others similarly situated, Plaintiffs, v. JAMES GOMEZ,

Director, California Department of Corrections, et al.,

Defendants.

No. C90-3094-TEH

889 F. Supp. 1146;

January 10, 1995, Decided

January 10, 1995, FILED; January 11, 1995, ENTERED

JUDGES: Thelton E. Henderson, Chief Judge, United States District Court

OPINIONBY: Thelton E. Henderson

I.

Plaintiffs represent a class of all prisoners who are, or will be, incarcerated by the State of California Department of

Corrections at Pelican Bay State Prison, which is located in the remote northwest corner of California, seven miles northeast of

Crescent City and 363 miles north of San Francisco. Pursuant to the civil rights statute 42 U.S.C. @ 1983, n1 plaintiffs

challenge the constitutionality of a broad range of conditions and practices that intimately affect almost every facet of their

prison life. They seek redress from the Court in the form of injunctive and declaratory relief.

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n1 42 U.S.C. @ 1983 provides that "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of

any State . . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper proceeding for redress."

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Although referred to in the singular, Pelican Bay State Prison ("Pelican Bay") actually consists of three completely separate

facilities. The first is a maximum security prison which houses approximately 2,000 "general population" maximum security

inmates. The daily routine for these inmates is comparable

to that in other maximum security prisons in California. The second is the Security Housing Unit, commonly referred to as the

"SHU." Located in a completely separate complex inside the security perimeter, the SHU has gained a well-deserved

reputation as a place which, by design, imposes conditions far harsher than those anywhere else in the California prison system.

The roughly 1,000-1,500 inmates confined in the SHU remain isolated in windowless cells for 22 and ½ hours each day, and

are denied access to prison work programs and group exercise yards. Assignment to the SHU is not based on the inmate’s

underlying offense; rather, SHU cells are reserved for those inmates in the California prison system who become affiliated with

a prison gang or commit serious disciplinary infractions once in prison. They represent, according to a phrase coined by

defendants, "the worst of the worst." Finally, there is a small minimum security facility that houses approximately 200 prisoners.

All in all, there are between 3,500 and 3,900 prisoners confined at Pelican Bay on any given day.

Just over five years old, Pelican Bay was activated on December 1, 1989. Considered a "prison of the future," the buildings are

modern in design, and employ cutting-edge technology and security devices. This, then, is not a case about inadequate or

deteriorating physical conditions. There are no

rat-infested cells, antiquated buildings, or unsanitary supplies. Rather, plaintiffs contend that behind the newly-minted walls and

shiny equipment lies a prison that is coldly indifferent to the limited, but basic and elemental, rights that incarcerated persons—

including "the worst of the worst"—retain under the First, Eighth, and Fourteenth amendments of our United States

Constitution. In particular, plaintiffs allege that defendants (1) condone a pattern and practice of using excessive force against

inmates, (2) fail to provide inmates with adequate medical care, (3) fail to provide inmates with adequate mental health care, (4)

impose inhumane conditions in the Security Housing Unit, (5) utilize cell-assignment procedures that expose inmates to an

unreasonable risk of assault from other inmates, (6) fail to provide adequate procedural safeguards when segregating prison

gang affiliates in the Security Housing Unit, and (7) fail to provide inmates with adequate access to the courts.

Named in their official capacity as defendants are Pelican Bay Warden Charles Marshall, Chief Deputy Warden Terry Peetz,

Chief Medical Officer A. M. Astorga, and James Gomez, Director of the California Department of Corrections ("CDC"). n2

They deny that any of plaintiffs’ allegations have merit, and assert that Pelican Bay operates well within constitutional limits in

each of the areas outlined above. Moreover, they argue, Pelican Bay, and the SHU in particular, does exactly what it was

designed to do: it isolates the most brutal and disruptive elements of the inmate population while reducing violence in California

state prisons overall.

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n2 On January 5, 1995, the Court was notified by defendants’ counsel that three of the defendants have retired or resigned

from their positions, and that new officials have been named in their place: Warden Marshall has been succeeded by interim

Warden J.S. Stainer; Chief Deputy Warden Peetz has been succeeded by Chief Deputy Warden Robert L. Ayers, and Chief

Medical Officer Astorga has been succeeded by interim Chief Medical Officer Dr. David Cooper.

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The case was tried before the Court between September 14 and December 1, 1993. Immediately prior to the trial, the Court

spent two days touring Pelican Bay, accompanied by counsel for both parties and prison officials. During the course of the trial,

the Court heard testimony from 57 lay witnesses, including class members, defendants, and correctional employees at all levels.

It also received into evidence over 6,000 exhibits, including documents, tape recordings, and photographs, as well as thousands

of pages of desposition excerpts. n3

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n3 Aside from a limited group of documents, discovery in this action closed on February 26, 1993. See April 21, 1993 Order

at 2-4. Accordingly, the evidence presented in this case primarily concerns incidents and events that occurred between

December 1989 and February 1993.

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The Court recognizes that neither the inmates at Pelican Bay nor the Department of Corrections personnel can be considered

neutral witnesses. For reasons that are self-evident, class members, as well as defendants and other prison staff, are interested

in the outcome of the case. We also take into account the undeniable presence of a "code of silence" at Pelican Bay. As the

evidence clearly shows, this unwritten but widely understood code is designed to encourage prison employees to remain silent

regarding the improper behavior of their fellow employees, particularly where excessive force has been alleged. Those who

defy the code risk retaliation and harassment. n4 We have considered all of the above, as well as the manner and demeanor of

the witnesses, in assessing witness credibility and making our factual findings.

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n4 Several prison staff admitted to a code of silence problem. For example, one Program Administrator agreed, in his

deposition, that a code of silence "frequently" operates among officers of Pelican Bay, and that this fact can make it difficult, as

a supervisor, to determine what really happened during an incident. Helsel Tr. 21-3577 (quoting deposition). Notably, in open

court this same administrator was reluctant to testify about the code of silence; after agreeing that he knew "what the code of

silence is at Pelican Bay," he was asked if it operates frequently, to which he would respond only that "I don’t know how to

answer that." Helsel Tr. 21-3576. The Chief Deputy Warden also acknowledged the code of silence, see Peetz Tr. 19-3243

(Q: "Do you have concerns that there is a code of silence among staff at Pelican Bay?" A: "Yes. I have at times, yes"), as did

former Program Administrator Rippetoe. See Rippetoe Depo. at 197-98 ("I believe that there’s always been a code amongst

peers to protect each other, okay, whether it be law enforcement official [sic], whether it be, you know—it’s no greater in the

prison setting. Yes, I think that there is that."). Captain Jenkins also acknowledged that the code of silence has hampered his

investigations of excessive force at Pelican Bay. Tr. 2-288. Defendant Gomez similarly agreed that lack of candor can impede

some

investigations at Pelican Bay: "There are people that . . . are not

forthcoming . . . that are not as honest as they should be, and that makes an investigation more difficult to prove." Tr. 28-4653.

We also observed at trial that prison staff frequently could not recall the identity of other staff whom they testified did or said

certain things, although other details were easily recalled. Prison staff also report to internal investigators, with notable

frequency, that they had just looked the other way, been distracted by something else, or had their visibility impaired at the

moment the alleged misuse of force was said to have occurred. See, e.g., Trial Exh. P-3083 at 79046 ("Officer Bare claimed

that he was unable to observe what was happening . . . because the helmet he was wearing . . . blocked his view.").

Those who violate the code of silence risk hostility from other prison staff. After Sergeant Cox testified that he witnessed an

inmate being hit on the head with the butt of a 38 millimeter gas gun, he was recalled as a witness. He testified that, after his

appearance at trial, he had been told by various senior staff (whom he would not name unless ordered by the Court) that he

had been a snitch and that he should "watch his back" and that "the administration wasn’t very happy with me." Cox Tr.

18-3015-17. Similarly, Officer Powers made the following comments to an internal investigator: "what do I say; you know the

position I’m in . . . about ratting off that, how am I going to work here any more. . . . If an officer ‘rats’ on a fellow officer, that

officer becomes an outcast." Trial Exh. P-3084 at 79860. Captain Jenkins also agreed that he has "seen evidence of the

situation where an officer reports another officer and is not too long thereafter reported upon himself," and that this "has been an

issue" at Pelican Bay. Tr. 2-290.

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The Court was also aided by the testimony of ten experts in the areas of medicine, psychiatry, psychology, and prison

management and operation. n5 With respect to the claims regarding excessive force and cell assignment practices, plaintiffs

presented three experts: Charles Fenton, a former warden of two maximum security prisons, n6 Steve Martin, who spent more

than 20 years working in varying capacities for the Texas Department of Corrections, n7 and Vince Nathan, who has worked

for nearly 20 years as a court-appointed monitor and expert in prison cases. n8 Defendants presented two experts: Daniel

McCarthy, who worked for almost 40 years in varying capacities for the California Department of Corrections, most recently

as its Director, n9 and Larry DuBois, the Commissioner of the Massachusetts Department of Corrections. n10

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n5 The direct testimony of all experts was submitted by way of declaration, supplemented by two hours of live testimony. The

parties were also permitted unlimited live cross examination and redirect examination.

Defendants filed a motion to strike portions of the declaration submitted by one of plaintiffs’ experts, Dr. Craig Haney, asserting

that (1) PPs 56-61 should be stricken as inadmissible legal opinion outside Haney’s area of expertise, and (2) that all inmate

statements contained in the declaration should be stricken as inadmissible hearsay. With respect to the latter, defendants

stipulate

that the statements may be admitted to show the basis of Dr. Haney’s opinions, but not for the truth of the matters asserted.

