Opinion by Judge REINHARDT; Concurrence by Judge BERZON
REINHARDT, Circuit Judge:
The facts established at trial, and not disputed on appeal, demonstrate that the State of California regularly discriminated against disabled prisoners and parolees during its parole and parole revocation hearing processes. The district court found that the California Board of Prison Terms (the state parole authority) failed to make proper accommodations for numerous disabled prisoners and parolees, with the result that a number of such individuals forfeited their rights to parole and parole revocation hearings and appeals, while others were unable to represent themselves adequately at such proceedings, all in contravention of federal law. Following a ten-day bench trial, the district court held that the defendants engaged in systematic and widespread discrimination which violated the Americans with Disabilities Act and the Rehabilitation Act, holdings that the state officials and agency do not now challenge on the merits. The district court entered a system-wide injunction requiring the Board to modify its policies and practices to comply with federal statutory and constitutional standards.
On appeal, the Board asks us to dissolve the district court's injunction principally for the following reasons: (1) the plaintiffs lack standing to challenge its policy; (2) the district court must defer to the Board's decisions as long as they potentially further any penological interest; (3) the plaintiffs' settlement agreement with the Department of Corrections prohibits injunctive relief for any acts the Board delegates to the Department; (4) the plaintiff class was improperly certified and is not entitled to system-wide relief; (5) and the Prison Litigation Reform Act and federalism concerns preclude the type of injunctive relief ordered. In addition, the Board argues that plaintiffs have no due process right to a parole hearing. We have jurisdiction to hear this interlocutory appeal under 28 U.S.C. § 1292.
The instant action was brought by a class of prisoners and parolees suffering from six categories of disability: mobility impairments; hearing disabilities; visual disabilities; learning disabilities; mental retardation; and renal impairments. Initially, the plaintiff class sued two divisions of the California Youth and Adult Corrections Authority (Agency or YACA): the Board of Prison Terms (Board or BPT)
By agreement of the parties, litigation against the two divisions was bifurcated and proceeded on two separate tracks. This appeal involves only the order and injunction directed to the Board of Prison Terms and certain state officials responsible for its operations, and not the separate order and injunction addressed to the Department of Corrections. Neither the Board nor the state officials challenge the district court's conclusions that they engaged in system-wide violations of the ADA and Rehabilitation Act.
The named plaintiffs are prisoners sentenced under California Penal Code § 1168 to life with the possibility of parole who complain that the Board failed to provide them with adequate accommodations at a variety of parole hearings, and parolees who complain about the lack of accommodations during the parole revocation process.
The defendants in the part of the case now on appeal are Gray Davis, the Governor of the State of California; Robert Presley, Secretary of the Youth and Adult Correctional Agency; James Nielsen, Secretary of the Board of Prison Terms; and the Board itself. The Agency oversees the activities of its various boards and departments, including the Board of Prison Terms.
As noted, plaintiffs initially sued two of YACA's divisions in this lawsuit: the California Department of Corrections and the Board of Prison Terms. The Department, which is not a party to the portion of the action on appeal, is responsible for all relevant aspects of prisoners' and parolees' lives, except that it does not have authority over parole and parole revocation hearings.
The Board serves as the parole authority for the State of California, see Cal.Penal Code § 3000(b)(7). It conducts parole hearings for prisoners sentenced to a term of life with the possibility of parole, who are the only adult prisoners subject to such hearings under California law.
B. Procedural History
1. Pre-Trial Proceedings
Pursuant to a "settlement agreement" entered into in its part of the instant case, the Department (which is not involved in the present appeal) filed a motion regarding the applicability of the ADA and Rehabilitation Act as applied to prisons. The agreement provided that if the district court held the Acts applicable, the Department would be found liable.
Plaintiffs continued to litigate their action against the Board. On January 5, 1998, the district court entered the parties' stipulation and order amending the class by including developmentally disabled prisoners so that the class "consists of all present and future California state prisoners and parolees with mobility, sight, hearing, learning, developmental and kidney
The Board moved to dismiss or strike all defendants other than Nielsen and the Board from the Second Amended Complaint, arguing that the "settlement agreement" had resolved the plaintiffs' claims against them.
The parties engaged in a ten-day bench trial before the district court.
The district court held that the Board failed to implement "a number of specific requirements [prescribed by the regulations implementing the ADA] designed to ensure that the framework exists for a public entity to carry out the substantive mandates of the ADA." Most particularly, the Board's mandatory self-evaluation plan was conducted "more than four years late [and] is inadequate."
Ultimately, the district court held that the Board was not in substantial compliance with the ADA or the Rehabilitation Act, and that it routinely denied plaintiffs their rights under the Due Process Clause of the United States Constitution.
3. Injunctive Relief
After finding in favor of the plaintiffs, the district court entered an injunction requiring the Board to evaluate its policies, procedures, and facilities, as mandated by the ADA; to propose new policies and procedures to bring the Board into compliance with the Act, and then to attempt to reach an agreement on them with plaintiffs; to take specific steps toward ensuring that the facilities it uses are accessible; and to determine, with the participation of plaintiffs, the manner in which the Board's compliance with the injunction should be monitored. The injunction applies to:
The court required the Board to hire a full-time ADA coordinator and to do over its Self-Evaluation and Transition Plan, this time according to standards set by the court. To comply with the injunction, the
The court also ordered the Board to determine which facilities used to conduct parole proceedings were in compliance with the administrative regulations implementing the ADA; inform the Department of the facilities that were not fully accessible;
After engaging in the negotiations required by the injunction, the Board and the plaintiffs submitted a stipulation and proposed order, which was entered by the court, that delineated the "policies and procedures ... developed by defendants pursuant ... to the injunction and which fulfil [its] policy development obligations." The Board's new policies complied completely with the terms of the injunction. At oral argument before this court, the Board represented that it had implemented most of the new policies and practices agreed upon in the stipulation, that the court-ordered compliance with federal law did not cause it any practical difficulties, and that the outcome of this lawsuit would not affect the implementation of those policies and practices. Nevertheless, it determined that this appeal should be pursued.
