RICHARD JOHNSON V. CHARLES RYAN ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD JOHNSON, No. 20-15293
Plaintiff-Appellant, D.C. No.
2:18-cv-03055-
v. MTL-ESW
CHARLES L. RYAN, named as
Charles Ryan, Director of Arizona OPINION
Department of Corrections;
STACEY CRABTREE,
Administrator of Offender Services
Bureau; P. DAYS, Deputy Warden
of Browning Unit; MONTONO,
AKA Unknown Montano, First
name unknown; Deputy Warden of
Central Unit on or about 4-12-18
till 4-23-18, alias added pursuant to
Doc #53; BELT, First name
unknown; SSU Sergeant B, Special
Security Unit Sergeant at Central
Unit,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
2 JOHNSON V. RYAN
Argued and Submitted April 13, 2022
San Francisco, California
Filed December 15, 2022
Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,
and Jed S. Rakoff,* District Judge.
Opinion by Judge Bybee;
Partial Concurrence and Partial Dissent by Judge Rakoff
SUMMARY **
Prisoner Civil Rights
In an action brought pursuant to 42 U.S.C. § 1983 by
Arizona inmate Richard Johnson, the panel (1) affirmed the
district court’s dismissal of Johnson’s claim that the Arizona
Department of Corrections’s (“ADC’s”) annual reviews of
his maximum security confinement were insufficient to
satisfy the Due Process Clause of the Fourteenth
Amendment; and (2) reversed the district court’s summary
judgment for defendants and remanded on Johnson’s claims
that his removal from the Department’s Step-Down
Program—a program by which inmates may reintegrate into
close custody confinement—violated his rights under the
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, 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.
JOHNSON V. RYAN 3
First and Fourteenth Amendments.
Johnson’s complaint alleged, in part, that after he was
validated as a member of a Security Threat Group (“STG”),
he was moved to maximum security confinement where he
is confined to his cell for twenty-four hours per day, strip
searched every time he leaves his cell, takes meals in his cell,
and has limited access to rehabilitation programs. These
conditions are substantially more restrictive than the general
population from which he was moved. Johnson also alleges
that he was denied the opportunity for restoration of lost
earned release credits.
Addressing Johnson’s claim that the ADC’s annual
review process of his confinement status violates due
process, the panel held that Johnson has a liberty interest in
avoiding assignment to maximum custody as a consequence
of his STG validation. Nevertheless, Johnson failed to state
a claim for a due process violation under the three-prong
framework set forth in Mathews v. Eldridge, 424 U.S. 319,
335 (1976). Johnson did not challenge the procedures by
which he was initially validated as an STG
member. Instead, he argued that ADC’s annual reviews of
his confinement status do not afford him adequate process
because they are based solely on his alleged gang affiliation,
without regard to his criminal history, propensity of
violence, or disciplinary record within his past reclass
review period or his disciplinary record overall. The panel
held that ADC is entitled to substantial deference in its
determination that an inmate’s STG membership and failure
to renounce and debrief poses a continuing security
threat. Although Johnson disagreed with ADC’s judgment,
he failed to plausibly allege how that judgment created a risk
that he will be erroneously classified as a security threat.
4 JOHNSON V. RYAN
The panel next Johnson’s claim that his removal from the
Step-Down Program (“SDP”) in 2018 violated his due
process rights under the Fourteenth Amendment. The panel
disagreed with the assertion that ADC has created a liberty
interest in Johnson’s participation in the SDP, concluding
rather that the SDP is a process by which Johnson can leave
maximum custody and regain eligibility for good-time credit
and parole. Although Johnson had no liberty interest
created by the SDP, he adequately stated a liberty interest in
avoiding a return to maximum custody from close
custody. Thus, it was not Johnson’s removal from the SDP
per se that created an atypical and significant hardship, but
the change in Johnson’s underlying conditions of
confinement when he was moved. Because Johnson was
not given a meaningful opportunity to learn of the factual
basis for his transfer from close custody to maximum
custody or to prepare a defense to the accusations, Johnson
was likely denied due process in the procedures that resulted
in his return to maximum custody. At the very least, the
district court should not have granted summary judgment to
defendants on this claim.
Addressing Johnson’s First Amendment retaliation
claim that he was removed from the SDP and returned to
maximum custody because of his lawsuit against various
ADC defendants, the panel noted that Johnson had a pending
appeal in this court when he was removed from the SDP and
transferred back to maximum custody. The panel held that
viewing the evidence, including Johnson’s declaration, in
the light most favorable to Johnson, there was a genuine
dispute of material fact with respect to whether Johnson’s
removal from the SDP and return to maximum security
confinement reasonably advanced a legitimate penological
purpose.
JOHNSON V. RYAN 5
Concurring in part and dissenting in part, Judge Rakoff
stated that while Arizona provides the mirage that a once
validated member of an STG can later escape solitary
confinement, the reality is that he will be kept there for the
entire duration of his sentence. Believing that this is
unconstitutional, as well as contrary to past holdings of this
Court, Judge Rakoff dissented from the majority’s analysis
in Part III.A of its opinion, pertaining to Johnson’s claim that
Arizona’s refusal to consider factors other than his initial
STG validation and his subsequent failure to debrief denies
him due process. And while Judge Rakoff concurred in Part
III.B of the majority’s opinion, which reverses and remands
the district court’s entry of summary judgment against
Johnson on his claim that his removal from the SDP program
violated due process, he wrote separately to emphasize that
his claim is validly broader than the majority
contends. Finally, Judge Rakoff concurred fully in Part
III.C of the majority opinion with respect to Johnson’s
retaliation claim.
COUNSEL
Brian Wolfman (argued) and Daniel Wassim (argued),
Hannah M. Mullen, Madeline H. Meth, Samuel Myers,
Sanders Keyes Gilmer, and Rebecca Van Voorhees,
Georgetown University Law Center Appellate Courts
Immersion Clinic, Washington, D.C., for Plaintiff-Appellant
Patrick J. Boyle (argued), Assistant Attorney General; Mark
Brnovich, Attorney General of Arizona; Office of the
Arizona Attorney General, Phoenix, Arizona; for
Defendants-Appellees.
6 JOHNSON V. RYAN
OPINION
BYBEE, Circuit Judge:
Arizona Department of Corrections (ADC) inmate
Richard Johnson is a validated member of a Security Threat
Group (STG) and, pursuant to ADC’s policy, has been
assigned to maximum custody confinement. Johnson
challenges two aspects of ADC’s STG determination. First,
he argues that ADC’s annual reviews of his maximum
security confinement are insufficient to satisfy the Due
Process Clause of the Fourteenth Amendment. Second,
Johnson claims that his removal from ADC’s Step-Down
Program (SDP)—a program by which STG inmates may
reintegrate into close custody confinement—violated his
rights under the First and Fourteenth Amendments. The
district court screened his complaint, dismissing his claim
regarding ADC’s annual reviews for failure to state a claim.
The district court later granted summary judgment to
Defendants on Johnson’s claims regarding his removal from
the SDP. Johnson appealed, challenging both orders. We
have jurisdiction under 28 U.S.C. § 1291. We affirm in part
and reverse and remand in part.
I. BACKGROUND AND PROCEEDINGS
A. Regulatory Background
1. ADC’s security threat group policy
In 2005, the Supreme Court observed that “[t]he use of
Supermax prisons has increased over the last 20 years, in
part as a response to the rise in prison gangs and prison
violence.” Wilkinson v. Austin, 545 U.S. 209, 213 (2005)
(citing Chase Riveland, U.S. Dep’t of Justice, Nat’l Inst. of
Corr., Supermax Prisons: Overview and General
JOHNSON V. RYAN 7
Considerations 1 (1999)). These facilities, sometimes
referred to as “jails within prisons,” Riveland, supra, at 1,
are “more restrictive than any other form of incarceration,”
Wilkinson, 545 U.S. at 214.
In 1991, ADC addressed its own prison gang challenges
by adopting a Security Threat Group policy, referred to as
Department Order (DO) 806. The policy’s purpose is to
“minimize the threat that inmate gang or gang like activity
poses to the safe, secure and efficient operation of
institutions.” The policy defines an STG as “[a]ny
organization, club, association or group of individuals, either
formal or informal (including traditional prison gangs), . . .
whose members engage in activities that include . . .
committing or attempting to commit unlawful acts or acts
that violate the Department’s written instructions, which
detract from the safe and orderly operation of prisons.”
Ariz. Dep’t of Corr., Dep’t Order Manual, Dep’t Order 806,
at 25 (2017) [hereinafter DO 806]. The policy
contemplates “[m]inimizing gang or gang like activity”
through two programs: (1) “the debriefing and segregation
of inmates who disavow gang membership,” and (2) “a step-
down process for gang members who participate in
programming, reject gang activity and affiliation, and
remain disciplinary free.” DO 806 at 1.
ADC’s process for confirming an inmate’s membership
in an STG is called “validation,” and entails the following
process. When an inmate is first suspected of being an STG
member, the inmate is monitored for any STG-related
activity. ADC collects any documentation and physical
evidence in support of the inmate’s STG membership in an
STG Suspect File held by the Special Security Unit (SSU).
DO 806.03. Once an inmate accrues at least ten points in
two or more of ADC’s validation criteria, a “validation
8 JOHNSON V. RYAN
packet” is prepared and sent to the STG Validation Hearing
Committee. In the hearing, SSU presents the validation
packet, the inmate presents his defense, and the STG
Validation Hearing Committee determines whether the
documentation supports validation as an active STG
member. DO 806.04.1.7. If the committee finds that the
documents support validation, the inmate has three options:
He may renounce his STG membership, he may accept the
validation but refuse to renounce his STG membership, or
he may appeal his validation to the STG Appeals Committee.
DO 806.04.1.8.
Validated STG members who refuse to renounce are
assigned to maximum custody. DO 806.07. Male
validated STG members, like Johnson, are housed in the
ASPC-Eyeman Browning Unit (Browning Unit) for the
duration of their incarceration. Validated STG inmates are
ineligible for “restoration of forfeited time credits [and] . . .
rescission of Parole Class III time.” Id. 806.07.1.1.
Furthermore, Johnson alleges that ADC conducts an annual
review of maximum security inmates’ status, but for STG
inmates, these annual reviews consider only whether they
are validated STG members and whether they have
renounced and debriefed.
Conditions in maximum custody facilities such as the
Browning Unit are very restrictive. Johnson alleges that he
and other STG inmates in maximum custody are confined to
their cells twenty-four hours per day, strip searched, and
handcuffed behind their backs every time they leave their
cells. In the Browning Unit, STG inmates are entitled to
between $60 to $160 in weekly allowance at the store, one
to three fifteen-minute phone calls per week, one to three
two-hour non-contact visit blocks per week, and three three-
hour recreation blocks per week in a chute enclosure with
JOHNSON V. RYAN 9
the possibility that one block may be in a ten-by-ten foot
enclosure. They also have access to the library, television,
and mandatory rehabilitation programming, with the
possibility of further access to hobby supplies, the job of pod
porter, and eligibility for unrestrained escorts out of their
cells. ADC has promulgated an Inmate Maximum Custody
Management and Incentive System. Ariz. Dep’t of Corr.,
Dep’t Order Manual, Dep’t Order 812 (2019) [hereinafter
DO 812]. The program uses a “step incentive system” that
provides inmates “the opportunity to participate in jobs,
programs, and other out of cell activities” by which “inmates
may progress from controlled based housing to open
privilege based housing.” DO 812.1.
2. Pathways out of maximum security
STG-validated inmates have two distinct paths to
become eligible for custody reductions and housing status
change. They must either renounce their STG membership
and debrief or they must complete the SDP. DO 806.07.1.2.
a. Renouncing and debriefing
Renunciation is “[t]he process, in which a validated STG
member agrees to renounce STG affiliation, successfully
completes a debriefing, and is considered a former member.”
DO 806 at 25. Debriefing is a process by which the inmate
provides ADC with information to convince ADC that the
inmate has withdrawn from the STG. Debriefing permits
ADC to get additional information about the STG so that
ADC may manage the threat and to determine whether the
inmate will need to be protected from other STG members
and suspects. DO 806.06.1.1. A validated STG member is
“[p]ermitted to renounce and debrief at any time.” DO
806.07.1.1.9. If the inmate has debriefed to the satisfaction
of the STG Validation Hearing Committee, the inmate is
10 JOHNSON V. RYAN
placed in protective custody pending review of eligibility for
lower custody housing or a double cell environment. DO
806.07.1.5.1. Inmates who successfully debrief may also
request out-of-state placement. DO 806.07.1.5.2.
b. The Step-Down Program
The SDP “permits active inmates who have been
validated as STG members, to remove themselves from STG
activity and demonstrate to Department staff that they are no
longer involved with STG activity.” ADC considers it to be
an “alternative, indirect way of demonstrating a
disassociation with gang activity [that] does not require
renunciation and debriefing.” In order to participate in the
SDP, a validated STG member must notify ADC in writing
of his desire to participate in the program and must do so
after a twenty-four-month period in which the inmate did not
participate in STG activity or receive documented violations.
DO 806.1.2.
The SDP is split into five “Phases.” Phases I through
III take place in the Browning Unit and each lasts 180 days.
DO 806.08. At Phase I, inmates complete “general
evidence based programs” such as diversity training, high
school equivalence preparation, cognitive thinking, and
other rehabilitative programming. At Phase II, inmates are
allowed outside of their cells individually and unrestrained
in order to complete job assignments, and may walk to and
from the shower and recreation unrestrained. DO
806.08.1.5.2. They may also participate in town hall
meetings in non-contact cells, restorative justice
programming, and other rehabilitative programming. DO
806.08.1.5.2.1. At Phase III, inmates are allowed two-
person recreation periods, job assignments, and one meal
each day with other SDP inmates in which they are
JOHNSON V. RYAN 11
unrestrained. DO 806.08.1.5.3. They also continue
programming, such as substance abuse activities, conflict
resolution, domestic violence, and other treatment
programs. DO 806.08.1.5.3. Phase IV involves transfer
from the Browning Unit to a close custody unit and a four-
week transition period in the close custody unit. DO
806.10.1.2. In the first week, SDP inmates may only eat
and have recreation periods with other SDP inmates. DO
806.10.1.3. In the second, they may eat with other close
custody inmates. DO 806.10.1.4.2. In the third, they may
also have recreation periods with close custody inmates.
DO 806.10.1.5.3. In the fourth week, inmates begin
employment. DO 806.10.6.4. Upon completion of Phase
IV, inmates begin Phase V, which is an indefinite period of
monitoring. DO 806.10.1.7.
Inmates may be removed from the SDP for participating
in STG activity or having a documented incident involving
violence, a threat, a weapon, an improper use of a cell phone,
or drug usage. DO 806.08.1.2. They may also be removed
for participating in activities that adversely affect the safety
of staff and the public, failing to complete all programming,
and for disciplinary behavior that changes the inmate’s
classification or housing assignment. DO 806.11.1.4. At
Phases I through IV, removals are documented, and the
deputy warden for the inmate’s assigned housing unit makes
the final decision of whether to reinstate the inmate or
terminate them from the SDP. DO 806.11.1. In these
phases, inmates are not entitled to a revocation hearing or an
appeal before the STG Appeals Committee, but the regular
inmate grievance procedure remains available. Inmates
removed at Phase V are entitled to a hearing before the STG
Validation Hearing Committee with the right to an appeal to
the STG Appeals Committee. DO 806.11.5.
12 JOHNSON V. RYAN
An inmate terminated from the SDP must remain in
maximum security for two years before he is eligible to
participate again. DO 806.11.12. If an inmate is removed
twice, he is permanently ineligible to participate in the SDP,
although he may still renounce and debrief at any time. DO
806.11.13.
B. Johnson’s Removal from the SDP
In October 2014, the STG Validation Hearing
Committee classified Johnson as a validated member of the
Warrior Society STG. He appealed, and the STG Appeals
Committee affirmed his validation. He was transferred to
the ASPC-Eyman Browning Unit in November 2014.
Johnson enrolled in the SDP in November 2016. He
was terminated from the program in December 2017, due to
an inconclusive polygraph. After Johnson submitted an
inmate grievance and received a hearing, ADC determined
that he successfully passed a polygraph and was eligible for
Phase IV. In April 2018, Johnson began Phase IV and was
transferred to the ASPC-Florence Central Unit, a close
custody unit.
Pursuant to ADC policy, SSU officers searched Johnson
and his belongings when he arrived at the close custody unit.
