Parsons v. Ryan, 784 F.3d 571 (9th Cir. 2015)

The Supreme Court has harnessed the 9th Circuit on habeas corpus and now must put an end to the doctrine of institutional reform imposed by these judges on state governments.  The ability to institute policy reforms on sovereign states by a federal court is indefensible.  The Supreme Court spoke on this several years ago commenting on the issues this practice imposed on  federalism, comity, and compulsion of state governments to adjust budgets passed by its legislature. California has already experienced this practice when a three judge panel decided state prisoners needed supervision of their prison’s medical conditions by a court appointed Monitor.  Now Arizona has felt the same judicial lash.

According to the complaint filed in district court by numerous inmates in Arizona state prisons, the medical conditions and services of all facilities were deplorable.  They sought a class action of all state court prisoners, 33,000 of  them, to correct a system that includes a wide variety of inmates with medical problems and those who had no problems.  The district court certified the class. The State of California appealed to the 9th Circuit whose judges affirmed the order. Incredibly, on rehearing the majority of judges affirmed the judgment.

Several judges submitted a dissent of this absurd opinion.  As the minority pointed out, prisoners with no medical problems could not be a part of a class of those who do, but the majority says those healthy inmates might need medical attention in the future. In other words the complaint sought improvement of conditions, not people.

In addition, the decision rejects the Supreme Court ruling on class actions.  Class actions are a procedural device to place all people who comply with Rule 23.  The court determines the entire class is eligible for remedy, if they prevail, in a “single stroke.”  The majority classifies its decision as a “single stroke:” to clean up the prisons.  Cert. will be granted (this case was reheard).

This decision ranks with innumerable others ready not only for reversal but for ending the practice of ordering states to do the will of a  few federal judges who ignore any restrictions on federal courts. The 9th Circuit constitutionalizes everything it can in compelling states to conform it to its social policy.  And its solicitude for murderers, rapists, robbers, and sex offenders Is legendary. Shortly after the Parsons case was decided, the  9th Circuit wrote Harrington . v. Scribner. In a  series of violent acts committed by black inmates in prison  the warden ordered a lockdown. The plaintiff, a prisoner, sued the state alleging he was not a part of the violence but affected by the lockdown and alleges claims under the 8th Amendment and the Equal Protection Clause.

In a 2–1 opinion, written by the usual suspects they undertook an academic analysing of the Eighth Amendment and Equal Rights.  According to the majority, the trial judge failed to properly distinguish the different requirements in pleading and proof.  The academic forest of linguistics to jurors could not be understood and the panel reversed the verdict for the defendant warden.  The explanation so absurd that no one could  understand, and even if they did the prisoner’s case was a worthless waste of time.



Jones v. Williams, 791 F.3d 1023 (9th Cir. 2015)

No court is more solicitous of prisoners’ rights than the 9th Circuit. And no court wastes more judicial time than the 9th Circuit in writing appellate opinions of trivial and irrelevant claims.  Jones, a prison inmate, complained that his religion (Islam) disallowed eating or handling pork-for what reason God only knows.  Assigned to kitchen work, Jones refused to handle pork during mealtime and complained to prison officials.  Eventually he filed a 1983 claim alleging a violation of Constitutional issues.  The district court dismissed the entire litigation as frivolous.

Not the 9th Circuit.  Citing only 9th Circuit cases as precedent, the panel reversed the district court on some of the claims asserting Constitutional grounds.  The decision is so abstract, so frivolous, so absurd it requires no analysis.  Common sense is enough. Now all inmates can come up with some dietary rules of their religion. And prison officials are not entitled to qualified immunity either.  How much would the jury award Jones in the unlikely event he prevailed at trial. Answer: $1.25. The jurors must have steamed at the cost to taxpayers for this litigation.

Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2015)

Only in the 9th Circuit can a panel ignore the pleadings and invent a rule never sought  in the Complaint or argued at trial. Wilkerson, a prison inmate under life sentence for crimes not described by the panel, filed a 42 U.S.1983 case against state correction officers alleging claims of questionable constitutional dimension. He had previously filed an administrative complaint dismissed by state prison officials; his state habeas corpus petition was denied; he then filed his 1983 complaint in U.S. district court.  At trial, the jury denied his allegations. Wilkerson appealed to the 9th Circuit.

