SHU-shifting update: Relief finally granted to California prisoners experiencing ongoing isolation


by Kim Rohrbach

“Everyday Life in California’s Level 4 Prisons” – Art: Michael D. Russell, C-90473, HDSP C2-122, P.O. Box 3030, Susanville CA 96127. The artist is a survivor of the Pelican Bay SHU, now in a Level 4 prison.

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

On July 3, a critical ruling issued 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 ruling, issued by Presiding Judge Claudia Wilken, granted Plaintiffs’ appeal on a motion challenging the ongoing conditions of extreme isolation endured by many class members.

The motion was initially filed with the court on Oct. 13, 2017, along with several other motions brought to enforce Plaintiffs’ settlement agreement with the CDCR[i]. Plaintiffs contended that, contrary to the terms of the settlement agreement, many class members effectively remain isolated in restrictive housing facilities.

Oral argument on the motion was heard by Magistrate Judge Illman on Feb. 23, 2018, in a courtroom packed with human rights advocates and activists. Illman asked some good questions of both sides and appeared to grasp the issues raised by Plaintiffs’ counsel. However, on March 29 he issued an order denying the motion, prompting Plaintiffs’ legal team to move for a de novo determination (new decision) before Presiding Judge Claudia Wilken.

The ruling, issued by Presiding Judge Claudia Wilken, granted Plaintiffs’ appeal on a motion challenging the ongoing conditions of extreme isolation endured by many class members.

The Ashker case specifically challenged the CDCR’s practices and policies of indefinitely confining prisoners at Pelican Bay State Prison’s SHU (so-called Security Housing Unit) on constitutional grounds. Through these practices and policies, Plaintiffs asserted, the CDCR had violated both the Eighth Amendment’s prohibition against cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process.

Some 78 individuals, they alleged, had been incarcerated in Pelican Bay’s SHU for decades on end. And, more than 500 had been there for at least 10 years. All of these people spent around 22½ hours or more each day cramped in closet-sized cells. Any yard time they received occurred within the narrow confines of an indoor concrete-walled pen or “dog run.” Any visits with loved ones took place from either side of a glass partition breached only by a telephone line.

This was merely on account of the fact that the CDCR had deemed them “associates” or members of prison gangs. In other words, no misconduct much less criminal activity was required of class members to keep them isolated on an indefinite basis.

On Sept. 1, 2015, a settlement agreement was reached in the case. (The agreement was tentatively approved by the court on Oct. 14, 2015, and received the court’s final approval on Jan. 26, 2015.)

Those affected by the agreement include “all prisoners who have now, or will have in the future, been imprisoned in Pelican Bay’s SHU for 10 or more years.” Also affected is a subset of such prisoners, who were moved from Pelican Bay’s SHU to a SHU at another prison before the case settled.[ii] Together, both groups of prisoners comprise the settlement class.

Following settlement, the CDCR released over 1,400 and up to around 1,500 class members retained in its SHUs statewide into lower-security facilities. This was pursuant to paragraph 25[iii] of the settlement agreement. Yet, although paragraph 25 has been complied with on paper, Plaintiffs’ motion and subsequent appeal raised the question, has compliance been substantively achieved?

Plaintiffs’ motion filed Oct. 13, 2017

As of Aug. 2017, according to CDCR data, 712 class members were housed in what are called “General Population Level IV 180-design” (maximum-security) facilities. Plaintiffs’ attorneys however contended that many class members were getting even less out-of-cell time than they experienced while in SHU. In support of their contention, they pointed to the results of a survey they conducted in around March 2017.

Fifty-five class members housed in various Level IV facilities completed the survey, tracking the amount of out-of-cell time they received during a one-month period. Sixteen of these 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 respondents reported not leaving their cells at all on most days. That is, they spent anywhere from 16 to 25 days locked in their cells during the one-month tracking period, without access to the yard, face-to-face contact, showering facilities etc.

In declarations filed with Plaintiffs’ initial enforcement motion, eight class member-respondents elaborated on the conditions they endure in Level IV facilities. 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.”

“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.”

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.”

Feb. 23, 2018, hearing before Magistrate Judge Illman

During oral argument on Feb. 23, attorney Jules Lobel[iv] spoke on behalf of the plaintiffs. Lobel emphasized in his opening remarks 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 maintained.

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

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 maintained.

The CDCR itself, he pointed out, previously avowed in court that people in the general population receive 10 hours of yard per week. But, nobody is getting 10 hours.

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 Hrvatin’s arguments was the suggestion that, regardless of the CDCR’s prior avowals, Level IV prisoners receive the same amount of out-of-cell time as SHU prisoners. This point was not lost on Magistrate Illman: Illman quipped, could he expect a new class-action lawsuit concerning the conditions of Level IV confinement to be sent to him?

Magistrate Judge Illman’s March 29 order denying motion

In deciding Plaintiffs’ initial motion, Magistrate Judge Illman opined:

“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 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 [sic]. 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.”

“It is undisputed that the class members at issue in this motion were each transferred to such a facility,” Illman pronounced in denying the motion.

