University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Ashker v. Brown PC-CA-0054
Docket / Court 4:09-cv-05796-CW ( N.D. Cal. )
State/Territory California
Case Type(s) Prison Conditions
Special Collection California's Prisoners' Rights Bar article
Solitary confinement
Attorney Organization Center for Constitutional Rights
Case Summary
On December 9, 2009, two prisoners at California's Pelican Bay prison who had been kept in solitary confinement for decades filed this 42 U.S.C. § 1983 action against the State of California, in the U.S. District Court for the Northern District of California. The plaintiffs, originally proceeding ... read more >
On December 9, 2009, two prisoners at California's Pelican Bay prison who had been kept in solitary confinement for decades filed this 42 U.S.C. § 1983 action against the State of California, in the U.S. District Court for the Northern District of California. The plaintiffs, originally proceeding pro se, asked the court for declaratory, injunctive, and compensatory relief, claiming violations of their First, Fourth, Eighth, and Fourteenth Amendment rights. Specifically, the plaintiffs claimed that the "indefinite status" designation process for keeping them in solitary confinement on the basis of undisclosed informant information about gang affiliation, among other information, violated their constitutional rights.

The Pelican Bay supermax facility was opened in 1989 as the most restrictive prison in the California state prison system. The Security Housing Unit ("SHU") was developed as an especially secure area of the prison, with 1,024 cells for solitary confinement. Prisoners placed there are alone for 22½ to 24 hours a day in a windowless cell with a concrete bed, a concrete desk, and a concrete stool. They are permitted a single book; 3 showers a week, and breaks for 'exercise,' court appearances, or emergency medical care, but no vocational or educational opportunities. Contact with other prisoners or outsiders is severely limited. One plaintiff claimed that he had only spoken with his mother twice in the past twenty-two years, once in 1998, and once in 2000. She has since died.

The criteria for placing and keeping prisoners in the SHU is based mainly on real or perceived gang affiliation. After a landmark case, Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1995) (see PC-CA-0017 in this Clearinghouse), the prison was required to develop standards and procedures for determining whether a particular person should remain in detention in the SHU. The new "indefinite status" procedure excluded the prisoners from these hearings, which are supposed to be conducted every six months.

According to the plaintiffs, there were only three ways out of the SHU: expiration of sentence, death, and 'debriefing.' Debriefing is a process by which a SHU prisoner agrees to become a confidential informant for the prison administration in exchange for return to the general population. The plaintiffs claimed that this is essentially a death sentence: the assumption among the general population being that if a prisoner gets moved from SHU there must have been an agreement to become an informant. As a result, it puts into danger, not only the prisoners' lives, but their family's lives as well. Increasing the likelihood of indefinite detention in the SHU, the plaintiffs claimed, was that any speech, even a simple greeting, could be construed by prison officials as evidence of gang affiliation, warranting continued confinement in the SHU.

Two prisoners (Ashker and Troxell) in the SHU who had been incarcerated there since 1989 first filed pro se a lawsuit against the prison in 2004 (Docket No. 4:04-cv-01967 (N.D. Cal. May 19, 2004)). Most of the claims were dismissed on June 2, 2005, for failure to exhaust administrative remedies; the court also granted absolute and qualified immunity from the damages claims. The court did not dismiss the plaintiffs' First Amendment freedom of speech claim arising from the prison's policy of not allowing hardcover books in the SHU. On March 8, 2006, the court determined that the prison's prior policy on hardcover books was unconstitutional. The court, however, did not issue an injunction because the prison had revised its policy and no longer prohibited hardcover books with their covers removed. The court also granted qualified immunity to one of the defendants. The plaintiffs appealed the qualified immunity decision, but the Ninth Circuit affirmed the decision on July 30, 2009.

