# Appendix — Davis v. Armstrong

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1701%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 812

## Text

Supreme Court, U.S.
TLE D

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- Y 11502 APR -9 2008
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IN THE SUPREME COURT OF THE UNITED STATES
| OCTOBER TERM, 2001

GRAY DAVIS, et al.j Petitioners,
V.

JOHN ARMSTRONG, et al., Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER
Attorney General of the State of Califeimia
ROBERT R. ANDERSON
Chief Assistant Attorney General
PAUL D. GIFFORD
Senior Assistant Attorney General
SUSAN DUNCAN LEE
Sr. Supervising Deputy Attorney General
*FRANCES T. GRUNDER
Supervising Deputy Attorney General
*Counsel of Record
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5723
Fax: (415) 703-5843

Counsel for Petitioners

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN ARMSTRONG, JAMES AMAURIC;
RICHARD PONCIANO; JACK SWENSEN; BILLY
BECK; JUDY FENDT; WALTER FRATUS;
GREGORY SANDOVAL; DARLENE MADISON;
PETER A. RICHARDSON; STEVEN HILL;
DAVID ROSE; DAVID BLESSING; ELIO
CASTRO; ELMER UMBENHOWER; RAYMOND
HAYES; GENE HORROCKS; KIAH MINCEY;
CLIFTON FEATHERS; WILLIE JOHNSON;
DAVID BADILLO; JAMES SIMMONS; FLORA
ABRAMS; JOEY GOUGH; TIMOTHY WHISMAN, No. 00-15132

Plaintiffs-Appellees, D.C. No.
CV-94-02307-CW

. OPINION
GRAY DAVIS, Governor of the State of California;
ROBERT PRESLEY, Secretary of the Youth and
Adult Correctional Agency; JAMES NIELSEN,
Chairman of the Board of Prison Terms;
CALIFORNIA BOARD OF PRISON TERMS,
DOES 1-100, In Their Individual and Official
Capacity,

ern eg —

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted
April 12, 2001—San Francisco, California F

Filed November 28, 2001 :

Before: Stephen Reinhardt, A. Wallace Tashima, and
Marsha S. Berzon, Circuit Judges.

Opinion by Judge Reinhardt;
Concurrence by Judge Berzon.

2a

SUMMARY

Individual Rights/Disabilities

The court of appeals affirmed a judgment of the district
court in part, reversed in part, and remanded. The court held
that disabled prisoners and parolees establish "actual injury"
sufficient to assert claims on behalf of a class by showing that
they were subjected to discriminatory treatment by the
California Board of Prison Terms on account of their disabilities
in violation of both the Americans with Disabilities Act (ADA)
and the Rehabilitation Act.

Appellees were a class of prisoners and parolees suffering
from six categories of disability, including mobility
impairments, hearing disabilities, visual disabilities, learning
disabilities, mental retardation, and renal impairments. The
disabled prisoners and parolees sued appellants, including state
officials and the California Board of Prison Terms (collectively,
the Board), alleging that California's parole and parole
revocation hearing policies and practices discriminated against
them on the basis of disability by failing to provide them with
adequate accommodations in violation of the ADA and the
Rehabilitation Act. The district court found that the Board
failed to mee proper accommodations for the disabled
prisoners and parolees, with the result that a number of such
individuals forfeited their rights to parole and parole revocation
hearings and appeals, while others were unable to represent
themselves adequately at such proceedings, all in contravention
of federal law. Following a 10-day bench trial, the district court
determined that the Board's written policy did not comply with
the requirements of the ADA and that the Board engaged in
systematic and widespread discrimination which violated the.

3a

ADA and the Rehabilitation Act. The district court entered a
system-wide injunction requiring the Board to modify its
policies and practices to comply with federal statutory and
constitutional standards.

The Board appealed, challenging the disabled prisoners and
parolees’ standing, class certification, and the propriety and
scope of injunctive relief. The Board did not challenge the
district court's decision on the merits.

[1] In order to assert claims on behalf of a class, a named
plaintiff must have personally sustained or be in immediate
danger of sustaining some direct injury as a result of the
challenged statute or official conduct. The harm suffered by a
plaintiff must constitute actual injury. When a plaintiff seeks
prospective injunctive relief, he must demonstrate that he is
realistically threatened by a repetition of the violation. [2]
When a court, through its specific factual findings, documents
the threat of future harm to the plaintiff class and establishes
that the named plaintiffs are personally subject to that harm, the
possibility of recurring injury ceases to be speculative, and
standing is appropriate. The district court made such findings
and the Board did not challenge those findings on appeal.

[3] The Board's written policy did not comply with the
requirements of the ADA. The disabled prisoners and parolees
were injured by the Board's failure to comply with the ADA's
requirements. They suffered discrimination on account of
disability as a consequence, including the impairment or loss of
services or programs provided by the Board. The Board's
failure to comply also made likely the recurrence of such
injuries in the immediate future.

[4] In conjunction with the Board's written policy, its
practice throughout the parole and parole revocation process
routinely deprived disabled prisoners and parolees of their rights
under the ADA. As in the case of its written policy, the Board's
practices warranted the holding that the realistic repetition

oy ual

4a

requirement had been met, and that the named plaintiffs had
established standing.

[5] The named disabled prisoners and parolees were
injured by the Board's policies and practices relating to its
parole and parole revocation proceedings: they were subjected
to discriminatory treatment on account of their disabilities in
violation of both the ADA and the Rehabilitation Act. This
treatment was sufficient to constitute an actual injury.

[6] Under Federal Rule of Civil Procedure 23(a), one or
more members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims or defenses of
the representative parties are typical of the claims or defense of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class.

[7] In acivil rights suit, commonality is satisfied when the
lawsuit challenges a system-wide practice or policy that affects
all of the putative class members. In such circumstance,
individual factual differences among the individual litigants or
groups of litigants will not preclude a finding of commonality.
The differences that existed as to the particular disabilities of
the disabled prisoners and parolees did not justify requiring
groups of persons with different disabilities, all of whom
suffered similar harm from the Board's failure to accommodate
their disabilities, to prosecute separate actions. The
commonality requirement was met.

[8] When the challenged conduct is a policy or practice
that affects all class members, the underlying issue presented
with respect to typicality is similar to that presented with respect
to commonality. In such a case, the typicality inquiry involves
comparing the injury asserted in the claims raised by the named
plaintiffs with those of the rest of the class. The injuries to the
disabled prisoners and parolees were identical. They all

5a

suffered a refusal or failure to afford them accommodations as
required by statute, and are objects of discriminatory treatment
on account of their disabilities.

[9] The scope of injunctive relief is dictated by the extent
of the violation established. The key question is whether the
inadequacy complained of is in fact widespread enough to
justify system wide relief. System-wide relief is required if the
injury is the result of violations of a statute or the constitution
that are attributable to policies or practice pervading the whole
system, or if the unlawful policies or practices affect such a
broad range of plaintiffs that an overhaul of the system is the
only feasible manner in which to address the class's injury. [10]
System-wide injunctive relief was justified by the district court's
findings of fact setting forth the injuries suffered by the disabled
prisoners and parolees.

- [11] In determining the scope of injunctive relief that
interferes with the affairs of a state agency, it must be ensured
that the injunction is not overly intrusive and unworkable and
would not require for its enforcement the continuous
supervision by the federal court over the conduct of state
officers. These concerns have been codified in the Prison
Litigation Reform Act (PLRA). [12] The district court
specifically made the findings required by the PLRA, and
narrowly tailored the injunction to remedy only those violations
of the ADA and Rehabilitation Act established in the district
court's findings of fact. [13] The relief granted was appropriate
and the court order complied with the PLRA.

Judge Berzon concurred, writing that the injunction
suffered none of the standing or other defects that would
preclude equitable relief.

6a

COUNSEL:

James M. Humes, California Attorney General, San Francisco,
California, for the defendants-appellants.

Donald H. Specter, San Quentin, California; Arlene B.
Mayerson, Berkeley, California; Michael W. Bien, San
Francisco, California; Elaine B. Feingold, Berkeley, California;
Eve Shapiro, San Francisco, California; Warren E. George, San
Francisco, California; Shawn Everett Hanson, San Francisco,
California; for the plaintiffs-appellees.

OPINION:
REINHARDT, Circuit Judge:

The facts established at trial, and not disputed on appeal,
demonstrate that the State of California regularly discriminated
against disabled prisoners and parolees during its parole and
parole revocation hearing processes. The district court found
that the California Board of Prison Terins (the state parole
authority) failed to make proper accommodations for numerous
disabled prisoners and parolees, with the result that a number of
such individuals forfeited their rights to parole and parole
revocation hearings and appeals, while others were unable to
represent themselves adequately at such proceedings, all in
contravention of federal law. Following a ten-day bench trial,
the district court held that the defendants engaged in systematic
and widespread discrimination which violated the Americans
with Disabilities Act and the Rehabilitation Act, holdings that
the state officials and agency do not now challenge on the
merits. The district court entered a system-wide injunction
requiring the Board to modify its policies and practices to
comply with federal statutory and constitutional standards.

7a

On appeal, the Board asks us to dissolve the district court's
injunction principally for the following reasons: (1) the
plaintiffs lack standing to challenge its policy; (2) the district
court must defer to the Board's decisions as long as they
potentially further any penological interest; (3) the plaintiffs’
settlement agreement with the Department of Corrections
prohibits injunctive relief for any acts the Board delegates to
the Department; (4) the plaintiff class was improperly certified
and is not entitled to system-wide relief; (5) and the Prison
Litigation Reform Act and federalism concerns preclude the
type of injunctive relief ordered. In addition, the Board argues
that plaintiffs have no due process right to a parole hearing. We
have jurisdiction to hear this interlocutory appeal under 28
U.S.C. § 1292.

I. BACKGROUND

The instant action was brought by a class of prisoners and
parolees suffering from six categories of disability: mobility
impairments; hearing disabilities, visual disabilities; learning
disabilities; mental retardation; and renal impairments. Initially,
the plaintiff class sued two divisions of the California Youth
and Adult Corrections Authority (Agency or YACA): the Board
of Prison Terms (Board or BPT) and the California Department
of Corrections (Department or CDC). The divisions have
different areas of responsibility regarding prisoners and
parolees. The plaintiffs alleged that the state's policies and
practices as implemented by both divisions discriminated
against them on the basis of disability in violation of the
Americans with Disabilities Act (ADA) and section 504 of the
Rehabilitation Act, as well as violated the due-process clause of
the Fourteenth Amendment.

By agreement of the parties, litigation against the two
divisions was bifurcated and proceeded on two separate tracks.
This appeal involves only the order and injunction directed to
the Board of Prison Terms and certain state officials responsible
for its operations, and not the separate order and injunction

8a

addressed to the Department of Corrections. Neither the Board
nor the state officials challenge the district court's conclusions
that they engaged in system-wide violations of the ADA and
Rehabilitation Act.

A. Parties

The named plaintiffs are prisoners sentenced under
California Penal Code § 1168 to life with the possibility of
parole who complain that the Board failed to provide them with
adequate accommodations at a variety of parole hearings, and
parolees who complain about the lack of accommodations
- during the parole revocation process.”

The defendants in the part of the case now on appeal are
Gray Davis, the Governor of the State of California; Robert
Presley, Secretary of the Youth and Adult Correctional Agency;
James Nielsen, Secretary of the Board of Prison Terms; and the
Board itself. The Agency oversees the activities of its various
boards and departments, including the Board of Prison Terms.”

|. The life prisoners are: Elio Castro, who is mentally retarded and
partially deaf; James Simmons, who is developmentally disabled; Raymond
Hayes and Gene Horrocks, both of whom are mobility impaired; and Clifton
Feathers and Willie Johnson, both of whom are visually impaired. The
parolees whose paroles were revoked are: Joey Gough, Flora Abrams,
Timothy Whisman, and David Badillo, all of whom are developmentally or
learning disabled; David Rose and David Blessing, who are hearing
impaired; Elmer Umbenhower, who is mobility impaired; and Kiah Mincey,
who is visually impaired. Four of the parolees (Gough, Rose, Blessing, and
Umbenhower) were incarcerated at the time of the bench trial before the
district court. It is unclear from the Third Amended Complaint whether the
remaining class representatives, John Armstrong, Judy Fendt, Walter Fratus,
and Gregory Sandoval, challenge conditions at hearings offered to life
prisoners or parolees.