SSU Sergeant Belt prepared a memorandum that described
three STG-specific documents found in Johnson’s
belongings: (1) a calendar code specific to the Warrior
Society with the name and ADC number of another Warrior
Society validated inmate written in code; (2) a roster of
Warrior Society members housed in Wing IV at the
Browning Unit; and (3) a micro-note from one Dine Pride
STG member to another that included a roster of Dine Pride
members in the Browning Unit and described other Dine
JOHNSON V. RYAN 13
Pride activities. 1 Then-Deputy Warden Ruben Montano
stated that Belt’s memorandum and evidence was sufficient
to remove Johnson from the SDP because it demonstrated
that he violated the program’s prohibition on STG activity.
Johnson was terminated from the SDP on April 23, 2018.
When Johnson asked Belt why he was terminated from the
SDP, Belt told him that “higher-ups” wanted Johnson off the
yard and “jailhouse lawyers” were not welcome in Belt’s
unit. After Johnson asked Belt why he was labeled a
“jailhouse lawyer,” Belt said, “you know why.”
On April 23, 2018, Johnson received a notice of hearing
regarding his proposed placement in maximum custody.
He also submitted a written statement in connection with the
hearing, but the copies provided by both parties are illegible.
Johnson attended the hearing on April 25, 2018. ADC staff
determined that he would be returned to the Browning Unit
because of his role as an active, validated STG member.
Johnson was transferred back to the Browning Unit on April
30, 2018.
1
Johnson contests ADC’s characterization of these documents. While
noting that he “can only speculate” about the true nature of these objects,
Johnson guesses that the calendar code was actually a “mind teaser,” the
roster of Warrior Society members was a list for a Native American pipe
ceremony, and the micro-note was never given to him by its alleged
author. He provided declarations from other Native American inmates,
who stated that they have been asked by SSU officers to make a list of
pipe ceremony participants. He also provided a declaration from Ladle
Joey, the alleged author of the micro note, who stated that he never gave
Johnson the micro note, but also admitted that “I am neither confirming
nor denying that I am the author of the alleged ‘micro note’” and that “I
have not seen the actual ‘micro note.’” Finally, Johnson alleges that
SSU officers have a history of submitting unreliable evidence as STG
material because he previously had some materials seized for this reason
and later returned, including an Apache-English dictionary.
14 JOHNSON V. RYAN
Johnson contested his transfer back to the Browning Unit
in two ways: through the grievance process and through an
appeal of his maximum custody placement. On May 2,
2018, he filed an informal grievance, and on May 15, 2018,
he filed a formal grievance. Both grievances argued that he
did not receive adequate process for his removal from the
SDP and raised the possibility of retaliation. They further
alleged that Johnson was not told the reason for his
reassignment to maximum custody other than his status as
an active STG member. Deputy Warden Days denied his
formal grievance, confirming that he was terminated for
being an active STG member. On June 8, 2018, Johnson
appealed the denial of his formal grievance, and the appeals
office told him that his removal was in compliance with
department policy and that he failed to provide evidence of
retaliation.
In the meantime, on June 17, 2018, Johnson filed an
appeal of his maximum custody placement. His appeal
form repeated that he was not told the reason for his
reassignment other than his status as an active STG member.
The administrator of the Offender Services Bureau, Stacey
Crabtree, denied the appeal, finding that Johnson was
correctly classified to maximum custody based on the
discovery of STG-specific documents in his belongings.
After Johnson returned to the Browning Unit, SSU officers
refused to tell him why he was terminated from the SDP,
with one officer telling him that he “would need a ‘court
order’ to know why [he] was terminated.” Johnson also
sent a letter to ADC Director Charles Ryan. Ryan never
responded, but Johnson received a response from a division
director stating that the current SDP policy did not require a
hearing for inmates removed from Phases I–IV.
JOHNSON V. RYAN 15
C. Proceedings Below
Johnson filed suit under 42 U.S.C. § 1983 in the District
of Arizona against Ryan, Crabtree, Days, Montano, and Belt
seeking damages and an injunction ordering ADC to
implement a behavior-based model for dealing with STG
members. His amended complaint raised three claims: (1)
violation of his due process rights under the Fourteenth
Amendment for the failure to consider factors other than
STG membership at annual reviews of his maximum custody
status, (2) violation of his due process rights under the
Fourteenth Amendment for his removal from the SDP, and
(3) retaliation in violation of the First Amendment for his
removal from the SDP for his previous litigation. The
district court screened his complaint under 28 U.S.C.
§ 1915A and dismissed Johnson’s due process challenge to
ADC’s annual review process for failure to state a claim. In
that claim, Johnson had argued that the reviews should also
consider his “criminal history, propensity of violence, or
disciplinary record within his past reclass review[] period or
Plaintiff’s disciplinary record overall.” The district court
held that “ADC’s periodic review, combined with the ability
to debrief at any time, satisfies due process,” citing four
other cases from the District of Arizona holding the same. 2
On cross-motions for summary judgment, the district
court granted summary judgment to Defendants on
Johnson’s remaining two claims. With respect to Johnson’s
2
See Mendez v. Ryan, No. CV-12-0271-PHX-RHB (MHB), 2013 WL
6408389, at *8 (D. Ariz. 2013); Standley v. Ryan, No. CV 10-1867-PHX-
DGC (ECV), 2012 WL 3288728, at *9–10 (D. Ariz. 2012); Faulkner v.
Ryan, No. CV 10-2441-PHX-SMM (JFM), 2012 WL 407452, at *9–10
(D. Ariz. 2012); Hernandez v. Schriro, No. CV 05-2853-PHX-DGC
(JJM), 2011 WL 2910710, at *8–9 (D. Ariz. 2011).
16 JOHNSON V. RYAN
due process claim against Ryan, the district court held that
Ryan was not involved in the decision to remove Johnson
from the SDP and Johnson failed to allege that his removal
was attributable to an unconstitutional policy, practice, or
custom that could be attributed to Ryan. With respect to
Crabtree and Days, the district court found that neither
defendant had the authority to order additional procedural
safeguards for Johnson’s termination. Finally, with respect
to Montano, the district court held that Johnson’s liberty
interest in avoiding the conditions of solitary confinement
was adequately protected by ADC’s periodic reviews of his
confinement in addition to his ability to debrief at any time.
The district court further held that Johnson did not have an
independent liberty interest in remaining in the SDP because
it is a program voluntarily administered by ADC and not
required by the Due Process Clause. On Johnson’s First
Amendment retaliation claim against Montano and Belt, the
district court found that Johnson’s previous lawsuits
constituted protected conduct, but that Johnson failed to
show how that conduct was the “substantial or motivating
factor” behind his removal from the SDP.
Johnson timely appealed.
II. STANDARD AND SCOPE OF REVIEW
We review de novo a district court’s dismissal under 28
U.S.C. § 1915A. Byrd v. Phx. Police Dep’t, 885 F.3d 639,
640 (9th Cir. 2018).
To survive § 1915A review, a complaint must
contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible
on its face. Moreover, we have an obligation
where the petitioner is pro se, particularly in
civil rights cases, to construe the pleadings
JOHNSON V. RYAN 17
liberally and to afford the petitioner the
benefit of any doubt.
Id. at 642 (citations and quotations omitted).
We review de novo a district court’s grant of summary
judgment. Transgender L. Ctr. v. Immigr. & Customs
Enf’t, 46 F.4th 771, 778 (9th Cir. 2022). “We therefore
employ the same standard used by the district court and must
‘view the evidence in the light most favorable to the
nonmoving party, determine whether there are any genuine
issues of material fact, and decide whether the district court
correctly applied the relevant substantive law.’” Id.(quoting Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989
(9th Cir. 2016) (en banc) (per curiam)).
Johnson raises three issues on appeal. First, he raises a
challenge under the Due Process Clause to ADC’s policy of
conducting annual reviews of the validation of STG
members. Second, he claims the he had a liberty interest in
the Step-Down Program and that his removal without a
hearing violated his due process rights under the Fourteenth
Amendment. Third, Johnson claims that the district court
erred in granting summary judgment on his claim that prison
officials retaliated against him by removing him from the
SDP for filing prior lawsuits, in violation of the First
Amendment. We will consider each issue in turn.
III. WHETHER ADC’s STG REVIEW VIOLATES DUE
PROCESS
We first consider whether the district court erred when it
screened Johnson’s claim that ADC’s annual reviews of his
confinement status violate his due process rights under the
Fourteenth Amendment. The Due Process Clause of the
18 JOHNSON V. RYAN
Fourteenth Amendment prohibits states from “depriv[ing]
any person of life, liberty, or property, without due process
of law.” U.S. Const. amend. XIV, § 1. In order to analyze
a procedural due process claim, we engage in a two-step
analysis: First, we determine whether the inmate was
deprived of a constitutionally protected liberty or property
interest. Second, we examine whether that deprivation was
accompanied by sufficient procedural protections. See
United States v. 101 Houseco, LLC, 22 F.4th 843, 851 (9th
Cir. 2022). In order to determine whether the procedural
protections provided are sufficient at the second step, we
look to (1) the private interest affected; (2) the risk of an
erroneous deprivation and the probable value of any
additional or substitute procedural safeguards; and (3) the
government’s interest. Mathews v. Eldridge, 424 U.S. 319,
335 (1976).
A. Johnson’s Liberty Interest in Avoiding Maximum
Security
A liberty interest “may arise from the Constitution itself
. . . or it may arise from an expectation or interest created by
state laws or policies.” Wilkinson, 545 U.S. at 221. The
Constitution does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement,
but such an interest may “arise from state policies or
regulations.” Id. at 221–22; Meachum v. Fano, 427 U.S.
215, 225 (1976) (“[T]he Due Process Clause [does not] . . .
protect a duly convicted prisoner against transfer from one
institution to another within the state prison system.
Confinement in any of the State’s institutions is within the
normal limits or range of custody.”). However, an interest
in avoiding certain conditions of confinement “will be
generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to
JOHNSON V. RYAN 19
give rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant hardship
on the inmate in relation to the ordinary incidents of prison
life.” Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations
omitted). “After Sandin, it is clear that the touchstone of
the inquiry into the existence of a protected, state-created
liberty interest in avoiding restrictive conditions of
confinement is not the language of regulations regarding
those conditions but the nature of those conditions. . . .”
Wilkinson, 545 U.S. at 223.
Johnson has alleged sufficient facts to establish a liberty
interest in avoiding maximum security confinement in the
Browning Unit as a result of his STG validation. Johnson
was not initially placed in the Browning Unit as a
consequence of the crimes for which he was convicted and
sentenced. See Wilkinson, 545 U.S. at 216 (noting that
initial assignment to Ohio’s supermax might follow “if the
inmate was convicted of certain offenses”); Myron v.
Terhune, 476 F.3d 716, 718 (9th Cir. 2007) (holding that an
inmate has no liberty interest in his initial classification); see
also Prieto v. Clarke, 780 F.3d 245, 254 (4th Cir. 2015)
(rejecting a due process challenge to harsh conditions on
death row). Johnson’s complaint states that after he was
validated as an STG member in 2014, he was moved to the
Browning Unit, where he is confined to his cell for twenty-
four hours per day, strip searched every time he leaves his
cell, takes meals in his cell, and has limited access to
rehabilitation programs. These conditions are substantially
more restrictive than the general population from which he
was moved. Johnson also alleges that he was denied the
opportunity for restoration of lost earned release credits.
The Supreme Court has held that similar conditions in an
Ohio Supermax facility created a liberty interest because
20 JOHNSON V. RYAN
they “impose[d] an atypical and significant hardship under
any plausible baseline.” Wilkinson, 545 U.S. at 223–24; see
also Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th Cir.
2014) (holding that solitary confinement for a fixed and
irreducible twenty-seven month period created a liberty
interest). We hold that Johnson has a liberty interest in
avoiding assignment to maximum custody as a consequence
of his STG validation.
B. Sufficiency of Process
Although we find that Johnson has a liberty interest, he
fails to state a claim for a due process violation under the
Mathews three-prong framework. In this appeal, Johnson
does not challenge the procedures by which he was initially
validated as an STG member. Instead, he argues that
ADC’s annual reviews of his confinement status do not
afford him adequate process because they “are based solely
on Plaintiff’s alleged gang affiliation, without regard to his
criminal history, propensity of violence, or disciplinary
record within his past reclass review[] period or Plaintiff’s
disciplinary record overall.”
1. Balancing inmate and prison interests
In the context of prison gangs, the balance of private and
public interests—that is, the first and third prongs of the
Mathews analysis—weigh heavily in favor of ADC. On the
inmate side, Johnson must accept that almost any placement
in the Arizona prison system is a severely restricted
environment, and that “the procedural protections to which
[inmates] are entitled are more limited than in cases where
the right at stake is the right to be free from confinement at
all.” Wilkinson, 545 U.S. at 225. On the state’s side,
“[p]rison security, imperiled by the brutal reality of prison
gangs, provides the backdrop of the State’s interest” and is a
JOHNSON V. RYAN 21
“dominant consideration.” Id. at 227. Indeed, we have
described prison gangs as a “chronic problem” in which
“gangs engage in extortion, drug trafficking, assault, and
murder within the prisons.” Griffin v. Gomez, 741 F.3d 10,
12 (9th Cir. 2014); see United States v. Silverstein, 732 F.2d
1338, 1341 (7th Cir. 1994) (describing the court’s
“horrifying glimpse of the sordid and lethal world of modern
prison gangs”). We have observed that the assignment of
gang affiliates to administrative segregation “is not a
disciplinary measure, but an administrative strategy
designed to preserve order in the prison and protect the
safety of all inmates” and that “the assignment of inmates
within the [State’s] prisons is essentially a matter of
administrative discretion.” Munoz v. Rowland, 104 F.3d
1096, 1098 (9th Cir. 1997); see also Bruce v. Ylst, 351 F.3d
1283, 1289 (9th Cir. 2003) (acknowledging that “prisons
have a legitimate penological interest in stopping prison
gang activity”); Mark S. Fleisher & Scott H. Decker, An
Overview of the Challenge of Prison Gangs, Corr. Mgmt. Q.,
vol. 5, issue 1, at 2–5 (2001) (recounting the history,
organization, and impact of prison gangs). And in this
context, “courts must give substantial deference to prison
management decisions before mandating additional
expenditures for elaborate procedural safeguards when
correctional officials conclude that a prisoner has engaged in
disruptive behavior.” Wilkinson, 545 U.S. at 228.
In this case, ADC has determined that an inmate’s STG
status—the fact of membership in a gang, irrespective of his
prison disciplinary record—is a sufficient indication of that
inmate’s security risk to justify continuing solitary
confinement. Arizona is not alone in this assessment. As
a report from the National Institute of Justice at the U.S.
Department of Justice found: “Numerous responses to
22 JOHNSON V. RYAN
combat gangs have been implemented throughout U.S.
prison systems, but only one has been described as a ‘silver
bullet:’ removing gang affiliates from the general population
and placing them in restrictive housing.” David C. Pyrooz,
U.S. Dep’t Justice, Nat’l Inst. of Just., Using Restrictive
Housing to Manage Gangs in U.S. Prisons (June 30, 2018),
https://nij.ojp.gov/topics/articles/using-restrictive-housing-
manage-gangs-us-prisons (footnote omitted). As a
consequence, “Corrections officials have, overwhelmingly,
endorsed the use of restrictive housing for gang affiliates.”
Id.; see, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1240–44
(N.D. Cal. 1995) (describing California’s program for
segregating prison gang affiliates). The proposition is not
without controversy, even among corrections experts, but we
owe substantial deference to ADC’s judgment in making this
prison management decision. ADC’s judgment is broadly
shared by other corrections officials, and we should not
impose additional procedures lightly. See Wilkinson, 545
U.S. at 228.
2. Risk of erroneous deprivation
With these considerations in mind, we turn to the second
prong of the Mathews analysis. Given the procedures that
ADC has in place, what is the risk that ADC officials will
erroneously determine that Johnson remains a security risk
to the prison? Johnson, with vigorous support from our
dissenting colleague, argues two points. First, citing our
decision in Toussaint v. McCarthy, 801 F.2d 1080, 1102 (9th
Cir. 1986) (Toussaint III), overruled in part on other
grounds, Sandin v. Connor, 515 U.S. 472 (1995), he argues
that reviews of his confinement status cannot be
“meaningless gestures” and must be held more frequently
than once a year. See Dissenting Op. at 4 (Toussaint III
“requires review of [segregated] placement more than once
JOHNSON V. RYAN 23
per year”). Second, he argues that irrespective of the
frequency of such retention reviews, the ADC’s review
process is inadequate because periodic reviews have never
considered whether he remains a threat to the institution, but
“consider[] only an initial STG validation and the
subsequent failure to debrief.” See id. at 9. We will
address both points.