We conclude that this motion should be denied. With respect to the inmate statements specified as numbers 1-32 in plaintiffs’

supplemental opposition, such statements are admissible under Fed. R. Evid. 803(3) to show the declarant’s then existing

mental, emotional or physical condition. With respect to the inmate statements specified as numbers 32-49, plaintiffs have

clarified that they are not offering such statements to show the truth of the matter asserted therein, and thus they do not

constitute hearsay. Finally, the objection to PP 56-61 appears moot given that plaintiffs do not rely on the opinions set forth in

these paragraphs in their proposed findings of fact and conclusions of law; nor has the Court otherwise considered them in

making its findings of fact or conclusions of law.

n6 Charles Fenton worked for the Federal Bureau of Prisons for 27 years prior to his retirement in 1980, and served as

Warden of the federal prison at Marion, Illinois (which during Fenton’s tenure housed those inmates posing the greatest security

risk in the federal prison system, although ethnic prison gangs had not yet emerged as a significant presence). Fenton also

served as warden at the federal maximum security prison at Lewisburg, Pennsylvania, and as the first warden at a new federal

prison in Wisconsin. Since 1980, Fenton has served as a consultant for the Massachusetts Department of Corrections. He has

also testified as an expert for the defense in prison lawsuits filed in several states. Notably, this is the first time that Fenton has

ever testified on behalf of an inmate class.

n7 Steve Martin has more than 20 years experience in prison management and policy and holds two degrees in correctional

science. He has worked as a correctional officer at a maximum security prison, as chief legal representative for the Texas

Department of Corrections, and as Chief of Staff to the Director of the Texas Department of Corrections (the third ranking

operational officer in the department). Since leaving the Texas department in 1985, Martin has served as a consultant for prison

systems in California, Texas, Nebraska, and Ohio; he currently serves on the Texas Punishment Standards Commission.

n8 Vince Nathan, a lawyer by training and former law professor, has served as a court-appointed expert and monitor in a

number of cases challenging prison conditions. He served as a court monitor in the seminal Ruiz v. Estelle litigation, 503 F.

Supp. 1265 (S.D. Tex. 1980), aff’d in part and rev’d in part, 679 F.2d 1115 (5^th Cir. 1982) (involving, inter alia, staff misuse

of force in the Texas correctional system), and Guthrie v. Evans, 93 F.R.D. 390 (S.D. Ga. 1981) (involving Georgia State

Prison). Nathan has also worked as a

court-appointed monitor in the Puerto Rico and Michigan prison systems, and as a court-designated expert consultant in

litigation involving Rhode Island prisons. He has also done consulting work for the National Institute of Corrections and the

New Mexico and Arkansas Departments of Corrections. In Fisher v. Koehler, 692 F. Supp. 1519, 1522 n. 6 (S.D.N.Y.

1988), aff’d, 902 F.2d 2 (2d Cir. 1990), Judge Lasker observed that Nathan "has the reputation as one of the most

knowledgeable experts in his field."

n9 Daniel McCarthy was employed for almost forty years by the California Department of Corrections before his retirement in

1987. During that time, he worked as the Director of the California Department of Corrections for four

years, and as the Warden of California Men’s Colony for 12 years. His earlier positions included Deputy Superintendent at the

California Men’s Colony, Correctional Administrator at the California Correctional Institution in Tehachapi, California, Program

Administrator at the California Medical Facility in Vacaville, California, Assistant Departmental Training Officer at

Departmental Headquarters, Assistant Departmental Transportation Officer at Departmental Headquarters, In-Service Training

Officer and Correctional Sergeant at California Medical Facility, and Correctional Officer at San Quentin.

n10 Larry DuBois has been in the field of corrections for over 20 years. He has previously served as the Warden at the Federal

Correctional Institute in Englewood, Colorado, and at a facility in Lexington, Kentucky. Other prior positions include Associate

Warden at federal correctional facilities in Talladega, Alabama and Marion, Illinois, and Regional Director for the Federal

Bureau of Prisons. After his retirement, and before accepting his present position, he worked for three months assisting a Fulton

County, Georgia facility on issues pertaining to overcrowding and staffing.

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With respect to the claims concerning medical care, mental health care, and conditions in the SHU, plaintiffs presented Dr.

Armond Start, an associate professor at the University of Wisconsin Medical School and former director of health care

services for the Oklahoma and Texas prison systems, n11 Dr. Stuart Grassian, a psychiatrist and faculty member at Harvard

Medical School and expert on the effects of solitary confinement, n12 and Dr. Craig Haney, a professor of psychology at the

University of California at Santa Cruz, who has specialized in the psychological effects of incarceration. n13 Defendants

presented Dr. Jay Harness, a professor of surgery at the University of California at Davis and former director of health care

services for the Michigan prison system, n14 and Dr. Joel Dvoskin, a clinical psychologist and director of the Bureau of

Forensic Services for the New York State Office of Mental Health. n15

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n11 Dr. Armond Start is an Associate Professor at the University of Wisconsin Medical School, where, in 1991, he founded

the National Center for Correctional Health Care Studies. He obtained his M.D. in 1957 from the University of Michigan, and

has been "Board Certified" as a pediatrician since 1964. Dr. Start also received an M.P.H. from the University of Oklahoma

College of Health in 1977. After twelve years in private practice, Dr. Start served as the Director of the Division of

Communicable Disease Control for the Oklahoma State Department of Health from 1975 to 1977. From 1977 to 1983 he

served as the Medical Director of the Oklahoma Department of Corrections. At that time, he became the Director of Health

Care for the Texas Department of Corrections, then the largest correctional system in the United States.

Dr. Start has reviewed over one hundred jails and prisons over the course of his career. He has acted as a correctional medical

consultant or expert witness on numerous occasions. Notably, he was retained by the California Department of Corrections in

Gates v. Deukmejian, a case concerning medical care at the California Medical Facility in Vacavi Dr. Stuart Grassian has been

a faculty member at Harvard Medical School since 1974 and a "Board Certified" psychiatrist since 1979. He obtained his

M.D. in 1973 from New York University Medical School. In addition to his teaching, Dr. Grassian maintains a private practice,

is the Psychiatric Director at the Melrose Wakefield Hospital Day Treatment Program for Addictions, and serves as a

supervising psychiatrist in the Outpatient Department at the New England Memorial Hospital in Stoneham, Massachusetts.

From 1977 to 1980 he was also Director of Inpatient Services at a community mental health center, where he was responsible

for implementing policies regarding staffing, quality assurance, and supervision of psychiatric residents and other mental health

professionals. He had similar responsibilities when he served as Chief of Staff (1991-92) and Director of Adult Inpatient

Services (1980-84) at the New England Memorial Hospital. He has also testified as an expert witness in other prison litigation.

Dr. Grassian has published two articles on the psychological effects of solitary confinement. Grassian & Friedman, Effects of

Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, 8 Int’l J. of Law & Psychiatry 49 (1986); Grassian,

Psychopathological Effects of Solitary Confinement, 140 Amer. J. of Psychiatry 1450 (1983).

n13 Dr. Craig William Haney is a Professor of Psychology and Director of the Program in Legal Studies at the University of

Santa Cruz, where he has been teaching for the past 16 years. Dr. Haney earned both his Ph.D. in Social Psychology and his

J.D. from Stanford University in 1978. He has published over 40 articles and book chapters on topics in law and psychology,

including works on the conditions of confinement and the psychological effects of incarceration. Dr. Haney has testified as an

expert witness in prison litigation in state and federal courts in California, Washington, and Illinois.

n14 Dr. Jay Harness received his medical degree in 1969 from the University of Michigan Medical School, and has been a

"Board Certified" surgeon since 1970. Since 1992, Dr. Harness has been a Professor of Surgery at the University of California,

Davis Medical School, and is also Chief of Surgical Oncology at Highland General Hospital in Oakland, California. From 1975

to 1985 Dr. Harness was the Director of the Office of Health Care for the Michigan Department of Corrections. He has

served, inter alia, as a member of the American Medical Association’s ("AMA’s") Advisory Committee to improve medical

care at correctional institutions, as the chairman of the AMA’s National Consultant Advisory Group on accreditation of jails,

and AS Chairman of the Board of Directors for the National Commission on Correctional Health Care. Dr. Harness has also

served as a consultant on correctional health care for both the United States Department of Justice and for attorney generals in

several states.

n15 Dr. Joel Dvoskin, a clinical psychologist, obtained his Ph.D. from the University of Arizona in 1981. Since 1984, he has

directed the Bureau of Forensic Services for the New York State Office of Mental Health. In that position, he has line authority

for, among other things, inpatient services at three large forensic hospitals and two regional forensic units, and all mental health

services in New York state prisons. Since 1988, he has held the title of Associate Commissioner for Forensic Services in the

New York State Office of Mental Health.

Dr. Dvoskin was previously employed, inter alia, as the Acting Executive Director of the Kirby Forensic Psychiatric Center, a

new maximum security

forensic psychiatric hospital in New York, and by the Arizona State Prison system, where he served as a psychologist,

supervising psychologist, and Inmate Management Administrator. He has acted as a consultant to approximately 18

jurisdictions regarding the provision of mental health care to incarcerated persons. He has also worked in prisons and prison

hospitals in Massachusetts.

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We are mindful that the opinions of experts are entitled to little weight in determining whether a condition is "cruel and unusual

punishment" under the Eighth Amendment. Toussaint v. McCarthy (Toussaint IV), 801 F.2d 1080, 1107 n. 28 (9^th Cir. 1986).