2.

"The Youth and Adult Correctional Agency consists of the
Department of Corrections, the Department of the Youth Authority, the
Board of Prison Terms, the Youthful Offender Parole Board, the Board of
Corrections, and the Narcotic Addict Evaluation Authority." Cal. Gov't Code
§ 12811.

9a

As the Secretary of the Agency, defendant Robert Presley is
directly responsible to the Governor, for the operations of each
department within the Agency. The Secretary is a member of the
Governor's Cabinet, and advises the Governor on correctional
matters and on any changes —— to properly conduct the
work of the Agency.

As noted, plaintiffs initially sued two of YACA's divisions
in this lawsuit: the California Department of Corrections and the
Board of Prison Terms. The Department, which is not a party
to the portion of the action on appeal, is responsible for all
relevant aspects of prisoners' and parolees' lives, except that it
does not Rave authority over parole and parole revocation
hearings.” That authority is vested in the Board, which is one
of the parties to this appeal.

The Board serves as the parole authority for the State of
California, see Cal. Penal Code § 3000(b)(7). It conducts parole
hearings for prisoners sentenced to a term of life with the
possibility of parole, who are the only adult prisoners subject to
such hearings under California law.” See Cal. Penal Code § §
1168, 1170. In addition, the Board conducts revocation
hearings for parolees accused of violating conditions of parole,
Cal. Penal Code § 2645, and revocation extension hearings for
prisoners who allegedly commit an offense while incarcerated
because they have had their parole revoked.” Finally, the Board

>. The Department monitors the prisoners' behavior while on

parole: it does so through the Parole and Community Services Division. See
Cal. Penal Code § § 2400-2402, 5001-5003, 5054. See also Terhune v.
Superior Court, 76 Cal. Rptr. 2d 841, 847 (Cal. 1988) (in bank) (parolee
“under the legal custody of the Department").

4. Prisoners sentenced to lesser terms, under California's

Determinate Sentencing Law, see Cal. Penal Code § 1170, are released on
parole dates that are computed by the prison authorities pursuant to
established rules.

5.

All paroled prisoners are subject to supervision by state
authorities, as well as to the possible revocation of their parole. Appeals

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10a

also conducts various custody hearings for offenders who are
designated mentally disordered or sexually violent. It is the
Board's discriminatory policies concerning against the disabled
that form the basis for this appeal.

B. Procedural History
1. Pre-Trial Proceedings

Pursuant to a "settlement agreement" entered into in its part
of the instant case, the Department (which is not involved in the
present appeal) filed a motion regarding the applicability of the
ADA and Rehabilitation Act as applied to prisons. The
agreement provided that if the district court held the Acts
applicable, the Department would be found liable. The
stipulation explicitly stated, however, that it did "not resolve any
issues between plaintiffs and the Board of Prison Terms or
defendant Nielsen." The district court denied the Department's
motion for summary judgment, held that the two statutes are
applicable to prisons, entered a remedial order and permanent
injunction, and certified the issue of the applicability of the Acts
to the Department for interlocutory appeal. We affirmed the
district court's holding on that issue.”

from parole revocation and parole revocation extension hearings are also
conducted by the Board.

® The settlement agreement provided that, "if the Court determines
that the ADA and § 504 apply to the California Department of Corrections,"
the court would enter an injunction "to require defendants to operate
programs, activities, services and facilities of the California Department of
Corrections in accordance with the Americans with Disabilities Act — §
504 of the Rehabilitation Act of 1973."

”. This court has already decided two appeals on the Department's
side of this litigation. See Armstrong v. Wilson, 124 F.3d 1019 (9th Cir.
1997) (appeal from the denial of summary judgment); Armstrong v. Davis,
215 F.3d 1332, (9th Cir. 2000) (table) (appeal from injunctive relief). The
appeal before us is the first on the Board's side.

lla

Plaintiffs continued to litigate their action against the
Board. On January 5, 1998, the district court entered the parties’
stipulation and order amending the class by including
developmentally disabled prisoners so that the class" consists of
all present and future California state prisoners and parolees
with mobility, sight, hearing, learning, developmental and
kidney disabilities that substantially limit one or more of their
major life activities." Plaintiffs filed a second amended
complaint reflecting the amended class designation, and named
the defendants listed in the caption of this appeal, as well as a
number of other individuals who were associated with the
Department.

The Board moved to dismiss or strike all defendants other
than Nielsen and the Board from the Second Amended
Complaint, arguing that the "settlement agreement "had
resolved the plaintiffs' claims against them.” The court denied
the Board's motions (other than as to the Director of the
Department and his subordinates), on the ground that the
Second Amended Complaint did not involve claims addressed
in the settlement agreement, and that it did not constitute an
attempt to retry the merits of those claims, nor to enforce the
agreement collaterally. Thus, the court allowed the case against
Governor Davis and Secretary Presley to proceed with respect
to the matters now before us. Finally, at pre-trial conference,
plaintiffs moved to amend their complaint by adding three more
named plaintiffs. Defendants did not object, and the third
amended complaint was filed on April 7, 1999.

8. The Board also moved to dismiss the second amended complaint
for failure to exhaust alternative judicial remedies as required by Heck v.
Humphrey, 512 U.S. 477 (1994), and because the Board is not a "person"
within the scope of § 1983. Plaintiffs withdrew their § 1983 action against
the Board, but continued to sue Nielsen in his official capacity. The court
held that the plaintiffs could sue Nielsen under § 1983 and, because they
were not challenging the length of their confinement, were not required to
exhaust alternative judicial remedies.

12a
2. Trial

The parties engaged in a ten-day bench trial before the
district court.” Based on the testimony of multiple witnesses,
many of them Board employees, the court found that the Board's
parole notification, hearing, and appeals process depended to a
great extent on written forms.*” Whether in prison or outside,
disabled prisoners and parolees were provided with inadequate
accommodations to help them understand the content of those
forms,’ and as a consequence some plaintiffs waived their
rights to a hearing and others failed to invoke their rights on
appeal. Even if disabled prisoners or parolees made it to the
hearing, a variety of barriers made participation extremely

difficult and access to the facilities impractical."

>» As we have noted, defendants do not appeal the court's factual
findings.

10. (T]he BPT . . . relies on extensive written communications, and
some verbal interaction, to make . . . decisions [concerning parole or parole
revocation]... The BPT relies on written notices and forms to communicate
vital information about prisoners’ and parole status, and the BPT's
procedures, to those prisoners and parolees.

1. “Defendants' forms and notices are not provided in alternative
forms suitable for prisoners and parolees with vision or hearing impairments,
or for learning or developmentally disabled prisoners or parolees.
Furthermore, Defendants’ policies and procedures for access to supporting
documents and files, screening offers, hearings and appeals do not allow for
effective communications with Plaintiff class members."

"[T]here are numerous examples of the BPT's failure to provide
such auxiliary aids and services. . . . [T]he BPT failed to provide effective
American Sign Language interpretation services to hearing impaired
prisoners and parolees, failed to provide Braille materials, large print
materials, audio tapes or qualified readers for visually impaired prisoners
and parolees, failed to provide qualified readers for learning disabled
prisoners and parolees, and failed to provide trained staff capable of
effectively communicating with mentally retarded or learning disabled
prisoners and parolees."

- Among other violations . . . the BPT has failed to modify its

13a

The district court held that the Board failed to implement
"a number of specific requirements [prescribed by the
regulations implementing the ADA] designed to ensure that the
framework exists for a public entity to carry out the substantive
mandates of the ADA." Most particularly, the Board's
mandatory self-evaluation plan was conducted "more than four
years late [and] is inadequate." Similarly, the district court
held that the Board's transition plan was" inadequate," and that
the notice provided to prisoners and parolees was "insufficient
to apprise prisoners and parolees of the ADA's ‘applicability to
the services, programs, or activities’ of the BPT or to ‘apprise
such persons of the protections against discrimination assured
them by' the ADA." Both the transition plan and the notice
forms were completed five years late. The court also held that
the Board failed to provide the required ADA grievance
procedures.

Ultimately, the district court held that the Board was not in
substantial compliance with the ADA or the Rehabilitation Act,
and that it routinely denied plaintiffs their rights under the Due
Process Clause of the United States Constitution.

programs to remedy . . . accessibility and communications barriers.
Moreover, the BPT has failed to consider disabled prisoners’ inability to
participate in the vocational and educational programs of the CDC when
considering whether to recommend a life prisoner for parole."

13. "The BPT's self-evaluation did not address the screening

process, appeal process, adequacy of forms or other important element's of
the BPT's programs and activities."

14.

"The Self-Evaluation and Transition plan did not identify a
single barrier to access, an omission which Plaintiffs’ expert . . . had never
encountered in the hundreds of Self-Evaluation and Transition Plans he has
reviewed. . . . Accordingly, the . . . Plan did not discuss the methods or
standards to use to eliminate or mitigate physical and communicative
barriers to accessing the BPT's programs and services."

14a
3. Injunctive Relief

After finding in favor of the plaintiffs, the district court
entered an injunction requiring the Board to evaluate its
policies, procedures, and facilities, as mandated by the ADA; to
propose new policies and procedures to bring the Board into
compliance with the Act, and then to attempt to reach an
agreement on them with plaintiffs; to take specific steps toward
ensuring that the facilities it uses are accessible; and to
determine, with the participation of plaintiffs, the manner in
which the Board's compliance with the injunction should be
monitored. The injunction applies to:

all hearings conducted by the BPT to determine
whether and/or when a prisoner or parolee should be
released on parole or involuntarily confined,
including parole revocation and revocation extension
hearings, life prisoner hearings (documentation
hearings, progress hearings, parole hearings, parole
consideration hearings, parole date rescission
hearings and parole board rules hearings), mentally
disordered offender hearings and sexually violent
predator hearings. Parole proceedings also include
any events related to the hearings that occur prior to
or after the hearings, including, but not limited to,
screening offers, psychological evaluations, central
file reviews and administrative appeals.

The court required the Board to hire a full-time ADA
coordinator and to do over its Self-Evaluation and Transition
Plan, this time according to standards set by the court. To
comply with the injunction, the Board was required to redraft its
policies to ensure that prisoners and parolees are provided with
effective communications or otherwise "able to participate, to
the best of their abilities, in any parole proceeding." The Board
was to identify in advance of such proceedings which prisoners
have a disability, create and maintain a system for tracking
disabled prisoners and parolees, and provide them with

15a

accommodations at parole and parole revocation proceedings.’
Under the terms of the injunction, the Board was also ordered
to: revise all BPT forms used by prisoners and parolees to make
them more comprehensible; provide alternative formats for all
BPT forms used by prisoners and parolees; desist from
shackling, during parole and parole revocation proceedings, the
hands of hearing-impaired prisoners or parolees who use sign-
language to communicate, unless prior approval is obtained;
provide accommodations for prisoners or parolees who need to
review their files in preparation for parole or revocation
proceedings; provide accommodations for prisoners or parolees
filing appeals from such proceedings; and establish grievance
procedures by which prisoners may complain about ADA
violations. Every official to whom the Board assigned
responsibility for communicating with or supervising prisoners
or parolees, including the Department's district hearing agents:
and correctional counselors, was required to undergo training in
the general requirements of the ADA, disability awareness, the
appropriate method of determining whether a prisoner
adequately understands written and verbal communications, and
other relevant policies and procedures developed in response to
the injunction.

The court also ordered the Board to determine which
facilities used to conduct parole proceedings were in
compliance with the administrative regulations implementing
the ADA; inform the Department of the facilities that were not
fully accessible;** publish a description of any structural
modifications to a facility that will make the parole proceedings
accessible or identify another accessible location in which the
proceedings will be held; and provide a schedule for making

proceedings accessible for prisoners and parolees with

!5. The court order requires the Board to give the prisoner's or

parolee's requested accommodation primary consideration when determining
what accommodation to provide.

16. The Board was additionally to describe what parts of the facility
are not accessible and what disabilities are not accommodated.

he
‘
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l6a

disabilities at each Department facility or at an alternative
accessible location. It did not, however, order the Board to make
any physical changes to facilities, and it did not order the
Department to take any action at all.

