Todd Ashker v. Gavin Newsom ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TODD LEWIS ASHKER; DANNY No. 18-16427
TROXELL; GEORGE RUIZ; JEFFREY
ANTHONY FRANKLIN; GEORGE D.C. No.
FRANCO; GABRIEL RALPH REYES; 4:09-cv-05796-
RICHARD K. JOHNSON; PAUL A. CW
REDD, JR.; LUIS ESQUIVEL; RONNIE
N. DEWBERRY, OPINION
Plaintiffs-Appellees,
v.
GAVIN NEWSOM, * Governor of the
State of California; MATTHEW CATE;
ANTHONY CHAUS, Chief, Office of
Correctional Safety, CDCR; GREG
LEWIS, Warden,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted May 12, 2020
San Francisco, California
*
Gavin Newsom is substituted for his predecessor, Edmund G.
Brown, Jr., as Governor of the State of California. Fed. R. App.
P. 43(c)(2).
2 ASHKER V. NEWSOM
Filed August 3, 2020
Before: J. Clifford Wallace and Ryan D. Nelson, Circuit
Judges, and James S. Gwin, ** District Judge.
Opinion by Judge Gwin
SUMMARY ***
Prisoner Civil Rights
The panel reversed the district court’s ruling that the
California Department of Corrections and Rehabilitation
violated a settlement agreement, vacated the district court’s
remedial orders, and remanded for further proceedings in a
prison conditions civil rights class action.
Prior to the settlement agreement, California Department
of Corrections and Rehabilitation (“California”) housed the
Plaintiff Prisoners in solitary confinement based only upon
their gang affiliation. In this action, the Prisoners alleged
that California breached the settlement agreement when it
transferred some prisoners from Security Housing (a type of
solitary confinement) to the General Population but did not
give those prisoners increased out-of-cell time. The
Prisoners also alleged that California breached the
**
The Honorable James S. Gwin, United States District Judge for
the Northern District of Ohio, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
ASHKER V. NEWSOM 3
settlement agreement when it limited another inmate group’s
direct physical contact during yard time.
The panel held that California did not violate the
settlement agreement. The panel determined that Paragraph
25 of the agreement only required that California transfer
inmates out of Security Housing to a different facility.
Paragraph 25 did not limit California’s discretion regarding
out-of-cell time for the inmates removed from Security
Housing to General Population.
The panel rejected the Prisoners’ assertion that
Paragraph 28 of the settlement agreement required
California to provide Restricted Custody inmates who, for
their own safety, could not be safely housed in the general
population, with small group yard-time and other group
activities. The panel held that Paragraph 28 did not require
California to do more than it already had for inmates in
Restricted Custody. But even if it did, the breach would not
be actionable because California had substantially complied
with Paragraph 28’s requirements.
COUNSEL
Jeffrey T. Fisher (argued), Deputy Attorney General; Jay C.
Russell, Adriano Hrvatin, and Neah Huynh, Supervising
Deputy Attorneys General; Monica Anderson, Senior
Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, San Francisco,
California; for Defendants-Appellants.
Samuel Miller (argued), Jules Lobel, and Rachel Meeropol,
Center for Constitutional Rights, New York, New York;
Carmen E. Bremer, Bremer Law Group PLLC, Seattle,
4 ASHKER V. NEWSOM
Washington; Anne Cappella, Weil Gotshal & Manges LLP,
Redwood Shores, California; Charles F.A. Carbone, Law
Offices of Charles Carbone, San Francisco, California; Anne
Butterfield Weills, Siegel Yee & Brunner, Oakland,
California; Matthew Strugar, Law Office of Matthew
Strugar, Los Angeles, California; for Plaintiffs-Appellees.
David C. Fathi, Amy Fettig, and Jennifer Wedekind, ACLU
National Prison Project, Washington, D.C.; Danielle C.
Jefferis and Nicole B. Godfrey, Student Law Office—Civil
Rights Clinic, University of Denver College of Law, Denver,
Colorado; Daniel M. Greenfield, Roderick & Solange
Macarthur Justice Center, Chicago, Illinois; David Loy,
ACLU Foundation of San Diego & Imperial Counties, San
Diego, California; for Amici Curiae Former Corrections
Officials.
OPINION
GWIN, District Judge:
This appeal stems from a prison conditions civil rights
class action settlement. Earlier, the Defendant California
Department of Corrections and Rehabilitation (“California”)
housed the Plaintiff Prisoners (the “Prisoners”) in solitary
confinement based only upon their gang affiliation.
