1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ramon Luis Mendoza, No. CV 21-00829-PHX-MTL (DMF) 10 Plaintiff, 11 vs. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff Ramon Luis Mendoza, who is confined in the Arizona State Prison 16 Complex (ASPC)-Lewis, Buckley Unit, brought this pro se civil rights action under 42 17 U.S.C. § 1983 against multiple Arizona Department of Corrections, Rehabilitation, and 18 Reentry (ADCRR) officials. (Doc. 1.) Before the Court is Plaintiff’s Motion for 19 Temporary Restraining Order and Preliminary Injunction. (Doc. 72.)1 The Court will deny 20 Plaintiff’s Motion. 21 I. Background 22 Plaintiff’s claims arose when he was transferred from close custody confinement to 23 the ASPC-Eyman, Browning Unit, which is a maximum custody facility. (Doc. 6 ¶ 1.) 24 Plaintiff alleged that confinement in the Browning Unit imposes an atypical and significant 25 hardship in relation to the ordinary incidents of prison life due to extreme conditions. (Id. 26 ¶¶ 45–50.) 27
28 1 Also before the Court is Defendants’ Motion for Summary Judgment (Doc. 77), which will be addressed by a separate order. 1 Plaintiff stated that, previously, he had a security threat group (STG) maximum 2 custody assignment, which resulted in ineligibility for early release, good time, or other 3 credits unless he renounced or successfully completed ADCRR’s Step-Down Program. 4 (Id. ¶ 56.) Plaintiff asserted that he successfully completed the Step-Down Program, left 5 the Browning Unit as an “inactive” STG member, and was placed in close custody 6 confinement in March 2018. (Id. ¶¶ 3, 40.) 7 Plaintiff alleged that, on January 23, 2021, without any valid explanation, his status 8 as an “inactive” STG member was revoked, he was removed from the Step-Down Program, 9 he was “remanded/transferred” to the Browning Unit, and he was designated as an “active” 10 STG member. (Id. ¶¶ 1–2, 5–6.) Plaintiff alleged that, prior to this transfer, he did not 11 receive any proper notice, a hearing, or an opportunity to be heard. (Id. ¶¶ 1, 5, 16.) 12 In Count One of his Complaint, Plaintiff alleged that he was denied due process in 13 violation of the Fourteenth Amendment when he was moved to the Browning Unit in 14 January 2021, that he was subjected to conditions of confinement that constitute an atypical 15 and significant hardship, and that he was denied any meaningful review of his classification 16 and his continued confinement in the Browning Unit. (Id. ¶¶ 29, 37.) He alleged that the 17 denial of due process resulted from policies and practices approved and implemented by 18 Defendant Shinn. (Id. ¶¶ 35–36.) Plaintiff further alleged that Defendants Warden W. 19 Hensley, Regional Operations Director Kevin Curran, SSU Supervisor Carlos Reyna, 20 Supervisor Lance Uehling, Lieutenant Steve Young, Correctional Officer (CO) David 21 Lewis, Deputy Warden Panann Days, Classification Administrator Evangelina C. Flores, 22 Offender Service Bureau Administrator Stacy Crabtree, Associate Deputy Warden Orin 23 Romney, and CO DeLaCruz are liable based on their roles in authorizing, ratifying, and 24 acquiescing in the actions that led to the violation of his due process rights. (Id. ¶¶ 13, 15, 25 18–20, 22–25, 28, 40.) 26 In Count Two, Plaintiff alleged that the inhumane conditions of confinement in the 27 Browning Unit constitute cruel and unusual punishment in violation of the Eighth 28 Amendment. (Id. ¶¶ 42, 54, 57, 60, 67.) 1 On screening, the Court determined that, in Count One, Plaintiff sufficiently stated 2 a Fourteenth Amendment due process claim against Shinn in his official capacity and 3 against the other named Defendants in their individual capacities based on their roles in 4 Plaintiff’s January 2021 transfer back to the Browning Unit. (Doc. 8 at 11.) The Court 5 also determined that, in Count Two, Plaintiff sufficiently stated an Eighth Amendment 6 conditions-of-confinement claim against Shinn in his official capacity. (Id. at 11–12.) 