After engaging in the negotiations required by the
injunction, the Board and the plaintiffs submitted a stipulation
and proposed order, which was entered by the court, that
delineated the "policies and procedures . . . developed by
defendants pursuant . . . to the injunction and which fulfil [its]
policy development obligations." The Board's new policies
complied completely with the terms of the injunction. At oral
argument before this court, the Board represented that it had
implemented most of the new policies and practices agreed
upon in the stipulation, that the court-ordered compliance with
federal law did not cause it any practical difficulties, and that
the outcome of this lawsuit would not affect the implementation
of those policies and practices. Nevertheless, it determined that
this appeal should be pursued.

II. DISCUSSION

A district court's decision to grant prospective, system-
wide injunctive relief is usually the product of a series of
procedural decisions as well as a determination on the merits of
the case. This case was no different. On appeal, however, the
Board does not challenge the underlying merits decision, but
instead raises a number of primarily procedural objections to the
injunction. The Board challenges plaintiffs’ standing, class
certification, and the propriety and scope of injunctive relief. It
argues that the named plaintiffs do not have standing to seek
prospective relief; that, if they do, any relief should be limited
to the named plaintiffs; that system-wide relief is not warranted
for a number of reasons; that the injunction is not narrowly
tailored to the injury asserted; that the injury and the acts
required to remedy that injury are chargeable to the Department,
not to it, and that the decree in the Department portion of the
case precludes further relief in such circumstances; and, finally,

17a

that it is excused from compliance with the requirements of the
ADA and the Rehabilitation Act in this case by virtue of
legitimate penological justifications. In addition, appellees
argue that defendants Gray Davis and Robert Presley should be

dismissed.

We start by noting that where a district court grants
system-wide injunctive relief, the issues of standing, class
certification, and the propriety and scope of relief are often
intermingled. See, e.g., City of Los Angeles v. Lyons, 461 U.S.
95, 111 (1983). As a result, the district court's findings of fact
and rulings of law with regard to one aspect of the litigation will
often buttress or make unnecessary further findings or rulings
on another issue. For example, we have held that
determinations relevant to standing, see Hodgers-Durgin v. De
La Vina, 199 F.3d 1037, 1040 (9th Cir. 1999) (en banc), or to
class certification, see Hawkins v. Comparet-Cassani, 251 F.3d
1230, 1237 (9th Cir. 2001), will also be relevant to the grant of
injunctive relief; and that determinations made with respect to
class certification may also be relevant to the standing inquiry.
See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985);
Hawkins, 251 F.3d at 1237. Similarly, because the court may
reconsider whether the plaintiffs have standing or have been
appropriately certified as a class at the trial stage of the
litigation, see Lewis v. Casey, 518 U.S. 357 (1996), thé court's
findings at trial may be bolstered by its rulings at earlier stages
of the litigation.

A. Standing

The Board has challenged the district court's ruling on
standing. We reiterate, however, that it did not challenge the
factual findings on appeal, including those that support the
district court's standing determination: while it argued that some
of the legal conclusions were wrong, it did not object to any
findings of fact or identify any specific errors regarding them as
required by Federal Rule of Appeilate Procedure 28(a)(7).
Because the other elements of the "case "or "controversy"

18a

requirements have been met, we focus on the "injury in fact"
requirement of Article III standing. See Bennett v. Spear, 520
U.S. 154, 162 (1997).

[1] In order to assert claims on behalf of a class, a named
plaintiff must have personally sustained or be in immediate
danger of sustaining "some direct injury as a result of the
challenged statute or official conduct." O'Shea v. Littleton, 414
U.S. 488, 494 (1974). The harm suffered by a plaintiff must
constitute "actual injury." Lewis, 518 U.S. at 348-349.
Moreover, where, as here, a plaintiff seeks prospective
injunctive relief, he must demonstrate "that he is realistically
threatened by a repetition of [the violation].". Lyons, 461 U.S.
at 109 (emphasis added) (holding that plaintiff cannot establish
the requisite type of harm simply by pointing to some past
injury). We review questions of standing de novo. See Tyler v.
Cuomo, 236 F.3d 1124, 1131 (9th Cir. 2000) (citation omitted).
However, we will affirm standing when a district court has
made "explicit" and "specific" findings establishing that the
threatened injury is sufficiently likely to occur, LaDuke, 762
F.2d at 1323-24; see also Hawkins, 251 F.3d at 1237 (citing
LaDuke), unless those findings are clearly erroneous.

There are at least two ways in which to demonstrate that
such injury is likely to recur. First, a plaintiff may show that the
defendant had, at the time of the injury, a written policy, and
that the injury "stems from" that policy. Hawkins, 251 F.3d at
1237. In other words, where the harm alleged is directly
. traceable to a written policy, see Gomez v. Vernon, 255 F.3d
1118, 1127 (9th Cir. 2001), there is an implicit likelihood of its
repetition in the immediate future. Second, the plaintiff may
demonstrate that the harm is part of a" pattern of officially
sanctioned . . . behavior, violative of the plaintiffs’ [federal]
rights." LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir. 1985).
Thus, where the defendants have repeatedly engaged in the
injurious acts in the past, there is a sufficient possibility that
they will engage in them in the near future to satisfy the
"realistic repetition" requirement. In this regard, where the

19a

plaintiffs constitute a certified class, "it is not irrelevant that [the
named plaintiffs] seek to represent broader interests than [their]
own." LaDuke, 762 F.2d at 1326. When a named plaintiff
asserts injuries that have been inflicted upon a class of
plaintiffs, we may consider those injuries in the context of the
harm asserted by the class as a whole, to determine whether a
credible threat that the named plaintiff's injury will recur has
been established. /d.; see also Hawkins, 251 F.3d at 1237.

[2] Where a court, through its specific factual findings,
documents the threat of future harm to the plaintiff class and
establishes that the named plaintiffs (or some subset thereof
sufficient to confer standing on the class as a whole) are
personally subject to that harm, the "possibility of recurring
injury ceases to be speculative," and standing is appropriate.
Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir.
1993) (citation omitted). In the instant case, it is difficult to
conceive of how the district court's seventy-four pages of factual
findings could have been more diligent, detailed, or
comprehensive, given the limitations of time and space
available to our trial courts. Defendants do not challenge those
findings on appeal, and they form the basis of our discussion of
the Board's ADA policy and practice.

1. Written Policy

The Board's written policy is primarily contained in three
documents: its Self-Evaluation and Transition Plan, its
Administrative Directive, and its training documents, including
guidelines provided to the Department employees. That policy
was formulated to ensure that prisoners and parolees receive due
process with respect to Board proceedings. Whether the Board
succeeded in that objective is not of particular importance here.
The ADA and Rehabilitation Act, as enforced through the
Attorney General's regulations promulgated under the ADA, see
42 U.S.C. § 12134(a), require more than compliance with due
process requirements: they require that a disabled individual be
provided with "meaningful access" to state provided services

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20a

and set forth a number of detailed requirements that must be
met. See Alexander v. Choate, 469 U.S. 287, 295, (1985); see
also Crowder v. Kitagawa, 81 F.3d 1480, 1484 (9th Cir.
1996)” The Board's written policy does not consider the
particular needs of disabled prisoners and parolees. In particular,
the policy does little, if anything, to address the needs of
prisoners or parolees who have problems understanding
complex information or communicating through the spoken or
written word.

The Board's ADA policy relies upon form # 1073 at the
notification stage and form # 1040 at the appeal stage. Form #
1073 purports to inform prisoners and parolees of their rights
under the ADA. Both forms are inadequate for the visually
impaired, for those deaf individuals who do not understand
written English, and for the learning disabled or mentally
retarded who do not understand complex concepts. At the
notification stage, the Board's only solution is to have a person
serving the form explain it to the person served, if requested to
do so; at the appeals stage, the Board does not even require that

'”. Because "(t]he Rehabilitation Act is materially identical to and
the model for the ADA, except that it is limited to programs that receive
federal financial assistance -- which the [California] prison system
admittedly does [and] since the ADA has a broader scope, we will confine
our discussion to it." Crawford v. Indiana Dep't of Corr., 115 F.3d 481, 483
(7th Cir. 1997), abrogated on other grounds by Erickson v. Board of
Governors of State Colls. and Univs. for Northeastern Ill. Univ., 207 F.3d
945 (7th Cir. 2000).

'8. Form # 1073 repeats the language from the ADA stating that
“no qualified individual with a disability shall, on the basis of disability, be
excluded from participation in, or be denied benefits of the services, _
activities, or programs of a public entity, or be subjected to discrimination
by any such entity." See 42 U.S.C. § 12132. If the prisoner or parolee is
identified as having a disability under the ADA, either he or the serving
officer must complete the form to describe the disability, how the disability
prevents effective participation at the Board hearing, and what
accommodation is requested, and the prisoner or parolee must state the
means by which he can verify his disability.

2la

accommodation: so long as someone renders some assistance,
the policy is satisfied. The Board does not train its officials or
employees to communicate with disabled individuals, and does
not evaluate their ability to do so. The district court found that
the minimal due process measures taken by the Board were
insufficient to comply with the ADA or to enable plaintiffs
properly to invoke or assert their rights.

The guidelines prepared by the Board and circulated to
Department officials contemplate two forms of accommodation:
the provision of an attorney or of an interpreter. These
accommodations are offered primarily at the discretion of the
Department employees, and they need not be provided where
the employee believes that the prisoner or parolee has little
likelihood of success on the merits at the hearing.” Even when
an accommodation is furnished it is often ineffective, and the
lack of appropriate accommodations has resulted in prisoners
and parolees waiving or misunderstanding their rights at the

'9. Timothy Whisman, who is learning disabled, was denied the
assistance of an attorney at parole revocation hearings. He had difficulty
understanding the paperwork and the proceedings. David Rose, who is deaf,
requires an interpreter to communicate effectively. He was denied an
interpreter for his parole revocation hearing, even though he told the parole
officer he could not understand what was being said. Kiah Mincey, who is
legally blind, was denied the assistance of an attorney for his parole
revocation hearing and was not allowed a reader at the hearing.

22a

notification stage; being prevented from adequately preparing
for hearings; failing to understand proceedings during hearings;
and being unable to assert grievances on appeal.”

The Board's written policy does not provide for the making
of any effort to determine in advance whether a particular
hearing facility is accessible for the mobility impaired. Instead,
if a deputy commissioner is informed that there is a physical
barrier to access, he will halt the hearing until a reasonable
accommodation can be made. Such a procedure results in
mobility-impaired prisoners and especially parolees spending
extra time in custody awaiting their hearing.

[3] In sum, the Board's written policy does not comply
with the requirements of the ADA. As a general rule, injuries
can stem from a failure to take action as well as from
affirmative conduct. Here, plaintiffs were injured by the
Board's failure to comply with the Act's requirements. They
suffered discrimination on account of disability as a
consequence, including the impairment or loss of services or
programs provided by the Board. The Board's failure to comply
also makes likely the recurrence of such injuries in the
immediate future.

2. Practice -

[4] The Board's practice is to rely primarily on Department
employees untrained in issues of disability to determine whether

20. James Simmons, who is mildly to moderately mentally retarded,
did not understand the proceedings at his parole hearing even though he was
represented by an attorney. Elio Castro, who is mentally retarded and
partially deaf, could not understand the proceedings during his hearing
because the interpreter signed too quickly and used unfamiliar vocabulary.
Willie Johnson, who is legally blind, was unable to review adequately his
central file in preparation for his hearing because the reader placed a limit
on the number of documents she would review with him. Johnson was
unable to appeal from his hearing because he lacked help filling out the
forms.

23a

an individual is disabled or not, what accommodations are
appropriate if he is, and whether those accommodations will be
provided. These employees include the Department's
institutional staff in the case of state inmates subject to life
prisoner parole proceedings, and members of the Department's
Parole and Community Services Division, acting on behalf of
the Board, in the case of individuals subject to parole revocation
proceedings. At the notification stage, disabled prisoners and
parolees routinely waive their rights to hearings, frequently
because they cannot comprehend the information provided to
them.’ Relatively few Department employees make inquiries
in order to determine whether an accommodation is needed, and
the Board's ADA officials who evaluate both such inquiries and
inquiries made by the Board's hearing officers, do so on the
basis of a "due process" standard that does not comport with the
requirements of the ADA. In practice, the Board supplies only
the three types of accommodation described above -- an attorney
untrained in communications with the disabled; a similarly
untrained interpreter; or a delay in proceedings while the
hearing is rescheduled.