California settled the case, agreeing to several reforms as
memorialized in a settlement agreement (“Settlement
Agreement”).
The Prisoners argue that California did not comply with
the Settlement Agreement. The Settlement Agreement
required California to move class members from solitary
confinement to a General Population level IV facility.
ASHKER V. NEWSOM 5
California did this. Even so, the inmates say there was an
implied requirement that the prison give these inmates
greater out-of-cell time.
The Settlement Agreement also made special provisions
for inmates leaving solitary confinement who would not be
safe in the general population. The Settlement Agreement
allowed these inmates to be placed in small groups housed
in a separate unit that would be given privileges
commensurate with General Population level IV privileges.
For some of these inmates, California was unable to find a
group that would accept the inmates without conflict. These
inmates received yard-time, but their yard-time was in
fenced yards that are limited to one inmate per unit. The
Prisoners say this practice also violated the Settlement
Agreement.
The Prisoners moved to enforce the Settlement
Agreement. They contended that California breached the
Settlement Agreement when it transferred some prisoners
from Security Housing to General Population but did not
give those prisoners increased out-of-cell time. The
Prisoners also said that California broke the Settlement
Agreement when it limited another inmate group’s direct
physical contact during yard time.
The district court granted the Prisoners’ motions to
enforce. California appealed. We hold that California did
not violate the Settlement Agreement and reverse.
I.
A.
For many years, California housed gang members and
associates in Security Housing Units (“Security Housing”),
6 ASHKER V. NEWSOM
a type of solitary confinement. In many cases, California
based this Security Housing placement solely on the
prisoner’s gang affiliation. 1
In December 2009, Plaintiff Prisoners sued in a prisoner
civil rights action challenging this policy and the conditions
in the Pelican Bay Security Housing Unit. In September
2012, the Prisoners filed a second amended complaint
raising class claims on behalf of other inmates at Pelican
Bay.
In August 2015, the parties settled the case. While the
Settlement Agreement included many reforms, only two
substantive sections of the Settlement Agreement are
relevant to this case.
First, in Paragraph 25, California agreed to review the
cases of inmates in Security Housing and transfer these
inmates from solitary confinement to “a General Population
level IV 180-design facility.”
Second, in Paragraph 28, the parties agreed to a new type
of housing: Restricted Custody General Population
(“Restricted Custody”). The parties intended Restricted
Custody to house inmates who, for their own safety, could
not be safely housed in the general population.
In the Settlement Agreement, California agreed to
provide these Restricted Custody inmates “increased
opportunities for positive social interaction . . . including . . .
yard/out of cell time commensurate with Level IV [General
1
See Griffin v. Gomez, 741 F.3d 10, 12 (9th Cir. 2014) (describing
California’s housing policy for gang-affiliated inmates).
ASHKER V. NEWSOM 7
Population] in small group yards, in groups as determined by
the Institution Classification Committee.”
The district court approved the Settlement Agreement in
January 2016.
B.
After the Settlement Agreement, California began
implementing the Settlement Agreement’s policy reforms.
California moved most Security Housing gang members to
general population.
For threatened inmates, California created the Restricted
Custody housing units and instituted new security policies
for that unit. When an inmate arrives at Restricted Custody,
California places them on “walk-alone” status to observe
their interaction with other Restricted Custody inmates.
After staff observation and evaluation, staff reach out to
groups within Restricted Custody to ask if those groups
would accept the new inmate and would commit to avoid
trouble with the new inmate. If both the inmate and the
group agree to avoid problems, the prison places the inmate
with the compatible group. But some inmates remain on
walk-alone status indefinitely because no compatible group
has agreed to accept the inmate.
Inmates on walk-alone status have more restricted
opportunities for physical contact with other inmates when
on yard time. Walk-alone status inmates go to fenced
individual yards that are twenty-feet long by ten-feet wide.
Other yards adjoin the walk-alone yards and walk-alone
inmates can interact with other walk-alone inmates or groups
through the fences.
8 ASHKER V. NEWSOM
Walk-alone inmates also have more restricted access to
leisure-time activities and social interaction. While in the
day room, walk-alone status inmates can speak with inmates
in front of their cells but cannot be released into the group.
However, walk-alone inmates do have regular access to
phones, visitors, and educational programming.