The frequency of review of Johnson’s gang status. In
Hewitt v. Helms, the Supreme Court set forth the general
standard:
[A]dministrative segregation may not be used
as a pretext for indefinite confinement of an
inmate. Prison officials must engage in
some sort of periodic review of the
confinement of such inmates. This review
will not necessarily require that prison
officials permit the submission of any
additional evidence or statements. The
decision whether a prisoner remains a
security risk will be based on facts relating to
a particular prisoner—which will have been
ascertained when determining to confine the
inmate to administrative segregation—and
on the officials’ general knowledge of prison
conditions and tensions, which are singularly
unsuited for “proof” in any highly structured
manner.
459 U.S. 460, 477 n.9 (1983), abrogated in part on other
grounds, Sandin, 515 U.S. 472.
We addressed the question of retention reviews in
Toussaint III, 801 F.2d at 1101. To understand our
24 JOHNSON V. RYAN
statements, some context is required. Toussaint was a class
action spanning nearly two decades and broadly addressing
the conditions of confinement at four California prisons—
San Quentin, Folsom, Deuel Vocation Institute at Tracy, and
Correctional Training Facility at Soledad. The litigation
had an extensive history in the district court and in our
court. 3 Relevant to this case, the district court addressed
the segregated housing practices at San Quentin and Folsom
and described three justifications for segregating inmates:
(1) because of “disciplinary rule infractions”; (2) because of
“an institutional perception that they pose a threat to the
safety of other inmates or staff, or to the security of the
institution”; and (3) “because of a perception that the
inmates themselves may be harmed by other inmates if they
must mingle in the general population.” Toussaint II, 597
F. Supp. at 1393–94. The district court also identified a
fourth category, known as “administrative segregation,”
which was a catch-all for inmates assigned to segregated
housing “pending a determination of whether he should be
assigned more permanent ‘segregated’ status for one of the
three reasons.” Id. at 1394. It was for this fourth category
that the district court expressed concern that “the decision to
segregate is based on unverifiable hearsay or ‘confidential
3
See generally Wright v. Enomoto, 462 F. Supp. 397 (N.D. Ca. 1976),
aff’d 434 U.S. 1052 (1978); Wright v. Rushen, 642 F.2d 1129 (9th Cir.
1981), on remand, 553 F. Supp. 1365 (N.D. Cal. 1983), aff’d in part and
vacated in part sub nom. Toussaint v. Tockey, 722 F.2d 1490 (9th Cir.
1984) (Toussaint I), on remand sub nom. Toussaint v. McCarthy, 597 F.
Supp. 1388 (N.D. Cal. 1984) (Toussaint II), aff’d in part and rev’d in
part, 801 F.2d 1080 (9th Cir. 1986) (Toussaint III), on remand sub nom.
Toussaint v. Rowland, 711 F. Supp. 536 (N.D. Cal. 1989) (Toussaint IV),
aff’d in part and rev’d in part sub nom. Toussaint v. McCarthy, 926 F.2d
800 (9th Cir. 1991) (Toussaint V). See also Rowland v. U.S. Dist. Ct.
for N.D. Cal., 849 F.2d 380 (9th Cir. 1988).
JOHNSON V. RYAN 25
information’ from a source of unproven reliability
identifying the inmate as a gang member” and that inmates
had been held continuously in lockup for more than one year,
and “[some] had been so held for over two years.” Id. at
1407 (footnote omitted). The district court issued a
permanent injunction “to correct [the prisons’] arbitrary
practices in imposing segregation for ‘administrative’
reasons, and in retaining prisoners in segregation” and
required such inmates to “be released from segregation upon
his Minimum Eligible Release Date (MERD), if any, or at
the expiration of twelve (12) months” unless the inmate is
afforded a hearing and it is determined that he fits one of the
three justifications described above. Id. at 1424.
Both parties appealed the district court’s injunction.
We held that “the state’s interest in maintaining security in
San Quentin and Folsom is at least as great, if not greater,
than the state’s interest shown in Hewitt,” as California’s
facilities were “composed of the most violent and anti-social
offenders in the California prison system.” Toussaint III,
801 F.2d at 1100. With respect to the decision to make the
initial placement, we held that “due process only requires . .
. an informal nonadversary hearing within a reasonable time
after the prisoner is segregated.” Id. (footnote omitted); see
id. at 1100 n.20 (stating that “the district court’s requirement
that a hearing be held within 72 hours of segregation
constitutes a ‘reasonable time’” and “intimat[ing] no view as
to whether due process would tolerate a more lengthy
delay.”). With respect to retention reviews, we noted recent
decisions of the Third and Eighth Circuits 4 approving
4
Those cases involved a very different set of circumstances, and neither
case addressed the Mathews test. In Mims v. Shapp, 744 F.2d 946 (3d
Cir. 1984), Burton had been segregated for five years for his role in a
Pennsylvania prison riot in which a deputy warden was killed. The
26 JOHNSON V. RYAN
monthly reviews of a prisoner’s segregated status and,
without further analysis, we concluded, “[w]e do not believe
that annual review sufficiently protects plaintiffs’ liberty
interest. However, we intimate no view as to the frequency
of periodic review required. That is for the parties to
recommend and the district court to decide in the first
instance.” Id. at 1101.
On remand, the district court addressed objections from
the parties in response to a report from the prison monitor
appointed to supervise the injunction. Toussaint IV, 711 F.
Supp. at 537. The monitor recommended that inmates in
prison had reviewed his status every 30 days. The question for the court
was whether Burton had been denied “meaningful periodic review.” Id.
at 948. The district court found that Burton’s retention was based on
the subjective evaluation of prison officials, ordered Burton’s release,
and awarded damages. The Third Circuit reversed. The fact of the 30-
day review period used by the prison to retain Burton for violation of
prison disciplinary proceedings was not at issue and was mentioned only
in passing. Id. at 952.
In Clark v. Brewer, 776 F.2d 226 (8th Cir. 1985), Clark had been
held in segregated status for seven years after he killed an inmate and a
guard. Id. at 228. Under the Iowa prison procedures, an inmate’s
segregated placement was reviewed every seven days for the first two
months and then monthly thereafter. The district court ordered more
frequent review, and the Eighth Circuit reversed with the observation
that “[a] wide variety of situations will confront penitentiary officials,
and while in one case the type of situation involved will necessarily
require a relatively long period of segregation, in another only a short
period of segregation may be necessary.” Id. at 234. The court
concluded that “the frequency of that review must in most cases be left
to the informed discretion of prison officials” and “the frequency of
hearings presently required by state policy is constitutionally sufficient.
To require more frequent hearings would be of little or no benefit to any
individual inmate while at the same time significantly increasing the
administrative burden on penitentiary officials.” Id.JOHNSON V. RYAN 27
“indeterminate segregation” be reviewed every 90 days.
The state objected and contended that review every 120 days
was sufficient. Although the district court had previously
approved up to a one-year retention review policy, the
district court ordered the state to review inmates’ segregated
status every 90 days. Id. at 539–40. We reversed, with
little analysis and without citation to any decision of any
court, including our prior decision in Toussaint III:
The Constitution does not support a nice
distinction between 90 days and 120 days.
The question is one of discretion. Is it to be
the discretion of the prison administrators or
the discretion of a district court? Nothing in
the Constitution invests the district court with
discretion to override the discretion of the
prison officials on this administrative point.
Here administrative discretion must prevail;
120 days satisfies due process.
Toussaint V, 926 F.2d at 803.
The Toussaint litigation is of limited usefulness in this
case. Between Toussaint III and Toussaint V, we are left
with bare ipse dixit that 120-day review of segregated status
is constitutionally acceptable, a one-year period is too long,
but anything in between those poles is to be left to the
discretion of prison officials. Nevertheless, our declaration
in Toussaint III that an annual review period was too long
would bind us—if annual review were the exclusive form of
relief for Johnson. It is not. Johnson may renounce his
gang status and debrief at any time. At a minimum, his
willingness to renounce and debrief would earn Johnson a
28 JOHNSON V. RYAN
hearing to determine whether he had satisfied the criteria for
renounce-and-debrief relief.
Because Johnson has not sought to renounce and debrief,
we are hard-pressed to understand why annual review of
STG status is not sufficient to satisfy the Due Process
Clause. We need to be very precise here so that we cannot
be misunderstood. We do not have inmates before us who
are subject to maximum custody in Arizona for violations of
disciplinary rules or have been segregated for their own
protection, to use the language of the Toussaint litigation.
See Toussaint II, 597 F. Supp. at 1393–94. Instead, Johnson
is subject to segregation because he has been classified as a
threat to the safety of the prison staff, other inmates, or the
general security of institution. See id. That classification
may encompass a variety of concerns. See Clark, 776 F.2d
at 228 (inmate was subject to long-term segregation after
numerous disciplinary reports and after he killed a guard and
an inmate); Mims, 744 F.2d at 948 (inmate was subject to
long-term segregation after killing a deputy warden). In
Johnson’s case, Arizona has articulated a particular concern.
It has not alleged that Johnson has violated disciplinary rules
or is an immediate threat to the staff or other inmates.
Rather, Arizona is concerned that Johnson’s gang
membership presents an ongoing threat to the security of the
prison, its staff, and its inmates. ADC’s immediate concern
is not conduct-based. It is based on Johnson’s status as a
member of the Warrior Society, which ADC has determined
is an active prison gang and presents a general threat to the
security of the prison. See Ariz. Dep’t of Corr., Security
Threat Group (STG) Program Evaluation 4 (2001) (noting,
as of 2001, that the Warrior Society and the Sureños were
the most recently certified STGs); see also Greybuffalo v.
Kingston, 581 F. Supp. 2d 1034, 1048–50 (W.D. Wis. 2007)
JOHNSON V. RYAN 29
(finding that the Warrior Society was created for the self-
protection of Native American prisoners and is involved in
criminal activities in prison); Nat’l Gang Intel. Ctr., 2013
National Gang Report, FBI, https://www.fbi.gov/file-
repository/stats-services-publications-national-gang-report-
2013 (last visited Oct. 24, 2022) (listing the Warrior Society
as one of the most significant prison gangs).
As we discuss in greater detail in the next section,
Johnson’s argument really amounts to a disagreement about
what criteria the prison should consider in determining
whether he remains a security risk and only secondarily
challenges how often ADC reviews his STG status. But as
the Supreme Court noted in Hewitt, periodic reviews do not
necessarily require additional evidence and may rely on facts
that were ascertained when the initial decision to confine the
inmate to administrative segregation was made. 439 U.S. at
477 n.9. Unless Johnson can show that his initial validation
as an STG was in error—a claim Johnson does not make—
then his recourse for the time being is to renounce his
membership, thereby altering his status as a Warrior Society
member. 5 Neither Johnson nor the state has anything to
gain by conducting monthly, 90-day, or 120-day reviews of
Johnson’s status as a gang member because nothing about
his STG status has changed. Such periodic reviews would
be useful to review conduct-based threats to prison security,
but that is not the basis for Johnson’s segregation. See
Madrid, 889 F. Supp. at 1278 (noting that the “lack of
continuing evidence of gang membership or activity is
5
We need not address hypotheticals such as whether Arizona would have
the same interest in segregating Johnson as an STG if, for example, by
reason of age or infirmity, Johnson no longer represented a threat to the
institution, even by virtue of his gang affiliation.
30 JOHNSON V. RYAN
simply considered irrelevant since the justification for
administrative segregation is the fact of gang membership
itself, not any particular behavior or activity” and “the
premise for finding that the inmate is a security risk—gang
membership or association—is not affected by the lack of
subsequent gang activity”). Because Johnson can initiate
review of his segregated status at any time by indicating that
he is prepared to renounce his membership, Johnson has
some control over the review process. We will not engage
in the empty formalism of requiring ADC to conduct a
review at some point less than annually—every 364 days, for
example—just to satisfy our broad statement in Toussaint
III. 6 We hold that annual review of Johnson’s gang status
plus the possibility of the opportunity to renounce and
debrief is sufficient to satisfy the demands of the Due
Process Clause. See Wilkinson, 545 U.S. at 217 (noting that
once an inmate has been placed in the Ohio supermax
facility, “his placement is reviewed on at least an annual
basis”).
Gang status as a threat to security. That brings us to
Johnson’s second, and perhaps most important point:
Johnson, buoyed by the dissent, believes that, irrespective of
his validated membership in a prison gang, Johnson must be
given the opportunity to demonstrate that he is not a threat-
in-fact. See Dissenting Op. at 69 (“Johnson plausibly
alleges that Arizona’s current review process offers him and
prisoners like him no effective way out of maximum custody
even if they no longer pose any threat to prison security.”).
6
In the end, even the dissent concedes the formalism of requiring a more
frequent periodic review because it would not matter to the dissent’s
analysis how often Arizona reviewed Johnson’s placement. Dissenting
Op. at 69.
JOHNSON V. RYAN 31
But here is the dissent’s critical premise: “gang affiliation,
without regard to [Johnson’s] criminal history, propensity
for violence, or disciplinary record” is not sufficient cause to
hold Johnson in segregated housing. Dissenting Op. at 73.
Thus by “den[ying Johnson] any ‘meaningful opportunity’
to demonstrate he was no longer a threat,” Arizona has
denied Johnson due process. Id. at 75.
Johnson has framed his argument as a Mathews v.
Eldridge challenge to Arizona’s procedures. Properly
considered, his argument does not sound in procedural due
process. Rather, it is a fundamental disagreement with
ADC’s judgment that gang status is a sufficient grounds for
placing Johnson, or any other gang member, in segregated
housing. Johnson and the dissent challenge ADC’s
judgment about what criteria the prison should consider in
determining whether Johnson remains a security risk.
Johnson’s argument sounds in substantive due process, not
procedural due process. 7 See United States v. Salerno, 481
U.S. 739, 746 (1987) (describing the difference between the
substantive and procedural components of the Due Process
Clause); Mills v. Rogers, 457 U.S. 291, 299 (1982) (similar);
7
We are not aware of any published decision from any court that
supports Johnsons’s and the dissent’s theory. We are aware that in 2001
an Arizona district court held that “due process requires more than just
proof of status” and that holding an inmate in segregated housing on the
basis of his validation as a member an STG without “evidence of
misconduct . . . offends the Due Process Clause.” Koch v. Lewis, 216
F. Supp. 2d 994, 1007 (D. Ariz. 2001). The district court in that case
acknowledged that the argument sounded in substantive due process.
Id. at 1003 (“the procedural component of due process is not at issue.”).
When the state’s appeal became moot, the district court vacated its
injunction but left its orders in place “for future ‘persuasive force.’” We
vacated the district court’s orders “in their entirety.” Koch v. Schriro,
399 F.3d 1100, 1100–01 (9th Cir. 2005).
32 JOHNSON V. RYAN
United States v. Quintero, 995 F.3d 1044, 1051–52 (9th Cir.
2021) (similar). No additional process would satisfy the
dissent’s claim that status alone is not sufficient cause for
maximum custody—hence the dissent’s candid
acknowledgment that it wouldn’t matter “if Arizona
reviewed Johnson’s placement monthly or even daily”
Dissenting Op. at 69—because it would not change ADC’s
judgment that STG status is a critical, determinative fact.
See Reno v. Flores, 507 U.S. 292, 301–02 (1993) (stating
that due process “includ[es] a substantive component, which
forbids the government to infringe certain ‘fundamental’
liberty interests at all, no matter what process is provided,
unless the infringement is narrowly tailored to serve a
compelling state interest”); Daniels v. Williams, 474 U.S.
327, 331 (1986) (characterizing certain substantive due
process rights as “bar[ring] certain government actions
regardless of the fairness of the procedures used to
implement them”).
The proposition that gang membership alone threatens
prison security is both outside of our expertise and too well
established for us to consider sua sponte a substantive due
process challenge to ADC’s judgment. Hewitt established
that prison officials’ judgment that an inmate represents a
threat to the safety of the prison may “turn[] largely on
‘purely subjective evaluations and on predictions of future
behavior’” and may be appropriate “even if [the inmate]
himself has committed no misconduct.” 459 U.S. at 474(emphasis added) (quoting Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464 (1981)). In this case, ADC
has made a subjective evaluation for which it is entitled to
significant deference—it determined that an inmate’s STG
membership and failure to debrief represents a continuing
and significant risk to prison safety such that it justifies the
JOHNSON V. RYAN 33
inmate’s confinement to maximum custody. Thus, it is of
no moment that Johnson and the dissent think there are
“other factors bearing on Johnson’s dangerousness [that]
might lead to a different outcome.” Dissenting Op. at 70.
So long as Arizona considers his STG status sufficient to
merit maximum custody, other factors are irrelevant. The
irrelevance of these “other factors” reflects a substantive
judgment about prison conditions and is far from a “typical
procedural due process argument.” Id. Mathews is of no
application to the dissent’s argument here. 8
Johnson’s confinement in maximum security is based on
the well-documented, near existential threat that gangs pose
to prison order. See Wilkinson, 545 U.S. at 227(“Clandestine, organized, fueled by race-based hostility, and
committed to fear and violence as a means of disciplining
their own members and their rivals, gangs seek nothing less
than to control prison life and to extend their power outside
prison walls.”); Fleisher & Decker, supra, at 2–5. In a
lengthy, thorough opinion in Madrid v. Gomez, the district
court for the Northern District of California reviewed
California’s approach to prison gangs and considered the
conditions at Pelican Bay Prison, a modern facility designed
to hold “the worst of the worst.” 889 F. Supp. at 1155.
