Respondents Brief — Johnson v. California

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No. 03-636 AUG = 6 2004 |

In The

Supreme Court of the United States

GARRISON S. JOHNSON,

Petitioner,

JAMES GOMEZ and JAMES ROWLAND,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR THE RESPONDENTS |

sa BILL LOCKYER :

Attorney General of the

State of California

MANUEL M. MEDEIROS

Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

FRANCES T. GRUNDER

Senior Assistant Attorney General

Counsel of Record

SARA TURNER

Supervising Deputy Attorney

General

455 Golden Gate Avenue,

Suite 11000

San Francisco, CA 94102-7004

Telephone: (415) 703-5723

Facsimile: (415) 703-5843

Counsel for Respondents

Gomez and Rowland

-_—

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

California prison officials have limited information about

inmates’ gang affiliations, enemy concerns, and potential

for violence when the inmates are first received at a

prison. Thus, inmates generally are not double-celled with

inmates of another race until information is received to

determine that it is safe to do so. That information is

gathered during the sixty-day initial classification process.

In most prison cases, Turner v. Safley, 482 U.S. 78 (1987)

is used to evaluate the constitutionality of prison officials’

actions.

1. Should the courts continue to give prison officials

deference in the day-to-day management of pris-

ons, or should strict scrutiny be used to evaluate

whether California’s initial double-celling practice

is constitutional?

2. Does California’s initial double-celling practice

violate the Equal Protection Clause?

OBJECTION TO THE DESIGNATION OF PARTIES

Respondents disagree with petitioner’s designation of

the respondents. The only respondents are James Gomez

and James Rowland, both former directors of the Califor-

nia Department of Corrections, who were granted quali-

fied immunity from damages by the lower courts. Neither

the State of California nor any other defendant is a re-

spondent here, as Gomez and Rowland were the only

parties to the appeal that is the subject of review.

ill

TABLE OF CONTENTS

ESAT

A. The Impact Of Race-based Prison Gangs In

B. Cell Assignment In the Reception Center.........

C. The Proceedings Below.....................ccccccccceeseeees

SUMMARY OF ARGUMENT ......0...0.......cccccecccceeceeseeeees

Il.

THE TURNER STANDARD IS APPROPRI-

ATE TO DETERMINE WHETHER THE

CDC’S TEMPORARY DOUBLE-CELLING

POLICY IS CONSTITUTIONAL, BECAUSE

IT AFFORDS PRISON OFFICIALS NEEDED

DEFERENCE AND IS ADEQUATE TO

SAFEGUARD INMATES’ CONSTITUTIONAL

A. Turner v. Safley Expresses the Long-

standing Principle That Courts Are To De-

fer To Prison Administrators’ Expert

B. Deferential Standards Are Applied To All

Constitutional Claims Made by Prisoners ..

C. This Court Should Not Craft an Equal

Protection Exception To Turner..................

THE CDC’S CONSIDERATION OF RACE AS

ONE FACTOR IN ASSIGNING TEMPORARY

CELLMATES SATISFIES THE TURNER

STANDARD AND IS THUS CONSTITU-

TABLE OF CONTENTS - Continued

Page

A. There Is a Valid, Rational Connection Be-

tween CDC’s Practice and the Legitimate

Penological Interest of Preventing Vio-

BOIIED ccacenescscensesennssenesennnenietnspmimnimnnipenmennnin 28

B. There Are Alternative Means of Exercising

the Constitutional Right.....................000008 32

C. There Would Be a Significant Impact on

Prison Personnel, Other Inmates, and Re-

sources In Assigning Reception Center

Cellmates Differently .....................cc000eeeeees 33

D. There Are Presently No Reasonable Alter-

IUD rexsnccncecansesnemicenssnatnciatnniatimeieinnamaneenias 35

Ill. EVEN UNDER A _ STRICT SCRUTINY

ANALYSIS, THE CDC’S TEMPORARY

HOUSING PRACTICE IS CONSTITU-

TEED canextscnenentsensrtininiiatinniennisieiieianammimnemmiinas 37

A. Remand Is Appropriate....................c0ssee 37

B. The Practice Advances a Compelling Gov-

0 39

C. The Practice Is Narrowly Tailored ............. 40

IV. REGARDLESS OF WHAT STANDARD AP-

PLIES, RESPONDENTS GOMEZ AND ROW-

LAND ARE ENTITLED TO QUALIFIED

tt, , 44

ot Fe 45

TABLE OF AUTHORITIES

Page

CASES

Adarand Construction, Inc. v. Pena, 515 U.S. 200

aaa crtssnivisntensinnnententenncnieniainiasbinniananininieusinmbnimeieel 24

Allen v. Wright, 468 U.S. 737 (1984) .............ccccceeeeeeeeeeeees 12

Bear v. Kautzky, 305 F.3d 802 (8th Cir. 2002) .................. 27

Bell v. Wolfish, 441 U.S. 520 (1979) ...........cccccecceeeeeees 20, 29

Black v. Lane, 824 F.2d 561 (7th Cir. 1987)..................... 26

Cleavinger v. Saxner, 474 U.S. 193 (1985).............ccccccce0es 31

Edwards v. Sard, 250 F.Supp. 977 (D.C. Dist.

SITU insaseteesennestinnnsdiaisitiepenadeniaeniennenbenpaseteneadiinmimasaiaainiaeel 2

Farmer v. Brennan, 511 U.S. 825 (1994) .0...0...cccccccccceeeeees 19

Graham v. Conner, 490 U.S. 386 (1989) ......0.cccccccccceeeeeees 22

Gratz v. Bollinger, 539 U.S. 244 (2003) .................c.cccece00 24

Grutter v. Bollinger, 539 U.S. 306 (2003)....24, 39, 40, 41, 43

Hakim v. Hicks, 223 F.3d 1244 (11th Cir. 2000)............... 27

Harlow v. Fitzgerald, 457 U.S. 800 (1982)....................002. 44

Harris v. Greer, 750 F.2d 617 (7th Cir. 1984) ..................... 4

Hudson v. Palmer, 468 U.S. 517 (1984) 20.00.0000... .ccccceeeeeeeeeee 1

Johnson v. State of California, 207 F.3d 650 (9th

ee ee nnteenennannticeindaiintinauneaianaisinmnsed dante eae, 27, 38

Jones v. North Carolina Prisoners’ Union, 433 U.S.

i incensinnens“cnennatinenuntecvnitibeaienpuiiinintiiasiahiiias 18, 28

Lee v. Washington, 390 U.S. 333 (1968)..................... passim

Lewis v. Casey, 518 U.S. 343 (1996)..............:ccccceesenee eens 21

Loving v. Virginia, 388 U.S. 1 (1967) ..............ccccccceeeeeeeeees 24

TABLE OF AUTHORITIES -— Continued

Page

Lucas v. So. Carolina Coastal Council, 505 U.S.

> ME IE icnnssemniinie 38

Mayweathers v. Newland, 258 F.3d 930 (9th Cir.

STE snisientbeestieiiindnaiandiadeiaiainiiaimenaieditasiateiuiiidmeeniepimmienniiiinieehis 27

McKune v. Lile, 536 U.S. 24 (2002). ..........cccccccceceeeeeees 21, 23

Mooring v. San Francisco Sheriff’s Dep't, 289

F. Supp.2d 1110 (N.D. Cal. 2003) ..................sssssccsessssssees 9

Morrison v. Garraghty, 239 F.3d 648 (4th Cir. 2001) . 25, 27

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).... 22, 31, 35

Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002)..................... 26

Overton v. Bazzetta, 539 U.S. 126 (2003).............. 20, 21, 39

Pargo v. Elliott, 49 F.3d 1355 (8th Cir 1995).................0 26

Pell v. Procunier, 417 U.S. 817 (1974) ..........cccccccceeeeeeeeeees 39

People v. Aguilera, 51 Cal.App.4th 1151 (1996).................. 3

Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989)........ 26

Preiser v. Rodriguez, 411 U.S. 475 (1973)..............cccceeeeee 19

Procunier v. Martinez, 416 U.S. 396 (1974).......... 18, 19, 31

Rhodes v. Chapman, 452 U.S. 337 (1981).............:::cccceeee 18

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)........... 24

Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001)............. 37

Sandin v. Conner, 515 U.S. 472 (1995)...................004. 15, 23

Saucier v. Katz, 533 U.S. 194 (2001)... cceeeeeeees 13, 44

Shaw v. Murphy, 532 U.S. 223 (2001) .0........ccccccceeeeee 21, 28

Shaw v. Reno, 509 U.S. 630 (1993) ............:ccceccceeeeeeeeeeeres 24

Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994)................ 25

Vii

TABLE OF AUTHORITIES - Continued

Page

Stefanow v. McFadden, 103 F.3d 1466 (9th Cir.

BEDE) ...0<:20ssesesecescessoesovssssssesensossesssoscsnssesnencssosoosssnoscsossenses 2

Thornburgh v. Abbott, 490 U.S. 401 (1989).......... 21, 29, 32

Turner v. Safley, 482 U.S. 78 (1987) ........ccccccccccceeceeee passim

United States v. Fountain, 840 F.2d 509 (7th Cir.

eee ve eee en TE NE ae eI 4

United States v. Santiago, 46 F.3d 885 (9th Cir.

SIT icnsninnesnsenicitinarnneniteadatlaidatenieaasasiisteiataiaaehlitia ta dinate intends 3

United States v. Shryock, 342 F.3d 948 (9th Cir.

a ee ET Ie Lee I ee ee 5

United States v. Silverstein, 732 F.2d 1338 (7th Cir.

ee SE ae Aye ee ae oe eT 3,4

Veney v. Whyde, 293 F.3d 726 (4th Cir. 2002) ................... 26

Walker v. Gomez, 370 F.3d 969 (9th Cir. 2004)........... 25, 27

Washington v. Harper, 494 U.S. 210 (1990).......... 21, 22, 23

Washington v. Lee, 263 F.Supp. 327 (M.D. Ala.

