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SHU-shifting redux: Plaintiffs in Ashker v. Brown seek relief from ongoing isolation

June 1, 2018

by Kim Rohrbach

For additional background information on Ashker v. Brown, see “Ashker v. Governor of California,” Center for Constitutional Rights, last modified April 4, 2018,

This is the flier that summoned the people to the Ashker hearing on Feb. 23.

As the San Francisco BayView goes to press, a critical ruling is soon expected in Ashker v. Brown (aka Ashker v. Governor, Docket No. 4:09-cv-09-5796 CW (N.D. Cal.)), the federal class-action lawsuit challenging indefinite solitary confinement in California. The anticipated ruling concerns plaintiffs’ motion challenging the ongoing conditions of extreme isolation endured by many class members.

The motion, one of multiple motions brought to enforce plaintiffs’ settlement agreement with the California Department of Corrections (CDCR[i]), was initially filed in October 2017. Magistrate Judge Ilman heard oral argument on it on Feb. 23 in a courtroom packed with human rights advocates and activists.

Ilman ended up denying the motion on March 29, prompting plaintiffs to move for a new hearing before Presiding Judge Claudia Wilken. Judge Wilken will decide plaintiffs’ “de novo” motion without a court hearing, basing her decision on the parties’ briefs.


Per the settlement agreement (SA) in the Ashker case, the CDCR released over 1,500[ii] people caged in its so-called Security Housing Units (SHU) to what it calls “general population” housing. Many released had been in SHU for decades on end, where they’d spent roughly 22 and a half hours each day cramped in closet-sized cells without any physical contact unless by guards.

This was merely on account of the fact that the CDCR had deemed them affiliates of prison gangs. In other words, no misconduct much less criminal activity was required of class members to keep them in isolation cages on an indefinite basis.

Plaintiffs’ attorneys contend that, regardless of the SA, little has actually changed for a significant number of class members. Having been placed in what are called Level IV 180-design general-population units, many of them are getting even less out-of-cell time than they experienced while in SHU.

Pursuant to the SA, the CDCR was generally required, among other things, to move class members out of SHU, or solitary confinement, within two years of Oct. 14, 2016, the date that the agreement was tentatively approved. Although this has been achieved on paper, a survey conducted by plaintiffs’ legal team casts a strong shadow over the CDCR’s claim that it has fulfilled its obligation.

Plaintiffs’ attorneys contend that, regardless of the SA, little has actually changed for a significant number of class members. Having been placed in what are called Level IV 180-design general-population units, many of them are getting even less out-of-cell time than they experienced while in SHU.

Fifty-five class members were asked to track the amount of out-of-cell time they received during a one-month period. Sixteen of the 55 respondents reported getting an average of less than one hour of out-of-cell time per day. Another 11 reported getting an average of less than two hours per day.

And, a total of nine people reported not leaving their cells at all on most days. That is, these nine individuals spent anywhere from 16 to 25 days locked in their cells during the one-month tracking period without access to the yard, showering facilities etc.

In declarations filed with plaintiffs’ initial enforcement motion, eight class member-respondents further elaborated on the conditions they endure on Level IV yards. One such prisoner swore:

“The conditions … are similar to SHU, and my experience is likewise similar. I have limited social interaction and intellectual stimulation. I rarely go outside. It is difficult to find productive uses for my time.

“I have difficulty maintaining relationships with my family, especially since my ability to use the telephone is so infrequent and irregular. I suffer from insomnia. I suffer from anxiety that I feel is directly linked to the irregular programming: I am anxious because I do not know what will happen next.”

And, another prisoner testified:

“The inconsistency of the programming … has left me anxious and frustrated. It is difficult to adapt and plan when I do not know what will happen the next day.

“Sometimes, to cope with the lack of stability, I tell myself, ‘The only program is no program,’ so I do not prepare physically and mentally to leave my cell only to suffer frustration and disappointment when it is cancelled. But this means I am often not prepared for out-of-cell time when it is permitted.”

February hearing before Magistrate Judge Ilman

During oral argument on Feb. 23, Jules Lobel,[iii] for plaintiffs, opened his remarks by emphasizing that, although the CDCR says people have been moved into the “general population,” this doesn’t make it so: “General population” has to have an objective definition, he insisted.

When the magistrate asked him whether certain restrictions, such as restrictions on yard time, come with Level IV “general population” confinement, Mr. Lobel replied yes; but, this cannot mean restrictions of the magnitude that a significant number of class members are actually experiencing, he continued.

