The opinion of the court was delivered by: THELTON E. HENDERSON
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Plaintiffs represent a class of all prisoners who are, or will be, incarcerated by the State of California Department of Corrections at Pelican Bay State Prison, which is located in the remote northwest corner of California, seven miles northeast of Crescent City and 363 miles north of San Francisco. Pursuant to the civil rights statute 42 U.S.C. § 1983,
plaintiffs challenge the constitutionality of a broad range of conditions and practices that intimately affect almost every facet of their prison life. They seek redress from the Court in the form of injunctive and declaratory relief.
Although referred to in the singular, Pelican Bay State Prison ("Pelican Bay") actually consists of three completely separate facilities. The first is a maximum security prison which houses approximately 2,000 "general population" maximum security inmates. The daily routine for these inmates is comparable to that in other maximum security prisons in California. The second is the Security Housing Unit, commonly referred to as the "SHU." Located in a completely separate complex inside the security perimeter, the SHU has gained a well-deserved reputation as a place which, by design, imposes conditions far harsher than those anywhere else in the California prison system. The roughly 1,000-1,500 inmates confined in the SHU remain isolated in windowless cells for 22 and 1/2 hours each day, and are denied access to prison work programs and group exercise yards. Assignment to the SHU is not based on the inmate's underlying offense; rather, SHU cells are reserved for those inmates in the California prison system who become affiliated with a prison gang or commit serious disciplinary infractions once in prison. They represent, according to a phrase coined by defendants, "the worst of the worst." Finally, there is a small minimum security facility that houses approximately 200 prisoners. All in all, there are between 3,500 and 3,900 prisoners confined at Pelican Bay on any given day.
Just over five years old, Pelican Bay was activated on December 1, 1989. Considered a "prison of the future," the buildings are modern in design, and employ cutting-edge technology and security devices. This, then, is not a case about inadequate or deteriorating physical conditions. There are no rat-infested cells, antiquated buildings, or unsanitary supplies. Rather, plaintiffs contend that behind the newly-minted walls and shiny equipment lies a prison that is coldly indifferent to the limited, but basic and elemental, rights that incarcerated persons -- including "the worst of the worst" -- retain under the First, Eighth, and Fourteenth amendments of our United States Constitution. In particular, plaintiffs allege that defendants (1) condone a pattern and practice of using excessive force against inmates, (2) fail to provide inmates with adequate medical care, (3) fail to provide inmates with adequate mental health care, (4) impose inhumane conditions in the Security Housing Unit, (5) utilize cell-assignment procedures that expose inmates to an unreasonable risk of assault from other inmates, (6) fail to provide adequate procedural safeguards when segregating prison gang affiliates in the Security Housing Unit, and (7) fail to provide inmates with adequate access to the courts.
Named in their official capacity as defendants are Pelican Bay Warden Charles Marshall, Chief Deputy Warden Terry Peetz, Chief Medical Officer A. M. Astorga, and James Gomez, Director of the California Department of Corrections ("CDC").
They deny that any of plaintiffs' allegations have merit, and assert that Pelican Bay operates well within constitutional limits in each of the areas outlined above. Moreover, they argue, Pelican Bay, and the SHU in particular, does exactly what it was designed to do: it isolates the most brutal and disruptive elements of the inmate population while reducing violence in California state prisons overall.
The case was tried before the Court between September 14 and December 1, 1993. Immediately prior to the trial, the Court spent two days touring Pelican Bay, accompanied by counsel for both parties and prison officials. During the course of the trial, the Court heard testimony from 57 lay witnesses, including class members, defendants, and correctional employees at all levels. It also received into evidence over 6,000 exhibits, including documents, tape recordings, and photographs, as well as thousands of pages of desposition excerpts.
The Court recognizes that neither the inmates at Pelican Bay nor the Department of Corrections personnel can be considered neutral witnesses. For reasons that are self-evident, class members, as well as defendants and other prison staff, are interested in the outcome of the case. We also take into account the undeniable presence of a "code of silence" at Pelican Bay. As the evidence clearly shows, this unwritten but widely understood code is designed to encourage prison employees to remain silent regarding the improper behavior of their fellow employees, particularly where excessive force has been alleged. Those who defy the code risk retaliation and harassment.
We have considered all of the above, as well as the manner and demeanor of the witnesses, in assessing witness credibility and making our factual findings.
The Court was also aided by the testimony of ten experts in the areas of medicine, psychiatry, psychology, and prison management and operation.
With respect to the claims regarding excessive force and cell assignment practices, plaintiffs presented three experts: Charles Fenton, a former warden of two maximum security prisons,
Steve Martin, who spent more than 20 years working in varying capacities for the Texas Department of Corrections,
and Vince Nathan, who has worked for nearly 20 years as a court-appointed monitor and expert in prison cases.
Defendants presented two experts: Daniel McCarthy, who worked for almost 40 years in varying capacities for the California Department of Corrections, most recently as its Director,
and Larry DuBois, the Commissioner of the Massachusetts Department of Corrections.
With respect to the claims concerning medical care, mental health care, and conditions in the SHU, plaintiffs presented Dr. Armond Start, an associate professor at the University of Wisconsin Medical School and former director of health care services for the Oklahoma and Texas prison systems,
Dr. Stuart Grassian, a psychiatrist and faculty member at Harvard Medical School and expert on the effects of solitary confinement,
and Dr. Craig Haney, a professor of psychology at the University of California at Santa Cruz, who has specialized in the psychological effects of incarceration.
Defendants presented Dr. Jay Harness, a professor of surgery at the University of California at Davis and former director of health care services for the Michigan prison system,
and Dr. Joel Dvoskin, a clinical psychologist and director of the Bureau of Forensic Services for the New York State Office of Mental Health.
We are mindful that the opinions of experts are entitled to little weight in determining whether a condition is "cruel and unusual punishment" under the Eighth Amendment. Toussaint v. McCarthy (Toussaint IV), 801 F.2d 1080, 1107 n. 28 (9th Cir. 1986). As such, we have not relied upon expert opinion to make this ultimate legal determination. It is appropriate, however, for this Court to consider expert opinion in assessing subsidiary issues which inform the court's final determination. For example, expert opinion may be properly considered in assessing the effects of challenged conditions or practices. See Helling v. McKinney, U.S. , 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22 (1993) (making reference to the "scientific and statistical inquir[ies]" that will be used to determine the seriousness of the harm caused by challenged conditions); Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993)(en banc)(relying on expert testimony to establish psychological impact of challenged measure on inmates). See also Slakan v. Porter, 737 F.2d 368, 378 (4th Cir. 1984)(correctional expert's opinions concerning punitive nature of prison's water hosing practices properly admitted).
After the trial was completed, in December 1993, the parties filed proposed findings of fact and conclusions of law on January 28 and February 1, 1994. The case was taken under submission at that time.
Perhaps the paramount responsibility of prison administrators is to maintain the safety and security of both staff and inmates. Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447 (1979). In the setting of a maximum security prison, where inmates are more likely to pose security risks, this is a remarkably difficult undertaking. As the Ninth Circuit has previously said, prison officials have the "unenviable task of keeping dangerous men in safe custody under humane conditions." Spain v. Procunier, 600 F.2d 189, 193 (9th Cir. 1979). In a place like the SHU, which houses some of the most anti-social and violence-prone prisoners in the system -- including those who suffer from mental illness -- the task is that much more difficult.
There is no question that this demanding and often thankless undertaking will require prison staff to use force against inmates. Indeed, the responsible deployment of force is not only justifiable on many occasions, but absolutely necessary to maintain the security of the institution. As one expert at trial succinctly stated, when it comes to force, it is "as dangerous to use too little as it is to use too much." Fenton Tr. 5-766.
At the same time, the prison setting offers a tremendous potential for abuse. Custody personnel are in constant contact, day after day, with a difficult, frustrating, and sometimes openly and actively hostile inmate population. They also have powerful weapons and enormous manpower at their disposal, and exercise nearly total control over the inmates under their supervision. Adding to this volatile mix is the fact that the prison setting, and particularly the SHU, is far removed from the usual sights and sounds of everyday life. From the outside, the SHU resembles a massive concrete bunker; from the inside it is a windowless labyrinth of cells and halls, sealed off from the outside world by walls, gates, and guards. The physical environment thus reinforces a sense of isolation and detachment from the outside world, and helps create a palpable distance from ordinary compunctions, inhibitions and community norms.
If, in addition to all of the above, prison administrators fail to adequately supervise and monitor the use of force, the potential that force will be misused increases significantly. See Haney Decl. at 23-24. At trial, plaintiffs sought to prove that this potential for abuse was in fact realized at Pelican Bay, leaving in its wake a pattern of excessive force against inmates.
A substantial portion of the trial was devoted to this claim. The parties presented testimony from dozens of witnesses, including several inmates and CDC personnel at all levels. The documentary evidence presented included incident reports, Internal Affairs reports and investigative files and tapes. Several hundred pages of deposition testimony were also admitted into evidence.
As described above, the parties also presented five experts, Charles Fenton, Vince Nathan and Steve Martin (for plaintiffs) and Daniel McCarthy and Larry DuBois (for defendants), all of whom are distinguished experts in the correctional field. There were, however, significant differences in the amount of preparation they undertook prior to testifying. On the whole, plaintiffs' experts did substantially more to familiarize themselves with the particulars of Pelican Bay than did defendants' experts. For example, plaintiffs' expert Martin reviewed over one thousand documents, including all incident reports for each cell extraction and shooting that occurred at Pelican Bay through the end of discovery, all fetal restraint memoranda and Internal Affairs investigation files produced (including a number of related audio tapes), training materials, rules violations reports, grievance appeals submitted by prisoners, and 30 deposition transcripts. He also spent several days at Pelican Bay, from September 14-17, 1992, and July 7-9, 1993, during which time he toured the prison, conducted interviews with inmates, and met with correctional staff.
In contrast, defendants' expert Larry DuBois testified that he spent approximately 20 hours reading documentary evidence; in his own words, he "reviewed or cursorily reviewed" about a box and a half of documents relevant to the case (incident reports, training materials, Internal Affairs reports and policies). Tr. 29-4689. He also spent two days at Pelican Bay in October 1993, during which he met with the Warden and correctional staff, and observed demonstrations of various weapons at the prison's firing range.
After a thorough review and consideration of the testimonial and documentary evidence, the Court is compelled to conclude that the Eighth Amendment's restraint on using excessive force has been repeatedly violated at Pelican Bay, leading to a conspicuous pattern of excessive force. In many instances, there was either no justification for the use of force, or alternately, the use of force was appropriate, but the amount of force applied was so strikingly disproportionate to the circumstances that it was imposed, more likely than not for the very purpose of causing harm, rather than in a good faith effort to restore or maintain order. Although this pattern was probably more pronounced during the initial years of the prison's operation (and prior to the prosecution of the instant class action), the Court is satisfied that it continues to exist.
Plaintiffs' experts forcefully opined that the level of force used at Pelican Bay is well beyond the norm of any facility with which they are familiar. Nathan, for example, testified that "Pelican Bay State Prison exists in a very different universe. . . . In 18 years of involvement with a number of the most repressive and unlawful prisons in the United States, I have never observed . . . the level of officially sanctioned unnecessary and excessive force that exists at [Pelican Bay]." Nathan Decl. at 12.
As previously noted, the risk that force will be misused is considerably enhanced when prison administrators fail to implement adequate systems to regulate and monitor its use. Plaintiffs have demonstrated that such a failure occurred at Pelican Bay, and that it substantially contributed to the development and persistence of the pattern of excessive force. Finally, the evidence shows that the pattern of excessive force, and the lack of adequate systems to control it, are not simply the result of inadvertence, genuine mistakes in judgment, or good faith efforts gone awry. Rather, they are attributable -- not only to defendants' deliberate indifference -- but also their knowing willingness that harm occur. The Court agrees with Nathan's observation that "the use of unnecessary and excessive force at [Pelican Bay] appears to be open, acknowledged, tolerated, and sometimes expressly approved." Nathan Decl. at 12.