A district court's decision to grant prospective, system-wide injunctive relief is
We start by noting that where a district court grants system-wide injunctive relief, the issues of standing, class certification, and the propriety and scope of relief are often intermingled. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As a result, the district court's findings of fact and rulings of law with regard to one aspect of the litigation will often buttress or make unnecessary further findings or rulings on another issue. For example, we have held that determinations relevant to standing, see Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1040 (9th Cir.1999) (en banc), or to class certification, see Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir.2001), will also be relevant to the grant of injunctive relief; and that determinations made with respect to class certification may also be relevant to the standing inquiry. See LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir.1985); Hawkins, 251 F.3d at 1237. Similarly, because the court may reconsider whether the plaintiffs have standing or have been appropriately certified as a class at the trial stage of the litigation, see Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 518 U.S. 343 (1996), the court's findings at trial may be bolstered by its rulings at earlier stages of the litigation.
The Board has challenged the district court's ruling on standing. We reiterate, however, that it did not challenge the factual findings on appeal, including those that support the district court's standing determination: while it argued that some of the legal conclusions were wrong, it did not object to any findings of fact or identify any specific errors regarding them as required by Federal Rule of Appellate Procedure 28(a)(7). Because the other elements of the "case" or "controversy" requirements have been met, we focus on the "injury in fact" requirement of Article III standing. See Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997).
In order to assert claims on behalf of a class, a named plaintiff must have personally sustained or be in immediate danger of sustaining "some direct injury as a result of the challenged statute or official conduct." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The harm suffered by a plaintiff must constitute "actual injury." Lewis, 518 U.S. at 348-49, 116 S.Ct. 2174. Moreover, where, as here, a plaintiff seeks prospective injunctive relief, he must demonstrate
There are at least two ways in which to demonstrate that such injury is likely to recur. First, a plaintiff may show that the defendant had, at the time of the injury, a written policy, and that the injury "stems from" that policy. Hawkins, 251 F.3d at 1237. In other words, where the harm alleged is directly traceable to a written policy, see Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir.2001), there is an implicit likelihood of its repetition in the immediate future. Second, the plaintiff may demonstrate that the harm is part of a "pattern of officially sanctioned ... behavior, violative of the plaintiffs' [federal] rights." LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir.1985). Thus, where the defendants have repeatedly engaged in the injurious acts in the past, there is a sufficient possibility that they will engage in them in the near future to satisfy the "realistic repetition" requirement. In this regard, where the plaintiffs constitute a certified class, "it is not irrelevant that [the named plaintiffs] s[eek] to represent broader interests than [their] own." LaDuke, 762 F.2d at 1326. When a named plaintiff asserts injuries that have been inflicted upon a class of plaintiffs, we may consider those injuries in the context of the harm asserted by the class as a whole, to determine whether a credible threat that the named plaintiff's injury will recur has been established. Id.; see also Hawkins, 251 F.3d at 1237.
Where a court, through its specific factual findings, documents the threat of future harm to the plaintiff class and establishes that the named plaintiffs (or some subset thereof sufficient to confer standing on the class as a whole) are personally subject to that harm, the "possibility of recurring injury ceases to be speculative," and standing is appropriate. Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir.1993) (citation omitted). In the instant case, it is difficult to conceive of how the district court's seventy-four pages of factual findings could have been more diligent, detailed, or comprehensive, given the limitations of time and space available to our trial courts. Defendants do not challenge those findings on appeal, and they form the basis of our discussion of the Board's ADA policy and practice.
1. Written Policy
The Board's written policy is primarily contained in three documents: its Self-Evaluation and Transition Plan, its Administrative Directive, and its training documents, including guidelines provided to the Department employees. That policy was formulated to ensure that prisoners and parolees receive due process with respect to Board proceedings. Whether the Board succeeded in that objective is not of particular importance here. The ADA and Rehabilitation Act, as enforced through the Attorney General's regulations promulgated under the ADA, see 42 U.S.C. § 12134(a), require more than compliance with due process requirements: they require that a disabled individual be provided with "meaningful access" to state provided services and set forth a number of
The Board's ADA policy relies upon form # 1073 at the notification stage and form # 1040 at the appeal stage. Form # 1073 purports to inform prisoners and parolees of their rights under the ADA.
The guidelines prepared by the Board and circulated to Department officials contemplate two forms of accommodation: the provision of an attorney or of an interpreter. These accommodations are offered primarily at the discretion of the Department employees, and they need not be provided where the employee believes that the prisoner or parolee has little likelihood of success on the merits at the hearing.
The Board's written policy does not provide for the making of any effort to determine in advance whether a particular hearing facility is accessible for the mobility impaired. Instead, if a deputy commissioner is informed that there is a physical barrier to access, he will halt the hearing until a reasonable accommodation can be made. Such a procedure results in mobility-impaired prisoners and especially parolees spending extra time in custody awaiting their hearing.
In sum, the Board's written policy does not comply with the requirements of the ADA. As a general rule, injuries can stem from a failure to take action as well as from affirmative conduct. Here, plaintiffs were injured by the Board's failure to comply with the Act's requirements. They suffered discrimination on account of disability as a consequence, including the impairment or loss of services or programs provided by the Board. The Board's failure to comply also makes likely the recurrence of such injuries in the immediate future.
The Board's practice is to rely primarily on Department employees untrained in issues of disability to determine whether an individual is disabled or not, what accommodations are appropriate if he is, and whether those accommodations will be provided. These employees include the Department's institutional staff in the case of state inmates subject to life prisoner parole proceedings, and members of the Department's Parole and Community Services Division, acting on behalf of the Board, in the case of individuals subject to parole revocation proceedings. At the notification stage, disabled prisoners and parolees routinely waive their rights to hearings, frequently because they cannot comprehend the information provided to them.
