Marciano Plata v. Arnold Schwarzenegger ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCIANO PLATA, 
Plaintiff-Appellee,
J. CLARK KELSO, No. 08-17412
Receiver,
v.  D.C. No.
3:01-cv-01351-TEH
ARNOLD SCHWARZENEGGER,
Governor; JOHN CHIANG,
Controller,
Defendants-Appellants.

In re: ARNOLD SCHWARZENEGGER, et 
al.,
ARNOLD SCHWARZENEGGER, et al.,
Petitioners,
No. 08-74778
v.
UNITED STATES DISTRICT  D.C. No.
3:01-cv-01351-TEH
COURT FOR THE NORTHERN
DISTRICT OF CALIFORNIA (SAN OPINION
FRANCISCO),
Respondent,
MARCIANO PLATA, et al.; J. CLARK
KELSO, Receiver,
Real Parties in Interest.

Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
3585
3586 PLATA v. SCHWARZENEGGER
Argued and Submitted
February 12, 2009—San Francisco, California
Filed March 25, 2009
Before: Mary M. Schroeder, William C. Canby, Jr. and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Canby
PLATA v. SCHWARZENEGGER 3589
COUNSEL
Daniel J. Powell, Deputy Attorney General, California
Department of Justice, San Francisco, California, for the
defendants-appellants/petitioners.
James J. Brosnahan, Morrison & Foerster, LLP, San Fran-
cisco, California, for the receiver, J. Clark Kelso.
OPINION
CANBY, Circuit Judge:
This case arises out of a receivership created by the district
court to oversee the provision of health care at prisons under
3590 PLATA v. SCHWARZENEGGER
the jurisdiction of the California Department of Corrections
and Rehabilitation (“CDCR”). J. Clark Kelso (“the Receiver”)
brought a motion for contempt against California Governor
Arnold Schwarzenegger and California State Controller John
Chiang (“the State”) for failure to fund the Receiver’s capital
projects. After a hearing, the district court entered an order on
October 27, 2008 (“the Order” or “the October 27 Order”),
which directed the State to transfer $250 million to the
Receiver by November 5, 2008, and to appear in a contempt
hearing shortly after that date if it had not done so. The State
appeals on the grounds that the October 27 Order violates
California’s Eleventh Amendment immunity and the Prison
Litigation Reform Act, 18 U.S.C. § 3626 (“PLRA”). Alterna-
tively, the State asks this court to issue a writ of mandamus
to halt the implementation of the October 27 Order. Because
the October 27 Order clearly contemplates further proceed-
ings, rendering it non-final, we dismiss this appeal for lack of
jurisdiction. We also conclude that the requirements for issu-
ance of the extraordinary writ of mandamus are not met, and
we accordingly deny the petition for mandamus.
Factual Background
This litigation has a long history, of which we will set forth
only a few segments. In 2001, the plaintiffs in this case
brought this class action on behalf of the inmates of the Cali-
fornia state prisons, alleging that state officials were provid-
ing inadequate health care in violation of the Eighth
Amendment and the Americans with Disabilities Act. In 2002
and 2004, the district court entered orders, to which the plain-
tiffs and the State stipulated, intended to remedy these viola-
tions. Following six days of evidentiary hearings in 2005, the
district court issued findings detailing a long history of consti-
tutional violations and a failure of California to comply with
remedial orders. California admitted that it was unable to
comply with the injunctive relief to which it had stipulated. In
response, the district court in 2006 appointed a Receiver and
conferred upon him all of the powers of the Secretary of
PLATA v. SCHWARZENEGGER 3591
CDCR with respect to delivery of medical services. The State
did not appeal the order appointing the receiver. See 28
U.S.C. § 1292(a)(2) (authorizing interlocutory appeal from
order appointing receiver).