We divide our factual findings concerning the use of force at Pelican Bay into three parts: (1) findings regarding the pattern of excessive force at Pelican Bay, (2) findings regarding the lack of adequate systems to regulate and control the use of force, and (3) findings regarding defendants' state of mind.
1. Pattern of Excessive Force
a. Sampling of Evidence of Use of Excessive Force
(1) Staff Assaults on Inmates
On January 31, 1991, Arturo Castillo refused to return his food tray in protest against a correctional officer ("officer") who had called him and other inmates derogatory names. After leaving the tray near the front of the cell, Castillo retreated to the back and covered himself with his mattress for protection, in anticipation of a cell extraction.
It is undisputed that Castillo, who is small in stature, made no verbal threats or aggressive gestures. Nor did he possess, or pretend to possess, any kind of weapon. Shortly thereafter, Sergeant Avila warned Castillo that if he did not give up his food tray, it was going to be very painful. Castillo refused to hand Avila the tray, stating that if they wanted the tray, they would have to come and get it. The supervising lieutenant then authorized his sergeants to forcibly remove Castillo from the cell.
To accomplish this removal, two rounds from a 38 millimeter gas gun were fired into the cell. A taser gun was also fired, striking Castillo in the chest and stomach.
Then, without attempting to retrieve the tray (which remained near the front of the cell), some number of officers entered the cell, walked past the tray, and advanced toward Castillo. Castillo testified that one of the officers then hit him on the top of his head with the butt of the gas gun, knocking him unconscious. When he regained consciousness, he was on the floor with his face down. An officer was stepping on his hands and hitting him on his calves with a baton, at which point Castillo passed out a second time. When he regained consciousness again, he was dragged out of the cell face down; his head was bleeding, and a piece of his scalp had been detached or peeled back. At that point, it became clear that Castillo had been seriously injured, and he was taken to the infirmary and then to the hospital by ambulance.
According to the incident report, Castillo sustained his head injury when he fell and accidentally hit his head on the toilet during the incident. Trial Exh. P-1100 at 4099. Lieutenant Trujillo, who was present at the time, also testified that he saw Castillo "falling forward" and heard a "loud bang" and "somebody saying that he hit the toilet." Tr. 21-3638.
We do not, however, find defendants' explanation of the injury credible. First, Trujillo's testimony loses much of its force since he never actually saw Castillo's head hit the toilet even though he was "looking into the cell during the entire cell extraction." Tr. 21-3638-41, 3667-68. Nor did he recall seeing any blood on the toilet. Second, Castillo's credible testimony was unequivocally corroborated by Sergeant Cox, who observed the entire episode. Cox, who Trujillo admits "had a clear view" of the extraction, Tr. 21-3646, testified that he witnessed another sergeant "hit [Castillo] in the head with a 38 millimeter gun, by the butt of the gun." Tr. 15-2330. Cox further testified that he was "basically . . . ordered to keep my mouth shut and leave the area." Tr. 15-2334. In addition, plaintiffs' medical expert, Dr. Armond Start, gave unrebutted testimony that Castillo's head laceration was more likely the result of a high-velocity accelerated blow to the head than of a collision with a blunt, stationary object, particularly given that the injury occurred on the top of the head. Start Decl. at 242.
The record contains no evidence that would support the conclusion that striking Castillo on the head with a gun, with enough force to render him unconscious, was needed to retrieve the food tray, restore order, or otherwise protect the integrity of the institutional mission. Indeed, the fact that the supervising officer made no attempt to ascertain whether the food tray could simply be taken from the front of the cell, but instead immediately resorted to gas guns and tasers, reflects a pattern of using the maximum, rather than the minimum, amount of force necessary to accomplish a goal. Finally, the fact that officers continued to beat Castillo after he was subdued and unconscious further supports the Court's inescapable conclusion that Castillo was subjected to the use of excessive force that was imposed, not in a good faith effort to restore order or maintain security, but maliciously for the purpose of causing pain and inflicting punishment.
Richard, a general population prisoner, was working in the prison's optical lab in October 1991 when a disturbance erupted between some of the other inmates in the lab. There is no dispute that Richard, of slight build, was a victim rather than an aggressor in this incident. He received some minor injuries from another inmate, including a laceration on his left check from a scissors, screwdriver or similar instrument. It is undisputed that Richard did not assault any staff in this incident.
When he was subsequently placed in a holding cage, an officer informed him that he was rumored to have assaulted another officer during the incident. Richard denied the rumor and told him that other staff could verify that he was only defending himself from attack. Shortly thereafter, Officer Bray entered Richard's cell, grabbed his handcuffs, and took him to an adjacent counselor's office. There, he shoved Richard into a large table, on which Richard struck his face. Richard testified that while he was bent over the table, with his hands cuffed behind his back, Bray repeatedly struck his head, particularly on the side of the face where he already had the laceration. It is undisputed that Richard was not resisting at this time.
Bray then dragged Richard onto the floor where Bray continued the assault while another officer held Richard's legs. Richard testified that, despite his repeated denials that he had attacked anyone, Bray continued punching him about the head and neck, and continued to assert that Richard had assaulted another officer (who also happened to be a friend of Bray's). At one point, blood started shooting out of Richard's mouth, but the punches continued. He was then taken back to the holding cell, after the blood was washed from his face. During this incident, other officers watched but made no effort to intervene. After experiencing two days of intense pain and inability to chew, Richard was allowed to go to the infirmary, and he was subsequently informed that he had a fractured jaw. Five days later, he was taken to a hospital, and he spent the next six weeks with a wired jaw in the Pelican Bay infirmary.
Prison officials later suggested that Richard had fractured his jaw in the optical lab incident and not at the hands of Officer Bray. The Court again finds that this version of events entirely lacks credibility. First, immediately following the lab incident, Richard was taken to the infirmary and given an entire body check for wounds, which included an examination of the inside of his mouth; however, the medical report indicates only that Richard sustained a laceration on his cheek, a scrape on the top of his left thigh and a small abrasion on his right elbow. Trial Exh. P-3084 at 79958. Second, the prison's Chief Medical Officer later expressed the opinion to investigators that an attack with scissors or other similar instrument, like the one suffered by Richard in the optical lab, would not likely have caused a fractured jaw. Trial Exh. P-3084 at 79885. Further, Captain Jenkins testified that, in the course of investigating the incident, the officers involved made inconsistent statements which led him to believe that they were not being truthful about the incident. Tr. 3-360-61. He expressed concern that he was facing a "code of silence" problem, particularly because he felt that the correctional officers' union was suggesting that the officers "play their cards pretty close to the vest." Tr. 3-361-2.
Based on the above, the Court finds that Richard was beaten about his head and neck, and suffered a broken jaw, as punishment for an officer's belief that Richard had assaulted another member of the staff.
Given the severity of the injury, and the undisputed evidence that Richard neither provoked nor resisted Bray, the Court finds that Bray's use of force was not only excessive, but also completely unnecessary and inflicted for the purpose of causing pain rather than in a good faith effort to restore order or maintain security.
This incident was precipitated when Martinez spit at Officer Parson and threw his meal tray through the narrow food port, striking Parson. A short time later, correctional officers returned and ordered Martinez to submit to mechanical restraints before being removed from his cell. When Martinez refused, and shielded himself with a mattress and/or blanket, the officers fired tear gas and nine 38 millimeter gas gun rounds. When this did not subdue Martinez because of the shields, a team of officers, including Parson,
then entered the cell. Although Martinez was combative, kicking and striking with fists, he was ultimately subdued.
Louie Lopez, another inmate, was able to observe subsequent events. He credibly testified that he observed Martinez, then handcuffed, emerging from the cell and being thrown against the wall. At that point, "he was out [i.e. seemingly unconscious]. He wasn't moving." Tr. 1-68. Lopez then observed officers kicking Martinez' head, face, neck and shoulders, and saw a lot of blood. One of the control booth officers on duty also told the investigating officer that once Martinez was out of the cell, he was restrained and under control, yet an officer whom the booth officer could not identify had kicked Martinez in his upper shoulder or lower head area, after which someone said, "that's enough, knock it off!" Trial Exh. P-3083 at 79053. He also confirmed that other inmates on the tier could see what was happening and that they were yelling, "you can't kick a guy in the head like that." Trial Exh. P-3083 at 79052. As a result of this incident, Martinez lost four teeth, received a 1.5 inch laceration to the back of his head, and suffered abrasions to the head, face, back, neck, chest and both legs.
The Court finds that the level of force used against Martinez was not motivated by a good faith effort to restore order or maintain the security of the prison. Rather, the extraction was prompted by the desire to punish or retaliate against Martinez for spitting on an officer and striking him with a food tray. Moreover, even assuming that Martinez strenuously resisted during the initial part of the extraction, this furnishes no justification for the continued use of force after Martinez was subdued and no longer resisting. Such use of completely gratuitous force evidences a malicious intent to inflict injury rather than a good faith effort to restore order.
Kenneth Ward testified that one morning he refused lunch, which led to a heated verbal exchange with a female correctional officer (Officer Reynoso). Ward, who used profanity during the exchange, continued to be verbally abusive to Reynoso at other points during the day. The next morning, Ward was awakened by Officer Kelly who had returned with Reynoso. Kelly told Ward he was being moved. Ward did not at first understand what Kelley had said, so he stood up. He saw Kelley standing with a "smile on his face, and [saying] 'you like disrespecting my old lady, huh?'" Ward swore at both officers. Kelley responded that he would move Ward to a cell "in [Kelly's] block" with "somebody your [own] size." Ward Tr. 2-219.
When Ward protested, Kelly returned with Sergeant Rowland and three other officers. Rowland threatened Ward with a cell extraction and ordered him to "cuff up." Ward Tr. 2-220. Ward eventually turned his back to the cell door and put his hands through the small food slot (approximately four to five inches high and 12 inches long) to be cuffed up. Ward's trial testimony and the officers' deposition testimony about what happened next dramatically conflict.
According to Ward, one of the officers grabbed his arm and twisted his wrist upward, causing Ward enormous pain. When he couldn't take the pain any longer, he jerked his hands back inside the cell and accused them of trying to break his wrist, to which an officer again responded with a threat of a cell extraction. Ward then again placed his hands through the food port, at which point Kelly immediately jerked his left arm through the small slot all the way up to his tricep while Rowland grabbed the other arm. Ward then pulled his right hand back into the cell and bent down to try and ease the pain. At this point, Kelly repeatedly threw his body weight against Ward's left arm. It is undisputed that as a result, Ward's upper left arm snapped and broke. Ward immediately became lightheaded and he felt a lot of pain. He recalls that he felt as if he were in shock and was unable to move. As a result of this injury, Ward has suffered recurring problems with nerves in arms, including numbness and spasms.
Officers Rowland and Kenny did not testify at trial, but the Court has been provided with their deposition transcripts. Officer Rowland does not dispute that he heard a loud snap, after which Ward stopped struggling immediately, although Officer Kenny, who actually broke Ward's arm, denies hearing any snap. Both officers do, however, state that the amount of force used was necessary and appropriate because Ward was resisting being cuffed up, and was attempting to pull an officers' arm into the cell. Officer Kenny testified that when he tried to cuff Ward up the first time, Ward pulled on his thumb, which resulted in a sprain to his thumb and his wrist and some abrasions. Officer Rowland stated that it was better to gain control of the inmate in the manner they did than to have to send in a cell extraction team.