RR ree es ee ORES A AS Me ae 2

White v. Morris, 832 F. Supp. 1129 (S.D. Ohio 1993) ... 30, 41

Whitley v. Albers, 475 U.S. 312 (1986)..............0c0cc000 15, 22

Yates v. Stalder, 217 F.3d 332 (5th Cir. 2000)................... 26

CONSTITUTIONAL PROVISIONS

United States Constitution

ATE ee ee 21, 22

Eighth Amendment ...................csssssessse0s 15, 17, 19, 22, 34

Fourteenth Amendment .....................cc000000 15, 21, 24, 32

viii

TABLE OF AUTHORITIES -— Continued

Page

STATUTES AND REGULATIONS

California Code of Regulations, Title 15

2 EERSTE eae ee Te ana Teen ee 11, 25

|” I On CT nN ee ae CO 8

California Penal Code

lana cai caaiaiacaitaea canted een leenhiatnrtatenieaiaenials 6, 43

California Department of Corrections, Departmen-

tal Operations Manual

| REE ene eeen tence enone tae 8

|| TEEN en ae ne TENE RUMEN Eo 10

RULES

Federal! Rule of Civil Procedure

EL aE OE ma rt 38

Ts no ne OEE MET 13

OTHER AUTHORITIES

Alonso, Alejandro A., M.S., African-American Street

Gangs in Los Angeles, National Alliance of Gang

Oe AR cen ae Ee 11

Bureau of Prisons, Quick Facts ...5..000000ccsccccscccssessecoversseees 43

California Department of Corrections, California

Prisoners and Parolees 2002 tbl. 9.................c:cccceeeeeeeee 43

California Department of Corrections, Movement of

Prigam Fapeiatiah 9 (B66) .osccccosesecccescccscssssecccccscsccssescosse 6

California Department of Corrections, Weekly

Report of Population as of Midnight July 7, 2004 .......... 7

TABLE OF AUTHORITIES - Continued

California Department of Justice, Gangs 2000: A

ey CD Sa Ge cccecnvenrtnmnenenntareneisninneenecetmnenntaines 2

California Department of Justice, Organized Crime

in California 2003 15-17 (2003) ..........::ccccceeeeeeeeeeees 2, 3,4

Dilulio, John J. Jr., Governing Prisons: A Compara-

tive Study of Correctional Management 129

Sisal ee cwsacntnineccctsdicncentintinadataasetialmentatimmenesdidenatndiiniiinnieite 1

Grann, David, “The Band: How the Aryan Brother-

hood became the most murderous prison gang in

America,” THE NEW YORKER 156 (Feb. 16 & 23,

STITT sicsialiabpunbiietnianeahniaeitemainiaialaaanathiniaaclaaieeteiiarattatiadinaiaaisii 3

Trulson, Chad & Marquart, James W., The Caged

Melting Pot: Toward an Understanding of the

Consequences of Desegregation in Prisons, 36 LAW

Be BY TE, FE Gee ccsccncccccnccescscesccescevesessnsenssccecsses 41

Willens, Jonathan A., Structure, Content and the

Exigencies of War: American Prison Law after

Twenty-five years 1962-1987, 37 Am. U. L. REV.

Gi SITE cocvecnnniunesbeisiienniphinpninsninibaiaumaianiens .1,2,3

STATEMENT

A. The Impact of Race-Based Prison Gangs in

California Prisons.

“Prisons, by definition, are places of involuntary

confinement of persons who have a demonstrated procliv-

ity for antisocial criminal, and often violent, conduct.”

Hudson v. Palmer, 468 U.S. 517, 526 (1984). This case

involves state prison officials’ efforts to defuse this behav-

ior in one place and one place only, namely, the two-man

cell in which inmates are initially housed upon their

arrival in the California prison system. It concerns those

officials’ efforts to address one dominant factor in the lives

of inmates, whether newly received or already established:

the race-based prison gang.

Modern observers of prisons recognize that prison

gangs are “the most significant reality” in prisoners’ lives.

Willens, Jonathan A., Structure, Content and the Exigen-

cies of War: American Prison Law after Twenty-five years

1962-1987, 37 AM. U. L. REv. 41, 56 (1987); see also

Dilulio, John J., Jr., Governing Prisons: A Comparative

Study of Correctional Management 129 (1987) (referring to

prison gangs as “the chief operational fact of life inside

California prisons”). Observers recognize that “gangs

create the prisoner’s new identity by recognizing the skills

he has learned on the street and providing a way and a

reason to use them in prison. The gangs also affirm the

‘race consciousness’ of the ghetto. They teach that the

prison is a political place where being Black, white or

Hispanic defines the prisoner’s political position and

where following the gang gives the prisoner political

power.” Willens at 57. They acknowledge that “prison can

be a homecoming, provided that the man is a gang mem-

ber who is assigned to the prison his gang controls. Then

the gang provides food and cigarettes, visits and gifts

coordinated by allies outside, information about friends

and enemies in the prison, and protection from the thieves

and rapists who prey on new men.” /d.

“Anyone familiar with prisons understands the

seriousness of the problems caused by prison gangs that

are fueled by actively virulent racism and religious bigotry.

Protecting staff from prisoners and prisoners from each

other is a constant challenge.” Stefanow v. McFadden, 103

F.3d 1466, 1472 (9th Cir. 1996). “‘[T]he association be-

tween men in correctional institutions is closer and more

fraught with physical danger and psychological pressures

than is almost any other kind of association between

human beings.’” Washington v. Lee, 263 F. Supp. 327, 332

(M.D. Ala. 1968), quoting Edwards v. Sard, 250 F. Supp.

977 (D.C. Dist. 1966).

There are five major prison gangs in California:

Mexican Mafia (EME), Nuestra Familia, Black Guerilla

Family, Aryan Brotherhood, and Nazi Low Riders. Nuestra

Familia (NF) created a subgroup called the Nuestra Raza,

which currently enforces the interests of the NF while its

members are isolated in security housing units. The Aryan

Brotherhood is allied with the EME and is friendly with

other white gangs such as the Hells Angels and the Nazi

Low Riders. California Department of Justice, Organized

Crime in California 2003 15-17 (2003) (hereafter Califor-

nia Department of Justice, Organized Crime)].' California

Hispanic inmates are divided geographically into Nortenos

(Northerners) and Surefios (Southerners). See California

Department of Justice, Gangs 2000: A Call to Action 30

’ Available at http://caag.state.ca.us/publications/org_crime.pdf

(1993);* People w Aguilera, 51 Cal.App.4th 1151, 1156 n.3

(1996); see also J.A. 185a (inmates from California Avenue

in Bakersfield or northward cannot be housed with South-

ern Hispanic inmates).

The prison gang culture is, above all, violent: “It

includes forced prostitution and armed robbery. It also

includes the violence necessary for its enforcement such as

attacks on prisoners who interfere with prostitution or tell

secrets.” Willens at 61-62. It is common knowledge that

some gangs require one inmate to kill another (“make your

bones”) in order to become a gang member. See United

States v. Santiago, 46 F.3d 885, 888 (9th Cir. 1995) (Mexi-

can Mafia); United States v. Silverstein, 732 F.2d 1338,

1341 (7th Cir. 1984); see also Grann, David, “The Band:

How the Aryan Brotherhood became the most murderous

prison gang in America,” THE NEW YORKER 156 (Feb. 16 &

23, 2004).

Prison gangs operate both inside and outside of prison

and control the activities of many street gangs. California

Department of Justice, Organized Crime, supra, at 15

(2003). One of the primary sources of new prison gang

members is street gangsters who are sent to prison, and

some of the prison gangs are actively recruiting to bolster

their ranks. Jd. at 16. For example, the Black Guerrilla

Family is experiencing a resurgence due to its recruiting

efforts, and the Aryan Brotherhood is actively recruiting to

compensate for some recent setbacks suffered as a result

of gang-related federal indictments. Jd. The increased

recruiting efforts by the gangs and the resurgence of the

Black Guerilla Family will lead to increased rivalries and

? Available at http://www.cgiaonline.org.

violence in the prisons. Jd. at 17. The close affiliation

between street gangs and prison gangs ensures that their

rivalries and associated violence are factors from the

moment new inmates — who may be street gang members

— and repeat offenders — who may be prison gang members

— arrive.

Violence in California prisons is well documented. The

Ninth Circuit took notice of a series of race-based riots at

Pelican Bay State Prison that resulted in one death and

twenty-five injured inmates being transported to outside

hospitals, as well as many other instances of violence that

were reported in the media. Pet. App. 16a-18a n.9. The

reported incidents include a race riot between Hispanics

and African-Americans at Adelanto Prison during which

six prisoners were injured, one critically, and after which

100 inmates had to be transferred; a lockdown following a

riot at Lancaster Prison when large groups of Latino and

white inmates rushed each other and ten inmates were

injured; and a disturbance between 100 African-American

and Latino inmates in an exercise yard at Folsom State

Prison which led to the death of one prisoner and injuries

to thirteen others. /d.

It is widely recognized that prison gangs are formed

and organized along racial lines. Harris v. Greer, 750 F.2d

617, 619 (7th Cir. 1984) (taking judicial notice of fact that

prison gangs are organized along racial lines). And courts

have regularly acknowledged the ruthlessness of prison

gangs. The Aryan Brotherhood, for example, has been

recognized as “a singularly vicious prison gang,” United

States v. Fountain, 840 F.2d 509, 516 (7th Cir. 1988), that

has a “hostility to black inmates,” United States v.

Silverstein, 732 F.2d 1338, 1341 (7th Cir. 984). The Mexi-

can Mafia has been declared an “extraordinarily violent

organized criminal enterprise” whose members have

engaged in murders, attempted murders, and conspiracies

to commit murder; have testified falsely and threatened,

assaulted, killed, or attempted to kill potential witnesses

in pending cases; have vowed a “code of silence” to deny

the existence of and membership in the Mexican Mafia;

and have interfered with the judicial process by subpoena-

ing inmates under the guise of needing them as witnesses

in their case, then attacking those persons in attorney

visiting rooms. United States v. Shryock, 342 F.3d 948, 972

(9th Cir. 2003).

