John Armstrong v. Gavin Newsom ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN ARMSTRONG; JAMES Nos. 20-16921
AMAURIC; RICHARD PONCIANO; 21-15614
JACK SWENSEN; BILLY BECK;
JUDY FENDT; WALTER FRATUS;
GREGORY SANDOVAL; D.C. No. 4:94-cv-
DARLENE MADISON; PETER 02307-CW
RICHARDSON; STEVEN HILL;
DAVID ROSE; DAVID BLESSING;
ELIO CASTRO; ELMER OPINION
UMBENHOWER; RAYMOND
HAYES; GENE HORROCKS; KIAH
MINCEY; CLIFTON FEATHERS;
WILLIE JOHNSON; DAVID
BADILLO; JAMES SIMMONS;
FLORA ABRAMS; JOEY GOUGH;
TIMOTHY WHISMAN,
Plaintiffs-Appellees,
v.
GAVIN NEWSOM, Governor;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,
Defendants-Appellants.
2 ARMSTRONG V. NEWSOM
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted September 21, 2022
San Francisco, California
Filed February 2, 2023
Before: Susan P. Graber, Michelle T. Friedland, and Eric
D. Miller, Circuit Judges.
Opinion by Judge Friedland
SUMMARY *
Prisoner Civil Rights
The panel affirmed one district court order, and affirmed
in part and vacated in part a second district court order, in an
ongoing action initiated nearly thirty years ago by a class of
California prisoners who challenged the State’s treatment of
disabled inmates.
This case began in 1994 when Plaintiffs sued the
California Department of Corrections and Rehabilitation and
the Governor (collectively, “Defendants”) alleging
widespread violations of the Americans with Disabilities Act
and the Rehabilitation Act (collectively “ADA”). The
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARMSTRONG V. NEWSOM 3
district court concluded that California prisons were failing
to provide legally required accommodations, and this court
affirmed. In these appeals, Defendants challenge two orders
issued in 2020 in which the district court found ongoing
violations of disabled prisoners’ rights at the R.J. Donovan
Correctional Facility (“RJD”) and at five additional prisons
(“Five Prisons”) resulting from Defendants’ failure to
adequately investigate and discipline staff misconduct. The
district court entered injunctions requiring Defendants to
adopt additional remedial measures at the six prisons.
The panel first rejected Defendants’ threshold contention
that the district court did not have authority to issue either of
the orders because the orders addressed misconduct that was
“categorically distinct” from the allegations of wrongdoing
in the Complaint. The panel determined that the new
allegations in the motions at issue here were closely related
to those in the operative Complaint and alleged misconduct
of the same sort—that Defendants failed to accommodate
class members’ disabilities, in direct contravention of the
ADA.
The panel next considered whether the district court’s
orders comported with the Prison Litigation Reform Act of
1995 (“PLRA”). The panel held that the record supported
the district court’s conclusions that there were ongoing ADA
violations at each of the prisons and that a common source
of those violations was the lack of sufficient accountability
measures to address officer misconduct, which fostered a
staff culture of targeting inmates with disabilities.
The panel affirmed the particular provisions of each
order that address the prisons’ investigatory and disciplinary
failures. For example, the panel affirmed the district court’s
requirements that Defendants utilize additional surveillance
4 ARMSTRONG V. NEWSOM
cameras and provide additional staff training. The panel also
held that the district court’s requirement that Defendants
reform the complaint process to better investigate, track, and
discipline offending staff members was also justified; and
that the investigatory and disciplinary reform measures
complied with the PLRA’s requirements that injunctive
relief be narrowly drawn and no more intrusive than
necessary.
Addressing the measures in the district court’s orders
that focused on preventing officer misconduct directly, the
panel upheld those measures as to RJD, but could not affirm
them as to the Five Prisons on the current record. Thus, the
panel affirmed the district court order that Defendants
develop a plan to “more effectively monitor and control the
use of pepper spray” by RJD staff. The panel vacated,
however, the pepper-spray measure in the Five Prisons
order, finding that the evidence on which the district court
relied was insufficient to justify the ordered relief. The panel
concluded that the district court abused its discretion by
ordering Defendants to reform their pepper-spray policies at
the Five Prisons and vacated that portion of the order.
The panel further concluded that the district court was
justified in ordering that Defendants “significantly increase
supervisory staff by posting additional sergeants” on prison
watches at RJD. But the record did not support an equivalent
finding with respect to the Five Prisons. The panel therefore
held that the district court abused its discretion by ordering
Defendants to increase supervisory staff at the Five Prisons
and vacated that portion of the district court’s order.
The panel addressed Defendants’ remaining arguments
in a concurrently filed memorandum disposition.
ARMSTRONG V. NEWSOM 5
COUNSEL
Jamie M. Ganson (argued), Deputy Attorney General; Alicia
Anne Bower, Deputy Attorney General; Trace Maiorino,
Deputy Attorney General; Neah Huynh, Supervising Deputy
Attorney General; Monica N. Anderson, Senior Assistant
Attorney General; Rob Bonta, Attorney General of
California, Office of the California Attorney General,
Sacramento, California; for Defendants-Appellants
Gay Crosthwait Grunfeld (argued), Michael W. Bien,
Michael L. Freedman, Benjamin Joseph Bien-Kahn, Ernest
Galvan, and Adrienne Pon Harrold, Rosen Bien Galvan &
Grunfeld LLP, San Francisco, California; Donald Specter,
Rita K. Lomio, Alison Hardy, Sara Norman, and Margot
Mendelson, Prison Law Office, Berkeley, California; Linda
D. Kilb Claudia Center, and Arlene B. Mayerson, Disability
Rights Education & Defense Fund Inc., Berkeley,
California; Geoffrey Holtz, Morgan Lewis & Bockius LLP,
San Francisco, California; for Plaintiffs-Appellees.