The court found that “[a]lthough both prison gangs and
8
Separating the strands of the Due Process Clause answers the dissent’s
claim that the district court erred in screening Johnson’s complaint under
28 U.S.C. § 1915A. See Dissenting Op. at 73–79. Johnson has only
brought a procedural challenge to ADC’s STG review process. The
dissent has doubled-down on that argument and denies that Johnson has
brought a substantive due process challenge. Id. at 69–70. Because it
is clear that no change in ADC’s review process would bring about a
change in Johnson’s classification, it was proper for the district court to
screen Johnson’s complaint.
34 JOHNSON V. RYAN
disruptive groups [such as motorcycle and street gangs] pose
threats to prison security, prison gangs are considered the
greater threat.” Id. at 1240. Under California’s policies,
gang members or associates could be placed in segregated
housing for an indefinite term, unless an inmate debriefs.
Id. at 1241. The district court found that although segregated
housing “contains an element of punishment and creates a
deterrent effect,” restrictive “conditions in the SHU serve to
undermine [gang] networks and opportunities by separating
gang members from one another.” Id. at 1275. The court
also found that California “considered [an inmate] to be a
security threat so long as the inmate is validated as a gang
affiliate and has not yet debriefed . . . . even if the inmate
has, for some period of time ‘remained clean.’” Id. at 1278.
It further explained that “[t]he lack of continuing evidence
of gang membership or activity is simply considered
irrelevant since the justification for administration
segregation is the fact of gang membership itself, not any
particular behavior or activity. . . . Therefore, the premise
for finding that the inmate is a security risk—gang
membership or association—is not affected by the lack of
subsequent gang activity.” Id. The court accepted the
state’s explanation and concluded that prison officials “do
not violate due process by failing to give persuasive value to
the fact that an inmate’s record reflects an absence of gang-
related activity or association over some period of time.”
Id. (footnote omitted).
As in Madrid, it is Johnson’s continuing status as a gang
member that is critical to the state’s interest in maintaining
him in maximum security. It is appropriate for ADC to rely
on Johnson’s STG validation status as justification for its
conclusion that he remains a security threat, and ADC is not
required to consider additional evidence such as his criminal
JOHNSON V. RYAN 35
history, propensity for violence, or his immediate past
disciplinary history. If the only evidence in Johnson’s file
was “for specific, serious misbehavior,” then “more formal,
adversary-type procedures might be useful” to avoid the
possibility of administrative error. Wilkinson, 545 U.S. at
228.
Johnson has not alleged any facts that would demonstrate
that ADC’s determination that he is a member of the Warrior
Society is erroneous or that his STG status is being used
pretextually. For instance, Johnson does not allege that the
ADC determination in his case is based on stale information
or is so outdated as to be irrelevant to a current risk analysis.
To the contrary, ADC’s evaluation focuses on information
that remains unchanged: Johnson was properly validated as
a member of the Warrior Society, he has not renounced his
membership and debriefed, and the Society still operates as
a prison gang and has active members in Arizona prisons.
See Ariz. Dep’t of Corr., Certified and Monitored Security
Threat Groups, https://corrections.az.gov/warrior-society-0
(last visited Oct. 24, 2022); but see Dissenting Op. at 74
(“Arizona would still need to show that a years or decades–
old STG validation, coupled with a prisoner’s subsequent
failure to debrief, actually establishes current gang status.”).
Thus, Johnson does not adequately allege that there exists a
risk that ADC has erroneously declared him to be a security
threat—Johnson (like the dissent) simply disagrees with
ADC’s judgment about what criteria are relevant. But
Johnson has not brought a substantive due process claim, and
the Supreme Court has said that periodic reviews may be
based on facts ascertained when initially assigning the
inmate to administrative segregation. See Hewitt, 459 U.S.
at 477 n.9.
36 JOHNSON V. RYAN
Johnson also suggests that ADC’s reliance on his STG
status and failure to debrief does not meet the “some
evidence” standard because these periodic reviews consider
only whether the prisoner “was previously validated” and
“has debriefed.” The “some evidence” standard requires
courts to determine “whether there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 455–56 (1985). This
evidence must have “sufficient indicia of reliability.”
Bruce, 351 F.3d at 1288. Although the age of evidence
could affect its weight, Castro v. Terhune, 712 F.3d 1304,
1315 (9th Cir. 2013), we do not reweigh evidence when
determining whether there is “some evidence” for due
process purposes, Bruce, 351 F.3d at 1287. Johnson does
not challenge his initial validation or otherwise allege that
this evidence is unreliable.
* * *
Our review of the three Mathews prongs shows that
ADC’s annual reviews of Johnson’s STG status are not
constitutionally deficient. ADC is entitled to substantial
deference in its determination that an inmate’s STG
membership and failure to renounce and debrief poses a
continuing security threat. Although Johnson disagrees
with ADC’s judgment, he has failed to plausibly allege how
that judgment creates a risk that he will be erroneously
classified as a security threat. We affirm the district court’s
dismissal of Johnson’s claim under 28 U.S.C. § 1915A for
failure to state a claim.
C. Response to the Dissent
Our dissenting colleague comes to the conclusion that
ADC’s description of its system for dealing with gang
JOHNSON V. RYAN 37
membership is unconstitutional, see Dissenting Op. at 68 (“I
do not believe that the possibility of debriefing suffices to
render Arizona’s otherwise unconstitutional practice
constitutional”), and that additional factfinding is required to
bring Arizona’s program in line with the Constitution, see
Id. at 73–79. In addition to accepting Johnson’s arguments,
the dissent makes two additional points that merit response.
1. Renouncing and debriefing as process
The dissent argues that renouncing and debriefing is not
an effective way out of segregated housing. Id. at 66, 73–
75. The dissent calls debriefing “euphemistic,” “practically
impossible,” “a pseudo remedy,” and a “mirage.” Id. at 66.
Where the ADC regulations specify that a validated STG
member is “[p]ermitted to renounce and debrief at any time,”
DO 806.07.1.1.9, and will then be considered to be a “former
[gang] member,” DO 806 at 25, the dissent dismisses
renouncing and debriefing as “theoretical eligibility” that
may not offer inmates “a plausible path” out of segregated
housing. Dissenting Op. at 76. The dissent’s principal
explanation is a hypothetical that Johnson “may not be able
to successfully debrief even if [he] wished.” Id. at 77. The
dissent explains that under ADC’s regulation, an inmate who
is renouncing and debriefing must “provide additional
information regarding the STG’s structure, activity and
membership that would adversely impact the STG and assist
in management of the STG population.” DO 806.061.1.2.
Even though Johnson has never attempted to renounce and
debrief, the dissent hypothesizes that Johnson will not be
able to satisfy these criteria because “it is not at all clear how
a prisoner who was validated eight years ago and has been
held in solitary confinement ever since could possibly be in
a position to provide any information that would ‘adversely
38 JOHNSON V. RYAN
impact the STG’ or ‘assist’ the prison in ‘management of the
STG population.’” Dissenting Op. at 77.
These claims are not established anywhere in this record
or the record of any other case, but are entirely of the
dissent’s own imagination. Debriefing has been widely
used in prisons in this circuit. See, e.g., Hinojosa v. Davey,
803 F.3d 412, 416–17 (9th Cir. 2015) (describing
California’s debriefing program), rev’d on other grounds,
578 U.S. 412 (2016); Griffin, 741 F.3d at 12 (same), Madrid,
889 F. Supp. at 1240–44 (same); Nev. Dep’t of Corr., AR
446.03(3) (providing for a debriefing process); Wash. Dep’t
of Correc., DOC 470.500(IV) (providing for a debriefing
process); see also Pyrooz, supra, (“Debriefing . . . remains
an established route out of restrictive housing . . . .”). 9 And
the record in one of our cases disclosed that debriefing has
been used with success in the California system. Griffin,
741 F.3d at 12 (noting that “[o]ver a thousand inmates have
been debriefed and released from [security housing units] in
recent decades”); see also U.S. Dep’t of Just., Report and
Recommendations Concerning the Use of Restrictive
Housing 25 (Jan. 2016) (describing the success of the federal
STG Drop-Out Units). Arizona has not told us the recent
history of its debriefing program, but in an academic study
prepared in 2001 for ADC, the authors found that in the time
frame for the study (1997–2001), some fourteen percent of
validated STG members “renounced their gang affiliation
9
Although debriefing remains a well-established off-ramp for STG
members and affiliates—“particularly in prison systems that house large
gang populations”—states have adopted “a broader range of policies and
programs that encourage disengagement . . . including segregation
diversion, gang renouncement, step-down and debriefing.” Pyrooz,
supra (footnote omitted). Arizona has adopted several of these policies
and programs.
JOHNSON V. RYAN 39
and were successfully debriefed by the STG Unit.”
Security Threat Group (STG) Program Evaluation, supra, at
iii.
So long as Johnson refuses to renounce and debrief, the
dissent’s objection is not ripe. We will not make up
objections to the debriefing program in the name of due
process.
2. Protective custody and segregated housing
The dissent claims that renouncing and debriefing is
ineffective as a way out of segregated housing because once
an inmate renounces his gang membership he may be
targeted by the gang and will end up in segregated housing
as a protective measure. Dissenting Op. at 65–66, 75–76.
The dissent objects that even if Johnson renounces and
debriefs, he would be given “the opportunity to trade one
form of solitary confinement for another.” Id. at 76.
The problem the dissent identifies is real and is
sometimes referred to as the “snitching” dilemma. See
Hinojosa, 803 F.3d at 416 & n.3; Griffin, 741 F.3d at 13; see
also Gonzales v. Calif. Dep’t of Corr., 739 F.3d 1226, 1234–
35 (9th Cir. 2014). In the 2001 Arizona study of STGs, the
authors found that “[t]he rate of renouncement . . . [was] low
in part due to the threat of retaliation from members of the
gang, and in part to the lack of a strong incentive to
renounce, i.e., most renounced members remain in a
supermax security unit.” Security Threat Group (STG)
Program Evaluation, supra, at iii. ADC is not blind to the
problem. Its regulations contemplate that an inmate who
has renounced and debriefed will be eligible for lower
custody housing or transfer out of state, but ADC has
acknowledged the reality that some inmates who renounce
their gang membership may have to be placed in protective
40 JOHNSON V. RYAN
custody, voluntarily or involuntarily. DO 806.07.1.5.1,
806.07.1.5.2; Report and Recommendations Concerning the
Use of Restrictive Housing, supra, at 23 (observing that
many inmates in protective custody have requested their
removal from the general population; others are
involuntarily removed).
The dilemma identified by the dissent cannot be avoided.
But protective custody in segregated housing is only
necessary as long as ADC or the inmate believes it is
necessary to guarantee the safety of the inmate. It is not
intended to be punishment for violation of prison rules or to
protect others from the segregated inmate. It is for the
protection of the former gang member and is the direct result
of the inmate’s own unfortunate past associational choices.
The Supreme Court has reminded us that “[t]he safety of the
institution’s guards and inmates is perhaps the most
fundamental responsibility of the prison administration.”
Hewitt, 459 U.S. at 473. Accordingly, “prison officials
have a duty . . . to protect prisoners from violence at the
hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825,
833 (1994) (quotation marks and citation omitted). Prison
officials must strike a careful balance to determine who must
be protected from whom and for how long. See Babcock v.
White, 102 F.3d 267, 268 (7th Cir. 1996) (describing the
“logistical nightmare” prison gangs pose to safely housing
inmates). We will not get into the business of telling state
prison officials how best to protect the inmates they are
charged with keeping safe.
Moreover, the dissent’s ultimate conclusion cannot be
correct. Having decided that renouncing and debriefing as
a way out of segregated housing is illusory and that an
inmate who debriefs will end up in segregated housing
anyway as a protective measure, the dissent concludes that
JOHNSON V. RYAN 41
“Arizona cannot satisfy due process.” Dissenting Op. at 76.
And if the Due Process Clause cannot be satisfied, then the
inmate must be released from maximum custody. Put
another way, in the dissent’s view, if Johnson does not have
a way out of segregated housing, he cannot be placed in
segregated housing at all. The conclusion is contrary to the
judgment of federal and state correctional officials and
inconsistent with the studies showing that segregated
housing is an effective means for controlling the threat of
prison gangs to the safety of correctional officers and
inmates. We cannot find any warrant in the Due Process
Clause for this line of reasoning.
IV. REMOVAL FROM SDP AND DUE PROCESS
We now consider whether the district court erred in
granting summary judgment to Defendants on Johnson’s
claim that his removal from the SDP violated his due process
rights under the Fourteenth Amendment. As we have
explained, inmates have a liberty interest in avoiding
conditions of confinement that “impose[] atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin, 515 U.S. at 484.
Johnson’s argument is more specific—he argues that he not
only has a liberty interest in avoiding the conditions of
maximum custody, but that he has an independent liberty
interest in the SDP such that ADC cannot remove him from
the SDP without providing him with some kind of
explanation and hearing. We will first consider whether
Johnson has alleged a liberty interest in participating in the
SDP. We conclude that he has not, but that he has a liberty
interest in avoiding a change in his custody status that would
return him to maximum custody. We will then discuss
whether ADC has provided the adequate process to Johnson
before depriving him of his liberty.
42 JOHNSON V. RYAN
A. Participating in the SDP as a Liberty Interest
As we discussed in the prior section, a liberty interest
“may arise from the Constitution itself . . . or it may arise
from an expectation or interest created by state laws or
policies.” Wilkinson, 545 U.S. at 221. Not every program
or policy implemented by a state, however, creates a life,
liberty, or property interest protected by the Due Process
Clause itself. See, e.g., Wolff v. McDonnell, 418 U.S. 539,
557 (1974). We are not aware of any principle of
constitutional law that would require Arizona to create a
program such as SDP to permit a prisoner to exit solitary
confinement. Thus, we turn to the doctrine of state-created
liberty interests.
1. The law of state-created liberty interests
The doctrine of state-created liberty interests, which
developed primarily in the prisoners’ rights context, has
evolved parallel to the Supreme Court’s doctrine of state-
created property interests that began in the 1970s. See id. at
557–58. The “new property” revolution began with
Goldberg v. Kelly, in which the Supreme Court
acknowledged that welfare entitlements are “more like
‘property’ than a ‘gratuity’” and concluded that the
withdrawal of such statutory entitlements called for due
process. 397 U.S. 254, 262 n.8 (1970). The Court
developed the doctrine further in Board of Regents of State
Colleges v. Roth, in which it held that property interests
“may take many forms” and “are defined by existing rules or
understandings that stem from an independent source such
as state law.” 408 U.S. 564, 576–77 (1972); see also Perry
v. Sindermann, 408 U.S. 593, 601 (1972). The Court stated
that “[t]o have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for
JOHNSON V. RYAN 43
it. . . . He must, instead, have a legitimate claim of
entitlement to it.” Roth, 408 U.S. at 577. Thus, the
Supreme Court has instructed that a right to due process does
not exist in the absence of some “underlying substantive
interest” that “rises to the level of a legitimate claim of
entitlement.” Town of Castle Rock v. Gonzales, 545 U.S.
748, 757 (2005) (quoting Memphis Light, Gas & Water Div.
v. Craft, 436 U.S. 1, 9 (1978)).
In Wolff v. McDonnell, the Court addressed for the first
time the extent to which incarcerated inmates have state-
created liberty interests. A Nebraska statute awarded
inmates “good-time credits,” which allowed inmates credit
toward early release for good behavior. 418 U.S. at 546 n.6.
Nebraska’s statutory disciplinary scheme allowed for
forfeiture or withholding of such credit only for serious
misconduct. Id. at 546–47. The Court held that nothing in
the U.S. Constitution guaranteed inmates good-time credits,
but once the state of Nebraska created a statutory framework
for such credits, it created a liberty interest for which due
process procedures were required before the inmate could be
deprived of his interest. Id. at 557.
The Court further developed the doctrine in Meachum v.
Fano, which addressed a claim by Massachusetts inmates
that they were entitled to due process protection before being
transferred from the general prison population to a maximum
security institution for administrative reasons. 427 U.S. at216–22. Looking to the nature of the interest at stake, the
Court found that “[c]onfinement in any of the State’s
institutions is within the normal limits or range of
custody . . . . That life in one prison is much more
disagreeable than in another does not in itself signify that a
Fourteenth Amendment liberty interest is implicated when a
prisoner is transferred.” Id. at 225. The Court
44 JOHNSON V. RYAN
acknowledged that Wolff’s approach to state-created liberty
interests was consistent with Roth, Sindermann, Kelly, and
other state-created property interest cases. Id. at 226.