Prison gang politics dictate social protocols that must

be honored. In California prison dormitories, for example,

adjacent bunks may be white, African-American, or

Hispanic, but problems occur if an inmate of one race is

placed on a bunk above an inmate of ancther race. J.A.

190a-191a (fights have occurred when this was mistakenly

done).

Neither petitioner nor his supporting amici dispute

the existence of significant racial tension in California

prisons. Petitioner himself admitted that he couldn’t ask a

white inmate to move in with him: “You can’t cross races.

That will start racial tension right there. So I know I can’t

go to a white guy and say, ‘Hey, I want to move with you’

because he is not going to move with me.” J.A. 109a.

Petitioner’s fear appears to be a generalized one of cross-

racial violence directed at him because he is African-

American. See J.A. 117a.

In California, as in almost all prison systems, it has

sometimes been necessary to take protective measures

based on race (e.g., after a race-based prison riot). See, e.g.,

Pet. App. 16a-18a n.9. At issue in this case, specifically, is

California’s process for assigning cells at the prison recep-

tion centers, to which we now turn.

B. Cell assignment in the reception center

The practice at issue in this case takes place only at

“reception centers.” Reception centers for men are located

within seven of California’s thirty-two prisons. When an

inmate first enters the California state prison system, he

is sent to a reception center where he undergoes process-

ing and screening to determine his custody level and an

appropriate permanent prison platement. In 2003, the

seven reception centers for male inmates processed more

than 40,000 newly admitted inmates and almost 72,000

inmates who were returned from parole. California De-

partment of Corrections, Movement of Prison Population 3

(2003).° In addition, those seven reception centers proc-

essed a portion of the 254,000 already admitted male

inmates who were moved from one facility to another over

the course of the year. Id.; see n.9, infra.

When an inmate arrives at a reception center, prison

officials have only limited information about him, particu-

larly if he has never been housed at a California Depart-

ment of Corrections (CDC) facility. The only information

that counties are required to provide to the CDC when

they deliver a convicted defendant to the CDC’s custody is

(1) a certified abstract of judgment or minute order, (2) a

Criminal Investigation and Identification number, and (3)

a confidential Medical/Mental Health Transfer Form

indicating that the inmate is medically capable of being

* Available at http://www.corr.ca.gov/OffenderInfoServices/Reports/

Annual/Move5/MOVE5d2003. pdf

transported. Cal. Penal Code § 1216 (West 2004). Any

other information is gathered during the classification

process itself. J.A. 303a. During this process, a thorough

evaluation of each inmate’s physical, mental and emo-

tional health is completed. Jd. In addition, he is given a

battery of tests to determine his vocational and educa-

tional skills and goals. Jd. The prisoner’s criminal history,

history in jail, and any previous prison or jail commit-

ments are reviewed to determine his security needs and

classification level.‘ Jd. at 304a. During this time, classifi-

cation staff determine whether or not the inmate has

enemies elsewhere in prison, including people who may

have testified against him in the past or in his criminal

case, or inmates with whom he may have had disputes

during previous jail or prison placements. J.A. 303a-304a.

In reception centers, inmates are usually housed two

to a cell or in dormitories. J.A. 303a. Single cells are at a

premium because California’s seven reception centers for

male inmates are operating far in excess of design capac-

ity, from the least crowded at 200 percent, to the most

crowded at 393 percent. See California Department of

Corrections, Weekly Report of Population as of Midnight

July 7, 2004.° Single-celling at reception centers is re-

served for inmates who present special security problems,

including those convicted of very notorious crimes; those in

need of protective custody because of their effeminate

appearance, extreme youth or old age, or small stature;

* There are four general classification levels, I-IV. Level I is equal

to minimum security, level [V is maximum security. Petitioner is

classified level IV.

* Available at: http://www.corr.ca.gov/OffenderInfoServices/Reports/

Weekly Wed/TPOP1A/TPOP1Ad040707 pdf. The total male inmate

population at reception centers was 17,130 and design capacity is 7,776

(CDC design capacity is defined as one inmate per cell).

former law enforcement officers; known informants; and

known gang leaders. See, e.g., CDC Dep't Operational

Manual, § 61010.11.3 (2004).

In deciding cellmate assignments for this initial

screening period, the principal concern of prison officials is

the safety of the inmates and staff, and security of the

prison. J.A. 303a. Officials seek to minimize the possibility

of incompatibility, working with the limited information

available at the time. For example, prison officials look at

the relative ages of the potential cellmates, avoiding the

placement of an older inmate with a much younger in-

mate. J.A. 244a, 249a. Similarly, prison officials look at the

relative size of the potential cellmates, avoiding the

placement of a large inmate with an inmate of a much

slighter build. To the extent that they have the informa-

tion at the time of housing placement, prison officials will

also.consider “case factors” and “custody concerns,” which

include the inmate’s family relationships, education, past

employment and military service, the need for psychiatric

or specialized medical care, criminal and escape history,

the need for protective or confidential placement, prison

gang or street gang affiliation, and other individual safety

concerns. J.A. 304a; see, e.g., Cal. Code Regs tit. 15,

§ 3375.2 (discussing specific case factors and custody

concerns). Officials try to discern gang affiliation from a

number of visual cues including race, tattoos, haircut, or

displays of gang colors on items of clothing or items

carried on the person. See J.A. 184a.

Racial identification is far from the only factor consid-

ered in making initial cell assignments in reception

centers, but it is an important one. J.A. 305a-306a. Race-

based gang involvement is part of many inmates’ back-

grounds, and is generally found to play a role in those

inmates’ anti-social, criminal behavior. J.A. 305a. Based on

their day-to-day experience, prison officials know that the

race of a cellmate can be the source of tension and possible

violence. See J.A. 250a. Indeed, one prison administrator

testified that if race were not considered in making this

initial housing assignment, she felt certain there would be

racially based conflict in the cells and in the prison yard.

She was unwilling to knowingly disregard racial factors

and place an inmate in jeopardy, and would not compro-

mise inmate safety through actions that she felt certain

would result in violence and conflict. J.A. 25la. This view

was supported by then-acting Director of Corrections

Steven Cambra. J.A. 305a-306a.° Because prison officials

at the reception center generally lack complete informa-

tion on inmates who are to be celled together, a newly

arrived inmate is generally housed with an inmate of his

own race. Jd. But reception center inmates may cell with

inmates of other races, upon request, if the inmates

provide information that they are compatible. J.A. 183a-

184a.

Housing in the close quarters of a two-man cell is the

only context in which race is taken into consideration in

the reception center. The confined nature of the reception

center cells makes them potentially more dangerous than

other areas of the prison. Staff cannot see into the cells

without going directly up to them, and inmates sometimes

place coverings over the windows so that staff cannot see

* Prison officials also testified to being concerned that, if they did

not take race into consideration in double-celling and injury resulted,

they would be accused of “setting up” the conflict. J.A. 198a, 201a-202a.

See, e.g., Mooring v. San Francisco Sheriff's Dep't, 289 F. Supp.2d 1110,

1111 (N.D. Cal. 2003) (deputy accused of deliberately double-celling a

Nortefio with a Surefio inmate).

into them at all. J.A. 306a. Because of the currently high

levels of gang-related racial violence in areas where

inmates are easily observed and staff is able to rapidly

intervene, administrators are concerned that inmates

would be in greater danger in areas where staff may not

easily observe them, the inmates have no ability to elude

their adversaries, and staff could not safely respond in

time to prevent injuries. J.A. 306a. Moreover, reception-

center inmates are confined to their cells for much of the

day. Id.

The initial screening and classification period typi-

cally takes around sixty days. J.A. 305a. After the classifi-

cation period, the inmate is either retained in the

permanent housing area of that prison or he is transferred

to another institution. The re-screening process for trans-

ferred inmates is typically completed within fourteen days,

as is required by the CDC’s own policies.’ To maximize the

inmate compatibility and minimize the possibility of

violence in the general prison population, inmates are

permitted to select their own cellmates once they move to

permanent housing. J.A. 3lla. Both inmates must sign

forms indicating that they would like to share a cell. When

inmates request to be housed together, officials do not

* Although petitioner claims that an inmate undergoes a sixty-day

classification period whenever the inmate is transferred within CDC,

that is untrue. See, eg, Pet. Br. at 9, 37; see also U.S. Br. at 23.

Transferred inmates are generally processed quickly at the new

institution. The CDC Departmental Operations Manual section

62010.8.3 mandates that each inmate be reviewed and classified by a

committee within fourteen days of arrival at the new institution.

Regulations available online at: http//www.cdc.state.ca.us/Regulations

Policies/PDF/DOM/Chapter® 206% 20Classification/Chapter% 206.pdf. In

any event, petitioner “explicitly disavowed” any challenge to the

transfer policy at oral argument in the Ninth Circuit. Pet. App. 6a n.2.

consider race, and ordinarily grant the requests unless

there are security reasons for denying them. J.A. 31la-

312a.

All other aspects of an inmate’s life in prison — both

while at the reception center and afterwards — are man-

aged without reference to his race or that of his fellow

inmates. J.A. 250a. California expressly forbids racial

discrimination in its prisons. See, e.g., Cal. Code. Regs. tit.

15, § 3004(c) (2004). There is no distinction based on race

for jobs, meals, yard and recreational time, or vocational

and educational assignments. Jd. And of course there is no

evidence to suggest that certain cells are “set aside” in the -

reception center for occupation by only one race or another.

In fact, the evidence showed that no cells are designated

for any particular race and that the racial composition of

the cells changes regularly. J.A. 188a.

C. The proceedings below

Petitioner Garrison Johnson, a California state

prisoner serving a sentence of thirty-six years to life,

contends that CDC’s practice violates equal protection.

Petitioner entered the California Institution for Men in

Chino on June 22, 1987. J.A. 257a. Petitioner’s classifica-

tion process was completed twenty-eight days later. J.A.