Even assuming that Ward was resisting in some fashion, we are convinced, by the weight of the evidence, that the force used was employed, at least in substantial part, for the purpose of inflicting pain and not for good faith security-related reasons. Several factors inform this finding. First, it is uncontradicted that the sheer amount of force required to break Ward's arm was "enormous," in the words of plaintiff's medical expert Dr. Armond Start. The Court itself observed that Ward has a well-developed physique. The sheer amount of force that would be needed to break Ward's arm suggests that excessive force was used.
The context also suggests that such force was probably unnecessary. The officers were not facing the threat of any immediate, serious injury, given that Ward was confined inside his cell, with his back to the cell door and his hands through a narrow food port. Even if Ward offered some struggle, there is no indication that the officers made any effort to end the incident by less violent means. In short, there is no convincing basis for concluding that the degree of force used was necessary to protect either the officers involved or any other person.
There are certainly instances where, in the heat of the moment, officers may use more force than intended. Such a case would suggest that the officers did not act with punishment in mind. Here, however, the manner in which Kenney and Rowland executed the cuff-up procedure -- severely twisting Ward's arm and using enormous pressure -- and their openly hostile attitude demonstrate an intent to do Ward some harm. Thus, although they may not have known that the precise level of force used would be sufficient to break Ward's arm, they clearly used unnecessary force with a knowing willingness that harm occur. It is also significant that the circumstances leading up to the incident provided Kelly with a motive for retaliating against Ward. All too often, the evidence showed that inmates suffered serious injuries after providing an officer with some provocation, such as spitting, name calling, or refusal to obey a minor order.
In this incident, an officer struck inmate Cooper twice with a closed fist in the head at a time when he was offering no resistance. Cooper was being escorted, in handcuffs and leg irons, by several officers from the Facility D Program hallway. When Cooper began resisting and kicking, Officers Plumlee and Bettencourt leaned against Cooper's legs and forced him against the wall. At this point, two other officers both observed that Cooper was under control and unable to kick, but that Officer Plumlee nonetheless proceeded to punch Cooper twice in the face with a closed fist. An internal investigation concluded that Plumlee had hit Cooper twice on the left side of his face with a closed fist, which is also consistent with a subsequent medical report, which indicated contusions to the left chin, left cheek, and mid forehead, a black eye and a small cut above the eye. Trial Exh. P-3087 at 77542. Although Officer Plumlee defended his punches as being simply "reflexive," the Court finds that the record, overall, does not support his position, given the eyewitness reports of the other officers and the fact that there were two punches thrown. We further find that punching Cooper at a time when he was restrained and under control constituted a gratuitous and unnecessary use of force that was imposed not for any security related purpose but for the purpose of inflicting pain.
Vaughn Dortch, a mentally ill inmate, suffered second-and third-degree burns over one-third of his body when he was given a bath in scalding water in the prison infirmary. The week before the incident Dortch bit an officer. Dortch had also created a nuisance by smearing himself and his cell with his own fecal matter. Although there was a shower near Dortch's cell, which would have provided a more efficient method of cleaning Dortch than a bath (even assuming Dortch was uncooperative), the officers instead forcibly escorted Dortch to a bathtub in the SHU infirmary, located some distance away in another complex.
According to Barbara Kuroda, the nurse on duty at the infirmary, a Medical Technical Assistant arrived shortly before Dortch, and was asked if he "want[ed] part of this bath," to which he responded, yes, he would take some of the "brush end," referring to a hard bristle brush which is wrapped in a towel and used to clean an inmate. Tr. 1-144. Five or six correctional officers then arrived with Dortch. Although a nurse would normally run the water for a therapeutic bath, Dortch's bath was managed solely by correctional staff.
Kuroda later observed, from her nurse's station, that Dortch was in the bathtub with his hands cuffed behind his back, with an officer pushing down on his shoulder and holding his arms in place. Subsequently, another officer came into the nurse's station and made a call. Kuroda's unrebutted testimony is that she overheard the officer say about Dortch, who is African-American, that it "looks like we're going to have a white boy before this is through, that his skin is so dirty and so rotten, it's all fallen off." Tr. 1-154. Concerned by this remark, Kuroda walked over toward the tub, and saw Dortch standing with his back to her. She testified that, from just below the buttocks down, his skin had peeled off and was hanging in large clumps around his legs, which had turned white with some redness. Even then, in a shocking show of indifference, the officers made no effort to seek any medical assistance or advice. Instead, it appeared to Kuroda that the officers were simply dressing Dortch to return him to his cell. When Kuroda told them they could not return him in that condition, Officer Williams responded, in a manner described by Kuroda as disparaging and challenging, that Dortch had been living in his own feces and urine for three months, and if he was going to get infected, he would have been already. Williams added, however, that if Kuroda wanted to admit him, she could do the paperwork. Dortch then either fell, or began falling, to the floor from weakness, at which point Kuroda had Dortch taken to the emergency room. Although Dortch was not evidencing any pain at this point, Kuroda testified that this did not surprise her. Because severe burns destroy the surrounding nerve endings, the victim does not experience any pain until the nerves began to mend. Dortch was ultimately transported to a hospital burn center for treatment.
Based on the record before us, we can not say that any of the staff involved in the incident specifically intended the severity of the burns inflicted upon Dortch. It is unclear whether the officers knew the actual temperature of the water or the full extent of the burns that were being inflicted.
Nor did Dortch yell out in pain to alert the officers.
On the other hand, officers were observed holding Dortch down in the tub, and the burns he was experiencing must have been visible.
Although we assume, for purposes of this case, that those involved did not intend to inflict third-degree burns, it is nonetheless clear, from all of the surrounding circumstances, that Dortch was given the bath primarily as a punitive measure and for the purpose of inflicting some degree of pain, in retaliation for, and perhaps out of frustration with, his prior offensive conduct.
In this incident, John Brown was taken from his cell in full restraints when a staff member observed, and later reported to internal investigators, that Brown was kicked in the face by another officer in the presence of a Lieutenant, Sergeant, and acting Program Administrator. There is no evidence that he was struggling or resisting at the time.
In an interview with investigators, Brown also stated that he had been kicked in the head three or four times while being carried in restraints. Trial Exh. P-3085 at 7766-1-02. The medical report, which is consistent with being kicked in the face, notes an abrasion on the right side of his face and a 1/2 inch cut on his chin. Id. at 77638. The fact that Brown was kicked in the face for no apparent reason, while he was fully restrained, leads us to conclude that this force was applied maliciously for the purpose of causing harm rather than to restore or maintain security.
(2) Use of Fetal Restraints
The fetal restraint, also known as "restraint control status" or "hog-tying," is a particular type of in-cell restraint. Utilized numerous times until late 1991 or mid 1992, the fetal restraint procedure involves handcuffing an inmate's hands at the front of his body, placing him in leg irons, and then drawing a chain between the handcuffs and legs until only a few inches separate the bound wrists and ankles. At least one officer, however, handcuffed inmates in the back, so that the inmate's arms were behind his back and his ankles were up around his handcuffs. The fetal restraint was applied most commonly in response to an inmate kicking his cell door, although it was utilized on other occasions as well.
Plaintiffs' medical expert confirmed inmate testimony that being in this position without the ability to stretch one's legs or arms would, over time, likely cause considerable pain,
and could pose a serious health risk to inmates with respiratory ailments. Thus, unlike four- or five-point restraints, which completely prevent any disruptive movement without imposing pain or health risks, fetal restraints can inflict significant pain and yet not fully secure the inmate.
Notably, no expert at trial defended the use of fetal restraints. Plaintiffs' expert described such restraints as a painful, repugnant, humiliating punishment, and termed their level of use at Pelican Bay "unprecedented" in modern corrections.
Martin Tr. 18-1351 Defendants' expert Daniel McCarthy testified that he had never previously used or seen anyone use a fetal restraint in his forty years in the California Department of Corrections, and did not believe that it would be an acceptable technique. Defendants' other expert, Larry DuBois, also stated that he had never used a fetal restraint and that he had not been asked to express an opinion regarding its use.
The testimony of Mark Jones, which was not refuted at trial, provides but one example of an inmate's experience with fetal restraints at Pelican Bay. On one occasion, Jones repeatedly kicked his cell door to get the attention of the control booth officer, in an effort to get him to close the door to the exercise pod, which was letting in cold air. In response, he was put in fetal restraints for five hours. Another time, Jones attempted to call up to the control booth officer to find out why the television in his cell was not working, but was ignored. When he tried again later that day, and was still ignored, he started kicking the cell door to get attention. About 10 or 15 minutes later, a sergeant and a few more officers went to his cell. Upon admitting that he had been kicking the door, he was put in his bunk in fetal restraint chains for approximately nine hours, from 1:00 p.m. to about 10:00 p.m. He was in pain after a while but eventually fell asleep. When he awoke, parts of his body were asleep. He attempted to spin around, but, unable to control his movements, fell off his bunk, hitting his back, head and shoulder on the floor.
Officers who later arrived to deliver Jones his regularly-scheduled medicine refused to remove the restraints, instead taunting him that he should "get up and get [his medicine]." In response, Jones got "kind of verbal." Jones Tr. 3-521. Approximately one hour later, the fetal restraints were removed by another officer.
On another occasion, following a verbal altercation between Jones and an officer over a book that had been confiscated, two officers handcuffed Jones and escorted him down the hallway, pulling him sideways at times. When Jones complained, one of the officers slammed Jones' head into the wall, chipping his teeth. Jones was then taken to a holding cell where he was put in fetal restraints for four hours. In none of these instances is there any evidence that the fetal restraints, particularly for periods of four to nine hours, were necessary for security reasons. Rather, their usage evinces an intent to punish and inflict pain.
Inmates restrained in fetal restraints were at times also chained to toilets or other fixed objects, particularly during program administrator Rippetoe's tenure in the SHU. Although there is directly conflicting testimony regarding the extent of this practice, the Court finds that it was more than merely an occasional occurrence. Sergeant Cox testified credibly that during the limited period that he was working overtime in the SHU, he personally observed, over the course of different shifts, ten to twelve inmates who were in fetal restraints and chained to stationary objects. Some staff, including Sergeant Cox, objected to this practice, and one SHU program administrator testified that he "never has and never would" authorize such a practice. Lopez Tr. 14-2196. Sergeant Cox testified, however, that his objections were dismissed out of hand. When he asked Rippetoe why they were engaging in this practice, he responded "because we can do it." Tr. 15-2345. When he raised the issue with Associate Warden Garcia, he was told "this is Pelican Bay State Prison, and if you don't like it, get out . . . We're going to do it our way." Tr. 15-2347.
Prison records indicate that fetal restraints were used in dozens of instances between January 1990 and August 1992.
Such restraints were imposed from anywhere between a few minutes to 24 hours, with most instances falling in the three to six hour range. Current written SHU policies permit use of fetal restraints for up to 12 hours without obtaining consent of the Warden. Whether an inmate would be freed from the restraints in order to eat or use the toilet was left to the discretion of individual staff.
At trial, defendants did not attempt to justify the fetal restraints as an appropriate response to the kicking of cell doors per se, although current SHU policy permits the use of fetal restraints for cell door kicking. Trial Exh. D-49 at 18307.
Indeed, although cell door kicking is a common occurrence, no lay or expert witness was able to identify any other prison that resorted to fetal restraints in response.
Integrity of cell doors is, of course, a critical security concern. However, we are not persuaded by the record that repairs to address the metal fatigue problem were not undertaken until late 1991. Although defendant Peetz testified that repair work on the cell doors occurred between approximately June and December 1991, it appears that these repairs primarily concerned another door problem involving the pneumatic locking mechanism, which was not discovered until sometime in 1991.
