Opinion
No. CV 03-1393-PHX-SRB.
September 30, 2005
OPINION AND ORDER
Plaintiff Isadore Baptisto, a prisoner in the custody of the Arizona Department of Corrections ("ADOC"), filed this pro se action under 42 U.S.C. § 1983. At issue are Plaintiff's Motion for Summary Judgment (Doc. 35) and a Cross-Motion for Summary Judgment filed by Defendants (Doc. 50). Plaintiff also moves to strike portions of Defendants' Statement of Facts, although Plaintiff's motion in that regard was not separately filed, but was included in Plaintiff's "Motion of Disputed Facts in Response to Defendants' Cross-Motion for Summary Judgment and Defendants' Statement of Facts" (Doc. 60). I. BACKGROUND
These facts are drawn from documents submitted by both parties in support of their motions for summary judgment, and from Plaintiff's verified pleadings and motions, which may be treated as affidavits to oppose summary judgment to the extent that they are "based on personal knowledge" and "set forth specific facts admissible in evidence." See Keenan v. Hall, 83 F.3d 1083, 1090 n. 1 (9th Cir. 1996).
A. Security Threat Group Validation
Plaintiff is an inmate in Special Management Unit II ("SMU II"), a Supermax prison in Florence, Arizona reserved for death row inmates, inmates under investigation for protective custody, inmates with high classifications, and validated members of Security Threat Groups ("STGs"), also known as prison gangs.
The National Institute of Corrections defines a Supermax prison as, "[a] freestanding facility, or a distinct unit within a freestanding facility, that provides for the management and secure control of inmates who have been officially designated as exhibiting violent or seriously disruptive behavior while incarcerated. Such inmates have been determined to be a threat to safety and security in traditional high-security facilities and their behavior can be controlled only by separation, restricted movement, and limited access to staff and other inmates." Austin v. Wilkinson, 189 F. Supp.2d 719, 722 n. 2 (N.D. Ohio, 2002) (quoting Chase Riveland, Supermax Prisons: Overview and General Considerations 3 (1999)).
The process and purpose of prisoner "classification" will be discussed below.
Every prisoner in the ADOC receives a Correctional Classification Profile ("CCP") after a hearing with the Institutional Classification Committee ("ICC"). The prisoner receives prior notice of this hearing, has an opportunity to present evidence, is informed of his right to remain silent, and receives a written copy of the ICC's determination. The CCP is a composite of the prisoner's public risk score, institutional risk score, medical and health care needs risk score, mental health care needs score, and various other scores which quantify different aspects of the prisoner's needs. Each of these scores is, in turn, compiled from various elements. For example, the Public Risk Score considers eight elements: the severity of the current offense, the extent of violence in the current offense, the use of a weapon in the current offense, the escape history, the history of violence, the confinement history, the estimated length of confinement, and the detainer status. The CCP is used, among other things, to determine in which ADOC prison an inmate will be incarcerated.
In 1997, in response to the growing threat that STGs posed to the safe operation of the ADOC's prisons, the ADOC implemented Departmental Order ("D.O.") 806. Under D.O. 806, once an inmate is validated as an STG member, his Public and Institutional Risk Scores are both increased to the maximum five out of five, and the inmate is automatically transferred to SMU II. After validation, a prisoner can be transferred out of SMU II only if he renounces his STG membership and formally debriefs prison officials, a process in which the inmate provides prison officials with information about other gang members and gang activity. The stated purpose of debriefing is not to gather evidence to be used in criminal prosecution, but to gain information about the operation and structure of STGs so as to weaken their influence, and to learn if particular inmates require protection from STG members.
When prison officials suspect that an inmate is a member of an STG, they conduct an investigation, in which they attempt to gather as much information as possible to verify the inmate's STG status. This information comes from several sources: current STG members, debriefing by former STG members, Criminal Investigation Units and other criminal justice agencies, random searches of the inmate's cell, an examination of the inmate's body for STG-related tattoos, monitoring of the inmate's telephone calls, mail and interactions with other inmates, and documentation of STG-related activity such as assaults, extortion and disturbances.
The culmination of each investigation is a hearing similar to the one each prisoner receives in formulating his CCP. Like in the CCP hearing, the inmate is given advance notice to allow him an opportunity to gather evidence, and is informed of his right to remain silent. Absent special security concerns, the inmate is allowed to be present at the hearing and present evidence. After reviewing the prisoner's records and listening to the evidence, the hearing officers render a decision in writing, which is provided to the inmate, who may appeal his validation to the STG Validation Committee.
Validated STG members, like all ADOC inmates, receive periodic classification reviews. Like at the initial classification hearing, prisoners receive written notice, have an opportunity to present evidence, are informed of their right to remain silent, and receive a written explanation of the reasons for their classification. Validated STG members, however, can only affect their CCPs by renouncing their gang membership and successfully completing the debriefing process.
On April 4, 2002, the ADOC validated Plaintiff as a member of the "Warrior Society," a prison gang that meets the ADOC's definition of an STG, and he was transferred to SMU II. Plaintiff was given a notice of the impending validation, and was advised of his right to appear at the hearing and to request witnesses. The notice also informed Plaintiff of the evidence which led the ADOC to believe that he was a member of the Warrior Society: the presence of an "STG Specific tattoo of the Warrior Society," on Plaintiff's neck, and the presence of Plaintiff's name on a Warrior Society membership list.
Plaintiff unsuccessfully appealed his validation, and was transferred to SMU II on June 20, 2002. He has received classification reviews every six months, choosing each time not to renounce his STG membership and debrief prison officials. As such, he has remained an inmate in SMU II.