259a-262a. Petitioner admits that before entering prison

he was a member of the predominantly African-American

Crips* street gang. J.A. 93a. Although he admits that he

has never requested to be celled with an inmate of another

* See generally Alonso, Alejandro A., M.S., African-American Street

Gangs in Los Angeles, National Alliance of Gang Invest. Ass’n (1998),

available at http//www.nagia.org/Crips_and_Bloods.htm.

race (J.A. 112a),” Petitioner nonetheless sued California

Department of Corrections’ former Directors Gomez and

Rowland for damages, and he has sued the Director” in

her official capacity for injunctive relief.

Johnson filed his original complaint in 1995." After a

series of amendments in response to motions to dismiss,

Johnson filed a Third Amended Complaint. The State

again moved to dismiss and the district court dismissed

the complaint without leave to amend for failing to state a

claim under Turner v. Safley, 482, U.S. 78 (1987). J.A. 25a-

26a; see July 1, 1997 Report and Recommendation of

United States Magistrate Judge at 10, citing Turner,

adopted in its entirety by district court’s January 8, 1998

Order, district court docket numbers 58 and 62, respec-

tively (“Plaintiff must plead that the Defendant’s alleged

* It is questionable whether_petitioner even has standing to pursue

his claim. See Allen v. Wright, 468 U.S. 737, 751 (1984) (plaintiff must

allege personal injury fairly traceable to the defendant’s allegedly

unlawful conduct and likely to be redressed by the requested relief).

Petitioner is challenging a practice that has not applied to him since

1987. J.A. 259a-262a. And he has expressly waived any challenge to the

process that applies to inmates transferring between prisons. Pet. App.

6a n.2. Inmates have been granted requests to cross-racially cell during

the classification process. See J.A. 183a-184a, 199a. Petitioner has

never asked to cel] with an inmate of another race and, thus, he has

never been expressly denied the opportunity. J.A. 112a. Because of

petitioner’s admitted pre-prison affiliation with the African-American

Crips street gang, and not because of his race, petitioner would not

have been eligible to double-cell with a white cellmate while he was

being classified at the reception center.

* Jeanne Woodford is the current CDC Director. The injunction

proceedings are stayed in the district court pending conclusion of this

proceeding.

" Petitioner's claim is not barred by the statute of limitations for

California life-prisoners that was in effect at the time the complaint

was filed.

action in segregating inmates was not reasonably related

to any legitimate penological interest”).

The Court of Appeals for the Ninth Circuit reversed in

part and remanded, holding that petitioner had suffi-

ciently alleged an equal protection claim for racial dis-

crimination, citing Turner, and that he should be given an

opportunity to amend portions of his complaint. J.A. 158a-

168a.

Both parties then conducted discovery and cross-

moved for summary judgment on the equal protection

claimc. The district court denied petitioner’s motion and

granted in part and denied in part respondents’ motion.

J.A. 421a. Specifically, the court denied summary judg-

ment for respondents on the basis of qualified immunity

and denied summary judgment as to petitioner’s claim

against the current Director for injunctive relief. J.A.

420a-425a.

Nine days later, however, this Court decided Saucier

v. Katz, 533 U.S. 194 (2001), providing further guidance in

the proper application of qualified immunity. In view of

Saucier, respondents Gomez and Rowland moved for

reconsideration of the qualified immunity ruling. The

district court granted reconsideration, and found that

Gomez and Rowland were entitled to qualified immunity

because their actions were not clearly unconstitutional.

Pet. App. 32a-35a.

The district court entered judgment for Gomez and

Rowland under Federal Rule of Civil Procedure 54(b), J.A.

40a, docket 133, and petitioner immediately appealed only

the grant of qualified immunity. There has been no final

judgment with respect to the current CDC director, who is

sued for injunctive relief only, and no appearance was ever

entered for the State of California.

On appeal, the parties no longer contended that

. anything other than the initial sixty-day policy was

relevant; “Johnson’s counsel at oral argument explicitly

disavowed any challenge to the continuing effects of the

CDC’s housing policy and limited the challenge only to the

sixty-day policy itself.” Pet. App. 6a n.2. Thus, the only

question before the appellate court was whether the CDC’s

use of race as a factor in making the temporary sixty-day

housing decision violated the Equal Protection Clause.

The Ninth Circuit found that while this Court’s per

curiam decision in Lee v. Washington, 390 U.S. 333 (1968),

held that segregated cell blocks were unconstitutional, this

-Court’s Turner opinion expanded Lee’s definition of “par-

ticularized circumstances” and “necessity for security and

discipline,” and imposed a heavy burden on inmates

seeking to prove a particular practice unconstitutional.

Pet. App. 9a-13a. The appellate court found that to the

extent that Lee and Turner diverged, it was bound to

follow Turner. Id.

In applying Turner, the appellate court found that

respondents’ practice met all four Turner factors: (1)

whether the officials’ actions are rationally related to a

legitimate, neutral objective; (2) whether alternative

means exist to exercise the inmates’ rights; (3) the impact

that any accommodation of the asserted right would have

on guards, inmates, and resources; and (4) whether there

are ready alternatives to the policy. Pet. App. 14a-3la.

Because the appellate court found that there was no

constitutional violation, it ended its inquiry there. Pet.

App. 3la:

Petitioner sought rehearing and rehearing en banc.

The petition for rehearing was denied.

SUMMARY OF ARGUMENT

Every day, prison officials are called upon to make

decisions that require balancing inmates’ individual

liberties against the needs of the institution as a whole,

and against the competing constitutional rights of other

inmates. Recognizing the complex and dynamic nature of

this enterprise, and respecting the constraints imposed on

courts by principles of federalism and separation of pow-

ers, this Court has traditionally reviewed prison officials’

decisions with considerable deference. Thus, Turner v.

Safley sets forth a four-part test for assessing prisoners’

constitutional claims. An action that impinges on inmates’

constitutional rights is generally valid if it is reasonably

related to a legitimate penological interest.

Since Turner was decided, this Court has repeatedly

held that its standard applies to a wide variety of funda-

mental rights, including freedoms of speech and associa-

tion, access to courts, and substantive due process claims

under the Fourteenth Amendment. Even where Turner

has not expressly been applied, as in Eighth Amendment

cases and claims of procedural due process violations, the

Court has announced highly deferential standards de-

signed to leave prison officials with an unusual degree of

discretion. E.g., Sandin v. Conner, 515 U.S. 472 (1995);

Whitley v. Albers, 475 U.S. 312 (1986).

This case presents no occasion for carving out an

exception to the unbroken tradition of deference to prison

officials’ informed judgments. Unlike other equal-protection

contexts where strict scrutiny has been applied to race-

based decision making, the practice at issue here is

uniquely a product of the volatile prison environment, and

it neither benefits nor burdens one group or individual

more than any other group or individual. While lower

courts have reached differing interpretations of this

Court’s statements in Lee v. Washington, 390 U.S. 333

(1968), Turner and its progeny may be fully harmonized

with Lee. Furthermore, the four factors of the Turner test

are rigorous and searching enough to root out any invidi-

ous discrimination against prisoners.

Applying the Turner standard to the facts of this case,

the practice of housing each newly arrived inmate with

another of his own race is seen to be constitutional. The

unassailably legitimate purpose of the practice is to reduce

the threat of racial violence between inmates, a threat

that is deadly serious in light of California’s experience

with violent, race-based prison gangs. Even though in-

mates are assigned to share cells with inmates of their

own race at reception centers, all other aspects of prison

life, inside the reception center and out, are integrated.

Disregarding race, on the other hand, would expose

reception-center inmates to an unacceptable risk of harm,

as courts have concluded in other prison contexts. And,

since no one has come forward with an obvious, easy

alternative solution, the practice satisfies the standard set

forth in Turner. —

Even under a strict scrutiny analysis, the temporary

double-celling practice would meet constitutional require-

ments. Respondents suggest that, if strict scrutiny is to be

applied in this case, the parties and the court should have

the benefit of additional opportunities to discover and

present relevant evidence. But even if not, the record

would support affirmance. The state’s interest in curtail-

ing prison violence is not merely legitimate; it is compel-

ling. Further, the double-celling practice is narrowly

tailored to address a pervasive risk of violence in a narrow,

but urgent context: Where will an inmate rest, wait, and

sleep the day he “gets off the bus,” and for up to 60 days

thereafter while prison officials gather the information

they need to make a permanent housing assignment?

While peace among all inmates may be the ultimate

penological goal, the fact that rival prison gangs are

divided along racial lines requires prison officials, as a

matter of Eighth Amendment law, to consider race as one

factor in initial cell assignments.

Finally, because the issue of which legal standard

should apply to their conduct has been an open question

until now, respondents assert that they must be entitled to

qualified immunity from damages in any event.

ARGUMENT

THE TURNER STANDARD IS APPROPRIATE TO

DETERMINE WHETHER THE CDC’S TEMPORARY

DOUBLE-CELLING POLICY IS CONSTITUTIONAL,

BECAUSE IT AFFORDS PRISON OFFICIALS

NEEDED DEFERENCE AND IS ADEQUATE TO SAFE-

GUARD INMATES’ CONSTITUTIONAL RIGHTS. -

A. Turner v. Safley Expresses the Long-Standing

Principle that Courts Are to Defer to Prison

Administrators’ Expert Judgments.

Courts have long recognized that prison administra-

tors, not courts, are best equipped to deal with the daily

operations of prisons. This principle was at the crux of this

Court’s decision in Turner v. Safley, 482 U.S. 78 (1987). In

Turner, this Court reconciled the obligation of federal

courts to “take cognizance of the valid constitutional

claims of prison inmates,” id. at 84 (quotin~ Procunier v.

Martinez, 416 U.S. 396, 405), on the one hand, with the

recognition that, among the three branches of government,

“courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform,” id.

(quoting Martinez at 405). Neither petitioner nor any of

his supporting amici comes close to showing how courts

are better equipped to deal with the problems of race-

based garg violence in prisons than they are equipped to

deal with issues of inmate correspondence or inmate

desires to marry.