Prison officials were extremely vague as to what was done and when to respond specifically to the metal fatigue problem. One SHU program administrator testified that work was done to reinforce the holding cells in the SHU (where inmates kicking their cells could be placed), and that this work probably took a "week or so." Lopez Tr. 14-2199. He did not identify any time frame for this work. It is highly unlikely, however, that it was not done until 1991. As stated above, prison officials discovered the metal fatigue problem as early as December 1989 or January 1990. It is not credible that they would have waited until December 1991, two years later, to reinforce the holding cells, if in fact, metal fatigue presented a serious security concern.
More fundamentally, however, we are not persuaded that the use of fetal restraints was necessary or primarily prompted by legitimate penological purposes. The "D" wing of the SHU and the "C" wing of the SHU suffered from the same metal defect, and housed roughly the same number of inmates (physically the two wings are mirror images of each other). Yet, during the period that inmates in C-SHU were fetally restrained on dozens of occasions, fetal restraints were used in D-SHU less than 5 times. Given that defendants offered no basis for concluding that the inmates in D-SHU would be less likely to kick their cell doors than in C-SHU, this discrepancy in numbers is a compelling indication that the utilization of fetal restraints was not necessary to maintain security.
Moreover, fetal restraints did not even effectively prevent continued kicking of cell doors. As Captain Scribner agreed, it was "clear that if an inmate wanted to kick the door while he had his [fetal restraint] chains on . . . he could do so," and in fact it appeared to him that an inmate might end up kicking the door even harder after he was restrained. Scribner also testified that such an inmate could still get "enough of a kick" that he could compromise the integrity of the door. Scribner Tr. 7-1241, 6-1120. Indeed, it is clear that the continued ability to kick only escalated the need for more restraints, such that there was a practice, albeit relatively short-lived, of locking an already fetally-restrained inmate to his toilet -- a practice which Lieutenant Carl agreed was in violation of governing California regulations. Carl Depo. at 291-92.
The use of fetal restraints in response to the kicking of doors becomes particularly suspect when it is considered that a far more effective, yet less painful, alternative was available. As plaintiffs' expert Steve Martin emphasized without contradiction, from a custody standpoint, the most effective means of preventing an inmate from kicking a cell door is to place him in full restraints: "you put a man in a four-point, five-point restraint, he's not going to kick a door." Tr. 8-1350. And, as noted above, full restraints accomplish this result without inflicting discomfort and pain. Nonetheless, there is no indication in the record that defendants ever considered full restraints as an alternative at any point between December 1989 and December 1991.
We do not, and need not, find that every application of the fetal restraint at Pelican Bay was punitive in nature. Nor do we address the facial validity of the prison's fetal restraint rule. However, the record and particular circumstances presented here convince us that there was a practice of using fetal restraints at Pelican Bay for solely punitive rather than good faith security purposes.
Another use of force at Pelican Bay that is punitive in character is the confinement of naked or partially dressed inmates in outdoor holding cages during inclement weather. These cages, approximately the size of a telephone booth, and constructed of weave mesh metal, are designed to provide a temporary holding place for an inmate, and are positioned at various locations around the prison. Inmates confined in the cages are exposed to the elements as well as public view.
Violet Baker, a former educational program supervisor at Pelican Bay, gave a frank and credible account of one such incident. She testified that one day in late January or early February, she was walking from her office toward another facility. It was very cold (she was wearing gloves and a heavy jacket), and it was pouring rain. She observed two African-American inmates being held naked in two cages. When she passed by again one hour later, one inmate was still there, and she observed that he was covered with goose bumps. He said he was freezing, and asked her to request a pair of shorts and a T-shirt. She then saw an officer coming in her direction. When she looked at him, he looked back and just shrugged his shoulders, saying it was "Lieutenant's order." When she determined that it was Lieutenant Slayton on duty, she let the matter drop. Although the incident upset her, Slayton had a reputation for causing problems if crossed, and she did not want her educational program or teachers to suffer by her interference in this matter.
In another such incident, inmate Johnny Barnes testified credibly that he was caged naked in one of the outdoor holding cages on a "misty" day. Although he was bleeding from his nose and mouth after a physical altercation with several correctional officers, Barnes was held in the outdoor cage for an hour and a half without receiving medical attention. In public view of whoever passed by, Barnes recalled that he felt like he was "just an animal or something." Tr. 10-1529.
Lieutenant Slayton at first denied that there was "ever any occasion" when an inmate was held in a holding cell completely nude. Tr. 20-3363. However, he later testified that there were instances where inmates were briefly held naked in cages, but insisted that they were dressed as soon as possible. Providing inmates with clothes was a priority, he testified, because of the inclement weather, and because "it's just a common dignity." Tr. 20-3364.
Clearly, there are times when prison officials will need to take an inmate's clothes, as potential evidence after an incident, or for other justifiable purposes. And we agree with Lieutenant Slayton that providing substitute clothes is not only a matter of health and safety in inclement weather, but a matter of common dignity, given the public placement of the cages and the routine presence of female staff. However, his testimony that the inmates were never caged naked for more than brief periods lacks credibility in light of his inconsistent testimony on this point, as well as the credible testimony of Violet Baker and Johnny Barnes.
Such incidents may be relatively infrequent. Baker testified that she had never seen anyone naked in the cages except for that one day.
However, as Martin observed, this is the type of incident that is not typically memorialized in reports, making it difficult to determine how often it occurs. Notably, neither of the above incidents were documented, which leads the Court to conclude that there likely have been other undocumented instances as well. The reaction of the correctional officer to Baker's inquiry suggests that this was not considered an extraordinary or unique event.
Leaving inmates in outdoor cages for any significant period -- as if animals in a zoo -- offends even the most elementary notions of common decency and dignity. It also fails to serve any legitimate penological purpose in any kind of weather, much less cold and rainy weather. The fact that it occurred at all exhibits a callous and malicious intent to inflict gratuitous humiliation and punishment.
The forcible removal of an inmate from his cell -- also known as a "cell extraction" -- is indisputably an essential tool in maintaining security in any prison. There will clearly be occasions when security concerns mandate that an inmate be removed from his cell against his will, such as where the inmate is suspected of harboring contraband, or has had an altercation with a cellmate. Such a forcible removal can be accomplished by various means. Staff who are completely unarmed, or armed only with a mattress or shield, can use sheer weight and numbers to overwhelm the inmate.
At the other extreme, staff can be highly armed, even during routine extractions, as is the case at Pelican Bay.
Indeed, the cell extraction process at Pelican Bay is an undeniably violent maneuver which can involve several weapons, including 38 millimeter gas guns, tasers, short metal batons, and mace. It also results in frequent injuries and infliction of pain. As Chief Deputy Warden Peetz summed it up, "cell extractions are a very, very violent maneuver . . . Inmates get hurt and staff get hurt, and it's just the nature of the thing." Tr. 20-3316. As such, witnesses for both sides agree that cell extractions should be performed only when necessary. Indeed, under normal circumstances, an inmate should not be extracted absent an imminent risk to the safety and security of the institution. Scribner Tr. 7-1211.
(ii) Unnecessary use of cell extractions
Notwithstanding the above, for over two years (until February 1992), the number of extractions at Pelican Bay prison was clearly greater than necessary to meet safety or security needs. Prison records show that for the period through February 1992, 205 inmates were cell extracted in 26 months, at a rate of approximately 94.5 per year. Fenton viewed such numbers as "seriously excessive," Fenton Tr. 5-792, while defendants' experts also acknowledged that the number of extractions the first two years was "relatively high," DuBois Decl. at 4-5, or "a little on the high side." McCarthy Tr. 15-2472.
A comparison with practices at the prison since February 1992 is particularly revealing. From that date through May 1993, a period of 16 months, only 26 extractions were performed, at a rate of approximately 1.6 per month or 19.5 per year. This constitutes a drop of almost 500 percent from the previous 16 months (October of 1990 through January of 1992), when 120 inmates were cell extracted at a rate of 7.5 per month or 90 per year.
Rather, the substantial reduction in extractions after February 1992 more likely reflected a change in policy. The Court further finds no indication that the safety or security of the institution was compromised by this change. As such, we agree with plaintiffs' experts that the previous volume of extractions was unnecessarily high.
This conclusion is confirmed by the fact that prior to February 1992, cell extractions -- using the full arsenal of force described below -- were frequently employed, not to address imminent threats to security, but to respond to relatively minor infractions. For example, inmates were subjected to full scale cell extractions, often resulting in significant injuries, for not promptly giving up a meal tray, a jumpsuit, a pair of tennis shoes, or a skull cap. Martin Decl. at 40-57.
Many of these cell extractions were performed without any indication that the situation presented an imminent security risk. Clearly, defendants are entitled to enforce prison rules through normal disciplinary channels; inmates must be made to know that prison rules can not be ignored without consequence. However, in this case, it is clear that minor infractions were used as a pretextual justification for inflicting physical, and often brutal, punishment.
Under the current policy, an inmate is allowed to keep his tray unless it appears that he is attempting to turn it into a weapon. If the tray is still not returned by the time of the night watch, staff will conduct a cell extraction to retrieve the tray. Notably, this new policy has resulted in far fewer extractions. As one program administrator explained, trays were generally withheld because the inmate perceived some sort of problem, and by having staff talk to them, the situation can usually be resolved short of conducting an extraction.
(iii) High degree of force
The mere fact that staff employs a procedure more often than necessary, may not, in and of itself, warrant serious concern. In this case, however, the unnecessarily high number of cell extractions in 1990 and 1991 takes on a much more troubling and ominous character given that these extractions routinely involved a strikingly high degree of force, and resulted in numerous injuries that were too often left unexplained by official incident reports.
Based on the evidence and written policies, cell extractions would generally proceed as follows: First, a supervising officer must approve the cell extraction.
Then a team of four correctional officers is assembled, wearing special protective gear, including helmets with visors. Each team member carries one of the following: a large plexiglas shield, a small metal baton, leg irons, or hand cuffs. The two officers carrying the shield and baton are generally referred to as the "shield man" and the "baton man." A Medical Technical Assistant ("MTA") must also be present in case of injuries.
The supervising sergeant and/or the lieutenant then typically fire some combination of the following weapons, any one of which can potentially cause serious injury: a 38 millimeter gas gun (which ejects high velocity rounds of rubber blocks), mace (a chemical agent that causes a burning sensation and tearing of the eyes) and a taser (which temporarily incapacitates an inmate by way of electrical shock). The four member team then enters the cell.
According to SHU regulations, the shield man enters the cell and rushes the inmate, striking him in the chest area with the shield and forcing him against a wall. If the inmate resists, the second team member, armed with the baton, should provide protective coverage by "rapidly and repetitiously" striking the inmate's shoulder and clavicle with the baton. "As the inmate is pinned against the wall by the shield officer, and busy blocking the blows of the baton officer," the third and fourth team members enter the cell, help subdue the inmate, and apply handcuffs and leg restraints. Trial Exh. D-49 at 1892-94. The inmate is then removed.
Not every weapon described above is used in every cell extraction; however, most cell extractions involved multiple weapons, and each weapon was often used more than once.
It is an undeniably massive combination of weapons and manpower, especially considering that the target is almost always an unarmed inmate
already behind cell doors.
The taser, for example, which was routinely used until late 1992, inflicts significant pain,
and is described by one lieutenant as resembling being hit on the back with a " four-by-four" by Arnold Schwarzenegger. Scribner Depo. at 44-46. When activated, the taser ejects two thin wires with darts that pierce the inmates' skin and transmit an electrical shock of 40,000 to 50,000 volts, temporarily paralyzing the body's large muscles. Between July 1990 and July 1992, tasers were used in approximately 70 percent of all extractions.
And although the CDC's main training academy suggests that maintaining the voltage 2 or 3 seconds should be sufficient, numerous inmates received discharges of 5 to 7 seconds, double the suggested length. Notably, there is no evidence that discontinuation of the taser in September 1992 adversely affected either the security of the prison or the safety and efficiency with which cell extractions were performed.