6 ARMSTRONG V. NEWSOM
OPINION
FRIEDLAND, Circuit Judge:
Nearly thirty years ago, a class of California prisoners
challenged in federal court the State’s treatment of disabled
inmates. The district court concluded that California prisons
were failing to provide legally required accommodations,
and our court affirmed. Since then, the State has struggled
to remedy the recognized violations, and the class has
repeatedly returned to court, prompting the district court to
order iterative injunctions that our court has largely
affirmed. In this appeal, California officials challenge two
orders in which the district court again imposed
requirements on the State to correct ongoing violations of
disabled inmates’ rights. We affirm almost the entirety of
the district court’s orders.
I.
A.
This case began in 1994 when Plaintiffs, a class of
California prisoners (the “Armstrong class”), sued the
California Department of Corrections and Rehabilitation
(“CDCR”) and the Governor (collectively, “Defendants”). 1
In the operative Complaint, Plaintiffs alleged widespread
violations of the Americans with Disabilities Act (“ADA”)
and the Rehabilitation Act (“RA”), accusing Defendants of
1
Initially, the litigation also included state parolees but subsequently was
bifurcated, with parolees litigating their claims against the Board of
Parole Hearings separately from the prisoners’ claims against CDCR.
See Armstrong v. Brown, 768 F.3d 975, 978 n.1 (9th Cir. 2014). The
appeals now before us concern only those orders relating to
accommodations for prisoners.
ARMSTRONG V. NEWSOM 7
“discriminat[ing] against plaintiffs and the class they
represent by reason of their disability.” Some of the
allegations focused on physically inaccessible facilities in
California’s prisons. Other allegations accused Defendants
of failing “to make reasonable accommodations to
individuals with disabilities in the programs, activities,
services, benefits, and jobs they offer.”
The district court certified a class of “all present and
future California state prisoners . . . with mobility, sight,
hearing, learning[,] and kidney disabilities that substantially
limit one or more of their major life activities,” and held that
Defendants’ treatment of disabled prisoners violated the
ADA and RA. See Armstrong v. Wilson, 124 F.3d 1019,
1020–21 (9th Cir. 1997). 2 Accordingly, the district court
ordered Defendants to produce a plan describing how they
would remedy the violations of the class members’ rights.
Defendants produced what has come to be known as the
Armstrong Remedial Plan (“ARP” or “Plan”), see
Armstrong v. Schwarzenegger, 622 F.3d 1058, 1063 (9th
Cir. 2010), portions of which the district court subsequently
ordered Defendants to implement, see Armstrong v. Davis,
58 F. App’x 695, 697 (9th Cir. 2003). See also
Schwarzenegger, 622 F.3d at 1063 (describing the history of
this litigation through 2010).
Realizing the promise of the ARP has not been easy.
Since the district court directed enforcement of the Plan,
Plaintiffs have filed a series of motions contending that
2
When it comes to discrimination by public entities, the ADA and RA
“provide identical ‘remedies, procedures, and rights.’” Vos v. City of
Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (quoting Hainze v.
Richards, 207 F.3d 795, 799 (5th Cir. 2000)). We therefore refer only to
the ADA throughout the remainder of this opinion.
8 ARMSTRONG V. NEWSOM
Defendants have failed to comply with the court’s mandates.
In response, the district court has issued further injunctions,
most of which have been affirmed by our court, directing
Defendants to take additional measures to ensure
compliance with the court-ordered portions of the ARP and
to prevent further violations of class members’ rights. See
Armstrong v. Brown, 768 F.3d 975, 988–89 (9th Cir. 2014)
(affirming in large part); Schwarzenegger, 622 F.3d at 1063(affirming the district court’s holdings about the defendants’
responsibility for violations and about the need for relief but
remanding for further evidence on specific remedial
measures); Davis, 58 F. App’x at 696 (affirming in full);
Armstrong v. Davis, 275 F.3d 849, 879 (9th Cir. 2001)
(affirming in large part).
In 2007, for example, the district court held that, “[w]hile
some individual prisons have improved their compliance”
with the ADA and ARP, “it has become increasingly clear
that defendants are unable to meet their obligations,” causing
“significant harm to the plaintiff class.” Accordingly, the
district court entered a permanent injunction requiring
Defendants to “develop a system” for holding prison staff
“accountable for compliance with the Armstrong Remedial
Plan and the orders of th[e] Court.” The injunction was
modified in 2012 to “clarif[y] and ma[k]e more detailed”
Defendants’ obligations regarding reporting and
accountability after the district court concluded that
Defendants’ accountability system was ineffective. The
district court modified the injunction again in 2014.
B.
In 2020, Plaintiffs returned to court alleging pervasive
violations of class members’ rights under the ADA, filing
one motion focused on a single prison and a second motion
ARMSTRONG V. NEWSOM 9
focused on several more. In ruling on the motions, the
district court found that there were ongoing violations of
disabled prisoners’ rights at six California prisons, resulting
from Defendants’ failure to adequately investigate and
discipline staff misconduct. The district court entered two
injunctions requiring Defendants to adopt additional
remedial measures at the prisons.
1.
Plaintiffs’ first motion sought relief at R.J. Donovan
Correctional Facility (the “RJD Motion”). RJD has the
second largest population of disabled inmates of any prison
in California and houses nearly a thousand Armstrong class
members. In 2018, auditors from within CDCR conducted a
compliance review, jointly with Plaintiffs’ counsel, of the
disability policies at RJD. The auditors’ resulting memo
documented that inmates reported, among other allegations
of misconduct, instances of “staff members forcefully
removing some inmates from wheelchairs” and “assaulting
inmates [who] were already secured with restraint
equipment.”
The State sent a “strike team” to RJD to investigate the
reports of staff misconduct identified by the auditors. The
strike team conducted a series of interviews in which
inmates described prison staff targeting disabled inmates for
abuse and retaliating against those who reported abuse. The
strike team found that 48 of the 102 inmates interviewed
“provided specific, actionable information, relevant to the
foundational concerns” of staff misconduct that had
prompted the review. In an email, CDCR’s chief
ombudsman and strike-team member wrote:
10 ARMSTRONG V. NEWSOM
I have never heard accusations like these in
all my years. . . . Many of the inmates have
expressed fear of what will happen to them
tomorrow when the team is not there. . . .
