United States District Court, N.D. California, Eureka Division
ORDER ON PLAINTIFFS' ENFORCEMENT MOTION RE: DKT.
NO. 1215
ROBERT
M. ILLMAN UNITED STATES MAGISTRATE JUDGE
Now
pending before the court is an enforcement motion filed by
Plaintiffs regarding the purportedly unauthorized confinement
of class-members in the Special Housing Unit
(“SHU”) for participation in a rout with a nexus
to a Security Threat Group (“STG”) (dkt. 1215).
Defendants have responded (dkt. 1217), Plaintiffs have
replied (dkt. 1219), and the matter came to be heard at oral
argument before the undersigned on December 3, 2019 (dkt.
1225). For the reasons discussed below, Plaintiffs'
Motion is due to be denied.
Initially,
Plaintiffs note that the Settlement Agreement
(“SA”) in this case not only ended indeterminate
SHU terms for mere gang affiliation, but that it also
“effectuated a fundamental shift from an
association-based system to a behavior-based system for
assessing SHU terms in California prisons.” Pls.'
Mot. (dkt. 1215) at 3. Plaintiffs add that under the SA, the
Parties “agreed on a detailed and exclusive set of
SHU-eligible offenses going forward, ” and that only
“[t]hose offenses that are enumerated in the SHU-Term
Assessment Chart [found in] in Attachment B to the SA”
can result in the assessment of a SHU term. Id.;
see also SA (dkt. 424-2); and, Attachment-B (dkt.
424-3). In short, Plaintiffs contend that prison officials
have issued a series of Rules Violation Reports
(“RVR”) to prisoners accused of participating in
a rout with a STG nexus and that officials assessed SHU terms
to these prisoners in derogation of the SA because, as
Plaintiffs contend, “rout” is not included in the
list of offenses for which SHU terms may be imposed under the
SA. See Pls.' Mot. (dkt. 1215) at 3. Defendants
disagree and contend that while the SA did not explicitly
identify rout activity as a SHU eligible offense, the SA did
identify disturbances, riots, and strikes as SHU-eligible
offenses, and that the Merriam-Webster dictionary defines
“rout” as a “disturbance, ” which is
encompassed in the listed offenses of “disturbance,
riot, or strike, ” as well as in the provision dealing
with the “inciting [of] conditions likely to threaten
institutional security.” See Defs.' Mot.
(dkt. 1217) at 2, 3.
BACKGROUND
The
first among the terms and conditions of the SA was the
establishment of new criteria for placement in the SHU, in
Administrative Segregation, or in the Step-Down Program.
See SA (dkt. 424-2) at 5-6. The SA provided that
gang validation status alone would no longer be a basis for
confining prisoners to the SHU and further provided that CDCR
would amend the SHU Assessment Chart
(“SHU-Chart”), located in Title 15 of the
California Code of Regulations, as set forth in the amended
SHU-Chart which constituted Attachment-B to the SA.
Id. The amended SHU-Chart listed the gamut of
offenses ranging from homicide to harassment. See
SHU-Chart (dkt. 424-3) at 4-6. Under Section (7), the chart
provides generally for disturbances, riots, and strikes.
Id. at 5. Section (7)(a) deals with “[l]eading
a disturbance, riot, or strike, ” and provides for a
“typical term” ranging from 6 to 18 months of
confinement in the SHU. Id. at 4, 5. Section (7)(b)
deals with “[a]ctive participation in a disturbance,
riot, or strike (2 or more offenses within a 12-month period
or 1 with [a] direct STG nexus), ” and provides for a
SHU term between 3 and 9 months. Id. at 5. Section
(7)(c) deals with behavior that amounts to “[i]nciting
conditions likely to threaten institution[al] security,
” and likewise provides for a SHU term between 3 and 9
months. Id. Finally, Sections (13) and (14) of the
SHU-Chart provide that unless otherwise specified, attempts
shall receive half the term specified for the underlying
offense, whereas conspiracies and solicitations shall be
subject to the full term for the underlying offense.