C.
In October 2017, the Prisoners filed two motions to
enforce the Settlement Agreement.
In the first motion, the Prisoners claimed California
violated Paragraph 25 of the Settlement Agreement. The
Prisoners argued that some of the individuals transferred
from Security Housing to the General Population were
“spending the same or more time isolated in their cells.” The
Prisoners contended that the Settlement Agreement required
transfer to “General Population” conditions and claimed the
Settlement Agreement required Defendant “to . . . provide
sufficient yard, day room, programming, jobs, and other
means of social interaction and environmental stimulation to
meet the obligation of housing these class members in actual
general population conditions.”
In the second motion, the Prisoners argued that
California violated Paragraph 28 of the Settlement
Agreement. The Prisoners reasoned that prisoners on walk-
alone status do not receive access to increased opportunities
for positive social interaction even compared to the former
Security Housing. The Prisoners argued that the walk-alone
conditions differ from those suggested in the Settlement
Agreement and that California breached the settlement
agreement.
ASHKER V. NEWSOM 9
The district court referred both motions to a magistrate
judge under 28 U.S.C. § 636(b)(1)(B). In March 2018, the
magistrate judge recommended that both motions be denied.
About two weeks later, the Prisoners moved for the district
judge to review the motions’ recommended denials.
In July 2018, the district court rejected the magistrate
judge’s recommendations and granted Plaintiffs’ two
motions to enforce the Agreement. California then timely
appealed both orders.
In December 2018, the district court adopted remedial
plans, but stayed enforcement of the plans pending this
appeal. California then amended its appeal to include the
district court’s orders adopting the remedial plans. On
appeal, California argues that it breached neither
Paragraph 25 nor 28. 2
II.
Under California law, 3 “[a] settlement agreement is a
contract, and the legal principles which apply to contracts
generally apply to settlement contracts.” 4
2
California also argues the district court committed error when
adopting the remedial plans. But because we hold that California did not
breach the Settlement Agreement and vacate the remedial orders,
California’s arguments are now moot.
3
The Settlement Agreement includes a choice-of-law clause
requiring application of California law.
4
Monster Energy Co. v. Schechter, 444 P.3d 97, 102 (Cal. 2019)
(internal quotation marks and citation omitted).
10 ASHKER V. NEWSOM
We review the interpretation of a settlement contract de
novo. 5 “We defer to any factual findings made by the district
court in interpreting the settlement agreement unless they are
clearly erroneous.” 6
“We review the district court’s enforcement of a
settlement agreement for abuse of discretion.” 7 Under this
standard, “we will reverse only if the district court made an
error of law, or reached a result that was illogical,
implausible, or without support in the record.” 8
III.
A.
The Prisoners argue that California violated
Paragraph 25 of the Settlement Agreement by placing some
class members into housing where they receive less out-of-
cell time than they received in Security Housing.
California does not contest the district court’s finding
that some inmates receive limited out-of-cell time. Instead,
California argues that Paragraph 25 requires inmate transfer
from Security Housing to General Population but does not
control General Population conditions. We agree.
5
Parsons v. Ryan, 912 F.3d 486, 495 (9th Cir. 2018) (citation
omitted).
6
Id. (quoting City of Emeryville v. Robinson, 621 F.3d 1251, 1261
(9th Cir. 2010)).
7
Id. (citing Wilcox v. Arpaio, 753 F.3d 872, 875 (9th Cir. 2014)).
8
Id. (citing United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th
Cir. 2009)).
ASHKER V. NEWSOM 11
“The fundamental goal of contractual interpretation is to
give effect to the mutual intention of the parties.” 9 “[I]n the
absence of fraud or mistake, the intention of the parties as
expressed in the agreement is controlling, and courts are not
empowered under the guise of construction or explanation to
depart from the plain meaning of the writing and insert a
term or limitation not found therein.” 10
The plain meaning of the Settlement Agreement controls
here. Paragraph 25 provides that certain eligible inmates
“shall be released from [Security Housing] and transferred
to a General Population level IV 180-design facility, or other
general population institution consistent with his case
factors.”
Paragraph 25 only requires that California transfer
inmates out of Security Housing to a different facility.
Paragraph 25 does not limit California’s discretion regarding
out-of-cell time for the inmates removed from Security
Housing to General Population.