The order appointing the Receiver stated that the purpose
of the Receiver was to “effectuate the restructuring and devel-
opment of a constitutionally adequate medical health care
delivery system” with the goal of “developing, implementing,
and validating a new, sustainable system that provides consti-
tutionally adequate medical care to all class members as soon
as practicable.” This order required that the state pay for all
the costs of implementing the Receiver’s policies, plans, and
decisions. It also required that the Receiver file reports detail-
ing his remedial plans, including a frequently-updated “Plan
of Action,” which has, at various times, included plans to con-
struct new facilities.
In May 2007, the Receiver filed a Plan of Action draft
which called for construction of 10,000 new beds. In
response, California joined the Receiver’s motion to modify
the original stipulated orders in order to accommodate “the
changed circumstances reflected by the need for [the Receiv-
er’s] appointment, and in order to facilitate implementation of
the [Plan of Action].” The district court granted this motion.
The Receiver also applied for an Order Waiving State Con-
tracting Statutes in order to effectuate this plan. This applica-
tion discussed plans to construct a new medical facility, and
California filed a statement of non-opposition in response. A
second draft of the “Plan of Action” was filed by the Receiver
in November 2007, and again California made no objections.
Finally, in March 2008, the Receiver released a draft of a
“Turnaround Plan of Action,” which stated that the Receiver
“will supervise the creation of expanded prison health facili-
ties and housing for approximately 6% of CDCR’s existing
inmate population (i.e., approximately 10,000 inmates).” The
Receiver accepted public comments from various sources,
including the State, and filed this plan in June 2008. The dis-
3592 PLATA v. SCHWARZENEGGER
trict court issued an order approving the Turnaround Plan, and
California did not object to or appeal from this order.
In July 2008, the Receiver requested $204.6 million that it
claimed was necessary to continue with the implementation of
its described plans. California refused to comply, and on
August 13, 2008, the Receiver filed a motion for an order
holding California in contempt for failure to fund these proj-
ects. On October 27, 2008, the district court held a hearing
scheduled as an “intermediate step short of a contempt find-
ing.” After the hearing, in which California stated in its brief
that it was “unable to provide any of the unencumbered [pre-
viously appropriated] funds to the Receiver,” the district court
issued the October 27 Order discussed in greater detail below.
California filed a notice of appeal and sought a stay from the
district court, which was denied. That same day, this court
granted an emergency motion for a stay and set an expedited
briefing schedule. As an alternative to its appeal, the State
also filed a petition for mandamus, which is consolidated with
the appeal for purposes of this opinion.
Discussion
1. The Appeal.
[1] The relevant portion of the October 27 Order states:
(1) Defendants are to transfer $250 million to the
Receiver no later than November 5, 2008.
(2) If Defendants fail to transfer $250 million to
the Receiver by November 5, 2008, Defendants are
hereby ORDERED TO SHOW CAUSE starting at
9:00 AM on November 12, 2008, or as soon thereaf-
ter as counsel may be heard, why they should not be
held in contempt for failing to comply with this
Order to continue funding implementation of the
Receiver’s previously approved plans. On November
PLATA v. SCHWARZENEGGER 3593
7, 2008, the parties shall file with the Court a notice
identifying any witnesses they intend to call at the
hearing. The Court will issue a more detailed sched-
uling order, including time limits, closer to the hear-
ing date.
(Emphasis added). The Receiver and California characterize
this Order in drastically different ways, but essentially differ
on whether or not it is “final” as required for this court to
assert jurisdiction. See 28 U.S.C. § 1291. We agree with the
Receiver that the October 27 Order is not final, but is rather
an interim step toward further proceedings. A civil contempt
order is ordinarily not appealable until the district court has
adjudicated the contempt motion and applied sanctions. SEC
v. Hickey, 322 F.3d 1123, 1127 (9th Cir. 2003). On that
ground alone, the October 27 Order is unappealable.