Prison Corrections officers testified at trial they informed Wilkerson to return to his cell after he had copied some of his documents.  He refused, and officers were compelled to physically restrain him in compliance with their order.  Under the Heck v. Humphrey case, 512 U.S. 477 (1944) an inmate cannot testify in a 1983 case if a jury decision would render an attack on his sentence or duration of imprisonment.  But, according to the 9th Circuit, Wilkerson had been sentenced for life and therefore the Heck case inapplicable.  In other words, an inmate sentenced for life can file a 1983 case without restrictions imposed by 1983 Supreme Court law.

The 9th Circuit panel recited the officer’s testimony that Wilkerson refused to obey their order to return  to his cell, and he kicked and twisted.  The district court had denied Wilkerson his testimony under the Heck doctrine, and, in effect, the officer’s testimony was uncontradicted.  The 9th Circuit panel said the Heck rule prevented Wilkerson from testifying to the facts, but he could allege legal error.  How you allege legal error without the facts is an interesting question.

So, the panel said the district court judge had not instructed the jury correctly and that  the error is a legal question, not a factual issue.  Had Wilkerson testified that he offered no physical resistance, said the panel, the jury  might have found the officers used excessive force. Therefore, the judge should have modified the jury instruction to say the conduct Wilkerson engaged in for 1983 purposes did not have to necessarily be physical (according to Wilkerson.). That is the legal error. Oh.

Not only is this academic hairsplitting absurd, this jury instruction was never submitted,  argued or briefed by Wilkerson. He objected to the Heck rule that he could not testify but made no request for the district court to explain that resistance may not necessarily be confined to physical evidence.

Here is a case of a life sentence imposed prisoner whose administrative complaint in prison against the correction officers was denied; his habeas corpus petition denied; his trial lost, has now added to the time it took to have a jury originally find him guilty (the panel does not describe the crimes he committed to warrant a life sentence.)  The 9th Circuit has reversed the district court in this 1983 case, and now the judge must conduct another 1983 trial with some kind of modified jury instruction.  A frivolous complaint matched to a frivolous decision. Congress enacted the Prison Reform Litigation Act (42 U.S.C. 1997) to prevent just this kind of judicial verbal manipulation.

Grenning v. Stout, 739 F.3d 1235 (9th Cir. 2014)

Prisoners’ Rights
Noted for its solicitude to prison inmates convicted of murder, robbery, burglary, assault, rape, arson, and sex crimes, this 9th Circuit opinion in Grenning is an example of one of the most frivolous cases on prisoner’s rights ever written. An inmate with a record of violence and numerous psychiatric reports complained he could  not sleep at night because the cell lights were never turned “off.” The Corrections Officer explained the need for constant lighting because all the inmates in this section were violent and housed in single cells to facilitate observation.  A lighting expert testified extensively, and the 9th Circuit panel cross examined him as reflected in its decision.  Inordinate pages of “lighting brightness” permeated the written 2-1 opinion.The court sent the case back to the district court to do something.
Understandably, the dissent suggests the prison officials should run the prison.

U.S. v. Rodriguez, 766 F.3d 970 (C.A. 9 (2014.  An expert witness describes prison life and the dangers posed to Correction Officers and inmates. explains how the Mexican Mafia runs prison life and gangs in general.  In Rodriguez, multiple gang members entered the cell of an inmate and shanked him with over 40 puncture  wounds.  The defense contended medical treatment of the victim was negligently performed, and the wounds were not the proximate cause of death. The 9th Circuit panel did a good job in dismissing this absurd contention.

The court also reviews several other issues involving evidence of gang participation; medical negligence; Brady; informants, but

Having decided to run California prisons (Plata v. Brown) the 9th Circuit now reviews Arizona state prison conditions and approves a class action for all inmates, regardless of their physical condition. The complaint alleges “deliberate indifference” of medical, dental and prison conditions affecting inmates.  The district judge issued an injunction, and the 9th Circuit panel approved the interlocutory order for class certification; Persons v. Ryan, 754 F.3d 657 (9th Cir. 2014).   

Plata v. Brown, 754 F.3d1070 (9th Cir. 2014)
As noted earlier in this case, Congress enacted severe restrictions on prisoner litigation, in part requiring any court order be limited in a specific time when the state moves to dismiss by contending the conditions alleged in the complaint had been accomplished.  The State moved for dismissal but the court ordered 120 days for discovery in order to allow plaintiffs to respond.  According to the 9th Circuit on appeal by the State from the district court order, the panel held this continuance did not violate the language of the federal statute.