Unlike in Wolff, however, in Meachum, Massachusetts
had not created a right for prisoners to remain in a particular
prison or security level—Massachusetts did not condition
transfer between prisons on the occurrence of specific
events, and instead vested transfer decisions to the discretion
of prison officials. Id. at 226–28. Thus, the Court held that
the inmates did not have a liberty interest in avoiding transfer
to less favorable conditions. Id. at 228–29. The Court
reasoned that recognizing a liberty interest in any change in
prison conditions “would subject to judicial review a wide
spectrum of discretionary actions that traditionally have
been the business of prison administrators rather than of the
federal courts.” Id. at 225.
After Meachum, the Court began to employ a
methodology that required parsing mandatory language in
state statutes and regulations to determine whether the state
had created a liberty interest “by placing substantive
limitations on official discretion.” Olim v. Wakinekona,
461 U.S. 238, 249 (1983), abrogated in part on other
grounds, Sandin v. Conner, 515 U.S. at 472.10 In Sandin
v. Conner, the Court abrogated this methodology in the
10
See, e.g., Ky. Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454,
463–65 (1989) (finding that the absence of “substantive predicates” to
guide discretion counseled against finding a liberty interest in visitation
privileges); Wakinekona, 461 U.S. at 249 (finding that the absence of
substantive limitations on official discretion in transferring prisoners
negated any claim to a state-created liberty interest); Hewitt, 459 U.S. at
472 (finding that “repeated use of explicitly mandatory language in
connection with requiring specific substantive predicates” created a
liberty interest in avoiding administrative segregation).
JOHNSON V. RYAN 45
prison context. 515 U.S. at 483 (“[W]e believe that the
search for a negative implication from mandatory language
in prisoner regulations has strayed from the real concerns
undergirding the liberty protected by the Due Process
Clause.”). Instead, the Court “return[ed] to the due process
principles . . . applied in Wolff and Meachum” that turned on
the “nature of the deprivation.” Id. at 481, 483. After
Sandin, states may create liberty interests, but “these
interests will be generally limited to freedom from restraint
which . . . imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Id. at 484 (citations omitted). The Court ultimately held
that disciplinary segregation was not a dramatic departure
from the ordinary incidents of prison life and therefore did
not implicate a constitutional liberty interest. Id. at 486.
After Sandin, we no longer parse state statutes and
regulations for “mandatory language,” but we look to the
nature of the deprivation to determine if the state has created
some “underlying substantive interest” that rises to the level
of a legitimate claim of entitlement. See Town of Castle
Rock, 545 U.S. at 757.
The Supreme Court has also made clear that, for
purposes of due process analysis, substantive rights—life,
liberty, and property—are distinct from the procedures that
are designed to protect them. See id. at 758–68; id. at 772(Souter, J. concurring) (“[T]he property interest recognized
in our cases has always existed apart from state procedural
protection.”). In Olim v. Wakinekona, the Court held that
an inmate did not have an independent liberty interest in
processes that might protect him from transfer from a prison
in Hawaii to a prison in California. 461 U.S. at 250. The
Court noted that “[p]rocess is not an end in itself. Its
constitutional purpose is to protect a substantive interest to
46 JOHNSON V. RYAN
which the individual has a legitimate claim of entitlement.”
Id. The mere fact that the State had provided procedures
“d[id] not create an independent substantive right” in those
procedures. Id. at 250–51. Similarly, in Cleveland Board
of Education v. Loudermill, the Court found that a state civil
service statute created a property right, the scope of which
was not defined by the procedures described in the statute.
470 U.S. 532, 538–41 (1985). The Court distinguished
between the substantive rights of life, liberty, and property
guaranteed by the Due Process Clause and constitutionally
adequate procedures. It noted, “The categories of substance
and procedure are distinct. Were the rule otherwise, the
[Due Process] Clause would be reduced to a mere tautology.
‘Property’ cannot be defined by the procedures provided for
its deprivation any more than can life or liberty.” Id. at 541.
And, in Town of Castle Rock v. Gonzales, the Court held that
the plaintiff did not have a substantive interest in
enforcement of a restraining-order statute. 545 U.S. at 765–
66. In so holding, the Court rejected the argument that the
plaintiff was entitled to any “precise means of enforcement,”
such as an arrest warrant, that might be used to implement
the statute. Id. at 763. It noted that an entitlement to an
arrest warrant “would be an entitlement to nothing but
procedure—which we have held inadequate even to support
standing, much less can it be the basis for a property
interest.” Id. at 764 (citation omitted).
In sum, although “[a] state-created right can, in some
circumstances, beget yet other rights to procedures essential
to the realization of the parent right,” Dumschat, 452 U.S. at
463, a plaintiff does not have an independent right to those
procedures. See Dist. Att’y’s Off. for Third Jud. Dist. v.
Osborne, 557 U.S. 52, 67–68 (2009) (holding that because a
plaintiff did not have a liberty interest in state executive
JOHNSON V. RYAN 47
clemency, he therefore did not have an interest in “any
procedures available to vindicate an interest in state
clemency”). Only if a party has shown a liberty interest
does the Due Process Clause require procedural protections
before the state may deprive the party of his state-conferred
interest. See Dumschat, 452 U.S. at 463 (“[T]he underlying
right must have come into existence before it can trigger due
process protection.”). In this way, the Court’s consistent
adherence to the distinction between a substantive interest
and procedure is consistent with the two-step analysis for the
Due Process Clause. At the first step, we must be careful
not to confuse procedure with the underlying substantive
interest that gives rise to a legitimate claim of entitlement,
because we will consider the adequacy of those procedures
in protecting that entitlement at the second step.
Johnson argues that he has an independent liberty
interest in remaining in the SDP under two theories:
completion of the SDP is one way for him to secure good-
time credits and parole eligibility, and completion of the
SDP allows him to return to close custody and avoid the
harsh conditions of maximum custody. We will address
each theory separately.
2. Liberty interests and continued participation in the
SDP
We disagree that ADC has created a liberty interest in
Johnson’s participation in the SDP. Completion of the SDP
may be a means for acquiring eligibility for good-time
credits, parole, and avoiding maximum security, but that
does not establish an independent liberty interest in mere
participation in the SDP. The SDP is one of several
programs that ADC has provided Johnson to permit him to
change his confinement status, including renouncing his
48 JOHNSON V. RYAN
STG membership and debriefing, which he may do at any
time. But the mere fact that ADC has provided Johnson
with these programs does not create a liberty interest in
them—the SDP “is not an end in itself.” Wakinekona, 461
U.S. at 250. The SDP is no different than the procedures
protecting an inmate from transfer in Wakinekona, the post-
discharge review in Loudermill, or the arrest warrant in
Town of Castle Rock. That is, the SDP is a process by
which Johnson can leave maximum custody and regain
eligibility for good-time credit and parole. It is not itself a
liberty interest, but only one means by which Johnson can
prove that he is prepared to return to the general prison
population.
Johnson’s loss of eligibility for good-time credits and
parole is a consequence of his STG status, not a direct
consequence of his failure to complete the SDP. See DO
806.07.1.1. That those benefits may be restored to a
prisoner who reaches Phase V of the SDP or who completes
other methods, such as debriefing, does not create a liberty
interest in participating in the program at all. Johnson’s
participation in the SDP is the functional equivalent of an
application for reassignment and restoration of eligibility for
good-time credits and parole. The Court, however, has
“never held that applicants for benefits, as distinct from
those already receiving them, have a legitimate claim of
entitlement protected by the Due Process Clause.” Lyng v.
Payne, 476 U.S. 926, 942 (1986) (citing Walters v. Nat’l
Ass’n of Radiation Survivors, 473 U.S. 305, 320 n.8 (1985));
see Harisiades v. Shaughnessy, 342 U.S. 580, 584–85 (1952)
(rejecting the argument that “admission for permanent
residence confers a ‘vested right’ on the alien”). Similarly,
his placement in maximum custody results from his STG
status, not the SDP.
JOHNSON V. RYAN 49
Removal from the SDP does not itself constitute an
“atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life,” for two reasons.
See Sandin, 515 U.S. at 484. First, removal from the SDP
during Phases I–III does not result in any significant change
in an inmate’s conditions of confinement. Phases I–III all
take place in the Browning Unit, where STG validated
inmates are housed. So underlying conditions of
confinement are the same throughout these phases. Second,
inmates in the general population and in other forms of
administrative segregation do not have access to the SDP.
The inmate removed from SDP has only lost access to one
of several procedures by which he might change his
conditions of confinement, and that alone is insufficient to
create a liberty interest independent of any underlying
change to Johnson’s conditions. Our understanding is
consistent with Sandin’s instruction that state-created liberty
interests in the prison context are “generally limited to
freedom from restraint.” Id.Our dissenting colleague disagrees. The dissent
catalogues changes in an inmate’s living conditions as he
moves from Phase I to Phase III and concludes that
“participation in any stage of the SDP . . . entails
significantly more freedom from restraint and social
exposure than ordinary placement in maximum custody.”
Dissenting Op. at 83. In addition, the Dissent argues that
Johnson’s underlying housing assignment is merely
“collateral” to the SDP. Id. at 86.
We are not persuaded. As we noted supra, following
Sandin and Wilkinson, only a change in placement that
works an “atypical and significant hardship” creates a liberty
interest protected by the Due Process Clause. Wilkinson,
545 U.S. at 224; Sandin, 515 U.S. at 484. In Wilkinson, the
50 JOHNSON V. RYAN
Supreme Court observed that “[i]n Sandin’s wake the
Courts of Appeals have not reached consistent conclusions
for identifying the baseline from which to measure what is
atypical and significant in any particular prison system.” 545
U.S. at 223; see Aref v. Lynch, 833 F.3d 242, 253–56 (D.C.
Cir. 2016) (surveying the cases). In Ramirez v. Galaza,
however, we addressed what kinds of circumstances count
as “atypical and significant.” 334 F.3d 850 (9th Cir. 2003).
Acknowledging that “[t]here is no single standard,” we said
that the inquiry should be guided by three considerations:
1) whether the challenged condition
“mirrored those conditions imposed upon
inmates in administrative segregation and
protective custody,” and thus comported with
the prison’s discretionary authority; 2) the
duration of the condition, and the degree of
restraint imposed; and 3) whether the state’s
action will invariably affect the duration of
the prisoner’s sentence.
Id. at 861 (quoting Sandin, 515 U.S. at 486–87); see also
Aref, 833 F.3d at 255 (adopting similar criteria). Not every
transfer accompanied by marginally harsher conditions
creates a liberty interest. As the Court said in Hewitt,
“transfer of an inmate to less amenable and more restrictive
quarters for non-punitive reasons is well within the terms of
confinement ordinarily contemplated by a prison sentence.”
459 U.S. at 468. And in Meachum, the Court held that no
liberty interest was implicated by a transfer that “place[d] the
prisoner in substantially more burdensome conditions”
because such transfers may be made on the basis of
“informed predictions as to what would best serve
institutional security or the safety and welfare of the inmate.”
427 U.S. at 215, 225.
JOHNSON V. RYAN 51
We have had few occasions to apply the guideposts we
set forth in Ramirez, and the cases we have decided are not
particularly helpful here.11 Nothing, however, in our cases
would suggest that denying an inmate a two-person
recreation period, favorable job assignments, unrestrained
meals, unrestrained walks and access to the showers and
recreation areas, or access to a GED program rises to the
level of an “atypical or significant hardship.” See
Dissenting Op. at 83–84. It is true that these changes to
Johnson’s circumstances in Phases II and III of the SDP are
perquisites of the program, put in place by Arizona to
encourage inmates to continue participating in the
SDP. These benefits may not feel trivial to an inmate who
has been isolated and experienced only limited social
contact. But they do not represent a beyond-standard
deviation from the ordinary circumstances of prison life.
See Sandin, 515 U.S. at 484.
In these initial phases, Johnson remains in maximum
custody. Thus, there has been no material change in the
underlying condition of his confinement. Depriving an
inmate like Johnson of these incidental, fleeting benefits
does not introduce an “atypical and significant hardship” that
would trigger a liberty interest. Id. If, as the dissent would
hold, any incidental deprivation counts under Sandin, then
we would have to “subject to judicial review a wide
spectrum of discretionary actions that traditionally have
been the business of prison administrators rather than of the
federal courts.” Meachum, 427 U.S. at 225. We decline to
11
See, e.g., Serrano v. Francis, 345 F.3d 1071, 1078–79 (9th Cir. 2003)
(holding an inmate denied the use of his wheelchair in a Special Housing
Unit that was not designed to be handicapped accessible gave rise to a
protected liberty interest).
52 JOHNSON V. RYAN
follow the dissent down that road. We thus disagree with
the dissent that removing an inmate from “any prior phase”
implicates a liberty interest under the Due Process Clause.
Dissenting Op. at 84.12
3. Liberty interests and avoiding a return to maximum
custody
Although we conclude that Johnson has no liberty
interest created by the SDP, we think that Johnson has
adequately stated a liberty interest in avoiding a return to
maximum custody from close custody. Once Johnson
attained Phase IV, he was moved from maximum custody in
the Browning Unit to a close custody facility—and that
12
We will not get ourselves in the business of second-guessing every
decision that ADC officials must make to determine whether an inmate
may advance to another phase or remain in the SDP program. See
Sandin, 515 U.S. at 482–83 (noting that an “undesirable effect[]” of
Hewitt was “the involvement of federal courts in the day-to-day
management of prisons” and cautioning against the broad establishment
of liberty interests). Only if an inmate successfully completes Phases I–
IV will the inmate advance to Phase V, “an indefinite period of
monitoring.” DO 806.10.1.7. At all stages, the SDP process is fraught
with discretionary judgment calls by ADC officials. For example, to
complete Phases I–III at the Browning Unit, an inmate must “[n]ot
participate in any activity that could adversely affect the safety of staff,
inmates and the general public”; “[c]omplete all positive programming”;
and “refrain from disciplinary behavior.” DO 806.09.1.1. These
criteria invoke nearly every norm that prison officials hope to encourage
in the prison setting. Those criteria continue to apply to Phases IV and
V, which take place at a close custody facility. See id. 806.11.1. Any
violation of these criteria may result in the inmate being removed from
the program or returned to repeat any phase. }plain Id. 806.11.1.2, .6.
At Phase V, the decision to terminate an inmate’s participation or return
an inmate to a previous phase rests with the STG Validation Hearing
Committee, which has “full discretion based on the severity of the
violation.” Id. 806.11.1.6.
JOHNSON V. RYAN 53
move constituted a material change in his living conditions.
His expulsion from Phase IV of the SDP meant that he was
removed from close custody and returned to maximum
custody. Johnson’s liberty interest in avoiding maximum
custody is clearly established: “After Sandin, it is clear that
the touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding restrictive
conditions of confinement is . . . the nature of those
conditions themselves ‘in relation to the ordinary incidents
of prison life.’” Wilkinson, 545 U.S. at 223 (quoting
Sandin, 515 U.S. at 484).13
In considering whether conditions of confinement
impose an “atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life,” Sandin,
515 U.S. at 484, we may consider “whether the challenged
condition mirrored those conditions imposed on inmates in
administrative segregation and protective custody”; “the
duration of the condition, and degree of restraint imposed”;
and “whether the state’s action will invariably affect the
duration of the prisoner’s sentence.” Brown, 751 F.3d at
987 (quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.
2003)). In Brown, we held that an inmate had a liberty
interest in avoiding confinement in an “Intensive
Management Unit” because inmates in the unit were held in
13
Our disagreement with the dissent regarding the SDP is limited: we
agree that Johnson has a liberty interest in avoiding a return to maximum
custody. See Dissenting Op. at 82–83. The dissent argues that “at the
very least” Johnson should also have a liberty interest in Phases II and
III because they “entail significantly more freedom from restraint and
social exposure.” Id. at 83. But as we explain, Sandin requires us to
compare the SDP’s perquisites to “ordinary incidents of prison life,” 545
U.S. at 223, not simply whether those perquisites involve any change in
the kinds of restraint imposed.
54 JOHNSON V. RYAN
solitary confinement for over twenty-three hours a day, with
limited exceptions for recreation and non-contact visits, and
inmates were confined for minimum periods of twenty-
seven months without meaningful annual review. Id. at
985, 988. In Wilkinson, the Supreme Court held that similar
conditions, coupled with a loss of parole consideration,
constituted an atypical and significant hardship that gave
prisoners a liberty interest in avoiding assignment to Ohio’s
Supermax facility. 545 U.S. at 223–24.
The facts of this case parallel Brown and Wilkinson.