The CDCR itself, he pointed out, previously swore in court that people in the general population receive 10 hours of yard per week. Yet, nobody is getting 10 hours, and some class members are faring so badly that they receive showers two days per month or don’t leave their cell for days on end.

Adriano Hrvatin, for the state, countered that class members are being treated like “any other [Level IV] prisoner,” and they don’t want to be treated like other prisoners “any more.” Hrvartin further argued that no remedy was possible for the affected class members that wouldn’t also involve the tens of thousands of people held in Level IV at large.

Implicit in his argument was the suggestion that Level IV prisoners generally receive the same treatment as SHU prisoners. This point was not lost on Magistrate Ilman: Ilman quipped as to whether he could expect a new class-action law suit concerning the conditions of confinement in Level IV to be sent to him.

Ilman’s denial of motion

In his order denying plaintiffs’ motion, Magistrate Ilman applied a strict reading of the SA and concluded:

“The settlement agreement which plaintiffs signed provides for transfer of a specific subgroup of class members to a General Population Level IV 180-design facility[iv] within the CDCR system. It provides no details regarding the conditions of confinement for those class members.

“This is because, as defendants argue, this case does not concern general population. Rather, it concerns CDCR’s agreement to change its segregated housing practices to comport with the related shift to a behavior-based model for managing prison gang affiliates.”

Notwithstanding, Ilman acknowledged, without specifically addressing, key assertions made by plaintiffs about how the SA should be interpreted or applied.

For instance, Ilman acknowledged that paragraph 61 of the SA specifies that “the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.” (The aforementioned language from paragraph 61 is part of a longer sentence that reads: “The parties waive any common-law or statutory rule of construction that ambiguity should be construed against the drafter of this Agreement and agree that the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.”)

Ilman similarly noted plaintiffs’ reliance on paragraph 29 of the SA, which does provide “details regarding the conditions of confinement” concerning certain class members. Specifically, paragraph 29 applies to the expected “small number” of class members whom the CDCR may deem ineligible for general population placement.

Under paragraph 29, such people can be placed in what is referred as “Administrative SHU” on what is still an up-to-indefinite basis. This generally requires “overwhelming evidence” that an “immediate threat to the security of the institution or the safety of others” exists; and that “substantial justification has been articulated of the need for SHU placement.”

Nonetheless, paragraph 29 otherwise directs that “CDCR shall provide inmates placed on Administrative SHU status with enhanced out of cell recreation and programming of a combined total of 20 hours per week.” So, according to the fair meaning of the SA construed as a whole, why wouldn’t the same hold true for class members whose placement within the general population has been approved? Even though this is not expressly stated in the SA?

De novo motion

Plaintiffs have made it abundantly clear in their motion for a new hearing that the remedy they seek is not one that would apply to all people in Level IV facilities. Nor, does it even apply to all class members. Instead, their motion is focused only “on the subset of class members entitled to GP [General Population] transfer but who are being confined in restrictive housing conditions, or worse.”

Nationwide, plaintiffs assert, “restrictive housing” is understood (by the American Correctional Association and the Department of Justice) to be “an environment where prisoners spend more than 22 hours a day locked in their cell.” Moreover, even the CDCR’s own regulations recognize that “general population” and “restrictive housing” are mutually exclusive terms.

Plaintiffs additionally balk at defendants use of a “semantic sleight-of-hand” to treat people in nominal general population facilities the same as if they remained in isolation units. Where the meaning of a contractual term is disputed, they maintain (citing In re Safeguard Self-Storage Tr., 2 F. 3d 967, 970 (9th Cir. 1993)), the court evaluates the substance of the agreement to “determine whether an animal which looks like a duck, walks like a duck, and quacks like a duck, is in fact a duck.”

Defendants, on the other hand, continue to insist that plaintiffs, despite their explicit assertions to the contrary, “want special treatment for class members in Level IV housing,” or want “broad-based changes to Level IV general-population housing units for all inmates statewide.”

Kim Rohrbach, a volunteer with the Prisoner Hunger Strike Solidarity Coalition and a paralegal, can be reached at

[i] The California Department of Corrections and Rehabilitation is often referred to as CDCr because its overall orientation is punitive rather than rehabilitative.

[ii] The exact number is 1,557 people, per a recent compliance report from CDCR.

[iii] Jules Lobel is with the Center for Constitutional Rights.

[iv] Paragraph 25 of the settlement agreement states, “If an inmate has not been found guilty of a SHU-eligible rule violation with a proven STG nexus within the last 24 months, he shall be released from the SHU and transferred to a General Population Level IV 180-design facility, or other general population institution consistent with his case factors.”

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