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Ninth Circuit Shuts Down Settlement Agreement in Long-Running California Prisoners’ Gang Affiliation Suit

by David M. Reutter

On August 24, 2023, the U.S. Court of Appeals for the Ninth Circuit reversed a district court’s orders granting California prisoners a pair of 12-month extensions to a Settlement Agreement reached in 2015 with the state Department of Corrections and Rehabilitation (CDCR) to end the practice of housing prisoners in solitary confinement for long-term or indefinite periods based on their reported gang affiliation.

CDCR agreed in 2015 to implement various reforms to resolve a lawsuit that alleged violation of prisoners’ Eighth Amendment and Fourteenth Amendment Due Process rights. “Those reforms were chiefly intended to end the practice of SHU (Special Housing Unit) placement based on gang affiliation alone, eliminate indeterminate SHU sentences, reevaluate the placement of inmates currently serving indeterminate SHU sentences based on gang validation, and implement related reforms,” the Ninth Circuit noted.

The agreement allowed class counsel to monitor CDCR’s compliance with the agreement. The prisoners could seek a 12-month extension if they established by a preponderance of the evidence a “current and ongoing systemic” constitutional violation “as alleged in” the operative pleadings or “as a result of CDCR’s reforms to its Step-Down Program or the SHU policies contemplated by th[e] Agreement.”

The federal court for the Northern District of California granted two extensions of the Settlement Agreement in early 2022, finding CDCR continued to use “snitches”—incarcerated confidential informants—to make gang identifications of their fellow prisoners. Those gang “validations” were then used to make placements in solitary confinement and even to deny parole. But as PLN reported, Judge Claudia Wilken found the information is often inaccurate, exaggerated, or even fabricated out of whole cloth, so she granted the settlement extensions to address the “ongoing and systemic due process violations.” [See: PLN, Dec. 2022, p.12.]

CDCR appealed each order, and the Ninth Circuit consolidated the appeals. The Prisoners raised three claims, each independently sufficient to extend the Settlement Agreement if successful. The “Confidential Information Claim” alleged that CDCR regularly mischaracterized the intelligence gleaned from snitches and used in disciplinary hearings, also failing to verify the reliability of the information. The “Parole Claim” alleged that CDCR unconstitutionally used snitches to “validate” prisoners as gang affiliates but then failed to tell the parole board when the prisoners appeared there that old gang validations were unconstitutionally suspect. Parsing the language of the original complaint extremely closely, the Ninth Circuit found that it alleged neither of these claims—so they couldn’t be addressed in its settlement agreement.

The “RCGP Claim” alleged that CDCR’s notice and periodic reviews provided inadequate due process for prisoners placed in Restrictive Custody General Population Units. But the Court found RCGP does not impose an atypical and significant hardship in relation to the ordinary incidents of prison life; thus, prisoners do not have a liberty interest in avoiding RCGP. Thus the Court found that prisoners housed there do not “receive constitutionally deficient notice or periodic review that risks erroneous deprivation of inmates’ rights.” Rather it deferred to CDCR’s determination that a prisoner faces safety concerns to find no systematic violation of the Due Process Clause.

Finding no facts to support a current and ongoing systematic Fourteenth Amendment Due Process violation, the Ninth Circuit saw no reason to salvage the first settlement extension, which it said was improperly granted because the district court lost jurisdiction over the case after the 24-month settlement monitoring period ended. Reversing that order also required the Court to vacate the second extension on jurisdictional grounds; absent the first order the second could not be issued. An appeal of that order was dismissed as moot, too.

Plaintiffs were represented by attorneys Charles F.A. Carbone in San Francisco and Matthew D. Strugar in Los Angeles, with co-counsel from Siegel Yee & Brunner in Oakland; Weil Gotshal & Manges LLP in Redwood Shores; Bremer Law Group PLLC in Seattle; the American Civil Liberties Union Criminal Law Reform Project in New York; and the Center for Constitutional Rights in Birmingham and New York. A petition for rehearing en banc before the entire Ninth Circuit was denied on November 14, 2023. See: Ashker v. Newsom, 81 F.4th 863 (9th Cir. 2023); and 2023 U.S. App. LEXIS 30262 (9th Cir. 2023).  

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Related legal case

Ashker v. Newsom