As such, we have not relied upon expert opinion to make this ultimate legal determination. It is appropriate, however, for this

Court to consider expert opinion in assessing subsidiary issues which inform the court’s final determination. For example, expert

opinion may be properly considered in assessing the effects of challenged conditions or practices. See Helling v. McKinney,

U.S. , 113 S. Ct. 2475, 2482, 125 L. Ed. 2d 22 (1993) (making reference to the "scientific and statistical inquir[ies]" that will

be used to determine the seriousness of the harm caused by challenged conditions); Jordan v. Gardner, 986 F.2d 1521, 1526

(9^th Cir. 1993)(en banc)(relying on expert testimony to establish psychological impact of challenged measure on inmates). See

also Slakan v. Porter, 737 F.2d 368, 378 (4^th Cir. 1984)(correctional expert’s opinions concerning punitive nature of prison’s

water hosing practices properly admitted).

After the trial was completed, in December 1993, the parties filed proposed findings of fact and conclusions of law on January

28 and February 1, 1994. The case was taken under submission at that time.

Perhaps the paramount responsibility of prison administrators is to maintain the safety and security of both staff and inmates.

Bell v. Wolfish, 441 U.S. 520, 546-47, 99 S. Ct. 1861, 1878, 60 L. Ed. 2d 447 (1979). In the setting of a maximum security

prison, where inmates are more likely to pose security risks, this is a remarkably difficult undertaking. As the Ninth Circuit has

previously said, prison officials have the "unenviable task of keeping dangerous men in safe custody under humane conditions."

Spain v. Procunier, 600 F.2d 189, 193 (9^th Cir. 1979). In a place like the SHU, which houses some of the most anti-social

and violence-prone prisoners in the system—including those who suffer from mental illness—the task is that much more

difficult.

There is no question that this demanding and often thankless undertaking will require prison staff to use force against inmates.

Indeed, the responsible deployment of force is not only justifiable on many occasions, but absolutely necessary to maintain the

security of the institution. As one expert at trial succinctly stated, when it comes to force, it is "as dangerous to use too little as it

is to use too much." Fenton Tr. 5-766.

At the same time, the prison setting offers a tremendous potential for abuse. Custody personnel are in constant contact, day

after day, with a difficult, frustrating, and sometimes openly and actively hostile inmate population. They also have powerful

weapons and enormous manpower at their disposal, and exercise nearly total control over the inmates under their supervision.

Adding to this volatile mix is the fact that the prison setting, and particularly the SHU, is far removed from the usual sights and

sounds of everyday life. From the outside, the SHU resembles a massive concrete bunker; from the inside it is a windowless

labyrinth of cells and halls, sealed off from the outside world by walls, gates, and guards. The physical environment thus

reinforces a sense of isolation and detachment from the outside world, and helps create a palpable distance from ordinary

compunctions, inhibitions and community norms.

If, in addition to all of the above, prison administrators fail to adequately supervise and monitor the use of force, the potential

that force will be misused increases significantly. See Haney Decl. at 23-24. At trial, plaintiffs sought to prove that this potential

for abuse was in fact realized at Pelican Bay, leaving in its wake a pattern of excessive force against inmates.

A substantial portion of the trial was devoted to this claim. The parties presented testimony from dozens of witnesses, including

several inmates and CDC personnel at all levels. The documentary evidence presented included incident reports, Internal

Affairs reports and investigative files and tapes. Several hundred pages of deposition testimony were also admitted into

evidence.

As described above, the parties also presented five experts, Charles Fenton, Vince Nathan and Steve Martin (for plaintiffs) and

Daniel McCarthy and Larry DuBois (for defendants), all of whom are distinguished experts in the correctional field. There

were, however, significant differences in the amount of preparation they undertook prior to testifying. On the whole, plaintiffs’

experts did substantially more to familiarize themselves with the particulars of Pelican Bay than did defendants’ experts. For

example, plaintiffs’ expert Martin reviewed over one thousand documents, including all incident reports for each cell extraction

and shooting that occurred at Pelican Bay through the end of discovery, all fetal restraint memoranda and Internal Affairs

investigation files produced (including a number of related audio tapes), training materials, rules violations reports, grievance

appeals submitted by prisoners, and 30 deposition transcripts. He also spent several days at Pelican Bay, from September

14-17, 1992, and July 7-9, 1993, during which time he toured the prison, conducted interviews with inmates, and met with

correctional staff. n16 In contrast, defendants’ expert Larry DuBois testified that he spent approximately 20 hours reading

documentary evidence; in his own words, he "reviewed or cursorily reviewed" about a box and a half of documents relevant to

the case (incident reports, training materials, Internal Affairs reports and policies). Tr. 29-4689. He also spent two days at

Pelican Bay in October 1993, during which he met with the Warden and correctional staff, and observed demonstrations of

various weapons at the prison’s firing range.

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n16 Vince Nathan also undertook extensive preparations. He spent over 300 hours reviewing all available written policies

concerning the use of force at Pelican Bay, all Pelican Bay training materials, all control restraint

memoranda, all shooting review reports, half of the files of internal investigations on excessive force, more than one hundred

incident reports, and hundreds of pages of deposition testimony. Nathan visited Pelican Bay in July, 1993 for two days. On the

first day he interviewed 7 inmates. On the second day he toured the facilities and conducted informal interviews with staff,

including a sergeant, line officers, and housing unit control booth officers.

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After a thorough review and consideration of the testimonial and documentary evidence, the Court is compelled to conclude

that the Eighth Amendment’s restraint on using excessive force has been repeatedly violated at Pelican Bay, leading to a

conspicuous pattern of excessive force. In many instances, there was either no justification for the use of force, or alternately,

the use of force was appropriate, but the amount of force applied was so strikingly disproportionate to the circumstances that it

was imposed, more likely than not for the very purpose of causing harm, rather than in a good faith effort to restore or maintain

order. Although this pattern was probably more pronounced during the initial years of the prison’s operation (and prior to the

prosecution of the instant class action), the Court is satisfied that it continues to exist. n17

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n17 The Court does not, of course, mean to imply that all correctional staff at Pelican Bay engage in excessive or unnecessary

force for the purpose of causing harm. Indeed, the Court has no doubt that many Pelican Bay personnel are committed to

performing their jobs in a conscientious and professional manner, notwithstanding the difficulties and inevitable frustrations of

working in a prison setting. We note, for example, that Sergeant Cox testified that a "lot of staff" objected to the practice of

chaining inmates in fetal restraints to a stationary object in their cells. "It’s not that we were inmate lovers," he explained, but

staff "didn’t like it . . . didn’t think it was right." Tr. 15-2345.

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Plaintiffs’ experts forcefully opined that the level of force used at Pelican Bay is well beyond the norm of any facility with which

they are familiar. Nathan, for example, testified that "Pelican Bay State Prison exists in a very different universe. . . . In 18 years

of involvement with a number of the most repressive and unlawful prisons in the United States, I have never observed . . . the

level of officially sanctioned unnecessary and excessive force that exists at [Pelican Bay]." Nathan Decl. at 12. n18

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n18 We also note that plaintiffs’ expert Vince Nathan, who also served as an expert witness in Fisher v. Koehler, 692 F. Supp.

1519 (S.D.N.Y. 1988), aff’d, 902 F.2d 2 (2^nd. Cir. 1990), found that the "use of unnecessary and grossly excessive force at

[Pelican Bay] far exceeds that which I found at Rikers Island and to which I testified in Fisher v. Koehler." Nathan Decl. at 10.

Judge Lasker in that case found a pattern of excessive force that he described as

"significant and widespread." Id. at 1532.

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As previously noted, the risk that force will be misused is considerably enhanced when prison administrators fail to implement

adequate systems to regulate and monitor its use. Plaintiffs have demonstrated that such a failure occurred at Pelican Bay, and

that it substantially contributed to the development and persistence of the pattern of excessive force. Finally, the evidence

shows that the pattern of excessive force, and the lack of adequate systems to control it, are not simply the result of

inadvertence, genuine mistakes in judgment, or good faith efforts gone awry. Rather, they are attributable—not only to

defendants’ deliberate indifference—but also their knowing willingness that harm occur. The Court agrees with Nathan’s

observation that "the use of unnecessary and excessive force at [Pelican Bay] appears to be open, acknowledged, tolerated,

and sometimes expressly approved." Nathan Decl. at 12.

We divide our factual findings concerning the use of force at Pelican Bay into three parts: (1) findings regarding the pattern of

excessive force at Pelican Bay, (2) findings regarding the lack of adequate systems to regulate and control the use of force, and

(3) findings regarding defendants’ state of mind.

1. Pattern of Excessive Force

a. Sampling of Evidence of Use of Excessive Force

The evidence pertaining to excessive force was not limited to one area of prison life. Rather, the record shows that excessive

force was used in a variety of circumstances and settings, from staff assaults on inmates to punitive cagings under harsh

conditions. Together, these strands of evidence weave a picture that reflects not just isolated indiscretions, but a pattern and

practice of excessive force. The Court does not attempt to address every incident of excessive force that was raised at trial, in

plaintiffs’ experts’ declarations, or in the documentary evidence; rather what follows is a sampling of the evidence concerning the

use of excessive force in different contexts. n19

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n19 Because this case es on supervisorial responsibility for prison-wide misuse of force, we have not attempted to resolve or

reach final conclusions as to the liability of any particular individual for any particular incident, as would be necessary in the case

of an individual claim under 42 U.S.C. @ 1983. See Fisher v. Koehler, 692 F. Supp. 1519, 1532 (S.D.N.Y. 1988), aff’d,

902 F.2d 2 (2^nd Cir. 1990).

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(1) Staff Assaults on Inmates

Inmate Castillo

On January 31, 1991, Arturo Castillo refused to return his food tray in protest against a correctional officer ("officer") who had

called him and other inmates derogatory names. After leaving the tray near the front of the cell, Castillo retreated to the back

and covered himself with his mattress for protection, in anticipation of a cell extraction. n20 It is undisputed that Castillo, who is

small in stature, made no verbal threats or aggressive gestures. Nor did he possess, or pretend to possess, any kind of weapon.

