the Supreme Court’s

repeated command to apply strict scrutiny to all race-based

classifications, the panel simply does not have the authority

to interpret 7urner as requiring a different level of review.

“If a precedent of th{e Supreme] Court had direct application

in a case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow

the case which directly controls, leaving to th{e Supreme]

Court the prerogative of overruling its own decisions.”

Rodriguez de Ouijas, 490 U.S. at 484; see also Hohn v. United

States, 524 U.S. 236, 252-53 (1998) (“Our decisions remain

binding precedent until we see fit to reconsider them,

regardless of whether subsequent cases have raised doubts

about their continuing vitality.”). The panel may not lower

the standard that has been clearly articulated in Supreme

Court case law in order to allow the policy to survive review.

1. Even Washington v. Harper, 494 U.S. 210,224 (1990), upon

which the panel partially relies, did not suggest that prison officials,

in contrast to all other government actors, are relieved from the

obligation to justify race-based policies by presenting a compelling

interest and a narrowly tailored solution. Although Washington v.

Harper purported to control every subsequent prison case, see

Washington, 494 U.S. at 224, it cannot do so. “[G]eneral expressions,

in every opinion, are to be taken in connection with the case in which

those expressions are used. If they go beyond the case, they may be

respected, but ought not to control the judgment in a subsequent suit

when the very point is presented for decision.” Cohens v. Virginia,

19 U.S. 264, 399 (1821).

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Appendix C

The effect of the panel’s dismissal of the relevant

Supreme Court case law is to create a dangerous and

unwarranted exception to the general rule for prison officials.

If military officials acting during wartime are subject to

strict scrutiny, see Toyosaburo Korematsu v. United States,

323 U.S. 214, 217-18 (1944), then certainly prison officials

engaging in the routine performance of their duties should

be subject to it as well. Nevertheless, the opinion presumes

that prison officials are so uniquely free of the taint of racism

that an exception should be created just for them.

Our race-based equal protection jurisprudence does not

permit an exception to the strict scrutiny rule. “ * Absent

searching judicial inquiry into the justification for ++» Face

based measures, there is simply no way of determining —

what classifications are in fact motivated by illegitimate

notions of racial inferiority or simple racial politics.

Adarand, 515 U.S. at 226 (quoting Croson, 488 U.S. at 493).

“ ‘(Bjecause classifications based on race are potentially so

harmful to the entire body politic, it is especially important

that the reasons for any such classifications be clearly

' identified and unquestionably legitimate vee racial

classifications are simply too pernicious to permit any but

the most exacting connection between justification and

classification.’ ” Jd. at 236 (quoting F ullilove v. Klutznick,

448 U.S. 448,.533-35 (1980) (dissenting opinion)).

Deferring to the alleged “common-sense” of state

officials on me of race is fundamentally at odds with the

requirements and purpose of the Fourteenth Amendment.

See Adarand, 515 U.S. at 228. Yet this is precisely what the

panel does by holding that the governmment is “not required

43a

Appendix C

to make any evidentiary connection concerning the

connection [between the policy and prison violence].”

Rowland, 321 F.3d at 803 (quoting Frost v. Symington, 197

F.3d 348, 357 (9th Cir. 1999)).? Regardless of the potential

for abuse, the decision holds that reviewing courts must defer

to prison official’s “common sense” as to whether there is a

legitimate safety concern, and must presume that what prison

officials “feel” might happen is actually what will happen.’

Under the panel’s test, if a prison official were to

announce that prisoners could no longer visit with spouses

or children of a visibly different race, based on the official’s

entirely unsupported belief that there would be subsequent

racial violence based on the sometimes charged nature of

interracial relationships, we would have to shrug our

shoulders and defer. The prisoner would have to prove that

there would not be a riot, which, in a racist society, would

simply never be possible. It is certainly “plausible” that such

a riot could ensue: our society, as well as our prisons, contains

enough racists that almost any interracial interaction could

2. Although the panel asserts that “the high level of racial

violence in the [prison] is well documented” and that “this is hardly

a case where the prison administrators are acting on an

unsubstantiated record,” id. at 801 n. 9, the bulk of the facts the

panel presents are, legally speaking, irrelevant; nothing in the

decision’s holding requires the prison to justify the policy in any

real fashion. ;

3. The prison official affidavits relied on by the panel do not

cite one concrete instance or statistical example of racial violence,

instead referring only to the unsubstantiated “beliefs” of prison

officials about what they presume will happen.