This is a very serious situation and needs
immediate attention. If there is any means of
installing cameras immediately I would
strongly suggest it . . . . We will provide you
any help you need.
The strike team recommended that prison management
install surveillance cameras at certain locations, increase the
presence of supervisory staff, and provide mandatory staff
training, among other things.
Plaintiffs’ counsel communicated with CDCR
throughout 2019 about remedying the problems at RJD.
Unsatisfied with the State’s progress, Plaintiffs filed the RJD
Motion in February 2020, asking the district court to impose
further remedial measures at RJD. In support of the motion,
Plaintiffs submitted 87 declarations from 66 inmates who
claimed to have experienced or witnessed violations of class
members’ rights at RJD, along with two expert reports
criticizing RJD staff’s treatment of disabled inmates and the
State’s failure to investigate and discipline staff in response.
After briefing and argument, the district court granted
Plaintiffs’ motion in large part. The court found Plaintiffs’
declarations uncontroverted because Defendants had not
submitted competing declarations or any other evidence
contesting the declarants’ accounts. The district court also
found the declarants credible, explaining that they “paint[ed]
a very consistent picture of the conduct by RJD staff that
disabled inmates experience[d].”
ARMSTRONG V. NEWSOM 11
In its order, the district court recounted numerous
incidents, which it described as “illustrative examples” of
Plaintiffs’ evidence that Armstrong class members were
being denied reasonable accommodations or discriminated
against because of their disabilities. In one such illustrative
example, a mobility-impaired class member requested not to
be handcuffed behind his back because he used a cane and
walker. Instead of granting that accommodation, an RJD
officer slammed the class member to the ground, causing
him to hit his head on the concrete floor and lose
consciousness for several seconds. When the class member
awoke, the officer put his knee on the class member’s throat
and then kneed him in the face. As the district court noted,
other mobility-impaired class members were also thrown to
the ground rather than accommodated after requesting
handcuffing accommodations. In another incident, an
officer refused to stop shining a flashlight into the eyes of a
vision-impaired class member who said that the light was
painful and exacerbated his disability. When the class
member asked to speak with a sergeant, another officer
punched the class member in the jaw. Multiple incidents
recounted by the district court described officers denying
class members’ requests for wheelchair pushers and for
showers after incontinence incidents; others described
officers closing doors on class members with mobility
disabilities.
The district court also recounted incidents of retaliation.
In one such incident, a class member asked an officer to help
him lift a heavy package of mail. The officer refused, and
the class member replied that he intended to file a complaint.
In response, the officer pepper-sprayed the class member in
the face, hit him in the face with the pepper-spray canister,
and then kicked him. In another incident, an officer
12 ARMSTRONG V. NEWSOM
threatened to lodge a fabricated rules-violation report against
a class member if the class member filed a grievance
reporting the officer’s earlier failure to accommodate him.
Multiple class members reported that they were afraid to
request accommodations due to the threat of retaliation.
Relying on Plaintiffs’ declarations and expert reports,
the district court concluded that “RJD staff have denied
reasonable accommodations to class members on many
occasions, and that such denials were by reason of the class
members’ disabilities.” The “root cause” of these violations,
the district court found, was Defendants’ “systemic and
long-term failure” to “effectively investigate and discipline
violations” of class members’ ADA rights. The district court
concluded that additional remedial measures were
“necessary to prevent further violations” at RJD.
2.
While the RJD Motion was pending, Plaintiffs moved for
similar relief at additional California prisons. 3 In support of
that motion (the “Five Prisons Motion”), Plaintiffs
incorporated the material they had filed with the RJD Motion
and submitted two new expert reports plus declarations from
seventy-five additional inmates describing incidents at those
prisons (the “Five Prisons”).
Those declarations differed from the declarations
Plaintiffs had submitted in support of the RJD Motion in two
ways. First, whereas the RJD declarations were all
submitted by Armstrong class members, about half the
3
Plaintiffs requested relief at seven prisons, but the district court
ultimately declined to order relief at two of them—a ruling that Plaintiffs
have not challenged. As a result, only five prisons are at issue with
respect to the appeal from the ruling on that motion.
ARMSTRONG V. NEWSOM 13
declarations submitted in support of the Five Prisons Motion
were from disabled inmates who were not members of the
Armstrong class. Rather, those declarations came from class
members in a separate prison-conditions class action brought
on behalf of “all [California state] inmates with serious
mental disorders.” Coleman v. Schwarzenegger, 922 F.
Supp. 2d 882, 898 n.11 (E.D. Cal. & N.D. Cal. 2009). 4
Second, whereas the RJD declarations were not disputed, the
Five Prisons declarations were partially disputed.
Defendants filed their own declarations—about one hundred
in all—contesting some of the events described in the Five
Prisons declarations. The district court did not attempt to
resolve the factual disputes raised by the competing
declarations. Instead, it recounted “illustrative examples” of
incidents from Plaintiffs’ declarations in which inmates
described being denied reasonable accommodations and for
which Defendants’ declarations did not contest the relevant
portions of the episodes. The district court recounted twelve
such illustrative incidents—six of which involved
Armstrong class members and all of which the district court
found credible. 5
Relying on the cited declarations and Plaintiffs’ expert
reports, the district court concluded that “staff have denied
reasonable accommodations to inmates with disabilities on
multiple occasions” at the Five Prisons, and “such denials
were by reason of the inmates’ disabilities.” As with RJD,
the district court found that the “root cause” of the ongoing
4
The parties agree that mental illness is not a ground for Armstrong class
inclusion.
5
The district court did not make credibility determinations as to the
inmate declarations that it did not explicitly reference in the Five Prisons
Order.
14 ARMSTRONG V. NEWSOM
violations in the Five Prisons was the “ineffectiveness” of
Defendants’ system for “investigating and disciplining”
violations, which led to a “staff culture that condones abuse
and retaliation against disabled inmates.” The district court
therefore concluded that additional remedial measures were
“necessary to prevent further violations” of the ADA rights
of disabled inmates at the Five Prisons.