B. Conditions in SMU II
Plaintiff, like all other validated STG members, leads a heavily restricted life in SMU II. He remains isolated in his cell for 165 hours per week. His cell is illuminated twenty-four hours per day to allow security checks, but the lights are dimmed at night. The cell contains a sink, a toilet and a bed.
While Plaintiff may speak with inmates in other cells, he is allowed no face-to-face communication with them, nor can he pass notes or share legal documents with them. Plaintiff can have visitors, but only one visit per week for a maximum of two hours. During that time, Plaintiff is separated from his visitors by glass, so no touching can occur. Plaintiff is allowed one five-minute phone call per week and is ineligible for compassionate escorted leave. He can also send and receive mail.
Plaintiff is permitted three showers per week, which coincide with the three, one-hour out-of-cell exercise sessions to which he is entitled each week. These exercise sessions occur in a recreation area, which has a cement floor, twenty-foot high cement walls, and a steel mesh top which allows fresh air and sunlight to enter. Only one inmate at a time is allowed in the recreation area. Inmates are permitted unlimited in-cell exercise.
Plaintiff's diet is controlled by a nutritionist. Plaintiff receives three meals a day on weekdays and two per day on weekends. Plaintiff cannot purchase food from the commissary, but may purchase other things such as hygiene-related items, vitamins, a television, a walkman, and clothes. Plaintiff has lost 75 pounds since his transfer to SMU II.
Plaintiff may speak to the prison staff several times per day, and he has access to counselors, with whom he may speak face-to-face five times per week. Plaintiff is ineligible for work, vocational, recreational or education programs, but may do in-cell programs. A library containing legal materials is available to Plaintiff, who can check out materials several times per week.
On July 22, 2003, Plaintiff, representing himself, filed a three-count complaint under 42 U.S.C. § 1983, seeking declaratory and injunctive relief. The first count alleges that his placement into SMU II as well as his classification review hearings violate his right to due process under the Fourteenth Amendment of the United States Constitution. The second count alleges that his conditions of confinement in SMU II violate the Eighth Amendment's prohibition of cruel and unusual punishment. The third count alleges that Defendants improperly retaliated against him by placing him in SMU II only because Plaintiff exercised his right to remain silent and refused to debrief prison officials.
On October 12, 2004, Plaintiff filed a motion for summary judgment. On January 13, 2005, Defendants filed their response, coupled with a cross-motion for summary judgment.
II. LEGAL STANDARDS AND ANALYSIS
A. Motion to Strike
Plaintiff moves to strike various portions of Defendants' Statement of Facts. Plaintiff references no authority for this request, but asserts that the referenced portions are irrelevant, misleading or untrue.
Federal Rule of Civil Procedure 56 provides no basis for striking a statement of fact merely because Plaintiff asserts facts to the contrary. Nor does Federal Rule of Civil Procedure 12(f), which relates only to pleadings, provide such a basis. Compare Fed.R.Civ.P. 7(a) (defining pleadings as complaint, answer, cross claim, third-party complaint and reply) with Fed.R.Civ.P. 7(b) (identifying motions and other papers). See Phinney v. Paulshock, 181 F.R.D. 185 (D.C.N.H. 1998), affirmed 199 F.3d 1 (1st Cir. 1999) (motion is not "pleading" for purposes of motion to strike pleadings); Wright Miller, 7. 5 Fed. Prac. Proc. Civ.3d § 1183 (same). Nor does Rule 103, Federal Rules of Evidence, which relates to the striking of evidence, not papers filed with the Court. Defendants' Statement of Facts is not evidence.
Plaintiff could seek to strike the portions of the declarations that correlate to and support the allegations in Defendants' Statement of Facts. See U.S. for Use and Benefit of Austin v. Western Elec. Co., 337 F.2d 568, 575 (9th Cir. 1964) (acknowledging propriety of motion to strike affidavit submitted in support of motion for summary judgment); Allen v. Scribner, 812 F.2d 426, 435 (9th Cir. 1987) ("If a party fails to move to strike an affidavit that is allegedly defective under Rule 56(e), he waives any objection to it."). However, Plaintiff does not request that the declarations be stricken, only the Statement of Facts, and Defendants have responded on this basis. For the Court to now read into Plaintiff's motion a wholly different request would be patently unfair.
Plaintiff having failed to show a basis for his request, the motion to strike will be denied. However, to the extent that the allegations may be irrelevant, conclusory, or otherwise not properly supported in accordance with Federal Rule of Civil Procedure 56, they may be appropriately discounted by the Court in resolving the motions for summary judgment.
B. Qualified Immunity
Defendants argue that the Plaintiff's complaint should be dismissed because they are entitled to qualified immunity. However, qualified immunity is only an immunity from a suit for damages. "Qualified immunity AAA does not bar actions for declaratory or injunctive relief." Los Angeles Police Protective League v. Gates, 995 F.2d 1469, 1472 (9th Cir. 1993) (quoting Am. Fire, Theft Collision Managers, Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991)). Plaintiff's Complaint does not seek damages, only injunctive and declaratory relief. Accordingly, Defendants cannot be granted summary judgment on the basis of qualified immunity.
C. Summary Judgment
Summary judgment is appropriately granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to show an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986). If the moving party meets its initial burden, then the non-moving party must set forth specific facts showing a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509-10 (1986). In deciding a motion for summary judgment, the court views the evidence of the non-movant in the light most favorable to that party, and all justifiable inferences are to be drawn in its favor. Id. at 255.
