prison officials responsible for celling decisions vulnerable to incurring liability to any individual plaintiff who suffers injuries at the hands of a cellmate with an established history of assaulting cellmates. Further, with the issuance of this ruling, prison administrators at Pelican Bay will no longer lack actual knowledge of the problem. This, of course, would clearly bear on any future inquiries into the question of deliberate indifference.
3. Temporary Housing of Minimum Security Inmates with Maximum Security Inmates
With respect to this aspect of plaintiffs' claim, plaintiffs need not demonstrate a pervasive risk of harm to the entire class; rather, it is sufficient to demonstrate that the identifiable group at issue -- Level I, minimum security inmates -- suffers from a pervasive risk of harm from being temporarily housed with Level IV inmates. In this regard the evidence is particularly scant. For example, there is no showing that assaults against Level I cellmates increased during the time the gymnasium was closed. Indeed, plaintiffs have identified only two instances where Level I inmates were assaulted by Level IV cellmates. In one such instance, the inmate, Charles Campbell, suffered a gruesome attack causing him to lose the tip of his nose. While Campbell's testimony provided a moving and chilling account of this incident, neither a single incident nor isolated incidents is sufficient to demonstrate a pervasive risk of harm to Level I inmates. Fisher, 692 F. Supp. at 1560.
Given that plaintiffs have not established a pervasive risk of harm to Level I inmates, we do not reach the question whether defendants possessed the requisite mental state of deliberate indifference.
F. SEGREGATION OF PRISON GANG AFFILIATES
The Due Process clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty or property, without due process of law." Under defendants' current policy, inmates who are found to be affiliated with a prison gang are removed from the general prison population and confined in the SHU for an indeterminate term. Whether this practice is implemented in a manner consistent with constitutional guarantees of procedural due process is the issue before the Court. Defendants assert that current procedures satisfy or exceed due process requirements, while plaintiffs argue that they are constitutionally flawed in a number of respects. These flaws fall into two categories: (1) flaws in the procedural safeguards afforded to inmates suspected of gang affiliation, and (2) flaws in procedures governing the periodic review of inmates assigned to indeterminate terms in the SHU for prison gang affiliation.
To resolve this dispute we must first determine whether plaintiffs have a constitutionally protected liberty interest in remaining in the general prison population. Toussaint IV, 801 F.2d at 1089. If so, we must determine the amount of process due before they can be deprived of this liberty interest because of affiliation with a prison gang. Id. at 1098.
Finally, we must assess whether the plaintiff class has, in fact, been denied the quantum of process required by the Constitution.
1. Existence of a Liberty Interest
A liberty interest may arise from either of two sources: the due process clause itself or state law. Hewitt v. Helms, 459 U.S. 460, 466, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675 (1982); Smith v. Noonan, 992 F.2d 987, 989 (9th Cir. 1993); Toussaint IV, 801 F.2d at 1089. State law
creates a liberty interest if it substantively limits official discretion by establishing particularized standards or criteria that govern state decision-makers. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 462, 109 S. Ct. 1904, 1909, 104 L. Ed. 2d 506 (1989); Conner v. Sakai, 994 F.2d 1408, 1411 (9th Cir. 1993), amended 15 F.3d 1463 (9th Cir. 1993), cert. granted in part, 115 S. Ct. 305 (1994). The state must also require, "in explicitly mandatory language," that if these standards or criteria are met, a particular outcome must follow. Kentucky Dep't of Corrections, 490 U.S. at 463, 109 S. Ct. at 1910 (internal quotations omitted); Conner, 994 F.2d at 1411; Toussaint IV, 801 F.2d at 1095 (regulations that follow a "shall/unless" formula create liberty interest); Nelson v. Bryan, 607 F. Supp. 959, 961 (D. Nev. 1985) (state creates liberty interest by requiring decision-makers to base decisions on objective and defined criteria).
The liberty interest at issue here is the interest of prisoners in remaining in the general prison population and not being confined in a security housing unit. As the higher courts have held, the due process clause itself does not protect such an interest. See, e.g., Hewitt, 459 U.S. at 467-468, 103 S. Ct. at 869-70; Smith v. Noonan, 992 F.2d at 989.
