SHU-shifting: An update on and overview of the Ashker v. Brown class action

by Kim Rohrbach

Note: Kim Rohrbach volunteers with California Prison Focus (CPF) and with the Prisoner Hunger Strike Solidarity Coalition (PHSS). She wishes to disclose that her below article is based, in part, on information supplied by members of PHSS, including members of PHSS’s mediation and legal teams. It is also informed by details obtained by CPF in the course of conducting legal interviews with individuals held in the SHUs (Security Housing Units) at Pelican Bay and Corcoran State Prisons, as well as by independent research.

“Know Your Rights” – Art: Chriss Garcia, J-93559, PBSP SHU C1-112, P.O. Box 7500, Crescent City CA 99531
“Know Your Rights” – Art: Chriss Garcia, J-93559, PBSP SHU C1-112, P.O. Box 7500, Crescent City CA 99531

Some nine months after allowing certification of two classes in Ashker v. Brown (N.D. Cal. No. C 09-5796 CW), Judge Claudia Wilken issued her written order granting Plaintiffs’ Motion for Leave to File a Supplementary Complaint on March 9, 2015. The written order followed her favorable ruling from the bench on Feb. 2, 2015, when the motion was made.

Pursuant to the order, a supplemental class of plaintiffs – those who’ve spent 10 years or more in Pelican Bay State Prison’s SHU but have recently been transferred to other California SHUs – may proceed with their Eighth Amendment claims as class representatives. Plaintiffs who were transferred out of Pelican Bay’s SHU prior to being certified as class members will be allowed to proceed with their individual claims, but not as class representatives.

Brief history of the Ashker v. Brown class-action lawsuit

As some regular San Fransico BayView readers may be aware, Ashker started as a lawsuit filed in December 2009 by plaintiffs Todd Ashker and Danny Troxwell. At that time, Ashker and Troxwell were both in Pelican Bay’s SHU and were representing themselves without lawyers. (Troxwell has since been transferred to another SHU. He is one of the Ashker plaintiffs allowed to proceed with individual claims.)

A second amended complaint in Ashker v. Brown was filed in 2012, by which time numerous attorneys across the nation had signed onto the lawsuit. The second amended complaint was filed on behalf of those who’d been caged in isolation cells – solitary confinement – for a decade or upward at Pelican Bay’s SHU.

Ashker fundamentally claims that 1) prolonged solitary confinement constitutes cruel and unusual punishment in violation of the Eighth Amendment; and that 2) placement in the SHU requires no meaningful review hence violates a person’s due process rights. Relative to each of these claims, two classes were certified in June 2014, called the Eighth Amendment and the Due Process classes. Judge Wilken’s March 9 order is directed specifically at the Eighth Amendment class.

Shortly before and soon after the second amended complaint in Ashker was filed, in 2011 and 2013, people throughout California’s prisons conducted mass hunger strikes.

The 2013 strike was of globally historic proportions – at its peak including some 30,000 participants. The hunger strikes were widely reported on by the San Francciso Bay View and by numerous other media outlets, including major national and international media news outlets. Both the strikes and the Ashker lawsuit have increased exposure to and public outrage over the torturous conditions within California’s if not the nation’s SHUs and other isolation units.

California Department of Corrections and Rehabilitation’s cynical response to Ashker and to the mass hunger strikes in 2011 and 2013

In response to external pressure, the California Department of Corrections and Rehabilitation (CDCR, often referred to as CDCr because its orientation is punitive, not rehabilitative) has adopted a cynical two-pronged strategy. On the one hand, the CDCR is apparently trying to reduce the number of current total class members in Ashker in an attempt to get rid of the lawsuit. On the other, it is trying to fool the court that superficial and recently implemented changes to policies or regulations are sufficient to eliminate any due process concerns. (All regulations mentioned herein refer to those codified in California Code of Regulations, Title 15, Crime Prevention and Correction, most recently updated in January 2015. The CDCR is able to change these regulations with little if any external oversight or opposition based on its status as a California administrative agency.)

Integral to the CDCR’s strategy is its recently codified Step Down Program (SDP) and its implementation of a special process conducted by the Departmental Review Board (DRB).

About the Step Down Program, the Departmental Review Board and new Title 15 regulations

The DRB provides the highest level of review available to anybody placed in the SHU. However, the DRB is not independent of the CDCR and its decisions are seldom prone to judicial oversight.