The two plaintiffs filed pro se a new complaint in 2005 (Docket No. 4:05-cv-03286 (N.D. Cal. Aug 11, 2005)) raising claims, originally filed on May 19, 2004, that were previously dismissed without prejudice. On June 14, 2007, the court again dismissed most of the claims for failure to exhaust administrative remedies. The court did determined that four claims had been exhausted: (1) First Amendment claim regarding access to certain magazines; (2) due process claim based on the defendants' procedure for determining whether the plaintiffs were active or inactive gang members; (3) negligence claim; and (4) intentional tort claim. On March 25, 2009, the court granted the defendants' motion for summary judgment as to all remaining claims except the claim for prospective injunctive relief for late delivery of incoming mail, against the warden acting in his official capacity. The court also denied the plaintiffs' cross-motion for summary judgment and motion for preliminary injunction. On March 18, 2010, the court rule for the defendants on the First Amendment claim regarding late delivery of incoming mail. On January 11, 2012, the Ninth Circuit affirmed the district court's decisions to dismiss and to grant summary judgment.

On December 9, 2009, these two prisoners filed a new complaint, in this lawsuit, alleging that they were being deprived of due process of the laws through the secret review process that would "validate" them as gang members (both had been in SHU for more than a decade with no outside contact). They also claimed that a 'validation' could be based on secret evidence that they had associated with persons who may or may not have gang affiliation and that this violated the First Amendment. Lastly, they alleged that the conditions of confinement were in violation of international law and the Eighth Amendment.

On February 16, 2010, the Court (Judge Claudia Wilken) screened the complaint, as required when prisoners file lawsuits against their jailers under 28 U.S.C. § 1915A. She dismissed the complaint because out of the twenty-four named defendants, "it is not clear which actions proximately caused each constitutional violation." The Court also found that because one of the plaintiffs could afford the filing fee, the complaint would be dismissed without prejudice. Plaintiffs paid the filing fee and filed an amended complaint.

On December 20, 2010, the Court granted leave for the plaintiffs to serve the defendants with the complaint under 28 U.S.C. § 1915A. The Court cautioned the defendants to not needlessly waste resources through insisting on formal service, pursuant to Federal Rule of Civil Procedure 4(d).

Still pro se, the Plaintiffs filed motions to enlist the help of the U.S. Marshals in serving the defendants (their own ability to serve the defendants was extremely limited in the SHU). The plaintiffs also moved to compel prison officials to cooperate in photocopying their legal documents, which the Court granted on October 11, 2011.

In the summer of 2011, inmates in the Pelican Bay SHU led two system-wide hunger strikes protesting indefinite solitary confinement and the notorious SHU conditions at Pelican Bay. The hunger strikes, each lasting three weeks, ended after California Department of Corrections agreed to negotiations with hunger strike representatives over their demands. In late 2012, the CDCR implemented a pilot program to release those held in the SHU on gang charges. However, prisoners and their advocates denounced the program for keeping the most objectionable aspects of the old program and expanding qualifications for SHU placement.

Meanwhile in court, on June 24, 2011, the plaintiffs filed a Motion for an Emergency Protective Order, alleging that defendants had begun confiscating key pieces of evidence of defendants' illegal acts. The District Court ordered further briefing on the issue on October 12, 2011. The Emergency Protective Order was denied without prejudice on March 13, 2012, in part due to the fact that plaintiffs had retained counsel from the Center for Constitutional Rights.

Assisted by their new counsel, plaintiffs filed a Second Amended Complaint on September 10, 2012. The plaintiffs claimed that the psychological harm caused by the prolonged confinement was cruel and unusual under the Eighth and Fourteenth Amendments. They also challenged the due process grounds for confining prisoners for decades in the SHU, and included class action allegations.