Deference to the particular expertise of prison officials

in the difficult task of managing daily prison operations

did not begin with the Turner decision and will not end

with this case. This Court, in numerous prison cases both

before and after Turner, has repeatedly instructed federal

courts to defer to legitimate institutional needs in the

operations of state prisons. See, e.g., Jones v. North Caro-

lina Prisoners’ Union, 433 U.S. 119, 125 (1977) (noting

that the judicial branch must give “appropriate deference

to the decisions of prison administrators and appropriate

recognition to the peculiar and restrictive circumstances of

penal confinement”). This Court knows that “‘the prob-

lems of prisons in America are complex and intractable,

and ... not readily susceptible of resolution by decree.

Most require expertise, comprehensive planning, and the

commitment of resources, all of which are peculiarly

within the province of the legislative and executive

branches of government.’” Rhodes v. Chapman, 452 U.S.

337, 351, n.16 (1981), quoting Procunier v. Martinez, 416

U.S. 396, 404-405 (1974).

It is the nature of prison life that an inmate’s individ-

ual liberties must be balanced not only against the inter-

ests of the state, but also against the constitutional rights

of other inmates. This Court considered prison officials’

duty to protect inmates in Farmer v. Brennan, 511 U.S.

825 (1994), and held that prison officials violate the

Eighth Amendment when they know of and disregard a

substantial risk of serious harm to an inmate. Id. at 827.

The Farmer Court understood that, “{hlaving incarcerated

persons with demonstrated proclivities for antisocial,

criminal, and often violent conduct, having stripped them

of virtually every means of self-protection and foreclosed

their access to outside aid, the government and its officials

are not free to let the state of nature take its course.”

’ Farmer v. Brennan, 511 US. at 833. Moreover, Justice

Blackmun recognized that many inmates are sent to

prison for non-violent offenses and characterized the

responsibility of prison officials to protect inmates from

harm as an “affirmative duty ... not to be taken lightly.”

Id. Recognizing that prison administrators are regularly

called on to balance competing constitutional interests

under highly dynamic conditions, this Court has tradition-

ally afforded them considerable deference in their decision

making. See Turner, 482 U.S. at 89.

This tradition of deference stems not only from the

recognition that prison officials have special expertise, but

also from principles of federalism and separation of pow-

ers. See Preiser v. Rodriguez, 411 U.S. 475, 491-92 (1973)

(“It is difficult to imagine an activity in which a state has a

stronger interest, or one that is more intricately bound up

with state laws, regulations, and procedures, than the

administration of prisons”); Bell v. Wolfish, 441 U.S. 520,

548 (1979) (“the operation of our correctional facilities is

peculiarly the province of the Legislative and Executive

Branches of our Government, not the Judicial”).

The delicate balance of deference, federalism, and the

separation of powers led this Court to craft the Turner test

and make clear that whenever “a prison regulation im-

pinges on inmates’ constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89. In applying the Turner

reasonable-relationship test, four factors are relevant in

determining whether the prison practice is constitutional:

whether the practice has a valid, rational connection to a

legitimate governmental interest; whether alternative

means are open to inmates to exercise the asserted right;

what impact an accommodation of the right would have on

guards and inmates and prison resources; and whether

there are “ready alternatives” to the practice. Overton v.

Bazzetta, 539 U.S. 126, 132 (2003); Turner, 482 U.S. at 89-

91. The Turner Court recognized that. strict scrutiny was

inappropriate in the prison context because, “[s]ubjecting

the day-to-day judgments of prison officials to an inflexible

strict scrutiny analysis would seriously hamper their

ability to anticipate security problems and to adopt inno-

vative solutions to the intractable problems of prison

administration.” Jd.

B. Deferential Standards Are Applied to All Consti-

tutional Claims Made by Prisoners.

Since Turner was decided, this Court’s opinions have

repeatedly emphasized that the Turner test applies to

prisoners’ constitutional claims regardless of the standard

of review that would be applied outside prison walls. In

Thornburgh v. Abbott, 490 U.S. 401 (1989), this Court held

that even when strict scrutiny otherwise would apply to

the policy in question, the exigencies of prison administra-

tion require only that the regulations be reasonably

related to a legitimate penological interest. Jd. at 407-09,

412 (prisoner correspondence). In Washington v. Harper,

494 U.S. 210 (1990), this Court addressed a prisoner’s

Fourteenth Amendment due process claim and reaffirmed

its intent that Turner be followed, declaring, “[Wje made

quite clear that the standard of review we adopted in

Turner applies to all circumstances in which the needs of

prison administration implicate constitutivnal rights.” Jd.

at 223-24. And in Lewis v. Casey, 518 U.S. 343 (1996), this

Court applied Turner to prisoners’ access-to-the-courts

claims, even though that fundamental right would other-

wise be subject to strict scrutiny. Jd. at 361.

The Turner standard and the principle of deference to

prison administrators were again recently reaffirmed in

McKune v. Lile, 536 U.S. 24 (2002) (prison officials’ re-

quirement that sex offenders admit guilt in order to be

eligible for treatment program); Overton v. Bazzetta, 539

U.S. at 131 (freedom of association claims relating to

family visitation); and Shaw v. Murphy, 532 U.S. 223, 228

(2001) (First Amendment challenge to prison regulation

restricting inmate correspondence). These cases under-

score the continuing vitality of the Turner standard for

evaluating constitutional claims in the prison context.

Both the petitioner and amici United States and the

ACLU argue that this case is different from the many

cases in which this Court has applied Turner. Petitioner

argues that Turner has never been applied to an equal

protection claim by a suspect class. Pet. Br. at 27. The

ACLU argues that Turner applies only when rights are

“exercised” rather than “enjoyed.” ACLU Br. at 17. And

both the United States and the ACLU argue that consid-

eration of race should be subjected to a different test just

as the Eighth Amendment cases receive their own tests.

U.S. Br. at 15-16, ACLU Br. at 17-21.

But in the prison setting, every test for constitutional-

ity is deferential to prison officials regardless of whether

the test fits squarely within Turner’s ambit. For example,

excessive force in prison is unconstitutional only if it is

inflicted maliciously and sadistically for the very purpose

of causing harm. Whitley v. Albers, 475 U.S. 312, 320-21

(1986). In contrast, excessive force outside of prison is

unconstitutional if it is merely unreasonable. Graham v.

Conner, 490 U.S. 386, 395 (1989).

Due process claims are similarly restricted in prison.

This Court applied the Turner test to a substantive due

process claim challenging involuntary medication of a

mentally ill inmate. Washington v. Harper, 494 U.S. at

221-23. In that case, the Washington Supreme Court had

declined to apply the Turner standard to the policy at

issue, reasoning that the inmate’s liberty interest was

distinguishable from the First Amendment rights at issue

in both Turner and O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987). Washington v. Harper, 494 U.S. at 223. But

this Court reversed, emphasizing that the Turner standard

was “based upon the need to reconcile [the Court’s] long-

standing adherence to the principle that inmates retain at

least some constitutional rights despite incarceration with

the recognition that prison authorities are best equipped

to make difficult decisions regarding prison administra-

tion. These two principles apply in all cases in which a

prisoner asserts that a prison regulation violates the

Constitution, not just those in which the prisoner invokes

the First Amendment.” Jd. at 223-24 (internal citations

omitted). The Turner standard is not limited to just those

rights that are expressive or passively “enjoyed” as amicus

ACLU contends.

Although this Court did not apply the Turner stan-

dard when it analyzed an inmate’s due process rights in

Sandin v. Conner, 515 U.S. 472 (1995), it did apply a very

deferential standard to determine whether state regula-

tions had created liberty interests. Jd. at 484. Later, this

Court recognized in McKune v. Lile, 536 U.S. 24, 37 (2002)

that “Sandin and its counterparts underscore the axiom

that a convicted felon’s life in prison differs from that of an

ordinary citizen” and that Sandin’s limitations were

grounded in Turner’s deferential standard: “The limitation

on prisoners’ privileges and rights also follows from the

need to grant necessary authority and capacity to federal

and state officials to administer the prisons,” and “(flor

these reasons, the Court in Sandin held that challenged

prison conditions cannot give rise to a due process viola-

tion unless those conditions constitute ‘atypical and

significant hardship{s] on [inmates] in relation to the

ordinary incidents of prison life.’” McKune, 536 U.S. at 37

citing and quoting Sandin, 515 US. at 484 and citing

Turner, 482 U.S. 78 (alterations in original).

Thus, every constitutional standard applied in prison

is informed by the unique environment of prison and its

operational challenges and affords the deference necessary

to accommodate those factors.

C. This Court Should Not Craft an Equal Protec-

tion Exception to Turner.

Petitioner and amici argue that strict scrutiny is the

proper test in this case and that recent cases support the

view that all state racial classification claims are subject

to strict scrutiny. See Gratz v. Bollinger, 539 U.S. 244

(2003) (using racial preferences in undergraduate admis-

sions subject to strict scrutiny); Grutter v. Bollinger, 539

U.S. 306 (2003) (race-conscious law school admissions

policy subject to strict scrutiny); Adarand Construction,

Inc. v. Pena, 515 U.S. 200 (1995) (providing financial

incentives to hire minority contractors subject to strict

scrutiny); and Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) (minority contracting quotas subject to strict

scrutiny). But none of those cases arose in the prison

context, where competing constitutional concerns and the

need to safely administer a volatile, violent environment

are paramount.

Furthermore, unlike here, all of those cases involved a

benefit conferred or a burden suffered by the parties.

There is no evidence that the practice at issue here works

a deprivation on either cellmate, cf. Loving v. Virginia, 388

U.S. 1 (1967) (equal application of prohibition against

mixed-race marriage implicated Fourteenth Amendment

and burdened each of the parties on account of race); nor is

there evidence that the practice works to the advantage of

either cellmate on account of his race, cf. Grutter v. Bollin-

ger, 539 U.S. 306 (2003) (race as a factor in college admis-

sions); Shaw v. Reno, 509 U.S. 630 (1993) (district lines

drawn to maximize minority voting strength).