In conjunction with the Board's written policy, its practice throughout the parole and parole revocation process routinely deprives disabled prisoners and parolees of
3. Plaintiff Class
Class membership may also be relevant to show an immediate likelihood of future injury. Where a named plaintiff is a member of a plaintiff class, and "members of the class have repeatedly suffered personal injuries in the past that can fairly be traced to the [defendants'] standard ... practices," the defendant's treatment of the class as a whole must be considered to determine whether the individual plaintiff "ha[s] been and will continue to be aggrieved by the defendants' [illegal] pattern of conduct." LaDuke, 762 F.2d at 1326. Here, plaintiffs provided overwhelming evidence of discrimination against the named plaintiffs as well as other, individually identified class members. That discrimination stretches back, in some instances, over ten years, and at the time of trial showed no signs of abating. The injury suffered by the named plaintiffs is sufficiently similar to that endured by the rest of the class to establish a pattern of discrimination that threatens to recur. The district court made findings of fact, which have ample support in the record, that named plaintiffs suffered repeated acts of discrimination, whether in prison or on parole. Accordingly, based on past occurrences, the threat of future injury to the named plaintiffs as well as to the class itself is both real and immediate.
4. Actual Injury
The named plaintiffs are injured by the Board's policies and practices relating to its parole and parole revocation proceedings: plaintiffs are subjected to discriminatory treatment on account of their disabilities in violation of both the ADA and the Rehabilitation Act. This treatment is sufficient to constitute an actual injury. Furthermore, as a consequence of the Board's unlawful discrimination, plaintiffs were unable to comprehend various parts of the parole and parole revocation process or denied the opportunity to attend the required hearings, and may even have been wrongfully incarcerated or denied parole. This too constitutes actual injury.
We comment briefly on the Board's contention that the deprivation of a fair parole hearing can not in itself constitute such injury. The Board contends that California Penal Code § 3041 does not create a fourteenth amendment due process right to such a hearing. However, following Ellis v. District of Columbia, 84 F.3d 1413, 1418 (D.C.Cir.1996) (holding that, until Supreme Court speaks more directly to the issue, prisoners' right to pre-release revocation hearing unaffected by holding in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)), we hold that the statute is sufficiently determinate to require such hearings as a matter of constitutional right. Thus, we need not find a constitutional violation to establish actual
Our holding is consistent with Lewis, in which the plaintiffs' asserted injury resulted from inadequate library facilities. The Supreme Court held that there was no right to library facilities, but only a right to access to courts, and that in most cases prisoners had failed to show how the prison's library policy infringed upon that right, given that other means of accessing the courts were available. It did, however, find actual injury in two instances, one of which was when a prisoner was "so stymied ... that he was unable to file a complaint" to remedy an "arguably actionable" harm. 518 U.S. at 351, 116 S.Ct. 2174. Thus, Lewis simply requires that in order to show actual injury plaintiffs must identify an actual right that has been violated. Here, actual injury exists because plaintiffs' rights to be free from discriminatory treatment, as provided by the ADA and the Rehabilitation Act, have been violated, and because they have been deprived of services or programs provided by the Board: fair parole and parole revocation hearings. Either violation, standing alone, is sufficient to constitute actual injury.
5. The Board's Objections to Standing
Defendants argue that the plaintiffs cannot meet the "likelihood of repetition" requirement, because their right to parole and parole revocation hearings depends upon their engaging in illegal conduct that they are under an obligation to avoid. Although we have held that there is sufficient likelihood that an injury inflicted during a hearing will be repeated when a plaintiff can assert a right to another such hearing, see Hawkins, 251 F.3d at 1237, nonetheless, standing is inappropriate where the future injury could be inflicted only in the event of future illegal conduct by the plaintiff. Lyons, 461 U.S. at 108, 103 S.Ct. 1660. See also Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041 (9th Cir.1999) (en banc) (no standing where injury "contingent upon respondents' violating the law, getting caught, and being convicted.").
With respect to the prisoners' complaints regarding conditions at their various hearings, the Board's regulations require that prisoners sentenced to life with the possibility of parole be provided with certain hearings as a matter of formal Board policy. These include documentation hearings, progress hearings, and recision hearings, as well as the parole hearings themselves. No matter how well behaved the prisoners are, no matter how pure and proper their conduct, they must receive the specified hearings, so that the Board may document or determine their parole suitability. The Board's regulations establish that prisoners of the type before us are entitled to parole hearings before the Board at least every five years, and as often as every year, unless they waive those hearings. The likelihood that a prisoner will be subjected to the hearings involved is, therefore, not at all speculative; rather, it is certain. The lawfulness or unlawfulness of his conduct in the interim is irrelevant to that fact.
The situation is different with respect to the complaints of parolees regarding deprivations
In Hodgers-Durgin, we expressly distinguished the Lyons line of cases on the basis that the Hodgers-Durgin plaintiffs asserted that the conduct on their part that triggered the defendants' violations was not unlawful. In that case, the plaintiffs alleged that while driving their vehicles in the normal course, they were stopped by the United States Border Patrol on the basis of their race, or because of their proximity to the border. We found that the plaintiffs had standing because, although the police were sufficiently suspicious of the plaintiffs to stop, question, and search them, "plaintiffs did nothing illegal to prompt the stops by the Border Patrol." Hodgers-Durgin, 199 F.3d at 1041.