7 On August 19, 2022, Plaintiff filed the pending Motion for Emergency Temporary 8 Restraining Order and Preliminary Injunction.2 (Doc. 72.) Plaintiff seeks to enjoin 9 Defendants from enforcing, at the time of filing, an upcoming ex post facto revocation 10 hearing scheduled for August 24, 2022, and he seeks to enjoin Defendants from enforcing 11 that part of ADCRR Department Order 806, amended in April 2021, that relates to STG 12 validations and classifications and Step-Down status, removals, and revocations. (Id.) 13 II. Preliminary Injunction Standard 14 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 15 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 16 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 17 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 18 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 19 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 20 obligation to enforce the constitutional rights of all persons, including prisoners” and must 21 not “allow constitutional violations to continue simply because a remedy would involve 22 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037, 23 1047 (9th Cir. 2021) (citation omitted). 24 A plaintiff seeking a preliminary injunction must show: (1) he is likely to succeed 25 on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; 26 (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. 27 28 2 The Motion will be construed as a Motion for Preliminary Injunction, only, because the August 24, 2022, revocation hearing has passed. 1 Winter, 555 U.S. at 20. When the government opposes a preliminary injunction, “[t]he 2 third and fourth factors of the preliminary-injunction test—balance of equities and public 3 interest—merge into one inquiry.” Porretti, 11 F.4th at 1047. The “balance of equities” 4 concerns the burdens or hardships to a prisoner complainant compared with the burden on 5 the government defendants if an injunction is ordered. Id. The public interest mostly 6 concerns the injunction’s impact on nonparties rather than parties. Id. (citation omitted). 7 Regardless, “[i]t is always in the public interest to prevent the violation of a party’s 8 constitutional rights.” Id. (citation omitted). 9 Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction, 10 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 11 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 12 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 13 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 14 (9th Cir. 2009)). 15 Further, under the Prison Litigation Reform Act, injunctive relief must be narrowly 16 drawn and be the least intrusive means necessary to correct the harm. 18 U.S.C. § 17 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000). 18 III.
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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ramon Luis Mendoza, No. CV 21-00829-PHX-MTL (DMF) 10 Plaintiff, 11 vs. ORDER 12 David Shinn, et al., 13 Defendants.
14 15 Plaintiff Ramon Luis Mendoza, who is confined in the Arizona State Prison 16 Complex (ASPC)-Lewis, Buckley Unit, brought this pro se civil rights action under 42 17 U.S.C. § 1983 against multiple Arizona Department of Corrections, Rehabilitation, and 18 Reentry (ADCRR) officials. (Doc. 1.) Before the Court is Plaintiff’s Motion for 19 Temporary Restraining Order and Preliminary Injunction. (Doc. 72.)1 The Court will deny 20 Plaintiff’s Motion. 21 I. Background 22 Plaintiff’s claims arose when he was transferred from close custody confinement to 23 the ASPC-Eyman, Browning Unit, which is a maximum custody facility. (Doc. 6 ¶ 1.) 24 Plaintiff alleged that confinement in the Browning Unit imposes an atypical and significant 25 hardship in relation to the ordinary incidents of prison life due to extreme conditions. (Id. 26 ¶¶ 45–50.) 27
28 1 Also before the Court is Defendants’ Motion for Summary Judgment (Doc. 77), which will be addressed by a separate order. 1 Plaintiff stated that, previously, he had a security threat group (STG) maximum 2 custody assignment, which resulted in ineligibility for early release, good time, or other 3 credits unless he renounced or successfully completed ADCRR’s Step-Down Program. 4 (Id. ¶ 56.) Plaintiff asserted that he successfully completed the Step-Down Program, left 5 the Browning Unit as an “inactive” STG member, and was placed in close custody 6 confinement in March 2018. (Id. ¶¶ 3, 40.) 7 Plaintiff alleged that, on January 23, 2021, without any valid explanation, his status 8 as an “inactive” STG member was revoked, he was removed from the Step-Down Program, 9 he was “remanded/transferred” to the Browning Unit, and he was designated as an “active” 10 STG member. (Id. ¶¶ 1–2, 5–6.) Plaintiff alleged that, prior to this transfer, he did not 11 receive any proper notice, a hearing, or an opportunity to be heard. (Id. ¶¶ 1, 5, 16.) 