1. Procedural Due Process
The Due Process Clause of the Fourteenth Amendment prohibits the states from "depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To determine whether a due process violation has occurred, a court engages in a two-step analysis. First, a court looks to whether the person possesses a liberty interest with which the state has interfered. Sandin v. Conner, 515 U.S. 472, 15 S. Ct. 2293 (1995). Second, if the state has interfered with a liberty interest, a court looks to whether this interference was accompanied by sufficient procedural and evidentiary safeguards. See Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904, 1908 (1989); see also Zimmerlee v. Keeney, 831 F.2d 183, 186 (9th Cir. 1987).
Defendants argue that not only does Plaintiff's confinement at SMU II not implicate a liberty interest, but that even if it does, the classification hearings afford Plaintiff all the "process" to which he is legally "due." Plaintiff contends that he has been deprived of a liberty interest, and this deprivation occurred without due process. In particular, Plaintiff appears to argue that the hearings violate his right to due process because they do not respect his right to remain silent. Even though he admits that the ADOC informs him of that right, Plaintiff argues that his silence is used against him because the only way his classification can be altered is if he breaks his silence by renouncing his gang membership and debriefing prison officials. Plaintiff also argues that it must offend due process to indefinitely imprison someone in solitary confinement, when that person has not been charged with any misconduct, only membership in a gang.
There is no doubt that, in light of the United States Supreme Court's recent decision in Wilkinson v. Austin, ___ S. Ct. ___, 2005 WL 1383625 (June 13, 2005), Plaintiff possesses a liberty interest in avoiding transfer to SMU II. The Wilkinson Court reaffirmed its earlier holding in Sandin v. Conner, 515 U.S. at 472, 115 S. Ct. at 2293, that an inmate possesses a liberty interest if his assignment to a more restrictive prison setting "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Wilkinson, 2005 WL 1383625, at *9 (quoting Sandin, 515 U.S. at 484, 115 S. Ct. at 2300). Imprisonment in a Supermax facility imposes such a hardship. Id.
The conditions in the prison at issue in Wilkinson, a Supermax prison in Ohio, are similar in almost all material respects to those in SMU II. Inmates in both states are assigned indefinitely to the Supermax prison, limited only by the duration of their sentence. Wilkinson, 2005 WL 1383625, at *4. While the inmates in Ohio's prison are entitled to seven hours out of their cell each week, SMU II inmates are entitled to three. Id. at *3. Inmates at both prisons spend the time outside of their cells in a small recreation room. Id. Both prisons severely limit the interaction that prisoners can have with each other. Neither allows face-to-face communication, and Ohio's appears to prohibit all conversation between inmates. Id. The cells in both prisons are subject to twenty-four hour illumination, with the lights dimmed at night. Id. Due to these similarities, it can no longer be seriously disputed that SMU II inmates have a liberty interest in avoiding placement in SMU II.
The next question is whether Plaintiff received the process to which he is legally due prior to his transfer to SMU II, as well as during subsequent classification hearings. In Mullins v. Stewart, No. CV-02-1056-PHX-SRB and in Diaz v. Schriro, No. CV-03-1498-PHX-SRB, the Court granted the ADOC's motion for summary judgment on the plaintiff's due process claim based on circumstances identical to those in the present case. Both Plaintiff and the inmates in Mullins and Diaz challenged the constitutionality under the Fourteenth Amendment's due process clause of the ADOC's validation process and subsequent classification hearings. The arguments that Plaintiff makes in the present case are virtually identical to those made in Mullins and Diaz, as is the factual record before the Court. Just as there were no disputed issues of material fact in Mullins or Diaz, nor are there here.
The Court's decision in Mullins and Diaz as well as its decision today are bolstered by the Supreme Court's ruling in Wilkinson. After the Wilkinson Court held that the conditions in Ohio's Supermax facility implicated a liberty interest, the Court analyzed the procedures by which an inmate is assigned to Ohio's Supermax prison, and adjudged those procedures constitutionally sufficient. As such, a comparison of Arizona's Supermax placement procedures to those of Ohio is in order.
Both prison systems may initiate the transfer of an inmate to the Supermax facility for, among other reasons, involvement in a prison gang. Wilkinson, 2005 WL 1383625, at *4. In both states, the initial decision to transfer a prisoner to the Supermax facility is made at a hearing. Id. Prison officials in both states provide advance notice to the inmate of the hearing. Id. at 5. While Arizona permits inmates to call witnesses at their hearings, Ohio does not. In both states, the hearing committee renders a decision in writing which is provided to the inmate.
Apparently, an Ohio inmate must "lead a prison gang" in order to be incarcerated in the Supermax facility, but the Supreme Court provided no elaboration on that term. Wilkinson, 2005 WL 1383625, at *4.
In Ohio, a three-person panel conducts the hearing and renders a decision, Wilkinson, 2005 WL 1383625, at *4; in Arizona, it is unclear how many prison officials conduct the hearing, but it is at least two.
In Arizona, that notice comes at least five working days prior to the hearing (Plaintiff received seven days notice before his hearing); in Ohio, at least two days.
An inmate in Arizona may not directly question a witness, but may submit questions in advance of the hearing to the hearing committee.
An Arizona inmate who is validated as an STG member has three options: he may accept the committee's decision and refuse to renounce his STG membership; he may accept the committee's decision and choose to debrief prison officials; or he may appeal the committee's decision to the STG Validation Committee within five days of receiving the committee's decision. If an inmate chooses the latter option, the inmate's validation file is forwarded to the warden, who reviews it before transmitting it to the validation committee. The decision of the validation committee is final.
It is unclear whether a warden who disagrees with the committee's validation decision has the power to terminate the validation process.