In conjunction with the Board's written policy, its practice
throughout the parole and parole revocation process routinely
deprives disabled prisoners and parolees of their rights under the
ADA. The Board's practice, consistent with its policies, permits
Board and Department employees to deny appropriate
accommodations requested by disabled prisoners and parolees,
and instead to rely on a narrow and unsatisfactory range of
alternatives. The Board's adherence to its "due process"
standard undermines the ability of disabled prisoners and

21. For example, Flora Abrams and Joey Gough, who are learning
disabled, David Badillo, who is mildly to moderately mentally retarded, and
David Blessing, who is deaf, all waived their rights to parole revocation
hearings because the Board failed adequately to communicate their rights to
them. Clifton Feathers, who is blind, did not know he could be provided
with a reader to help him review his central file in preparation for his
forthcoming hearing.

24a

parolees to communicate with and comprehend Department and
Board officials, at hearings and otherwise, and precludes the
mobility impaired from access to hearings. Such treatment not
only results in offense and frustration; it appears to have
resulted in significant periods of unwarranted incarceration for
a number of disabled parolees. Thus, as in the case of its
written policy, the Board's practices warrant the holding that the
"realistic repetition" requirement has been met, and that the
named plaintiffs have established standing.

3. Plaintiff Class

Class membership may also be relevant to show an
immediate likelihood of future injury. Where a named plaintiff
is amember of a plaintiff class, and "[members of the class have
repeatedly suffered personal injuries in the past that can fairly
be traced to the [defendants'] standard . . . practices," the
defendant's treatment of the class as a whole must be considered
to determine whether the individual plaintiff" has been and will
continue to be aggrieved by the defendants’ [illegal] pattern of
conduct." LaDuke, 762 F.2d at 1326. Here, plaintiffs provided
overwhelming evidence of discrimination against the named
plaintiffs as well as other, individually identified class members.
That discrimination stretches back, in some instances, over ten
years, and at the time of trial showed no signs of abating. The
injury suffered by the named plaintiffs is sufficiently similar to
that endured by the rest of the class to establish a pattern of
discrimination that threatens to recur. The district court made
findings of fact, which have ample support in the record, that
named plaintiffs suffered repeated acts of discrimination,
whether in prison or on parole. Accordingly, based on past
occurrences, the threat of future injury to the named plaintiffs as
well as to the class itself is both real and immediate.

25a
4. Actual Injury

[5] The named plaintiffs are injured by the Board's policies
and practices relating to its parole and parole revocation
proceedings: plaintiffs are subjected to discriminatory treatment
on account of their disabilities in violation of both the ADA and
the Rehabilitation Act. This treatment is sufficient to constitute
an actual injury. Furthermore, as a consequence of the Board's
unlawful discrimination, plaintiffs were unable to comprehend
various parts of the parole and parole revocation process or
denied the opportunity to attend the required hearings, and may
even have been wrongfully incarcerated or denied parole. This
too constitutes actual injury.

We comment briefly on the Board's contention that the
deprivation of a fair parole hearing can not in itself constitute
such injury. The Board contends that California Penal Code §
3041 does not create a fourteenth amendment due process right
to such a hearing. However, following Ellis v. District of
Columbia, 84 F.3d 1413, 1418 (D.C. Cir. 1996) (holding that,
until Supreme Court speaks more directly to the issue, prisoners’
right to pre-release revocation hearing unaffected by holding in
Sandin v. Conner, 515 U.S. 472 (1995)), we hold that the statute
is sufficiently determinate to require such hearings as a matter
of constitutional right. Thus, we need not find a constitutional
violation to establish actual injury under the ADA and the
Rehabilitation Act. In addition to prohibiting discriminatory
treatment, those statutes prohibit defendants from denying
plaintiffs "the benefits of [their] services, programs, or
activities." Here, under the facts found by the district court, the
plaintiffs were denied such benefits by virtue of the Board's
failure to make accommodations that would enable them to
attend or comprehend parole and parole revocation hearings.
This, in itself, constitutes "actual injury."

Our holding is consistent with Lewis, in which the
plaintiffs’ asserted injury resulted from inadequate library
facilities. The Supreme Court held that there was no right to

26a

library facilities, but only a right to access to courts, and that in
most cases prisoners had failed to show how the prison's library
policy infringed upon that right, given that other means of
accessing the courts were available. It did, however, find actual
injury in two instances, one of which was when a prisoner was
"so stymied . . . that he was unable to file a complaint" to
remedy an "arguably actionable" harm. 518 U.S. at 351. Thus,
Lewis simply requires that in order to show actual injury
plaintiffs must identify an actual right that has been violated.
Here, actual injury exists because plaintiffs’ rights to be free
from discriminatory treatment, as provided by the ADA and the
Rehabilitation Act, have been violated, and because they have
been deprived of services or programs provided by the Board:
fair parole and parole revocation hearings. Either violation,
standing alone, is sufficient to constitute actual injury.

5. The Board's Objections to Standing

Defendants argue that the plaintiffs cannot meet the"
likelihood of repetition" requirement, because their right to
parole and parole revocation hearings depends upon their
engaging in illegal conduct that they are under an obligation to
avoid. Although we have held that there is sufficient likelihood
that an injury inflicted during a hearing will be repeated when
a plaintiff can assert a right to another such hearing, see
Hawkins, 251 F.3d at 1237, nonetheless, standing is
inappropriate where the future injury could be inflicted only in
the event of future illegal conduct by the plaintiff. Lyons, 461
U.S. at 108. See also Hodgers-Durgin v. De La Vina, 199 F.3d
1037, 1041 (9th Cir. 1999) (en banc) (no standing where injury"
contingent upon respondents’ violating the law, getting caught,
and being convicted.").

With respect to the prisoners’ complaints regarding
conditions at their various hearings, the Board's regulations
require that prisoners sentenced to life with the possibility of
parole be provided with certain hearings as a matter of formal
Board policy. These include documentation hearings, progress

27a

hearings, and recission hearings, as well as the parole hearings
themselves. No matter how well behaved the prisoners are, no
matter how pure and proper their conduct, they must receive the
specified hearings, so that the Board may document or
determine their parole suitability. The Board's regulations
establish that prisoners of the type before us are entitled to
parole hearings before the Board at least every five years, and as
often as every year, unless they waive those hearings. The
likelihood that a prisoner will be subjected to the hearings
involved is, therefore, not at all speculative; rather, it is certain.
The lawfulness or unlawfulness of his conduct in the interim is
irrelevant to that fact.

The situation is different with respect to the complaints of
parolees regarding deprivations of their rights in connection
with the parole revocation process. The Board asserts that these
plaintiffs could avoid parole revocation hearings entirely by
refraining from engaging in future illegal conduct. For support
of this proposition, it relies on Lyons, 461 U.S. at 102 (no
standing where likelihood of further injury premised on
repetition of unlawful traffic violation); O'Shea, 414 U.S. at 497
(no standing where plaintiffs planned to induce future injury by
unlawful civil disobedience); and Spencer v. Kemna, 523 U.S.
1, 13 (1998) (no standing where future injury will not arise
unless plaintiff has been convicted of and served sentence for
future unlawful conduct). To the extent that these cases hold
that standing does not exist where plainiiffs can avoid future
injury by refraining from illegal conduct, they are not apposite
here. 7

In Hodgers-Durgin, we expressly distinguished the Lyons
line of cases on the basis that the Hodgers-Durgin plaintiffs
asserted that the conduct on their part that triggered the
defendants’ violations was not unlawful. In that case, the
plaintiffs alleged that while driving their vehicles in the normal
course, they were stopped by the United States Border Patrol on
the basis of their race, or because of their proximity to the
border. We found that the plaintiffs had standing because,

28a |
although the police were sufficiently suspicious of the plaintiffs
to stop, question, and search them, "plaintiffs did nothing illegal
to prompt the stops by the Border Patrol." Hodgers-Durgin,
199 F.3d at 1041.

Here, as in Hodgers-Durgin, plaintiffs need not engage in
unlawful conduct to become subject to the unlawful practices
they seek to enjoin. The Board is not required to establish
probable cause to begin the parole revocation process, nor is it
- necessary that any law enforcement officer observe the alleged
violation: the Board may start parole revocation proceedings
when a rather low level of suspicion arises as the result of
"some minimal inquiry" into the facts of the case. See
Morrissey v. Brewer, 408 U.S. 471, 485 (1972). However,
mere suspicion of misconduct is insufficient to defeat standing:
in Hodgers-Durgin, although the Border Patrol officers were
suspicious enough to stop, question, and search the plaintiffs’

cars, we still found that the plaintiffs had standing to sue.’

22. By contrast, in Lyons, 461 U.S. at 102, a police officer

observed the traffic violation that led to Lyons's injury and Lyons did not
deny his guilt.

23. Parolees are subject to a parole revocation hearing when a

member of the Parole and Community Services Division reports a suspected
violation of the conditions of parole to the Board. See Cal. Code Regs. tit.
15 § 2615.

24. Prior to a parole revocation hearing the Board serves notice of
the hearing on the parolee and, at the same time, presents him with a form
explaining his rights under the ADA (form # 1073) and a "screening offer:"
a determinate prison sentence of one year or less conditioned upon the
parolee's agreement to waive his revocation hearing. By accepting the
screening offer without properly comprehending its import, some of the
parolee-plaintiffs agreed to prison sentences on the first occasion that they
were informed that they were subject to parole revocation proceedings, and
well before the Board had anything more than the limited degree of
suspicion required to subject them to such hearings.

7 & Hodgers-Durgin, we additionally noted that, unlike Lyons
there was "no string of contingencies necessary to produce an injury" after

29a

Next, the Board contends that the named plaintiffs have
failed tc demonstrate standing for "each type of relief sought,"
and cite Lewis v. Casey for that proposition. However, Lewis
simply limits standing to the injury shown: a plaintiff who has
been subject to injurious conduct of one kind does not have
standing to sue for a different, although similar, injury to which
he has not been subjected. 518 U.S. at 358 n. 6. When
determining what constitutes the same type of relief or the same
kind of injury, we must be careful not to employ too narrow or
technical an approach. Rather, we must examine the questions
realistically: we must reject the temptation to parse too finely,
and consider instead the context of the inquiry. Viewed in this
light, the named plaintiffs all established the same injury: that
the Board propounded a policy and engaged in a practice that
denied them their rights under the ADA, and harmed them by
preventing them from attending, communicating at, or
comprehending parole and parole revocation hearings. Each
showed that the Board discriminated against him, in a manner
that resulted in a failure to afford him the benefit of the same
service or program. As a result, it is evident that each suffered
from the same injurious conduct; each incurred the same injury;
and each is seeking the same relief.

The Board also asserts that the likelihood that the parolee
plaintiffs will be subject to a future parole revocation hearing is
purely speculative. However, five of the parolee plaintiffs were
repeatedly subjected to parole revocation proceedings, some of
them on a yearly basis. Abrams, Whisman, Blessing, and
Badillo, waived their rights to a parole hearing because the
accommodations provided did not enable them to comprehend
the notification proceedings; Gough was unable to understand
the notification or hearing process. Because the named-plaintiff

the stop: the stop led inexorably to the injur’. 199 F.3d at 1041-1042.
Here, it is the parole revocation notification and hearing process itself that
is discriminatory and that constitutes the injury: the discriminatory treatment
incurred by persons with disabilities and the failure to provide them with
statutory services.

30a

parolees can establish a pattern of continuing discrimination that
shows no sign of abating, we find that the parolee plaintiffs
have standing to sue for a violation the ADA.

. Our conclusion is bolstered by the fact that a person with
disabilities is more likely to be suspected of conduct that results
in the revocation of parole than other parolees. The district
court specifically found that hearing impaired, learning
impaired, and developmentally disabled individuals engage in
a range of coping mechanisms that can give the false impression
of uncooperative behavior or lack of remorse. It is therefore
likely that these individuals will have difficulty interacting with
the personnel who supervise their parole, explaining any
innocent but non-conforming behavior, and showing remorse
for otherwise minor infractions of the conditions of their parole
that do not rise to the level of unlawful conduct. These
problems make it more likely that such parolees will be
subjected to the parole revocation process, even though they
have not committed any unlawful act or violated any condition
of their parole.