12 In Count One of his Complaint, Plaintiff alleged that he was denied due process in 13 violation of the Fourteenth Amendment when he was moved to the Browning Unit in 14 January 2021, that he was subjected to conditions of confinement that constitute an atypical 15 and significant hardship, and that he was denied any meaningful review of his classification 16 and his continued confinement in the Browning Unit. (Id. ¶¶ 29, 37.) He alleged that the 17 denial of due process resulted from policies and practices approved and implemented by 18 Defendant Shinn. (Id. ¶¶ 35–36.) Plaintiff further alleged that Defendants Warden W. 19 Hensley, Regional Operations Director Kevin Curran, SSU Supervisor Carlos Reyna, 20 Supervisor Lance Uehling, Lieutenant Steve Young, Correctional Officer (CO) David 21 Lewis, Deputy Warden Panann Days, Classification Administrator Evangelina C. Flores, 22 Offender Service Bureau Administrator Stacy Crabtree, Associate Deputy Warden Orin 23 Romney, and CO DeLaCruz are liable based on their roles in authorizing, ratifying, and 24 acquiescing in the actions that led to the violation of his due process rights. (Id. ¶¶ 13, 15, 25 18–20, 22–25, 28, 40.) 26 In Count Two, Plaintiff alleged that the inhumane conditions of confinement in the 27 Browning Unit constitute cruel and unusual punishment in violation of the Eighth 28 Amendment. (Id. ¶¶ 42, 54, 57, 60, 67.) 1 On screening, the Court determined that, in Count One, Plaintiff sufficiently stated 2 a Fourteenth Amendment due process claim against Shinn in his official capacity and 3 against the other named Defendants in their individual capacities based on their roles in 4 Plaintiff’s January 2021 transfer back to the Browning Unit. (Doc. 8 at 11.) The Court 5 also determined that, in Count Two, Plaintiff sufficiently stated an Eighth Amendment 6 conditions-of-confinement claim against Shinn in his official capacity. (Id. at 11–12.) 7 On August 19, 2022, Plaintiff filed the pending Motion for Emergency Temporary 8 Restraining Order and Preliminary Injunction.2 (Doc. 72.) Plaintiff seeks to enjoin 9 Defendants from enforcing, at the time of filing, an upcoming ex post facto revocation 10 hearing scheduled for August 24, 2022, and he seeks to enjoin Defendants from enforcing 11 that part of ADCRR Department Order 806, amended in April 2021, that relates to STG 12 validations and classifications and Step-Down status, removals, and revocations. (Id.) 13 II. Preliminary Injunction Standard 14 “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should 15 not be granted unless the movant, by a clear showing, carries the burden of persuasion.’” 16 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 17 U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555 18 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy 19 never awarded as of right”). Nonetheless, “federal courts must not shrink from their 20 obligation to enforce the constitutional rights of all persons, including prisoners” and must 21 not “allow constitutional violations to continue simply because a remedy would involve 22 intrusion into the realm of prison administration.” Porretti v. Dzurenda, 11 F.4th 1037, 23 1047 (9th Cir. 2021) (citation omitted). 24 A plaintiff seeking a preliminary injunction must show: (1) he is likely to succeed 25 on the merits; (2) he is likely to suffer irreparable harm in the absence of injunctive relief; 26 (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. 27 28 2 The Motion will be construed as a Motion for Preliminary Injunction, only, because the August 24, 2022, revocation hearing has passed. 1 Winter, 555 U.S. at 20. When the government opposes a preliminary injunction, “[t]he 2 third and fourth factors of the preliminary-injunction test—balance of equities and public 3 interest—merge into one inquiry.” Porretti, 11 F.4th at 1047. The “balance of equities” 4 concerns the burdens or hardships to a prisoner complainant compared with the burden on 5 the government defendants if an injunction is ordered. Id. The public interest mostly 6 concerns the injunction’s impact on nonparties rather than parties. Id. (citation omitted). 7 Regardless, “[i]t is always in the public interest to prevent the violation of a party’s 8 constitutional rights.” Id. (citation omitted). 9 Where a plaintiff seeks a mandatory injunction, rather than a prohibitory injunction, 10 injunctive relief is “subject to a higher standard” and is “permissible when ‘extreme or very 11 serious damage will result’ that is not ‘capable of compensation in damages,’ and the merits 12 of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 13 (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 14 (9th Cir. 2009)). 