An Arizona inmate's annual classification review affords similar process to the original validation hearing. Prior to each classification review, the prisoner receives written notice, has an opportunity to present evidence, is informed of his right to remain silent, and receives a written explanation of the reasons for his classification. A validated STG member, however, can only affect his CCPs by renouncing his gang membership and successfully completing the debriefing process.
Ohio's appeals process is similar to Arizona's. The first avenue of appeal is to the warden, who may choose to terminate the transfer procedure. Id. If the warden concurs with the committee, he provides a written explanation to the inmate explaining his reasons for doing so. The inmate may make a final appeal to the Bureau of Classification Review.
The Supreme Court held that Ohio's procedures are "adequate to safeguard an inmate's liberty interest in not being assigned to [the Supermax facility]." Id. at *13. In light of the striking similarity of Arizona's SMU II-transfer procedures to those in Ohio, the Court concludes that Plaintiff's validation hearing and subsequent classification hearings afford him a constitutionally adequate amount of process.
As in Mullins and Diaz, Plaintiff also appears to contend that the initial validation hearing as well as subsequent classification hearings offend his Fifth Amendment right to avoid self-incrimination. U.S. Const. amend. V. Plaintiff contends that because the only way for him to extricate himself from SMU II is to renounce his gang membership and debrief prison officials, he is essentially being compelled to incriminate himself. But even assuming that Plaintiff's supposed Hobson's Choice is tantamount to compelling him to speak, the privilege against self-incrimination is inapplicable in this context.
The Fifth Amendment's privilege against self-incrimination applies to the states through the Fourteenth Amendment's Due Process Clause. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 451 (1980).
In Castro v. Terhune, the Ninth Circuit flatly rejected the argument that the 'debriefing' process, by which prisoners leave the [Security Housing Unit] violates [the] privilege against self-incrimination. [The inmate] is not compelled . . . to debrief; rather he is given the opportunity to receive more lenient treatment from prison officials in exchange for information he has concerning gang activity in prison. Denial of this opportunity as a consequence of refusal to debrief thus does not violate [the inmate's] privilege against self-incrimination. 29 Fed. Appx. 463, 466 (9th Cir. 2002) (citing United States v. Gonzales, 897 F.2d 1018, 1020-21 (9th Cir. 1990) (acceptance of responsibility in exchange for sentencing reduction does not violate the Fifth Amendment)).
While the court in Castro does not explicitly identify the prison at issue in that case, the Court infers that the inmate was incarcerated in California's Pelican Bay State Prison ("Pelican Bay"), a maximum security facility that contains a virtually identical policy to that in Arizona concerning the treatment of prison gang members. See Galvedon v. Marshall, 1997 WL 765955 (N.D. Cal. Nov. 12, 1997). As in SMU II, once an inmate is validated as a prison gang member, he is transferred indefinitely to the prison's Security Housing Unit ("SHU"). An inmate may procure his exit from SHU only be debriefing. Id.
In Gonzales, the defendant argued that a provision of the United States Sentencing Guidelines which enabled judges to exercise leniency for a defendant who accepted responsibility for his crimes violated his right against self-incrimination. Id. at 1020-21. "Specifically, the defendant argued that the only way a defendant who had protested innocence at trial could obtain a sentence reduction was for that person to confess guilt of the original crime and thus admit perjury at trial," thereby causing the defendant to "incriminate himself for further prosecution." Galvedon, 1997 WL 765955, at *8 (citing Gonzales, 897 F.2d at 1020-21).
The Gonzales court rejected the defendant's argument:
We begin by observing that the reduction provided for in [the United States Sentencing Guidelines] is merely a benefit which may be accorded to a defendant if he is able to make the necessary showing. The possibility of leniency in the statute does not make denial of lenient treatment impermissible where the district court determines that the defendant has failed to exhibit the requisite contrition.Id. at 1021.
In Galvadon v. Marshall, a case also involving the constitutionality of the debriefing process at Pelican Bay, the court expounded on the Ninth Circuit's analysis in Castro. The court noted that,
Like the Gonzales defendant, a prisoner indeterminately retained in SHU also has the option to receive more lenient treatment if he debriefs to show that he has ended his gang affiliation. Contrary to Galvadon's arguments, denying a prisoner leniency for refusing to debrief did not punish him for refusing to talk. Rather, the denial of leniency recognizes that, by refusing to debrief, the prisoner shows himself to constitute a continued threat to prison security as is thus appropriately confined to the SHU.Id. (citations omitted).
Every other district court reviewing Pelican Bay's debriefing process has reached the same result as the courts in Castro and Galvedon, but with an array of different rationales, many of which are applicable here. First, an inmate (like Plaintiff) who claims that he is not in a prison gang and has committed no crime or infraction since his incarceration cannot conceivably fear that he could be forced to incriminate himself, as, according to him, he has done nothing wrong. Such an inmate's problem "is one of impossibility, not self-incrimination." Hart v. Cambra, 1997 WL 564059, *7 (N.D. Cal. Aug. 22, 1997). In that scenario, the inmate lacks standing to challenge the debriefing policy. Id. (citing Powers v. Ohio, 499 U.S. 400, 410, 111 S. Ct. 1364, 1374 (1991) (ordinarily a plaintiff does not have standing to complain about the deprivations of the constitutional rights of others); Marchetti v. United States, 390 U.S. 39, 53, 88 S. Ct. 697, 710 (1968) ("The central privilege for the [ Fifth Amendment] privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary hazards of incrimination")); see also Galvadon, 1997 WL 765955, at *8; Baker v. Patten, 1994 WL 665189 (N.D. Cal. Nov. 3, 1994).
