Federal Court finds systemic violations in CDCR’s misuse of confidential information

Todd Ashker v. Gavin Newsom,  United States District Court For The Northern District Of California, Case 4:09-cv-05796-CW,  Filed 04/09/21


Judge Claudia Wilken extended a settlement agreement in a class action for violations of 42 U.S.C. § 1983 brought by plaintiffs Todd Ashker and Danny Troxell, who had lived in solitary confinement in Pelican Bay’s SHU for over two decades. On December 9, 2009, they filed a pro se lawsuit challenging the conditions of their confinement charging  CDCR officials with violating their First, Fifth, Eighth, and Fourteenth Amendment rights.

On September 10, 2012, after securing counsel, Ashker and Troxell filed a second amended complaint converting this suit into a putative class action and joining eight other long-term SHU inmates as plaintiffs.

The settlement agreement

The parties entered into a settlement agreement (SA) in August 2015, whose terms, and the Court’s jurisdiction to enforce them,  were set to expire in twenty-four months, unless Plaintiffs showed, pursuant to paragraph 41 of the settlement agreement, the existence of ongoing and systemic violations under the Eighth Amendment or Fourteenth Amendment. The key terms of the settlement agreement include the following: (1) requiring CDCR to no longer place inmates in any SHU or administrative segregation solely on the basis of gang validation; (2) requiring that no inmates be placed in the SHU for a disciplinary term unless they are found guilty in a disciplinary hearing of a new SHU-eligible offense; (3) requiring the creation of the Restrictive Custody General Population Unit (RCGP), in which inmates released from the SHU pursuant to the terms of the settlement agreement shall be placed if there is a substantial threat to their personal safety; (4) requiring the Institution Classification Committee (ICC) to review the placement of inmates in the RCGP during its 180-day reviews by verifying whether there continues to be a demonstrated threat to the inmates’ personal safety and, if not, referring the inmates to the Departmental Review Board (DRB) for housing placement; (5) requiring CDCR to adhere to the standards for the use of and reliance on confidential information set forth in Title 15 of the California Code of Regulations, section 3321, and to train staff to ensure that confidential information used against inmates “is accurate”; and (6) requiring CDCR to produce to Plaintiffs, for monitoring purposes, documents relating to determinations as to whether class member have been found “guilty of a SHU-eligible offense,” including “redacted confidential information.”

Paragraph 41 of the settlement agreement permits Plaintiffs to seek an extension of the agreement and the Court’s jurisdiction over this matter of not more than twelve months; to obtain the extension, Plaintiffs must demonstrate “by a preponderance of the evidence” that current and ongoing systemic violations of the Eighth or Fourteenth Amendments occur as alleged in the Second Amended Complaint, or the Supplemental Complaint, or as a result of CDCR’s reforms to its Step Down Program or the SHU policies contemplated in the agreement.

The agreement permits Plaintiffs to seek to extend indefinitely the settlement agreement and the Court’s jurisdiction so long as they make the requisite showing just described, with each extension lasting no more than twelve months.

Motion to Extend the Settlement Agreement

On November 20, 2017, Plaintiffs moved for an extension of the settlement agreement under paragraph 41 on the basis of current and ongoing systemic violations of the Due Process Clause of the Fourteenth Amendment. Plaintiffs cited three independent categories of due process violations, with each being sufficient to warrant an extension: (1) Defendants’ ongoing and systemic misuse of, and lack of accurate disclosures regarding, confidential information; (2) Defendants’ ongoing and systemic failure to provide adequate procedural protections prior to the placement and retention of class members in the Restricted Custody General Population (RCGP) based on demonstrated threats to inmates’ personal safety; and (3) Defendants’ ongoing and systemic retention and use of old gang validations for parole purposes.