15 Further, under the Prison Litigation Reform Act, injunctive relief must be narrowly 16 drawn and be the least intrusive means necessary to correct the harm. 18 U.S.C. § 17 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000). 18 III. Relevant Facts 19 If a prisoner is validated as an STG member, he is assigned to “maximum security- 20 validated segregation,” or maximum custody, which is highly restrictive, with conditions 21 including extreme isolation; deprivation of environmental or sensory stimuli; confinement 22 in constantly illuminated 8’ by 10’ windowless concrete cells; limited calories and all meals 23 in cells; no physical contact; no contact visits; restricted recreation; minimal programming; 24 and strip searches upon any cell movement. (Doc. 72-1 at 5, Pl. Decl. ¶¶ 5–14; Doc. 5 25 ¶¶ 45–50.) 26 After a prisoner has been validated as an STG member, the prisoner may remove 27 the STG validation or status either by debriefing and renouncing membership, or by 28 successfully completing the Step-Down Program. (Id. ¶¶ 15, 16; see Doc. 72-1 at 58–59.) 1 Plaintiff asserts that renouncing comes with a risk of reprisals, and it does not guarantee 2 that the prisoner renouncing will be released from maximum custody or have the STG 3 status removed. (Doc. 72-1 at 5, Pl. Decl. ¶ 17.) Plaintiff states that prisoners who 4 renounce and are reviewed remain in maximum custody. (Id.) 5 In 2012, Plaintiff was validated as an STG member. (Doc. 78 at 4.) In November 6 2016, Plaintiff was enrolled in the Step-Down Program, which consists of three phases, 7 each phase lasting 180 days. (Doc. 72-1 at 5 ¶ 19, see Doc. 71-1 at 60.) According to 8 Department Order 806, which governs STGs, upon completion of the 18-month Step- 9 Down Program, a prisoner may be eligible for transfer out of maximum custody and moved 10 to a designated close custody general population unit. (Doc. 72-1 at 5–6, Pl. Decl. ¶ 20, 11 see Doc. 71-1 at 62.) A prisoner is eligible to reintegrate into close custody when he 12 successfully completes the Step-Down Program, and his behavior demonstrates that he 13 does not pose a threat to staff, prisoners, or the safe and secure operations of the prison. 14 (Doc. 78 at 3.) If a prisoner successfully completes the 18-month program and passes a 15 polygraph, he is eligible for close custody. (Id.) 16 In March 2018, Plaintiff successfully completed the Step-Down Process and passed 17 a polygraph examination. (Doc. 72-1 at 6, Pl. Decl. ¶¶ 21–22.) It was determined that he 18 was eligible for classification/custody reduction, and he was released from maximum 19 custody. (Id.) Plaintiff was transferred to a transitional program—Phase IV of the Step- 20 Down Program—at a close custody facility for four weeks, after which his status was 21 modified to “completed.” (Id. ¶¶ 23–24.) He was then restored to pre-STG status and 22 permitted, among other benefits, time credits; double cell living; contact food visits; 23 programing; and better medical, food, and recreation. (Id. ¶ 25.) Phase V of the Step-Down 24 Program is an indefinite period of monitoring for Step-Down prisoners. (Doc. 78 at 3.) 25 Plaintiff was housed at this status and received the above privileges for 26 approximately three years, until January 23, 2021, when he was suddenly transferred back 27 to maximum custody at the Browning Unit. (Doc. 72-1 at 6, Pl. Decl. ¶ 26.) 28 On January 21, 2021, Plaintiff had been disciplined for threatening or intimidating 1 staff, and, on January 23, 2021, Plaintiff had been disciplined for possessing a prohibited 2 communications device. (Doc. 78 at 5, Exs. 2–3.) Defendant Lieutenant Young 3 recommended that Plaintiff be removed from the Step-Down Program based on these 4 violations, and Defendants Investigative Manager Williams and Regional Operations 5 Director Curran agreed with the recommendation. (Id.; Doc. 72-1 at 36, Resp. to Interrog. 6 No. 2.) Defendant Uehling signed off on the removal on behalf of Defendant Williams. 7 (Id.) 8 On February 8, 2021, Plaintiff filed an Inmate Letter to the Central Office 9 complaining that he was assigned to maximum custody without any notice and without a 10 hearing at which to defend against the reasons for revoking his Step-Down status. (Doc. 11 78-7 at 11–12.) 