[2] The State argues that awaiting sanctions will not enable
it to raise the challenges it seeks to raise here, because ordi-
narily a litigant defending a contempt charge may not raise
objections to the underlying order that it violated. See United
States v. Ayres, 166 F.3d 991, 995 (9th Cir. 1999). That
dilemma may simply be a consequence of the State’s failure
to follow more appropriate procedures, which we will discuss,
to challenge the receivership and its plans. In any event, we
are not entirely convinced that the district court’s order so
confines the proposed proceedings. The district court’s call
for a witness list and its notification of a further scheduling
order suggests a hearing in which more is at issue than
whether or not the State has delivered the $250 million. At the
very least, we are left with considerable uncertainty whether
the October 27 Order might have been affected or changed as
a result of the proposed hearing. We also lack the benefit of
a written district court decision addressing California’s argu-
ments regarding the Eleventh Amendment and the PLRA. In
short, we see no reason to deviate from the ordinary rule that
renders the district court’s order non-final for purposes of
3594 PLATA v. SCHWARZENEGGER
appeal. If the district court sanctions the State defendants for
contempt, they can appeal.
[3] The October 27 Order also is not appealable as a “post
judgment order” under United States v. State of Washington,
761 F.2d 1404 (9th Cir. 1985). It is true that orders that relate
to fully adjudicated issues, including those that are currently
controlled by a consent decree,1 do not implicate the same
concerns that emerge when an appeal of an issue that has not
been adjudicated is heard. See id. at 1406. Nevertheless, these
orders, too, are “fully adjudicated” in the appropriate sense
only if the order finally adjudges the contempt and imposes
sanctions. See Stone v. City & County of San Francisco, 968
F.2d 850, 854-55 (9th Cir. 1992); accord Hickey, 322 F.3d at
1127 (“an adjudication of civil contempt is not appealable
until sanctions have been imposed”) (internal quotation omit-
ted); Shuffler v. Heritage Bank, 720 F.2d 1141, 1145 (9th Cir.
1983) (“Once the finding of contempt has been made and a
sanction imposed, the order has acquired all the elements of
operativeness and consequence necessary . . . to have the sta-
tus of a final decision under § 1291.”) (internal quotation
marks and citation omitted).
[4] The State argues that this precedent does not apply
because the October 27 Order is not a “contempt order”
within the meaning of these cases. Rather, the State argues
that the second half of the Order, which schedules a hearing
to show cause, is merely a recitation of the unstated presump-
tion that contempt proceedings may always follow if a party
fails to act in accordance with a court’s order. The October 27
Order, however, clearly follows from the Receiver’s motion
to find the State in contempt. The ordinary rule that contempt
orders are not appealable until sanctions are imposed thus
governs. Moreover, for reasons already stated, we remain
unconvinced in light of the text of the Order and the broader
1
The parties use the term “consent decree” to refer to the original stipu-
lated orders entered in this case. We use the term similarly herein.
PLATA v. SCHWARZENEGGER 3595
posture of this case that the October 27 Order is “final” and
will not undergo any further modification by the district court.
See Way v. County of Ventura, 348 F.3d 808, 810 (9th Cir.
2003) (“An order is final . . . if it (1) is a full adjudication of
the issues, and (2) clearly evidences the judge’s intention that
it be the court’s final act in the matter.”) (quotation omitted).
Again, if the Order remains as it is and is enforced with con-
tempt sanctions, that ruling can be appealed.
[5] Finally, the State’s other two claimed bases for jurisdic-
tion are not convincing. This is not a “collateral” order under
relevant precedent. In order to be considered as such, it would
have to “conclusively determine the disputed question,
resolve an important issue completely separate from the mer-
its of the action, and be effectively unreviewable on appeal
from a final judgment.” Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978) (footnote omitted). None of these three
factors exists in this case, because the challenges the State
seeks to raise here are fully intertwined with the central valid-
ity of the underlying litigation, the consent decrees, the
receivership and its plans. Those challenges can be raised on
appeal when they are presented in appropriate form to the dis-
trict court and ruled upon in a final order.