3.
Having found that additional remedial measures were
necessary to prevent further violations of class members’
rights, the district court ordered Defendants to draft two
remedial plans—one for RJD and one for the Five Prisons.
The district court ordered Defendants to include, in both
plans, measures in the following categories: (1) installing
fixed surveillance cameras and body-worn cameras; (2)
reforming staff complaint, investigation, and discipline
processes; (3) monitoring by a court-appointed expert of
staff investigation and discipline processes; 6 (4) sharing
information with Plaintiffs’ counsel and the court expert; (5)
increasing supervisory staffing; (6) adding more staff
training; (7) implementing anti-retaliation mechanisms; and
(8) reforming pepper-spray policies. For each category, the
district court outlined certain requirements that Defendants
must include in the plans. For example, the court specified
a retention policy for camera footage and required the
investigation and discipline section of the plans to provide
for quarterly interviews of disabled inmates. The district
court also ordered Defendants to develop an electronic
6
The expert was appointed pursuant to Federal Rule of Evidence 706 “to
monitor Defendants’ implementation of their plan to reform the staff
complaint, investigation, and discipline policies and procedures.”
ARMSTRONG V. NEWSOM 15
“early-warning” tracking system for incidents of staff
misconduct involving disabled inmates at the Five Prisons. 7
4.
Defendants timely appealed both orders. We
consolidated the appeals for the purposes of oral argument
and address both in this opinion.
II.
“We review the district court’s legal conclusions de
novo, the factual findings underlying its decision for clear
error, and the injunction’s scope for abuse of discretion.”
Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014).
III.
We first consider and reject Defendants’ threshold
contention that the district court did not have authority to
issue either of the orders because the orders address
misconduct that is “categorically distinct” from the
allegations of wrongdoing in the Complaint.
“[A] district court has broad discretion to fashion
injunctive relief.” Melendres v. Maricopa County, 897 F.3d
1217, 1221 (9th Cir. 2018). But that discretion is not
unbounded, particularly as to allegations of misconduct
raised after a complaint is filed. Because “[t]he authority of
the court is invoked at the outset [of litigation] to remedy
particular . . . violations,” a remedy is justified “only insofar
as it advances the ultimate objective of alleviating the
initial . . . violation.” Freeman v. Pitts, 503 U.S. 467, 489
(1992). “[N]ew assertions of misconduct” do not support
7
Defendants were not ordered to include this measure in the RJD
remedial plan.
16 ARMSTRONG V. NEWSOM
injunctions “entirely unrelated to the conduct asserted in the
underlying complaint”—there must be a “sufficient nexus”
between the new allegations and the complaint. Pac.
Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d
631, 636 (9th Cir. 2015).
The new allegations in the motions at issue here are
closely related to those in the operative Complaint. The
Complaint alleged broad violations of class members’ rights
under the ADA. Plaintiffs alleged, for example, that
Defendants “discriminate against [class members] by reason
of their disability,” and that Defendants “failed to make
reasonable accommodations to individuals with disabilities
in the programs, activities, services, benefits, and jobs they
offer.” In the RJD and Five Prisons Motions, Plaintiffs
allege misconduct of the same sort—that Defendants failed
to accommodate class members’ disabilities, in direct
contravention of the ADA.
Defendants protest that the requisite nexus is lacking
between the conduct alleged in the Complaint and that
alleged in Plaintiffs’ motions because the Complaint focuses
narrowly on the provision of accommodations and does not
allege the use of excessive force. But the mere fact that the
ADA violations alleged in Plaintiffs’ motions were
sometimes accompanied by excessive force does not negate
that they were also textbook denials of reasonable
accommodations under the ADA—the precise type of
conduct challenged in the Complaint. For example, in the
RJD Order, the district court recounted an incident in which
an officer punched an inmate in the face when the inmate
requested that the officer communicate with him in writing,
so as to accommodate his hearing disability. Refusing to
communicate in writing with a deaf inmate and beating a
deaf inmate who requests such a method of communication
ARMSTRONG V. NEWSOM 17
are both denials of a reasonable accommodation. That the
allegations raised in Plaintiffs’ recent motions described
violent denials of accommodations makes injunctive relief
all the more appropriate.
Similarly, retaliating against inmates who request
accommodations or who report denials of accommodations
deters inmates from pursuing accommodations in the first
place. The result is that inmates do not receive the
accommodations required by the ADA—exactly what the
Complaint alleged. 8
IV.
We next consider whether the district court’s orders
comport with the Prison Litigation Reform Act of 1995
(“PLRA”). The PLRA sets the standards for when a court
may grant prospective relief concerning prison conditions.
The Act instructs that a “court shall not grant or approve any
prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal
right.” 18 U.S.C. § 3626(a)(1)(A). The PLRA “mean[s] just
what it says—before granting prospective injunctive relief,
the trial court must make the findings” the PLRA mandates.
8
Defendants briefly argue that the district court did not have the
authority to issue the orders in the absence of a finding of a “changed
condition” that hindered Defendants’ compliance with the existing
injunction. But the authority to which Defendants point, America Unites
for Kids v. Rousseau, 985 F.3d 1075 (9th Cir. 2021), describes the
conditions under which a defendant may be relieved from its legal
obligations under a consent decree. See id. at 1097–98. That test does
not apply here, where Plaintiffs are requesting that the court impose
additional obligations on Defendants to effectuate its prior orders.
18 ARMSTRONG V. NEWSOM
Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). We
call those findings the “need-narrowness-intrusiveness”
findings for short, see, e.g., Armstrong v. Schwarzenegger,
622 F.3d 1058, 1070 (9th Cir. 2010), and we review them
for clear error, see Brown v. Plata, 563 U.S. 493, 541 (2011).
A.
In both of its orders, the district court found not only
ongoing violations of class members’ rights at the prisons,
but also a common source of those violations: the lack of
sufficient accountability measures to address officers’
misconduct, which fostered a staff culture of targeting
inmates with disabilities. The record amply supports both
conclusions.