Id. at 6.
With
this framework in mind, the court will turn to the incident
in question, which transpired on a recreation yard within
Pleasant Valley State Prison on February 22, 2019, as
reflected in a RVR submitted as an exhibit to Plaintiffs'
enforcement motion. See RVR (dkt. 1213-5 *SEALED*)
at 2-4. On that occasion, while approximately 112 members of
one particular prison gang (or STG) were all on the
recreation yard, one prisoner among their number rushed
towards a doorway and attempted to forcibly enter a dining
hall which was occupied by members of a different prison
gang. Id. at 2, 3. Standing in his way was a
correctional officer who was pushed in the back by the
rushing prisoner, causing the correctional officer to fall
and strike his head against the frame of the doorway.
Id. at 2. Fearing for the safety of his colleague,
another correctional officer punched the rushing prisoner in
the face and placed him in restraints. Id. Two other
prisoners who had accompanied the rushing prisoner initially
“turn[ed] towards the incident with their fists
clinched to assist [the] inmate [] in the attack; however,
they assumed prone positions on the ground as custody staff
near the incident gave numerous verbal orders for them to
stay down.” Id.
During
the incident, prison staff observed all of the remaining STG
members “come together and form a large group in front
of the basketball court . . . the large group turned and
responded in unison, making its way towards the dining hall,
and ultimately assembling in front of the urinals next to the
PAR course, assuming a squatting position, [and] refusing to
get down.” Id. at 2-3. As more prison staff
came to assist, the STG members “were observed and
heard yelling obscenities at staff and remained in the
squatting position refusing to comply with alarm
procedures.” Id. at 3. Repeated announcements
to “get down” using the public address system
also had no effect until “[r]esponding staff formed a
skirmish line on the asphalt track in front of the dining
hall, and separated the initial responding staff from the
group of STG [members].” Id. When “Code
3 responders and Investigative Services Unit [personnel]
arrived and joined the skirmish line, ” the gathering
of over one-hundred squatting STG members was eventually
disbanded, and the participants were individually placed in
restraints, photographed, and then escorted back to their
individual housing units. Id. Lastly, Plaintiffs
have noted the submission of only one RVR, which is
representative of four other RVRs for similarly situated
prisoners. See Pls.' Mot. (dkt. 1215) at 3 n.1.
DISCUSSION
At the
heart of the Parties' dispute is the definition of the
word “rout.” The essence of Plaintiffs'
argument is that because participation in a rout with an STG
nexus is not a SHU-eligible offense under the Parties'
Settlement Agreement, Defendants have breached the agreement
by assessing SHU terms to persons who participated in the
above-described event at Pleasant Valley State Prison in
February of 2019. See generally id. at 3-5.
Plaintiffs submit that, while the SHU-Chart specifically
includes disturbances, riots, and strikes (as well as
including the inciting of conditions likely to threaten
institutional security), Defendants' contention that a
rout is the same as a disturbance carries no weight because
rout is an independent criminal offense under California law
and “if it were SHU-eligible it would be [specifically]
included on the exclusive list of SHU-eligible
offenses”; and, because of the SHU-Chart's failure
to include the word “rout, ” Plaintiffs contend
that “a rout is categorically ineligible for SHU
[confinement] under the SA.” Id. at 5.
However,
at oral argument, Plaintiffs' counsel tempered this
position somewhat. Since Plaintiffs have argued that a rout
and a disturbance are not the same thing, when asked by the
court what might then constitute a SHU-eligible
“disturbance” as the term is used in the
SHU-Chart, Plaintiffs' counsel responded that she would
need to consult the definitions in 15 California Code
Regulations § 3000 in order to see what might constitute
a disturbance. However, upon review, the court notes that
§ 3000 does not venture to define
“disturbance” at all. In fact, the only
appearance of the word “disturbance” in §
3000 is under the provision which defines the phrase,
“same and similar behavior, ” wherein, among
other things, it is mentioned that “[d]isturbances,
riots, or strikes as listed in subsection 3341.9(c)(7) [i.e.,
the SHU-Chart] are same/similar only to themselves.”