On December 6, 2012, the plaintiffs filed a Motion for Preliminary Injunction, claiming that in retaliation for this litigation, Plaintiff Ashker was moved to a different cell block of the SHU. The transfer eliminated all communication between him and the other plaintiffs, separated him from his longtime writing assistant assigned by the California Department of Corrections under the Americans with Disabilities Act, and allegedly frustrated counsels' ability to litigate the class action. Judge Wilken denied this motion on April 18, 2013. Judge Wilken found that plaintiffs had not satisfied the requirements for a preliminary injunction because retaliation was not a claim in the class action complaint, and a preliminary injunction would thus provide relief beyond that which would be granted if plaintiffs prevail in the suit. Judge Wilken also denied the motion under the All Writs Act, 28 USC § 1651, because the evidence did not indicate that Ashker's transfer was motivated by retaliatory animus, and plaintiffs did not rebut defendants' non-retaliatory justification for the transfer (prisoner safety).

On December 17, 2012, the defendants filed a Motion to Dismiss. Judge Wilken denied this motion on April 9, 2013. Judge Wilken found that plaintiffs' claims were not moot because defendants' pilot program for gang management policies did not permanently cure the due process violations alleged, and that the plaintiffs adequately plead Eighth Amendment and due process claims. 2013 WL 1435148, (N.D. Cal. Apr. 9, 2013).

In 2013, dissatisfied with the CDC's progress regarding the length of solitary confinement and conditions of confinement, prisoners began to call for another hunger strike. The strike began on July 8, 2013, and lasted for almost two months. More than 30,000 inmates participated in the initial strike. The strike ended when two California state lawmakers announced that they would hold public hearings on the state's use of solitary confinement. However, most of the inmates' demands had not been met and they vowed to continue fighting. For more information about this hunger strike, see this article from Mother Jones.

On June 2, 2014, Judge Wilkens granted in part the plaintiffs' May 2, 2013, motion to certify class. Judge Wilkens certified two classes. The Due Process Class consisted of all inmates who were assigned to an indeterminate term at the Pelican Bay SHU on the basis of gang validation, under the policies and procedures in place as of September 10, 2012. The Eighth Amendment Class consists of all inmates who are now, or will be in the future, assigned to the Pelican Bay SHU for a period of more than ten continuous years. 2014 WL 2465191, (N.D. Cal. June 2, 2014).

The parties continued with discovery in 2014 and 2015. Many expert reports were filed in 2015 as part of discovery. In addition, on March 11, 2015, the plaintiffs filed an amended class-action complaint to cover prisoners who were held in the Pelican Bay SHU for over ten years, but then were transferred out to the Tehachapi SHU were conditions were similar.

On September 1, 2015, the parties reached a settlement agreement and submitted it to the court for approval. In the agreement, the CDC agreed to end indeterminate solitary confinement in prisons across California, stop the use of "gang affiliation" as a basis for placing people in isolation, dramatically reduce the number of people in solitary, and create a new step-down program designed to return those sent to the SHU to general population in two years or less. The court retained jurisdiction to enforce the terms of the agreement for two years, but the plaintiffs had the option to seek an extension at the end of the two years.

On January 26, 2016, Judge Wilkens granted final approval of the class settlement. The plaintiffs will subsequently file a motion for attorneys' fees.

Blase Kearney - 06/05/2012
Samantha Kirby - 10/20/2014
Jessica Kincaid - 01/06/2016


