[Pnews] Ninth Circuit Rules Against Prisoners Over Solitary-Confinement Settlement

Prisoner News ppnews at freedomarchives.org
Tue Aug 4 11:07:51 EDT 2020

Circuit Rules for California in Dispute Over Solitary-Confinement Settlement
BIANCA BRUNO August 3, 2020
Photo/Bebeto Matthews, File)

(CN) — California is not violating a settlement agreement with suspected
gang members formerly housed in solitary confinement by keeping them
confined to their general population cells for up to 23 hours a day, the
Ninth Circuit ruled Monday.

The 14-page opinion
by U.S. District Judge James Gwin, a Bill Clinton appointee sitting with
the panel by designation from the Northern District of Ohio, reverses a
2018 finding by U.S. District Judge Claudia Wilken that the California
Department of Corrections and Rehabilitation violated prisoners’ rights by
holding them in their cells for prolonged periods.

Wilken, another Clinton appointee, also found the state violated suspected
gang members’ rights by placing them on “walk-alone status,” barring them
from exercising with others or engaging in group leisure activities.

But the Ninth Circuit found Monday the historic 2015 settlement agreement
— which put a stop to solitary confinement
based on gang affiliation — only required the state to transfer inmates out
of “security housing” to a different facility. The San Francisco-based
appeals court heard oral arguments
in May.

The settlement “did not limit California’s discretion regarding out-of-cell
time for the inmates removed from security housing to general population,”
Gwin wrote.

The unanimous three-judge panel also found the state did not violate the
rights of restricted custody inmates who, for their own safety, could not
be housed in the general population and were barred from exercising with
others in the prison yard.

Those who are on walk-alone status can exercise in individual, 20-foot by
10-foot fenced-in yards and can interact with other inmates through the
fences. They are indefinitely placed on walk-alone status if other
restricted custody inmate groups refuse to accept them and “commit to avoid
trouble with the new inmate.”

They also have more restricted access to leisure-time activities and social
interaction, though they have access to phones, visitors and educational
programming, according to the Ninth Circuit’s summary of the case.

Center for Constitutional Rights <https://ccrjustice.org/> attorney Samuel
Miller, representing inmate Todd Ashker and the class, said in a phone
interview Monday that keeping hundreds of inmates in their cells for
prolonged periods of time is “as bad as ever.”

But he said “it’s very difficult to say” if “lockdowns or modified
programming” has anything to do with the pandemic.

“This case started long before Covid was ever known and many of these
people will be in prison long after,” Miller said.

“Our argument is general population has meaning, it is in the settlement
agreement. We are disappointed the panel has decided the term general
population can be defined by the prison system however they please,
contrary to the Department of Justice, American Correctional Association
and international law which defines general population by the amount of
time spent outside of the cell,” the attorney added.

Miller said he and his clients are evaluating their next steps, including
whether to ask for reconsideration or an en banc hearing by the full Ninth
Circuit, or whether to file a writ of certiorari with the U.S. Supreme

“This is a case that has always been movement orientated. It was generated
by prisoners and human rights advocates and we are consulting with them,”
Miller said.

In the order, Gwin wrote the plain meaning of paragraph 25 of the
settlement agreement only provides inmates be transferred to the general

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

He pointed out the settlement “showed that they knew how to negotiate
conditions” because the inmates staying in solitary confinement after the
settlement agreement are required to be provided 20 hours of out-of-cell
time per week.

“The parties failed to include any similar paragraph 25 out-of-cell
requirement for inmates transferred from security housing to the general
population,” Gwin wrote.

For those inmates kept in restricted custody and designated walk-alone
status, paragraph 28 of the settlement “strikes an aspirational tone”
regarding “increased opportunities for positive social interaction,”
according to the ruling.

“This is not, as the prisoners contend, a strict requirement that there
will be more social interaction, but instead a programming goal,” Gwin
wrote, noting discretion in determining small groups is given to the
Institutional Classification Committee.

The judge added, “Although those inmates on walk-alone status may have
limited physical contact with other inmates while in group activities or in
the yard, they are still able to interact. Given the institution’s safety
concerns, these limitations are only minor deviations from paragraph 28’s

Gwin was joined on the panel by Senior U.S. Circuit Judge J. Clifford
Wallace, a Richard Nixon appointee, and U.S. Circuit Judge Ryan D. Nelson,
appointed by President Donald Trump.

A spokesperson for the California Department of Corrections and
Rehabilitation did not return a request for comment by press time.
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