Here, as in Hodgers-Durgin, plaintiffs need not engage in unlawful conduct to become subject to the unlawful practices they seek to enjoin. The Board is not required to establish probable cause to begin the parole revocation process, nor is it necessary that any law enforcement officer observe the alleged violation:
The Board also asserts that the likelihood that the parolee plaintiffs will be subject to a future parole revocation hearing is purely speculative. However, five of the parolee plaintiffs were repeatedly subjected to parole revocation proceedings, some of them on a yearly basis. Abrams, Whisman, Blessing, and Badillo, waived their rights to a parole hearing because the accommodations provided did not enable them to comprehend the notification proceedings; Gough was unable to understand the notification or hearing process. Because the named-plaintiff parolees can establish a pattern of continuing discrimination that shows no sign of abating, we find that the parolee plaintiffs have standing to sue for a violation the ADA.
Our conclusion is bolstered by the fact that a person with disabilities is more likely to be suspected of conduct that results in the revocation of parole than other parolees. The district court specifically found that hearing impaired, learning impaired, and developmentally disabled individuals engage in a range of coping mechanisms that can give the false impression of uncooperative behavior or lack of remorse. It is therefore likely that these individuals will have difficulty interacting with the personnel who supervise their parole, explaining any innocent but non-conforming behavior, and showing remorse for otherwise minor infractions of the conditions of their parole that do not rise to the level of unlawful conduct. These problems make it more likely that such parolees will be subjected to the parole revocation process, even though they have not committed any unlawful act or violated any condition of their parole.
B. Class Certification
The district court's decision certifying the class is subject to a "very limited" review and will be reversed "only upon a strong showing that the district court's decision was a clear abuse of discretion." In re Mego Financial Corp. Secs. Litig., 213 F.3d 454, 461 (9th Cir.2000) (citation omitted). As a preliminary matter, we note that, after the evidentiary hearing on the first motion for class certification, the state defendants stipulated to a motion
Under Federal Rule of Civil Procedure 23(a), "[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." In addition, to prosecute a class action, the plaintiffs must show that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief ... with respect to the class as a whole." Fed.R.Civ.P. 23(b)(2).
In the instant case, the Board asserts that the named plaintiffs fail to satisfy the standards of commonality and typicality required by Federal Rule of Civil Procedure 23(a). Although the commonality and typicality requirements tend to merge into one another, see General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 157 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), they are stated differently. The commonality requirement is said to be met if plaintiffs' grievances share a common question of law or of fact. See Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994). Typicality, by contrast, is said to require that the claims of the class representatives be typical of those of the class, and to be "satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Marisol v. Giuliani, 126 F.3d 372, 376 (2nd Cir.1997). The crux of both requirements is to ensure that "maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Id.
The Board argues that a wide variation in the nature of the particular class members' disabilities precludes a finding of commonality. It asserts, in effect, that separate representative lawsuits should be filed by the hearing impaired, the vision impaired, the developmentally disabled, the learning impaired, and the mobility impaired. We reject this approach to class-action litigation. We have previously held, in a civil-rights suit, that commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members. See LaDuke, 762 F.2d at 1332; see also 5 James Wm. Moore et al., Moore's Federal Practice ¶ 23.23[f] (3d ed.1999) (citing LaDuke). In such circumstance, individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality. See Baby Neal, 43 F.3d at 56. Certainly, the differences that exist here do not justify requiring groups of persons with different disabilities, all of whom suffer similar harm from the Board's failure to accommodate their disabilities, to prosecute separate actions. The commonality requirement is met.
Where the challenged conduct is a policy or practice that affects all class members, the underlying issue presented with respect to typicality is similar to that presented with respect to commonality, although
3. Defective Certification
While the class certification is generally proper, it is defective in two respects. First, in addition to the prisoners and parolees with sight, hearing, learning, developmental and mobility disabilities, the district court designated individuals with kidney disabilities as members of the class. As amended, however, the class no longer includes a named plaintiff with a kidney disability. We are unable to determine from the district court's decision or the parties briefs (which do not mention the subject) what injuries, if any, prisoners or parolees with renal disorders suffer as a result of the defendants' failure to comply with the law. Accordingly, should the plaintiffs wish to maintain a claim on behalf of prisoners and parolees with kidney disabilities, they would have to amend the complaint to include one or more individuals with such disabilities among the named plaintiffs, and set forth the facts showing how they are injured.
Second, in addition to life prisoner hearings, parole revocation hearings, and parole revocation extension hearings, the plaintiffs challenge the Board's procedures relating to the hearing process for Sexually Violent Predators and Mentally Disordered Offenders.
C. Scope of Injunctive Relief
The district court identified three general areas in which the Board did not comply with the mandatory provisions of the ADA and the regulations implementing that Act by failing to: (1) provide effective communications during the notification, hearing, and appeals process; (2) modify policies and procedures to provide reasonable accommodations to disabled prisoners and parolees; and (3) select facilities accessible to the mobility-impaired. After making detailed factual findings on each of these issues, the court specified the manner in which the Board violated the ADA, holding that the defendants "have engaged in ongoing, extensive, system-wide violations of the ADA, Section 504 and the Constitution.... [S]ystemic injunctive relief in this case is therefore justified." The injunctive relief granted was deliberately and particularly tailored to address each of the violations identified in the district court's order. The Board contends that the relief awarded is overbroad for two reasons: (1) the district court should have considered only the injuries suffered by the named plaintiffs, and limited relief accordingly; and (2) federalism concerns preclude the court from anything other than the most minimal interference in a state parole system.
1. System-Wide Relief
"The scope of injunctive relief is dictated by the extent of the violation established." Lewis, 518 U.S. at 359, 116 S.Ct. 2174. The key question, for purposes of Lewis, is whether the inadequacy complained of is in fact "widespread enough to justify system wide relief." Lewis, 518 U.S. at 359, 116 S.Ct. 2174. Lewis reiterates the longstanding maxim that injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation. See Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). System-wide relief is required if the injury is the result of violations of a statute or the constitution that are attributable to policies or practices pervading the whole system (even though injuring a relatively small number of plaintiffs), or if the unlawful policies or practices affect such a broad range of plaintiffs that an overhaul of the system is the only feasible manner in which to address the class's injury. However, if injunctive relief is premised upon only a few isolated violations affecting a narrow range of plaintiffs, its scope must be limited accordingly.