Johnson’s declaration states that, in maximum custody, he is
confined to his cell twenty-four hours per day and is strip
searched and handcuffed when he leaves his cell. DO 812
permits inmates a maximum of three phone calls per week,
three non-contact visits per week, and three three-hour
recreation opportunities per week. Per Arizona regulations,
maximum-custody inmates require single-cell housing, are
escorted in full restraints any time they move within the
institution, are frequently monitored, and have only limited
work opportunities within the secure perimeter. DO
801.01.12.4. These conditions are similar to those
described in Brown and Wilkinson. See Wilkinson, 545 U.S.
at 214 (Supermax inmates are permitted one hour of
recreation per day and rare opportunities for non-contact
visitation); Brown, 751 F.3d at 985 (segregated inmates are
permitted thirty minutes of recreation per day and two non-
contact visits per month).
By contrast, inmates in close custody have significantly
greater freedom than those in maximum custody. Close-
custody inmates live at different facilities from maximum-
security inmates and enjoy reduced security protocols. See
generally Ariz. Dep’t of Corr., Dep’t Order Manual, Dep’t
Order 801 [hereinafter DO 801] at 2. Close-custody
JOHNSON V. RYAN 55
inmates are permitted double-cell housing, have greater
freedom to work, and can move inside the institution without
full restraints. DO 801.01.1.2.3. And although close-
custody SDP participants remain separate from other
inmates during meal and recreation times, DO 806.10.1.3.3,
1.4.2–.3, they are exempt from the Browning Unit’s
mandatory education programs. At Phase IV of the SDP,
inmates can reintegrate with a close-custody general
population unit, DO 806.09.1.2, just as Johnson transferred
to the ASPC-Florence Central Unit, a close custody unit, to
begin Phase IV.
Thus, it is not Johnson’s removal from the SDP per se
that creates an atypical and significant hardship, but the
change in Johnson’s underlying conditions of confinement
when he was moved from close custody and returned to the
Browning Unit. See Wolff, 418 U.S. at 571 n.19 (noting that
the “imposition of ‘solitary’ confinement” requires
procedural protection because it “represents a major change
in the conditions of confinement”). We conclude that
Johnson’s return to maximum security from close custody
implicates a liberty interest under the Due Process Clause.
We so conclude even though the SDP only contemplates a
four-week duration for Phase IV. DO 806.10.1.2. Our
holding is limited to Johnson’s removal from Phase IV of the
SDP and consequent return to maximum custody
confinement.
B. Removing Johnson from SDP and Sufficiency of
Process
Because we find that Johnson has alleged a liberty
interest in avoiding the conditions of maximum custody, we
must determine whether the procedures he was provided
when he was moved from the Florence Central Unit to the
56 JOHNSON V. RYAN
Browning Unit in April 2018 were constitutionally adequate.
We proceed with the Mathews analysis.
As we noted above, in the prison context, the first and
third Mathews factors—Johnson’s interests and ADC’s
interests—weigh heavily in favor of ADC. Because this
case involves the assignment of an inmate to maximum
custody based on his membership in a prison gang,
Johnson’s private interest is limited, and ADC has a strong
interest in mitigating the threat of STGs to prison security.
Compare Wilkinson, 545 U.S. at 225 (“The [inmate’s]
private interest at stake here, while more than minimal, must
be evaluated, nonetheless, within the context of the prison
system and its attendant curtailment of liberties.”), with id.
at 227 (“In the context of prison management, . . . [the
state’s] interest is a dominant consideration.”). Although
we must afford ADC great deference in its prison
management decisions, that deference is not unlimited.
Under the second Mathews factor, we consider the risk
that under its procedures, ADC will erroneously reassign
Johnson to maximum security. We may also consider “the
probable value, if any, of additional or alternative procedural
safeguards.” Id. at 225 (quoting Mathews, 424 U.S. at 335).
The district court held that Johnson’s liberty interest was
adequately protected by ADC’s annual reviews of his
confinement in addition to his ability to renounce and debrief
at any time. Although annual reviews and the opportunity
to renounce and debrief might be adequate to protect an
inmate’s liberty interest in avoiding retention in solitary
confinement, we conclude that they are insufficient for
protecting a liberty interest in avoiding reassignment to such
conditions. See Toussaint III, 801 F.2d at 1098–1101
(analyzing separately the adequacy of procedures for
placement and retention in solitary confinement).
JOHNSON V. RYAN 57
The Supreme Court’s “procedural due process cases
have consistently observed that [notice of the factual basis
for a decision and a fair opportunity for rebuttal] are among
the most important procedural mechanisms for purposes of
avoiding erroneous deprivations.” Wilkinson, 545 U.S. at
226. Under the SDP policy, an inmate removed from Phase
IV—which will result in the inmate’s transfer from close
custody to maximum custody—is entitled to a hearing
including ten days’ notice “to enable the inmate time to
prepare a defense,” written notice of the decision, and a right
of appeal. DO 806.11.1.4–.10. The SDP policy does not
provide for a hearing for inmates removed from the SDP at
Phases I–IV, but ADC has said that inmates may challenge
their removal through the ordinary grievance procedure.14
Before Johnson was transferred back to the Browning
Unit, he was given notice of and attended a hearing on his
maximum custody placement.15 However, the notice only
states that Johnson was being returned “as an active
validated security threat group inmate.” Nothing in that
notice would have apprised Johnson of the reason for his
14
The SDP removal policy, DO 806.11, was amended in 2018 and the
amended regulation applied to Johnson. Prior to 2017, the SDP
provided that “[a]ll recommendations for the removal of an inmate from
the Step-Down Program” were subject to the notice, written
recommendation, and appeal. DO 806.11.1.1 (July 12, 2017 version).
15
Johnson filed a statement on April 25, 2018, in connection with his
hearing in which he complained of his reclassification. There is
additional detail in his statement, but we cannot read the copies provided
by either Johnson or ADC. We are thus unable to discern how much
Johnson knew about the nature of the hearing and the grounds for ADC
deciding to return him to maximum custody. On remand, consistent
with the explanation that follows, the district court may wish to explore
this issue further.
58 JOHNSON V. RYAN
reassignment. Johnson had been a validated STG member
since 2014; thus, the notice did not propose a change in his
status, only a continuation of his status.
Johnson filed grievances indicating that he was never
told why he was being moved back to the Browning Unit
other than that his SDP status was revoked and he had been
determined to be an “active validated [STG] inmate.”
Deputy Warden Days denied Johnson’s formal grievance on
June 1, 2018. Days acknowledged that Johnson had asked
for a revocation hearing. For the first time, Johnson learned
that he had been removed from close custody because he had
violated “one or several of the criteria” in DO 806.08 and
806.09 for remaining in the SDP. Days stated, “No
revocation hearing is needed for inmates removed from
phases I through IV.” Johnson appealed and again
complained of the lack of process he received:
I was . . . led to believe that I would need a
court order to see what is being used against
me to have me transferred back to maximum
security. (I was perfectly clear in my I/M
grievance that I haven’t been told why I was
rolled up from central unit). . . . I don’t have
an administrative appeal process available to
me to dispute, rebut, and/or appeal this
arbitrary decision that (puts me) a level away
from being kept (in maximum security
indefinitely for a non-disciplinary reason.)
(spelling and punctuation in original). His grievance appeal
was denied, and he was told only that “[y]our removal from
the STG Step Down Program was done in accordance with
Department Policy.”
JOHNSON V. RYAN 59
Johnson’s notice of appeal from the hearing decision,
filed on June 17, 2018, tells a similar story. He complained
that he “was given no information other than box 5 being
checked on [the notice of hearing] and a statement saying I
am being returned to Browning as ‘an active validated [STG]
inmate.’” He further stated that he learned after the hearing
that he was accused of violating several criteria in DO 806:
I have learned that Central Unit’s deputy
warden removed me arbitrarily from the STG
Step-Down Program (SDP) due to violating 1
or several criteria’s outlined in Dept. Order
806. . . . Prison officials are refusing to tell
me how many incident(s) I have allegedly
violated and what are the substance of those
alleged incident[s]. . . . I am not being given
a revocation hearing to view, to dispute, to
rebut, or to appeal these alleged incident(s) of
violations.
His appeal was denied on July 24, 2018. In the denial,
Crabtree advised him in the most general terms that the
factual basis for his return to maximum custody was “your
recent [STG] documented activity found in your belongings
during a search by SSU officers on April 13, 2018.” This
bare-bones explanation came three months after Johnson’s
hearing.
In light of this record, the procedure that it appears
Johnson was given was not adequate to satisfy the Due
Process Clause. Johnson was not given a meaningful
opportunity to learn of the factual basis for his transfer from
close custody to maximum custody or to prepare a defense
to the accusations. Johnson may or may not have violated
the criteria for remaining in close custody, but the prison
60 JOHNSON V. RYAN
officials making that decision should make informed
decisions—and the record available to us does not specify
whether Johnson was made aware of the allegations against
him. Without notice of the evidence against him, Johnson
could not meaningfully respond and his hearing could not
constitute an informed one. See Hewitt, 459 U.S. at 476(holding that an inmate being considered for transfer to
administrative segregation is entitled to “some notice of the
charges against him and an opportunity to present his views
to the prison official charged with deciding whether to
transfer him to administrative segregation”); cf. Melnik v.
Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021) (holding, in the
context of a prison disciplinary hearing, that a prisoner had
a due process right to access evidence to be used against
him). We have some frustration with the quality of the
copies in the excerpts of record that deal with Johnson’s
complaints concerning his hearing. From the evidence
before us, Johnson was not given an adequate hearing before
he was reassigned to maximum custody. At the very least,
the district court should not have granted summary judgment
to Defendants.
The district court addressed the individual liability of
Ryan, Crabtree, Days, and Montano based on their authority
for implementing the SDP, rather than their individual
responsibility for denying Johnson notice of the factual basis
for his change in conditions and an opportunity to present a
rebuttal. On remand, the district court should decide in the
first instance whether each defendant is individually liable
for the constitutional deprivation as described in this
opinion.
JOHNSON V. RYAN 61
* * *
In sum, the district court was correct in finding that
Johnson does not have an independent liberty interest in
participation in the SDP process, but it erred in concluding
that Johnson’s liberty interest in avoiding reassignment to
the restrictive conditions of the Browning Unit was
adequately protected by the procedures he was provided
when he was moved from close custody to maximum
custody in April 2018. We also conclude that Johnson was
likely denied due process in the procedures that resulted in
his return to maximum custody. We reverse the district
court’s grant of summary judgment for Defendants on
Johnson’s Fourteenth Amendment due process claim and
remand for further proceedings.
V. JOHNSON’S FIRST AMENDMENT RETALIATION
CLAIMS
Johnson alleges that he was removed from the SDP and
returned to maximum custody because of his lawsuits
against various ADC defendants. The district court granted
summary judgment to Defendants, finding that the record
did not support Johnson’s assertions that his lawsuits were a
substantial or motivating factor behind his removal.
“The most fundamental of the constitutional protections
that prisoners retain are the First Amendment rights to file
prison grievances and to pursue civil rights litigation in the
courts.” Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir.
2017) (footnotes omitted). “[B]ecause purely retaliatory
actions taken against a prisoner for having exercised those
rights necessarily undermine those protections, such actions
violate the Constitution quite apart from any underlying
misconduct they are designed to shield.” Rhodes v.
Robinson, 408 F.3d 559, 567 (9th Cir. 2005). We have said
62 JOHNSON V. RYAN
that a First Amendment claim in this context has five
elements: (1) adverse action by a state actor against the
inmate (2) because of (3) that prisoner’s protected conduct,
and the action (4) chilled the inmate’s exercise of his First
Amendment rights and (5) did not reasonably advance a
legitimate correctional goal. Chavez v. Robinson, 12 F.4th
978, 1001 (9th Cir. 2021).
The parties agree that Johnson’s removal from the SDP
and transfer to maximum custody was an adverse action, that
his lawsuits were protected First Amendment conduct, and
that the adverse action chilled his exercise of such conduct.
For purposes of summary judgment, a factual issue is
genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Ochoa v. City of
Mesa, 26 F.4th 1050, 1055 (9th Cir. 2022) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The parties disagree on the existence of a dispute of material
fact regarding whether Johnson’s removal was in retaliation
for his First Amendment activity and whether removal
advanced a legitimate penological goal.
A. Retaliatory Motive
To establish a retaliatory motive, an inmate “must show
that his protected conduct was the substantial or motivating
factor behind the defendant’s conduct.” Brodheim v. Cry,
584 F.3d 1262, 1271 (9th Cir. 2009) (quotations omitted)
(quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310,
1314 (9th Cir. 1989)). In Bruce v. Ylst, we held that an
inmate presented a genuine dispute of material fact with
respect to a retaliatory motive when he was validated as a
gang member shortly after the success of his prison
grievances, stale evidence was used against him for
validation, and he offered a declaration alleging that a
JOHNSON V. RYAN 63
corrections officer told him that “higher-ups” instructed the
officer to validate him because of his “complaints and
protests.” 351 F.3d at 1288–89.
In this case, Johnson had a pending appeal before us
when he was removed from the SDP and transferred back to
the Browning Unit. See Johnson v. Bendel, 745 F. App’x
750, 751 (9th Cir. 2018). His declaration also described an
encounter with Belt—the author of the memorandum that
provided the basis for Johnson’s removal from the SDP—in
which Belt told Johnson that “higher-ups” wanted Johnson
off the yard and that “jailhouse lawyers” were not welcome
in Belt’s unit. Defendants characterize these facts as
speculative, but we must view this evidence in the light most
favorable to Johnson. See Transgender L. Ctr., 33 F.4th at
1193. These facts, if true, would allow a reasonable jury to
return a verdict in Johnson’s favor, so Johnson has raised a
genuine dispute of material fact. See Bruce, 351 F.3d at
1289.
B. Reasonable Advancement of a Legitimate
Correctional Goal
Johnson bears the burden of proving the absence of a
legitimate correctional goal for the adverse action. See
Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).
Defendants argue that Johnson’s removal advanced the
legitimate correctional goal of curtailing prison gang activity
and that Johnson’s removal was supported by the evidence
described in the Belt memorandum. In Bruce, we
acknowledged that prisons have a legitimate interest in
stopping prison gang activity, but held that this general
justification was insufficient to show reasonable
advancement of a legitimate correctional goal on summary
judgment. 351 F.3d at 1289. We noted that, in light of the
64 JOHNSON V. RYAN
genuine dispute of material fact as to whether the action was
taken with retaliatory motive, the defendants could not
“assert that Bruce’s validation served a valid penological
purpose, even though he may have arguably ended up where
he belonged.” Id. (emphasis in original).
As in Bruce, even if Johnson “arguably ended up where
he belonged,” the presence of a genuine dispute of material
fact with respect to a retaliatory motive means that
Defendants’ general justification for the action is not
sufficient to defeat summary judgment. Id. (emphasis
omitted). Put differently, if Belt and Montano used
procedures outlined in ADC’s policies to remove Johnson
from the SDP and transfer him back to the Browning Unit in
order to punish Johnson for his lawsuits, their use of these
procedures was pretextual and not a reasonable
advancement of the legitimate penological goal of stopping
prison gang activity. Johnson contests whether the
documents described in the Belt memorandum are actually
STG-specific. He provided alternative characterizations of
the documents in question and evidence of SSU officers
seizing materials that they had mistaken for STG material.
Viewing this evidence in the light most favorable to
Johnson, we find that there is a genuine dispute of material
fact with respect to whether Johnson’s removal from the
SDP and return to the Browning Unit reasonably advanced a
legitimate penological purpose.
* * *
We reverse the district court’s grant of summary
judgment to Defendants on Johnson’s First Amendment
retaliation claim and remand for further proceedings.
JOHNSON V. RYAN 65
VI. CONCLUSION
We affirm the district court’s screening and dismissal of
Johnson’s Fourteenth Amendment due process claim
regarding the adequacy of ADC’s annual review process.
We reverse the district court’s grant of summary judgment
for Defendants on Johnson’s Fourteenth Amendment due
process claim, holding that Johnson had a liberty interest in
avoiding reassignment to maximum security and that there
is a genuine dispute of material fact with respect to whether
he was afforded constitutionally adequate process. Finally,
we reverse the district court’s grant of summary judgment
on Johnson’s First Amendment retaliation claim. We
remand this case to the district court for further proceedings
consistent with this opinion.
AFFIRMED in part, REVERSED and REMANDED
in part.