12 On February 13, 2021, a maximum custody review hearing was held. (Doc. 78-7 at 13 7.) Plaintiff waived his right to the 48-hour notice of the hearing. (Id. at 9.) At the hearing, 14 it was recommended that Plaintiff stay in maximum custody due to his STG validation and 15 because he had recently received two major infractions. (Id. at 7.) The form documenting 16 the February 13, 2021, hearing noted that Plaintiff’s status as a Step-Down prisoner had 17 been revoked because he received two major violations. (Id. at 6.) Plaintiff was notified 18 of the appeal process, and it was documented that he did not waive his right to appeal the 19 decision. (Id.) 20 On March 15, 2021, Defendant Uehling pulled Plaintiff out of his cell and advised 21 Plaintiff that he would not be receiving any revocation notice or hearing pursuant to a new 22 version of DO 806 that would be in effect April 15, 2021. (Doc. 5 at 10.) Although the 23 new policy was not yet in effect, Defendant Uehling told Plaintiff he was authorized to 24 apply the new policy rather than the previous and still existing policy, which required 25 certain procedural safeguards—such as a 10-day notice and a hearing—prior to removal 26 from the Step-Down Program. (Id.) 27 Plaintiff appealed his placement in maximum custody. (Doc. 78-8 at 2.) On March 28 26, 2021, Defendant Crabtree, the Offender Services Bureau Administrator, issued the 1 appeal response, informing Plaintiff that he was correctly classified to maximum custody 2 based on Plaintiff’s scoring and prior validation as an STG member. (Id. at 3.) 3 Plaintiff filed this action in May 2021. (Doc. 6.) 4 Meanwhile, Plaintiff asserts that, after his January 2021 transfer to maximum 5 custody, he was “forced” to renounce and debrief. (Doc. 75 at 6.) Although he has 6 participated in the debriefing program, Plaintiff is still designated as an STG member and 7 subject to heightened STG status-based classification. (Id.) 8 Defendant Towles, Deputy Security Operations Administrator, avers that, during 9 litigation of this lawsuit, he determined that Plaintiff “should be provided a hearing 10 pursuant to the version of DO 806 in effect in January 2021 because [Plaintiff] was 11 removed according to the April 2021 version of DO 806 before that version became 12 official.” (Doc. 78-1 at 8, Towles Decl. ¶¶ 33, 43.) 13 In January 2021, the relevant version of DO 806 provided that a prisoner may be 14 removed from Phases IV or V of the Step-Down Program if it is confirmed that the prisoner 15 violated certain listed criteria. (Doc. 78-1 at 25, DO 806 § 11.2.) However, any 16 recommendation for removal had to be forwarded to the Security Operations Administrator 17 with supporting documentation, and the SSU Coordinator had to deliver to the prisoner, at 18 least ten business days prior to a hearing, the Hearing Notification/Step-Down Revocation 19 form to enable the prisoner time to prepare a defense. (Id., DO 806 §§ 11.3, 11.4.) The 20 STG Validation Hearing Committee then had full discretion to determine whether the 21 prisoner was to be removed from the Step-Down Program or returned to an earlier phase 22 in the Program. (Id., DO 806 § 11.6.) Prisoners were permitted to appeal the decision of 23 the STG Validation Hearing Committee. (Id., DO 806 §§ 11.5, 11.9.) 24 In April 2021, DO 806 was amended to remove any provision providing for notice 25 or a hearing for prisoners removed from the Step-Down Program. The relevant portion of 26 amended DO 806 states: 27 Inmates who are removed from the Step-Down Program, due 28 to direct involvement in STG activity or for any reason deemed appropriate by the respective Regional Operations Director, 1 Investigative Manager, or Assistant Director for Prison 2 Operations, during the inmate’s placement in the program shall be required to serve a minimum of two years in Maximum 3 Custody before they are eligible to participate in the program. 4 (DO 806 § 9.2 (effective date April 15, 2021).)3 5 On August 8, 2022, 19 months after he was removed from the Step-Down Program, 6 Plaintiff was served with a “Hearing Notification/STG Step-Down Revocation Hearing” 7 form, which informed Plaintiff that he was being removed from the Step-Down Program 8 based on three letters discovered in August, September, and November of 2019. (Doc. 72- 9 1 at 75.) The form indicated that a hearing was scheduled for August 24, 2022. (Id.) 10 On August 19, 2022, Plaintiff filed his pending Motion for Preliminary Injunction, 11 seeking to enjoin enforcement of the upcoming August 24, 2022, hearing and to enjoin 12 enforcement of that part of DO 806 related to “STG Validations; Validated Classifications; 13 Maximum Security Confinements/Placements; Step-Down Completed Status (Close 14 Custody) Removals, Revocations, and Revalidations.” (Doc. 72 at 1.) 15 On August 24, 2022, an STG Revocation hearing was conducted pursuant to the 16 previous version of DO 806—that is, pursuant to the version that had been in effect in 17 January 2021. (Doc. 73 at 24; Doc. 75 at 3.) The Hearing Committee determined that 18 there was insufficient evidence to justify revocation of Plaintiff’s inactive/completed 19 status. (Doc. 75 at 3.) After the hearing, Defendant Reyna decided against placing Plaintiff 20 back into the Step-Down Program purportedly because, since Plaintiff has debriefed and is 21 housed in protective custody, his safety would be in jeopardy if he were to be placed back 22 23