First, plenty of evidence demonstrates ongoing ADA
violations at each of the prisons. Plaintiffs submitted more
than 150 declarations in which inmates described prison staff
denying accommodations to which they were entitled,
retaliating against them for requesting accommodations, and
retaliating against them for reporting officers’ misconduct.
With respect to RJD, the declarations were uncontroverted.
And although Defendants submitted competing declarations
contesting many of the incidents described by inmates at the
Five Prisons, the district court nonetheless identified a dozen
“illustrative” incidents described in the inmate declarations
that were uncontested and “remarkably consistent” across
the different prisons. Plaintiffs’ experts also described
ongoing violations at the prisons, concluding that (as we will
further discuss shortly) the violations were a result of
failures in Defendants’ investigatory and disciplinary
systems. Considered as a whole, the record supports the
district court’s conclusion that there were ongoing violations
at each of the prisons at which it ordered relief. After all, it
ARMSTRONG V. NEWSOM 19
is not simply the number of incidents that matters. “[I]f the
injury is the result of . . . policies or practices pervading the
whole system,” system-wide relief is appropriate even if
only a “relatively small number of plaintiffs” are injured.
Schwarzenegger, 622 F.3d at 1072–73 (quoting Armstrong
v. Davis, 275 F.3d 849, 870 (9th Cir. 2001)).
Second, the failures in Defendants’ investigatory and
disciplinary systems were well illustrated by Plaintiffs’ two
experts, both of whom opined that Defendants’
accountability systems were inadequate systemwide. As one
of the experts described the problems at the Five Prisons,
when prison investigators reviewed a reported incident, they
often “overlooked or intentionally ignored” evidence that
supported the inmate’s version of events or undermined the
officer’s version of events. Relying on a review of inmate
declarations, incident reports, and case files, the expert
described multiple occasions in which investigators
discredited inmates’ reports simply because they conflicted
with prison officials’ versions of the events—a conclusion
that follows only if one assumes that prison officials’
statements are never inaccurate and always truthful. The
other expert described similar problems at RJD, noting that
there is a “deep and ubiquitous” staff bias against disabled
inmates and that inmates’ testimony is commonly
discounted or ignored during investigations there. That
expert ultimately concluded that the failures were systemic
and statewide.
Other evidence in the record also showed failures to
investigate and to discipline wrongdoers. California’s
Office of the Inspector General (“OIG”) issued a report
concluding that the statewide system for investigating
allegations of prison-staff misconduct was flawed and
ineffective. Much like Plaintiffs’ experts, the OIG
20 ARMSTRONG V. NEWSOM
determined that prison investigators “displayed signs of bias
in favor of their fellow staff when conducting their staff
complaint inquiries” and “sometimes ignored corroborating
evidence offered by inmate witnesses.” Defendants’ own
data, produced to Plaintiffs during this litigation, also were
consistent with systemic failures of accountability. The data
showed that, despite dozens of allegations of abuse, only a
relatively small number of incidents resulted in staff
discipline. 9
The district court found that those failures of
accountability corrupted the staff culture at the prisons. As
one expert described the problem, Defendants’ failure to
adequately investigate and discipline misconduct creates a
vicious cycle in which individual failures of accountability
escalate into a prison-wide culture of abuse. If prison staff
are not held accountable when they unlawfully fail to
accommodate disabled inmates—or when they retaliate
against inmates who report such misconduct—disabled
inmates will stop speaking up. And if prisoners do not speak
up, there is less opportunity to hold officers accountable.
Failing to hold officers accountable, in turn, can embolden
staff by suggesting that they can violate inmates’ rights with
impunity—further discouraging disabled inmates from
9
The district court observed that disabled inmates were
“overrepresented” in the proportion of incidents that resulted in staff
discipline. Defendants argue that this observation undermines the
district court’s finding that their disciplinary systems are inadequate,
because it suggests that Defendants were disciplining staff who violated
disabled inmates’ rights. But the data are consistent with another
interpretation—that the incidents of misconduct against disabled inmates
were more egregious than those against non-disabled inmates. That the
evidence is susceptible to competing interpretations does not mean that
the district court clearly erred in its interpretation.
ARMSTRONG V. NEWSOM 21
speaking up, as the threat of retaliation grows.
B.
Defendants raise two specific challenges to the district
court’s conclusions that further relief was necessary at RJD
and the Five Prisons, respectively. We reject both.
1.
First, as to RJD, Defendants argue that judicial
intervention was unnecessary because they already had
taken steps to protect class members’ rights and to improve
accountability at that prison, obviating the need for further
reform there. Defendants do not dispute that ADA violations
occurred at RJD. Rather, they assert that they implemented
several corrective measures at RJD in late 2018, including
additional training for prison staff and changes to several
management positions. Such reforms, they argue, have
addressed the problems that the district court identified.
Defendants point to data showing that reported incidents
involving the use of force decreased in one facility within
RJD by 44% between 2018 and 2019 and that staff-
misconduct complaints at the same facility decreased by
40% over the same period.
The district court found that “reliable inferences about
whether conditions for class members at RJD have improved
cannot be drawn from Defendants’ data.” That conclusion
was reasonable. First, the district court pointed out that
Defendants’ data involved only one facility at RJD, while
other data suggested that reported incidents may have
increased at other facilities within the prison. Second, and
more fundamentally, Defendants’ data concerned reported
incidents involving the use of force. The utility of
Defendants’ data, then, was undermined by the district
22 ARMSTRONG V. NEWSOM
court’s finding—drawn from inmate declarations and expert
reports—that a “significant number” of incidents “are not
reported and therefore not reflected” in the data, at least in
part because of class members’ fear of retaliation by prison
officers.