RAKOFF, District Judge, concurring in part and dissenting
in part:
Since 2014, Richard Johnson has been held in highly
restrictive conditions approximating solitary confinement
because Arizona at that time “validated” him as a member of
a prison gang or Security Threat Group (“STG”). Although
there is no basis to believe that Johnson has been involved in
any STG activity since then -- indeed, the restrictive nature
of his confinement virtually precludes such involvement --
Arizona, Johnson alleges, provides no reasonable way he can
demonstrate he is not a threat to prison security and exit
solitary confinement. It thus violates his constitutional
66 JOHNSON V. RYAN
liberty rights. Specifically, Johnson alleges that Arizona
offers validated STG members no viable way out of these
extremely restrictive conditions short of what is
euphemistically termed “debriefing.” But “debriefing”
consists not only of renouncing gang membership, but also
informing on other gang members, which is practically
impossible for someone who has had no access to other gang
members for eight years. In short, it is a pseudo remedy.
Moreover, Johnson alleges, since meaningful “debriefing” is
premised on being an informant, the fact that Johnson would
then be regarded as a “snitch” (even if he weren’t) would
mean that he would face potentially deadly threats to his
safety that could only be protected against by putting him
back in solitary confinement or its equivalent. In short, while
Arizona provides the mirage that a once validated member
of an STG can later escape solitary confinement, the reality
is that he will be kept there for the entire duration of his
sentence. Believing that this is unconstitutional, as well as
contrary to past holdings of this Court, I dissent from the
majority’s analysis in Part III.A of its opinion and would
instead reverse the district court’s dismissal on the pleadings
of Count III of Johnson’s complaint. And while I concur in
Part III.B of the majority’s opinion, which reverses and
remands the district court’s entry of summary judgment
against Johnson on his claim that his removal from the Step
Down Program (“SDP”) violated due process, I write
separately to emphasize that his claim is validly broader than
the majority contends. Finally, however, I do concur fully in
Part III.C of the majority opinion with respect to Johnson’s
retaliation claim.
JOHNSON V. RYAN 67
I. Whether Arizona may confine prisoners in
maximum custody based solely on prior STG
status and the failure to debrief.
A. The Alleged Deficiencies in Arizona’s Process
In Count III of his complaint, Johnson alleges that
Arizona has denied him due process by continuing to confine
him in “maximum security solitary confinement” 1 since
2014 based on his “validation” at that time as an STG
member. First Amended Complaint (“FAC”) ¶¶ 33–42. He
likewise alleges that the only way for him to ever leave
maximum custody is by participating in the SDP -- a limited-
eligibility program (described further below) that Arizona
maintains it need not allow prisoners to participate in even if
they are eligible -- or by “debriefing.” FAC ¶¶ 3, 39-42. As
to the latter, while Arizona conducts a yearly hearing to
review Johnson’s maximum security placement, hearing
officials have no discretion but to continue that placement so
long as Johnson has not debriefed. FAC ¶ 37.
I agree with the majority that Johnson has adequately
alleged a liberty interest in avoiding his extremely restrictive
conditions of confinement. Opinion at 18-20. I likewise
agree with the majority that Arizona, in order to deprive
Johnson of this liberty interest, must make some judgment
that Johnson remains a threat to prison safety. Opinion at 32.
But I disagree that Johnson “has failed to plausibly allege
1
As explained in the majority opinion, Arizona confines prisoners in
maximum custody to their cells for 24 hours per day outside a small
number of weekly recreation or visitation blocks or phone calls, before
which prisoners are strip searched and handcuffed behind their backs.
Opinion at 8-9. Prisoners in maximum custody are also denied eligibility
for various earned time credits that could result in reductions to their
custodial terms.
68 JOHNSON V. RYAN
how that judgment creates a risk that he will be erroneously
classified as a security threat.” Opinion at 34-35. This is so
for two reasons.
First, and very simply, we have previously held that the
risk that a prisoner will be wrongly confined in solitary
confinement or similarly restrictive conditions requires
review of that placement more than once per year. Toussaint
v. McCarthy (Toussaint III), 801 F.2d 1080, 1101 (9th Cir.
1986) (“We do not believe that annual review sufficiently
protects plaintiffs’ liberty interest.”). See also Toussaint v.
McCarthy, 926 F.2d 800, 803 (9th Cir. 1990) (“Toussaint
V”) (holding that review every 120 days satisfied due
process). Here, Johnson alleges that Arizona reviews his
placement in what he calls solitary confinement only once
per year. FAC ¶ 37. The majority describes our conclusion
in the Toussaint litigation -- that prisons must review
prisoners’ placement in extremely restrictive custodial
conditions such as Johnson’s more than once a year, but that
review every 120 days is sufficient -- as “bare ipse dixit.”
Opinion at 27. But this sensible balancing of the benefits and
costs of additional process is precisely the balancing
required under the Supreme Court’s familiar framework for
evaluating procedural due process claims. See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976).
The majority nonetheless acknowledges that Toussaint
III is good law and that, under it, Arizona’s annual review
process would deny Johnson due process except (the
majority contends) for the fact that Johnson could
supposedly exit maximum security by “renounc[ing] his
gang status and debrief[ing] at any time.” Opinion at 27. For
the reasons described below, I do not believe that the
possibility of debriefing suffices to render Arizona’s
otherwise unconstitutional practice constitutional, and
JOHNSON V. RYAN 69
especially not at the pleading stage, where Johnson’s
plausible allegations regarding the limitations of the
debriefing process must be taken as true.
Second, and relatedly, it would not in any case matter if
Arizona reviewed Johnson’s placement monthly or even
daily, because Johnson plausibly alleges that Arizona’s
current review process offers him and prisoners like him no
effective way out of maximum custody even if they no
longer pose any threat to prison security. FAC ¶¶ 37-39.
Specifically, Johnson, who is proceeding pro se, alleges that
he “doesn’t receive a meaningful reviewment [sic] of his
yearly reclass as an STG inmate” because the annual
reviews, while appearing “[a]t face value . . . [to provide]
some due process,” in fact provide no real process of any
kind because the outcome is predetermined: Arizona will
“keep [Johnson] in maximum security solitary confinement
simply because [Johnson] is an STG inmate who hasn’t
debriefed.” FAC ¶ 37. Arizona’s “classification and
subsequent reassignment reviews are based solely on
Plaintiff’s alleged gang affiliation, without regard to his
criminal history, propensity for violence, or disciplinary
record. . . .” Id. Johnson alleges that Arizona’s “conditioning
release from STG status on debriefing” leads to a lack of any
“meaningful opportunit[y]” to contest his placement. FAC ¶
39. In my view, these allegations require at the very least that
Johnson be given the opportunity to proceed to discovery so
that he can test whether Arizona in fact makes his release
from solitary confinement solely conditional on his engaging
in debriefing, and, if so, whether there exist other
alternatives sufficient to Arizona’s legitimate security
interests.
In this regard, the majority argues, bewilderingly, that
“[t]his is not a Mathews v. Eldridge challenge to Arizona’s
70 JOHNSON V. RYAN
procedures” and instead “sounds in substantive due
process.” Opinion at 31. But Johnson’s claim is that
Arizona’s categorical refusal to consider any evidence other
than two facts -- a near-decade old STG validation, and
Johnson’s subsequent failure to debrief -- results in an
unreasonably high probability that Johnson will be
wrongfully deprived of his acknowledged liberty interest in
avoiding the conditions of maximum custody. He contends
that other procedures -- namely, procedures allowing
consideration of other factors bearing on Johnson’s
dangerousness -- might lead to a different outcome. It is hard
to imagine a more typical procedural due process argument.
See, e.g., Mathews, 424 U.S. at 333-34 (discussing, as part
of the Court’s evaluation of the probable value of additional
procedure, the types of evidence that would be relevant to a
given type of determination, and what procedures would be
necessary to enable consideration of the relevant evidence);
Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir.
2000) (discussing, as an element of procedural due process,
the requirement that a decisionmaker consider relevant
evidence).
Indeed, it is the majority that abandons the familiar
Mathews balancing framework in favor of categorical
presumptions favoring one party. It insists that Arizona’s
“subjective evaluation . . . that an inmate’s STG membership
and failure to debrief represents a continuing and significant
risk to prison safety such that it justifies the inmate’s
confinement to maximum custody” must be accorded
“significant deference.” Opinion at 32-33. But the majority
in fact affords that “subjective” determination dispositive
weight, allowing Arizona’s mere assertion of it -- at the
pleading stage, no less -- to trump any and all other
considerations, including the likelihood that considering
JOHNSON V. RYAN 71
additional evidence might result in a different judgment as
to whether Johnson poses a threat, and the likely cost of
considering such additional evidence. Indeed, under the
majority’s telling, even if Johnson could show that some
other factor (perhaps a prisoner’s criminal or disciplinary
history, or the subjective opinion of prison staff) was both
easily ascertainable and had a 100% track record in
predicting whether or not that prisoner’s release from
maximum custody would pose any danger to other prisoners
or the prisoner himself, the prison’s “subjective” decision to
ignore that factor would be immune from challenge. That
cannot be right under the Mathews framework.
To support this counter-intuitive result, the majority cites
language from the Supreme Court’s decision in Hewitt v.
Helms, 459 U.S. 460 (1983), arguing that “Hewitt
established that prison officials’ judgment that an inmate
represents a threat to the safety of the prison may “turn[]
largely on ‘purely subjective evaluations and on predictions
of future behavior’ and may be appropriate ‘even if [the
inmate] himself has committed no misconduct.’” Opinion at
32 (quoting Hewitt, 459 U.S. at 474, abrogated in part on
other grounds, Sandin v. Conner, 515 U.S. 472 (1995)). But
while Hewitt certainly afforded significant weight to the
government’s interest in prison security -- and real deference
to prison officials’ judgment about how best to achieve that
interest -- it also carefully applied the Mathews framework,
independently weighing the government’s security interests
alongside the prisoner’s interest in avoiding solitary
confinement and the probable value of additional procedural
safeguards. Hewitt, 459 U.S. at 474.
In the context presented in that case -- the decision
whether to continue to segregate a particular prisoner mere
weeks after a prison riot, when the situation in the prison
72 JOHNSON V. RYAN
continued to be volatile -- the Court found the private interest
at stake (continuing to be held in segregation for a few more
weeks “pending completion of an investigation into
misconduct charges against” that prisoner, id. at 463-64,
476) not particularly weighty, and the proposed
requirement of a live adversary hearing unnecessary. Id. at
474-75. It also acknowledged that predictions about when a
particular prisoner’s presence in the general population
might cause violence are “subjective” and may turn in part
on facts about general prison conditions not attributable to a
particular prisoner’s conduct. Id. at 474. But the Court in
Hewitt made absolutely clear that “administrative
segregation may not be used as a pretext for indefinite
confinement of an inmate,” that “[p]rison officials must
engage in some sort of periodic review of the confinement
of such inmates,” and that such a review should take into
account both “facts relating to a particular prisoner,” “the
officials’ general knowledge of conditions and tensions,”
“the progress of [any] investigation,” and “a wide range of
administrative considerations.” Id. at 477 n.9. 2 In other
2
To be sure, Hewitt stated that the assessment that a particular prisoner
remains a continuing threat may in part “be based on facts relating to a
particular prisoner . . . ascertained when determining to confine the
inmate to administrative segregation.” Id. But the context for that
statement was a discussion of whether a prison could continue
segregating a prisoner mere weeks after a prison riot; the Court certainly
did not imply that the prison would never need to consider new facts
about the specific prisoner, and, indeed, its analysis was explicitly based
on the premise that new facts would be considered when an ongoing
investigation into the prisoner’s conduct was concluded. Id. at 463-64,
477 n.9. And in any event, the Court in Hewitt concluded that the prison
needed to consider any previously ascertained facts about the prisoner
alongside new facts about prison conditions, such as whether “prison
tensions in the aftermath” of the riot and an “ongoing state criminal
JOHNSON V. RYAN 73
words, Hewitt established that even for relatively brief
periods of administrative segregation, due process requires
consideration of a wide variety of factors. It provides no
support for Arizona’s determination to confine Johnson and
other prisoners in what amounts to solitary confinement for
years and possibly decades while considering only an initial
STG validation and the subsequent failure to debrief.
For these reasons, it seems clear to me that Johnson
should at least be entitled to proceed past the pleadings on
his claim that Arizona’s refusal to consider factors other than
his initial STG validation and his subsequent failure to
debrief denies him due process. He has alleged that the
consideration of additional factors -- specifically, his
“criminal history, propensity for violence, or disciplinary
record” -- might lead Arizona to determine, with greater
accuracy, whether he poses a threat to prison security. FAC
¶ 37. Perhaps he is wrong that consideration of these factors
would lead to a more accurate determination, or perhaps
Arizona could show that it is overly burdensome to consider
these factors, even if they are predictive of violence. But to
settle these questions against Johnson at the pleading stage
usurps the factfinder’s role and eliminates from the Mathews
analysis any consideration of the probable value of
additional procedures, instead collapsing it into a one-
pronged inquiry as to whether the government has asserted a
legitimate security interest. That inquiry stacks the deck
against the person asserting a liberty interest and in favor of
the government.
investigation” continued to warrant segregation. Id. at 477 n.9.
74 JOHNSON V. RYAN
B. The Significance of Debriefing
The majority’s response to all of this is to argue that
Johnson’s “recourse for the time being is to renounce his
membership, thereby altering his status as a Warrior Society
member.” Opinion at 29; id. at 34 (“[I]t is appropriate for
ADC to rely on Johnson’s STG validation status as
justification for its conclusion that he remains a security
threat. . . .”); id. at 37-39 (discussing the debriefing process).
But here, even granting the majority’s premise that
consideration of current gang affiliation standing alone and
to the exclusion of all other factors might justify prolonged
solitary confinement, Arizona would still need to show that
a years or decades-old STG validation, coupled with a
prisoner’s subsequent failure to debrief, actually establishes
current gang status. That premise is far from clear, and
cannot be ascertained at the pleading stage. See Boquist v.
Courtney, 32 F.4th 764, 773-74 (9th Cir. 2022) (“[D]ismissal
is proper under Rule 12(b)(6) if it appears beyond doubt that
the non-movant can prove no set of facts to support its
claims.”). Indeed, “where, as here, a plaintiff proceeds pro
se,” the district court was obliged to “‘construe the pleadings
liberally’ and ‘afford [Johnson] the benefit of any doubt.’”
Id. at 774; Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is ‘to be liberally construed,’ and ‘a
pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.’”).
Rather than draw plausible inferences in Johnson’s favor
and construe his pro se complaint liberally, the district court
-- and, now, the majority -- rush to resolve the disputed
factual question of whether a years-old STG validation
suffices to establish current gang status or dangerousness.
There is of course no factual record as yet as to Johnson’s
JOHNSON V. RYAN 75
claim that by conditioning his release from maximum
custody on debriefing, Arizona effectively denied him any
“meaningful opportunity” to demonstrate he was no longer
a threat. FAC ¶ 39. And it was not Johnson’s obligation at
this preliminary stage of the litigation to allege anything
more than that by conditioning his placement on debriefing,
Arizona had effectively denied him the opportunity to leave
maximum custody. But even looking ahead to future stages
of litigation, it seems likely -- and, at the very least, plausible
-- that Johnson could demonstrate that the opportunity to
debrief does not provide him any meaningful path out of his
extremely restrictive conditions of maximum security.
First, as the Supreme Court has emphasized,
“[t]estifying against, or otherwise informing on, gang
activities can invite one’s own death sentence.” Wilkinson v.
Austin, 545 U.S. 209, 227 (2005). Indeed, the concern that
prisons cannot easily investigate gang violence and prevent
retaliation after the fact is one of the reasons the Supreme
Court has instructed courts to be reasonably deferential to
prison procedures designed to prevent gang violence in the
first place. Id. At the pleading stage, it certainly seems
plausible that Johnson could demonstrate that he could not
debrief without facing deadly danger. See Madrid v. Gomez,
889 F. Supp. 1146, 1241 (N.D. Cal. 1995) (“[A] number of
prison staff agree that inmates who debrief and gain release
from the SHU are considered “snitches,” and thus face
serious risks of being attacked or even killed by other
inmates.”).
Second, largely because of the acknowledged danger that
prisoners who have debriefed face from other prisoners,
Arizona has pointed to prison regulations requiring that any
prisoner who debriefs be placed in a form of “protective
custody,” the purpose of which is to continue to separate the
76 JOHNSON V. RYAN
debriefed prisoner from other prisoners. DO § 806.07.1.5.1.
As Johnson’s challenge to his current placement turns on his
“minimum human contact for years on end,” which, “even
within the context of the prison system . . . represents a
severe deprivation of liberty,” FAC ¶ 38, Arizona cannot
satisfy due process by offering Johnson the opportunity to
trade one form of solitary confinement for another form of
the same thing that would equally deprive him of a
constitutional liberty interest. Arizona points to regulations
that purportedly would allow a prisoner who has debriefed
and been placed into protective custody to one day become
eligible for “custody reductions and housing changes,”
including “lower custody housing or a double cell
environment.” DO § 806.07.1.5.1. But assuming we can
properly take notice of these regulations at the pleading
stage, there is simply no basis in the pleadings or record to
assess whether that theoretical eligibility actually offers
Johnson or prisoners like him a plausible path out of what is
effectively solitary confinement.