Second, the "privilege [against self-incrimination] applies when a defendant is compelled to be a witness against himself in his own criminal prosecution or when he is called on to testify in any type of proceeding to answer questions which might serve to incriminate him in any future prosecution." United States v. Segal, 549 F.2d 1293, 1999 (9th Cir. 1977) (citing Lefkowitz v. Turely, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973)). The ADOC's D.O. 806.06, which covers the debriefing of STG members, states,
the purpose of debriefing is not to obtain incriminating criminal information or evidence against the [STG] member. The primary objective is to learn enough about the member and the STG to: Convince the Department that the inmate has dropped out of the STG; Provide additional information regarding the STG's structure, activity and membership that would adversely impact the STG and assist in management of the STG population; Provide sufficient information to determine if the inmate may require protection from other STG members or suspects.
Plaintiff does not cite any evidence, nor even allege, that the testimony he is supposedly being compelled to give would be used to criminally prosecute him, nor does he cite examples from cases or from personal knowledge where testimony given by an inmate at a classification hearing has been used in a criminal prosecution of the inmate giving the testimony, or, for that matter, for any purpose other than those listed in the Departmental Order. Plaintiff's belief that he may incriminate himself if he is debriefs, even assuming that he possessed any incriminating information, is "merely trifling [and] imaginary," a fact that precludes his right to invoke the privilege. See Griffin v. Gomez, 1995 WL 396857 (N.D. Cal. June 29, 1995); Medina v. Gomez, 1997 WL 488588 (N.D. Cal. Aug. 14, 1997); Hart, 1997 WL 564059, at *7 (citations omitted); Galvadon, 1997 WL 765955, at *9; Castrellon v. Gomez, 1997 WL 361199 (N.D. Cal. June 23, 1997); Garcia v. Gomez, 1996 WL 390320 (N.D. Cal. July 3, 1996); Castaneda v. Marshall, 1997 WL 123523 (N.D. Cal. Mar. 10, 1997); Zarate v. Bunnell, 1994 WL 374547 (N.D. Cal. June 30, 1994).
To comport with due process, a deprivation of liberty must also be supported by "some evidence in the record." Superintendent Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768, 2774 (1985); Cato v. Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987). The "some evidence" standard is "minimally stringent." Id. at 705. "The relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board." Id. (quoting Superintendent, 472 U.S. at 455-56, 105 S. Ct. at 2774-75) (emphasis in Cato)). Part of the reason for this low standard is "the wide-ranging deference [courts must accord] to prison administrators 'in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.'" Toussaint, 801 F.2d at 1104 (quoting Bell v. Wolfish, 441 U.S. 520, 547, 99 S. Ct. 1861, 1878 (1979)).
Defendants argue that this low standard is met by the following evidence: the presence of an "STG Specific tattoo of the Warrior Society" on Plaintiff's neck, and the presence of Plaintiff's name on a Warrior Society membership list.
Plaintiff's argument appears to be that there is insufficient evidence to justify remanding him indefinitely to solitary confinement, especially when that evidence does not consist of any alleged misconduct, but simply the fact that Plaintiff is a member of a gang. Plaintiff relies heavily on Koch v. Lewis, 216 F. Supp. 2d 994 (D. Ariz. 2001), a district court case with virtually identical facts, where the court found that evidence of membership in a prison gang was insufficient to meet the "minimally stringent" Hill standard due to the inherent difficulty of determining gang membership combined with the extreme nature of the liberty deprivation. It is true that Koch is indistinguishable from the present case, but the decision in Koch is not binding on this Court.
It is worth noting that the Ninth Circuit has vacated the district court's orders in Koch "in their entirety." Koch v. Schriro, 399 F.3d 1099, 1101 (9th Cir. 2005).
The Ninth Circuit's decision in Bruce v. Ylst, 351 F.3d 1283 (9th Cir. 2003), which post-dates Koch and also involved indeterminate confinement of an inmate based on gang affiliation, serves as binding precedent on this Court. There, prison officials validated the plaintiff as a gang member based on a report from the local Sheriff's Department, a probation report which stated that the co-defendant in the plaintiff's trial was a member of the same gang, and a statement from a prison informant. Id. at 1287-88. The Ninth Circuit noted that "any one of these three pieces of evidence would have sufficed to support the validation." Id. at 1288. Based on this common sense application of the Hill standard, the Court finds that the decision to validate Plaintiff as a member of Warrior Society was supported by "some evidence in the record."
It is worth noting that the court in Koch seems to stand alone in its interpretation of the Hill standard. District courts, both before and after Bruce, consistently grant prison officials' motions for summary judgment where the officials point to evidence, usually very similar to the evidence presented in the instant case, suggesting that the inmate is a member of a gang. See, e.g., Wolff v. Hood, 242 F. Supp. 2d 811 (N.D. Cal. 2002); Toscano v. Gomez, 1996 WL 571483 (N.D. Cal. Sept. 30, 1996); Harrison v. McGrath, 2004 WL 1465698 (N.D. Cal. June 21, 2004). In light of the evidence offered by Defendants, there remains no genuine issue of triable fact with respect to any aspect of Plaintiff's procedural due process claim.
2. Cruel and Unusual Punishment
The Eighth Amendment of the United States Constitution prohibits "cruel and unusual punishment." U.S. Const. amend. VIII. To prove an Eighth Amendment violation, an inmate must first show that the conditions of his incarceration deny him "the minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834-35, 114 S. Ct. 1970, 1977-78 (1994); Hallett, 296 F.3d at 744. Next, an inmate must demonstrate that prison officials acted with "deliberate indifference" to his "health or safety." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. Such indifference can occur only if "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 2002). "This 'subjective approach' focuses only 'on what a defendant's mental attitude actually was.'" Toguchi v. Chung, 2004 WL 2827667, at *3 (9th Cir. Dec. 10, 2004) (quoting Farmer, 511 U.S. at 839, 114 S. Ct. at 1977).