Defendants quibble with the district court’s
interpretation of the data, arguing that the court erroneously
failed to focus on the period after Defendants implemented
corrective measures. They also contend that the district
court should have looked at per capita figures instead of total
use-of-force incidents, because the prison population
changed over the relevant period. But even if Defendants
have persuasive reasons for their comparator preferences,
the district court’s overarching conclusion was that no
reliable inferences could be drawn from the data, because the
data did not reflect unreported incidents. That conclusion
was reasonable. Moreover, even if conditions were
improving somewhat, the district court referenced numerous
episodes continuing well into 2020 in which RJD staff
violated class members’ rights—a finding that Defendants
do not meaningfully contest. Neither Plaintiffs nor the
district court had to sit idly by while Defendants violated
class members’ rights, even if Defendants were already
making marginal improvements. Cf. Barcia v. Sitkin, 367
F.3d 87, 102–04 (2d Cir. 2004) (holding that the rate of
violations was too high to find that the State was in
compliance with a consent decree, notwithstanding some
improvements). 10
10
Defendants similarly argue that reforms to staff-misconduct policies
were unnecessary at all of the prisons because they reformed their
statewide system for reviewing staff misconduct in 2020. But the district
ARMSTRONG V. NEWSOM 23
2.
Second, as to the Five Prisons, Defendants argue that the
district court erred in relying on evidence of staff misconduct
directed at disabled inmates who were not members of the
Armstrong class, alongside evidence of staff misconduct
directed at Armstrong class members. 11 Defendants further
assert that, once the evidence of violations against disabled
inmates outside the Armstrong class is disregarded, the
record does not support the district court’s determination that
further relief was required at the Five Prisons.
The district court explained its reliance on evidence of
violations against non-class members in two ways. First, the
district court reasoned that it could rely on evidence of staff
misconduct directed at any disabled inmate because such
misconduct violated its prior orders. According to the
district court, many of the court-ordered provisions of the
ARP extend to any “qualified inmate . . . with a disability,”
not merely those inmates whose disabilities fall within the
ambit of the Armstrong class. We need not address
Defendants’ objections to that theory because the district
court was justified in relying on the non-class-member
evidence under its second rationale: that the declarations
were relevant because they contain evidence that is probative
of the conditions that class members experience at the
court considered—and did not err in rejecting—that argument. As the
district court noted, the OIG expressly found in a February 2021 report
that the problems with staff investigations and discipline that it had
documented in its initial report “still persist[],” notwithstanding the
implementation of Defendants’ new system.
11
As noted earlier, it is undisputed that mental illness is not a ground for
Armstrong class inclusion, even if such mental illness renders the inmate
“disabled” within the meaning of the ADA.
24 ARMSTRONG V. NEWSOM
prisons.
The district court was justified in viewing the non-class-
member evidence as highly probative of the conditions faced
by class members. For example, the district court described
an incident at one of the Five Prisons in which an inmate
who suffered from debilitating depression and anxiety was
assaulted by officers after he asked to speak to his mental
health clinician—and then experienced retaliation when he
filed a complaint reporting the misconduct. Although that
inmate’s specific disabilities fell outside the Armstrong class
definition, the incident is probative of Plaintiffs’ claim that
prison officials denied accommodations to disabled inmates
and retaliated against those who reported such denials. More
generally, if an inmate sees officers retaliating against
inmates who request accommodations for their disabilities,
that inmate may think twice before requesting
accommodations of his own, even if his disabilities are of a
different kind. Witnessing retaliation against any disabled
inmate—whether or not the inmate is a member of the
Armstrong class—may accordingly deter class members
from speaking up, contributing to the vicious cycle described
above.
C.
Defendants’ remaining challenges to the district court’s
orders focus on particular provisions of each order that they
claim cannot survive the need-narrowness-intrusiveness
inquiry required by the PLRA. The provisions can be
divided broadly into two buckets: those related to
investigation and discipline, and those that attempt to
prevent misconduct directly. Defendants’ arguments are
unpersuasive as to the first bucket because of the substantial
proof of ongoing systemic failures of accountability that the
ARMSTRONG V. NEWSOM 25
district court had previously—and unsuccessfully—tried to
remedy. As to the second bucket, there is sufficient evidence
that the measures were necessary at RJD, but we agree with
Defendants that there is not enough evidence to support the
ordered measures at the Five Prisons.
1.
Under the PLRA, “[t]he overarching inquiry is ‘whether
the same vindication of federal rights could have been
achieved with less involvement by the court in directing the
details’” of prison operations. Armstrong v. Brown, 768
F.3d 975, 983–84 (9th Cir. 2014) (quoting Schwarzenegger,
622 F.3d at 1071). A district court may, however, “provide
specific instructions to the State without running afoul of the
PLRA.” Id. at 986. In particular, when a district court “has
previously tried to correct the deficiencies” in prison
operations “through less intrusive means, and those attempts
have failed, relief prescribing more specific mechanisms of
compliance is appropriate.” Id.
Less intrusive means have been tried—and have failed—
here. In 2007, the district court ordered Defendants to
“develop a system for holding [prison staff] accountable for
compliance with the Armstrong Remedial Plan and the
orders of this Court.” Five years later, however, “there had
been no meaningful improvement to the State’s tracking and
accountability system,” despite the injunction. Id. at 984.
So the district court tried again, modifying its injunction to
address the specific ways in which Defendants’
accountability system had failed. Id. at 985. We upheld that
modification, holding that, although its terms “might leave
the State less discretion than injunctions typically approved
in the PLRA context,” that “level of intrusiveness [was]
acceptable based on the history and circumstances of the
26 ARMSTRONG V. NEWSOM
case”—particularly, Defendants’ failure to comply with the
previous, less-intrusive remedy. Id. at 986.
We are now back in a similar spot. Given the history and
circumstances of this case, our precedents counsel
heightened deference to the district court’s factual findings.
Keeping this in mind, we hold that the measures ordered by
the district court to improve officers’ accountability comply
with the PLRA.
a.
The district court did not clearly err in finding that the
remedial measures it ordered to address the prisons’
investigatory and disciplinary failures were necessary to
correct violations of class members’ rights. 12 Turning first
to the requirement that Defendants utilize additional
surveillance cameras, the district court did not err in finding
that additional cameras, both stationary and body-worn,
were necessary. With more direct evidence showing what
happened during an incident, it will matter less whether
investigators are inclined to credit officers’ accounts of
incidents over inmates’ accounts. And, as even Defendants’
experts noted, the installation of additional cameras will
itself help to deter further violations.