The majority acknowledges that this problem -- that a
prisoner may not be able to debrief without either risking
death or else simply trading one form of restrictive custody
for another -- “is real . . . [but] cannot be avoided.” Opinion
at 40. But if it really is true that debriefing requires braving
violent retaliation or indefinite solitary confinement, it
seems reasonable to ask whether consideration of any other
factors beyond a prisoner’s failure to debrief might satisfy a
prison’s legitimate security needs. Whatever the answer to
that question, I feel confident it cannot be resolved at the
pleading stage.
Third, Arizona’s regulations (again, assuming they are
even properly before us at this stage) on their face raise the
plausible inference that many prisoners (likely including
JOHNSON V. RYAN 77
Johnson) may not be able to successfully debrief even if they
wished. Under those regulations, no prisoner can debrief
without first “provid[ing] additional information regarding
the STG’s structure, activity and membership that would
adversely impact the STG and assist in management of the
STG population.” DO § 806.06. Even assuming that a
properly validated prisoner would be able to do this at the
time of his validation, it is not at all clear how a prisoner who
was validated eight years ago and has been held in solitary
confinement ever since could possibly be in a position to
provide any information that would “adversely impact the
STG” or “assist” the prison in “management of the STG
population.”
Johnson was validated in 2014 and Arizona has since
twice allowed him to begin the SDP program, which he
would not have been allowed to do on either occasion under
Arizona’s regulations if he had had any STG-related activity
within the past two years. FAC ¶¶ 4, 9; DO § 806.08.1.2.2.
It may be theoretically possible that, nearly a decade
following Johnson’s initial validation after which time he
was totally segregated from other prisoners, and despite
Arizona’s judgment that Johnson participated in no STG-
related activity for much or all of that time, Johnson could
still provide some information that “would adversely impact
the STG.” 3 Or perhaps Arizona could show that it does not
enforce this requirement for prisoners who are no longer in
a position to provide such information. But none of these
3
It bears mentioning that Johnson has denied that he was ever properly
validated as an STG member in the first place, and, in separate litigation,
this Court previously reversed a district court’s grant of summary
judgment against Johnson on this claim. Johnson v. Bendel, 745 F. App'x
750 (9th Cir. 2018). Following the appointment of counsel for Johnson,
Johnson obtained a cash settlement from Arizona.
78 JOHNSON V. RYAN
possibilities is clear from the face of Johnson’s complaint,
and none justifies dismissing it.
The majority dismisses this concern about the potential
unavailability of debriefing to a prisoner who has been
confined for years on-end and who therefore lacks current
information about the STG into which he was validated,
arguing that “[t]hese claims are not established anywhere in
this record” and belong instead to the “dissent’s own
imagination.” Opinion at 38. This, once again, ignores the
fact that this case is still at the pleading stage, not to mention
that it involves a pro se pleading. Johnson’s claim that
Arizona must consider more than his failure to debrief in
order to hold him in maximum custody for years on end has
never proceeded to discovery, so there is, of course, no
factual record affirming or disputing this point. But the
possibility that debriefing might not be a viable option for a
prisoner who has been held in maximum custody for many
years more than plausibly follows from Arizona’s
regulations requiring satisfactory debriefing to establish
information about the STG.
Instead, it is the majority that takes it upon itself to
imagine facts beyond the pleadings (and, for that matter, an
entire record as to this claim), where no such facts have yet
been established by either party. 4 Johnson has alleged that
4
In its rush to create a record where none exists, the majority has taken
upon itself to examine the website of Arizona’s Department of
Corrections to supposedly confirm that “[t]he Warrior Society still
operates as a prison gang and has active members in Arizona prisons.”
Opinion at 35 (citing Ariz. Dep’t of Corr., Certified and Monitored
Security Threat Groups, https://corrections.az.gov/warrior-society-0). It
thereby seeks to demonstrate that, at the very least, Arizona is not
confining Johnson over his supposed membership in a now-defunct gang
-- even though nothing about Arizona’s process, which looks only to the
JOHNSON V. RYAN 79
by “conditioning release from STG status on debriefing,”
Arizona effectively denied him any “meaningful
opportunit[y]” to leave solitary confinement. FAC ¶ 39.
Arizona may or may not be able to adduce evidence showing
that this was not the case, but Johnson was not obliged to
specifically anticipate and plead around such evidence in his
pro se complaint. Cf. Zivokovic v. S. Cal. Edison Co., 302
F.3d 1080, 1088 (9th Cir. 2002) (reasoning that “[a] defense
which demonstrates that plaintiff has not met its burden of
proof is not an affirmative defense” and therefore need not
be specifically pleaded in a defendant’s answer, let alone in
a plaintiff’s complaint).
Indeed, in dismissing Johnson’s claim at the pleading
stage, the district court cited cases sustaining Arizona’s
system of indefinite maximum security placement because
prisoners could theoretically leave maximum security by
debriefing at “any time.” But every case cited by the district
court came at the summary judgment stage, after the
plaintiffs (usually proceeding pro se and in prison) had failed
initial STG validation and the subsequent failure to debrief, requires that
the gang into which a prisoner was validated remains operational. But
the majority’s beyond-the-pleadings research only confirms why
Johnson’s claim should proceed to discovery. The webpage it cites states
that while “[t]he majority of the Native American inmates coming into
the prison system join the Native American Brotherhood,” or N.A.B.,
only “the younger, stronger and more aggressive inmates. . . . could be
considered the ‘elite’ N.A.B., the Warrior Society.” See Ariz. Dep’t of
Corr., Certified and Monitored Security Threat Groups,
https://corrections.az.gov/warrior-society-0 (last visited November 8,
2022). This characterization of the Warrior Society as constituted
primarily by the “younger, stronger, and more aggressive inmates” is not
wholly consistent with the majority’s assumption that prisoners remain
active members of the Warrior Society for years or even decades unless
and until they debrief.
80 JOHNSON V. RYAN
to meet their burden to affirmatively adduce evidence
demonstrating that debriefing was not a viable option. See
Hernandez v. Schriro, No. 05-cv-2853, 2011 WL 2910710,
at *8-9 (D. Ariz. July 20, 2011) (rejecting plaintiff’s
“unsupported assertion that risks to debriefed inmates are
‘common knowledge’. . . [because] [t]o defeat summary
judgment, Plaintiff must present evidence” (emphasis
added)); Mendez v. Ryan, No. 10-cv-1867, 2013 WL
6408389, at *8-*11 (D. Ariz. Aug. 13, 2013) (similar);
Standley v. Ryan, No. 10-cv-1867, 2012 WL 3288728, at *9-
10 (Aug. 13, 2012 D. Ariz. 2012) (similar); Faulkner v.
Ryan, No. 10-cv-2441, 2012 WL 407452, at *9-10 (D. Ariz.
Feb. 9, 2012) (similar). District courts that have considered
similar allegations at the pleading stage have routinely found
them sufficiently plausible to proceed to discovery. See
Askher v. Brown, No. 09-cv-5796, 2013 WL 1435148, at *7
(N.D. Cal. April 9, 2013) (finding allegations that the
possibility of debriefing did not offer a meaningful path out
of solitary confinement at California prisons plausible at the
pleading stage); Fanaro v. Cty. of Contra Costa, No. 09-cv-
03247, 2019 WL 5191018, at *5 (N.D. Cal. Oct. 15, 2019)
(similar); Gonzales v. Guirbino, No. 14-cv-00173, 2016 WL
1599449 at *2-5 (E.D. Cal. April 21, 2016) (similar).
Similarly, the majority relies extensively on a “lengthy,
thorough” 1995 district court decision in Madrid v. Gomez,
889 F. Supp. 1146 (N.D. Cal. 1995) that held that California
prisons could rely on the fact of a relatively old STG
validation -- even in the “absence of gang-related activity or
association over some period of time” -- to continue to hold
a prisoner in solitary confinement. Opinion at 34 (quoting
Madrid, 889 F. Supp. at 1278). But the court in Madrid
reached that determination only after a trial in which it
“heard testimony from 57 lay witnesses, including class
JOHNSON V. RYAN 81
members, defendants, and correctional employees at all
levels,” and “received into evidence over 6,000 exhibits,
including documents, tape recordings, and photographs, as
well as thousands of pages of deposition excerpts,” and even
“spent two days touring [the prison], accompanied by
counsel for both parties and prison officials.” Madrid, 889
F. Supp. at 1156. The court’s determination that a prisoner’s
status as a gang member might continue to demonstrate that
prisoner’s dangerousness and might be determined by an old
STG validation, notwithstanding the absence of recent gang-
related activity, was made only “in light of [the court’s]
factual findings,” and its resulting determination that “the
record supports defendants’ position that gang members and
associates are threats to prison security, and that inmates
who join such gangs join ‘for life’ . . . [even if] the inmate
may not have affirmatively engaged in gang activity” for
some time. Id. at 1278. Further, while the court in Madrid
heard evidence as to whether debriefing was in fact
“necessary to prove that renunciations of gang membership
are genuine,” and as to the threat debriefing might or might
not pose to particular prisoners, it also noted that the
plaintiffs in that case had not challenged the constitutionality
of the prison’s debriefing policy, and as such the court
declined to consider or address that issue. Id. at 1243, 1270
n.217.
Madrid, in other words, demonstrates precisely why
Johnson’s claim cannot be dismissed on the pleadings, even
assuming, as the majority does, that current gang status alone
demonstrates dangerousness. Whether a years-old STG
validation, coupled with a subsequent failure to debrief -- but
also an apparent absence of any gang-related activity --
actually demonstrates present gang affiliation and
dangerousness is a factual question, subject to factual
82 JOHNSON V. RYAN
dispute. The fact that a district court resolved this factual
question one particular way with respect to a specific
California prison’s policies almost 30 years ago following a
trial and the consideration of extensive evidence cannot
justify resolving this question the same way against Johnson
at the pleading stage.
For the reasons described above, I would hold that
Arizona must review Johnson’s placement in maximum
custody more than once a year, and I would also allow
Johnson to proceed to discovery as to his claim that Arizona
violates due process by failing to consider any factors
beyond a many-years-ago STG validation and a prisoner’s
subsequent failure to debrief before confining him
indefinitely in maximum custody. In my view, if Johnson
can demonstrate that consideration of other facts beyond a
prisoner’s current gang affiliation would both lead to more
accurate determinations about whether that prisoner poses a
threat and are not overly burdensome to consider, then
Arizona must then consider those other factors. But even if
that were not the case, and the majority were correct that a
prisoner’s current gang status, standing alone, justifies
indefinite solitary confinement, I do not view the bare fact
of a years-old STG validation and the mere possibility of
debriefing as sufficient to establish current gang status at the
pleading stage.
II. Whether Johnson’s removal from the SDP
violates due process.
I concur in the majority’s judgment reversing the district
court’s grant of summary judgment as to Count I of
Johnson’s complaint (which alleged that he was terminated
from the SDP program and reassigned to extremely
restrictive conditions of maximum custody in the Browning
JOHNSON V. RYAN 83
unit without adequate due process). I also agree with the
majority that “the procedure that it appears Johnson was
given was not adequate to satisfy the Due Process Clause.”
Opinion at 59. However, I do not agree with the majority’s
conclusion that only Johnson’s reassignment of housing
units -- rather than his underlying termination from the SDP
program, which is what led to his reassignment -- gave rise
to a constitutionally protected liberty interest. This is so for
two reasons.
First, the majority is wrong that “removal from the SDP
during Phases I–III does not result in any significant change
in an inmate’s conditions of confinement.” Opinion at 49.
Participation in any phase of the SDP has significant
implications for a prisoner’s current living conditions,
rendering those conditions materially freer than those of
most prisoners in maximum custody. See DOC 806.06, §
1.5.3 (explaining that prisoners in Phase III may receive two-
person recreation periods, job assignments, and an
unrestrained meal every day with other prisoners, along with
a variety of trainings and access to other programming); id.
§ 1.5.2, (explaining that prisoners in Phase II be allowed to
attend “peer group interaction (town hall meetings),”
unrestrained walks to and from the shower, unrestrained
walks to and from a recreation area, and access to various
other forms of programming); id. § 1.5, (in Phase I, prisoners
will have access to a “high school equivalency preparation
program,” as well as a number of other different classes and
programs).
As Arizona’s regulations make clear, participation in any
stage of the SDP -- and, at the very least, participation in
Phases II and III, as well as Phases IV and V -- entails
significantly more freedom from restraint and social
exposure than ordinary placement in maximum custody. So,
84 JOHNSON V. RYAN
to the extent that Johnson’s removal from Phase IV led to “a
material change in [Johnson’s] living conditions”
implicating a liberty interest, Opinion at 53, so too would a
prisoner’s removal from any prior phase -- and, at the very
least, from Phases II and III. The majority argues that
eliminating the freedoms enjoyed by prisoners in Phases I,
II, and III of the SDP would not “rise[] to the level of an
‘atypical or significant hardship.’” Opinion at 51 (quoting
Sandin, 515 U.S. at 484). But, as described, above, many of
the freedoms allowed in at least Phases II and III quite
literally involve giving prisoners limited “freedom from
restraint,” which is the quintessential sort of liberty interest
as to which due process rights attach. Sandin, 515 U.S. at
484.
Second, the majority is wrong to conclude that removal
from the SDP simply results in merely the loss of “one
means by which Johnson can prove that he is prepared to
return to the general prison population.” Opinion at 48. As
described above, except for the single alternative of
debriefing (the material shortcomings of which have already
been outlined), removal from the SDP effectively guarantees
that a prisoner will be confined in maximum custody for at
least 24 more months or, in the case of a second removal
from SDP, indefinitely. Whether or not the participating
prisoner’s transfer from maximum to close custody at the
beginning of Phase IV has already occurred simply sidesteps
the central issue, which is that at any phase of SDP, an SDP
participant remains eligible to ultimately “step down” from
maximum custody and ultimately transition to the general
population, whereas once that participant is removed from
SDP, he will face at least two more years of segregation in
the case of a first removal and indefinite segregation in the
JOHNSON V. RYAN 85
case of a second removal unless he debriefs. 5
Of course, the majority is in some sense correct that it is
a Johnson’s “STG status, not [his participation in] the SDP”
that results in his maximum custody placement. Opinion at
48. But for Johnson’s STG validation, he would not have
been confined in maximum custody and therefore would
never have been eligible for the SDP program, or had any
need to participate in it. But, by that logic, Johnson’s return
to maximum custody -- which the majority concedes
implicates a liberty interest, Opinion at 52-55 -- also
depended on Johnson’s STG status. So while the majority is
correct in holding that Johnson’s removal from less
restrictive custodial conditions caused by his removal from
Phase IV of the SDP implicates a liberty interest, its logic for
so holding necessarily implies more: that so long as the SDP
remains a prisoner’s only plausible mechanism out of
maximum custody, Arizona cannot terminate the prisoner
5
The majority claims that acknowledging the liberty interest associated
with SDP participation would put courts “in the business of second-
guessing every decision that ADC officials must make during Phases I-
V to determine whether an inmate may advance to another phase or
remain in the program.” Opinion at 52 n.12. But its approach would yield
exactly the same result for Phases IV and V, as a prisoner’s failure to
meet any of the criteria necessary to complete either phase would
necessarily result in that prisoner’s removal from close to maximum
custody, which the majority acknowledges infringes upon a liberty
interest and therefore must comply with due process. Opinion at 52-55.
To be sure, when prison officials act to deprive prisoners of a liberty
interest -- whether that interest is defined as participation in the SDP, or
removal from the freer custodial conditions that participation in a
particular stage of SDP necessarily implies -- they must afford the
prisoner basic due process, including notice and an opportunity to be
heard. But enforcing these basic guarantees of due process with all due
regard for the exigencies of prison management does not mean that
courts will be forced to second-guess everyday penological decisions.
86 JOHNSON V. RYAN
from SDP without providing due process.
For the foregoing reasons, I respectfully dissent from the
majority’s decision affirming the district court’s dismissal of
Count III of Johnson’s complaint. Put simply, the very real
problem of maintaining prison security in the face of gang
activity is not a blank check allowing prison officials to
overrule the Constitution and keep a prisoner once identified
as a gang member in solitary confinement forever without
any genuine possibility of release. And while I concur in the
majority’s judgment reversing the district court’s grant of
summary judgment against Johnson as to Count I, in my
view Johnson’s removal from the SDP itself, and not just his
collateral housing reassignment, implicated a liberty
interest. Finally, I concur fully in the majority’s holding that
the district court erred in entering summary judgment against
Johnson as to his First Amendment retaliation claim.