This Court first faced a prisoner’s racial discrimina-

tion claim in Lee v. Washington, 390 U.S. 333 (1968),

which affirmed the unconstitutionality of state statutes

that required completely segregated prisons and jails. Pre-

dating Turner, Lee struck down a state statute that re-

quired the complete racial segregation of prisons and

jails.” Although some courts have interpreted Lee to

invoke a strict scrutiny analysis, there is no discussion of

strict scrutiny in the short per curiam opinion. On the

other hand, the concurring opinion emphasized 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.” Lee, 390 U.S. at 334 (Black,

Harlan, Stewart, JJ., concurring).

The lack of clear direction in Lee led the circuit courts

to apply inconsistent standards for prison racial equal

protection claims. The Ninth Circuit (in this case and one

other) and the Fourth Circuit have both used the Turner

standard, while the Fifth Circuit has used Lee’s “particu-

larized circumstances” with no discussion of strict scru-

tiny, and the Seventh Circuit has used the strict scrutiny

standard. Walker v. Gomez, 370 F.3d 969 (9th Cir. 2004)

(applying Turner to find that inmate’s rights were violated

when, after three prison lockdowns, he was not allowed to

resume his prison job until after similarly-situated in-

mates of other races); Morrison .v. Garraghty, 239 F.3d 648

(4th Cir. 2001) (applying Turner to find that inmate’s

rights were violated when officials denied him Native

American religious items because he wasn’t Native Ameri-

can); Sockwell v. Phelps, 20 F.3d 187, 191 (5th Cir. 1994)

“ In contrast, California expressly forbids discrimination in its

prisons on the basis of race. See, e.g., Cal. Code. Regs. tit. 15, § 3004(c)

(2004).

(finding no “particularized circumstances” to justify

permanent segregation of two-man cells where white

inmates received preferential treatment); Black v. Lane,

824 F.2d 561 (7th Cir. 1987) (applying strict scrutiny to

inmate’s claim of racially discriminatory job assign-

ments).””

It is not necessary to overrule Lee in order to apply

the Turner standard in this case because Lee is consonant

with Turner. Turner provides the specific standard to be

used when reviewing a prison operational] rule, taking into

account the “particularized circumstances” that the Lee

Court recognized could justify separating prisoners on the

basis of race.

Good faith and particularized circumstances are

implicit in the Turner standard; it requires that the

officials’ actions, policies, or practices be rationally related

to a legitimate and neutral objective, and that the exis-

tence of ready alternatives be examined. Actions taken in

bad faith would not further a legitimate and neutral

objective, nor would they be rationally related to it. The

particularized circumstances contemplated in Lee are

encompassed by the Turner standard’s examination of

* Although not directly at issue in this case, courts have also

applied inconsistent standards in evaluating quasi-suspect classes in

prison. Compare Veney v. Whyde, 293 F.3d 726 (4th Cir. 2002) (Turner

applied to claim of gender bias in practice prohibiting double-celling

homosexuals); Oliver v. Scott, 276 F.3d 736 (5th Cir. 2002) (Turner

applied to challenge cross-gender strip searches); and Yates v. Stalder,

217 F.3d 332 (5th Cir. 2000) (Turner applied to gender-based claim of

disparate conditions between male and female prisons); with Pitts v.

Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989) (strict scrutiny applied to

inmate's gender-based equal protection claim); and Pargo v. Ellwtt, 49

F.3d 1355 (8th Cir 1995) (strict scrutiny applied to inmate’s gender-

based claim).

whether there are ready, obvious alternatives to the

challenged policy. The absence of ready alternatives would

counsel that particularized circumstances exist that

cannot otherwise be addressed.

Although the Turner standard is a deferential one, it

is not without force. Prison policies and practices involv-

ing suspect classes and fundamental rights have been

struck down using Turner, including a post-Johnson

decision by the Ninth Circuit. See Walker v. Gomez, 370

F.3d 969 (9th Cir. 2004) (affirming that prison officials’

race-based actions violated inmate’s equal protection

rights); see also Morrison v. Garraghty, 239 F.3d 648 (4th

Cir. 2001) (affirming injunction against prison officials in

race-based discrimination claim); Bear v. Kautzky, 305

F.3d 802 (8th Cir. 2002) (affirming preliminary injunction

against prison officials in access to courts claim); May-

weathers v. Newland, 258 F.3d 930 (9th Cir. 2001) (affirm-

ing preliminary injunction against prison officials in free

exercise of religion claim); Hakim v. Hicks, 223 F.3d 1244

(11th Cir. 2000) (affirming that prison policy violated

inmates’ free exercise of religion). Thus, the Turner stan-

dard provides courts with an effective tool to protect

inmates’ rights while at the same time according officials

the needed deference to administer the prisons.

Neither petitioner nor amici has established why this

Court should depart from its repeated admonition that

any impingement of prisoners’ constitutional rights is to be

measured under a deferential standard. This Court’s

opinions repeatedly express the view that “such a stan-

dard is necessary if ‘prison administrators ... , and not

the courts, [are] to make the difficult judgments concern-

ing institutional operations.’” Turner, 482 U.S. at 89

quoting Jones v. North Carolina Prisoners’ Union, 433 U.S.

128.

This Court should not craft an equal protection

exception to the Turner test because the same principles

that guide the application of Turner for other constitu-

tional claims also apply here.

Il.

THE CDC’S CONSIDERATION OF RACE AS ONE

FACTOR IN ASSIGNING TEMPORARY CELLMATES

SATISFIES THE TURNER STANDARD AND IS

THUS CONSTITUTIONAL.

Under Turner, the petitioner bears the burden of

overcoming “the presumption that the prison officials

acted within their broad discretion.” Shaw v. Murphy, 532

U.S. at 232. Courts should look to four factors to deter-

mine if the Turner standard is met. Each of the four

Turner factors is addressed in turn here.

A. There is a valid, rational connection between

CDC’s practice and the legitimate penological

interest of preventing violence.

The issue at the heart of the Turner test is whether

there is a valid, rational connection between the regula-

tion and the asserted goal. A regulation or practice “cannot

be sustained where the logical connection between the

regulation and the asserted goal is so remote as to render

the policy arbitrary or irrational.” Turner, 482 U.S. at 89-

90. The objective must be both legitimate and neutral. Jd.

at 90.

-- ----—

This Court has long held that prevention of inmate

violence is a legitimate goal in prisons: “(MJaintaining

institutional security and preserving internal order and

discipline are essential goals,” and “[p]rison officials must

be free to take appropriate action to ensure the safety of

inmates and corrections personnel.... ” Bell v. Wolfish,

441 U.S. at 546-47.

In addition to serving a legitimate goal, the practice

must be applied in a neutral manner. Turner, 482 U.S. at

90. Here, violence prevention is a goal that cuts across all

racial lines, and all of the evidence showed that the CDC’s

cell assignment practice operates in a neutral manner.

There are no cells designated for any particular race and

the racial composition of the cells changes regularly as

inmates move in and out. J.A. 188a. There is no evidence

that any race enjoys a benefit or suffers a burden, or that

any race is granted a more favorable location or special

privileges. The practice is applied to all inmates regardless

of their race. See, e.g., J.A. 305a.

The practice must also be rationally related to the

objective. Thornburgh v. Abbott, 490 U.S. at 414. Prison

administrators here use race as one of many factors in

making their initial housing assignments; at no institution

is race the sole factor in a housing decision. J.A. 305a. The

initial period in prison is a critical time for prison officials

and inmates alike. It is essential that the inmates be

protected from one another until sufficient information is

obtained to make a more in-depth determination about

their compatibility with other inmates. The fact that

prison and street gangs divide along racial lines is a

distasteful reality, but a reality that must be taken into

account when little information is available about the

inmates other than their race.

‘ 30

Although petitioner contends that there is no evidence

supporting the connection between the CDC's practice and

its goal of preventing violence, that is simply untrue. Gang

and race-related violence is a harsh reality in California

prisons. As the Ninth Circuit noted after citing to many

documented instances of violence in California prisons,

“This is hardly a case where the prison administrators are

acting on an unsubstantiated record.” Pet. App. 18a n.9.

Other systems have experienced similar violence. The

worst prison riot in Ohio’s history and one of the worst in

United States history occurred after a consent decree

mandated that inmates be integrated in double-cells. See

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

inmates and one correctional officer were murdered and

many others were injured during the eleven-day standoff.

During negotiations, as well as after the riot, prisoners

repeatedly cited integrated double-celling as a factor

contributing to the tense atmosphere there. The siege

finally ended when the court agreed to review the double-

celling policy. Jd. at 1130. The integrated double-celling

policy was cited as a primary factor in the riot. Jd.

It is crucial that officials making initial cell assign-

ments be given the discretion and flexibility to protect

incoming inmates until more information, including any

gang affiliation, is known. Prison officials exercise this

duty to protect by not double-celling inmates who are

potentially members of rival gangs. Because race is a

primary factor in gang affiliation, newly arrived inmates

are generally celled with members of their own race. While

this is not a fail-safe method because members of the same

race may also be rivals, it is one way to reduce potential

violence. Visual cues like tattoos, haircuts, displays of

gang colors on clothing or personal items also assist

officials in determining gang affiliation and are taken into

consideration in cell assignments. J.A. 184a.

Officials may not make “[rjoutine and automatic”

assertions that every step taken to protect prisoners’

“constitutional rights will lead to a breakdown in institu-

tional discipline and security.” Cleavinger v. Saxner, 474

U.S. 193, 207 (1985). But neither must they wait until

violence occurs before acting and may instead “anticipate

security problems and ... adopt innovative solutions to

the intractable problems of prison administration.” O’Lone

v. Estate of Shabazz, 482 U.S. 342, 349, quoting Procunier

v. Martinez, 416 U.S. at 405.