Shortly thereafter, Sergeant Avila warned Castillo that if he did not give up his food tray, it was going to be very painful.

Castillo refused to hand Avila the tray, stating that if they wanted the tray, they would have to come and get it. The supervising

lieutenant then authorized his sergeants to forcibly remove Castillo from the cell.

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n20 As further discussed in section II(A)(1)(a)(4), infra, a cell extraction is the process by which an inmate is forcibly removed

from his or her cell.

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To accomplish this removal, two rounds from a 38 millimeter gas gun were fired into the cell. A taser gun was also fired,

striking Castillo in the chest and stomach. n21 Then, without attempting to retrieve the tray (which remained near the front of

the cell), some number of officers entered the cell, walked past the tray, and advanced toward Castillo. Castillo testified that

one of the officers then hit him on the top of his head with the butt of the gas gun, knocking him unconscious. When he regained

consciousness, he was on the floor with his face down. An officer was stepping on his hands and hitting him on his calves with a

baton, at which point Castillo passed out a second time. When he regained consciousness again, he was dragged out of the cell

face down; his head was bleeding, and a piece of his scalp had been detached or peeled back. At that point, it became clear

that Castillo had been seriously injured, and he was taken to the infirmary and then to the hospital by ambulance. n22

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n21 A 38 millimeter gas gun, similar to a large shotgun in appearance, shoots rubber blocks at high velocity; a taser is an

electrical gun that shoots darts up to a range of 15 feet. The darts, connected to the gun by wires, deliver up to 50,000 volts

and temporarily incapacitate the victim. See Start Decl., Exh. K at 73.

n22 According to the medical report, the wound on Castillo’s head was a seven centimeter by eight centimeter avulsion with a

"deep groove under flap [of scalp] that appeared one half centimeter-plus deep, running from [the] frontal to [the] parietal area

of the skull." Trial Ex. P-1991 at 23036. Castillo testified that, as a result of the incident, he suffered hearing loss, recurrent

headaches, ringing in his ears, and nightmares.

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According to the incident report, Castillo sustained his head injury when he fell and accidentally hit his head on the toilet during

the incident. Trial Exh. P-1100 at 4099. Lieutenant Trujillo, who was present at the time, also testified that he saw Castillo

"falling forward" and heard a "loud bang" and "somebody saying that he hit the toilet." Tr. 21-3638.

We do not, however, find defendants’ explanation of the injury credible. First, Trujillo’s testimony loses much of its force since

he never actually saw Castillo’s head hit the toilet even though he was "looking into the cell during the entire cell extraction." Tr.

21-3638-41, 3667-68. Nor did he recall seeing any blood on the toilet. Second, Castillo’s credible testimony was

unequivocally corroborated by Sergeant Cox, who observed the entire episode. Cox, who Trujillo admits "had a clear view" of

the extraction, Tr. 21-3646, testified that he witnessed another sergeant "hit [Castillo] in the head with a 38 millimeter gun, by

the butt of the gun." Tr. 15-2330. Cox further testified that he was "basically . . . ordered to keep my mouth shut and leave the

area." Tr. 15-2334. In addition, plaintiffs’ medical expert, Dr. Armond Start, gave unrebutted testimony that Castillo’s head

laceration was more likely the result of a high-velocity accelerated blow to the head than of a collision with a blunt, stationary

object, particularly given that the injury occurred on the top of the head. Start Decl. at 242.

The record contains no evidence that would support the conclusion that striking Castillo on the head with a gun, with enough

force to render him unconscious, was needed to retrieve the food tray, restore order, or otherwise protect the integrity of the

institutional mission. Indeed, the fact that the supervising officer made no attempt to ascertain whether the food tray could

simply be taken from the front of the cell, but instead immediately resorted to gas guns and tasers, reflects a pattern of using the

maximum, rather than the minimum, amount of force necessary to accomplish a goal. Finally, the fact that officers continued to

beat Castillo after he was subdued and unconscious further supports the Court’s inescapable conclusion that Castillo was

subjected to the use of excessive force that was imposed, not in a good faith effort to restore order or maintain security, but

maliciously for the purpose of causing pain and inflicting punishment. n23

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n23 On June 7, 1991, Castillo filed a pro se action under 42 U.S.C. @ 1983 alleging that excessive force was used in his

January 30, 1991 cell extraction (C91-1745 SBA). The presiding judge dismissed the action on May 17, 1993, after

concluding that Castillo’s allegations failed to state a claim for excessive force. See May 17, 1993 order at 4-5 and n.2. As that

court only had before it the pleadings of a pro se litigant, and had no opportunity to consider the evidence presented in the

instant action, its dismissal of Castillo’s action does not lend any credence to defendants’ version of events.

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Richard, a general population prisoner, was working in the prison’s optical lab in October 1991 when a disturbance erupted

between some of the other

inmates in the lab. There is no dispute that Richard, of slight build, was a victim rather than an aggressor in this incident. He

received some minor injuries from another inmate, including a laceration on his left check from a scissors, screwdriver or similar

instrument. It is undisputed that Richard did not assault any staff in this incident.

When he was subsequently placed in a holding cage, an officer informed him that he was rumored to have assaulted another

officer during the incident. Richard denied the rumor and told him that other staff could verify that he was only defending himself

from attack. Shortly thereafter, Officer Bray entered Richard’s cell, grabbed his handcuffs, and took him to an adjacent

counselor’s office. There, he shoved Richard into a large table, on which Richard struck his face. Richard testified that while he

was bent over the table, with his hands cuffed behind his back, Bray repeatedly struck his head, particularly on the side of the

face where he already had the laceration. It is undisputed that Richard was not resisting at this time.

Bray then dragged Richard onto the floor where Bray continued the assault while another officer held Richard’s legs. Richard

testified that, despite his repeated denials that he had attacked anyone, Bray continued punching him about the head and neck,

and continued to assert that Richard had assaulted another officer (who also happened to be a friend of Bray’s). At one point,

blood started shooting out of Richard’s mouth, but the punches continued. He was then taken back to the holding cell, after the

blood was washed from his face. During this incident, other officers watched but made no effort to intervene. After

experiencing two days of intense pain and inability to chew, Richard was allowed to go to the infirmary, and he was

subsequently informed that he had a fractured jaw. Five days later, he was taken to a hospital, and he spent the next six weeks

with a wired jaw in the Pelican Bay infirmary.

Prison officials later suggested that Richard had fractured his jaw in the optical lab incident and not at the hands of Officer Bray.

The Court again finds that this version of events entirely lacks credibility. First, immediately following the lab incident, Richard

was taken to the infirmary and given an entire body check for wounds, which included an examination of the inside of his

mouth; however, the medical report indicates only that Richard sustained a laceration on his cheek, a scrape on the top of his

left thigh and a small abrasion on his right elbow. Trial Exh. P-3084 at 79958. Second, the prison’s Chief Medical Officer later

expressed the opinion to investigators that an attack with scissors or other similar instrument, like the one suffered by Richard in

the optical lab, would not likely have caused a fractured jaw. Trial Exh. P-3084 at 79885. Further, Captain Jenkins testified

that, in the course of investigating the incident, the officers involved made inconsistent statements which led him to believe that

they were not being truthful about the incident. Tr. 3-360-61. He expressed concern that he was facing a "code of silence"

problem, particularly because he felt that the correctional officers’ union was suggesting that the officers "play their cards pretty

close to the vest." Tr. 3-361-2.

Based on the above, the Court finds that Richard was beaten about his head and neck, and suffered a broken jaw, as

punishment for an officer’s belief that Richard had assaulted another member of the staff. n24 Given the severity of the injury,

and the undisputed evidence that Richard neither provoked nor resisted Bray, the Court finds that Bray’s use of force was not

only excessive, but also completely unnecessary and inflicted for the purpose of causing pain rather than in a good faith effort to

restore order or maintain security.

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n24 Even if Richard had, in fact, assaulted another officer, the Eighth Amendment does not permit an officer to impose corporal

punishment in the form of a broken jaw. Ort v. White, 813 F.2d 318, 324 (11^th Cir. 1987) (prison officials step over the line

of constitutionally permissible conduct if they summarily and maliciously inflict harm in retaliation for past conduct); see also Cal.

Penal Code @ 673 (making corporal punishment, e.g., the use of physical punishment as a penalty for violating a prison rule, a

misdemeanor); Cal. Code of Regs., Tit. 15, @ 3281 ("No cruel or corporal punishment of an inmate . . . will be permitted for

any reason").

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This incident was precipitated when Martinez spit at Officer Parson and threw his meal tray through the narrow food port,

striking Parson. A short time later, correctional officers returned and ordered Martinez to submit to mechanical restraints before

being removed from his cell. When Martinez refused, and shielded himself with a mattress and/or blanket, the officers fired tear

gas and nine 38 millimeter gas gun rounds. When this did not subdue Martinez because of the shields, a team of officers,

including Parson, n25 then entered the cell. Although Martinez was combative, kicking and striking with fists, he was ultimately

subdued.