Illman’s facile assessment struck this writer as being in stunning disregard for, or insensible to, Plaintiffs’ plea for substantive relief under the Eighth Amendment. It was equally heedless of paragraph 61 of the settlement agreement, which requires that the agreement be “construed as a whole, according to its fair meaning.” (Of paragraph 61, more will be said in a moment.)

While the Ashker case and settlement agreement do not concern the general population or conditions of confinement in general-population facilities, this is beside the point. Plaintiffs affirmatively claimed in their lawsuit that their indeterminate retention in restrictive conditions, including their isolation in cramped cells for 22½ –24 hours each day, constitutes cruel and unusual punishment. Moreover, the settlement agreement they entered into was intended to settle all of their claims.[v]

Plaintiffs’ motion for de novo determination

Relevant to both Plaintiff’s initial motion and their subsequent appeal from Illman’s March 29 order is the court’s observation made in an earlier ruling in the case last summer:

“The parties’ agreement here is governed by California law (Settlement Agreement ¶ 60), which requires that contractual terms ‘be understood in their ordinary and popular sense, rather than according to their strict legal meaning …. Moreover, the parties agreed that ‘the language in all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning.’ (Settlement Agreement ¶ 61.).” [vi]

Plaintiffs repeatedly asserted in their briefings that many class members are not actually in what may be called general-population housing, within the ordinary or popular sense. Instead, they are in a form of restrictive housing.

As Plaintiffs’ legal team put it in their request for a de novo determination, “The defining distinction between general population and restrictive housing is time out of cell.” Likewise, restrictive housing is commonly understood (by the American Correctional Association and the Department of Justice, e.g.) to be “an environment where prisoners spend more than 22 hours a day locked in their cell.” The CDCR itself, they further remarked, recognizes that “‘general population’ and ‘restrictive housing’ are mutually exclusive terms.”

Plaintiffs repeatedly asserted in their briefings that many class members are not actually in what may be called general-population housing, within the ordinary or popular sense. Instead, they are in a form of restrictive housing.

Thus, in denying Plaintiffs’ “de novo” motion, Magistrate Judge Illman “incorrectly interpreted the operative contractual term – i.e. ‘General Population Level IV 180-design facility, or other general population institution’ – to allow Defendants to engage in a semantic sleight-of-hand.” By which some prisoners placed in nominal general-population facilities are treated “as if they were in segregation, or worse.”

Illman additionally misconstrued the remedy sought by the motion, Plaintiffs’ attorneys said. “The motion does not attack Level IV prisons generally, and does not even cover all class members,” they emphasized. Rather, it is focused “solely on the subset of class members entitled to GP [general population] transfer but who are being confined in restrictive housing conditions, or worse.”

Presiding Judge Wilken’s order granting ‘de novo’ motion

On July 3, Presiding Judge Claudia Wilken issued an order stating in part: “Having considered the papers, the Court GRANTS Plaintiffs’ motion to the extent that Plaintiffs must receive more out-of-cell time than they received in the Pelican Bay SHU. They should receive out-of-cell time consistent with the CDCR’s regulations and practices with respect to Level IV general population inmates, as well as its constitutional obligations. …

“The Settlement Agreement was intended to remove Plaintiffs from detention in the SHU, where they were isolated in a cell for twenty-two and a half to twenty-four hours a day. Second Amended Complaint ¶¶ 3, 63. Plaintiffs may seek to enforce the Settlement Agreement under either paragraphs 52 or 53, which require Plaintiffs to show ‘current and ongoing violations’ of the Eighth Amendment or the Fourteenth Amendment on a systemic basis, or other substantial noncompliance with the terms of the Agreement. Settlement Agreement ¶¶ 52, 53. …

“Defendants are hereby ordered to meet and confer with Plaintiffs’ representatives and their counsel with the goal of presenting a proposed remedial plan for Court approval. The matter is referred to Magistrate Judge Illman to mediate the meet and confer. Absent agreement, the parties shall present their own respective proposed remedial plans.”

As to what a remedial plan may look like, that’s a good question. To identify the subset of class members covered by Wilken’s order will be a challenge will be no easy task; it has been well over a year since class members were surveyed as to the amount of out-of-cell time they received. But, that’s the least of the obstacles standing between the status quo and actual relief for affected class members.

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, since the Department has overall long de-emphasized rehabilitation as part of its mission.

[ii] Starting in 2012, some prisoners who’d been indefinitely held at Pelican Bay’s SHU were transferred to other SHUs in connection with the CDCR’s implementation of its Step Down program. Plaintiffs’ attorneys requested and were granted leave to add these prisoners to the lawsuit as a supplemental class. (For further details, see in this writer’s article, “SHU-shifting: An update on and overview of the Ashker v. Brown Class Action,” published March 28, 2015, in the San Francisco BayView and available at

[iii] 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 [Security Threat Group, aka gang] 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.”

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

[v] This is affirmed at page 1 of the settlement agreement itself and is also stated in Judge Wilken’s orders granting both preliminary and final approval of the agreement.

[vi] Magistrate Judge Illman paid lip service only to this language in his March 29 order.



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