The 38 millimeter gas gun can also cause serious pain and injury. Generally fired into the cell through the narrow food port, it ejects high speed rounds of rubber blocks (approximately 1 and 1/2 inches across) which ricochet in an unpredictable pattern around the cell. Given the small space of the cell, the ricochet has sufficient velocity to inflict significant pain or injury if it hits an inmate. As Captain Scribner testified, if such a ricochet hit an inmate's head, it could possibly cause "great bodily injury." Tr. 6-1113. Captain Jenkins similarly testified that it was possible that a ricochet from a gas gun round could strike an inmate in the face with sufficient force during a cell extraction to knock out his teeth. Jenkins Tr. 3-408. And should an inmate be hit directly at close range, the result could be serious injury and possibly death.
Former Warden Fenton emphasized the serious nature of using a gas gun in cell extractions: "The pellet [gas] gun . . . If it hits in the wrong place, it can result in serious injury or death. . . . Why would you fire that into a cell where the maximum distance doesn't exceed eight feet if, in your own opinion, it's capable of killing somebody?" Fenton Tr. 5-780 (referring to policy discussed in note 46, supra).
Nonetheless, gas guns were routinely discharged during cell extractions. Although no one has yet been killed, inmates have suffered injuries from shots that have hit the inmate directly or by ricochet. Notably, the evidence does not show that any consideration has ever been given to tempering the frequency or the manner in which the gas gun is used at the prison.
Use of the short baton has also resulted in numerous injuries. Although Pelican Bay policy provides that its purpose is to strike an inmate on the shoulders if he is still struggling or reaching around the shield, there is little evidence that the baton is limited to this use. Not only did staff testify that it was used to strike inmates on the feet or ankles, but the medical reports reflect that inmates received baton welts on their backs and other parts of their bodies during cell extractions.
The Court has no doubt that the baton has frequently been used against inmates in ways beyond those authorized by formal cell extraction procedures.
Both of plaintiffs' experts were clearly amazed and disturbed by the level of force that was employed in cell extractions on a routine basis.
Martin unequivocally testified that the amount of force used in Pelican Bay cell extractions, as a routine practice, has been grossly excessive, utterly unbelievable, and without parallel in present-day American corrections. Decl. at 7; Tr. 8-1322. Former Warden Fenton stated that he could only come up with two explanations for the methods of carrying out cell extractions at Pelican Bay: "either they absolutely don't know what they're doing, or they're deliberately inflicting pain." Tr. 5-792. Neither was aware of any other institution which even approached the level of force in cell extractions that was routinely applied at Pelican Bay. Nor did defendants' expert Dubois offer a defense of the routine use of multiple weapons which characterized actual cell extraction practices at Pelican Bay.
Martin also testified that the deployment of the extensive weaponry at Pelican Bay does not, in many cases, effectively advance the purpose of an extraction, which is to secure control of and move the inmate. Tr. 8-1323. Fenton expressed the same point in his testimony, stating that the routine use of all of these weapons "strikes me as a ritual of inflicting punishment. Why in the world would you over and over and over again do all these things?" Tr. 5-779-80.
Most significantly, the high level of force employed in cell extractions has resulted, time and time again, in significant injuries, many of which were indicative of beatings by staff. Martin's declaration details many such instances (mostly unrebutted) which are too numerous to summarize here; we include one as an example:
Luis Fierro Extraction : According to the incident report . . . Mr. Fierro . . . refused to return his dinner tray. He gave as his reason the fact that he had been denied the opportunity to get a haircut that evening . . . Ten minutes later . . . an extraction team [arrived]. . . . Mr. Fierro did not have a weapon, and he is listed as 5'8" and 130 pounds. According to the incident report, Mr. Fierro "verbally challenged staff to enter his cell." Sgt. Upton states that Mr. Fierro then began "banging on the cell door with his food tray." CO [Correctional Officer] Davis described Mr. Fierro's conduct as an attempt "to block the food tray slot with his tray." According to Lt. Arneson, Sgt. Avila then "discharged two multiple baton rounds from the Federal Gas Gun to dislodge the tray from Fierro's hands." Sgt. Avila reports that he fired one of these rounds off the cell floor, but he does not say the same for the other round. This omission is potentially significant inasmuch as Mr. Fierro was hit in the groin by one of the Sgt. Avila's shots. If Mr. Fierro was standing close enough to the door to bang on it with the tray, or to attempt to block the food tray slot, it is difficult to imagine how a shot fired off the floor could ricochet up an hit him in the groin. Based upon Lt. Arneson's description, it appears to be as likely that Mr. Fierro was hit directly with a shot to the groin. . . .
At the conclusion of this retrieval of Mr. Fierro's meal tray, therefore, Mr. Fierro had been hit in the groin (possibly directly) with a gas gun round; struck with two bursts of mace; and been subjected to two jolts from the taser. In addition he suffered what are described in the report . . . as "minor abrasions and bruises." These "minor" injuries are described [in the medical report as]: (1) multiple areas of bright red bruising on back, especially upper back, (2) scratches on left neck, left cheek and right cheek, (3) abrasion and bruising of left shoulder; (4) bruising and swelling about both eyes at edges of eye brow, (5) small scratch on right calf . . . (6) large abrasion [on] right chin, (7) large areas of bruising around both ankles, (8) bruising on left upper outer thigh, (9) abrasion on left shin, and (10) abrasion right calf.
Very few of these injuries can be accounted for by the officers' version of events. Most notable are the injuries to Mr. Fierro's face and back, which are the areas that are most commonly a "red flag" that an inmate has been assaulted. None of these injuries [described above] can be explained by the gas gun, the taser or the mace. Nor can they be explained by the process of "taking [Mr. Fierro] to the floor." Common sense suggests that no matter how forcefully someone is slammed against the floor, it is impossible simultaneously to strike the area above both eyes and also to strike the chin. Moreover, Mr. Fierro clearly struck the floor (or was otherwise struck on the face) with great force: the bruises above his eyes are described . . . as 'hematomas,' which are more serious than (and require more force to inflict than) bruises. Finally, Mr. Fierro obviously cannot simultaneously have been taken to the floor face-first and back-first, and therefore the back injuries remain unexplained. In my experience, they conform precisely to the description of injuries of an inmate who has been beaten, most probably by a baton. Based on these unexplained injuries, I believe that Mr. Fierro was subjected to an extensive beating to the head and back after the extraction team entered the cell. . . . In conclusion, from defendants' own reports it appears almost certain that Mr. Fierro was subjected to blatant and brutal punishment for disobeying an order -- in this case, the order to turn over the dinner tray before discussing his ability to get a hair cut.
In another instance, an inmate was extracted after failing to submit to a cell search. Afterwards, he was taken to the medical clinic for treatment for abrasions. He was in a very agitated state and dared officers to "do this again." Instead of giving him time to calm down in a holding cell, he was immediately replaced in his own cell, still agitated. He immediately began strenuously kicking the cell door, which set off an electronic sensor in the control booth. He was then almost immediately extracted again, within about 25 minutes of the first extraction.
The second cell extraction team included the one officer who had received an injury (a cut) in the first cell extraction. As a result of the second extraction, the inmate was left unconscious for one minute, and suffered a contusion to the forehead and several abrasions. Trial Exh. P-1199 at 6371; Martin Decl. at 61-62.
As the above incident reflects, there was a practice for some period of time of including, as a member of the cell extraction team, the officer who had been either previously injured by the inmate or involved in whatever incident precipitated the cell extraction. Lieutenant Carl told investigators that, for a time at Pelican Bay, it was "normal" to include the previously involved officer and that he had to go to "real lengths" to get that practice changed. Trial Exh. P-3111 (tape interviews). Similarly, another officer told investigators that it was his understanding that whatever officers were "working the floor" were included on the cell extraction team, even if they had been a "victim" of the inmate being extracted. Id. It is generally understood, however, that such a practice should be avoided to allow the situation to defuse and preclude the potential for retaliation. As Lieutenant Mallory explained: "you may have an incident where the cop in the first cell extraction got bit, spit on, or whatever, and he may be a little mad. You don't want to put him back in there and make him . . . do something that he would not normally do." Mallory Depo. at 83. The fact that Pelican Bay tolerated such a procedure further supports the conclusion that cell extractions were utilized as a vehicle for inflicting punishment.
As the Court has previously emphasized, cell extractions are an essential part of effective prison management, given that there will inevitably be circumstances where security concerns require the forced removal of an inmate from his cell. Nor do we doubt that each of the cell extraction weapons discussed above may have an appropriate use in certain situations. There may even be certain situations where it would not be excessive to use all of the above-described weaponry, either in some combined or sequential form. We need not, and do not, find that any particular weaponry or cell extraction strategy constitutes a per se use of excessive force.
What the record does reveal, however, is the disturbing pattern -- an apparent modus operandi -- of routinely using the same extremely high level of force, no matter the level of threat posed or the particularities of the situation. Not surprisingly, it is a pattern that has caused the substantial infliction of pain and left behind a string of injuries -- injuries that are too often left unexplained and unjustified in official reports.
Viewed separately, the high level of force deployed as a routine practice, the string of significant injuries, and the unnecessarily high number of cell extractions, could each raise a legitimate concern. Combined, however, they are potent evidence that cell extractions at Pelican Bay have too often been considered, not as tools to be used sparingly in response to threats to prison security, but as opportunities to punish, and inflict pain upon, the inmate population for what were often minor rules violations. The evasive and cursory nature of incident reports, discussed supra, further reinforces this conclusion.
Notably, other large prison systems, such as New York, Texas, Ohio, and the Federal Bureau of Prisons, manage their prisons (except for the perimeters) without the use of any firearms. Indeed, reliance on firearms in housing units (either general population or security housing units) and exercise yards to maintain control and break up incidents is unusual. Defendant Gomez was aware of only one other state, Nevada, which employs firearms inside housing units.
The record does not, however, support a finding that the decision to deploy firearms at Pelican Bay in and of itself constitutes a policy or practice of excessive force. Whether firearms should be integrated into a prison's security system is a matter best left to the sound discretion of prison administrators. However, given that every use of a firearm creates the potential for death or serious bodily injury -- not only for the intended victim but for others nearby as well -- a policy of arming prison staff can easily lead to the application of excessive force.
Recognizing this, governing regulations prohibit the use of firearms except when "absolutely necessary," i.e. "only as a last resort after other reasonable and available resources have been considered and exhausted or are determined to be clearly inappropriate in view of the immediate need to use armed force." Cal. Code Regs. § 3276(b); see also Trial Exh. D-37, California Department of Corrections Operations Manual (referred to as "DOM") at 55050.8 ("Employees shall not discharge a firearm . . . except under [certain specified] circumstances and only after all other reasonable means fail"). The evidence showed, however, that staff have resorted to firearms too quickly -- before any life threatening situation has developed -- rather than reserving such lethal force as "the force of last resort."
Based on the evidence presented, we conclude that firearms at Pelican Bay have been used unnecessarily, and in some cases, recklessly.
However, in contrast to the instances of excessive force discussed in the sections above, the record before us does not demonstrate that lethal force has been applied maliciously for the purpose of causing harm, rather than in a good faith effort to restore order, on more than the isolated occasion. Rather, it appears that, in many instances, officers resorted first to lethal force because prison administrators failed to supply them with alternative weapons or because prison policies promoted the use of lethal force. See, e.g., notes 67, 64 and accompanying text, infra. These facts, however, explain more than just the actions of staff. They also reveal that defendants are strikingly unconcerned that lethal force may be applied even when a lesser degree of force would be sufficient.