Nordstrom v. Ryan, 2014 WL 3893088 C.A.9 (2014)
Arizona prison regulations allow a correction officer to read the contents of a prisoner’s ;legal mail to his lawyer to determine whether it contains contraband or other illicit conduct. The guard read Nordstrom’s letter over his objection.  The majority of the panel and the dissent wrangled over  how you could read the letter to determine contraband or illicit conduct without reading it.  They play a word game.

Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011)

The 9th Circuit interferes with state courts not only in criminal cases, but in the management of state facilities as well.  In addition to managing state prisons, the court also supervises county jails.  In Hrdlicka v. Reniff the owner of a publication entitled Crime, Justice & America, distributes the bulletin to county jails.  The publisher requested two county jails (Butte and Sacramento) to distribute his unsolicited publication  to inmates, alleging a First Amendment right of free speech. Both counties denied his request.

The 2-1 panel majority held the publisher had a First Amendment right to send his unsolicited publication to county jails. In support of its opinion, the panel majority cited previous 9th Circuit cases all ordering  prisoners to receive and distribute mail, and. as precedent,  the principle Supreme Court case of Turner v. Safley, 482 U.,S. 78 (1987).  As noted in the dissenting panel opinion, Turner applied to a public forum.  Jail is not a public forum.
Here is the Supreme Court in Turner:  

[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform…. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have … additional reason to accord deference to the appropriate prison authorities.

The majority panel ignores the “deference” and the “restraint” acccorded state courts, and engages in another instance of “structural reform” condemned  by the Supreme Court in Horne v. Flores, 129 S.Ct.2579 (2009).  Every case cited in the majority panel decision approves some form of administrative change requiring additional staffing and time consuming tasks of sorting mail unsolicited by any inmate. See, for another 9th Circuit imposition of jail management of bulk mail, Prison News v. Lehman, 397 F.3d. 692 (9th Cir. 2005)

Prison Legal News, 608 F.3d 446 (9th Cir. 2010)

A non-profit organization called Prison Legal News (PLN) prints a monthly magazine containing news relating to prison conditions and legal rights of prisoners. Responding to a complaint from prisoners that the California Department of Corrections and Rehabilitation was censoring the magazine and other written materials, the PLN filed a 1983 action against the State. After a year of negotiations, in 2006 the parties reached a settlement highly beneficial to PLN, including a clause authorizing counsel for PLN to seek attorney fees and costs for their representation in the negotiations. The agreement also authorized counsel for PLN to monitor compliance with the settlement terms. Under the terms of the settlement, the court retained jurisdiction to enforce compliance. The parties subsequently informed the court they had reached a settlement.

Thomas v. Ponder, 611 F.3d 1144 (9th Cir. 2010)

Thomas v. Ponder is an other example of Ninth Circuit supervision and management of state prisons. Thomas, an incarcerated prisoner, filed a U.S.C. 1983 case in federal court alleging violation of the Eighth Amendment deprivation of his right to exercise. The state prison had experienced the stabbing of two Correction Officers, and ordered a lockdown of the high security facility occupied by Thomas and other inmates. Thomas, although not involved in the assault, had a lengthy disciplinary record and had threatened officers and other inmates. When the lockdown was modified, the officers offered Thomas access to exercise if he signed an agreement not to engage in violence. He refused to sign the agreement despite several opportunities to do so. The District Court dismissed the case on summary judgment. The 2-1 majority of the Ninth Circuit panel reversed. The Ninth Circuit panel, after extolling the virtue of exercise, held the prison officials could not mandate a prisoner to sign an agreement declining to engage in violence. According the majority, Thomas did not constitute a “substantial risk” and his “liberty interest,” a phrase masquerading as Due Process in the Ninth Circuit, was violated. The phrase is nothing more than “policy.” Or compare Richardson v. Runnels, 594 F.3d 666 (9th Cir. 2010. A series of attacks on correction officials in state prison by African Americans in a high security building led to a lockdown of all blacks in that facility. The plaintiff in a 1983 case argued he was locked down because he was black and not for participation in the assaults. According to the Ninth Circuit, the prison officials (in a high security facility) did not prove he was involved in the assaults and allowed his 1983 action to proceed. Yes. First you must prove that someone was involved in an assault before you can lockdown the prisoner. For 13 days.