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Issues and Causes of Action
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Issues
Affected Gender
Male
Constitutional Clause
Cruel and Unusual Punishment
Due Process
Freedom of speech/association
Content of Injunction
Monitoring
Preliminary relief denied
Reporting
Crowding
Crowding / caseload
Defendant-type
Corrections
General
Access to lawyers or judicial system
Administrative segregation
Assault/abuse by staff
Classification / placement
Conditions of confinement
Disciplinary procedures
Disciplinary segregation
Education
Food service / nutrition / hydration
Grievance Procedures
Law library access
Library (non-law) access
Loss or damage to property
Mail
Over/Unlawful Detention
Phone
Protective custody
Records Disclosure
Recreation / Exercise
Rehabilitation
Religious programs / policies
Sanitation / living conditions
Solitary confinement/Supermax (conditions or process)
Totality of conditions
Visiting
Medical/Mental Health
Medical care, general
Mental health care, general
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Defendant(s) State of California
Plaintiff Description Prisoners incarcerated at the Security Housing Unit for a period of 11-22 years.
Indexed Lawyer Organizations Center for Constitutional Rights
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2016 - 2018
Case Closing Year n/a
Case Ongoing Yes
Case Listing PC-CA-0017 : Madrid v. Gomez (N.D. Cal.)
PC-CA-0014 : Ashker v. California Department of Corrections (N.D. Cal.)
PC-CA-0071 : Lopez v. Brown (N.D. Cal.)
Additional Resources
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Case Studies Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders
N.Y.U. Law Review
By: Margo Schlanger (Washington University)
Citation: 81 N.Y.U. L. Rev. 550 (2006)
[ Detail ] [ PDF ] [ External Link ]

  Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons
By: Malcolm M. Feeley & Edward Rubin (UC Berkeley Boalt Hall School of Law & Vanderbilt School of Law Faculty)
Citation: (1998)
[ Detail ]