24 3 See DO 806, Security Threat Groups (STGs), 25 https://corrections.az.gov/sites/default/files/documents/policies/800/0806.pdf (last visited Feb. 13, 2023). 26 4 In their Response, Defendants cite to “Exhibit A (Result of STG Step-Down 27 Revocation hearing, dated August 24, 2022)”; however, there are no exhibits attached to Defendants’ Response. (See Doc. 73.) Regardless, the parties agree that the hearing was 28 held on August 24, 2022, and that the Hearing Committee determined that Plaintiff should not be removed or revoked from the Step-Down Program. (Id. at 2; Doc. 75 at 3.) 1 in the Step-Down Program. (Id.)5 2 IV. Discussion 3 Plaintiff filed his Motion for Preliminary Injunction a week before the scheduled 4 August 24, 2022, revocation hearing. (Doc. 72.) The hearing was held before the Court 5 ruled on Plaintiff’s Motion. Therefore, to the extent that Plaintiff sought an injunction to 6 stop the hearing, his request is moot. 7 Although Plaintiff alleged that the August 24, 2022, hearing would be improper, 8 highly prejudicial, and meaningless, the Hearing Committee found in Plaintiff’s favor and 9 determined that Plaintiff should not be removed from the Step-Down Program or 10 transferred to maximum custody. (Id. at 4.) Thus, to the extent that Plaintiff anticipated a 11 decision against him, and sought to enjoin enforcement of such a decision, his request for 12 relief is moot. 13 Plaintiff’s remaining request for relief seeks to bar enforcement of provisions within 14 the amended version of DO 806 that pertain to STG classification, maximum custody 15 placements, and Step-Down Program revocations and removals. 16 A. Likelihood of Success on the Merits 17 1. Fourteenth Amendment Due Process Standard 18 The Supreme Court has explained that although “prisoners do not shed all 19 constitutional rights at the prison gate,” “‘[l]awful incarceration brings about the necessary 20 withdrawal or limitation of many privileges and rights, a retraction justified by the 21 considerations underlying our penal system.’” Sandin v. Conner, 515 U.S. 472, 485 (1995) 22 (quoting Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977)). 23 Thus, only some placements implicate due process and require notice and an opportunity 24 to be heard and non-adversarial review of the evidence supporting the placement. 25 In Sandin, the Supreme Court rejected the argument that any state action taken for 26 27 5 Defendants assert that the Hearing Committee made the decision that Plaintiff could not return to the Step-Down Program; however, because they failed to attach the 28 form documenting the August 24, 2022, hearing, there is no evidence that the Committee made this decision as opposed to Defendant Reyna, as Plaintiff alleges. (See Doc. 73 at 2.) 1 a punitive reason encroaches upon a liberty interest under the Due Process Clause even in 2 the absence of any state regulation. Id. at 484. Rather, prisoners have liberty interests 3 protected by the Due Process Clause only where the contemplated restraint “imposes 4 atypical and significant hardship on the inmate in relation to the ordinary incidents of 5 prison life.” Id. To determine the existence of atypical and significant hardships, the Court 6 considers “1) whether the challenged condition ‘mirrored those conditions imposed upon 7 inmates in administrative segregation and protective custody,’ and thus comported with the 8 prison’s discretionary authority; 2) the duration of the condition, and the degree of restraint 9 imposed; and 3) whether the state’s action will invariably affect the duration of the 10 prisoner’s sentence.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citations 11 omitted). 12 If the contemplated restraint imposes an atypical and significant hardship on the 13 prisoner, liberty interests are implicated, and the prisoner is entitled to procedural 14 protections. To determine what process is due, a court must apply the framework 15 established in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires consideration of 16 three distinct factors: 17 First, the private interest that will be affected by the official 18 action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if 19 any, of additional or substitute procedural safeguards; and 20 finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the 21 additional or substitute procedural requirement would entail. 