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n25 Although Officer Parson testified that he did not participate in the cell extraction, the Court does not find this testimony

credible in light of the fact that (1) the incident report lists Parson as a participant, (2) Lieutenant Carl, who supervised the

extraction, told investigators during his taped interview that he believed that Parson participated in the extraction, (3) Sergeant

Miller, also interviewed on tape, said that he was "sure" that Parson participated in the extraction, (4) the control booth officer

on duty stated that he believed that one of the officers who pulled another officer away from Martinez was Parson, and (5) the

medical report reflects that Parson informed the Medical Technical Assistant that he was involved in the cell extraction and that

some of the mace used hit him in the face. Parson testified that he was only exposed to the mace when he went into the cell

after the extraction was over to clean up, at which time he had a reaction to the mace. The Court does not find this explanation

persuasive, given that it is unsupported by any other evidence and is contradicted by several other sources who had no motive

to be untruthful.

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Louie Lopez, another inmate, was able to observe subsequent events. He credibly testified that he observed Martinez, then

handcuffed, emerging from the cell and being thrown against the wall. At that point, "he was out [i.e. seemingly unconscious].

He wasn’t moving." Tr. 1-68. Lopez then observed officers kicking Martinez’ head, face, neck and shoulders, and saw a lot of

blood. One of the control booth officers on duty also told the investigating officer that once Martinez was out of the cell, he was

restrained and under control, yet an officer whom the booth officer could not identify had kicked Martinez in his upper shoulder

or lower head area, after which someone said, "that’s enough, knock it off!" Trial Exh. P-3083 at 79053. He also confirmed

that other inmates on the tier could see what was happening and that they were yelling, "you can’t kick a guy in the head like

that." Trial Exh. P-3083 at 79052. As a result of this incident, Martinez lost four teeth, received a 1.5 inch laceration to the

back of his head, and suffered abrasions to the head, face, back, neck, chest and both legs.

The Court finds that the level of force used against Martinez was not motivated by a good faith effort to restore order or

maintain the security of the prison. Rather, the extraction was prompted by the desire to punish or retaliate against Martinez for

spitting on an officer and striking him with a food tray. Moreover, even assuming that Martinez strenuously resisted during the

initial part of the extraction, this furnishes no justification for the continued use of force after Martinez was subdued and no

longer resisting. Such use of completely gratuitous force evidences a malicious intent to inflict injury rather than a good faith

effort to restore order.

Kenneth Ward testified that one morning he refused lunch, which led to a heated verbal exchange with a female correctional

officer (Officer Reynoso). Ward, who used profanity during the exchange, continued to be verbally abusive to Reynoso at other

points during the day. The next morning, Ward was awakened by Officer Kelly who had returned with Reynoso. Kelly told

Ward he was being moved. Ward did not at first understand what Kelley had said, so he stood up. He saw Kelley standing

with a "smile on his face, and [saying] ‘you like disrespecting my old lady, huh?’" Ward swore at both officers. Kelley

responded that he would move Ward to a cell "in [Kelly’s] block" with "somebody your [own] size." Ward Tr. 2-219.

When Ward protested, Kelly returned with Sergeant Rowland and three other officers. Rowland threatened Ward with a cell

extraction and ordered him to "cuff up." Ward Tr. 2-220. Ward eventually turned his back to the cell door and put his hands

through the small food slot (approximately four to five inches high and 12 inches long) to be cuffed up. Ward’s trial testimony

and the officers’ deposition testimony about what happened next dramatically conflict.

According to Ward, one of the officers grabbed his arm and twisted his wrist upward, causing Ward enormous pain. When he

couldn’t take the pain any longer, he jerked his hands back inside the cell and accused them of trying to break his wrist, to

which an officer again responded with a threat of a cell extraction. Ward then again placed his hands through the food port, at

which point Kelly immediately jerked his left arm through the small slot all the way up to his tricep while Rowland grabbed the

other arm. Ward then pulled his right hand back into the cell and bent down to try and ease the pain. At this

point, Kelly repeatedly threw his body weight against Ward’s left arm. It is undisputed that as a result, Ward’s upper left arm

snapped and broke. Ward immediately became lightheaded and he felt a lot of pain. He recalls that he felt as if he were in

shock and was unable to move. As a result of this injury, Ward has suffered recurring problems with nerves in arms, including

numbness and spasms.

Officers Rowland and Kenny did not testify at trial, but the Court has been provided with their deposition transcripts. Officer

Rowland does not dispute that he heard a loud snap, after which Ward stopped struggling immediately, although Officer

Kenny, who actually broke Ward’s arm, denies hearing any snap. Both officers do, however, state that the amount of force

used was necessary and appropriate because Ward was resisting being cuffed up, and was attempting to pull an officers’ arm

into the cell. Officer Kenny testified that when he tried to cuff Ward up the first time, Ward pulled on his thumb, which resulted

in a sprain to his thumb and his wrist and some abrasions. Officer Rowland stated that it was better to gain control of the inmate

in the manner they did than to have to send in a cell extraction team.

Even assuming that Ward was resisting in some fashion, we are convinced, by the weight of the evidence, that the force used

was employed, at least in substantial part, for the purpose of inflicting pain and not for good faith security-related reasons.

Several factors inform this finding. First, it is uncontradicted that the sheer amount of force required to break Ward’s arm was

"enormous," in the words of plaintiff’s medical expert Dr. Armond Start. The Court itself observed that Ward has a

well-developed physique. The sheer amount of force that would be needed to break Ward’s arm suggests that excessive force

was used.

The context also suggests that such force was probably unnecessary. The officers were not facing the threat of any immediate,

serious injury, given that Ward was confined inside his cell, with his back to the cell door and his hands through a narrow food

port. Even if Ward offered some struggle, there is no indication that the officers made any effort to end the incident by less

violent means. In short, there is no convincing basis for concluding that the degree of force used was necessary to protect either

the officers involved or any other person.

There are certainly instances where, in the heat of the moment, officers may use more force than intended. Such a case would

suggest that the officers did not act with punishment in mind. Here, however, the manner in which Kenney and Rowland

executed the cuff-up procedure—severely twisting Ward’s arm and using enormous pressure—and their openly hostile

attitude demonstrate an intent to do Ward some harm. Thus, although they may not have known that the precise level of force

used would be sufficient to break Ward’s arm, they clearly used unnecessary force with a knowing willingness that harm occur.

It is also significant that the circumstances leading up to the incident provided Kelly with a motive for retaliating against Ward.

All too often, the evidence showed that inmates suffered serious injuries after providing an officer with some provocation, such

as spitting, name calling, or refusal to obey a minor order.

In this incident, an officer struck inmate Cooper twice with a closed fist in the head at a time when he was offering no

resistance. Cooper was being escorted, in handcuffs and leg irons, by several officers from the Facility D Program hallway.

When Cooper began resisting and kicking, Officers Plumlee and Bettencourt leaned against Cooper’s legs and forced him

against the wall. At this point, two other officers both observed that Cooper was under control and unable to kick, but that

Officer Plumlee nonetheless proceeded to punch Cooper twice in the face with a closed fist. An internal investigation concluded

that Plumlee had hit Cooper twice on the left side of his face with a closed fist, which is also consistent with a subsequent

medical report, which indicated contusions to the left chin, left cheek, and mid forehead, a black eye and a small cut above the

eye. Trial Exh. P-3087 at 77542. Although Officer Plumlee defended his punches as being simply "reflexive," the Court finds

that the record, overall, does not support his position, given the eyewitness reports of the other officers and the fact that there

were two punches thrown. We further find that punching Cooper at a time when he was restrained and under control

constituted a gratuitous and unnecessary use of force that was imposed not for any security related purpose but for the purpose

of inflicting pain.

Vaughn Dortch, a mentally ill inmate, suffered second-and third-degree burns over one-third of his body when he was given a

bath in scalding water in the prison infirmary. The week before the incident Dortch bit an officer. Dortch had also created a

nuisance by smearing himself and his cell with his own fecal matter. Although there was a shower near Dortch’s cell, which

would have provided a more efficient method of cleaning Dortch than a bath (even assuming Dortch was uncooperative), the

officers instead forcibly escorted Dortch to a bathtub in the SHU infirmary, located some distance away in another complex.

n26

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n26 Indeed, there is no indication that Dortch requested a bath over a shower. Rather, because of Dortch’s uncooperativeness,

custody staff was unable to successfully dress him, and he arrived at the SHU infirmary essentially nude, except for his restraints

and part of a blue isolation gown that was wrapped around his upper torso.

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According to Barbara Kuroda, the nurse on duty at the infirmary, a Medical Technical Assistant arrived shortly before Dortch,

and was asked if he "want[ed] part of this bath," to which he responded, yes, he would take some of the "brush end," referring

to a hard bristle brush which is wrapped in a towel and used to clean an inmate. Tr. 1-144. Five or six correctional officers then

arrived with Dortch. Although a nurse would normally run the water for a therapeutic bath, Dortch’s bath was managed solely

by correctional staff.

Kuroda later observed, from her nurse’s station, that Dortch was in the bathtub with his hands cuffed behind his back, with an

officer pushing down on his shoulder and holding his arms in place. Subsequently, another officer came into the nurse’s station

and made a call. Kuroda’s unrebutted testimony is that she overheard the officer say about Dortch, who is African-American,

that it

"looks like we’re going to have a white boy before this is through, that his skin is so dirty and so rotten, it’s all fallen off." Tr.