Docket(s)
4:09-cv-05796-CW (N.D. Cal.) 03/08/2016
PC-CA-0054-9001.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Expert Report of Terry A. Kupers, M.D., M.S.P.
PC-CA-0054-0022.pdf | Detail
Complaint and Demand for Jury Trial 12/09/2009
PC-CA-0054-0004.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Denying Applications to Proceed In Forma Pauperis, Screening Complaint Pursuant to 28 U.S.C. § 1915A and Dismissing Complaint with Leave to Amend 02/16/2010 (N.D. Cal.)
PC-CA-0054-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Motion for Emergency Protective Order Prohibiting Retaliatory Acts and Return of Property 06/24/2011
PC-CA-0054-0005.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Plaintiff's Notice and Motion For An Order Compelling the Defendants to Answer Interrogatories and Produce Documents 12/01/2011
PC-CA-0054-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion 03/13/2012 (2012 WL 847750) (N.D. Cal.)
PC-CA-0054-0009.pdf | WESTLAW | Detail
Document Source: Westlaw
Plaintiffs' Second Amended Complaint - Class Action 05/31/2012
PC-CA-0054-0001.pdf | Detail
Plaintiffs' Second Amended Complaint 09/10/2012
PC-CA-0054-0011.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Amending Schedule and Granting in Part Motions for Administrative Relief 11/16/2012 (N.D. Cal.)
PC-CA-0054-0007.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Joint Case Management Conference Statement 03/07/2013
PC-CA-0054-0008.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion to Dismiss 04/09/2013 (2013 WL 1435148) (N.D. Cal.)
PC-CA-0054-0006.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Denying Motion for Preliminary Injunction 04/18/2013 (2013 WL 1701702) (N.D. Cal.)
PC-CA-0054-0010.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting In Part Motion for Class Certification; Denying Motion to Intervene 06/02/2014 (2014 WL 2465191) (N.D. Cal.)
PC-CA-0054-0012.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Expert Report of Emmitt L. Sparkman 03/05/2015
PC-CA-0054-0023.pdf | Detail
Expert Report of Juan E. Méndez 03/06/2015
PC-CA-0054-0019.pdf | Detail
Expert Report of Terry J. Collins 03/07/2015
PC-CA-0054-0014.pdf | Detail
Plaintiffs' Supplemental Complaint - Class Action 03/11/2015
PC-CA-0054-0013.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Expert Report of Dr. Dacher Keltner, Ph.D. 03/11/2015
PC-CA-0054-0017.pdf | Detail
Expert Report of Matthew D. Lieberman 03/11/2015
PC-CA-0054-0018.pdf | Detail
Expert Report of Andrew Coyle, PhD 03/12/2015
PC-CA-0054-0015.pdf | Detail
Expert Report of Louise C. Hawkley 03/12/2015
PC-CA-0054-0016.pdf | Detail
Expert Report of Craig Haney, Ph.D., J.D. 03/12/2015
PC-CA-0054-0021.pdf | Detail
Expert Report of Dr. James Austin, Ph.D. 03/13/2015
PC-CA-0054-0020.pdf | Detail
Settlement Agreement 09/01/2015
PC-CA-0054-0024.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order Granting Final Approval of Class Action Settlement Agreement 01/26/2016 (N.D. Cal.)
PC-CA-0054-0025.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Vadas, Nandor J. (N.D. Cal.) [Magistrate]
PC-CA-0054-9001
Wilken, Claudia Ann (N.D. Cal.) [Magistrate]
PC-CA-0054-0003 | PC-CA-0054-0006 | PC-CA-0054-0007 | PC-CA-0054-0009 | PC-CA-0054-0010 | PC-CA-0054-0012 | PC-CA-0054-0025 | PC-CA-0054-9001
Monitors/Masters Austin, James Ph.D. (District of Columbia)
PC-CA-0054-0020
Collins, Terry J. (Ohio)
PC-CA-0054-0014
Coyle, Andrew PhD
PC-CA-0054-0015
Haney, Craig William (California)
PC-CA-0054-0021
Hawkley, Louise C. (Illinois)
PC-CA-0054-0016
Keltner, Dacher Ph.D. (California)
PC-CA-0054-0017
Kupers, Terry (California)
PC-CA-0054-0022
Lieberman, Matthew D. (California)
PC-CA-0054-0018
Mendéz, Juan E. (District of Columbia)
PC-CA-0054-0019
Sparkman, Emmitt L. (Mississippi)
PC-CA-0054-0023
Plaintiff's Lawyers Agathocleous, Alexis (New York)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Bell, Michael David (New York)
PC-CA-0054-9001
Bremer, Carmen E. (Texas)
PC-CA-0054-0024 | PC-CA-0054-9001
Cappella, Anne (California)
PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Carbone, Charles F.A. (California)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Greenberg, Evan (California)
PC-CA-0054-0001 | PC-CA-0054-0011 | PC-CA-0054-9001
Huang, Aaron (California)
PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Hull, Gregory (California)
PC-CA-0054-0024 | PC-CA-0054-9001
Lobel, Jules L. (Pennsylvania)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
McMahon, Marilyn (California)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Meeropol, Rachael (New York)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Miller, Samuel Rand (New York)
PC-CA-0054-0024 | PC-CA-0054-9001
Obaro, Bambo (California)
PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Samuel-Frank, Somalia L. (New York)
PC-CA-0054-0024 | PC-CA-0054-9001
Siegel, Daniel Mark (California)
PC-CA-0054-9001
Strickman, Carol (California)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Weills, Anne Butterfield (New York)
PC-CA-0054-0001 | PC-CA-0054-0008 | PC-CA-0054-0011 | PC-CA-0054-0013 | PC-CA-0054-0024 | PC-CA-0054-9001
Wheeler, Alexander Azure (New York)
PC-CA-0054-0024 | PC-CA-0054-9001
Defendant's Lawyers Andrada, J. Randall (California)
PC-CA-0054-9001
Ciccotti, Christine Marie (California)
PC-CA-0054-9001
D'Agostino, Martine Noel (California)
PC-CA-0054-9001
Harris, Kamala D. (California)
PC-CA-0054-0008 | PC-CA-0054-0024
Hrvatin, Adriano (California)
PC-CA-0054-9001
Kwong, William C (California)
PC-CA-0054-0008
O'Brien, Jillian Renee (California)
PC-CA-0054-9001
Roman, Matthew Worchesek (California)
PC-CA-0054-9001
Roman, Nicole Lynne (California)
PC-CA-0054-9001
Simon, Loran Michael (California)
PC-CA-0054-9001
Other Lawyers Murray, Phillip A. (California)
PC-CA-0054-9001

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