We also note that the decision to grant system-wide prospective injunctive relief does not occur in a vacuum; it is intimately
In this case, system-wide injunctive relief was justified by the district court's extensive findings of fact setting forth in meticulous detail the injuries suffered by seventeen different prisoners and parolees at a variety of Board facilities and hearings. The district court expressly noted that these findings were not limited to the individual prisoners and parolees named in its opinion, but extended to members of the class throughout the parole system. The Board's treatment of the seventeen individuals was symptomatic of its treatment of a broad class of inmates with disabilities; and all of the violations the court found stemmed from the policies and practices of the Board, permeated its institutions, and were condoned by officials ranging from Commissioner Nielsen to the Board's deputy commissioners and Department officials acting as agents of the Board and under its guidelines. Such findings are sufficient to satisfy Lewis's requirement that factual findings support the relief sought.
Furthermore, we note that Lewis does not require a particular number of named plaintiffs before system-wide relief is appropriate. In a class-action lawsuit, Rule 23(b)(2) enables a trial court to determine the appropriateness of system-wide relief based on the individual experiences of the named plaintiffs. The district court retains wide discretion to hear evidence tending to establish the scope of the class and the range of claims it represents. For class certification to occur, the court must find that the named plaintiffs adequately represent the interests and experiences of the overall class. In making such findings, the trial court must be afforded a wide degree of discretion to determine when a particular number of inmate witnesses is sufficient to justify system-wide relief for the identified violation. So long as the trial court's conclusion is based upon adequate findings supported by substantial evidence in the record, we must defer to its evaluation of the scope of the class and the injury it suffered. In so doing we recognize the utility and propriety of various procedural rules (like the class action device) that authorize the trial court to view individual items of evidence as representative of larger conditions or problems.
2. Prison Litigation Reform Act
In determining the scope of injunctive relief that interferes with the affairs of a state agency, we must ensure, out of federalism concerns, that the injunction "heel[s] close to the identified violation," Gilmore v. California, 220 F.3d 987, 1005 (9th Cir.2000) (citation omitted), and is not overly "intrusive and unworkable ... [and] would [not] require for its enforcement the continuous supervision by the federal court over the conduct of [state officers]." O'Shea, 414 U.S. at 500, 501, 94 S.Ct. 669. As we recently noted, these concerns have been codified in the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA).
Here, the district court specifically made the findings required by the PLRA, see 18 U.S.C. § 3626(a)(1), and narrowly tailored the injunction to remedy only those violations of the ADA and Rehabilitation Act established in the district court's findings of fact. The court permitted the state to develop the policies and programs necessary to remedy its violation of the ADA and Rehabilitation Act, and afforded the plaintiffs an opportunity to object to the state's proposals.
Although it is often difficult to discern the precise nature of the Board's arguments, it appears that the Board essentially objects not to the process that the district court employed, but to the content of the injunction. In particular, the Board appears to contend that the injunction improperly interferes with its activities by dictating particular remedies, including: employing a full-time ADA coordinator; training its staff and the attorneys provided to individuals with disabilities; providing assistance to parolees preparing for revocation hearings; ensuring the availability of forms in comprehensible alternative formats; and obtaining permission from a delegate of the Board Chairman before permitting the shackling of an inmate who requires a sign-language interpreter at a parole or parole revocation hearing. The majority of the provisions of which the Board complains are required by regulations implementing the ADA and the Rehabilitation Act. See 28 C.F.R. §§ 35.107 (ADA coordinator and grievance procedures) 35.150(b) (transition plan); 35.105 (self-evaluation); 35.160 and Pt. 35, App. A (effective communications; primary consideration be given to disabled individual's requested accommodation). Moreover, the court is entitled to give some guidance to the Board and set some deadlines for compliance. By her injunction, the thorough and extremely patient district judge did not attempt to "micro manage" the Board's activities, but rather to set clear objectives for it to attempt to attain, and, in most circumstances, general methods whereby it would attain them.
Finally, although the Board complains that the new policies impose unspecified financial and administrative burdens, we note that some such burdens are shared by all state agencies required to implement the ADA and Rehabilitation Acts. Aside from this general, but unfounded, concern, the Board has apparently experienced no burdensome interference with its parole and parole revocation process. In short, there is nothing to suggest that the injunction is unworkable: indeed, the Board appears to have found the new policies and procedures perfectly workable. Accordingly, we hold that the relief granted was appropriate and that the court order complied with the PLRA.
D. Propriety of Injunction
On appeal, the Board asserts three principal objections to the propriety of the district court's injunction: that the Board has provided a legitimate penological justification for its actions (or inactions) under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); that many of the claims against the Board were resolved in the settlement agreement between plaintiffs and the Department; and that Governor Davis and Secretary Presley are not properly subject to the injunction. We address each in turn.
Turner v. Safley
Turner holds that "when a prison regulation impinges upon inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. Here, we are presented with policies and regulations of a state parole board which apply both to
Assuming, without deciding, that Turner applies to all aspects of the case before us, we are required to determine whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 90, 107 S.Ct. 2254. The Board has, however, repeatedly failed to adduce any justification, rational or not, for its ADA policy. For starters, it presents no justification that we can discern in its briefs. Equally surprising, the Board admitted at oral argument that we would find none in the record: it argued that such omission was immaterial so long as, even at that late stage of proceedings, "we can come up with any reason in our heads" that would justify its policies.