Defendants argue that it was nonetheless unnecessary to
12
Again, those measures fall into the following categories: (1) installing
fixed surveillance cameras and body-worn cameras; (2) reforming staff
complaint, investigation, and discipline processes; (3) monitoring staff
investigation and discipline processes by a court-appointed expert; (4)
sharing information with Plaintiffs’ counsel and the court expert; (5)
adding more staff training; (6) implementing anti-retaliation
mechanisms; and (7) developing an electronic “early-warning tracking
system” for staff misconduct incidents involving disabled inmates at the
Five Prisons.
ARMSTRONG V. NEWSOM 27
order Defendants to install additional cameras, because the
State was already committed to doing so voluntarily. But
voluntary plans may change. Particularly considering
Defendants’ prior failures to improve their accountability
systems in the absence of specific, court-ordered
instructions, it was reasonable for the district court to include
measures in its orders that Defendants may have adopted
voluntarily. 13 See Brown, 768 F.3d at 985 (holding that the
district court did not err in finding that further relief was
necessary after its previous orders had failed to protect
inmates’ rights). For a similar reason, we affirm the district
court’s requirement that Defendants provide additional staff
training. The mere fact that Defendants already provide
some training to staff does not undermine the district court’s
finding that further training is necessary.
The district court’s requirement that Defendants reform
the complaint process to better investigate, track, and
13
The RJD and Five Prisons Orders required Defendants to retain
indefinitely footage of use-of-force incidents involving disabled inmates.
The remedial plans that the district court ultimately approved, however,
required Defendants to retain such footage for only five years. We hold
that the district court had jurisdiction to make that minor change to its
orders because the change “preserved the status quo and did not
materially alter the status of the case on appeal.” NRDC, Inc. v. Sw.
Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001). We therefore consider
the provision as it appears in the ultimately ordered remedial plans,
rather than in the original orders, for purposes of the need-narrowness-
intrusiveness inquiry. Although Defendants challenged the indefinite
retention period, they do not challenge the five-year retention period—
which, in any event, is an appropriate length of time to ensure that the
footage exists throughout the course of any investigation.
28 ARMSTRONG V. NEWSOM
discipline offending staff members was also justified. 14
Each of those remedial measures was selected to address the
specific shortcomings in Defendants’ accountability systems
that the district court identified, such as Defendants’
frequent failure to initiate investigations into alleged ADA
violations, and their inability to identify staff who repeatedly
violate class members’ rights. Addressing those failures will
help to reform the problematic staff culture of targeting
inmates with disabilities for abuse. And requiring
Defendants to “develop mechanisms” to end and prevent
retaliation against disabled inmates who report violations is
directly responsive to the district court’s finding that prison
staff retaliate against disabled inmates.
Defendants urge us to vacate portions of the district
court’s orders that they contend are redundant and thus
unnecessary. But “[p]rospective relief for institutions as
complex as prisons is a necessarily aggregate endeavor,
composed of multiple elements that work together to redress
violations of the law.” Schwarzenegger, 622 F.3d at 1070.
The district court was not required to take a piecemeal, wait-
and-see approach—for example, by first ordering additional
14
The original orders required Defendants to “ensure that officers
accused of serial violations of the ARP or ADA . . . are reassigned.” The
remedial plans that the district court ultimately approved clarify that
Defendants need not reassign officers automatically based on mere
accusations. Rather, the court approved a policy whereby the hiring
authority considers a range of factors—including the nature of the
allegation, strength of the evidence, and previous misconduct by the
officer—when deciding whether reassignment is appropriate. For the
reasons explained, see supra note 13, we consider the provision as it
appears in the final remedial plans for purposes of the need-narrowness-
intrusiveness inquiry. In its narrower form, that provision appropriately
addresses Defendants’ failure to discipline serial offenders adequately.
ARMSTRONG V. NEWSOM 29
surveillance cameras to see whether they were sufficient to
remedy the situation before also ordering body-worn
cameras. “What is important, and what the PLRA requires,
is a finding that the set of reforms being ordered . . . corrects
the violations of prisoners’ rights with the minimal impact
possible on defendants’ discretion over their policies and
procedures.” Id. at 1071.
In any event, many of the provisions that Defendants
contest as redundant serve distinct purposes. To return to the
same example, the district court reasonably found that body-
worn cameras were necessary, even considering the
requirement that CDCR install additional stationary
surveillance cameras. As one of Plaintiffs’ experts
explained, body-worn cameras can provide information that
stationary surveillance cameras cannot—including sound
and views into remote prison spaces—that will be useful in
investigating alleged misconduct by officers. That expert
also noted that the use of body-worn cameras in prisons has
been shown to result in fewer uses of force, particularly
when used in conjunction with stationary surveillance
cameras.
b.
The district court’s investigatory and disciplinary reform
measures also comply with the PLRA’s requirements that
injunctive relief be narrowly drawn and no more intrusive
than necessary. Arguably the most intrusive of the district
court’s remedial measures was the requirement that
Defendants conduct quarterly interviews of randomly
selected disabled inmates using the methodology and
interview questions that Defendants had utilized in
connection with the 2018 investigation of RJD. But as we
recognized in Armstrong v. Brown, such specificity is
30 ARMSTRONG V. NEWSOM
permissible where, as here, the district court was confronting
noncompliance with its prior, less intrusive, orders. 768
F.3d at 986. The district court included the quarterly
interview requirement to address Defendants’ failure, in
violation of prior court orders, to investigate and track staff
misconduct and to hold staff accountable for ADA
violations. Considering that history, the district court was
justified in concluding that more specific measures were
required to remedy violations of class members’ rights this
time around.
