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California Loses Round in Legal Fight to Deny Parole Based on Gang Affiliation

The suit affected some 1,600 prisoners held in isolation up to a decade at Pelican Bay State Prison, a supermax facility in Del Norte County, where even a greeting card received from a known gang member could establish an “affiliation” used to hold a prisoner in isolation.

The Court’s ruling was one of two handed down in 2020 related to the settlement and CDCR’s use of information like gang affiliation. The parties to the original 2015 suit first reached their settlement agreement and had it approved by the U.S. District Court for the Northern District of California in January 2016. But in October 2017, the plaintiff prisoners filed two motions to enforce what they argued were parts of the agreement that CDCR had failed to live up to. At issue were two paragraphs in the settlement agreement.

First the prisoners argued that CDCR violated the spirit of paragraph 25. As it directed, CDCR moved them from Restricted Custody — solitary confinement — into the prison’s general population, but it did not allow them any more out-of-cell time than they had received while in segregation. The District Court agreed in July 2018, adopting remedial plans the following December.

But those plans were stayed after CDCR filed an appeal. While not contesting the District Court’s finding that some prisoners receive limited out-of-cell time, the agency argued that paragraph 25’s requirement to transfer prisoners from “security housing” to the general population cannot be construed to force changes in procedures for the entire general population.

In a ruling on May 12, 2020, the Ninth Circuit agreed and granted CDCR’s appeal, noting that plaintiff prisoners could “not point to any settlement language requiring any specific out-of-cell time.” In fact, a requirement in paragraph 29 specifying 20 hours out-of-cell time weekly for prisoners remaining in solitary confinement showed that the parties “knew how to negotiate conditions,” the court said.

In the same ruling, the Court also settled a dispute arising from another paragraph in the settlement agreement pertaining to prisoners on “walk-alone status,” meaning they have restricted opportunities for physical contact with other prisoners when on yard time and restricted access to leisure time activities and social interaction. In addition, walk-alone-status prisoners can speak to other prisoners in front of their cells but cannot be released into the group. They do, however, have regular access to phones, visitors and educational programming.

The paragraph in question, Paragraph 28, requires CDCR to provide yard time in small groups to Restricted-Custody prisoners so that staff can make observations and evaluations before reaching out to other “groups within Restricted Custody,” asking if they will “accept the new inmate” and “commit to avoid trouble with the inmate.” The problem, the plaintiffs argued, was that if the prisoner couldn’t be matched to a “compatible group,” he remained indefinitely on walk-alone status.

A remedial plan for this had also been adopted by the District Court in December 2018. But the Ninth Circuit vacated that plan in its ruling that paragraph 28 does not require CDCR to do more than it already has for Restricted-Custody prisoners.

First, the Court found that the paragraph “strikes an aspirational tone” with its requirement that programming “will be designed to provide increased opportunities for positive social interaction.” Second, it noted that the paragraph refers to “small yard groups” but fails to set any numerical definition for their size, instead giving the Institutional Classification Committee discretion to limit the number of prisoners in a small yard group.

Furthermore, the Court said, most prisoners in Restricted Custody have access to activities enumerated in paragraph 28. While some prisoners remain on walk-alone status, the Court said, “given the institution’s safety concerns, these limitations are only minor deviations from Paragraph 28’s requirements.” See: Ashore v. Newsom, Case 18-16427, (9th Cir. 2020)

Confidential Information at Issue

In a separate and perhaps more consequential order related to the same class-action settlement, the Ninth Circuit took up CDCR’s appeal to a magistrate judge’s January 2019 order that the agency stop giving information to the California Board of Parole Hearings about prior gang validations for use during parole decisions, which prisoner plaintiffs argued violated their due process rights.

They also argued CDCR misused confidential information in disciplinary proceedings and violated prisoners’ due process rights through placement and review procedures for Restricted Custody prisoners.

The prisoners’ motion had first been scheduled for hearing by both U.S. District Judge Robert Illman and another magistrate judge, but the District Court removed the matter from its calendar, and the parties asked the other magistrate judge to “rule on” the extension motion “in its entirety.”

The other magistrate judge granted the prisoner’s motion, deciding that they could request a one-year extension of the 2016 settlement agreement if they showed current and ongoing violations by CDCR of their rights under the Eighth Amendment or the Due Process Clause of the U.S. Constitution.

CDCR appealed that order to Judge Illman and asked for a stay while the appeal was heard. But the District Court denied the stay because of doubts about the magistrate judge’s authority to issue the ruling under appeal. The prisoners then moved to dismiss the appeal for lack of jurisdiction.

On August 3, 2020, the Ninth Circuit granted that motion, saying that 28 U.S.C. § 636(c)(1) requires a District Court to specifically say what a magistrate judge can do in a civil proceeding. In this case, the appellate judges said, the District Court “did not designate the magistrate judge with authority” to enter the final order that he did. But “in the interest of judicial economy,” it recommended that the District Court read the order as a “report and recommendation.” See: Ashker v. Newsom, 968 F.3d 975 (9th Cir. 2020). 


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