B. Class Certification

The district court's decision certifying the class is subject
to a "very limited" review and will be reversed "only upon a
strong showing that the district court's decision was a clear
abuse of discretion." Jn re Mego Financial Corp. Secs. Litig.,
213 F.3d 454, 461 (9th Cir. 2000) (citation omitted). As a
preliminary matter, we note that, after the evidentiary hearing on
the first motion for class certification, the state defendants
stipulated to a motion amending the plaintiff class, and then did
not object when the class was amended a second time at the pre-
trial hearing. Furthermore, the district court's findings of fact
generally support its grant of class certification.

[6] Under Federal Rule of Civil Procedure 23(a), "one or
more members of a class may sue or be sued as representative
parties on behalf of all only if (1) the class is so numerous that

: i
*3
=
i
re

3la

joinder of all members is impracticable, (2) there are questions
of law or fact common to the class, (3) the claims or defenses of
the representative parties are typical of the claims or defenses of
the class, and (4) the representative parties will fairly and
adequately protect the interests of the class." In addition, to
prosecute a class action, the plaintiffs must show that "the party
opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate
final injunctive relief... with respect to the class as a whole."
Fed. R. Civ. P. 23(b)(2).

In the instant case, the Board asserts that the named
plaintiffs fail to satisfy the standards of commonality and
typicality required by Federal Rule of Civil Procedure 23(a).
Although the commonality and typicality requirements tend to
merge into one another, see General Tel. Co. of Southwest v.
Falcon, 457 U.S. 147, 157 n. 13 (1982), they are stated
differently. The commonality requirement is said to be met if
plaintiffs’ grievances share a common question of law or of fact.
See Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. Es
1994). Typicality, by contrast, is said to require that the claims 7
of the class representatives be typical of those of the class, and
to be "satisfied when each class member's claim arises from the
same course of events, and each class member makes similar
legal arguments to prove the defendant's liability." Marisol v.
Giuliani, 126 F.3d 372, 376 (2nd Cir. 1997). The crux of both
requirements is to ensure that "maintenance of a class action is
economical and [that] the named plaintiff's claim and the class
claims are so interrelated that the interests of the class members
will be fairly and adequately protected in their absence." Jd.

1. Commonality

[7] The Board argues that a wide variation in the nature of 2
the particular class members’ disabilities precludes a finding of
commonality. It asserts, in effect, that separate representative
lawsuits should be filed by the hearing impaired, the vision
impaired, the developmentally disabled, the learning impaired,

32a

and the mobility impaired. We reject this approach to class-
action litigation. We have previously held, in a civil-rights suit,
that commonality is satisfied where the lawsuit challenges a
system-wide practice or policy that affects all of the putative
class members. See LaDuke, 762 F.2d at 1332; see also 5
James Wm. Moore etal., Moore's Federal Practice 423.23[5][f]
(3d ed. 1999) (citing LaDuke). In such circumstance, individual
factual differences among the individual litigants or groups of
litigants will not preclude a finding of commonality. See Baby
Neal, 43 F.3d at 56. Certainly, the differences that exist here do
not justify requiring groups of persons with different
disabilities, all of whom suffer similar harm from the Board's
failure to accommodate their disabilities, to prosecute separate
actions. The commonality requirement is met.

2. Typicality

[8] Where the challenged conduct is a policy or practice
that affects all class members, the underlying issue presented
with respect to typicality is similar to that presented with respect
to commonality, although the emphasis may be different. In
such a case, because the cause of the injury is the same -- here,
the Board's discriminatory policy and practice -- the typicality
inquiry involves comparing the injury asserted in the claims
raised by the named plaintiffs with those of the rest of the class.
We do not insist that the named plaintiffs' injuries be identical
with those of the other class members, only that the unnamed
class members have injuries similar to those of the named
plaintiffs and that the injuries result from the same, injurious
course of conduct. See Hanon v. Dataproducts Corp., 976 F.2d
497, 508 (9th Cir. 1992). Here, the injuries are identical. The
plaintiffs all suffer a refusal or failure to afford them
accommodations as required by statute, and are objects of
discriminatory treatment on account of their disabilities. Ona
more specific level, the injuries lie in the inability of prisoners
and parolees with disabilities to comprehend what is occurring
at the parole and parole revocation hearings and to communicate
with those presiding (or in some instances even to obtain such

33a

hearings) and, in the case of mobility impaired individuals, to
overcome the physical barriers to attendance. Thus, the
plaintiffs all suffer the deprivation of "services, programs, or
activities," provided by the Board, or fail to receive | the full
benefit of such services. 42 U.S.C. § 12132. Although there
are minor differences in the nature of the specific injuries
suffered by the various class members, the differences are
insufficient to defeat typicality.

3. Defective Certification

While the class certification is generally proper, it is
defective in two respects. First, in addition to the prisoners and
parolees with sight, hearing, learning, developmental and
mobility disabilities, the district court designated individuals
with kidney disabilities as members of the class. As amended,
however, the class no longer inciudes a named plaintiff with a
kidney disability. We are unable to determine from the district
court's decision or the parties briefs (which do not mention the
subject) what injuries, if any, prisoners or parolees with renal
disorders suffer as a result of the defendants' failure to comply
with the law. Accordingly, should the plaintiffs. wish to
maintain a claim on behalf of prisoners and parolees with
kidney disabilities, they would have to amend the complaint to
include one or more individuals with such disabilities among
the named plaintiffs, and set forth the facts showing how they
are injured.

Second, in addition to life prisoner hearings,~ parole
revocation hearings, and parole revocation extension hearings,
the plaintiffs challenge the Board's procedures relating to the
hearing process for Sexually Violent Predators and Mentally
Disordered Offenders. None of the named plaintiffs,

26. See Cal. Penal Code § § 2960-2981 (mentally disordered
offenders); Cal. Code Regs. tit. 15 § 2600.1 (sexually violent predators). The
Board's rules regulating the treatment of mentally disordered offenders
provide for three hearings: a certification hearing, Cal. Code Regs. tit. 15 §

34a

however, is a sexually violent predator or a mentally disordered
offender. Those two categories of putative class members may
be sufficiently distinct from the other class members that
separate class representatives are necessary in order to ensure
that their interests are fairly and adequately protected. See
Hanon, 976 F.2d at 508. At least, on the record presented, we
cannot say they are sufficiently similar. On remand, plaintiffs
may choose to add additional named plaintiffs to represent the
claims of sexually violent predators and mentally disordered
offenders, "or to otherwise refashion this action to remedy class
defects." Hawkins, 251 F.3d at 1238.

C. Scope of Injunctive Relief

The district court identified three general areas in which
the Board did not comply with the mandatory provisions of the
ADA and the regulations implementing that Act by failing to:
(1) provide effective communications during the notification,
hearing, and appeals process; (2) modify policies and
procedures to provide reasonable accommodations to disabled
prisoners and parolees; and (3) select facilities accessible to the
mobility-impaired. After making detailed factual findings on
each of these issues, the court specified the manner in which the
Board violated the ADA, holding that the defendants "have
engaged in ongoing, extensive, system-wide violations of the
ADA, Section 504 and the Constitution. . .. Systemic injunctive
relief in this case is therefore justified." The injunctive relief
granted was deliberately and particularly tailored to address
each of the violations identified in the district court's order. The
Board contends that the relief awarded is overbroad for two
reasons: (1) the district court should have considered only the

2570(a); a placement hearing, § 2570(e); and an annual review hearing, §
2570(k). Sexually violent predators are subject to a screening hearing under
Cal. Code Regs. tit. 15 § 2600.1.

35a

injuries suffered by the named plaintiffs, and limited relief
accordingly; and (2) federalism concerns preclude the court
from anything other than the most minimal interference in a
state parole system.

1. System-Wide Relief

[9] "The scope of injunctive relief is dictated by the extent
of the violation established." Lewis, 518 U.S. at 359. The key
question, for purposes of Lewis, is whether the inadequacy
complained of is in fact "widespread enough to justify system
wide relief." Lewis, 518 U.S. at 359. Lewis reiterates the
longstanding maxim that injunctive relief against a state agency
or official must be no broader than necessary to remedy the
constitutional violation. See Milliken v. Bradley, 433 U.S. 267,
280 (1977). System-wide relief is required if the injury is the
result of violations of a statute or the constitution that are
attributable to policies or practices pervading the whole system
(even though injuring a relatively small number of plaintiffs), or
if the unlawful policies or practices affect such a broad range of
plaintiffs that an overhaul of the system is the only feasible
manner in which to address the class's injury. However, if
injunctive relief is premised upon only a few isolated violations
affecting a narrow range of plaintiffs, its scope must be limited

accordingly.”

27. When plaintiffs seek relief against a state agency, but relief on
behalf of a large class of plaintiffs is inappropriate, we will limit relief to the
named plaintiffs. See Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir.
2001) (where class relief inappropriate, prospective relief properly limited
to just six inmates); see also Rizzo v. Goode, 423 U.S. 362 at 367-69 (where
only two of 28 alleged incidents, involving only two police officers,
involved deprivation of a federal right, broad-based relief not warranted);
Lyons, 461 U.S. at 97-100 (single plaintiff's allegation that his constitutional
_ fights were violated insufficient to justify city-wide injunctive relief). By
contrast, where the district court makes findings of fact sufficient to
demonstrate a system-wide injury, resulting from policies and practices that
pervade the state institution, widespread relief is justified to remedy that
injury. See Lewis, 518 U.S. 360 n. 7 (prisoners must prove that denial of

€.
"*
‘

ae
ie)

36a

We also note that the decision to grant system-wide
prospective injunctive relief does not occur in a vacuum; it is
intimately connected to determinations made earlier in the
lawsuit. The court's rulings concerning the likelihood of future
injury at the standing stage "obviously shades into those
determining whether the complaint states a sound basis for
equitable relief." Lyons, 461 U.S. at 103 (citing O'Shea, 414
U.S. at 499). And the court's determination that relief may be
sought by a class of plaintiffs is relevant to the scope of the
relief to be awarded. In fact, class certification serves to alter the
court's inquiry: when a class is properly certified, the injury
asserted by the named plaintiffs at the standing stage of our
inquiry is asserted on behalf of all members of the class.
Accordingly, although in a class-action lawsuit, as in any other
suit, "the remedy must. . . be limited to the inadequacy that
produced the injury in fact that the plaintiff has established," see
Lewis, 518 U.S. at 357, the "plaintiff" has been broadenea to
include the class as a whole, and no longer simply those named
in the complaint.

[10] In this case, system-wide injunctive relief was
justified by the district court's extensive findings of fact setting
forth in meticulous detail the injuries suffered by seventeen
different prisoners and parolees at a variety of Board facilities
and hearings. The district court expressly noted that these
findings were not limited to the individual prisoners and
parolees named in its opinion, but extended to members of the
class throughout the parole system. The Board's treatment of
the seventeen individuals was symptomatic of its treatment of
a broad class of inmates with disabilities; and all of the
violations the court found stemmed from the policies and
practices of the Board, permeated its institutions, and were
condoned by officials ranging from Commissioner Nielsen to

federal right pervaded system to justify system-wide relief).

37a

the Board's deputy commissioners and Department officials
acting as agents of the Board and under its guidelines. Such
findings are sufficient to satisfy Lewis's requirement that factual
findings support the relief sought.