Most people caged in California’s SHUs are there because the CDCR has deemed or “validated” them gang, prison gang or Security Threat Group (STG) members, whether under old or newly codified regulations. In the course of being validated, a person does not appear before any judge and the process of validation occurs without external scrutiny. The exception would be in the extremely rare instance where a person could afford to hire a lawyer and/or go to court after exhausting administrative remedies (after appealing his case through internal CDCR channels).

Others in the SHUs include people who’ve not been validated but are serving terms for violation of prison rules, those who wish to “debrief” and/or who are under “protective custody” and/or certain individuals who experience physical and/or mental disabilities.

After the SDP was initially rolled out as a “pilot program” in October 2012, the CDCR announced that the DRB would be conducting reviews of the cases of validated individuals (case-by-case or CBC reviews) and placing individuals in the SDP. The introduction of the CBC reviews and the SDP appeared and appear calculated to create a veneer of due process – to lend the impression that those placed in solitary confinement under previous regulations contested in Ashker have a clear-cut path to getting out. However, despite new regulations codified within Title 15, a person may still be indefinitely confined in a SHU regardless of the SDP, without external scrutiny and arbitrarily.

The SDP consists of five steps. A person may be placed in any of them or may be released to the general population at the DRB’s discretion. The CDCR has “designed” Steps 1-2 to take a year to complete, although in some cases they can be completed within six months. Steps 3-5 each take a minimum of a year to complete. Thus, the rosiest scenario that a person placed in Step 1 can anticipate is that it will take at least four years before s/he is released from the SHU to the general population – assuming s/he will ever be released to the general population.

The introduction of the CBC reviews and the SDP appeared and appear calculated to create a veneer of due process – to lend the impression that those placed in solitary confinement under previous regulations contested in Ashker have a clear-cut path to getting out.

United Nations Special Rapporteur on Torture Juan Méndez concluded in 2011 that even 15 days spent in solitary confinement constitutes a human rights violation.

As a person progresses from one step to the next, s/he is eligible to receive minor additional “privileges” as described in California Code of Regulations, Title 15, section 3044. For example, while people not yet placed in the SDP or those placed in Step 1 are not allowed to make phone calls except on an emergency and discretionary basis, those placed in Steps 2–4 are allowed to make one phone call per progression.

In Step 5, a person may or may not be housed with the general population and is allowed one phone call per month. Under the new regulations, those in Step 5 may include any person “in SHU for non-disciplinary reasons” [underscores added], including validated persons who’ve completed the SDP and those retained in SHU “commensurate with” their “safety needs.” (See, respectively, Cal. Code Reg., §§ 3044, sub. (j)(1) and 3341.5, subd. (c)(2), criteria (C)(3)(C)(5).) There is evidence that “safety needs” are currently being invoked in order keep those in Step 5 in the SHU, based on recent reports from those in solitary made to legal and human rights investigators. (See, e.g., CPF’s Newsletter No. 45, starting at page 2. At the time of this writing, Newsletter No. 45 has just been or is about to be published. CPF has a website at http://www.prisons.org/. The website is currently undergoing modification and improvement.)

In all steps, those who receive visitors have to see them in non-contact visiting rooms. (See Cal. Code Reg., § 3044, subd. (h)(2), criteria (F)(i)(2) et seq..) In non-contact visiting rooms, a person speaks to visitors over a monitored phone and across a glass partition. Meanwhile, on a good day, those in the Steps 1-4 if not Step 5 can expect to spend around 23 hours caged in a small concrete-and-steel cell – a bathroom with bunks. This assumes that they’re regularly being taken out of their cells (as required under to Cal. Code Reg., § 3343, subds. (g) and (h)) to take brief showers or to exercise. At Pelican Bay, exercise happens in a small room commonly known as “the dog run.” At Corcoran, people exercise in outdoor cages.

United Nations Special Rapporteur on Torture Juan Méndez concluded in 2011 that even 15 days spent in solitary confinement constitutes a human rights violation.

According to the CDCR’s own statistics, 70 percent-plus of the people whose cases have been reviewed by the DRB have been sent to the general population or placed in Step 5. Yet, those previously validated can never be transferred to a minimum-security institution. And, as earlier stated, mere placement in the SDP does not protect a person against remaining caged in a SHU on an indefinite basis. (See, e.g., the Disciplinary Matrix set forth in Cal. Code Reg. §3378.4.) The bases upon which a person can be retained in the SHU are codified in vague, ambiguous and broad terms – terms open to subjective or whimsical interpretation by CDCR officials. (Ibid.)