To satisfy Turner, the Board must, at the very least, adduce some penological reason for its policy at the relevant stage of the judicial proceedings. "[C]onsiderations advanced to support a restrictive policy [must] be ... sufficiently articulated to permit meaningful ... review." Walker v. Sumner, 917 F.2d 382, 386 (9th Cir.1990). Thus, at a minimum, the reasons must be urged in the district court. While the Board is correct that the burden rests with the plaintiff to refute the Board's defense that its actions were penologically justified, see Frost v. Symington, 197 F.3d 348, 357 (9th Cir.1999), that defense must at the very least be raised. Here, at oral argument, the Board for the first time referred obtusely to something about "cost" and "administrative" concerns without any explanation whatsoever as to how or in what respect the injunction implicated these matters. Certainly, it did not suggest that the unspecified costs and administrative concerns were any greater than those of any other agency subject to the ADA, or offer any reason why it should be exempted from the ordinary costs and burdens of complying with the ADA. We agree with the Seventh Circuit that prison authorities "cannot avoid court scrutiny [under Turner] by reflexive, rote assertions." Shimer v. Washington, 100 F.3d 506, 510 (7th Cir.1996). In this case, the Board's unusual contentions did not even rise to that level, see n.35, supra. In short, the Board has failed totally to establish that the injunctive order in any way conflicts with Turner.
2. Control Over Department
The Board next argues that the injunction applies to parts of the original litigation already resolved by the settlement agreement, and is directed at facilities and individuals that are under the control of the Department. This objection does not
The case of prisoners (and parolees whose parole has already been revoked) is different, however. The Department may in some instances require the Board to utilize Department staff or facilities when serving notice or conducting hearings on Department premises. We have identified three aspects of the injunction that must be construed or modified in a manner that will ensure that it does not order the Department to further modify its facilities, policies, or procedures,
a. Department Facilities
Paragraph 6 of the injunction, which requires the Board to develop a transition plan in accordance with 28 C.F.R. § 25.150(d), mandates that the Board evaluate facilities in which parole proceedings are conducted; provide the Department of Corrections with a list of all facilities that are not fully accessible; and produce a schedule for providing accessible proceedings for prisoners with disabilities at each facility. While most of paragraph 6 is unobjectionable, and simply requires the Board to inform itself as to which facilities, including Department facilities, provide accessible hearing rooms for mobility impaired prisoners or parolees, to the extent that it requires mobility impaired prisoners housed in Department facilities to be transported to alternative, accessible hearing locations, paragraph 6 may interfere with the Department's penological interest in securely confining certain prisoners. Accordingly, we construe this provision as requiring only that the Board request that the Department transport mobility impaired prisoners to accessible locations if the facilities at which they are housed are inadequate. The Department may, for valid security or other penological reasons, decline to do so.
b. Training of Department Personnel
Paragraph 14 of the injunction requires the Board to provide ADA training to its own staff, any attorneys it employs, and Department staff involved in the parole and parole revocation process. This portion of the injunction is designed to enforce 28 C.F.R. § 35.130(b)(1), which prohibits state entities from avoiding compliance with the act by delegating their services "through contractual, licensing, or other agreements." To the extent that paragraph 14 directs the Board to require Department personnel to undergo training, we agree with the Board's objection. Accordingly, we instruct the district court to modify the injunction
c. Tracking System
Paragraphs 15-18 of the injunction require that the Board establish a tracking system by which it can determine which inmates suffer from disabilities, and what their disabilities are.
3. Davis and Presley
Governor Davis and Secretary Presley contend that they are not properly part of this portion of the lawsuit and that plaintiffs are barred from proceeding against them here by virtue of the settlement agreement entered into by the plaintiffs and the Department. A settlement is interpreted as any other contract, under the interpretive rules of the state. Gates v. Rowland, 39 F.3d 1439, 1444 (9th Cir. 1994). The first step in contractual interpretation in California is to examine the text, Cal.Civil Code § 1638, and determine the intent of the parties. Cal.Civil Code § 1636. Here, the Governor and the Secretary rely on two parts of the settlement agreement. First, they point to the text, which states that: "This settlement does not resolve any issues between plaintiffs and the Board of Prison Terms or defendant Nielsen." Second, they rely on the inclusion in the settlement agreement of their names among the Department defendants. The two provisions on which they rely do not show that the agreement was intended to release Davis and Presley from the Board's portion of the case. The purpose of the provision of the settlement agreement quoted above was to make it clear that none of the issues regarding the Board's operations were to be affected by the Department's agreement. The fact is that the settlement agreement did resolve some issues involving Davis and Presley, because they, unlike Nielsen, have supervisory authority over the Department. Thus, it would have been erroneous to include their names in the quoted provision of the settlement agreement. As to the inclusion of Davis' and Presley's names on the list of Department defendants, their
The simple fact is that the settlement agreement resolved only a portion of the issues between the plaintiffs and Davis and Presley, the two state officers who have jurisdiction over both the Department and the Board. While it might have been preferable to include a sentence stating explicitly that the Governor and the Secretary remain defendants in the instant portion of the lawsuit, such language was not essential. Thus, Davis and Presley properly remain parties to the litigation between the plaintiffs and the Board.
E. Sovereign Immunity
The defendants have not raised the issue of sovereign immunity in this case. Accordingly, any defendants to whom sovereign immunity might apply have waived that affirmative defense. Waiver of the sovereign immunity defense must typically be "stated by the most express language or by such overwhelming implication" that the state's intent to waive is unambiguous. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Thus, mere appearance to defend a lawsuit will not act as a waiver, but "conduct during the litigation [that] clearly manifests acceptance of the federal court's jurisdiction or is otherwise incompatible with an assertion of Eleventh Amendment immunity" will be construed as a waiver. Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 759 (1999), amended by 201 F.3d 1186 (9th Cir.2000).