The Eighth Amendment is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Trop v. Dulles, 356 U.S. 86, 100-01, 78 S. Ct. 590, 598-99 (1957).
Defendants argue that Plaintiff meets neither of these requirements: Plaintiff offered no evidence that Defendants have denied him any basic necessities such as food, clothing, shelter, hygiene, sanitation facilities, or necessary medical attention; further, Plaintiff has offered no evidence that Defendants knew of any risk to his health or safety. Plaintiff argues that prison officials exposed him to a "substantial risk of serious harm" by forcing him to live in unconstitutionally harsh conditions: twenty-four hour illumination of his cell, almost no exercise, sunlight or fresh air, low caloric intake, almost no socialization with other inmates, shackling even outside of his cell, limited use of the commissary, no access to work, educational or recreational activities, no contact visits with family and friends, limited use of the shower, limited access to music, books and newspapers, demeaning defecation conditions, and indefinite solitary confinement. Plaintiff argues that the Defendants satisfied the subjective component of the analysis based on statements made by former ADOC Director Stewart during a deposition in a previous case, and based on their implementation of the departmental order that requires indefinite solitary confinement of all validated STG members. The Court will separately address each allegedly unconstitutional prison condition.
a. Lighting
The Eighth Amendment requires that inmates be given adequate lighting. Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996). "There is no legitimate penological justification for requiring [inmates] to suffer physical and psychological harm by living in constant illumination. This practice is unconstitutional." Id. Plaintiff alleges that his cell is subject to illumination twenty-four hours a day by artificial light, causing stress and sleep deprivation. While Plaintiff admits that the lights are dimmed at night, he alleges that the lighting is still excessive.
While there is agreement about the dimming of the lights at night, there remains a factual dispute about the adequacy of the lighting. Plaintiff claims that the lighting causes him stress and sleep loss. Defendants maintain that the lighting conditions are supported by the valid penological purpose of allowing security checks at all times of the day. Even if Defendants were able to produce evidence that Plaintiff could sleep in a manner so as to avoid the effects of the light, such evidence would be insufficient to merit summary judgment. See id. (affirming denial of summary judgment on the issue of adequate lighting even where prison officials proffered evidence that the inmate would not be affected by the lights if he slept with his head towards the back of his cell).
Satisfied that there are genuine issues of material fact as to whether the illumination of Plaintiff's cell meets the objective prong of the analysis, the Court turns to whether there is a genuine issue of material fact about Defendants' state of mind in keeping Plaintiff's cell lit at all times. Plaintiff cites testimony from the deposition taken in a previous case of former ADOC Director of Prisons Stewart, where he agreed that "one of the goals of the placement in SMU II after the STG validation was to deter others who might be system [sic] from joining or associating with gang members." In the same deposition, Stewart also agreed that "one of the goals of [automatic] placement in SMU II after the STG validation" was to "demonstrate . . . the severe sanctions that follow from an STG validation." Plaintiff also contends that the mere fact that the ADOC automatically confines validated STG members to SMU II evidences Defendants' deliberate indifference to Plaintiff's health and safety. Defendants counter this testimony with an affidavit from an SMU II Deputy Warden who states that there is a valid penological purpose for the lighting conditions in SMU II: to allow for security checks at any time of day.
As there is a conflict in the evidence both about the adequacy of the lighting in SMU II, as well as about Defendants' intent in creating those lighting conditions, summary judgment is inappropriate for either party.
b. Exercise, Sunlight and Fresh Air
Exercise is "one of the basic human necessities protected by the Eighth Amendment." Lemaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993). "Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation." Keenan, 83 F.3d at 1090 (citations omitted).
The parties agree that Plaintiff is allotted three hours of "outdoor" exercise per week in a "recreation area" with a cement floor and walls and a steel grate over the top, although Plaintiff contends that during the winter, he is effectively deprived of the opportunity to exercise, as he is only offered the chance to go to the recreation area early in the morning when he alleges it is too cold. There is agreement between the parties that Plaintiff is permitted to exercise in his cell.
Plaintiff contends that three hours of outdoor exercise is constitutionally insufficient, depriving him of access to sunlight and causing him psychological trauma, including stress and sleep loss. Defendants argue that the limitations on exercise are justified by the security concern of allowing only one STG inmate in the recreation area at a time.
The Ninth Circuit, as well as other circuits, generally refuse to make hard-and-fast rules as to how much outdoor exercise time is required by the Eighth Amendment, as this determination is highly fact-specific and depends upon far more than just the number of hours inmates are allowed to exercise. See Caldwell v. Miller, 790 F.2d 589, 600 (7th Cir. 1986) ("The Eighth Amendment does not provide a fixed formula for determining whether the effect of particular conditions constitutes cruel and unusual punishment . . ."); See, e.g., Davenport v. DeRobertis, 653 F. Supp. 649, 655-56 (N.D. Ill. 1987) (granting injunction requiring more outdoor exercise after trial where jury heard testimony from medical doctors, psychiatrists, and other professionals about the effects of exercise, and a lack thereof, on an inmate's psychological state).