1-154. Concerned by this remark, Kuroda walked over toward the tub, and saw Dortch standing with his back to her. She

testified that, from just below the buttocks down, his skin had peeled off and was hanging in large clumps around his legs, which

had turned white with some redness. Even then, in a shocking show of indifference, the officers made no effort to seek any

medical assistance or advice. Instead, it appeared to Kuroda that the officers were simply dressing Dortch to return him to his

cell. When Kuroda told them they could not return him in that condition, Officer Williams responded, in a manner described by

Kuroda as disparaging and challenging, that Dortch had been living in his own feces and urine for three months, and if he was

going to get infected, he would have been already. Williams added, however, that if Kuroda wanted to admit him, she could do

the paperwork. Dortch then either fell, or began falling, to the floor from weakness, at which point Kuroda had Dortch taken to

the emergency room. Although Dortch was not evidencing any pain at this point, Kuroda testified that this did not surprise her.

Because severe burns destroy the surrounding nerve endings, the victim does not experience any pain until the nerves began to

mend. Dortch was ultimately transported to a hospital burn center for treatment.

Based on the record before us, we can not say that any of the staff involved in the incident specifically intended the severity of

the burns inflicted upon Dortch. It is unclear whether the officers knew the actual temperature of the water or the full extent of

the burns that were being inflicted. n27 Nor did Dortch yell out in pain to alert the officers. n28 On the other hand, officers

were observed holding Dortch down in the tub, and the burns he was experiencing must have been visible.

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n27 Shortly after the incident, a nurse returned to the tub. The water had been drained but she turned it on to test the

temperature at the hottest setting, which was 140 degrees. A device has since been installed that prevents the water from

reaching such a high temperature.

n28 According to the evidence in the record, Dortch maintained his silence because he knew that some retaliation would be

coming for his having bitten an officer the week before, and he was determined to "take it like a man" and not let them enjoy it.

However, there is also some evidence that Dortch passed out in the tub at some point, which would have alerted the officers.

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Although we assume, for purposes of this case, that those involved did not intend to inflict third-degree burns, it is nonetheless

clear, from all of the surrounding circumstances, that Dortch was given the bath primarily as a punitive measure and for the

purpose of inflicting some degree of pain, in retaliation for, and perhaps out of frustration with, his prior offensive conduct.

In this incident, John Brown was taken from his cell in full restraints when a staff member observed, and later reported to

internal

investigators, that Brown was kicked in the face by another officer in the presence of a Lieutenant, Sergeant, and acting

Program Administrator. There is no evidence that he was struggling or resisting at the time. n29 In an interview with

investigators, Brown also stated that he had been kicked in the head three or four times while being carried in restraints. Trial

Exh. P-3085 at 7766-1-02. The medical report, which is consistent with being kicked in the face, notes an abrasion on the

right side of his face and a ½ inch cut on his chin. Id. at 77638. The fact that Brown was kicked in the face for no apparent

reason, while he was fully restrained, leads us to conclude that this force was applied maliciously for the purpose of causing

harm rather than to restore or maintain security.

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n29 The Program Administrator denied to investigators that Brown had been kicked, although she admitted that Brown had

yelled "quit kicking me." Trial Exh. P-3085 at 77601.

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(2) Use of Fetal Restraints

The fetal restraint, also known as "restraint control status" or "hog-tying," is a particular type of in-cell restraint. Utilized

numerous times until late 1991 or mid 1992, the fetal restraint procedure involves handcuffing an inmate’s hands at the front of

his body, placing him in leg irons, and then drawing a chain between the handcuffs and legs until only a few inches separate the

bound wrists and ankles. At least one officer, however, handcuffed inmates in the back, so that the inmate’s arms were behind

his back and his ankles were up around his handcuffs. The fetal restraint was applied most commonly in response to an inmate

kicking his cell door, although it was utilized on other occasions as well.

Plaintiffs’ medical expert confirmed inmate testimony that being in this position without the ability to stretch one’s legs or arms

would, over time, likely cause considerable pain, n30 and could pose a serious health risk to inmates with respiratory ailments.

Thus, unlike four- or five-point restraints, which completely prevent any disruptive movement without imposing pain or health

risks, fetal restraints can inflict significant pain and yet not fully secure the inmate.

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n30 One inmate testified that "each time [in fetal restraints], it’s very painful, because you in a cramped-up position and you

unable to . . . relax one way or another because you cramped up, because you—you pulling on your . . . arms, your legs. You

know, you pulling one way or another, you pulling." Jones Tr. 3-521-2.

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Notably, no expert at trial defended the use of fetal restraints.

Plaintiffs’ expert described such restraints as a painful, repugnant, humiliating punishment, and termed their level of use at

Pelican Bay "unprecedented" in modern corrections. n31 Martin Tr. 18-1351 Defendants’ expert Daniel McCarthy testified

that he had never previously used or seen anyone use a fetal restraint in his forty years in the California Department of

Corrections, and did not believe that it would be an acceptable technique. Defendants’ other expert, Larry DuBois, also stated

that he had never used a fetal restraint and that he had not been asked to express an opinion regarding its use.

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n31 Plaintiffs’ expert Vince Nathan similarly described the use of these forms of restraint as "unnecessary, ineffective, excessive,

and altogether lacking in any legitimate penological value." Nathan Decl. at 91.

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The testimony of Mark Jones, which was not refuted at trial, provides but one example of an inmate’s experience with fetal

restraints at Pelican Bay. On one occasion, Jones repeatedly kicked his cell door to get the attention of the control booth

officer, in an effort to get him to close the door to the exercise pod, which was letting in cold air. In response, he was put in

fetal restraints for five hours. Another time, Jones attempted to call up to the control booth officer to find out why the television

in his cell was not working, but was ignored. When he tried again later that day, and was still ignored, he started kicking the cell

door to get attention. About 10 or 15 minutes later, a sergeant and a few more officers went to his cell. Upon admitting that he

had been kicking the door, he was put in his bunk in fetal restraint chains for approximately nine hours, from 1:00 p.m. to about

10:00 p.m. He was in pain after a while but eventually fell asleep. When he awoke, parts of his body were asleep. He

attempted to spin around, but, unable to control his movements, fell off his bunk, hitting his back, head and shoulder on the

floor. n32 Officers who later arrived to deliver Jones his regularly-scheduled medicine refused to remove the restraints, instead

taunting him that he should "get up and get [his medicine]." In response, Jones got "kind of verbal." Jones Tr. 3-521.

Approximately one hour later, the fetal restraints were removed by another officer.

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n32 We note that the governing policy for the SHU instructs officers to leave an inmate in fetal restraints on his mattress on the

floor rather than on his bunk "to ensure the inmate will not fall from the bunk and risk injury." Trial Exh. D-49 at 18308.

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On another occasion, following a verbal altercation between Jones and an officer over a book that had been confiscated, two

officers handcuffed Jones and escorted him down the hallway, pulling him sideways at times. When Jones complained, one of

the officers slammed Jones’ head into the wall, chipping his teeth. Jones was then taken to a holding cell where he was put in

fetal

restraints for four hours. In none of these instances is there any evidence that the fetal restraints, particularly for periods of four

to nine hours, were necessary for security reasons. Rather, their usage evinces an intent to punish and inflict pain.

Inmates restrained in fetal restraints were at times also chained to toilets or other fixed objects, particularly during program

administrator Rippetoe’s tenure in the SHU. Although there is directly conflicting testimony regarding the extent of this practice,

the Court finds that it was more than merely an occasional occurrence. Sergeant Cox testified credibly that during the limited

period that he was working overtime in the SHU, he personally observed, over the course of different shifts, ten to twelve

inmates who were in fetal restraints and chained to stationary objects. Some staff, including Sergeant Cox, objected to this

practice, and one SHU program administrator testified that he "never has and never would" authorize such a practice. Lopez

Tr. 14-2196. Sergeant Cox testified, however, that his objections were dismissed out of hand. When he asked Rippetoe why

they were engaging in this practice, he responded "because we can do it." Tr. 15-2345. When he raised the issue with

Associate Warden Garcia, he was told "this is Pelican Bay State Prison, and if you don’t like it, get out . . . We’re going to do it

our way." Tr. 15-2347.

Prison records indicate that fetal restraints were used in dozens of instances between January 1990 and August 1992. n33

Such restraints were imposed from anywhere between a few minutes to 24 hours, with most instances falling in the three to six

hour range. Current written SHU policies permit use of fetal restraints for up to 12 hours without obtaining consent of the

Warden. Whether an inmate would be freed from the restraints in order to eat or use the toilet was left to the discretion of

individual staff.

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n33 Under governing SHU policy, staff were directed to fill out a form in all cases where they used a restraint in a manner that

matches the description of the fetal restraint described above. Trial Exh. D-49 at 18182, subsection (K). The record shows

that between January 1990 and August 1992, over 170 "Attachment A" forms were filled out. In many of these forms, the staff

did not

specifically use the phrase "fetal restraints." However, this does not mean that fetal restraints were not in fact used. First, it does

not appear that the policy required staff to fill out "Attachment A" unless they were using a restraint that was equivalent to a fetal

restraint. Second, neither the policy nor Attachment A ever refer specifically to the term "fetal restraint" or require that such

term be used. Even assuming, however, that some of the Attachment A forms did not involve use of fetal restraints, the Court

finds that usage of the restraint was substantial between January 1990 and August 1992.

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At trial, defendants did not attempt to justify the fetal restraints as an appropriate response to the kicking of cell doors per se,

although current SHU policy permits the use of fetal restraints for cell door kicking. Trial Exh. D-49 at 18307. n34 Indeed,

although cell door kicking is a common occurrence, no lay or expert witness was able to identify any other prison that resorted

to fetal restraints in response.