22 Id. at 335. 23 2. Analysis 24 a. Conditions in the Browning Unit 25 Plaintiff’s allegations regarding the conditions in maximum custody, which 26 Defendants do not refute, establish that conditions at the Browning Unit are like those the 27 Supreme Court has held impose an “atypical and significant hardship in the inmate in 28 relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484; Brown, 751 F.3d 1 at 985, 988 (solitary confinement for over 23 hours a day, 30 minutes of recreation per day, 2 just two non-contact visits, denial of most privileges afforded prisoners in general 3 population, and minimum annual reviews constituted atypical and significant hardship); 4 Wilkinson, 545 U.S. at 214, 223–24 (constant illumination in cell, one hour of recreation 5 per day in indoor room, rare opportunities for non-contact visitation, and indefinite 6 placement reviewed just annually constituted an atypical and significant hardship). 7 The Ninth Circuit has held that a prisoner’s “liberty interest in avoiding maximum 8 custody is clearly established.” Johnson v. Ryan, 55 F.4th 1167, 1197 (9th Cir. 2022). 9 Here, Plaintiff’s transfer from close custody to maximum custody in the Browning Unit 10 and its attendant conditions constituted a material change in his living conditions, and he 11 was subject to an atypical and significant hardship. See id. at 1198 (finding that the change 12 in the plaintiff’s underlying conditions of confinement when he was moved from close 13 custody and returned to maximum custody at the Browning Unit created an atypical and 14 significant hardship). Accordingly, Plaintiff had a liberty interest in avoiding transfer to 15 the Browning Unit. 16 b. Sufficiency of Process 17 Next, the Court considers the three prongs of the Mathews test to determine whether 18 the procedures provided to Plaintiff prior to his January 2021 transfer to the Browning Unit 19 were constitutionally adequate. “The fundamental requirement of due process is the 20 opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 21 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 22 In Johnson, the Ninth Circuit explained that, in the context of prison gangs, the 23 private and public interest—the first and third prongs in the Mathews analysis—weigh in 24 favor of the government. 55 F.4th at 1181. As to the private interest, any placement in 25 prison is a severely restricted environment; thus, procedural protections are limited 26 compared to “cases where the right at stake is the right to be free from confinement at all.” 27 Id. (citing Wilkinson, 545 U.S. at 225). The government’s interest is strong with respect to 28 prison security and order when dealing with gangs; “prisons have a legitimate penological 1 interest in stopping prison gang activity.” Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2 2003); see Wilkinson, 545 U.S. at 227 (“in the context of prison management, . . . [the 3 state’s] interest is a dominant consideration”). 4 As to the second Mathews prong, the court must “consider the risk that under 5 [ADCRR] procedures, [Defendants] will erroneously reassign [Plaintiff] to maximum 6 security.” Johnson, 55 F.4th at 1199. Supreme Court cases have consistently found that 7 notice of the factual basis leading to consideration for maximum custody placement and “a 8 fair opportunity for rebuttal” are “among the most important procedural mechanisms for 9 purposes of avoiding erroneous deprivations.” Wilkinson, 545 U.S. at 226. 10 In Johnson, the Ninth Circuit addressed an Arizona prisoner’s claim that he was 11 denied due process when he was moved from close custody as part of Phase IV of the Step- 12 Down Program and transferred back to the Browning Unit. 55 F.4th at 1177–78, 1197–99. 