As a general matter, courts seem to require at least five hours per week of outdoor exercise, although, in some circumstances, a court has approved as little as one hour per week. See, e.g., Davenport v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988) (affirming district court injunction requiring five hours per week of outdoor exercise); Frazier v. Ward, 426 F.Supp. 1354, 1367-69 (N.D.N.Y. 1977) (affirming district court decree requiring at least one hour per day of outdoor exercise, weather permitting); Ruiz v. Estelle, 679 F.2d 1115, 1151-52 (5th Cir. 1982) (affirming district court decree requiring at least one hour per day of exercise for inmates in administrative segregation); Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir. 1987) (holding that one hour per week of outdoor exercise does not violate the Eighth Amendment).
Based on this survey of similar cases, it appears that while three hours of outdoor exercise per week may be able pass constitutional muster in some circumstances, it is also possible that three hours per week of exercise could fail the objective prong of the test for cruel and unusual punishment. The resolution of this question requires a deeper inquiry into the circumstances of Plaintiff's imprisonment. See, e.g., Davenport, 653 F.Supp. at 655-56; Frazier 426 F.Supp. at 1367-69; Ruiz v. Estelle, 679 F.2d at 1151-52.
Material questions of fact also remain as to whether Defendants acted with "deliberate indifference" to Plaintiff's "health and safety." As discussed above, former ADOC Director Stewart's deposition in a prior case could be construed to suggest that the ADOC acted with at least "deliberate indifference" to the health and safety of SMU II inmates, perhaps even with the specific intent to punish them for being members of an STG. In an attempt to counter this testimony, Defendants offer evidence by an SMU II Deputy Warden that inmates are limited to three hours of outdoor exercise per week because, given the extreme threat that they pose to security, only one inmate at a time can be allowed in the recreation area. This evidence, while probative on the issue of Defendants' state of mind in imposing this particular condition, is by no means dispositive. Therefore, denial of both parties' motions for summary judgment is proper.
c. Food
"Adequate food is a basic human need protected by the Eighth Amendment." Keenan, 83 F.3d at 1091 (citations omitted). To pass constitutional muster, the food must be "adequate to maintain health." Id. (quotations omitted). Both parties agree that Plaintiff receives three meals during the week and two on weekends. Both parties agree that Plaintiff's diet is reduced in calories due to the sedentary lifestyle Plaintiff is forced to lead as a validated STG member in SMU II.
Defendants argue that Plaintiff's nutritional needs, reduced as though they may be by his sedentary lifestyle, are met by the prison's SMU II diet. Plaintiff counters that he has lost 75 pounds since his transfer to SMU II. Defendants reply that Plaintiff's weight has fluctuated and may be attributable to his other health conditions. The material facts on the adequacy and effects of the SMU II diet are disputed, and both parties' motions are therefore denied.
d. Socialization With Other Inmates
Plaintiff argues that he is unable to socialize with or speak to other prisoners. There is a factual dispute over this issue. Plaintiff cites to the Standardized Housing Unit Regulations, which state, in section 140.03, subsection 1.11, that "socialization is not authorized for CDU and Level 5 inmates," a subset of prisoners which apparently includes validated STG members in SMU II. Defendants dispute this contention, citing the Declaration of Carson McWilliams, a Deputy Warden at SMU II, who stated that "[i]nmates in SMU II are allowed to communicate with other inmates in their group from cell to cell, not face to face."
Even assuming that Plaintiff is not allowed to communicate with other inmates, it can hardly be considered a "minimal civilized measure of life's necessities" to communicate with other inmates in SMU II, especially when Plaintiff is not barred from various other avenues of communication, such as speaking with visitors in person, speaking on the cellular phone, and speaking to a counselor and other members of the staff. Plaintiff does not claim that there is no valid penological purpose for this alleged limitation. On this point, therefore, the Court must grant summary judgment in Defendants' favor.
e. Shackling Outside of Cell
An inmate whom prison officials deem violent may be shackled outside his cell, provided that officials are not "deliberately indifferent" to his "health and safety." See Keenan, 83 F.3d at 1091; Lemaire, 12 F.3d at 1457 (holding that the district court appropriately rejected an inmate's claim that shackling him while in the shower constituted cruel and unusual punishment). Plaintiff argues that he is "subjected to overuse of shackles and security devices," but he cites no evidence that the use of the devices amounted to "deliberate indifference" to his "health or safety." As such, no triable issues remain as to this condition of confinement, and Defendants are entitled to summary judgment in their favor on this point.
f. Use of Commissary
Plaintiff's complaint alleges that he is unconstitutionally denied access to certain items at the commissary such as "food, cold weather clothing, electric razor, lamp, calculator, over the counter medications, playing cards, alarm clock and ice chest." While the Eighth Amendment gives all inmates the right to "adequate food, clothing, shelter, sanitation, medical care, and personal safety," Hoptowit, 682 F.2d at 1246 (quotations omitted), none of the listed items appear to fall within the scope of Eighth Amendment protection. To the extent that Plaintiff is arguing that the deprivation of "over the counter medications" constitutes improper medical care, Plaintiff cites no evidence of any medical condition he suffers from that was in any way adversely impacted by prohibiting him from buying "over the counter medications." Nor does Plaintiff argue that he suffered any side effect from a lack of "cold weather clothing." As such, no triable issues of fact remain as to this prison condition, and the Court will grant Defendants' motion for summary judgment on this issue.
g. Participation in Work, Educational, Vocational and Recreational Activities
Plaintiff argues that denying him participation in work, educational, vocational and recreational programs constitutes an Eighth Amendment violation. It does not, as "idleness and lack of programs are not Eighth Amendment violations. . . . There is no constitutional right to rehabilitation." Hoptowit, 682 F.2d at 1254-55; Toussaint, 801 F.2d 1106-07. Accordingly, Defendants' motion for summary judgment is granted on this point.