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n34 It also permits use of fetal restraints for destruction of property or any conduct that "may incite other inmates." Trial Exh.

D-49 at 18307.

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Rather, defendants testified that the use of fetal restraints for kicking doors was necessary because a weakness in the metal in

the door retainer at the bottom of each cell made cell doors vulnerable to metal fatigue in the event of continued kicking.

Various prison officials testified that they became aware of this problem when the prison opened (in December 1989), and that

the practice of using fetal restraints stopped once the doors were fixed in December 1991.

Integrity of cell doors is, of course, a critical security concern. However, we are not persuaded by the record that repairs to

address the metal fatigue problem were not undertaken until late 1991. Although defendant Peetz testified that repair work on

the cell doors occurred between approximately June and December 1991, it appears that these repairs primarily concerned

another door problem involving the pneumatic locking mechanism, which was not discovered until sometime in 1991.

Prison officials were extremely vague as to what was done and when to respond specifically to the metal fatigue problem. One

SHU program administrator testified that work was done to reinforce the holding cells in the SHU (where inmates kicking their

cells could be placed), and that this work probably took a "week or so." Lopez Tr. 14-2199. He did not identify any time

frame for this work. It is highly unlikely, however, that it was not done until 1991. As stated above, prison officials discovered

the metal fatigue problem as early as December 1989 or January 1990. It is not credible that they would have waited until

December 1991, two years later, to reinforce the holding cells, if in fact, metal fatigue presented a serious security concern. n35

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n35 We also note that the late 1991 date, which corresponds to a tapering off of the use of the fetal restraint, also corresponds

to the time period when plaintiffs filed their amended complaint challenging the fetal restraint practice. See Plaintiffs’ Amended

Complaint, filed November 21, 1991 (referring to fetal restraint as "hog tying" practice).

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More fundamentally, however, we are not persuaded that the use of fetal restraints was necessary or primarily prompted by

legitimate penological purposes. The "D" wing of the SHU and the "C" wing of the SHU suffered from the same metal defect,

and housed roughly the same number of inmates (physically the two wings are mirror images of each other). Yet, during the

period that inmates in C-SHU were fetally restrained on dozens of occasions, fetal restraints were used in D-SHU less than 5

times. Given that defendants offered no basis for concluding that the inmates in D-SHU would be less likely to kick their cell

doors than in C-SHU, this discrepancy in numbers is a compelling

indication that the utilization of fetal restraints was not necessary to maintain security.

Moreover, fetal restraints did not even effectively prevent continued kicking of cell doors. As Captain Scribner agreed, it was

"clear that if an inmate wanted to kick the door while he had his [fetal restraint] chains on . . . he could do so," and in fact it

appeared to him that an inmate might end up kicking the door even harder after he was restrained. Scribner also testified that

such an inmate could still get "enough of a kick" that he could compromise the integrity of the door. Scribner Tr. 7-1241,

6-1120. Indeed, it is clear that the continued ability to kick only escalated the need for more restraints, such that there was a

practice, albeit relatively short-lived, of locking an already fetally-restrained inmate to his toilet—a practice which Lieutenant

Carl agreed was in violation of governing California regulations. Carl Depo. at 291-92.

The use of fetal restraints in response to the kicking of doors becomes particularly suspect when it is considered that a far more

effective, yet less painful, alternative was available. As plaintiffs’ expert Steve Martin emphasized without contradiction, from a

custody standpoint, the most effective means of preventing an inmate from kicking a cell door is to place him in full restraints:

"you put a man in a four-point, five-point restraint, he’s not going to kick a door." Tr. 8-1350. And, as noted above, full

restraints accomplish this result without inflicting discomfort and pain. Nonetheless, there is no indication in the record that

defendants ever considered full restraints as an alternative at any point between December 1989 and December 1991.

In short, it is undisputed that the fetal restraint, which requires an obvious contortion of normal body position, can cause

considerable pain over time. It is also undisputed that this restraint failed to effectively prevent the kicking of doors, and that

other more effective and less painful alternatives were available and known to defendants. Nonetheless, in one section of the

SHU, fetal restraints were often the response of first resort to cell door kicking for a period of at least two years.

We do not, and need not, find that every application of the fetal restraint at Pelican Bay was punitive in nature. Nor do we

address the facial validity of the prison’s fetal restraint rule. However, the record and particular circumstances presented here

convince us that there was a practice of using fetal restraints at Pelican Bay for solely punitive rather than good faith security

purposes.

(3) Cagings

Another use of force at Pelican Bay that is punitive in character is the confinement of naked or partially dressed inmates in

outdoor holding cages during inclement weather. These cages, approximately the size of a telephone booth, and constructed of

weave mesh metal, are designed to provide a temporary holding place for an inmate, and are positioned at various locations

around the prison. Inmates confined in the cages are exposed to the elements as well as public view.

Violet Baker, a former educational program supervisor at Pelican Bay, gave a frank and credible account of one such incident.

She testified that one day in late January or early February, she was walking from her office toward another facility. It was very

cold (she was wearing gloves and a heavy jacket), and it was pouring rain. She observed two African-American inmates being

held naked in two cages. When she passed by again one hour later, one inmate was still there, and she observed that he was

covered with goose bumps. He said he was freezing, and asked her to request a pair of shorts and a T-shirt. She then saw an

officer coming in her direction. When she looked at him, he looked back and just shrugged his shoulders, saying it was

"Lieutenant’s order." When she determined that it was Lieutenant Slayton on duty, she let the matter drop. Although the incident

upset her, Slayton had a reputation for causing problems if crossed, and she did not want her educational program or teachers

to suffer by her interference in this matter.

In another such incident, inmate Johnny Barnes testified credibly that he was caged naked in one of the outdoor holding cages

on a "misty" day. Although he was bleeding from his nose and mouth after a physical altercation with several correctional

officers, Barnes was held in the outdoor cage for an hour and a half without receiving medical attention. In public view of

whoever passed by, Barnes recalled that he felt like he was "just an animal or something." Tr. 10-1529.

Lieutenant Slayton at first denied that there was "ever any occasion" when an inmate was held in a holding cell completely nude.

Tr. 20-3363. However, he later testified that there were instances where inmates were briefly held naked in cages, but insisted

that they were dressed as soon as possible. Providing inmates with clothes was a priority, he testified, because of the inclement

weather, and because "it’s just a common dignity." Tr. 20-3364.

Clearly, there are times when prison officials will need to take an inmate’s clothes, as potential evidence after an incident, or for

other justifiable purposes. And we agree with Lieutenant Slayton that providing substitute clothes is not only a matter of health

and safety in inclement weather, but a matter of common dignity, given the public placement of the cages and the routine

presence of female staff. However, his testimony that the inmates were never caged naked for more than brief periods lacks

credibility in light of his inconsistent testimony on this point, as well as the credible testimony of Violet Baker and Johnny

Barnes.

Moreover, some of these cages are visible from the main administrative offices for the yard (including the Lieutenant’s office),

and are in full view of anyone who crosses the yard. Thus, it is apparent that such naked cagings would be known to, and thus

implicitly, if not explicitly, condoned by supervisory staff. Indeed, the incident to which Violet Baker testified was clearly

ordered by mid-level supervisory staff, as opposed to a renegade officer.

Such incidents may be relatively infrequent. Baker testified that she had never seen anyone naked in the cages except for that

one day. n36 However, as Martin observed, this is the type of incident that is not typically memorialized in reports, making it

difficult to determine how often it occurs. Notably, neither of the above incidents were documented, which leads the Court to

conclude that there likely have been other undocumented instances as well.

The reaction of the correctional officer to Baker’s inquiry suggests that this was not considered an extraordinary or unique

event.

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n36 At the time of trial, Baker had been on medical leave as of March of 1993; it is unclear how long she had been employed

at Pelican Bay prior to that time.

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Leaving inmates in outdoor cages for any significant period—as if animals in a zoo—offends even the most elementary notions

of common decency and dignity. It also fails to serve any legitimate penological purpose in any kind of weather, much less cold

and rainy weather. The fact that it occurred at all exhibits a callous and malicious intent to inflict gratuitous humiliation and

punishment.

(4) Cell Extractions

(i) Overview

The forcible removal of an inmate from his cell—also known as a "cell extraction"—is indisputably an essential tool in

maintaining security in any prison. There will clearly be occasions when security concerns mandate that an inmate be removed

from his cell against his will, such as where the inmate is suspected of harboring contraband, or has had an altercation with a

cellmate. Such a forcible removal can be accomplished by various means. Staff who are completely unarmed, or armed only

with a mattress or shield, can use sheer weight and numbers to overwhelm the inmate. n37 At the other extreme, staff can be

highly armed, even during routine extractions, as is the case at Pelican Bay.

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n37 For example, in Georgia State Prison, only hands-on force and restraints are used in cell extractions; in Texas, staff are

limited to handcuffs, belly chains, leg irons and straight jackets, unless the inmate is armed, in which case the baton, shield

and/or mace may also be used. Texas staff may only use tasers if separate requirements for use of lethal force are also met.

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Indeed, the cell extraction process at Pelican Bay is an undeniably violent maneuver which can involve several weapons,

including 38 millimeter gas guns, tasers, short metal batons, and mace. It also results in frequent injuries and infliction of pain. As

Chief Deputy Warden Peetz summed it up, "cell extractions are a very, very violent maneuver . . . Inmates get hurt and staff get

hurt, and it’s just the nature of the thing." Tr. 20-3316. As such, witnesses for both sides agree that cell extractions should be

performed only when necessary. Indeed, under normal circumstances, an inmate should not be extracted absent an imminent

risk to the safety and security of the institution. Scribner Tr. 7-1211.