Furthermore, we note that Lewis does not require a
particular number of named plaintiffs before system-wide relief
is appropriate. In a class-action lawsuit, Rule 23(b)(2) enables
a trial court to determine the appropriateness of system-wide
relief based on the individual experiences of the named
plaintiffs. The district court retains wide discretion to hear
evidence tending to establish the scope of the class and the
range of claims it represents. For class certification to occur,
the court must find that the named plaintiffs adequately
represent the interests and experiences of the overall class. In
making such findings, the trial court must be afforded a wide
degree of discretion to determine when a particular number of
inmate witnesses is sufficient to justify system-wide relief for
the identified violation. So long as the trial court's conclusion
is based upon adequate findings supported by substantial
evidence in the record, we must defer to its evaluation of the
scope of the class and the injury it suffered. In so doing we
recognize the utility and propriety of various procedural rules
(like the class action device) that authorize the trial court to
view individual items of evidence as representative of larger

conditions or problems. The main concern of Lewis is to

28. Federal Rule of Civil Procedure 23 provides district courts with
broad discretion to determine whether a class should be certified, and to
revisit that certification throughout the legal proceedings before the court.
The district court may permit discovery to determine whether class
certification is appropriate, see Kamm v. California City Dev. Corp., 509
F.2d 205, 209 (9th Cir. 1975), may limit such discovery to class certification
issues, and may make appropriate orders to control the course of
proceedings or prescribing measures to prevent undue repetition or
complication in the presentation of evidence or an argument, Fed. R. Civ. P.
23(d)(4). Where appropriate, the district court may redefine the class, see
Penk v. Oregon State Bd. of Higher Educ., 816 F.2d 458, 467 (9th Cir.
1987), may excise portions of a plaintiffs class allegations, and may even

38a

ensure that courts do not enter broader injunctions than are
necessary, and do not prohibit conduct that is not threatened.
(See also supra Part II. B) This is certainly not the case here.2”’

2. Prison Litigation Reform Act

[11] In determining the scope of injunctive relief that
interferes with the affairs of a state agency, we must ensure, out
of federalism concerns, that the injunction "heels close to the
identified violation," Gilmore v. California, 220 F.3d 987, 1005
(9th Cir. 2000) (citation omitted), and is not overly "intrusive
and unworkable . . . [and] would not require for its enforcement
the continuous supervision by the federal court over the conduct
of [state officers]." O'Shea, 414 U.S. at 500, 501. As we
recently noted, these concerns have been codified in the Prison
Litigation Reform Act, 18 U.S.C. § 3626 (PLRA)2” See
Gomez v. Vernon, 255 F.3d 1118, 1129 (9th Cir. 2001) (PLRA

decertify the class. Fed. R. Civ. P. 23(d)(4). These procedural tools ensure
that the district courts can fully investigate class certification issues, and
require us to continue to give deference to the district court's decision on
certification and the scope of the class through the remedy stage of the
proceedings, unless the court abuses its discretion. See Midgett v. Tri-
County Metropolitan Transp. Dist. of Oregon, 254 F.3d 846, 849 (9th Cir.
2001) (citation omitted).

29. Because the Board's violations of the ADA (2nd _ the
Rehabilitation Act) are sufficient to support the issuance of the injunction
before us, we need not consider whether the violations of the Due Process
Clause found by the District court would provide an alternative basis.

30. The PLRA requires that prospective injunctive relief against a
state prison system be "narrowly drawn, extend[]}no further thai, necessary
to correct the violation of the Federal right, and be the least intrusive means
necessary to correct the violation of the Federal right." /d. at § 3626(a)(1).
We note that the PLRA's provisions are explicitly limited to "prison
conditions," and do not extend to the parole context. Cf: Page v. Torrey, 201
F.3d 1136, 1140 (9th Cir. 2000) (holding that parolee is not "prisoner" for
purposes of PLRA). For the purposes of this section of our opinion,
however, we will analyze the issues as if the PLRA applied to all aspects of
the case.

39a

"has not substantially changed the threshold findings and
standards required to justify an injunction.").

[12] Here, the district court specifically made the findings
required by the PLRA, see 18 U.S.C. § 3626(a)(1), and narrowly
tailored the injunction to remedy only those violations of the
ADA and Rehabilitation Act established in the district court's
findings of fact. The court permitted the state to develop the
policies and programs necessary to remedy its violation of the
ADA and Rehabilitation Act, and afforded the plaintiffs an
opportunity to object to the state's proposals.2” The Board and
the plaintiffs subsequently stipulated to the propriety of the new
policies and procedures, and they have in fact been
implemented.”

Although it is often difficult to discern the precise nature
of the Board's arguments, it appears that the Board essentially
objects not to the process that the district court employed, but to
the content of the injunction. In particular, the Board appears to
contend that the injunction improperly interferes with its
activities by dictating particular remedies, including: employing
a full-time ADA coordinator; training its staff and the attorneys
provided to individuals with disabilities; providing assistance to
parolees preparing for revocation hearings; ensuring the
availability of forms in comprehensible alternative formats; and
obtaining permission from a delegate of the Board Chairman

31. This procedure is required by, among other cases, Lewis. 518
U.S. at 362. (court required to "giv[e] the States the first opportunity to
correct the errors made in the internal administration of their prisons").
Here, the district court charged the Board with developing new policies and
procedures to ensure compliance with the ADA, and the state responded by
proposing policies and procedures, entering into negotiations with plaintiffs
and stipulating to a new set of policies and procedures. This is precisely the
process contemplated by Lewis.

32. Indeed, at oral argument, the Board stated that, should it prevail,
it did not propose to change the new policies or procedures developed as a
result of this lawsuit.

40a

before permitting the shackling of an inmate who requires a
sign-language interpreter at a parole or parole revocation
hearing. The majority of the provisions of which the Board
complains are required by regulations implementing the ADA
and the Rehabilitation Act. See 28 C.F.R. § § 35.107 (ADA
coordinator and grievance procedures) 35.150(b) (transition
plan); 35.105 (self-evaluation); 35.160 and Pt. 35, App. A
(effective communications; primary consideration be given to
disabled individual's requested accommodation). Moreover, the
court is entitled to give some guidance to the Board and set
some deadlines for compliance. By her injunction, the thorough
and extremely patient district judge did not attempt to "micro
manage" the Board's activities, but rather to set clear objectives
for it to attempt to attain, and, in most circumstances, general

methods whereby it would attain them.2”

[13] Finally, although the Board complains that the new
policies impose unspecified financial and administrative
burdens, we note that some such burdens are shared by all state
agencies required to implement the ADA and Rehabilitation
Acts. Aside from this general, but unfounded, concern, the
Board has apparently experienced no burdensome interference
with its parole and parole revocation process. In short, there is
nothing to suggest that the injunction is unworkable: indeed, the
Board appears to have found the new policies and procedures
perfectly workable. Accordingly, we hold that the relief granted
was appropriate and that the court order complied with the
PLRA.

D. Propriety of Injunction

On appeal, the Board asserts three principal objections to
the propriety of the district court's injunction: that the Board has

33.

The iniunction does not, for example, prescribe which
Department or Boars officials or employees may be delegated the function
of determining when hearing impaired prisoners or parolees who must use
sign language to communicate may be shackled at the hearing.

4la

provided a legitimate penological justification for its actions (or
inactions) under Turner v. Safley, 482 U.S. 78 (1987); that many
of the claims against the Board were resolved in the settlement
agreement between plaintiffs and the Department; and that
Governor Davis and Secretary Presley are not properly subject
to the injunction. We address each in turn.

1. Turner v. Safley

Turner holds that "when a prison regulation impinges upon
inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests." 482 U.S.
at 89. Here, we are presented with policies and regulations of
a state parole board which apply both to the inmates inside the
prison and the parolees on the outside. While we have not yet
considered whether Turner is limited to the prison context or
whether in also applies to matters affecting parolees, certainly
many of the reasons justifying prison authorities overriding
prisoners rights disappear outside the prison walls. See Felce
v. Fiedler, 974 F.2d 1484, 1495-1496 (7th Cir. 1992).
However, we need not decide that issue for purposes of this

appeal.

Assuming, without deciding, that Turner applies to all
aspects of the case before us, we are required to determine
whether there is a "valid, rational connection between the prison
regulation and the legitimate governmental interest put forward
to justify it." Turner, 482 U.S. at 90. The Board has, however,
repeatedly failed to adduce any justificatiom; rational or not, for
its ADA policy. For starters, it presents no justification that we
can discern in its briefs. Equally surprising, the Board admitted
at oral argument that we would find none in the record: it
argued that such omission was immaterial so long as, even at

34 For example, many of the security interests relevant to the
operation of a prison which provided Turner's justification for abrogating
prisoners’ rights are absent in the context of the supervision of parolees’
activities.

42a

that late stage of proceedings," we can come up with any reason

in our heads" that would justify its policies?”

To satisfy Turner, the Board must, at the very least, adduce
some penological reason for its policy at the relevant stage of
the judicial proceedings. "Considerations advanced to support
a restrictive policy [must] be . . . sufficiently articulated to
permit meaningful . . . review." Walker v. Sumner, 917 F.2d
382, 386 (9th Cir. 1990). Thus, at a minimum, the reasons must
be urged in the district court. While the Board is correct that the
burden rests with the plaintiff to refute the Board's defense that
its actions were penologically justified, see Frost v. Symington,
197 F.3d 348, 357 (9th Cir. 1999), that defense must at the very
least be raised. Here, at oral argument, the Board for the first
time referred obtusely to something about "cost" and
"administrative "concerns without any explanation whatsoever
as to how or in what respect the injunction implicated these
matters. Certainly, it did not suggest that the unspecified costs
and administrative concerns were any greater than those of any
other agency subject to the ADA, or offer any reason why it
should be exempted from the ordinary costs and burdens of
complying with the ADA. We agree with the Seventh Circuit
that prison authorities "cannot avoid court scrutiny [under
Turner] by reflexive, rote assertions." Shimer v. Washington,
100 F.3d 506, 510 (7th Cir. 1996). In this case, the Board's
unusual contentions did not even rise to that level, see n. 35,
supra. In short, the Board has failed totally to establish that the
injunctive order in any way conflicts with Turner.

35.

The Board suggested that the absence of penological
justifications in the record was due to its being silenced on this point by the
district court. This assertion appears to be a fabrication. We find no
evidence to support it in the record and the Board has identified none. Nor
can we accept the remarkable proposition that the Board advanced at oral
argument: that there were just too many justifications for it to include any
particular ones.

43a
2. Control Over Department

The Board next argues that the injunction applies to parts
of the original litigation already resolved by the settlement
agreement, and is directed at facilities and individuals that are
under the control of the Department. This objection does not
properly apply to the parole revocation notification and hearing
process. Prior to the hearing, the parolees are not incarcerated
in facilities controlled by the Department, and notices may be
served by any qualified persons designated by the Board.
Moreover, parole revocation hearings need not be conducted at
Department facilities. Because the Board can conduct the
parole revocation process without using Department personnel
or premises, the Board could readily comply with this aspect of
the injunction without involving the Department's staff or
facilities in any way.

The case of prisoners (and parolees whose parole has
already been revoked) is different, however. The Department
may in some instances require the Board to utilize Department
staff or facilities when serving notice or conducting hearings on
Department premises. We have identified three aspects of the
injunction that must be construed or modified in a manner that
will ensure that it does not order the Department to further
modify its facilities, policies, or procedures or direct the
Board to require the Department to do so (even assuming the
Board had such authority).

a. Department Facilities

Paragraph 6 of the injunction, which requires the Board to
develop a transition plan in accordance with 28 C.F.R. §
25.150(d), mandates that the Board evaluate facilities in which
parole proceedings are conducted; provide the Department of

36. Asa result of the policies and practices developed in response
to the settlement agreement, the Department is, apparently, already in
substantial compliance with the ADA.

44a

Corrections with a list of all facilities that are not fully
accessible; and produce a schedule for providing accessible
proceedings for prisoners with disabilities at each facility.
While most of paragraph 6 is unobjectionable, and simply
requires the Board to inform itself as to which facilities,
including Department facilities, provide accessible hearing
rooms for mobility impaired prisoners or parolees, to the extent
that it requires mobility impaired prisoners housed in
Department facilities to be transported to alternative, accessible
hearing locations, paragraph ‘6 may interfere with the
Department's penological interest in securely confining certain
prisoners. Accordingly, we construe this provision as requiring
only that the Board request that the Department transport
mobility impaired prisoners to accessible locations if the
facilities at which they are housed are inadequate. The
Department may, for valid security or other penological reasons,

decline to do so.

b. Training of Department Personnel

Paragraph 14 of the injunction requires the Board to
provide ADA training to its own staff, any attorneys it employs,
and Department staff involved in the parole and parole
revocation process. This portion of the injunction is designed
to enforce 28 C:F.R. § 35.130(b)(1), which prohibits state
entities from avoiding compliance with the act by delegating
their services "through contractual, licensing, or other
agreements." To the extent that paragraph 14 directs the Board
to require Department personnel to undergo training, we agree
with the Board's objection. Accordingly, we instruct the district
court to modify the injunction as follows on remand: The Board
shall provide training for all persons under its jurisdiction to the

37. We note that, under the policies developed as a result of the
settlement agreement with the Department, mobility impaired prisoners are
to be grouped at accessible facilities. Thus, there may in any event be no
practical problem with respect to offering all mobility impaired prisoners
hearings at accessible facilities.

