FINDINGS AND RECOMMENDATIONS
Petitioner is a parolee proceeding with counsel on a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that his rights under the Americans With Disabilities Act (ADA) and the Fourteenth Amendment's equal protection and due process clauses were violated by his exclusion from placement at a fire camp during his term of incarceration in the California Department of Corrections and Rehabilitation (CDCR), because he is HIV positive.
Petitioner originally brought his concerns to this court in a civil rights action under 42 U.S.C. § 1983, seeking an injunction directing the defendant prison officials to transfer him to a conservation camp or grant him the same increased credit earning status as an inmate actually placed in a camp, among other things. See Basque v. Schwarzenegger, Civ. No. S-05-1612 FCD KJM P. In that case, the court granted defendants' motion to dismiss, reasoning that if it were to grant plaintiff's request for additional good time, plaintiff would gain a speedier release from prison, a remedy available only in a habeas action. See id. (Order Filed December 20, 2005).
Petitioner turned to the state courts and filed habeas petitions in Solano County Superior Court, the Court of Appeal for the First Appellate District, and the Supreme Court, all of which were denied. Pet., Exs. I, M & N.
Petitioner filed his federal petition here on February 9, 2007. He alleges that because of his HIV status, as a matter of policy, he was denied a chance to be assigned to the fire camp, where he could earn additional work-time credits and thus reduce his term of imprisonment. He argues that this work assignment policy violates his rights to due process and equal protection and also violates the ADA.
Respondent filed a motion to dismiss for lack of jurisdiction. On October 17, 2007, this court issued findings and recommendations recommending that the motion be denied; the district court adopted this recommendation on December 27, 2007. Docket Nos. 15, 16. The court directed respondent to file an answer.
Respondent filed a second and supplemental motion to dismiss on April 15, 2008. In support of this motion, respondent argued that petitioner's release on parole renders his habeas petition moot in accordance with established Supreme Court and Ninth Circuit precedents. On January 20, 2009, this court recommended that the motion be denied; the district court adopted that recommendation on April 24, 2009 and directed respondent to file an answer. Docket Nos. 27, 28.
After the answer and traverse were filed, petitioner filed a motion for an evidentiary hearing. This court granted the motion and held an evidentiary hearing on November 23, 2009. Steven Sanders, Esq., appeared for petitioner; Robert Cross, Deputy Attorney General appeared for respondent. Docket Nos. 45, 47.
Petitioner relied on his own testimony, while respondent called Douglas Peterson, a physician with the CDCR. In addition, the parties agreed to use respondent's exhibits and stipulated to their authenticity. These were entered into evidence as a whole without objection. RT 2, 5-6.*fn1
Conservation camps or centers are creatures of California Penal Code section 6200, which establishes three such centers: Sierra Conservation Center, the North Coast Conservation Center and the Southern Conservation Center, which is based at the California Institute for Men. Cal. Penal Code § 6203. A network of branches or "permanent, temporary, and mobile camps" extends from each center. Cal. Penal Code § 6202; see CDCR Department Operations Manual (DOM) § 51130.5 (listing the camps). The work of the centers includes: public conservation projects, including, but not limited to, forest fire prevention and control, forest and watershed management, recreational area development, fish and game management, soil conservation, and forest watershed revegetation.
According to 15 Cal. Code Regs. § 3355(c):
Inmates shall be personally screened by a medical officer before receiving medical clearance for assignment to a camp or fire fighting assignment. Such inmate shall be in generally good health and physically capable of strenuous and prolonged heavy labor without danger to the inmate's health and safety or the safety of others when involved in hazardous work such as forest firefighting.
Exceptions: an inmate may be assigned to light duty non-hazardous work in camp if a department physician specifically approves such assignment."
In 2002, the California Legislature enacted Penal Code section 2933.3, which permits inmates assigned to fire camps to "earn two days of worktime credit for every one day of service" for work performed after January 1, 2003. Regulations adopted in the wake of this change established a new work group F, for inmates assigned to "full-time conservation camp work," who "shall be awarded two days credit for each day of qualifying performance." 15 Cal. Code Regs. § 3044 (b)(1). "[A]ll assignments or reassignments of an inmate to a work/training incentive group shall be made by a classification committee in accordance with this section." Id.; see also DOM §§ 51130.8 (Classification Committee evaluates escape potential when considering camp placement), 62010.3.2 (duties of Associate Warden, member of Classification Committee, include approval of camp placement), 62010.8 (duties of Institution Classification Committees include program participation and transfer) & 62010.8.4 (duties of Unit Classification Committee (UCC) include program and transfer).
In a memorandum concerning the implementation of the new Work Group F dated January 24, 2003, W.A. Duncan, CDCR's Deputy Director of the Institutions Division, discussed the criteria for camp placement in wake of changes to California Penal Code § 2933.3. In the memorandum, Duncan wrote:
Effective immediately, during RC [Reception Center] processing and during regular GP Classification Committees (initial, annual, program reviews, etc) inmates shall be evaluated for Camp placement utilizing this criteria.
Ex. A at 36-37; see also RT 88.
In December 2003, Roseanne Campbell, then the Director of CDCR's Health Care Services Division, issued a memo about the medical criteria for camp placement. It read in part:
To be medically cleared for Grade/EFF or Camp Skills, inmates must be physically and mentally capable of completing their assigned duties safely and effectively, without being placed at risk by individual medical conditions when they work in remote locations without prompt access to emergency medical or definitive medical care, or when they work under severe and possibly adverse environmental conditions including but not necessarily limited to, exposure to: extreme heat, cold, rain, snow and /or high-pressure water, high altitude (above 5,000 feet), potentially toxic inhaled particulate and gasses, or wildfires.
In addition to this somewhat general standard, the CDCR promulgated camp criteria to be listed on posters to be placed in medical clinics conducting camp screenings. Among the conditions listed were "no reportable or acutely contagious infectious disease" and "R/C BP: No higher than 150/95." Ex. C (poster criteria); RT 16-17. Petitioner relied on the criteria listed on the posters in examining witnesses at the evidentiary hearing. See RT 14-15,
98. The court relies on the undisputed complete criteria in its ultimate factual findings. These provide in part:
NO hypertension currently requiring treatment with more than two (2) permitted antihypertensive medications, or with a loop diuretic: . . .
Resting seated blood pressure no higher than:
Systolic: no greater than 140 mm Hg
Diastolic: no greater than 90 mm Hg Patients on loop diuretics may be cleared for Camp if their blood pressure has normalized and remained stable over the last 6 months, but must have a CDC 128-C medical chrono restricting them to Camp and denying them permission to go to a Fire Line.
Ex. C (criteria at 9). The complete criteria concerning infectious disease provided:
NO reportable or currently contagious infectious disease requiring assessment by nursing staff (RN or MTA) more often than every sixty (60) days.
NO contagious or reportable infectious disease requiring assessment by a physician or ancillary provider more often than every four (4) months.
NO contagious or reportable infectious disease requiring specialist assessment or follow up more often ...