[6] Nor is the October 27 Order reviewable as an “affirma-
tive injunction” or an order for the immediate payment of
funds. An order requiring a party to pay money to a receiver
made pursuant to a previously unappealed order appointing
the receiver “does not constitute an ‘injunction’ within the
meaning of 28 U.S.C. § 1292(a)(1).” FTC v. Overseas Unlim-
ited Agency, Inc., 873 F.2d 1233, 1235 (9th Cir. 1989). The
October 27 Order falls squarely within this description. An
order issued after a consent decree can be heard on appeal as
an “affirmative injunction” only if it modifies the previous
consent decree. See Thompson v. Enomoto, 815 F.2d 1323,
1327 (9th Cir. 1987) (an order is not appealable as an affirma-
tive injunction when it is “pursuant to, and not a modification
of,” the consent decree). Certainly nothing in the October 27
3596 PLATA v. SCHWARZENEGGER
Order modified the consent orders; indeed, the October 27
Order clearly seems to be founded in the earlier consent
orders and the receivership that was imposed to enforce them.
Therefore we cannot entertain a challenge to the October 27
Order as an “affirmative injunction” under 28 U.S.C.
§ 1292(a)(1).
[7] The entire context of the district court proceedings
makes clear to us that the State is trying to make the appeal
of the October 27 Order carry more weight than it can bear.
The Order appears to have been issued pursuant to the under-
lying consent decree and the Order Appointing Receiver,
which the State did not appeal. A central procedural difficulty
with this appeal is that the State’s grounds—alleged violations
of the State’s Eleventh Amendment immunity and of the
PLRA—are more properly addressed to the consent orders or
the receivership itself. Certainly the original consent of the
State to the proceedings may affect or even negate its claim
of Eleventh Amendment immunity, and its consent equally
may affect the claim of violation of the PLRA. The parties
present greatly different views of just what the State has con-
sented to. Yet the district court has never been called upon to
rule on any of these questions, which may require evidentiary
proceedings to resolve. The State, to our knowledge, has not
moved for relief from the consent orders under the PLRA, 18
U.S.C. § 3626(b). Gilmore v. California, 220 F.3d 987, 999
(9th Cir. 2000) (“If prospective relief has already been
granted by a court, § 3626(b) controls.”). Very recently, while
this appeal was pending, the State advised us that it had filed
in the district court a Motion to Replace Receiver with a Spe-
cial Master and to Terminate the Receiver’s Construction
Plan. Proceedings in response to that motion, or to a motion
for relief from the consent decree if the State should deem it
advisable to file one, are proper vehicles for addressing in the
first instance the objections the State seeks to raise on this
appeal without a sufficient district court record. The district
court in further proceedings, either on a motion to remove the
Receiver and to terminate his construction plan, or perhaps on
PLATA v. SCHWARZENEGGER 3597
a motion for contempt, can address these larger questions and
create a record that will permit further review. We also note
that a tentative order for the release of large numbers of the
State’s prisoners has been entered in a related case. See Cole-
man v. Schwarzenegger, Nos. CIV S-90-0520, C01-1351,
2009 WL 330960 (E.D.Cal. Feb. 9, 2009). That event, too,
may lead to modifications in the district court of orders of
which the State complains here. In that event, those further
orders of the district court, when final, will be appealable. We
are convinced, however, that the attempt to raise issues chal-
lenging the receivership or the consent decree in this appeal
of the October 27 Order is premature, and that the Order as
it stands is not appealable.
2. Mandamus.
[8] We also deny the State’s petition for a writ of manda-
mus. The standards for issuance of that writ are set forth in
this court’s decision in Bauman v. United States Dist. Court,
557 F.2d 650 (9th Cir. 1977). We must consider the following
five factors to determine whether mandamus is appropriate:
(1) The party seeking the writ has no other ade-
quate means, such as a direct appeal, to attain the
relief he or she desires.