See id. At oral argument, Plaintiffs' counsel
opined that a disturbance would have to involve something
more than an attempted riot, and would involve some
additional level of activity or of intent on the part of the
individuals who are charged. When the court inquired about
the provision in the SHU-Chart, at §7(c), wherein a SHU
term may be assessed for inciting conditions likely to
threaten institutional security, Plaintiffs' counsel
conceded that if a rout is to be defined as an attempted
riot, then perhaps in certain cases it would be conceivable
that rout activity may be likely to threaten institutional
security, but that mere participation in a rout
could not rise to the level inciting conditions that
would be likely to threaten institutional security. Lastly,
Plaintiffs' counsel suggested at the hearing that the
dictionary definition of rout being the same as disturbance
is “obscure” and should not dictate the outcome
here. However, as discussed below, that “obscure”
definition of “rout” (i.e., disturbance) is what
renders it a legal term, and causes it to be found in nearly
every legal dictionary, and nearly every criminal code, in
the English-speaking world.
Defendants
contend that while the SA and the SHU-Chart did not
explicitly include rout as a listed offense, that rout
activity is nevertheless encompassed within §7 of the
SHU-Chart. See Defs.' Mot. (dkt. 1217) at 3.
Defendants add that under California law, which governs the
interpretation of the Parties' Settlement Agreement, the
words used in a contract are to be understood in their
ordinary and popular sense, unless used in a technical sense,
or unless a special meaning is given to the term by usage, in
which case the latter must be followed. Id. (citing
Cal. Civ. Code. § 1644). Defendants then make reference
to a Merriam-Webster dictionary entry defining
“rout” as a “disturbance, ” as well
as citing to the California Penal Code wherein
“rout” is defined as occurring when two or more
persons, assembled and acting together, make any attempt or
advance toward the commission of an act which would be a riot
if fully committed. Defs.' Mot. (dkt. 1217) at 3 (citing
Cal. Pen. Code § 406). Defendants add that the prisoner
for whom the RVR was submitted by Plaintiffs pleaded guilty
to violating the code of conduct found in 15 Cal. Code. Reg.
§ 3005(d)(3), which prohibits participation in riots,
routs, or unlawful assemblies. Def.'s Mot. (dkt. 1217) at
4.
In
reply, Plaintiffs make much of the fact that
“Defendants' incomplete and misleading citation to
Merriam-Webster (which actually provides
“disturbance” as the fourth definition
for the noun “rout, ” after “a disorderly
retreat” a “precipitate flight” and
“a crowd of people”) cannot supplant the
definition section of CDCR's own regulations.”
Pls.' Rep. Br. (dkt. 1219) at 3 (emphasis in original).
Notably, Plaintiffs contend that if CDCR views routs as
attempted riots, “CDCR plainly violated the SA when it
assessed [full] SHU terms for a completed riot, which carries
twice the [length of] term as an attempt under Section 13 of
the SHU Term Assessment Chart.” Id. at 5.
Thus, it appears that Plaintiff's complaint as to the
length of the SHU terms for rout activity, as
opposed to their outright legality and permissibility under
the SA, was presented for the first time in the
Plaintiffs' Reply Brief. See generally Pls.'
Mot. (dkt. 1215); and, Pls.' Rep. Br. (dkt. 1219) at 5.
“Rout”
is not only a commonly used term with several meanings in
both the verb and noun forms, all of which have an
interesting etymological history; but, most importantly,
“rout” is an important legal term with a
prominent place in legal history and also in every legal
dictionary ever produced in the English language.