13 The plaintiff in Johnson received notice of a hearing on his maximum custody placement, 14 and he attended the hearing. Id. at 1200. But the appellate court found that the notice did 15 not apprise the plaintiff of the reason for his reassignment to maximum custody, and an 16 insufficient, “bare-bones” explanation for his placement came three months after the 17 hearing. Id. at 1200. The Ninth Circuit held that the plaintiff “was not given a meaningful 18 opportunity to learn of the factual basis for his transfer from close custody to maximum 19 custody or to prepare a defense to the accusations.” Id. The Ninth Circuit concluded that 20 the plaintiff was likely denied due process in the procedures that resulted in his return to 21 maximum custody. Id. 22 Here, Plaintiff was in Phase V of the Step-Down Program and housed in close 23 custody, and then, without explanation, he was transferred to the Browning Unit, a 24 maximum custody facility, without any notice and without any hearing or opportunity for 25 rebuttal. Defendants’ provision of a notice and revocation hearing 19 months after 26 Plaintiff’s transfer to maximum custody is insufficient to remedy the failure to provide any 27 procedures at the time Plaintiff was transferred. On these facts, Plaintiff establishes a 28 likelihood of success on the merits of his due process claim. 1 B. Irreparable Harm 2 The movant must demonstrate that absent an injunction, he will be exposed to 3 irreparable harm. Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th 4 Cir. 1988). Speculative injury is not irreparable injury sufficient for a preliminary 5 injunction. Id.; see Winter, 555 U.S. at 22. 6 Plaintiff alleges that the current version of DO 806 will deprive him of due process 7 safeguards because it does not require any notice, hearing, or opportunity to be heard with 8 respect to STG validations and STG-validated confinements. (Doc. 72 at 5–6.) He argues 9 that he was subject to improper revocation for 545 days without any meaningful review or 10 process. (Id. at 2, 6.) Plaintiff’s statements suggest that he is no longer housed in maximum 11 custody, and the court’s docket shows that on August 12, 2022, Plaintiff filed a Notice of 12 Change of Address indicating his move to ASPC-Lewis, Buckley Unit. (Doc. 71.) Plaintiff 13 does not demonstrate that he is likely to be transferred back to maximum custody without 14 sufficient notice and a hearing. 15 Plaintiff states that, as part of the debriefing program he was forced to participate in 16 to avoid “gulag” confinement, he is considered an STG member and subject to “heightened 17 STG status-based classification.” (Doc. 75 at 6.) Again, Plaintiff’s statement suggests that 18 he is no longer subject to extreme, gulag-type conditions of confinement, and he does not 19 indicate what the heightened STG status-based classification entails or show that he is 20 currently subject to conditions that expose him to irreparable harm. 21 For these reasons, Plaintiff cannot show irreparable injury sufficient to support 22 injunctive relief. Accordingly, the Court need not address the remaining Winter factors. 23 See Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011) (because the 24 plaintiffs failed to show they are likely to suffer irreparable harm in the absence of 25 preliminary relief, the court need not address the remaining elements of the preliminary 26 injunction standard). 27 To the extent Plaintiff seeks a general injunction against enforcement of DO 806 28 because it no longer includes provisions requiring notice and a hearing prior to a prisoner’s 1 | Step-Down Program revocation and transfer to maximum custody, Plaintiff's request will 2| be denied. Prison officials are obligated to comply with Fourteenth Amendment due process requirements, and prisoners are entitled to constitutionally adequate safeguards 4| regardless of whether those safeguards are explicitly set forth in a prison’s policy. 5 Defendants indicate that, because Plaintiff is now debriefing, he is housed in 6 | protective custody rather than general population because his safety would be in jeopardy if he were placed back in the Step-Down Program. (Doc. 73 at 3.) Plaintiffs inability to 8 | return to the Step-Down Program and close custody general population despite a likely due process violation is concerning; however, Plaintiff fails to propose or request a specific and 10 | narrowly drawn remedy for this situation. At the least, Plaintiff’s resulting denial of close 11 | custody housing options may support a claim for damages. 12 For the above reasons, Plaintiff's Motion for Preliminary Injunction will be denied. 13 IT IS ORDERED that the reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Preliminary Injunction (Doc. 72), and the Motion is denied. To the 15 | extent that Plaintiff seeks a temporary restraining order, the Motion is denied as moot. 16 Dated this 21st day of February 2023. 17 Michal T. Hbhurdle Michael T. Liburdi 20 United States District Judge 21 22 23 24 25 26 27 28 -14-