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Ashker v. Governor of State of California

United States District Court, N.D. California

June 2, 2014

TODD ASHKER, et al., Plaintiffs,


CLAUDIA WILKEN, District Judge.

Plaintiffs, a group of Pelican Bay State Prison inmates, move for class certification to pursue claims under the Eighth and Fourteenth Amendments of the United States Constitution. Defendants, the Governor of the State of California, Secretary of the California Department of Corrections and Rehabilitation (CDCR), Chief of CDCR's Office of Correctional Safety, and Warden of Pelican Bay State Prison, oppose the motion. After considering the parties' submissions and oral argument, the Court grants the motion in part and denies it in part. In addition, the Court denies the California Correctional Peace Officers Association's (CCPOA) motion to intervene.


Plaintiffs are ten inmates who live or recently lived in solitary confinement at Pelican Bay, a maximum security prison located in Crescent City, California. Five of these inmates are currently assigned to the Security Housing Unit (SHU), the "most controlled and restrictive housing available" at the prison, where each has lived for over a decade. Swift Decl. ¶ 4. The other five inmates were recently transferred out of the Pelican Bay SHU. Although CDCR operates SHUs at three other correctional facilities, this action focuses exclusively on the conditions of confinement within the Pelican Bay SHU.

Under CDCR's current regulations, inmates may be assigned to the SHU if their "conduct endangers the safety of others or the security of the institution." Cal. Code Regs. tit. 15, § 3341.5; accord Harrington Decl. ¶ 3. Any inmate who is a member or associate of a gang is "deemed to be a severe threat to the safety of others or the security of the institution and will be placed in [the] SHU for an indeterminate term." Cal. Code Regs. tit. 15, § 3341.5(c)(2)(A). Because all of the Plaintiffs in this case were "validated" by CDCR as gang members or associates, they were all assigned to the SHU for an indeterminate term.

Plaintiffs allege that SHU inmates live in almost total isolation. They spend at least twenty-two and a half hours per day in windowless, concrete cells with perforated steel doors and typically leave only to shower or exercise alone in an enclosed pen. Swift Decl. ¶ 8; Ashker Decl. ¶¶ 3, 9-11. Although SHU inmates sometimes speak to each other through the perforations in their cell doors, they cannot communicate face-to-face and have no contact with inmates in Pelican Bay's general population. Ashker Decl. ¶¶ 20-22; Zubiate Decl. ¶ 28. They also have limited contact with friends and family outside the prison. Ashker Decl. ¶¶ 17-19; Dewberry Decl. ¶ 11; Esquivel Decl. ¶¶ 7-8; Franco Decl. ¶¶ 7-8; Reyes Decl. ¶¶ 3-6; Ruiz Decl. ¶ 10; Troxell Decl. ¶ 5.

Plaintiffs filed this putative class action in September 2012, at which time all ten were assigned to the Pelican Bay SHU. Their complaint alleges that long-term confinement inside the SHU violates the Eighth Amendment's prohibition on cruel and unusual punishment and that CDCR's procedures for assigning inmates to the SHU violate the Fourteenth Amendment's guarantee of procedural due process. Docket No. 136, Second Am. Compl. (2AC) ¶¶ 177-202. Plaintiffs seek an injunction compelling CDCR to alleviate certain conditions of confinement in the SHU, adopt new procedures for reviewing SHU assignments, and transfer every inmate who has been assigned to the SHU for more than ten years into the general prison population. Id. at ¶ 202.

Defendants moved to dismiss the complaint in December 2012. They argued, among other things, that Plaintiffs' due process claim was moot because CDCR had implemented a new set of procedures, collectively known as the "Security Threat Group" (STG) pilot program, in October 2012 to review existing SHU assignments and transfer certain SHU inmates into the general population. The Court rejected that argument in its April 2013 order denying Defendants' motion to dismiss. It found that the implementation of the STG pilot program was not sufficient to render Plaintiffs' claims moot because CDCR had not implemented the program permanently and, at that time, all ten Plaintiffs remained subject to the preexisting procedures.

Defendants filed their answer to the complaint on April 30, 2013. Two days later, on May 2, 2013, Plaintiffs moved for class certification under Federal Rules of Civil Procedure 23(b)(1) and 23(b)(2). In June 2013, CCPOA moved to intervene as a defendant. It sought intervention under Rule 24(a) or, in the alternative, under Rule 24(b).

Those motions remained pending for nearly a year while the parties engaged in settlement negotiations. On May 14, 2014, however, the parties notified the Court that they were not able to reach a settlement. They filed a stipulation to lift the stay of discovery that the Court had previously entered to allow them to focus on settlement negotiations. The Court approved that stipulation on May 16, 2014 and, at the parties' request, set a case management conference for June 4, 2014.


I. Class Certification

Plaintiffs seeking to represent a class must satisfy the threshold requirements of Rule 23(a) as well as the requirements for certification under one of the subsections of Rule 23(b). Rule 23(a) provides that a case is appropriate for certification as a class action if

(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

Plaintiffs must also establish that one of the subsections of Rule 23(b) is met. In the instant case, Plaintiffs seek certification under subsections (b)(1) and (b)(2).

Subsection (b)(1) applies where the prosecution of separate actions by individual members of the class would create the risk of "inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, " or of adjudications "which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests." Fed.R.Civ.P. 23(b)(1).

Subsection (b)(2) applies where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. Proc. 23(b)(2). "Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of Rule 23(b)(2) actions. Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 614 (1997).

Regardless of what type of class the plaintiff seeks to certify, it must demonstrate that each element of Rule 23 is satisfied; a district court may certify a class only if it determines that the plaintiff has borne this burden. Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 158-61 (1982); Doninger v. P. Nw. Bell, Inc. , 564 F.2d 1304, 1308 (9th Cir. 1977). In general, the court must take the substantive allegations of the complaint as true. Blackie v. Barrack , 524 F.2d 891, 901 (9th Cir. 1975). However, the court must conduct a "rigorous analysis, '" which may require it "to probe behind the pleadings before coming to rest on the certification question.'" Wal-Mart Stores, Inc. v. Dukes , 131 S.Ct. 2541, 2551 (2011) (quoting Falcon , 457 U.S. at 160-61). "Frequently that rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim. That cannot be helped." Dukes , 131 S.Ct. at 2551. To satisfy itself that class certification is proper, the court may consider material beyond the pleadings and require supplemental evidentiary submissions by the parties. Blackie , 524 F.2d at 901 n.17. "When resolving such factual disputes in the context of a motion for class certification, district courts must consider the persuasiveness of the evidence presented.'" Aburto v. Verizon Cal., Inc. , 2012 ...

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