45a _

extent set forth in paragraph 14; it shall also offer training to
Department staff involved in the parole and revocation process;
should any Department personnel decline such training, the
Board shall use its own personnel in their stead, except when
the Department requires that Department employees perform the
services involved.

c. Tracking System

Paragraphs 15-18 of the injunction require that the Board
establish a tracking system by which it can determine which
inmates suffer from disabilities, and what their disabilities are
The Board relies upon a prior decision of ours in the
Department phase of this case, see Armstrong v. Davis, 215
F.3d 1332, 2000 WL 369622 (9th Cir. 2000), in asserting that
no tracking system is required. However, in our earlier opinion
we did not reject the tracking requirement per se, but held that
the tracking system proposed by the Department was
"reasonably related to legitimate penological interests," and
should not have been rejected by the district court. See id.
Because the regulations implementing the ADA require a public
entity to accommodate individuals it has identified as disabled,
28 C.F.R. § 35.104, some form of tracking system is necessary
in order to enable the Board to comply with the Act. However,
to the extent that tracking is conducted by the Department, it is
not necessary for the Board to duplicate that system, and the
Board may make use of the Department's tracking system as a
permissible means of complying with the injunction.

3. Davis and Presley

Governor Davis and Secretary Presley contend that they are
not properly part of this portion of the lawsuit and that plaintiffs

38.

The Board argues that the tracking system requires it to
discover non-apparent disabilities possessed by disabled prisoners or
parolees. It does not. It simply requires the Board, once it becomes aware
of such non-apparent disabilities, to keep track of them.

oe eet

46a

are barred from proceeding against them here by virtue of the
settlement agreement entered into by the plaintiffs and the
Departmert. A settlement is interpreted as any other contract,
under the interpretive rules of the state. Gates v. Rowland, 39
F.3d 1439, 1444 (9th Cir. 1994). The first step in contractual
interpretation in California is to examine the text, Cal. Civil
Code § 1638, and determine the intent of the parties. Cal. Civil
Code § 1636. Here, the Governor and the Secretary rely on two
parts of the settlement agreement. First, they point to the text,
which states that: "This settlement does not resolve any issues
between plaintiffs and the Board of Prison Terms or defendant
Nielsen" Second, they rely on the inclusion in the settlement
agreement of their names among the Department defendants.
The two provisions on which they rely do not show that the
agreement was intended to release Davis and Presley from the
Board's portion of the case. The purpose of the provision of the
settlement agreement quoted above was to make it clear that
none of the issues regarding the Board's operations were to be
affected by the Department's agreement. The fact is that the
settlement agreement did resolve some issues involving Davis
and Presley, because they, unlike Nielsen, have supervisory
authority over the Department. Thus, it would have been
erroneous to include their names in the quoted provision of the
settlement agreement. As to the inclusion of Davis' and
Presley's names on the list of Department defendants, their
names were included because the two state officials have
supervisory authority over the Department, and to the extent the
claims against the Department were resolved, so were the
claims against them. The claims against the Board were not
resolved, however, nor were the claims against Davis or Presley
that were based on their supervision of the Board. It is
significant in this regard that there is no language in the
settlement agreement providing that the Governor and the
Secretary shall be dismissed as parties, or that all claims against
them would be resolved by the agreement.

The simple fact is that the setlement agreement resolved
only a portion of the issues between the plaintiffs and Davis and

47a

Presley, the two state officers who have jurisdiction over both
the Department and the Board. While it might have been
preferable to include a sentence stating explicitly that the
Governor and the Secretary remain defendants in the instant
portion of the lawsuit, such language was not essential. Thus,
Davis and Presley properly remain parties to the litigation
between the plaintiffs and the Board.

E. Sovereign Immunity

The defendants have not raised the issue of sovereign
immunity in this case. Accordingly, any defendants to whom
sovereign immunity might apply have waived that affirmative
defense. Waiver of the sovereign immunity defense must
typically be "stated by the most express language or by such
overwhelming implication" that the state's intent to waive is
unambiguous. Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 239-40 (1985). Thus, mere appearance to defend a lawsuit
will not act as a waiver, but "conduct during the litigation [that]
clearly manifests acceptance of the federal court's jurisdiction
or is otherwise incompatible with an assertion of Eleventh
Amendment immunity" wili be construed as a waiver. Hill v.
Blind Indus. & Servs. of Md., 179 F.3d 754, 759 (1999),
amended by 201 F.3d 1186 (9th Cir. 2000). This is so
because Eleventh Amendment immunity has traditionally been
characterized as a "personal privilege which [the state] may
waive at [its] pleasure," Clark v. Barnard, 108 U.S. 436, 447
(1883), and although in the nature of a jurisdictional bar, it does

39. See also Torres v. Puerto Rico Tourism Co., 175 F.3d 1, 5 (ist
Cir. 1999) (defendant's failure to argue that a statute is an invalid abrogation
of sovereign immunity until its reply brief on appeal is a waiver of that
defense); Garrity v. Sununu, 752 F.2d 727, 731 (1st Cir. 1984) (holding that
a defendant's full acquiescence with a district court injunction and its failure
to contest it on the merits on appeal is a waiver of a sovereign immunity
defense in the appeal of fee awards); New York State Ass'n for Retarded
Children v. Carey, 596 F.2d 27, 39 (2d Cir. 1979) (participation in a consent
decree waives a sovereign immunity defense on an appeal contesting the
district court's interpretation of that judgment).

ert Pn,
a fr te a eee

48a

not actually "implicate a federal court's subject matter
jurisdiction in any ordinary sense" and thus may be "forfeited by
the State's failure to assert it." JTS] TV Prods., Inc. v.
Agricultural Ass'ns, 3 F.3d 1289, 1291 (9th Cir. 1993); see also
Wisc. Dep't of Corrs. v. Schacht, 524 U.S. 381, 389 (1998)
("The State can waive the defense. Nor need a court raise the
defect on its own. Unless the State raises the matter, a court can
ignore it.").

In Hill, we held that by actively litigating its case on the
merits throughout the pre-trial period and waiting until the
opening day of trial to assert a sovereign immunity defense, the
state had waived that defense. 179 F.3d at 763. Here, the
defendants engaged in litigation conduct far more extensive
than that of the defendant in Hill. The defendants did not assert
sovereign immunity as a defense to this lawsuit in either of their
amended answers, in the joint pretrial statement, in any pre-trial
motions, at trial, or in the briefs on appeal.“ Instead, they
argued to the district court that their policies complied with the
ADA, and on appeal that any violations of the ADA do not
justify the relief granted* Indeed, even though the defendants

“©. In their answer to the original complaint, defendants asserted
that they “have immunity guaranteed by the Constitution or Laws of the
United States." However, in the subsequent answers to the amended
complaints, and in the pretrial motion, this assertion is no longer made and
there is no mention of any immunity defense. "[A]n amended pleading
supersedes the original." Hal Roach Studios, Inc. v. Richard Feinsr & Co.,
896 F.2d 1542, 1546 (9th Cir. 1989) (citations omitted); accord Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). This rules applies as much
to amended answers as to amended complaints. See Goldstone v. Payne, 94
F.2d 855, 856 (2d Cir. 1938); see also District of Columbia, Dept. of Public
Works v. L.G. Industries, Inc., 758 A.2d 950, 957 n. 6 (D.C. 2000).

41.

The Board contended at oral argument that it had somehow
raised a sovereign immunity defense in the motion for summary judgment
filed pursuant to the settlement agreement between the Department and the
plaintiffs. However, the Board was not a party to either the settlement
agreement or the motions filed pursuant to that agreement, and cannot rely
upon either as raising that defense.

49a

did not mention a sovereign immunity defense in their briefs,
this court twice asked them to submit a letter brief about the
effect of the Supreme Court's recent decision in Board of Trs.
of the Univ. of Ala. v. Garrett, 121 S. Ct. (2001), on this case,
but they declined to do so” Consequently, the defense is
waived.

Additionally, it is undisputed that the Rehabilitation Act
applies in this case: the acceptance of federal funds upon which
the applicability of the Rehabilitation Act is conditioned serves
to waive sovereign immunity with respect to the claims that
arise under that Act. See 42 U.S.C. § 2000d-7; Jim C. v. United
States, 235 F.3d 1079, 1082 (8th Cir. 2000) (en banc) (holding
that accepting funds pursuant to § 2000d-7 is a valid waiver of
sovereign immunity); see also generally College Savings Bank
v. Florida Prepaid Postsecondary Educ. Expense Bd.,527 U.S.
666, 686-87 (1999) ("Congress may, in the exercise of its
spending power, condition its grant of funds to the States upon
their taking certain actions that Congress could not require them
to take, and that acceptance of the funds entails an agreement to
the actions."). As we have noted (see n. 17 supra at p. 16075-
76), the claims in this case are identical under the Rehabilitation

“2. The state declined because, although "the California Governor's
office and high ranking state officials have engaged, and they will continue
to engage, in consideration of the legal positions they may want to pursue
regarding [Garrett] [a] full consideration of this matter has been impossible
because these officials have been immersed in matters related to California's
current energy crisis." Shortly before the argument, we once again requested
the state to advise us of its position regarding Garrett or the status of its
efforts to determine its position. The state responded that "the state officials
with whom the Attorney General's office would need to consult on these
issues have been devoting their time and resources to negotiations with the
investor-based utilities [involved in California's energy crisis]." At oral
argument, in response to a direct inquiry from the panel, the state continued
to equivocate. We find this course of action bizarre and inexcusable. We
do so without even considering the other activities the Governor was busily
engaged in during the time in question. We also observe that it is now more
than seven months since the date of oral argument and the state has still not
accepted our invitation.

50a

Act and the ADA. Thus, the injunction would withstand a
defense of sovereign immunity even if a suit against the Board
under the ADA were barred.

Furthermore, Garrett makes clear that there is another,
independent basis for the implementation of the injunction:
there is no barrier to the injunction against Nielsen in his
official capacity as Secretary of the Board. Garrett, explicitly
stated that "[oJur holding here . . . does not mean that persons
with disabilities have no federal recourse against discrimination.
Title I of the ADA still prescribes standards applicable to the
States. Those standards can be enforced by . . . private
individuals in actions for injunctive relief under Ex parte
Young, 209 U.S. 123 (1908)." 121 S. Ct. at 968, n. 9. Because
the injunction requires Secretary Nielsen to comply with its
provisions, it would remain in force even if relief could not be
ordered against the Board, and its effect would, for all practical
purposes be the same. For the reasons set forth above, the state
is not immune from suit. Morever, the injunction would be
effective as to Secretary Nielsen in any event.

Ill. CONCLUSION

There is no dispute that the Board repeatedly violated the
ADA and the Rehabilitation Act, and it is evident that the
violations were system-wide. Plaintiffs have standing to seek a
remedy for those violations. In most respects, the class-
certification was appropriate. However, if plaintiffs seek to
include, within the class, sexually violent predators, mentally
disordered offenders, and prisoners or parolees with renal
impairments, named plaintiffs must be added to represent those
groups. Otherwise, the district court must modify the
certification order and the injunction accordingly. We interpret
paragraphs 6 and [5-18 of the injunction as permitting the
Department to object, for valid penological reasons, to the
transportation of prisoners (including those facing parole
revocation extension hearings) to alternative facilities, and as
permitting the Board to use the Department's tracking system to

5la

comply with the injunction. We order that paragraph 14 be
modified to the extent that it requires the Board to exercise
control over Department personnel, and direct the district court
to do so on remand. In all other respects the injunction is proper
and its scope appropriate. It does not violate the provisions of
the PLRA and is not inconsistent with Turner v. Safley.
Sovereign immunity does not bar this action, and Governor
Davis and Secretary Presley properly remain as defendants.