“Besides the current sense of disorderly retreat of a
defeated army, rout (via Old French from Latin
rupta, a detachment; rumpere,
ruptum, to break) had a range of meanings.”
See Shipley, Joseph T., “A Dictionary of Early
English, ” Littlefield, Adams & Co. (1963) at 565.
Among this range of meanings is included that of a flock, a
pack, or a number of persons or things. See e.g.,
Chaucer, William, “The Canterbury Tales: The
Knight's Tale” (1386) at Part 4, Lines 1635-36
(“And to the paleys rood ther many a route of lordes
upon steedes and palfreys.”). Indeed, the currently
common usage of the word - that of a precipitate and
disorderly retreat - did not develop until the end of the
16th century. See Shipley at 565; see e.g.,
Shakespeare, William, “Cymbeline” (1611) at Act
5, Scene 3 (“Then began . . . a retire, anon a rout,
confusion thick; forthwith they fly”). As to a more
relevant meaning, as early as the 13th century, the word had
developed an unfavorable connotation in signifying a
disorderly or disreputable crowd, that is, a gathering of
three or more persons with criminal intent. See
Shipley at 545; see also Shakespeare, William,
“Comedy of Errors, ” (1594) at Act 3, Scene 1
(“And that supposed by the common rout against your yet
ungalled estimation . . . .”). Incidentally, from this
sense of the word - a disreputable crowd - the term came to
be used, by humor, in the 18th and 19th centuries as a common
word for fashionable gatherings or large evening parties.
See Shipley at 565.
In the
law, the term has been used to signify a specific category of
public disturbance from at least 1553 when it was legislated
upon. See e.g., 1 Mar. Sess. 2, c. 12. Based on this
legislative enactment during the reign of Queen Mary, an
early legal lexicographer of the English language defined
“rout” as such: “[r]out is when people
assemble themselves together, and after proceed, or ride, or
go forth, or move by the instigation of one or more, who is
their leader. This is called a rout because they move and
proceed in routs and numbers.” Rastell, John,
“Les Termes de la Ley, ” W. Rawlins et al (1685)
at 603. Rastell's entry for rout goes on to add that
“[a]lso, where many assemble upon their own quarrels
and brawls; as if the inhabitants of a town mill gather
together to break hedges, walls, ditches, pales, or such
like, to have common there, or to beat another that hath done
them a common displeasure, or such like; that is a rout, and
against the law, although they have not done or put in
execution their mischievous intent.” Id.
(citing 1 Mar. Sess. 2, c. 12). Likewise, in 1644, Lord Coke
distinguished riots, routs, and unlawful assemblies. Coke
defined riots as happening in the common law “when
three or more doe any unlawful act, as to beat any man, or to
hunt in his park, chase, or warren, or to enter or take
possession of another man's land, or to cut or destroy
corn, grasse, or other profit, &c.” See 3
Inst. 175-76. He defined routs as happening “when three
or more do any unlawfull act for their own, or the common
quarrel . . . as when commoners break down hedges or pales,
or cast down ditches, or inhabitants for a way claimed by
them, or the like.” Id. Coke defined unlawful
assembly as “when three or more assemble themselves
together to commit a riot or rout, and doe it not.”
Id. More than a century later, in his Commentaries
on the Laws of England, Blackstone defined unlawful
assemblies as “where three or more do assemble
themselves together to do an unlawful act . . . and part
without doing it, or making any motion towards it.” 4
Bl. Comm. 176. On the other hand, Blackstone defined rout as
“where three or more meet to do an unlawful act upon a
common quarrel . . . and make some advances towards
it.” Id. Lastly, Blackstone defined riot as
“where three or more actually do an unlawful act of
violence, either with or without a common cause or quarrel .
. . or even do a lawful act, such as removing a nuisance, in
a violent and tumultuous manner.” Id. Thus,
Defendants' reliance on the current edition of
Merriam-Webster's dictionary, giving a secondary
definition for the noun, “rout, ...