(2) The petitioner will be damaged or prejudiced
in a way not correctable on appeal. (This guideline
is closely related to the first.)
(3) The district court’s order is clearly erroneous
as a matter of law.
(4) The district court’s order is an oft-repeated
error, or manifests a persistent disregard of the fed-
eral rules.
3598 PLATA v. SCHWARZENEGGER
(5) The district court’s order raises new and
important problems, or issues of law of first impres-
sion.
Id. at 654-55 (internal citations omitted). “The considerations
are cumulative and proper disposition will often require a bal-
ancing of conflicting indicators.” Id. at 655.
[9] Analysis of the Bauman factors does not support the
issuance of a writ in this case. As to the first Bauman factor,
the State can appeal a final order of the district court finding
it in contempt. Stone, 968 F.2d at 854-55 (9th Cir. 1992);
Hickey, 322 F.3d at 1127. It is true, as the State contends, that
a court may issue a writ of mandamus petition to strike down
an order when contempt for violation of the order was con-
templated but not yet adjudged by the district court. See In re
Philippine Nat’l Bank, 397 F.3d 768, 771, 774 (9th Cir.
2005). The State’s petition makes clear, however, that the
State seeks review of larger questions going beyond the order
for which the writ is sought. The petition states:
While the district court’s order involved the not-
insignificant sum of $250 million, the relief sought
by the Receiver—$8 billion over four years, includ-
ing $3.2 billion in this fiscal year alone—illustrates
the unprecedented scope of the district court’s order
and why the exercise of this Court’s extraordinary
authority to issue a writ of mandamus is justified, if
not compelled.
As we have already pointed out, the Order did not address
these larger questions, which the district court may deal with
in further proceedings that lead to appealable orders regarding
the receivership and construction program.
[10] The State contends that the second Bauman factor
favors the State because it may be forced to pay $250 million
for an “illegal” construction project. We are presented, how-
PLATA v. SCHWARZENEGGER 3599
ever, with an insufficient record to determine whether the
construction project is illegal. Further appropriate proceedings
in the district court, not confined to the issue whether the
State has paid the $250 million, will permit review of that
issue. Mandamus at this point would be premature.
[11] The third Bauman factor also cuts against relief in this
situation. For reasons already stated, we cannot rule defini-
tively on the substance of California’s claims, which are not
properly before this court on direct appeal and are not resolv-
able on this record for purposes of mandamus. We are satis-
fied, however, that the district court’s October 27 Order is not
“clearly erroneous” as required by Bauman. It followed from
consent orders and a receivership that had not been contested
by the State at the time the Order issued. Whether the Order
was erroneous, despite the ample history indicating the State’s
consent to the foundations from which the Order sprang, may
or may not be open to debate when all factual issues have
been resolved, but on the present record the Order is not
clearly erroneous.
[12] The fourth Bauman factor does not aid the State. The
district court in these proceedings has largely operated with
the consent of the parties. There is nothing in the record to
suggest that it has engaged in “oft-repeated error” or “mani-
fest[ed] a persistent disregard of the federal rules.” Bauman,
557 F.2d at 655.
[13] Finally, the fifth Bauman factor does not support issu-
ance of a writ. Although the State presents important ques-
tions, which may be matters of first impression, concerning
the Eleventh Amendment, the PLRA, and the prison construc-
tion program as a whole, none of those challenges has been
properly raised in the district court. Many or all of them may
be addressed in response to the State’s motion, now pending
in the district court, to remove the Receiver and terminate his
construction program. It would be most inappropriate for this
court to address those issues by the extraordinary writ of man-
3600 PLATA v. SCHWARZENEGGER
damus before the district court has dealt with them. We
accordingly deny the petition for writ of mandamus.
No. 08-17412: APPEAL DISMISSED.
No. 08-74778: PETITION FOR WRIT OF MANDA-
MUS DENIED.