In Toussaint IV, however, the Ninth Circuit held that sections 3335(a) 3336, and 3339(a) of Title 15 of the California Code of Regulations, taken together, do create a constitutionally protected liberty interest to be free from placement in administrative segregation. 801 F.2d at 1097-98. As the Court explained, these regulations combine to prohibit state officials from retaining an inmate in administrative segregation unless one of three substantive predicates is met: (1) the inmate presents an immediate threat to the safety of the inmate or others, (2) the inmate endangers institution security, or (3) the inmate jeopardizes the integrity of an investigation of an alleged serious misconduct or criminal activity. As such, they sufficiently fetter official decision-making to create a protected liberty interest.
Although not addressed by Toussaint IV, we conclude that another California regulation, Cal. Code Regs. tit. 15, § 3341.5(c)(3), also creates a liberty interest in freedom from administrative segregation. That section provides that an inmate shall not be retained in the SHU beyond 11 months absent a classification committee determination that retention in the SHU is required because of one of three specific reasons: "(A) The inmate has an unexpired [Minimum Eligible Release Date] from the SHU, (B) Release of the inmate would severely endanger the lives of inmates or staff, the security of the institution, or the integrity of a investigation into suspected criminal activity or serious misconduct, [or] (C) The inmate has voluntarily requested continued retention in segregation." Cal Code Regs. tit. 15, § 3341.5(c)(3).
Like the regulations examined in Toussaint IV, section 3341.5(c) explicitly and substantively limits the exercise of official discretion by imposing a mandatory duty on state officials to release an inmate from the SHU unless one of the above three predicates is met. Accordingly, section 3341.5(c) provides a separate basis for plaintiffs' liberty interest in being housed in the general prison population with respect to those inmates that have been confined in the SHU for over 11 months.
Given the above, defendants may not confine prison gang members in the SHU, nor hold them there on indeterminate terms, without providing them the quantum of procedural due process required by the Constitution.
2. Amount of Process Required by the Due Process Clause
The Supreme Court has twice addressed the amount of due process that the Constitution affords inmates with protected liberty interests. In Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), the Court considered the process required before a prison official can punish an inmate for serious misconduct after incarceration. Although the specific sanction at issue was denial of "good-time" credits, Wolff applies equally where the sanction is disciplinary segregation in a security housing unit such as the Pelican Bay SHU. Id. at 571, n. 19, 94 S. Ct. at 2982, n.19; Conner, 994 F.2d at 1410-13; Toussaint IV, 801 F.2d at 1099.
After balancing the competing interests at stake, the Court held that the inmate in Wolff was entitled to the following due process protections: (1) advance written notice of the disciplinary charges, (2) an opportunity to call witnesses and present evidence if doing so would not unduly jeopardize institutional safety or correctional goals, (3) assistance from another inmate or prison staff if the inmate is illiterate or the complexity of the issues makes it difficult to collect and present the evidence necessary for an adequate comprehension of the case, and (4) a written decision and summary of the evidence relied on. Wolff, 418 U.S. at 563-70, 94 S. Ct. at 2978-82. The prison was not, however, required to permit the cross-examination of witnesses or the participation of counsel. Id. at 567-69, 94 S. Ct. at 2979-81.
In Hewitt, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675, the Supreme Court considered the amount of process required before the state can transfer an inmate to a security housing unit for "administrative" reasons. This type of "administrative" segregation" is not utilized to punish the inmate for specific misconduct, as was the case in Wolff, but to further some legitimate need of the prison. Taylor v. Koon, 682 F. Supp. 475, 477 (D.Nev. 1988). Thus, administrative segregation may properly be used to protect the prisoner's safety, to protect other inmates from a particular prisoner, to break up potentially disruptive groups of inmates or to await completion of an investigation into misconduct charges. Hewitt, 459 U.S. at 468, 103 S. Ct. at 869-70, 874; Toussaint IV, 801 F.2d at 1098.
The Court held that the amount of process required in cases of administrative segregation is substantially less than that required in Wolff -type proceedings. Hewitt, 459 U.S. at 473-476, 103 S. Ct. at 872-874. As the Ninth Circuit recently summarized:
Due process, in the administrative context, merely requires that the prison officials provide the inmate with some notice of the charges against him and an opportunity to present [the inmate's] views to the prison official charged with deciding whether to transfer [the inmate] to administrative segregation.