Because prison officials put forth evidence that, in

their experience, racial tensions would be exacerbated if

race were not considered as a factor in double-celling

inmates at the reception centers, they met their burden of

establishing a logical connection between the celling

practice and the goal of preventing violence. The Ninth

Circuit found that petitioner did not meet his burden of

refuting the connection between the CDC’s practice and its

goal of preventing violence. Pet. App. at 21a-22a. Johnson

argued that because racial violence continues to permeate

the CDC, the double-celling practice must not work, and

that because not all gangs are formed along racial lines,

the practice is irrational. Pet. App. 20a-21a. But simply

because the CDC practice is not a “magical elixir,” “does

not mean that pre-existing policies do not work to reduce

violence from being more pervasive than it already is.”

Pet. App. 21a. There is no one practice or policy that can

ameliorate all concerns. Prison officials do their best under

the trying circumstances presented to them.

‘The CDC’s practice furthers a legitimate goal of

preventing violence, operates in a neutral manner that

neither benefits nor burdens any one race, and is ration-

ally related to the goal.

B. There Are Alternative Means of Exercising the

Constitutional Right.

Courts should be particularly conscious of the meas-

ure of judicial deference owed to corrections officials where

other avenues remain available for the exercise of the

asserted right. Turner, 482 U.S. at 90. Petitioner asserts

that his right is to be free of race-conscious decision

making by CDC officials. Pet. App. 23a. As the Ninth

Circuit correctly analyzed it, the right at issue must be

viewed expansively and sensibly.“ Thornburgh v. Abbott,

490 U.S. 417. Thus, the court viewed the right “at a macro

level” in terms of the right to be free from racial discrimi-

nation generally, rather than at the micro level of forcing

officials to disregard race entirely in temporary cellmate

assignments. Pet. App. 23a. This is consistent with the

approach this Court used in Turner when it viewed the

right at stake as “freedom of expression” in its totality,

rather than as the specific right to communicate with

inmates at other prisons. Turner, 482 U.S. at 92.

Here, all other aspects of prison life are fully inte-

grated. Inmates from all races participate together in jobs;

vocational, and educational assignments; dining halls;

exercise yards; and recreation time. J.A. 250a. After the

“ For purposes of these proceedings, respondents do not contest

the conclusion+hat petitioner’s claim of “racial classification” implicates

the Fourteenth Amendment. But while respondents concede that the

practice at issue here is “race conscious,” that “consciousness” is only of

the racial dissimilarity between two potential cellmates; the race per se

of either of the cellmates is of no consequence.

brief period at the reception center, the CDC’s practice is

for inmates to select their own cellmates regardless of

race. J.A. 25la, see J.A. 307a. The inmates’ requests are

then usually granted-unless there are individualized

security reasons for denying them. Jd. The goal in this

process is for inmates to find cellmates with whom they

are compatible. Jd.

The brief period at the reception centers when in-

mates are generally assigned to share a cell with someone

of the same race does not constitute an impingement on

Johnson’s right to be free from racial discrimination

generally.” Given the full integration of the prisons at

every other level, the CDC’s practice meets the alternative

means prong of the Turner test.

C. There Would Be a Significant Impact on Prison

Personnel, Other Inmates, and Resources in As-

signing Reception Center Cellmates Differently.

Courts must also consider what impact accommodat-

ing the inmate’s asserted right would have on prison

personnel, inmates, and the allocation of prison resources.

Turner, 482 U.S. at 90.

Disregarding race altogether in making initial recep-

tion center housing assignments would lead to increased

gang-related racial violence both in the cells and in the

* Amicus United States criticizes respondents for applying the

normal practice to petitioner Johnson when he transferred prisons,

inasmuch as he had already been in the prison system for several years.

U.S. Br. at 23. But the United States ignores the fact that, whatever

information respondents may have had about Mr. Johnson, they likely

had much less information about the inmate with whom Mr. Johnson

would be celled during this transition period.

common areas of the prison. J.A. 250a-25la, 305a-306a.

CDC administrators state that disregarding race would

violate their obligations under the Eighth Amendment to

protect inmates from a known danger. J.A. 201la, 251la,

305a. Because of the limited number of staff available to

oversee the many cells, it “would be very difficult to assist

inmates if the staff were needed in several places at one

time.” J.A. 306a. Consequently, both staff and inmate

safety would be compromised because violence would

increase and staff resources would be stretched beyond the

capacity to adequately respond. Additionally, when prison

resources are diverted to tend to one area of concern, they

are necessarily displaced from other operations, leading to

disruption of services.

Staff would have a difficult time controlling problems

in the individual cells if race were disregarded entirely,

and there would be fights in the cells that would later spill

over to the exercise yards. J.A. 306a, see also 187a. This

“ripple effect” of violence spreading from the cells to the

yards and endangering both inmates and staff is exactly

the kind of thing that the Turner Court counseled requires

particular deference: “When accommodation of an asserted

right will have a significant ‘ripple effect’ on fellow in-

mates or prison staff, courts should be particularly defer-

ential to the informed discretion of corrections officials.”

Turner, 482 U.S. at 90.

Prison officials proffered sufficient evidence to show

that not considering race at all when assigning reception

center cellmates would have a negative impact on guards,

inmates and prison resources.

D. There Are Presently No Reasonable Alternatives.

Lastly, courts must examine whether reasonable

alternatives exist that would fully accommodate the

prisoner’s rights at minimal cost to valid prison interests.

Turner, 482 U.S. at 91. While the practice need not be a

perfect fit to the goal, it cannot be an exaggerated re-

sponse. Jd. at 90. But “prison officials do not have to set up

and then shoot down every conceivable alternative method

of accommodating the claimant’s constitutional com-

rlaint.” Jd. at 90-91. The burden is on the prisoner chal-

enging the regulation, not on the prison officials, to show

chat there are obvious, easy alternatives to the practice or

-egulation. See O’Lone, 482 U.S. at 350.

Petitioner offers no reasonable alternatives. He

suggests that officials could inquire into an inmate’s gang

affiliation, or whether he has a psychological profile

nvolving racial animus, or whether he has a history of

racial violence. J.A. 333a. These suggestions, however,

gnore the fact that such inquiries can take time, and the

inmates still need to be assigned a place to sleep in the

meantime.

With respect to gang affiliation, the Ninth Circuit

pointed out, “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.” Pet. App. 28a, see also J.A. 3l4a

(“gang culture is that [they] do not talk to staff”). If gang

affiliation is known, however, it is taken into account in

the initial cell assignment. J.A. 3l5a (“[it’s] first and

foremost”).

As for the psychological profile or history of violence,

there is no evidence in the record to suggest that there is

time to administer and analyze the necessary history or

testing before the first housing decision is made, nor that

the cost would be minimal. See Turner, 482 U.S. at 91.

Even if officials have information regarding an inmate’s

behavior outside of prison, that is not always an accurate

predictor of in-prison behavior. The Ninth Circuit correctly

observed that “(t]he CDC cannot accurately gauge an

inmate’s propensity for violence without first observing

him in this new environment.” Pet. App. 29a.

It is important to remember that the practice at issue

is what officials do when prisoners first “get off the bus”

after arriving at the prison. They must be housed some-

where, and the decisions must be made immediately.

Processing more than 110,000 inmates per year does not

allow officials the luxury of relaxed reflection when in-

mates are first arriving. Overcrowding at the reception

centers is acute, and single-cells must be limited to accom-

modating the most serious safety- or inmate-management

concerns. 2

Further, once reception center cellmates have been

assigned, it would make no sense to reassign cellmates

before the classification process is complete and the

inmates are transferred to their permanent assignments.

To do so would result in co tly rehousing inmates,

further expending already strained prison resources.

Moreover, if the point would be to remedy the initial race-

conscious cellmate assignment, officials would have to

make a second race-conscious decision in order to ensure

maximum integration. And if the inmate would end up

double-celling with a member of his own race upon reas-

signment, as will inevitably happen in some cases accord-

ing to the rules of chance, then the reassignment would

have been pointless. Therefore, once the initial assignment

is made and the classification process has started, it is

best to allow that process to be completed without making

more temporary housing assignments.

Not only has petitioner not shown any ready alterna-

tives to the CDC’s practice, he has failed to consider the

duty of the officials to take reasonable measures to protect

inmates from a known risk of harm. The Ninth Circuit,

however, did not ignore that duty when it recently denied

qualified immunity to officials who did not take inmates’

race into account when releasing them to exercise yards,

concluding that the officials were aware that placing

inmates of different races on the exercise yards at the

same time presented a serious risk of harm. J.A. 30a,

Robinson v. Prunty, 249 F.3d 862, 866-68 (9th Cir. 2001).

Just as with yard releases, officials must be cognizant of

the dangers presented and take reasonable measures to

deter violence when placing unknown inmates together in

small cells.

The CDC's practice is not an exaggerated response; it

is a measured response that is done to protect inmates and

staff from in-cell violence. The practice satisfies the fourth

prong of the Turner test.

III.

EVEN UNDER A STRICT SCRUTINY ANALYSIS,

THE CDC’S TEMPORARY HOUSING PRACTICE IS

CONSTITUTIONAL.

A. Remand is Appropriate.

If this Court decides that strict scrutiny is the appro-

priate standard and if it finds the CDC’s practice does not

meet that standard on the evidence presented, the Court

should consider remanding that issue to the district court

because the evidentiary record was not developed with the

aim of proving compliance with the strict scrutiny stan-

dard. See Lucas v. So. Carolina Coastal Council, 505 U.S.

1003, 1033 (1992) (when new legal standard announced,

case remanded to develop necessary facts). When the

Ninth Circuit first considered this case, it reversed a

Federal Rule of Civil Procedure 12(b)(6) dismissal and

cited both Lee and Turner for the proposition that inmates

may not be discriminated against; there was no discussion

of strict scrutiny in the opinion. Johnson v. State of Cali-

fornia, 207 F.3d 650, 655 (9th Cir. 2000). Moreover, the

district court’s order that was the subject of the first

appeal specifically stated that Turner applied to the equal

protection claim.” The defendants’ discovery, which was

taken after remand, was focused on meeting the rational

relationship test of Turner, rather than strict scrutiny,

given the Ninth Circuit’s and the district court’s citations

to Turner and the absence of any indication by either court

that strict scrutiny applied.