h. Non-contact Visitation with Family and Friends
Plaintiff contends that his Eighth Amendment rights are violated by depriving him of contact visits with family and friends. His argument fails, as "[d]enial of contact visitation simply does not amount to the infliction of pain." Toussaint, 801 F.2d at 1113. Therefore, summary judgment in Defendants' favor is appropriate on this issue.
i. Showers
The Eighth Amendment's reach extends to a prisoner's basic "sanitation." Hoptowit, 682 F.2d at 1246. The right to "sanitation" includes the right to shower. See, e.g., Toussaint, 801 F.2d at 1110-1111. But a prison that limits the number of showers an inmate can take does not necessarily violate an inmate's Eighth Amendment rights unless the number of showers is so limited as to deny the inmate his right to basic sanitation. See, e.g., Williams v. Lehigh Dept. of Corrections, 79 F. Supp. 2d 514, 519 (E.D. Pa. 1999) (limiting an inmate's showers was not an Eighth Amendment violation because it had no effect on the inmate's sanitation); Davenport, 844 F.2d at 1316 (holding that inmates experiencing a ninety day lockdown had no right to three showers per week, with Judge Posner noting that, "the importance of the daily shower to the average American is cultural rather than hygienic"). Both parties agree that Plaintiff is limited to three showers per week, and that those showers correspond to the days Plaintiff is allowed to exercise outside. Nowhere does Plaintiff allege that as a result of this number of showers, he is forced to live in a poor state of sanitation. Therefore, this aspect of Plaintiff's complaint does not rise to the level of a constitutional problem.
j. Limited Access to Music, Books, and Newspapers
Plaintiff argues that he is "limited [with respect to the] newspapers, magazines, and recorded music tapes he can receive," especially when compared to death row inmates, who can receive "twice as many of these items." (Pl.'s Second Am. Comp. at 4A.) Plaintiff does not elaborate on exactly how his access to certain reading and music materials is limited, but admits that he has access to a library. It is irrelevant for Eighth Amendment purposes what criteria prison officials use to limit Plaintiff's access to music and reading materials, as the Court can find no case where depriving an inmate of such materials amounted to cruel and unusual punishment. While controlling a prisoner's access to such materials may raise First Amendment and due process concerns, Plaintiff makes no such argument.
k. Defecation Conditions
Plaintiff argues that when he has an outside court appearance, he is "subjected to degrading 'defecation watch' confined in a 3×4 closet in SMU II for up to 72 hours, and forced to defecate in a bucket in the presence of staff for 3 times prior to being allowed back to his cell." The Court cannot find any cases directly on point, but courts have declined to extend the Eighth Amendment's protection to similar situations. For example, in Somers v. Thurman, the Ninth Circuit held that the plaintiff, a male inmate, did not state a claim under the Eighth Amendment where he alleged that female prison guards laughed and made fun of him while conducting body cavity searches and watching him shower. 109 F.3d 614 (9th Cir. 1997). As in the present case, the plaintiff in Somers did not allege that the guards "intended to humiliate him," nor did the plaintiff "allege that the searches occurred without any penological justification." Id. at 622-23. The mere fact that Plaintiff believes that "defecation watch" prior to court appearances is "degrading" does not raise constitutional concerns.
l. Solitary Confinement
Plaintiff incorrectly asserts that the mere fact that he is subjected to indefinite solitary confinement is a form of punishment that raises Eighth Amendment concerns. Solitary confinement raises Eighth Amendment concerns only if the conditions of confinement deprive the inmate of a "minimal civilized measure of life's necessities," including "adequate food, clothing, shelter, sanitation, medical care, and personal safety." Hoptowit, 682 F.3d at 1258 (citations omitted). While, "in considering whether a prisoner has been deprived of his rights, courts may consider the length of time that the prisoner must go without these benefits," Id., the mere fact that the confinement is indefinite does not amount to a constitutional violation.
m. Conditions in General
It is not clear whether Plaintiff advances the argument that even if certain conditions are not by themselves violative of the Eighth Amendment, the general conditions at SMU II, taken together, amount to cruel and unusual punishment. Assuming that Plaintiff makes this argument, it must fail, as "a number of [unrelated] conditions, each of which satisfy Eighth Amendment requirements, cannot in combination amount to an Eighth Amendment violation." Toussaint, 801 F.2d at 1107.
3. Retaliation
"A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994). Plaintiff argues that Defendants retaliated against him for invoking his Fifth Amendment privilege against self-incrimination by refusing to renounce his gang membership and debrief prison officials. Defendants allegedly punish Plaintiff by continuing to confine him in SMU II until he breaks his silence.
Plaintiff's argument fails, for at a minimum, neither the classification hearings nor the STG validation hearing implicate Plaintiff's Fifth Amendment privilege against self-incrimination, for all the reasons discussed above. While there may be a factual dispute as to whether the classification hearings advance legitimate penological goals, it is irrelevant where, as here, the alleged retaliation does not implicate a constitutional right. Therefore, Plaintiff's retaliation claim fails as a matter of law.
IT IS ORDERED denying Plaintiff's Motion for Summary Judgment (Doc. 35).
IT IS FURTHER ORDERED granting in part and denying in part Defendants' Motion for Summary Judgment (Doc. 50). The motion is granted with respect to Counts I and III of the Complaint. With respect to Count II, the aspects of the motion that address the twenty-four hour illumination of Plaintiff's cell, the restriction on Plaintiff's exercise and outdoor time, and the sufficiency of Plaintiff's diet are denied. All other aspects of the motion relating to Count II are granted.