As defendants emphasize, Pelican Bay is a large facility that houses as many as 3,900 inmates at one time. However, the size of an institution does not mandate that plaintiffs prove some particular number of incidents to demonstrate the presence of a pattern of excessive force. Indeed, given the code of silence, the lack of specificity in many incident reports, and the fact that some number of incidents go unreported by staff and inmates, it is surely impossible to determine conclusively the number of times that excessive force has been used against inmates at Pelican Bay.
Instead, plaintiffs must prove to the satisfaction of the Court, and by a preponderance of the evidence, that the instances of excessive force presented to the Court reflect a pattern, rather than isolated, aberrational events. In this case, plaintiffs' experts were firmly convinced that they had discovered the former rather than the latter. Martin concluded that the pattern of excessive and unnecessary force at Pelican Bay was "clear and unmistakable" and that there are circumstances in which force is routinely employed as a method of punishing, of inflicting physician pain and discomfort on  the population." Tr. 8-1303-4; Martin Decl. at 157. Nathan agreed, finding Pelican Bay "unique" in his experience.
I have simply never observed the level of violence . . . the overt reliance upon violence. I've just never seen anything like it. I don't think you'll find anything like it. I don't think you'll find it at Marion, Illinois. I know you won't find it at Georgia State Prison, which is the maximum security prison for the state of Georgia. I know you won't find it in the state of Texas. I know you won't find it in the state of Ohio. There just isn't any parallel . . . . It is a place in which officers exercise unfettered discretion to take whatever physical action they deem appropriate or necessary to control, to punish, to accomplish whatever objective it is they wish to accomplish.
Tr. 13-2050-51. Defendants' expert expressed a general opinion that Pelican Bay was "well run," but did not specifically address the existence of a pattern or practice of excessive force. DuBois Tr. 29-4689.
2. Inadequacies in the Systems of Regulating the Use of Force
There is no dispute among the parties that the use of force must be carefully regulated and controlled in order to prevent abuses against inmates, as well as to ensure the overall safety and security of the prison. As Fenton explained:
In running a penitentiary, a high security prison, force is a necessary element. It must be used when it's appropriate and when it's required. But it is the most dangerous and potentially destructive function that takes place in a prison. Not only can it destroy or seriously injure the people it's directed against, but it can do enormous damage to . . . the spirit and morale of the inmate body [and] to the staff. . . . The use of force can be enormously dangerous. For that reason, it ought to be absolutely seriously monitored.
Tr. 5-766. Indeed, there was no evidence suggesting that the failure to adequately monitor or regulate the use of force would serve any legitimate penological purpose or otherwise advance the security of a prison.
A system that adequately monitors and regulates that the use of force consists of five components: (a) written policies that clearly identify for line staff when and how much force is appropriate under different circumstances; (b) training of correctional officers regarding the proper use of force; (c) supervision of the use of force to ensure that it is consonant with departmental and institutional policies and procedures; (d) investigation of possible misuses of force; and (e) officer discipline for the misuse of force. Nathan Tr. 13-1999-2000; Nathan Decl. at 15; see also Fisher v. Koehler, 692 F. Supp. 1519, 1551 (S.D.N.Y. 1988), aff'd, 902 F.2d 2 (2nd Cir.1990).
Each of these interrelated components builds upon and reinforces the others. Thus, adequate written policies provide the necessary framework for properly training staff and evaluating subsequent conduct. Yet, written policies alone serve little purpose unless staff are trained as to their content. Adequate supervision and investigation are necessary to ensure that, in practice, staff are properly implementing written policies and principles learned through training. Finally, a meaningful disciplinary system is essential, for if there are no sanctions imposed for misconduct, the prison's "policies and procedures become a dead letter." Nathan Tr. 13-2003.
The evidence shows that the system for controlling use of force at Pelican Bay suffers from serious deficiencies, particularly with respect to the supervisory and investigatory components described above. The Court also finds that these deficiencies, known and tolerated by defendants, are a significant cause of the misuse of force at Pelican Bay.
a. Written Policies Regarding the Use of Force
At trial, no one disputed the importance of having written policies and procedures regulating the use of force. As Nathan observed, clear and consistent written policies and procedures are the "cornerstone for the development of . . . a mechanism . . . to control force in high security prisons." Nathan Tr. 13-2010. Defendants' expert DuBois agreed that written policies and procedures were "important" in the administration of a correctional facility, and that post-orders, which guide a staff member through his or her specific duties, were "very important" from a correctional officer's point of view. Tr. 29-4742-43. Indeed, the significance of written policies concerning use of force is self-evident. Not only do they give direction to staff regarding when, and what kind of, force should be used, but they also provide an important basis for developing training programs, foster equal treatment of inmates within the prison, and furnish a consistent benchmark for evaluating staff conduct in the event allegations of misconduct arise.
As defendants point out, there is a general policy regarding use of force set forth in Title 15 of the California Code of Regulations; however, because it is exceedingly general, this policy fails to provide any meaningful guidance regarding use of force.
In addition to Title 15, there are departmental-level policies set forth in the DOM, institutional-level policies issued by Pelican Bay, and finally, "post orders" which guide a staff member through his or her specific duties. After reviewing these materials, Nathan concluded, and we agree, that the web of written policies relating to use of force at Pelican Bay have often lacked the necessary clarity and consistency to provide meaningful guidance on the use of force in certain key areas such as cell extractions and use of lethal force.
It is also clear that the absence of authoritative written guidelines allows policy to shift according to the predilections of individual mid-level staff.
These kinds of discordances contribute to divergent understandings among staff regarding the proper use of the taser.
There is also a conflict between the written general population procedures and actual training materials regarding the length of time the taser's electrical current should be discharged. Training materials that were used suggest a 2-3 second discharge to knock down and subdue the average man for 20-30 seconds,
while the policy governing general operation procedures sanctions a discharge of over twice that duration (5-10 seconds) to immobilize an inmate for a few minutes. Trial Exh. D-45 at 18096. Given the substantial pain inflicted by the taser, and the still uncertain health risks, see note 43, supra, clear written policy on use of the taser is critical, particularly since the taser itself can not be pre-programmed to regulate or register the length of the charge. The taser guidelines also furnish an example of an area in which written policy has not kept pace with changing practice. Although use of the taser in cell extractions informally stopped in the Fall of 1992, this change was never incorporated into any written policy.
Another problematic area, particularly during Pelican Bay's first two years, concerns the written policies governing the use of lethal force. The reliance on direct gun coverage of cells in the general housing population, and the frequency of in-cell assaults, make it essential that there be clear written rules regarding the handling of cell fights. As the Chief Deputy Warden acknowledged, because of the "seriousness of the consequences," it is "extremely important" for staff "to understand precisely when it is and when it is not appropriate" to fire at inmates. Peetz Tr. 20-3300.
Again, Title 15 and DOM provide general statements regarding the use of lethal force, but they are far too broad to provide any specific guidance in handling recurrent situations, such as cell or yard fights.
Nonetheless, as of June 25, 1991 (a year and a half after the prison opened), a statewide CDC task force found that "PBSP [Pelican Bay] does not have a written policy specifically designed for the handling of in-cell assaults," Trial Exh. D-59 at 51741, an omission which Nathan found "shocking." Nathan Decl. at 38.
As a result, staff resorted to lethal force in the general population units before exhausting lesser alternatives. For example, if an assault continued after the control booth officer opened the cell door to allow one inmate a chance to exit, the control booth officer would immediately attempt to control the assault with a firearm, by firing either a warning shot or a shot for effect.
Another critical firearms issue that suffered from a lack of authoritative written rules was the use of warning shots inside the SHU units. Some post orders, as well as Pelican Bay Addendum to DOM § 55050, provided that officers could fire a warning shot inside the SHU before firing at inmates. Other past orders, however, prohibited the firing of warning shots, explaining that such shots could not be safely fired inside the SHU because the areas are small and composed of concrete or steel. As a result, there was no clear consensus regarding the prison's warning shot policy. As the Chief Deputy Warden acknowledged, "many people in the staff" believed that no warning shot could be fired. Peetz Tr.20-3300-3301. One Associate Warden, for example, stated that during her tenure there were no warning shots permitted in the SHU. "That means that if you resort to violence, we can shoot [to injure]." Garcia Depo. at 93-94. However, as Peetz testified, the correct policy has always been that warning shots are permitted in the SHU. Tr. 20-3300; see also Carl Depo. at 269- 70. Yet, Robert Bark, the Associate Warden in charge of the SHU facility, stated that from what he could recall, the warning shot policy had "changed back and forth a couple of times" during his tenure, and that when he left, a warning shot was allowed but "discouraged." Bark Depo. at 113.
Given that the intentional firing of a gun, even as a warning shot, appears to constitute a use of "deadly force," see DOM § 55050.3, Nathan found the contradictory policies and confusion regarding a subject of "this magnitude" to be "intolerable." Nathan Decl. at 43-44. Nonetheless, it does not appear that the problem was swiftly resolved. Only after the issue had come up "several different times" was the matter definitively addressed. Peetz Tr. 19-3223. As Officer Brodeur testified, one of those times was a review of a shooting in which he was involved; however, the post orders were not changed until "about three months later." Tr. 24-3992.
Finally, we note that although cell extractions represent one of the most significant and recurrent uses of force, written cell extraction policies are less than clear as to whether or not any effort should be made to relate the degree of force used to the behavior of the inmate or the particular circumstances presented (including whether the inmate is armed). Thus, for example, the cell extraction policy for the SHU simply provides that the lieutenant will decide whether an extraction is necessary when an inmate has refused to cooperate in a cell move or submit to restraints, and lists the different types of equipment and weapons to be utilized in the process. Trial Exh. D-49 at 18290-91. Similarly, one officer observed that while there has always been the general guideline that staff should only use the minimum force necessary, there are no specific guidelines regarding application of that standard in different situations. Van de Hey Depo. at 112.
Perhaps of most concern, the Court finds the deficiencies in certain written policies, described above, symptomatic of a more general disregard for the importance of written policies. The Court notes that, as of the date of trial, a number of officially sanctioned policy changes still had not been memorialized in written form, thus creating a schism between the prison's written policies and its actual operating procedure.
Notably, the current written operation policy for the SHU has remained "under revision" since 1990. Scribner Tr. 7-1214-1215. Although this means that senior staff sometimes find themselves directing line officers to rely on "unapproved" revised policy, see, e.g., Helsel Tr. at 21-3565-66, no prison staff at trial evinced any concern over the fact that the SHU was operating under an outdated written policy with no apparent date set for the issuance of a current version.
As might be expected, the lack of completeness and consistency in written policies relating to the use of force, and the lack of importance ascribed to written policies in general, have also served to undermine the legitimacy of those written policies that are in effect. It was not uncommon for staff to testify that they were unaware of written policies,
or for the evidence to show that a written policy was simply not followed, whether by design or because of a simple lack of familiarity.
b. Training in the Use of Force
Plaintiffs contend that defendants have failed to provide adequate instruction to Pelican Bay officers regarding the appropriate use of force. None of plaintiffs' experts, however, engaged in any systematic qualitative or quantitative analysis of the use of force training that is provided by way of the Academy and in-service programs.
As such, the Court can not meaningfully assess the adequacy of the formal training that has been provided to officers currently employed at Pelican Bay.
Plaintiffs' experts suggest that, given the evidence that force is frequently misused, we may properly infer that Pelican Bay officers are not receiving adequate use of force training. We agree that this evidence raises legitimate questions as to the adequacy of the training that is provided on the subject of force.
However, we can not on this basis alone draw the sweeping conclusion that the training regarding use of force is inadequate. Indeed, there are circumstances in which a pattern of excessive force could persist despite adequate formal training (for example, where officers receive adequate formal training which is subsequently undermined by improper supervision).