Misuse of Confidential Information by CDCR

Plaintiffs argued that ongoing and systemic due process violations of class members’ rights occur as a result of the way in which Defendants disclose and rely upon confidential information in connection with disciplinary proceedings that could lead to the placement of class members in the SHU for having committed a SHU-eligible offense. Plaintiffs assert that these disciplinary proceedings, and Defendants’ use of confidential information in them, are governed by the reforms required by the settlement agreement. Plaintiffs contend that the alleged due process violations at issue are of two types: (1) those arising out of Defendants’ inaccurate or insufficient disclosure of confidential information used against class members in the proceedings, which deprived class members of the ability to mount a defense during their disciplinary hearings; and (2) those arising out of Defendants’ reliance upon confidential information that Defendants failed to evaluate for reliability. Plaintiffs explain that they discovered these alleged due process violations by reviewing the documents and information that Defendants are required to disclose to Plaintiffs for monitoring purposes under the settlement agreement.

The Court found based on the the evidence that Plaintiffs have presented, that Plaintiffs have shown due process violations arising out of Defendants’ failure to provide class members with adequate notice of the charges and evidence against them and by failing to disclose non-sensitive information or evidence that class members could have used to mount a defense at their disciplinary hearings. The inaccurate or incomplete disclosures that Defendants provided to class members deprived class members of the ability to challenge or otherwise raise questions as to the reliability of confidential information that could have been or was used against them during their disciplinary hearings. See Brown v. Plaut, 131 F.3d 163, 172 (D.C. Cir. 1997) (“If [an inmate] was not provided an accurate picture of what was at stake in the hearing, then he was not given his due process.”).

Plaintiffs argue that Defendants violated class members’ due process rights because hearing officers failed to independently assess whether information provided by confidential informants was reliable.

A “prison disciplinary committee’s determination derived from a statement of an unidentified inmate informant satisfies due process when (1) the record contains some factual information from which the committee can reasonably conclude that the information was reliable, and (2) the record contains a prison official’s affirmative statement that safety considerations prevent the disclosure of the informant’s name.” Zimmerlee, 831 F.2d at 186. The Ninth Circuit requires that the reliability of the confidential informant’s statement be established by: “(1) the oath of the investigating officer appearing before the committee as to the truth of his report that contains confidential information, (2) corroborating testimony, (3) a statement on the record by the chairman of the committee that he had firsthand knowledge of sources of information and considered them reliable based on the informant’s past record, or (4) an in camera review of the documentation from which credibility was assessed.” Id. at 186-87. “Proof that an informant previously supplied reliable information is sufficient.”

Compliance with these procedural requirements is paramount in light of the significant risk that prisoners could fabricate information to settle grievances with other prisoners. See Jones  v. Gomez, No. C-91-3875 MHP, 1993 WL 341282, at *3 (N.D. Cal. Aug. 23, 1993) (“[G]iven the differences that arise between prisoners due to jealousies, gang loyalties, and petty grievances, and the unfortunate discrete instances where guards seek to retaliate against prisoners, to rely on statements by unidentified informants without anything more to establish reliability is worse than relying on no evidence: ‘It is an open invitation for clandestine settlement of personal grievances.’”

Plaintiffs’ evidence showed many instances in which Defendants relied upon confidential information without first establishing its reliability as required by Zimmerlee.

the ground that another confidential source had corroborated their statements, but the materials produced by Defendants to Plaintiffs’ counsel under paragraph 37(h) of the settlement agreement did not show that there was another confidential source who could have corroborated the sources at issue, see, e.g., Meeropol Decl., Ex. EE, or the documents produced show that the second confidential source did not actually corroborate the first informant, see, e.g., id., Ex. Z, AA, BB, CC.

The Court finds, based on the incidents described above, which are representative of the evidence that Plaintiffs have presented, that Plaintiffs have shown ongoing and systemic due process violations arising out of Defendants’ failure to conduct the reliability determinations required by Zimmerlee before relying on evidence provided by confidential informants.

The Court finds that Plaintiffs have shown that the settlement agreement can be extended under paragraph 41 as a result of ongoing and systemic due process violations arising out of Defendants’ misuse or insufficient disclosures of confidential information.


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