Defendants argue that the remedial measures in the Five
Prisons Order fail the narrowness requirement because the
order repeatedly refers to “disabled inmates,” rather than
simply “class members.” For example, the order requires
that all correctional officers “who may have any interactions
with disabled inmates” wear body cameras and requires
CDCR to “develop an electronic system for tracking all staff
misconduct incidents involving disabled inmates” at the Five
Prisons. But as we explained above, the violations that the
district court sought to remedy stemmed from defective
systems of accountability and a problematic culture whereby
staff targeted disabled inmates for abuse. It would not be
possible to cordon off Armstrong class members from other
disabled inmates for the purposes of establishing effective
accountability measures and reforming the staff culture at
the Five Prisons. And Defendants nowhere contend that the
ordered relief helps non-class members without also helping
class members. The district court therefore did not clearly
err in including all disabled inmates in the scope of the relief
ARMSTRONG V. NEWSOM 31
ordered. 15
2.
We turn now to the measures in the district court’s orders
focused on preventing officer misconduct directly. We
uphold those measures as to RJD, but we cannot affirm them
as to the Five Prisons on the current record.
a.
First, the district court ordered Defendants to develop a
plan to “more effectively monitor and control the use of
pepper spray” by staff at the prisons.
We affirm this measure with respect to RJD. The record
describes numerous incidents in which RJD staff improperly
pepper-sprayed class members—frequently in response to a
class member’s request for a reasonable accommodation or
in retaliation for a class member’s reporting staff
misconduct. In one incident recounted by the district court,
a group of officers tackled an inmate who had become upset
after an officer denied his request to be handcuffed in a way
that accommodated his disability. The inmate blacked out,
and the officers pepper-sprayed him while he was
unconscious. Plaintiffs’ experts, too, described various
incidents in which RJD staff improperly pepper-sprayed
class members. For example, after a wheelchair-bound
inmate told an officer he was going to report him for
unprofessional conduct because the officer called him a
15
Defendants briefly argue that the provision requiring information-
sharing with Plaintiffs’ counsel and the court expert improperly fails to
make exceptions for “applicable privileges.” But as Plaintiffs point out,
there are protective orders in place, and nothing in the orders prevents
Defendants from raising a privilege concern, should one ever arise.
32 ARMSTRONG V. NEWSOM
“retard,” the officer pepper-sprayed the inmate, threw him
from his wheelchair, and stomped on his back. Those and
other incidents support the district court’s finding that
reforms to RJD’s pepper-spray policy are necessary to
correct violations of class members’ rights at RJD. And the
measure itself is narrowly tailored and minimally intrusive
of prison operations—the district court merely ordered
Defendants to “more effectively monitor and control” the
use of pepper spray by staff, without dictating how
Defendants were to do so.
We vacate, however, the pepper-spray measure in the
Five Prisons Order. The evidence on which the district court
relied in finding that this measure was necessary—three
incidents of disabled inmates being pepper-sprayed—was
insufficient to justify the ordered relief. As Plaintiffs point
out, those incidents were not the only ones in the record
describing inmates being pepper-sprayed. But many of the
additional incidents were contested by declarations
submitted by Defendants, and the district court did not
resolve those factual disputes or determine whether the
additional uses of pepper spray were improper. We therefore
decline to consider those additional incidents as evidentiary
support for the district court’s finding that modifications to
the prisons’ pepper-spray policies were necessary to prevent
further violations of class members’ rights at the Five
Prisons. Cf. Schwarzenegger, 622 F.3d at 1073 (considering
only the evidence that the district court relied upon in
making its PLRA findings, despite the existence of further
evidence in the record). As a result, the incidents of pepper-
spray misuse on which the district court relied are not so
pervasive to support a finding of a culture of improper
pepper-spray use targeting inmates. Rather, the pepper-
spray evidence is “composed largely of single incidents that
ARMSTRONG V. NEWSOM 33
could be isolated.” Id. Accordingly, we conclude that the
district court abused its discretion by ordering Defendants to
reform their pepper-spray policies at the Five Prisons.
b.
Second, the district court ordered Defendants to
“significantly increase supervisory staff by posting
additional sergeants” on prison watches. 16 We hold that the
district court was justified in ordering such relief at RJD.
The 2018 “strike team” that CDCR sent to investigate
allegations of staff misconduct at RJD recommended such a
measure, explaining that paperwork demands leave
overworked supervisory staff with little time for active
supervision that would prevent staff misconduct. Even
Defendants’ expert made a similar observation, commenting
on the heavy load of the administrative duties associated
with supervisory positions at RJD and recommending that
CDCR add sergeants at RJD to compensate. We therefore
hold that, on this record, the district court did not err in
finding that additional staff at RJD were necessary to correct
violations of class members’ rights and that the measure was
sufficiently tailored.
But the record does not support an equivalent finding
with respect to the Five Prisons. The reports from both the
strike team and Defendants’ expert concerning overworked
supervisors were specific to RJD, and there were no
equivalent expert opinions about the Five Prisons. Although
16
The original orders required Defendants to post “additional sergeants
on all watches on all yards.” The final orders approved by the district
court, however, increase the sergeants only on some of the watches on
some of the yards. For the reasons described above, see supra note 13,
we consider the narrower provision for the purposes of the need-
narrowness-intrusiveness inquiry.
34 ARMSTRONG V. NEWSOM
the district court found that there was a “pervasive lack of
timely follow through” by prison staff on many allegations
of staff misconduct at the Five Prisons, the record does not
suggest—and the district court did not find—that the failure
stemmed from an insufficient quantity of supervisory staff.
We therefore conclude that the district court abused its
discretion by ordering Defendants to increase supervisory
staff at the Five Prisons.
V.
For the reasons set forth above, we affirm all portions of
the RJD Order. We also affirm all of the Five Prisons Order
except the provisions requiring Defendants to increase
supervisory staffing (Section 5(g)) and to modify pepper-
spray policies (Section 5(j)), which we vacate. 17
No. 20-16921 AFFIRMED. No. 21-15614
AFFIRMED in part, VACATED in part.
17
We address Defendants’ remaining arguments, challenging discovery
and evidentiary rulings the district court made in the process of
adjudicating the Five Prisons Motion, in an unpublished memorandum
disposition filed concurrently with this opinion.