We further note that, if plaintiffs' "bootstrapping" approach were accepted, the Court could conclude, based solely on a finding of a pattern of excessive force and without specific supporting evidence, that each and every one of the five above-described components of a system for regulating use of force was necessarily inadequate. This we decline to do.
c. Supervision of the Use of Force
Adequate supervision is probably the most critical component of any system that regulates the use of force: not only does it serve as an immediate check on any abuses, but it also creates an atmosphere that encourages responsible conduct. At the same time, adequate supervision ensures that sufficient force is used to maintain security for staff and inmates.
At trial, defendants' witnesses readily acknowledged the importance of providing effective supervision over the use of force. The evidence, however, shows that senior prison administrators have, for the most part, abdicated their responsibility in this crucial area. Indeed, Pelican Bay's approach to the use of force is often so passive that plaintiffs' expert concluded that there is a "near total absence of meaningful supervision" of the application of force at Pelican Bay. Nathan Tr. 13-2039.
Because the use of lethal force, i.e. firearms, is supervised through a separate administrative mechanism than other uses of force are, the Court discusses separately the supervision of the use of non-lethal and lethal force.
(1) Supervision of the Use of Non-Lethal Force
The Court finds that supervision of the use of non-lethal force at Pelican Bay is strikingly deficient. The breakdown in supervision reveals itself in a number of ways. First, senior administrators permit, or even encourage, officers to submit overly general incident reports, a practice which both parties' experts criticized as making it impossible to evaluate the propriety of staff conduct. As defendants' expert stated, "[the incident reports] appear to be generic in nature. They're -- they're not reports that I, as a Commissioner in Massachusetts . . . looked at as . . . covering the whole event but more in terms of describing what happened very generically." DuBois Tr. 29-4713. It is not unusual for a report to gloss over events and inmate injuries by reporting little more than the team "gained control" and "applied mechanical restraints." See, e.g., Trial Exh. P-4925 at 3208. Other reports provide more detail but still lack sufficient information to enable a supervisor to determine what occurred. See Martin Decl. at 64-65, 158 (pattern of sanitized reports is "simply undeniable."). In still other cases, the reports of different officers are suspiciously identical.
The fact that such reports are routinely accepted leaves the clear inference that senior prison administrators not only have little concern as to what actually occurred, but that they affirmatively approve of such reports. Notably, one sergeant testified that his supervisor wanted reports to be "vague and non-specific," because otherwise those higher up the chain of command would not accept them. Cox Tr. 15-2348-49.
Second, it is not unusual for prison administrators to turn a blind eye when an incident report clearly calls for further inquiry, such as when it indicates that an inmate sustained serious injuries that are either unexplained or suspiciously explained. A review of the following representative reports, which were accepted by supervisors, without comment, illustrates this problem.
Peter Moreno Incident Report
On April 29, 1991, Peter Moreno was extracted from his cell. The medical report attached to the full incident report showed that, among other injuries to his face and legs, Moreno's back and upper arms were covered with 12 welting abrasions which the MTA described as "probable baton markings." The report submitted by the officer using the baton, however, does not explain the markings, stating only that he was required to strike several blows with the baton around the feet and ankles because Moreno was resisting the imposition of leg irons. Trial Exh. P-1142 at 4975. Nor does the incident report otherwise explain the welts. At trial, the baton officer testified that he still could not say how Moreno's injuries were caused. Owens Tr. 28-4588. Although the Chief Deputy Warden agreed that "it would certainly be extraordinary that covering an inmate's back with baton markings could be proper," Tr. 20-3276-77,
and the incident report provided no explanation, no follow-up inquiries were ever made.
Defendants' experts both agreed that the incident should have precipitated further investigation.
Jesse Calhoun Incident Report
Jesse Calhoun was extracted from his cell on October 25, 1990. Again, the medical injury report showed eight baton welts in the middle of Mr. Calhoun's back. Trial Ex. P-4925 at 3218. The officer equipped with the baton, however, did not report using it at all, although he does state that Calhoun kicked him in the knee before being restrained.
Nor does the report otherwise explain the welts. As Martin concluded, these facts were "obvious red flags" indicating that an investigation was warranted. Decl. at 700. Nonetheless, the baton officer involved was never questioned about the incident by any superior. Franklin Tr. 24-4070-4071.
Louis Fierro Incident Report
According to this incident report, Louis Fierro was restrained after "a brief struggle." P-1102 at 4165. This description is not easily reconciled with the rather extensive injuries suffered by Fierro including "multiple areas of bright red bruising on back," bruising and swelling above both eyes, and scratches and abrasions on Mr. Fierro's chin, cheeks and neck. Defendants did not call any witnesses who were present during this incident, but their expert agreed that, as a reviewing supervisor, he would not consider the report a satisfactory explanation for the injuries. DuBois Tr. 29-4812.
Julius Dunn Incident Report
According to the medical report accompanying the incident report, Julius Dunn was rendered unconscious for approximately one minute at the end of his cell extraction. None of the officers' reports, however, mentions this fact or describes any blow to Dunn's head. Injuries to the head and face are a clear "red flag" that force may have been misused, since, under standard procedure, head and face injuries are to be avoided where possible. In this case, the red flag was especially vivid because the head injury occurred during the second of two back-to-back extractions, and the second extraction team included an injured member of the first team. Trial Exh. P-1199 at 6376 ("R. Williams" member of both teams). Both of defendants' experts agreed that, based on the incident report, an investigation should have been initiated. Chief Deputy Warden Peetz, by contrast, testified that there was nothing in the incident report that concerned him enough to order an investigation. Tr. 20-3277. The supervisory lieutenant confirmed that no one had ever asked how Dunn had been rendered unconscious or otherwise inquired into the incident.
In January 1991, prison staff extracted 20 inmates, seven of whom received significant injuries, primarily lacerations to the scalp, head or face. The generic and essentially identical reports submitted by the officers involved did not explain the injuries and gave supervisors little basis for reviewing what had occurred. Trial Exh. P-1098; Martin Decl. at 49-52. The substantial head injuries sustained by seven of the inmates were particularly notable given the fact that, while all 20 inmates were originally charged with serious rules violations, those charges were subsequently dropped against all but three of the 20 inmates. Lopez Tr. 14-2157-59, 14-2241-45.
Daniel Molano Incident Report
When Daniel Molano suffered substantial facial injuries (a laceration to the bridge of his nose, swelling and bruising above both eyes, and a swollen lower lip), the incident report explained that he had been dropped face down on the stairs after a cell extraction. Trial Ex. P-1142 at 4965; Martin Decl. at 65-66. According to the testimony of an officer who was present, at the time Molano was "dropped," he was being carried by "at least four" officers head first with his arms cuffed behind his back. Owens Tr. 28-4576, 4592. Plaintiffs' expert testified that, in his experience, it is common to see accidents such as "stair-dropping" used to mask prior injuries. Martin Decl. at 66. Defendants' expert did not disagree, and testified that he would have initiated an internal affairs inquiry based on the report that the inmate had been dropped, even without the presence of facial injuries. DuBois Tr. 29-4814-15.
Arturo Castillo Incident Report
Similarly, when Arturo Castillo suffered a serious injury to the top of his scalp during a cell extraction, the reports explained that he had accidentally struck his head against his toilet while falling. The seriousness of the injury (which required hospitalization), the unusual explanation, and inconsistencies in the reports should have caused this incident, in the words of plaintiffs' expert, to be "investigated up one side and down the other." Martin Decl. at 74. Yet, Chief Deputy Warden Peetz testified that he saw no reason to inquire into the incident. Tr. 20-3273; see also id. at 20-3269-70 (Q: "You weren't concerned about a report that said the very top of the inmate's head was wounded by falling down upon a toilet?" A: "No I was not.").
The Warden's lax attitude toward supervising the use of force is signaled to his staff in other ways as well. Defendants' expert McCarthy testified that, during his tenure as Warden, he personally reviewed all incident reports because they were an important tool in helping him supervise the use of force. Warden Marshall, however, delegated review of incident reports, save for the cover sheet, to subordinates sometime at the end of 1990 or 1991, although he resumed the practice of personal review one month before testifying in this action.
Nor has Warden Marshall ever observed a cell extraction or the use of a gas gun or taser at Pelican Bay. Rather, cell extractions are supervised or observed by mid-level staff (lieutenants and sergeants). As Fenton testified, if the Warden personally attends scheduled uses of force (e.g., a cell extraction) on a consistent basis, such a practice encourages staff "not lightly [to] recommend this use of force." Fenton Decl. at 10. "I am amazed," he testified, "by the manner in which senior management has absented itself from the use of force at Pelican Bay." Id. at 9. While it may not be practicable for the Warden to attend every cell extraction, given the size of Pelican Bay, the complete non-involvement of the Warden and other high-ranking administrators is indicative of the fact that supervision of the use of force is a tragically low priority at Pelican Bay.
(2) Supervision of the Use of Lethal Force
Given Pelican Bay's substantial reliance on firearms, and the fact that every firing of these weapons potentially inflicts serious injury or death, effective supervision over the use of firearms is particularly critical. The evidence shows, however, that, despite a facially complex system for reviewing the use of firearms, the lax attitude toward the use of non-lethal force, described above, is equally evident in the area of lethal force. Indeed, meaningful firearm supervision of the kind that actually protects human beings is almost non-existent.
Nor have regulations concerning the composition of SRTs been adhered to. Pursuant to the DOM, SRTs must consist of a chairperson plus three officers from different correctional ranks. DOM § 55050.13.1. Yet, until three months before trial, SRTs at Pelican Bay inexplicably consisted of only one administrator. Not only does a one person "team" clearly defeat the very purpose behind the group approach to shooting reviews, but it also signals that such shootings are not considered serious enough to warrant review by more than one person.
Of most concern, however, is that the actual review process has been rendered a mockery of its intended purpose. The shooting officer's incident report is typically taken at face value and given little scrutiny, even where it fails to identify any facts that would justify use of lethal force.
One administrator candidly expressed the prevailing deferential attitude toward incident reports: "I can't second-guess the officer. . . . The only person who can make the determination on whether to fire or not is the officer at the time of the incident." Lopez Tr. 14-2223. Nor is it a matter of practice to interview persons who either witnessed or were directly involved in the incident. And although reviewers are charged with determining whether a shooting was in complete compliance with relevant policies and procedures, they are not always aware of what those policies are. Consequently, shooting reviews at Pelican Bay are little more than a perfunctory validation of the incident report itself.
A notable illustration of the lack of meaningful review is provided by the administration's response to officer claims of "stabbing motions" to justify the use of lethal force. As plaintiffs' expert observed, "nobody ever makes a stabbing motion if they don't have a weapon," yet officers at Pelican Bay repeatedly attribute such motions to inmates to explain shooting incidents when after the fact no weapon is found and no one has been cut. Fenton Tr. 5-759. Such a claim suggests that the officer has either made an honest mistake or is engaged in after-the-fact justification. Under either circumstance, some supervisory action is warranted (further training in the former, or training and discipline for lack of candor in the latter). There is no evidence in the record, however, that such action ever took place; on the contrary, a statement that an officer saw "stabbing motions" appears to automatically sanction the shooting.
Investigations into allegations of misconduct by Pelican Bay employees are conducted primarily through the Internal Affairs Division ("IAD") of the Investigative Services Unit ("ISU").
The responsibilities of the IAD are twofold. The first is to identify allegations of misconduct that merit further investigation and obtain approval from the Warden to initiate an investigation. The IAD opens approximately ten to fifteen excessive force investigations annually, which constitutes about 20 to 35 percent of the investigations into staff conduct each year.
