State didn’t violate settlement with prisoners in solitary, 9th Circuit rules

Reversing a district judge's order, a 9th U.S. Circuit Court of Appeals panel ruled Monday the state prisons department did not violate a settlement agreement with prisoners who had been in solitary confinement even though authorities did not increase inmates' time out of their cells.

Inmates at Pelican Bay State Prison were challenging their placement in so-called "security housing" based only on gang affiliation. The agreement said prisoners eligible to be released from solitary confinement "shall be released from [security housing] and transferred to a general population Level IV 180-design facility, or other general population institution consistent with his case factors."

But the transfer did not mean the prisoners got more time out of their cells. U.S. District Judge James S. Gwin of the Northern District of Ohio, sitting on the panel by designation, suggested the inmates struck a bad deal.

"Having negotiated their solitary confinement release, the prisoners do not point to any settlement language requiring any specific out-of-cell time," Gwin wrote. "California made no agreement regarding the out-of-cell conditions for inmates leaving security housing for general population under the settlement."

In another part of the agreement, prisoners remaining in security housing got 20 hours out of their cells, Gwin wrote, adding it showed both sides knew how to negotiate specific language as part of the deal.

Gwin also sided with the state over "walk-alone status," which allowed prison authorities to require an inmate released into restricted custody to have limited physical contact with other inmates unless a compatible group agreed to accept him.

The language of the agreement strikes an "aspirational tone," and "is not, as the prisoners contend, a strict requirement that there will be more social interaction, but instead a programming goal," Gwin wrote.

The panel -- which included Senior 9th Circuit Judge J. Clifford Wallace and 9th Circuit Judge Ryan D. Nelson -- reversed a ruling by U.S. District Judge Claudia Wilken of Oakland and remanded the case to her. Ashker et al. v. Newsom et al., 2020 DJDAR 8051 (9th Cir., filed Aug. 3, 2020).

Samuel Miller, an attorney with the Center for Constitutional Rights who argued for the prisoners, said the panel decision "allows the prison system to define general population any way they please," and to "hold people in their cells as long as they want to, which means nearly all day, every day."

He raised the possibility of seeking reconsideration, en banc review, or a certiorari petition to the U.S. Supreme Court but said in a telephone interview that no decision would be made until the ruling was reviewed with his clients.

The class action was filed in 2009 by inmates who had been placed in Pelican Bay's security housing unit for more than a decade. They alleged placement there, where roughly 1,500 prisoners were held in their cells for 22 hours a day, amounted to cruel and unusual punishment. The inmates and the California Department of Corrections and Rehabilitation reached an agreement to resolve their lawsuit, which plaintiffs said had been breached.

In a related case, the panel declined to address whether the settlement agreement had terminated, saying the issue should be decided by Wilken and not a magistrate judge. Ashker et al. v. Newsom et al., 2020 DJDAR 8045 (9th Cir., filed Aug. 3, 2020).

Jeffrey T. Fisher of the state attorney general's office argued for the prisons department. Agency spokesperson Terry Thornton declined to comment on the 9th Circuit rulings Monday because the litigation is pending.

Miller said he would pursue an extension of the settlement agreement and other claims in the prisoners' lawsuit, including alleged misuse of confidential information and the use of old gang validations against prisoners when they were up for parole.