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Appendix C

potentially lead to conflict. See Adarand, 515 U.S. at 237

(“the unhappy persistence of both the practice and lingering

effects of racial discrimination against minority groups in

this country is an unfortunate reality.”). More to the point,

our society, as well as our prisons, contains an abundance of

persons who believe that any cross-racial interaction is

dangerous, regardless of whether their beliefs are based

in fact.*

Both the Fifth and the Seventh Circuits have refused to

accord such extreme deference, recognizing that, in the

context of race, more must be required. In Sockwell v. Phelps,

the Fifth Circuit considered and rejected a policy nearly

identical to the one put forth by the — in = mor tr

orted by nearly identical “safety” justifications.

See 20 F.3d 187, 191-92 (Sth Cir. 1994).° The Sockwell court

anel’s assertion that it is patently obvious that the policy

-. ond Secmmmpeneal is, in fact, belied by studies ep

the question. See Chad Trulson & James W. Marquart, The Cage

Melting Pot: Toward an Understanding of the oye? 4

Desegregation in Prisons, 37 LAW & SOC’Y REV. 743,774 (2 2

(study of inmate-on-inmate assault data which found ~ A over

[ten years], the rate of violence between inmates segregated y race

in double cells surpassed the rate among those racially integrated.”).

5. In Sockwell, Texas prison authorities actually presented more

concrete evidence than what was offered in the instant case. In support

of their contention that racially segregated two-man cells were needed

to increase security, they asserted that:

. . . h

1) prison guards were unable to visually monitor eac

ell: _. . (3) two instances occurred in which black

- (Cont'd)

45a

Appendix C

implicitly rejected Turner, placing the burden of proof to

justify the policy on prison authorities and refusing to accept

the prison authorities’ “generalized or vague fear of racial

violence [as] a sufficient justification for a broad policy of

[residential] racial segregation.” 20 F.3d at 191.° Similarly,

in Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987) (decided

subsequent to Jurner ), the Seventh Circuit specifically held

that “absent a compelling state interest, racial discrimination

in administering prisons violates the Equal Protection

Clause.” Jd. (citing Wolff v. McDonnell, 418 U.S. 539,

556 (1974)).

Other portions of the panel’s analysis reveal just as

starkly the trouble with applying Turners reasoning to a race-

based equal protection claim. For example, in finding that

Johnson has a “reasonable alternative” to exercise his right

to be free from discrimination because he is not subject to

segregation during meals and recreational time, the panel

(Cont'd)

and white prisoners housed together became violent:

(4) racial supremacy groups existed within the prison

ranks; and (5) interracial conflict may have triggered

more generalized racial violence.

20 F.3d at 191.

6. Contrary to the panel's suggestion, see Johnson v. Rowland,

321 F.3d at 797 n. 5, the fact that there appeared to be disparate

treatment between the cells did not play any role in the Sockwell

court's analysis. See 20 F.3d at 191. Unlike the panel, the Sockwell

court was not under the illusion that racially discriminatory

government policies are acceptable so long as they produce “equal”

results. See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).

46a

Appendix C

essentially asserts that if the state only discriminates

sometimes, no harm is done. See Johnson v. Rowland, 321

F.3d at 804. This close-enough argument is akin to asserting

that if a school-child only has to go to a segregated school

one-third of the year, the requirements of Brown v. Board of

Education are met. As the District of Columbia Circuit stated

in Pitts v. Thornburgh, the right to be free from discrimination

is the right to be free from a particular, definite, constitutional

harm, not the right to engage in a particular activity or

associate with particular persons. See 866 F.2d 1450,

1455 (D.C. Cir. 1989) (“While an equal protection claim jae

is, in one sense, a personal right ... the claim is also a

demand that government action that affects an individual not

be predicated upon constitutionally defective reasoning.”),