Why the plaintiffs in Ashker filed their Motion for Leave to File a Supplementary Complaint

The 70 percent-plus figure mentioned above affirms one of the Five Core Demands made by men in Pelican Bay’s SHU in April 2011: That SHU only be used as a last resort. (The Five Core Demands are published at https://prisonerhungerstrikesolidarity.wordpress.com/the-prisoners-demands-2/.) If over 70 percent of the men in California’s SHUs have qualified for transfer to the general population or Step 5, then the SHU hasn’t been and continues not to be used as a last resort.

The DRB’s current priority is to conduct reviews of people who have been at Pelican Bay’s SHU for the longest amount of time. George Giurbino of the DRB confirmed as much during deposition in December 2014, or so this writer is informed. This has also been corroborated by information from those inside California’s SHUs who’ve been visited by legal and human rights investigators in recent months, as discussed in CPF’s Newsletters Nos. 44-45.

Prioritizing reviews of people who have been in Pelican Bay’s – or in any – SHU for the longest amount of time makes good sense. The problem is, what are the CDCR’s motives for so doing?

Because of the DRB’s priority, of the estimated 500 or more people who’d been held in Pelican Bay’s SHU for ten years or more as of April 2012 (the 500-plus figure is cited and substantiated in the second amended complaint in Ashker), only around 200 remained there as of the end of February 2015. In other words, the number of parties or putative parties to the Eighth Amendment cause of action in Ashker has been reduced by well over half.

The 70 percent-plus figure mentioned above affirms one of the Five Core Demands made by men in Pelican Bay’s SHU in April 2011: That SHU only be used as a last resort.

Most of those transferred out of Pelican Bay’s SHU have been sent to Tehachapi State Prison’s SHU, after placement in Step 3 or 4. This is in accordance with CDCR policy, as plaintiff-side attorney Jules Lobel of the Center for Constitutional Rights informed Judge Wilken during oral argument on Plaintiffs’ Motion for Leave to File a Supplementary Complaint on February 12.

The plaintiffs in Ashker sought to add a supplemental class because being transferred out of Pelican Bay’s SHU to another SHU does not put an end to the torturous conditions to which those in solitary confinement are subject. CPF and PHSS have received numerous reports that conditions at Tehachapi are worse overall than those at Pelican Bay. As Judge Wilken stated in her March 9 order, “While Plaintiffs admit conditions at Tehachapi SHU are slightly different from the conditions at Pelican Bay, their main contention is the same: Housing inmates in a SHU for prolonged periods of time is cruel and unusual punishment.”

By placing people in the SDP, the CDCR has also attempted to reduce the number of parties or putative parties to the due process cause of action in Ashker. Yet it appears that by the end of February 2015, some 900 putative Due Process class members validated under regulations formerly in place remained. The length of time a person has spent at Pelican Bay doesn’t matter with respect to the Due Process class.

The plaintiffs in Ashker sought to add a supplemental class because being transferred out of Pelican Bay’s SHU to another SHU does not put an end to the torturous conditions to which those in solitary confinement are subject.

The Due Process class increased by four people between Jan. 31, 2015, and the previous month, according to a member of PHSS’ mediation team and based on the CDCR’s statistics. Ashker contends that the old regulations under which people were validated were in violation of peoples’ due process rights. Moreover, the Supplementary Complaint filed on March 15, 2015, asks for “meaningful review of the continued need for confinement in a SHU of all prisoners currently housed in the SHU, and “meaningful review of SHU confinement for prisoners housed in the SHU in the future” [undercores added].

Immediate consequences of Judge Wilken’s March 9 order

Judge Wilken’s March 9 order granting Plaintiffs’ Motion for Leave to File a Supplementary Complaint assumes two trials (bifurcated trials) in Ashker. During the first trial, the court will decide whether being confined in Pelican Bay’s SHU for 10 years or more constitutes cruel and unusual punishment. If the court rules in the plaintiffs’ favor during the first trial, it will be determined during a second trial whether confining a person to Pelican Bay’s SHU for 10 years or more, then transferring that person to another SHU, also constitutes cruel and unusual punishment.

The first trial is currently scheduled to begin on Dec. 7, 2015, at 1300 Clay Street, Room 2, in Oakland, California. It will be a trial without jury, “bench trial,” as would be the second trial, which is tentatively scheduled for some time in 2016. Everybody who cares about human or civil rights in the San Francisco Bay Area or beyond is encouraged to show up for the trial in December, if able to do so. Since it will likely last a couple of weeks, organizations that plan to send individual representatives to support the plaintiffs in court may wish to plan accordingly.

Kim Rohrbach is a local activist and works as freelance paralegal. As stated at the top of this article, she’s currently involved in the struggle to end solitary confinement in California. Contact her at kmrx@earthlink.net.