AFFIRMED IN PART, VACATED IN PART, AND
REVERSED AND REMANDED IN PART

BERZON, Circuit Judge, concurring:

I fully concur in the opinion, but write separately about
two related matters. First, the standing issue in this case is, I
believe, somewhat more straightforward than the court's opinion
may suggest. Second, it is useful to compare this case directly
to Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court's
most recent major pronouncement on the issuance of injunctions
in prison cases. Doing so demonstrates that the injunction in
this case suffers none of the standing or other defects that led
the Court in Lewis to preclude equitable relief. Because the two
points inform one another, I will discuss them together.

Standing is a jurisdictional issue. The court therefore must
address standing, where questionable, even if the parties do not
raise it. See, e.g., Juidice v. Vail, 430 U.S. 327, 331 (1977).
Here, the Bureau of Prison Terms and its Chairman (BPT) did
raise a standing issue, but on much more limited bases than the
court's comprehensive discussion may suggest. I mention that
not because I think the court is wrong to do a thorough job, but
because the fact that the BPT, in its very complete presentations,
did not raise at all some of the concerns the court discusses
suggests that, as the court ultimately concludes, there is no merit
to them.

52a

I therefore find it helpful to begin the standing inquiry with
the question the court addresses last but upon which the BPT
concentrated in its rather brief presentations -- namely, whether
the individual named plaintiffs suffered an actual injury. If they
did, then under Hodgers-Durgin v. De La Vina, 199 F.3d 1037
(9th Ur. 1999) (en banc), there is an Article III "case or
controv. v," and the question becomes whether the named
plaintiffs have made a showing of a "real or immediate threat
that the plaintiffs will be wronged again" adequate to maintain
a claim for equitable relief. Jd. at 1042, quoting Los Angeles v.
Lyons, 461 U.S. 95, 111, (1983).

The BPT maintains -- fairly cursorily -- that some of the
named plaintiffs suffered no "legal injury", by which I presume
BPT means that they suffered no Article III injury. Otherwise,
the argument could not matter for standing purposes. One
contention is that several of the named plaintiffs suffered no
such injury because they never asked for an accommodation.
But the question whether the provisions of Title II of the ADA
assuring disabled individuals equal access to public programs
are limited to those who request accommodation is a merits
question, not one that affects whether the plaintiffs have
suffered an injury in fact.

The BPT also suggests at points that the named plaintiffs
lack standing because they cannot show that the result of their
parole proceedings would have been different had they been
accommodated. A similar inquiry was central in Lewis, because
Lewis involved a constitutional challenge based on a right of
access to the courts. Given the basis for the lawsuit, the Court
in Lewis concluded that only inmates who could demonstrate
that the prison's failure to provide some means of accessing
courts deprived them of the ability to litigate an arguable claim
could show an actual injury. /d., at 351-353.

Here, however, the named plaintiffs are pursuing a
statutorily-protected interest in equal access with other prisoners
and parolees to parole-related BPT proceedings -- a dignitary

53a

interest, so to speak. Further, the statute under which they are
suing specifically protects disabled individuals' "participation"
in "programs" of a public entity. Plaintiffs are alleging, in other
words, that the ADA protects the right of disabled but otherwise
"qualified" individuals to participate in their own parole
hearings whether or not the result is affected, just as the same
statute protects the right of disabled but otherwise "qualified"
professional golfers to participate in tournaments even if they
come in last and don't win a penny. See PGA Tour, Inc. v.
Martin, 532 U.S. 661 (2001).

Another BPT contention is that because the California
Department of Corrections (CDC) entered into a settlement with
the plaintiff class regarding its own ADA violations, the
plaintiffs have no continuing "legal injury" with regard to
matters within the BPT's bailiwick that might be remedied by
the CDC plan. There is, however, nothing in the present record
regarding any actual relevant change of conditions due to the
CDC plan. The matter is therefore more properly addressed, as
the court addresses it, by adjusting the scope of relief to cover
only the BPT's involvement.

The BPT's fourth standing challenge concerns only the
plaintiffs who were involved in parole revocation proceedings.
BPT analogizes the plaintiffs' situation to that of ordinary
citizens who seek to contest governmental conduct that might
ensue if the plaintiffs break the law in the future, as in Lyons
and O'Shea v. Littleton, 414 U.S. 488, 499, 38 (1974). BPT
argues that the parolee plaintiffs in this case cannot allege a
credible threat of future injury sufficient to sustain a claim to
equitable relief, because the possibility that they will participate
in future parole revocation hearings depends on too many
contingencies.

The court addresses that contention convincingly, showing
that:

aT

54a

(1) Most importantly, many of the plaintiffs had already
been subjected to multiple parole revocation proceedings,
compare Hodgers-Durgin, 199 F.3d at 1045 (citizens stopped
repeatedly by Border Patrol agents should be able to
demonstrate the requisite likelihood of future injury, although
plaintiffs stopped once in ten years could not).

(2) There are various critical differences between the
situation of individuals subject to parole supervision and
ordinary citizens as regards the likelihood of future involvement
in liberty-threatening proceedings. These differences include the
fact of mandatory, ongoing interactions with law enforcement
officials, the fact that parole can be and often is revoked for
reasons other than violations of criminal laws, and the absence
of any probable cause requirement preceding a parole
revocation hearing.

(3) There would be no further contingencies if plaintiffs
were again threatened with parole revocation, because the
absence of accommodation was established BPT policy.

Interestingly, Lewis, while expressing great concern to
assure that only inmates who had suffered actual injury could
obtain injunctive relief, appeared willing to assume the
likelihood of future injury from actual injury in the past where
the affected plaintiffs and class members remained within the
corrections system and subject to its rules, regulations, and
facilities. The Court did not ask whether the illiterate plaintiff
who had his court case dismissed with prejudice because he had
no assistance in bringing it was likely to have a claim dismissed
again in the future for that reason. Instead, the Court held only
that "the remedy must. . . be limited to the inadequacy that
produced the injury in fact that the plaintiffhas established." Jd.
at 357.

For all these reasons, the named plaintiffs in this case, like
the two plaintiffs in Hodgers-Durgin, demonstrated that they
have Article III standing to pursue this litigation. The questions

55a

then become (1) whether they have also established entitlement
to equitable relief; and (2) if so, whether the scope of the relief
granted is commensurate with the showing of injury suffered by
the class.

It is critical to this case, in my view, that these two
inquiries are not the same. While the prevalence of similar
injuries among members of the class who are not named
plaintiffs is not relevant to the first inquiry, see Hodgers-
Durgin, 199 F.3d at 1045, the circumstances of class members
are relevant to -- indeed, of enormous importance to -- the
second inquiry, namely, the appropriate scope of any injunctive
relief, as Lewis indicates. See 518 U.S. at 359-60 (looking at all
the state's prison facilities and at class members who were not
named plaintiffs before concluding that there were only two
instances in which an illiterate inmate was unable to file a claim
because he did not have assistance); id. at 360 n. 7 ("[ojur
holding regarding the inappropriateness of systemwide relief for
illiterate inmates does not rest upon the application of standing
rules, but rather . . . upon the respondents' failure to prove that
denials of access to illiterate prisoners pervade the State's prison
system.")}" This consideration of class members' circumstances
once standing and entitlement to equitable relief by named
plaintiffs is established is commensurate with the general rule
that once a court properly certifies a class action, "the unnamed
persons described in the certification acquire[]a legal status

!. The Court goes on in the same footnote quoted in the text to say
that "The issue of systemwide relief has nothing to do with the law
governing class actions." Lewis, 518 U.S. at 360 n. 7. I take this statement
to mean that the mere existence of a certified class covering prisoners
throughout the system is not itself enough to justify systemwide relief.
Rather, it is necessary to demonstrate that class members were injured in
various institutions and with regard to the particular matters covered before
a broad systemwide injunction is justified. Still, without the class, the
individual plaintiffs would presumably be entitled only to injunctive relief
regarding their personal situations, so the class does matter to that degree,
as the consideration in the body of the Lewis opinion of the circumstances
of non-named plaintiffs demonstrates.

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56a

separate from the interest asserted by the appellant." Sosna v.
Iowa, 419 U.S. 393, 393 (1975); see also Gerstein v. Pugh, 420
U.S. 103, 110 n. 11, (1975)}”; United States Parole Comm'n v.
Geraghty, 445 U.S. 388 (1980).

As to the inquiry whether the named plaintiffs here have
established their own entitlement to equitable relief, the
circumstances surveyed above with respect to those plaintiffs’
Article III standing are determinative: The life prisoners have
a likely recurring injury, because they may well have repeated
parole suitability hearings and the record establishes that the
BPT had an ongoing policy of not providing for the full
participation of inmates with the named _plaintiffs'
communication, mental, and mobility disabilities. The parolees,
for the reasons already discussed, are more in the situation of
the inmates in Lewis than the free-roving citizens in Hodgers-
Durgin, as they remain subject to the direct supervision and
intervention of the criminal justice system even if they do not
break any criminal laws. They therefore have a likelihood of
recurring exposure to parole hearings, and to the BPT's legally
deficient policies regarding their participation in those hearings.

Turning to the second question -- whether systemwide
relief was merited -- it is here that the contrast with Lewis
becomes most stark. The ADA, as noted, protects against
exclusion from participation. In this case, therefore, unlike
Lewis, it suffices that such denial of participation exists for each
category of disability represented by the named plaintiffs as well

2. Gerstein is particularly informative here, as it involved a

challenge regarding pretrial detention hearings, somewhat similar in their
function and time-span to parole revocation hearings. The court noted that
even though the named plaintiffs were no longer in custody at the time the
class was certified, "in this case the constant existence of a class of persons
suffering the deprivation is certain," and, given the short-lived nature of any
particular defendant's claim to an adequate hearing, "[t]he claim. . . is one
that is distinctly ‘capable of repetition, yet evading review." 420 U.S. 103
at 111. The Court therefore allowed the case to go forward on a class basis,
taking into account the separate interests of the members of the class.

57a

as geographically across the system. Whether or not there are
inmates of each category throughout the system whose ability to
attain or stay on parole was affected as a result does not matter.
Compare Lewis, 518 U.S. 350 ("The foregoing analysis would
not be pertinent here if, as respondents seem to assume, the right
at issue -- the right to which the actual or threatened harm must
pertain -- was the right to a law library or to legal assistance.")
_ The plaintiffs have made this showing, through extensive
individual and expert testimony, and, critically, the BPT does
not now challenge as unsupported by the evidence any of the
findings of the court regarding particular examples of ADA
violations or the pervasiveness of its ADA violations throughout
the system.

The BPT comes at the contention that the named plaintiffs
should not have been permitted to attain relief directed at the
class's injuries in another way as well, maintaining that the
named plaintiffs should be allowed to represent only classes
with their particular disabilities, and then only with regard to
the type of hearing to which they were exposed. But there is no
reason that a plaintiff cannot be typical -- or present common
issues -- with regard to both the class of disability they have and
the type of hearing they have experienced, independently.

Moreover, how a class is properly defined depends largely
on the claim they seek to adjudicate. Here, the contention is
that the BPT had a consistent policy of precluding meaningful
participation in hearings for disabled prisoners and parolees
generally, and for the particular classes of disabled prisoners
and parolees represented by the named plaintiffs specifically.
There are only so many forms of interaction between the
prisoners and parolees and the BPT -- written, oral, and
physical. Whether a particular plaintiff has dyslexia or another
learning disability does not matter with regard to whether the
BPT has in place means of accommodating prisoners or
parolees who cannot read. In Lewis, for example, the Court
treated two illiterate inmates as raising a common issue
concerning adequate legal assistance without considering why

58a

each inmate could not read.” Similarly, whether a particular
plaintiff is a paraplegic or has multiple sclerosis does not matter
with respect to whether the BPT improperly conducts hearings
in places inaccessible to mobility-impaired individuals.

If the challenge were to a discrete BPT policy of refusing
to accommodate only certain disabilities within the groups of
disabilities included in the certified class, the Bureau might
have a point, but that is not the case. Similarly, if there were
some asserted conflict or diversity of interests between discrete
subgroups of disabled inmates or parolees relating to the causes
of action asserted, the BPT might have a point, but that is not
the case either.

There is one final comparison with Lewis that is worth
making and that the court makes: The process the district court
used here for devising a suitable rem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1701%3A2. Public record. Not legal advice.