The second is to conduct the investigation (through interviews and review of medical reports and other documentary evidence) and prepare an Internal Affairs report. With respect to each allegation, the report can make one of four findings: (1) that the allegation is "unfounded" because the alleged conduct did not occur, (2) that the allegation is "not sustained" because there is insufficient evidence to prove the allegation, (3) that the alleged conduct did in fact occur, but that it was fully justified and therefore the officer should be "exonerated," or (4) that the alleged conduct occurred and was not justified, and therefore the allegation should be "sustained." Alternatively, the IAD investigation can result in "no finding." The report is subsequently submitted to the Warden for his review and approval. It does not appear that the Warden has ever withheld his approval because of dissatisfaction with some aspect of the report.
It is clear to the Court that while the IAD goes through the necessary motions, it is invariably a counterfeit investigation pursued with one outcome in mind: to avoid finding officer misconduct as often as possible. As described below, not only are all presumptions in favor of the officer, but evidence is routinely strained, twisted or ignored to reached the desired result. The consequence, as Nathan testified, "is to reinforce an already clear message to line staff that unnecessary and excessive force will be tolerated, if not actively encouraged." Nathan Decl. at 79. Notably, the evidence showed that, in the nearly four years since the prison opened, only one officer was found to have engaged in what could be described as a relatively major misuse of force (punching a restrained inmate twice in the face with a closed fist), and those charges were later dismissed by the Warden.
Marshall Tr. 22-3745-8.
(1) Initiation of Investigations
The IAD can not initiate an investigation without first obtaining approval from the Warden or Chief Deputy Warden, who have complete discretion on this matter. The IAD can recommend that a matter be investigated based on grievances or letters received from inmates, informal verbal reports from staff or written incident reports (which are routinely received within a week of the incident). Although the record is replete with incident reports that clearly should have triggered further inquiry, see section II(A)(2)(c)(1), supra, the IAD rarely, if ever, sought approval for an investigation based on an incident report. As Deputy Chief Warden Peetz testified, "very few [investigations] would come from [ISU Captain] Jenkins as a result of Jenkins reading an [incident report] and coming to me and saying, 'hey, we need to open a case.'" Peetz Tr. 20-3264. Rather, when IAD did seek approval for an investigation it was invariably because an officer came forward with a verbal report or because an inmate submitted a grievance or complaint.
(2) Investigative Process
In most cases, the fact-finding process of interviewing witnesses and obtaining pertinent medical reports functions satisfactorily, although the record does contain instances in which obvious witnesses were left unquestioned. It is in the evaluation of the information obtained, however, that the process loses all integrity.
First, the IAD applies standards more consistent with criminal than civil or administrative proceedings. Defendants' witnesses testified that an inmate allegation of excessive force will only be sustained if the wrongdoing was "clearly proved with certainty," or "beyond a reasonable doubt." Long Tr. 17-2801; Beckwith Tr. 17-2764. Suspicions that officers are withholding information are ignored unless such misconduct can be "absolutely proved." Beckwith Tr. 17-2752-53. 2752-53. As Nathan observed, "If the inmate must establish the misuse of force 'conclusively' and by evidence that excludes every 'possiblity' other than officer misconduct, he will never prevail." Nathan Decl. at 88.
Second, not only are the above standards exacting on their face, but the manner in which they are applied at Pelican Bay makes them almost impossible to meet. Internal Affairs routinely minimizes or ignores evidence adverse to staff, and strains to find explanations (however implausible) that can be used to reject allegations of excessive force. Thus, as long as some theoretically possible version of events exculpates the officer, it will be relied upon to avoid a finding of culpability, even though it may be highly improbable and lack any credible basis in the record.
We by no means intend to suggest that inmate allegations of staff misconduct should be accepted without careful scrutiny. Some inmates may have serious credibility problems; others may be prompted by improper motives. However, as the examples below illustrate, Pelican Bay has, for the most part, abandoned any notion of reasoned analysis in favor of absolving prison officers of any fault.
Investigation re: use of force against Inmate Calhoun
In March of 1992, Officers Rader and Hlebo approached Jesse Calhoun's cell and ordered him to cuff up.
Calhoun at first refused, but then agreed to comply and offered no resistance. During the escort, Officer Rader and Calhoun became involved in a heated verbal exchange and Rader called Calhoun a child molester and a punk. Officer Hlebo, the other escorting officer, later gave an account of what happened next which can be summarized as follows: Rader grabbed Calhoun's head "and drove the side of his face into the wall approximately three times." Calhoun's eyeglasses fell to the floor and broke. Hearing noise, Sergeant Avila approached the scene and asked what the problem was. When Rader responded that Calhoun doesn't "want to do what he's told," Avila clutched Calhoun's throat with one hand and said "you're going to do what my officers tell you to do, do I make my self clear?" Calhoun responded, "Do what you've got to do." Still clutching Calhoun's throat, Avila said, "Now where are you going to go?" Avila placed his hands over Calhoun's thumb area and applied pressure, asking "Does that feel good?" and escorted Calhoun to the back dock entrance. He maintained pressure on the thumb for 5 to 8 minutes waiting for the ambulance to arrive. He then motioned for Rader "to take over," which he did. When Calhoun kicked backward at Rader two times, five other staff forced Calhoun to the floor into a prone position. While several staff were lying on top of Calhoun, with his legs crossed and pinned down, Avila "slapped Calhoun's face approximately two times and said, 'shut up.'" Leg restraints were then applied. When Calhoun subsequently looked at Avila, Avila said "go f--- yourself." Trial Ex. P-3095 at 83301-02.
The Captain in charge of IAD acknowledged that he had no reason to doubt the veracity of Hlebo's account. Jenkins Tr. 3-379-380. When investigators interviewed Calhoun, he also substantially confirmed Hlebo's account. Trial Exh. P-3095 at 83228-29; Jenkins Tr. 3-383-84. Nonetheless, Avila was not found to have misused force in any part of this incident. Jenkins Tr. 3-379-384. Regarding the hold on Calhoun's thumb, the report concluded that it could not be determined "how much" pressure was applied. Trial Exh. P-3095 at 83236. Calhoun's statement that his thumb "was yanked real hard," the investigating lieutenant testified, was discredited as uncorroborated. Long Tr. 17-2828. Hlebo's statement that pressure was applied was not considered corroboration because "you can't see . . . pressure being applied." Long Tr. 17-2829. Nor did he consider Avila's statement "does that feel good?" in assessing whether excessive force was applied. Long Tr. 17-2829.
Investigators did find that Avila slapped Calhoun, but concluded that it was fully justified by the situation because Calhoun "may not have been completely under control at the time." The only evidence pointed to in support of this possibility is the fact that "they were still on the ground at the time of occurrence." Trial Exh. 3095 at 83236. In reaching this conclusion, the report simply ignores the contrary description in Hlebo's written report, which indicates that Calhoun not only was handcuffed, but also had "several staff lying on top" of him and his "legs were crossed and pinned down by someone's feet" at the time of the incident. It also ignores Hlebo's account that the two kicks by Calhoun before he was taken down were the only aggressive actions he made. Id. at 83255. The report also notes that Avila's conduct "may have been" a "reflex" without offering any support for this conclusion. Even Avila had not offered this explanation; rather, he denied the conduct altogether. Defendants' expert agreed that there seemed to be no support for the conclusion that Avila's action in slapping Calhoun might be a "reflex," and stated that he would not have been satisfied if he had received this report. DuBois Tr. 29-4795-6.
Investigation re: Use of Force against Inmate Martinez
In October 1991, Antonio Martinez was extracted from his cell shortly after he threw his meal tray through the food port, hitting Officer Parson. As discussed earlier in these findings, Martinez suffered significant injuries, including the loss of four teeth and a 1.5 inch laceration to the back of his head. Trial Exh. P-3083 at 79081; P-1178 at 5598. Five months later, an investigation was initiated when Martinez filed a complaint that he had been kicked in the face during the extraction.
The investigation concludes, however, that "no reasonable cause for misconduct" could be established with respect to any aspect of the incident. Id. at 79060. Nietschke's statement that an officer had kicked a restrained inmate in the head or shoulder area is noted but then seemingly discounted because Nietschke "offered that Sergeant Cox had a much closer viewpoint."
Id. at 79058. Thus, regardless whether the force used inside the cell was justified, the IAD's readiness to conclude that Nietschke's observations of excessive force should be ignored raises serious questions about the integrity of the internal affairs process.
Equally disturbing is the IAD's conclusion that Officer Parson -- at whom Martinez threw the tray -- could not have been culpable because "all evidence indicates that Officer Parson did not participate in the subject cell extraction nor was he present inside the Unit Pod when the extraction occurred." Trial Ex. P-3083 at 79057 (emphasis added). Yet, the available evidence overwhelmingly demonstrates that Parsons did, in fact, participate in the cell extraction: (1) the incident report lists Parson as a participant, (2) Lieutenant Carl, who supervised the extraction, told investigators during his taped interview that Parson participated in the extraction, (3) Sergeant Miller, also interviewed on tape, said that he was "sure" that Parson participated in the extraction, and (4) the MTA's medical report reflects that Parson informed the MTA that he was involved in the cell extraction and was hit in the face by some mace.
None of these items are mentioned in the Internal Affairs report. In reviewing the report, defendants' expert concluded that the matter should have been investigated further, and that "the omission of the incident report and the omission of the MTA report raised a question in [his] mind regarding the integrity" of the investigation report. DuBois Tr. 29-4799-4800.
Clearly there are instances in which responsible administrators may, despite reasonable efforts, be unable to determine exactly what transpired due to inconsistent recollections or genuine confusion regarding the events in question. However, at Pelican Bay, the failure by IAD to do so more likely reflects not only the code of silence, but also a general indifference to acts of excessive force, shared by officials at all levels of the prison. For example, the supervising lieutenant in the Martinez cell extraction candidly stated that "I was not really concerned about how they [the teeth] got knocked out. . ." Trial Exh. p-3111 (Carl 6/26/92 tape recording). Nor, according to the lieutenant, was the matter ever raised with him "by management." Id.94
In the event that the IAD sustains an allegation of misconduct, the Warden has a number of disciplinary measures at his discretion. The most lenient form of adverse action is an official letter of reprimand which remains in the officer's file for three years and may affect opportunities relating to assignments and other matters. Other more severe adverse actions include a percentage reduction in salary for some period of time, suspension, and dismissal.
Given the lapses in supervision, and the unlikelihood that the IAD will find a misuse of force in any given case, officers rarely face the prospect of discipline for using excessive force against inmates. As noted above, the record indicates that there have only been four instances since Pelican Bay opened in December 1989 in which the IAD concluded that excessive force had been used. In three of these cases the Warden exercised his discretion to minimize or eliminate any adverse action. A review of two of them illuminates the approach to discipline for misuse of force at Pelican Bay.
Based on the eyewitness reports of two other officers, the IAD found that Officer Plumlee had struck an inmate twice in the face with a closed fist while the inmate was already restrained. This December 1990 incident is the only matter brought to the Court's attention where the IAD found that an officer had engaged in a relatively major misuse of force. It is also clear that Plumlee was less than candid during the investigation. In his taped interviews, which Warden Marshall reviewed, Plumlee admitted only to hitting the inmate somewhere in the upper body or upper left bony portion of his head as a "reflexive" action, accused the other officers of falsely reporting what happened, and suggested that the inmate inflicted the injuries on himself. Trial Ex. P-3103 (tape recording).
Warden Marshall initially recommended a five percent salary reduction for 12 months. However, after meeting with Plumlee during the course of the disciplinary proceedings, the Warden dismissed all adverse action in the "interest of justice." Trial Ex. P-3087 at 77460. The Warden explained that this decision was based on the fact that Plumlee had shown remorse (though he still contended that the incident did not occur as stated in the IAD report), and had expressed concern about his career and his upcoming participation in Operation Desert Storm as a reserve member of the Marine Corps.