Prisoner’s Rights: Supreme Court Reverses Ninth Circuit: Phillips v. Hust, 129 S.Ct. 1036 (2009); Remand Confirms Qualified Immunity; Phillips v. Hust, 588 F.3d 652 (9th Cir. 2009)

Hust v. Phillips, 507 F.3d 1171 (9th Cir. 2009); Reversed by Supreme Court In Phillips v. Hust, 129 S.C 1036 (2009) the Supreme Court reversed the Ninth Circuit and that court rewrote its opinion, denied denied petitioner’s request, and confirmed the right of the librarian to qualified immunity; Below is the original Ninth Circuit opinion reprinted from an earlier Blog: February 3, 2009. Prisons are not for comfort, or literary pursuits. Prisons exist to punish those who have committed heinous crimes. For another example of wasting judicial resources, in Phillips v. Hust, 507 F.3d 1171 (2007) a Ninth Circuit panel criticized the librarian at a state prison for not permitting Phillips to use a copying machine to file his petition for certiorari in the Supreme Court. Although the Ninth Circuit never identified a date of Phillips imprisonment, the District Court referenced the eighteen years of litigation. The librarian denied the allegation. Moreover, the Ninth Circuit denied the librarian qualified immunity and sent the case back to the district court for computation of damages; Phillips v. Hust, 477 F.3d. 1070 (9th Cir. 2007). Award: $1500.00; Phillips v. Hust, 338 F.Supp.2d 1148. The dissent in the Ninth Circuit deplores the majority reasoning and its refusal to allow the librarian qualified immunity. Here is the language of the dissenting judge: All I can add to [the dissent of another judge] is my utter astonishment that were leaving an opinion on the books that not only denies the prison librarian qualified immunity but actually holds her liable. Her transgression? Failing to help a prisoner bind a brief in a way thats not even permitted . . . by the Supreme Courts rules. Its perfectly clear that a timely petition, bound or unbound, would have been accepted by the Supreme Court . . . How the prison librarian violated any of his rights, let alone his clearly established rights, is a mystery that repeated readings of the majority opinion do not dispel . . . The dissent was signed by a total of ten judges. The case arose on summary judgment but the Attorney General filed a petition for review in the Supreme Court. Review granted; January, 2009; 129 S.Ct. 1036 (2009). Petition Granted 1/26/2009: 129 S.Ct. 1036 (2009). Reversed. On remand to the Ninth Circuit the court granted librarian Hust’s motion for summary judgment; 588 F.3d 652 (9th Cir. 2009)

Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009)

A California state prisoner, Brodheim, filed an action (presumably 42 U.S.C. 1983) alleging prison officials violated his First Amendment rights. “The claimed violation occurred when a prison official denied Brodheim’s written ‘interview request,’ and noted on the denial that Brodheim should be ‘careful’ what he writes and requests in his administrative grievances. This was also followed by a request from the same official that Brodheim be transferred out of the California Medical Facility (CMF) due to his filing of grievances and this lawsuit;” Brodheim, Id. This “grievance” led the Ninth Circuit into an endless discussion of the law on prison staff retaliation against prisoners exercising First Amendment rights. That this frivolous and innocuous complaint described above against a prison official (Cry) warrants federal court intervention is ludicrous. In effect, that’s what the U.S District Court said in dismissing the Complaint, and that’s what the California Court of Appeal said on Brodheim’s petition for habeas corpus in State court. On appeal from the district court decision, the Ninth Circuit notes that Brodheim had filed sixty complaints against prison officials. According to the the Ninth Circuit panel, the “warning” on the administrative report harmed him by “chilling” his exercise of Constitutional rights to file a Complaint. First, the Ninth Circuit disposes of the prison official’s (Cry) contention the case is resolved under the doctrine of res judicata. The panel launches into an incomprehensible discussion of res judicata and the differences in analysis by California courts and federal courts. Second, the Ninth Circuit also states the law of retaliatory action toward a prisoner alleging violation of First Amendment rights is “clearly established.” By what court? Not the Supreme Court because all the cases cited for this proposition in Brodheim are Ninth Circuit cases. To the extent the Supreme Court has established a basic First Amendment right of prisoners to file grievances, no one would classify Brodheim’s absurd complaint as worthy of litigation. And this is not the first time the Ninth Circuit has heard Brodheim’s cases. In a previous decision, the Ninth Circuit actually reversed a different U.S. District Court judge who had ruled that Brodheim was entitled to “work credits” in prison under the Equal Protection and Due Process Clauses. Brodheim is serving a life sentence in prison for murder. California law prohibits awarding work credits for prisoner sentenced for life as it is irrelevant. That District Court judge is the same one now running the California prison system.