Under a Turner analysis, evidence of alternative

means is not material unless a plaintiff shows that the

officials’ actions are an exaggerated response. See, e.g.,

Turner, 482 U.S. at 90. As the Ninth Circuit found, peti-

tioner did not meet his burden on that prong. Pet. App.

27a-3la. There was, therefore, no reason for respondents

to produce evidence regarding alternative means that

* “Plaintiff must plead that the Defendant's alleged action in

segregating inmates was not reasonably related to any legitimate

penological interest.” July 1, 1997 Report and Recommendation of

United States Magistrate Judge at 10, citing Turner, adopted in its

entirety by the district court’s January 8, 1998 Order. District Court

docket numbers 58 and 62, respectively. See J.A. 25a-26a.

would now be relevant to determine whether their actions

were narrowly tailored to further the purpose of minimiz-

ing violence. Also, the burden to refute the officials’ justifi-

cation for the challenged policy lies with the inmate, not

the prison officials. Overton, 539 U.S. at 132. Because

respondents would have a higher evidentiary threshold

and production burden to meet if strict scrutiny applied, it

would be equitable to the parties and beneficial to the

court below to further develop the evidentiary record.

B. The Practice Advances a Compelling Govern-

mental Interest.

If this Court concludes that Turner v. Safley does not

apply in this case, and if it finds that remand is not

appropriate, the prison’s practice would still satisfy strict

scrutiny. When race-based action is necessary to further a

compelling governmental interest, such action does not

violate equal protection so long as the action is narrowly

tailored to the governmental interest. Grutter v. Bollinger,

539 U.S. at 327.

All states have a compelling interest in maintaining

the order and security of their prisons. See, e.g., Pell v.

Procunier, 417 U.S. 817, 823 (1974) (“[Cjentral to all other

corrections goals is the institutional consideration of

internal security within the corrections facilities them-

selves.”). There is no evidence that the CDC’s practice is

done for any other reason than to further prison security

and for the safety of the inmates and staff. The question

here is whether the CDC’s practice is narrowly tailored to

further that compelling interest.

C. The Practice is Narrowly Tailored.

When analyzing whether a race-conscious decision is

narrowly tailored, “the inquiry must be calibrated to fit

the distinct issues raised.” Grutter, 539 U.S. at 333-34.

The very specific issue here is the propriety of making a

race-conscious decision, which generally will only impact

the inmate for a maximum of sixty days, and sometimes

for as few as fourteen days, in order to protect inmates’

and staff members’ safety.

In order to pass constitutional muster, a race-

conscious practice must “not unduly harm members of any

racial group.” Grutter, 539 U.S. at 341. As previously

discussed, this short-term practice applies to every inmate

regardless of race; no benefit is conferred nor burden is

suffered by any particular race; no specific cells are set

aside for any race; and all other aspects of prison life -

jobs, meals, and the like — are race neutral. Safety is the

primary consideration in the celling process, not the race

per se of any inmate. It is only the race of the inmate as

compared to his prospective cellmate and the potential

ensuing hostility from as-yet unknown gang affiliations

that is examined.

The Grutter Court’s opinion also emphasized that an

equal protection claim must be analyzed in relation to the

specific circumstances under which it arises: “Context

matters when reviewing race-based governmental action

under the Equal Protection Clause. ... Not e-ery decision

influenced by race is equally objectionable and strict

scrutiny is designed to provide a framework for carefully

examining the importance and the sincerity of the reasons

advanced by the governmental decisionmaker for the use

of race in that particular context.” 539 U.S. at 327 (inter-

nal citations omitted). In Grutter, the Court applied strict

scrutiny while deferring to school officials’ decisions and

“taking into account complex educational judgments in an

area that lies primarily within the expertise of the univer-

sity.” Id. at 328. Deference in the prison context is at least

as critical as in the university setting. Prison is a hostile

environment populated by felons — many of whom are

murderers — where the prevention of violence is a para-

mount concern. Managing the complex interaction be-

tween inmates with histories of anti-social behavior who

are housed together in small, confined cells is a formidable

task. Add race-based rivalries and gang affiliations to the

brew and the cauldron fairly boils over. The expertise of

officials in assessing the risk of danger at the reception

centers and exercising caution in their practices until they

can make more informed decisions should not be taken

lightly.

Amicus former state corrections officials criticize

respondents’ practices based on studies conducted by

Trulson and Marquart after compulsory integration of the

Texas Prison System. Those studies, however, examined

double-celling only after initial screening and background

investigation were completed on the respective cellmates.

Notably, the initial diagnostic facilities - Texas’s equiva-

lent of California’s reception centers — were not required to

be integrated at the cell level. See Chad Trulson, James W.

Marquart, The Caged Melting Pot: Toward an Understand-

ing of the Consequences of Désegregation in Prisons, 36

Law & Soc’y Rev. 743, 753 n.13 (2002). Moreover, there is

other relevant evidence that “uninformed” compulsory

integration in initial receiving facilities can cause an

eruption of serious violence. See White v. Morris, 832

F. Supp. at 1130 (during negotiations to end Ohio prison

riot, and after, inmates repeatedly cited integrated celling

as factor contributing to tense atmosphere).

Even under the Texas consent decree and subs« quent

court orders, the prisons could still take race into account

when making permanent housing cell assignments if a

particular inmate had been found to be ineligible to share

a cell with an inmate of a different race. For instance, if

the inmate were a confirmed member of a gang that

divided along racial and ethnic lines or if he had previous

race-related problems in prison (defined as three racially

motivated incidents in the past two years), he would be

ineligible for cross-racial double-celling. See Trulson,

supra at 755. But here, that information is not available

upon the inmate’s initial entry into the system.

California’s practice of celling inmates of the same

race together in the reception centers is simply the offi-

cials’ first cut at separating potentially dangerous enemies

from one another. There is no presumption that inmates of

one race or another are, in fact, members of a gang. It only

makes sense, though, to assume that if one or both of the

occupants of a two-man cell is a member of a race-based

gang, which is generally not known at that point, the

cellmates will be likely to engage in cross-racial violence.

If the officials had all of the necessary information to

assess the inmates’ violence potential when the inmates

arrived, perhaps a different practice could be used. But

unlike the federal system, where the inmates generally

are in federal custody from the moment they are arrested,

state inmates are in county custody until they are con-

victed and later transferred to the custody of the CDC.

And unlike the federal Bureau of Prisons, which can pre-

screen its prisoners before they arrive at its prisons, the

CDC has no such opportunity.” The counties are under no

obligation to pre-screen state inmates, and, in fact, the

counties are only required to provide the inmates’ ab-

stracts of judgments and criminal identification numbers,

and proof that they are medically fit to be transported.

Cal. Penal Code § 1216. The CDC cannot feasibly pre-

screen the inmates either. The CDC receives inmates from

all of California’s fifty-eight counties and it would be

impossible at current staffing levels for the CDC to send

its classification, medical, and psychiatric personnel to

every one of the hundreds of county facilities to conduct

pre-commitment screening procedures. There is no other

viable way for the CDC to have all of the necessary infor-

mation to safely double-cell inmates of different races

when they arrive at the reception centers.

In sum, viewing the specific context of the CDC’s

practice, as Grutter requires, shows that the practice is

brief, indiscriminate, and narrowly tailored to fit the

compelling interest of preventing violence in prison.

” And, unlike the BOP’s population, 54 percent of whom are

incarcerated for drug offenses and only 3.2 percent for murder, aggra-

vated assault, or kidnapping, the CDC’s population is comprised of far

more violent offenders, 22 percent of whom are incarcerated for

homicide, assault with a deadly weapon, or kidnapping. See Bureau of

Prisons, Quick Facts, available at http://www.bop.gov/; California Dep’t

of Corrections, California Prisoners and Parolees 2002 tbl. 9, available

at http://www.cdc.state.ca.us/OffenderInfoServices/Reports/Annual/Cal

Pris/CALPRISd2002. pdf

44 45

IV. CONCLUSION

REGARDLESS OF WHAT STANDARD APPLIES, The judgment of the Court of Appeals should be

RESPONDENTS GOMEZ AND ROWLAND ARE

ENTITLED TO QUALIFIED IMMUNITY.

Constitutional requirements are not always clear-cut

at the time that action is required by officials. Saucier v.

Katz, 533 U.S. at 205-06. But qualified immunity ensures

that officials are on notice that their conduct is unlawful

before they are subjected to suit. Jd. It therefore prevents

officials from being distracted from their governmental

duties or inhibited from taking necessary discretionary

action. Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982). It

also prevents “deterrence of able people from public

service.” Jd. And in reference to prisons, it allows officials

to utilize their expértise — based on years of observation

and practice — to maintain order without fear of liability

for doing what seemed reasonable at the time.

In Saucier v. Katz, this Court explained that an

official is entitled to qualified immunity unless: (1) the

plaintiff alleged facts that show a constitutional violation

and (2) it was clearly established, at the time, that the

conduct was unconstitutional. 533 U.S. at 201. As dis-

cussed above and as the Ninth Circuit held, respondents’

actions did not violate equal protection. Nevertheless, even

if this Court were to disagree and rule that the petitioner

has proven a constitutional violation, the state of the law

and what constitutional standard applied were unsettled

when the officials acted. For these reasons, respondents

Gomez and Rowland are entitled to qualified immunity

from damages.

affirmed.

Dated: August 6, 2004

Respectfully submitted,

BILL LOCKYER

Attorney General of the

State of California

MANUEL M. MEDEIROS

Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

FRANCES T. GRUNDER

Senior Assistant Attorney General

Counsel of Record

SARA TURNER

Supervising Deputy Attorney

General

Counsel for Respondents

Gomez and Rowland

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.