In Hill, we held that by actively litigating its case on the merits throughout the pre-trial period and waiting until the opening day of trial to assert a sovereign immunity defense, the state had waived that defense. 179 F.3d at 763. Here, the defendants engaged in litigation
Additionally, it is undisputed that the Rehabilitation Act applies in this case: the acceptance of federal funds upon which the applicability of the Rehabilitation Act is conditioned serves to waive sovereign immunity with respect to the claims that arise under that Act. See 42 U.S.C. § 2000d-7; Jim C. v. United States, 235 F.3d 1079, 1082 (8th Cir.2000) (en banc) (holding that accepting funds pursuant to § 2000d-7 is a valid waiver of sovereign immunity); see also generally College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) ("Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions."). As we have noted (see n.17 supra at p. 861-62), the claims in this case are identical under the Rehabilitation Act and
Furthermore, Garrett makes clear that there is another, independent basis for the implementation of the injunction: there is no barrier to the injunction against Nielson in his official capacity as Secretary of the Board. Garrett, explicitly stated that "[o]ur holding here ... does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by ... private individuals in actions for injunctive relief under Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)." 121 S.Ct. at 968, n. 9. Because the injunction requires Secretary Nielsen to comply with its provisions, it would remain in force even if relief could not be ordered against the Board, and its effect would, for all practical purposes be the same. For the reasons set forth above, the state is not immune from suit. Moreover, the injunction would be effective as to Secretary Nielsen in any event.
There is no dispute that the Board repeatedly violated the ADA and the Rehabilitation Act, and it is evident that the violations were system-wide. Plaintiffs have standing to seek a remedy for those violations. In most respects, the class-certification was appropriate. However, if plaintiffs seek to include, within the class, sexually violent predators, mentally disordered offenders, and prisoners or parolees with renal impairments, named plaintiffs must be added to represent those groups. Otherwise, the district court must modify the certification order and the injunction accordingly. We interpret paragraphs 6 and 15-18 of the injunction as permitting the Department to object, for valid penological reasons, to the transportation of prisoners (including those facing parole revocation extension hearings) to alternative facilities, and as permitting the Board to use the Department's tracking system to comply with the injunction. We order that paragraph 14 be modified to the extent that it requires the Board to exercise control over Department personnel, and direct the district court to do so on remand. In all other respects the injunction is proper and its scope appropriate. It does not violate the provisions of the PLRA and is not inconsistent with Turner v. Safley. Sovereign immunity does not bar this action, and Governor Davis and Secretary Presley properly remain as defendants.
AFFIRMED IN PART, VACATED IN PART, AND REVERSED AND REMANDED IN PART
BERZON, Circuit Judge, concurring:
I fully concur in the opinion, but write separately about two related matters. First, the standing issue in this case is, I believe, somewhat more straightforward than the court's opinion may suggest. Second, it is useful to compare this case directly to Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court's most recent major pronouncement on the issuance of injunctions in prison cases. Doing so demonstrates that the injunction in this case suffers none of the standing or other defects that led the Court in Lewis to preclude equitable relief. Because the two points inform one another, I will discuss them together.
Standing is a jurisdictional issue. The court therefore must address standing, where questionable, even if the parties do not raise it. See, e.g., Juidice v. Vail, 430 U.S. 327, 331, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977). Here, the Bureau of Prison
I therefore find it helpful to begin the standing inquiry with the question the court addresses last but upon which the BPT concentrated in its rather brief presentations — namely, whether the individual named plaintiffs suffered an actual injury. If they did, then under Hodgers-Durgin v. De La Vina, 199 F.3d 1037 (9th Cir.1999) (en banc), there is an Article III "case or controversy," and the question becomes whether the named plaintiffs have made a showing of a "real or immediate threat that the plaintiff[s] will be wronged again" adequate to maintain a claim for equitable relief. Id. at 1042, quoting Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
The BPT maintains — fairly cursorily — that some of the named plaintiffs suffered no "legal injury", by which I presume BPT means that they suffered no Article III injury. Otherwise, the argument could not matter for standing purposes. One contention is that several of the named plaintiffs suffered no such injury because they never asked for an accommodation. But the question whether the provisions of Title II of the ADA assuring disabled individuals equal access to public programs are limited to those who request accommodation is a merits question, not one that affects whether the plaintiffs have suffered an injury in fact.
The BPT also suggests at points that the named plaintiffs lack standing because they cannot show that the result of their parole proceedings would have been different had they been accommodated. A similar inquiry was central in Lewis, because Lewis involved a constitutional challenge based on a right of access to the courts. Given the basis for the lawsuit, the Court in Lewis concluded that only inmates who could demonstrate that the prison's failure to provide some means of accessing courts deprived them of the ability to litigate an arguable claim could show an actual injury. Id., at 351-353, 116 S.Ct. 2174.
Here, however, the named plaintiffs are pursuing a statutorily-protected interest in equal access with other prisoners and parolees to parole-related BPT proceedings — a dignitary interest, so to speak. Further, the statute under which they are suing specifically protects disabled individuals' "participation" in "programs" of a public entity. Plaintiffs are alleging, in other words, that the ADA protects the right of disabled but otherwise "qualified" individuals to participate in their own parole hearings whether or not the result is affected, just as the same statute protects the right of disabled but otherwise "qualified" professional golfers to participate in tournaments even if they come in last and don't win a penny. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001).
Another BPT contention is that because the California Department of Corrections (CDC) entered into a settlement with the plaintiff class regarding its own ADA violations, the plaintiffs have no continuing "legal injury" with regard to matters within the BPT's bailiwick that might be remedied by the CDC plan. There is, however, nothing in the present record regarding any actual relevant change of conditions due to the CDC plan. The matter is therefore more properly addressed, as the court addresses it, by adjusting the scope
The BPT's fourth standing challenge concerns only the plaintiffs who were involved in parole revocation proceedings. BPT analogizes the plaintiffs' situation to that of ordinary citizens who seek to contest governmental conduct that might ensue if the plaintiffs break the law in the future, as in Lyons and O'Shea v. Littleton, 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). BPT argues that the parolee plaintiffs in this case cannot allege a credible threat of future injury sufficient to sustain a claim to equitable relief, because the possibility that they will participate in future parole revocation hearings depends on too many contingencies.
