However, there is no showing of a current or ongoing violation now that adequate policies are in place. There is at most a possible future violation, which is insufficient to prevent termination under the PLRA. Plaintiffs' argument amounts to a contention that defendants' "true" underlying policies have not changed, and that once the overlaid decree is lifted, defendants will revert. However, this does not constitute an ongoing violation. Plaintiffs' argument would nullify any termination provision. Plaintiffs' logic would require all decrees to remain in place to guard against backsliding. But the decree is to end when defendants come into compliance with its provisions.
In effect the termination requirement of the PLRA modifies any termination provision in the decree itself, and applies on a provision-by-provision basis, rather than to the decree as a whole.
Defendants' motion to terminate the noise provision of the decree is therefore granted.
The original consent decree included a remedy regarding legal materials, which provided that certain legal materials must be kept current and made available to the inmates on a check-out basis. This "pocket library" supplemented the prison's main law library, which inmates accessed by "paging" -- that is, by submitting a written request for books to be delivered from the main law library. After the original decree in this case was entered, the Toussaint court found that the paging system unconstitutionally limited segregated inmates' access to the courts, and ordered San Quentin officials to allow segregated prisoners physical access to a prison law library. Toussaint 597 F. Supp. at 1413.
In his Third Report, the Monitor then addressed whether, in light of Toussaint, the paging system plus the pocket library in this case passed constitutional muster, and concluded that it did not. (Third report at 42-43). The Monitor recommended that the parties show cause why the decree should not be amended to include a provision that, "Defendants shall, upon the written request of any condemned inmate, provide that inmate with reasonable physical access to an adequate law library." (Third Report at 43). The Fourth Report repeated the Third Report's conclusion and recommendation. Judge Weigel adopted both reports.
By the time the Monitor issued his Sixth Report in November 1995, prison officials were providing plaintiffs with physical access to a special law library separate from the main law library at the prison. The Monitor found that the law library access was "far from ideal," and that "the system could possibly be improved" to afford inmates longer and prompter access. The Monitor recommended that defendants propose a plan to address aspects of physical access to the library, including the time allowed for research and photocopying, the contents of the collection, the training of library staff, and other issues.
Defendants assert that they currently provide the plaintiff inmates with access to a special law library, and that they have complied with the other aspects of access recommended by the Monitor.
At the time of the original court decree in this case, Judge Weigel did not make findings that the legal materials remedy was narrowly drawn, extended no further than necessary, and was the least intrusive means, as now required by the PLRA. Just as with the noise remedy, the Monitor in his Memorandum re the PLRA stated that the court had made such findings, citing his Third Report, Fourth Report and the Toussaint opinion. However, just as with the noise remedy, that record does not contain the requisite findings by Judge Weigel. In his Fourth Report, the Monitor recommended that the court take judicial notice of the Second Special Report of the Monitor in Toussaint. Judge Weigel subsequently adopted that Fourth Report. Even if that implies that this record effectively includes the Toussaint findings, those findings do not include the present requirements that the remedy was narrowly drawn, extended no further than necessary, and was the least intrusive means.
Defendants also argue that there was never a sufficient finding of a federal violation under the later standard of Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996): "Because Bounds 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) did not create an abstract, free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." 116 S. Ct. at 2180. Plaintiffs must show actual injury to establish a constitutional violation. Id. at 2179. "Actual injury" does not necessarily mean absolute prejudice; significant delays that hinder or impede a claim are enough. See e.g. Allen v. Sakai, 48 F.3d 1082, 1091 (9th Cir. 1994). Plaintiffs respond that the PLRA should not be interpreted to require constitutional findings based on standards that were not in effect at the time. These arguments are largely beside the point. It is clear that even if the court made a sufficient finding of a federal violation under the old standard defined by case law, whatever it might be, the other findings now required by the PLRA were not made.
Defendants further argue that there is no current or ongoing violation of plaintiffs' right of access to the courts, because plaintiffs have made no showing of "actual injury" under Lewis. Plaintiffs respond by citing the Sixth Report in 1995, which found that law library access was inadequate for some prisoners. It noted that prisoners had been restricted to approximately two hours per week of library time, and were sometimes denied access to the library because there was insufficient space. Plaintiffs argue that these findings indicate that plaintiffs have been sufficiently "frustrated" or "hindered" to show actual injury under Lewis. However, defendants cite to later Reports and Plans in Response to the Sixth Report, which detail defendants' remedies for the deficiencies stated in the earlier reports.
The court believes that this is a sufficient present record for this court to determine that there is not an adequate showing of any present "actual injury." Defendants' motion to terminate this remedy is therefore granted.
Condemned prisoners can pose special security concerns, because they may no longer be deterred from violent behavior by the threat of ordinary sanctions, may be targets for acts of violence by other prisoners, and may pose a greater risk of suicide. Before the decree in this case, all condemned prisoners were housed in the most restrictive forms of segregation at San Quentin. Plaintiffs' complaint in this case alleged that such automatic segregation deprived them of a due process liberty interest.
Under this decree, plaintiffs are now classified as Grade A, Grade B, or walk-alone. Grade A prisoners are those who are able to get along with other inmates and staff; they are provided a form of custody which includes contact visits, out-of-cell time, and some privileges similar to those provided to the general population prisoners. Grade B prisoners are those who are classified as trouble-makers or escape risks, and they are provided only those rights and privileges that are provided to prisoners in maximum security segregation. Walk-alones are prisoners who would be Grade A prisoners, but must remain separated from other inmates for their own protection. Those prisoners are provided as much of the Grade A privileges as are possible.
Defendants argue that Judge Weigel did not make the findings required by subsection (2). In his Fourth Report, the Monitor stated that the decree's classification system resolved the federal constitutional claims alleged in plaintiffs' complaint. The report also said that plaintiffs had a due process liberty interest derived from state regulations, which mandate that prisoners be released from segregation at the earliest possible time. C.f. Hewitt v. Helms, 459 U.S. 460, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (state administrative regulations can give rise to a liberty interest protected by the Fourteenth Amendment); 15 Cal. Code Regs. § 3339(a) ("Release from segregation status shall occur at the earliest possible time in keeping with the circumstances and reasons for the inmate's initial placement in administrative segregation"); Toussaint v. McCarthy, 801 F.2d 1080 at 1098 (§ 3339(a) in combination with §§ 3335-36 accords California inmates a liberty interest in freedom from segregation). Judge Weigel adopted this report and found that plaintiffs continued to have a colorable claim under the Fourteenth Amendment.
However, the law on when a state regulation may create a due process liberty interest has changed since the Monitor issued his Fourth Report. The methodology used in Hewitt impermissibly shifted the focus of the liberty interest inquiry from one based on nature of the deprivation to one based on language of a particular regulation. Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995) (holding that discipline in segregated confinement did not present the type of deprivation in which a state regulation would create a liberty interest).
[State created liberty] interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Protection Clause of its own force, . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.