With this action, the Prisoners principally challenged
their continued solitary confinement in Security Housing
based only on gang affiliation. Having negotiated their
solitary confinement release, the Prisoners do not point to
any settlement language requiring any specific out-of-cell
time. California made no agreement regarding the out-of-
cell conditions for inmates leaving Security Housing for
General Population under the settlement.
9
State of California v. Cont’l Ins. Co., 281 P.3d 1000, 1004 (Cal.
2012) (internal quotation marks and citations omitted).
10
Tanner v. Title Ins. & Trust Co., 129 P.2d 383, 389 (Cal. 1942)
(citation omitted).
12 ASHKER V. NEWSOM
Elsewhere in the Settlement Agreement, the parties
showed that they knew how to negotiate conditions.
Paragraph 29 requires 20 hours of out-of-cell time for
inmates remaining in Security Housing after the Settlement
Agreement. The parties failed to include any similar
Paragraph 25 out-of-cell requirement for inmates transferred
from Security Housing to the general population.
We therefore conclude that California has complied with
Paragraph 25’s requirements.
B.
1.
The Prisoners argue that Paragraph 28 of the Settlement
Agreement requires California to provide Restricted
Custody inmates on walk-alone status with small group
yard-time and other group activities.
Paragraph 28 states:
Programming for those inmates transferred to
or retained in the Restricted Custody Group
will be designed to provide increased
opportunities for positive social interaction
with other prisoners and staff, including but
not limited to: Alternative Education
Program and/or small group education
opportunities; yard/out of cell time
commensurate with Level IV GP in small
group yards, in groups as determined by the
Institution Classification Committee; . . . and
leisure time activity groups.
ASHKER V. NEWSOM 13
Two aspects of Paragraph 28 undercut the Prisoners’
argument. First, the paragraph strikes an aspirational tone
by stating that the programming “will be designed to provide
increased opportunities for positive social interaction.” This
is not, as the Prisoners contend, a strict requirement that
there will be more social interaction, but instead a
programming goal.
Second, Paragraph 28 refers to “small group yards” but
does not say how many, or if any, other prisoners need be in
the same group yard. Further, the paragraph gives the
Institutional Classification Committee power to determine
the groups. The plain meaning of this clause suggests the
parties intended to give the Institutional Classification
Committee discretion to limit the number of inmates in a
small group yard. The Prisoners cannot now complain about
how the Institutional Classification Committee has exercised
that discretion.
2.
Paragraph 28 does not require California to do more than
it already has for inmates in Restricted Custody. But even if
it did, the breach would not be actionable because California
has substantially complied with Paragraph 28’s
requirements.
As relevant here, the Prisoners argue that California
failed to “substantially compl[y]” and that the breach is
therefore actionable under Paragraph 53 of the Settlement
Agreement. We disagree.
A party’s substantial compliance with a contract
“depends primarily on whether [that party] has realized the
14 ASHKER V. NEWSOM
contemplated benefits from [the contract].” 11 “[I]n
California a party is deemed to have substantially complied
with an obligation only where any deviation is ‘unintentional
and so minor or trivial as not substantially to defeat the
object which the parties intend to accomplish.’” 12
Most inmates in Restricted Custody have access to the
activities enumerated in Paragraph 28. They can also have
meetings with teachers (through cell doors), job
assignments, phone calls, and contact and no-contact visits.
And although those inmates on walk-alone status may have
limited physical contact with other inmates while in group
activities or in the yard, they are still able to interact. Given
the institution’s safety concerns, these limitations are only
minor deviations from Paragraph 28’s requirements.
IV.
For these reasons, we reverse the district court’s ruling
that California violated the Settlement Agreement, vacate
the district court’s remedial orders, and remand for further
proceedings consistent with this opinion.
REVERSED, VACATED, AND REMANDED. THE
PARTIES SHALL BEAR THEIR OWN COSTS.
11
Cline v. Yamaga, 158 Cal. Rptr. 598, 603 (Ct. App. 1979).
12
Rouser v. White, 825 F.3d 1076, 1082 (9th Cir. 2016) (quoting
Wells Benz, Inc. v. United States, 333 F.2d 89, 92 (9th Cir. 1964)). “The
determination[] of whether there was a breach of contract . . . [is a]
question[] of fact,” Ash v. N. Am. Title Co., 168 Cal. Rptr. 3d 499, 506
(Ct. App. 2014), which we review for clear error. Jeff D. v. Otter,
643 F.3d 278, 283 (9th Cir. 2011).