The court addresses that contention convincingly, showing that:
Interestingly, Lewis, while expressing great concern to assure that only inmates who had suffered actual injury could obtain injunctive relief, appeared willing to assume the likelihood of future injury from actual injury in the past where the affected plaintiffs and class members remained within the corrections system and subject to its rules, regulations, and facilities. The Court did not ask whether the illiterate plaintiff who had his court case dismissed with prejudice because he had no assistance in bringing it was likely to have a claim dismissed again in the future for that reason. Instead, the Court held only that "[t]he remedy must ... be limited to the inadequacy that produced the injury in fact that the plaintiff has established." Id. at 357, 116 S.Ct. 2174.
For all these reasons, the named plaintiffs in this case, like the two plaintiffs in Hodgers-Durgin, demonstrated that they have Article III standing to pursue this litigation. The questions then become (1) whether they have also established entitlement to equitable relief; and (2) if so, whether the scope of the relief granted is commensurate with the showing of injury suffered by the class.
It is critical to this case, in my view, that these two inquiries are not the same. While the prevalence of similar injuries among members of the class who are not named plaintiffs is not relevant to the first inquiry, see Hodgers-Durgin, 199 F.3d at 1045, the circumstances of class members are relevant to — indeed, of enormous importance to — the second inquiry, namely, the appropriate scope of any injunctive relief, as Lewis indicates. See 518 U.S. at 359-60, 116 S.Ct. 2174 (looking at all the state's prison facilities and at class members who were not named plaintiffs before concluding that there were only two instances
As to the inquiry whether the named plaintiffs here have established their own entitlement to equitable relief, the circumstances surveyed above with respect to those plaintiffs' Article III standing are determinative: The life prisoners have a likely recurring injury, because they may well have repeated parole suitability hearings and the record establishes that the BPT had an ongoing policy of not providing for the full participation of inmates with the named plaintiffs' communication, mental, and mobility disabilities. The parolees, for the reasons already discussed, are more in the situation of the inmates in Lewis than the free-roving citizens in Hodgers-Durgin, as they remain subject to the direct supervision and intervention of the criminal justice system even if they do not break any criminal laws. They therefore have a likelihood of recurring exposure to parole hearings, and to the BPT's legally deficient policies regarding their participation in those hearings.
Turning to the second question — whether systemwide relief was merited — it is here that the contrast with Lewis becomes most stark. The ADA, as noted, protects against exclusion from participation. In this case, therefore, unlike Lewis, it suffices that such denial of participation exists for each category of disability represented by the named plaintiffs as well as geographically across the system. Whether
The BPT comes at the contention that the named plaintiffs should not have been permitted to attain relief directed at the class's injuries in another way as well, maintaining that the named plaintiffs should be allowed to represent only classes with their particular disabilities, and then only with regard to the type of hearing to which they were exposed. But there is no reason that a plaintiff cannot be typical — or present common issues — with regard to both the class of disability they have and the type of hearing they have experienced, independently.
Moreover, how a class is properly defined depends largely on the claim they seek to adjudicate. Here, the contention is that the BPT had a consistent policy of precluding meaningful participation in hearings for disabled prisoners and parolees generally, and for the particular classes of disabled prisoners and parolees represented by the named plaintiffs specifically. There are only so many forms of interaction between the prisoners and parolees and the BPT — written, oral, and physical. Whether a particular plaintiff has dyslexia or another learning disability does not matter with regard to whether the BPT has in place means of accommodating prisoners or parolees who cannot read. In Lewis, for example, the Court treated two illiterate inmates as raising a common issue concerning adequate legal assistance without considering why each inmate could not read.
If the challenge were to a discrete BPT policy of refusing to accommodate only certain disabilities within the groups of disabilities included in the certified class, the Bureau might have a point, but that is not the case. Similarly, if there were some asserted conflict or diversity of interests between discrete subgroups of disabled inmates or parolees relating to the causes of action asserted, the BPT might have a point, but that is not the case either.
There is one final comparison with Lewis that is worth making and that the court makes: The process the district court used here for devising a suitable remedial plan is precisely the kind of process Lewis indicates is appropriate. The court in this case issued essentially an umbrella injunction, setting forth the general areas — training, identification and accommodation, forms, equipment, the screening process, appeals, monitoring — that the BPT needed to address, and directing the BPT to develop specific policies and procedures for complying with the ADA. In accord with a directed negotiation process included in the injunction, the BPT has apparently responded to the plaintiffs' objections to their proposed plans satisfactorily to the
As the court reports, then, this was a minimally intrusive, not an "inordinately — indeed, wildly — intrusive" injunction (Lewis, 518 U.S. at 362, 116 S.Ct. 2174). It gave the major role in determining the new procedures to be put in place "to the views of state prison authorities." Id. It also bears noting, in light of any separation of powers concerns, that this injunction remedied a federal statutory violation. The court therefore had considerable guidance from Congress and from the federal executive branch in devising appropriate relief. Further, the court today has scrutinized the injunction carefully and, as noted, adjusted it with regard to the few instances in which it appears to impose unworkable burdens on the BPT.
For all these reasons, this case and Lewis are worlds apart, and the injunction in this case, as modified, was fully appropriate.
"[T]here are numerous examples of the BPT's failure to provide such auxiliary aids and services.... [T]he BPT failed to provide effective American Sign Language interpretation services to hearing impaired prisoners and parolees, failed to provide Braille materials, large print materials, audio tapes or qualified readers for visually impaired prisoners and parolees, failed to provide qualified readers for learning disabled prisoners and parolees, and failed to provide trained staff capable of effectively communicating with mentally retarded or learning disabled prisoners and parolees."