(ii) Unnecessary use of cell extractions

Notwithstanding the above, for over two years (until February 1992), the number of extractions at Pelican Bay prison was

clearly greater than necessary to meet safety or security needs. Prison records show that for the period through February 1992,

205 inmates were cell extracted in 26 months, at a rate of approximately 94.5 per year. Fenton viewed such numbers as

"seriously excessive," Fenton Tr. 5-792, while defendants’ experts also acknowledged that the number of extractions the first

two years was "relatively high," DuBois Decl. at 4-5, or "a little on the high side." McCarthy Tr. 15-2472.

A comparison with practices at the prison since February 1992 is particularly revealing. From that date through May 1993, a

period of 16 months, only 26 extractions were performed, at a rate of approximately 1.6 per month or 19.5 per year. This

constitutes a drop of almost 500 percent from the previous 16 months (October of 1990 through January of 1992), when 120

inmates were cell extracted at a rate of 7.5 per month or 90 per year.

Defendants’ experts testified that the high rate of cell extractions prior to February 1992 simply reflected the normal starting

pains of a new prison, as well as the need to remove inmates who were kicking their doors, given the security concerns

regarding cell doors. If the number of cell extractions had declined gradually between January 1990 and May 1993, this first

explanation would carry significant weight; the record, however, demonstrates that the number of cell extractions was fairly

consistent over 1990 and 1991 and then dropped off significantly in February 1992. Nor are we persuaded that the door

problems explain the high frequency of cell extractions. Only a small number of the total extractions were reportedly

door-related, and defendants testified that door kicking was often addressed through the use of fetal restraints.

Rather, the substantial reduction in extractions after February 1992 more likely reflected a change in policy. The Court further

finds no indication that the safety or security of the institution was compromised by this change. As such, we agree with

plaintiffs’ experts that the previous volume of extractions was unnecessarily high.

This conclusion is confirmed by the fact that prior to February 1992, cell extractions—using the full arsenal of force described

below—were frequently employed, not to address imminent threats to security, but to respond to relatively minor infractions.

For example, inmates were subjected to full scale cell extractions, often resulting in significant injuries, for not promptly giving

up a meal tray, a jumpsuit, a pair of tennis shoes, or a skull cap. Martin Decl. at 40-57. n38 Many of these cell extractions

were performed without any indication that the situation presented an imminent security risk. Clearly, defendants are entitled to

enforce prison rules through normal disciplinary channels; inmates must be made to know that prison rules can not be ignored

without consequence. However, in this case, it is clear that minor infractions were used as a pretextual justification for inflicting

physical, and often brutal, punishment. n39

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n38 All references to the "Martin Declaration" in this section refer to the Amended and Corrected Declaration of Steve J.

Martin Re: Issues Regarding Staff Use of Force."

n39 The routine use of full-scale cell extractions for failure to return meal trays, which drew particular criticism from plaintiffs’

experts, stopped some time after February 1992. Defendants testified that the policy was changed after they realized that

inmates were not making weapons out of meal trays. However, out of the 70 inmates who were extracted for meal trays in

1990 and 1991, not one of the prison’s Incident Reports indicated that the inmate had broken or tried to break the tray in order

to make a weapon. It is also notable that the Incident Reports prepared after cell extractions for meal trays rarely, if ever, noted

the location of the meal tray or whether it was ultimately retrieved. Indeed, the record indicates that full scale cell extractions

were conducted even where the tray was accessible at the front of the cell and the inmate was at the back. Accordingly, we are

not persuaded that the meal tray extractions were primarily motivated by a genuine concern that inmates were converting meal

trays into weapons. Similarly, the program administrator instrumental in securing the policy change did not believe that security

concerns justified routine cell extractions to retrieve meal trays. See Helsel Tr. 21-3528.

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Under the current policy, an inmate is allowed to keep his tray unless it appears that he is attempting to turn it into a weapon. If

the tray is still not returned by the time of the night watch, staff will conduct a cell extraction to retrieve the tray. Notably, this

new policy has resulted in far fewer extractions. As one program administrator explained, trays were generally withheld

because the inmate perceived some sort of problem, and by having staff talk to them, the situation can usually be resolved short

of conducting an extraction.

(iii) High degree of force

The mere fact that staff employs a procedure more often than necessary, may not, in and of itself, warrant serious concern. In

this case, however, the unnecessarily high number of cell extractions in 1990 and 1991 takes on a much more troubling and

ominous character given that these extractions routinely involved a strikingly high degree of force, and resulted in numerous

injuries that were too often left unexplained by official incident reports.

Based on the evidence and written policies, cell extractions would generally proceed as follows: First, a supervising officer must

approve the cell extraction. n40 Then a team of four correctional officers is assembled, wearing special protective gear,

including helmets with visors. Each team member carries one of the following: a large plexiglas shield, a small metal baton, leg

irons, or hand cuffs. The two officers carrying the shield and baton are generally referred to as the "shield man" and the "baton

man." A Medical Technical Assistant ("MTA") must also be present in case of injuries.

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n40 According to Pelican Bay written policy, a cell extraction should only take place after "attempts to talk to the inmate have

failed." The Court heard considerable testimony regarding how this policy was carried out, and to what extent staff attempted

to talk the inmate into compliance or allowed a "cool down" period so that an extraction could be avoided. It is clear that

practices varied, from basically "not talking" to inmates to "some talking." Plainly, however, many cell extractions were

performed without fully exploring whether the situation could be resolved through talking or a cool down period. One staff

member, David Rickman, testified that he was categorized as a "weak lieutenant" because he was a "communicating" lieutenant.

It was his

understanding from "some of the cell extraction teams if the lieutenant has to talk to the inmates it’s time to extract regardless of

the situation." Rickman Depo. at 55-56.

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The supervising sergeant and/or the lieutenant then typically fire some combination of the following weapons, any one of which

can potentially cause serious injury: a 38 millimeter gas gun (which ejects high velocity rounds of rubber blocks), mace (a

chemical agent that causes a burning sensation and tearing of the eyes) and a taser (which temporarily incapacitates an inmate

by way of electrical shock). The four member team then enters the cell.

According to SHU regulations, the shield man enters the cell and rushes the inmate, striking him in the chest area with the shield

and forcing him against a wall. If the inmate resists, the second team member, armed with the baton, should provide protective

coverage by "rapidly and repetitiously" striking the inmate’s shoulder and clavicle with the baton. "As the inmate is pinned

against the wall by the shield officer, and busy blocking the blows of the baton officer," the third and fourth team members enter

the cell, help subdue the inmate, and apply handcuffs and leg restraints. Trial Exh. D-49 at 1892-94. The inmate is then

removed.

Not every weapon described above is used in every cell extraction; however, most cell extractions involved multiple weapons,

and each weapon was often used more than once. n41 It is an undeniably massive combination of weapons and manpower,

especially considering that the target is almost always an unarmed inmate n42 already behind cell doors.

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n41 For example, in the extraction of inmate Taylor on December 22, 1990, staff used the taser three times, discharged a gas

gun three times, and used mace once (extraction for refusal to surrender cup, spoon, and excess clothing). In the extraction of

inmate White on January 16, 1991, staff used the taser twice, the gas gun twice, and mace once. In the extraction of inmate

Fierro on February 3, 1991, staff used the taser twice, the gas gun twice, and mace once. Defendants’ expert DuBois stated

that he had never been involved in cell extraction that utilized this level of force where the inmate, like Fierro, was unarmed

except for a food tray. Tr. 29-4812-13. DuBois also testified that while he did not consider it an objectional practice to use

tasers in cell extractions, he had never worked in a prison where the taser was used on a regular basis. Tr. 29-4709-10.

n42 In the 231 cell extractions that occurred between 1991 and May 31, 1993, six inmates had a weapon. One was a razor,

while the remainder were primarily soap wrapped in a sock or shirt, or some similar variation. Indeed, in more than a few

cases, the inmate was simply sitting in the back of the cell, and not acting in an aggressive manner.

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The taser, for example, which was routinely used until late 1992, inflicts significant pain, n43 and is described by one lieutenant

as resembling being hit on the back with a " four-by-four" by Arnold Schwarzenegger. Scribner Depo. at 44-46. When

activated, the taser ejects two thin wires with darts that pierce the inmates’ skin and transmit an electrical shock of 40,000 to

50,000 volts, temporarily paralyzing the body’s large muscles. Between July 1990 and July 1992, tasers were used in

approximately 70 percent of all extractions. n44 And although the CDC’s main training academy suggests that maintaining the

voltage 2 or 3 seconds should be sufficient, numerous inmates received discharges of 5 to 7 seconds, double the suggested

length. Notably, there is no evidence that discontinuation of the taser in September 1992 adversely affected either the security

of the prison or the safety and efficiency with which cell extractions were performed. n45

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n43 See "Electric Shock Devices and their Effects on the Human Body," Medical Science Law, Vol. 30, No. 4, at 299 (1990);

Hickey v. Reeder, 12 F.3d 754, 757 (8^th Cir. 1993)(taser inflicts a painful and frightening blow which is "exactly the sort of

torment without marks with which the Supreme Court was concerned in [Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995,

117 L. Ed. 2d 156 (1992)], and which, if inflicted without legitimate reasons, supports the Eighth Amendment’s objective

component"). Questions about significant health risks have also led some prisons to preclude its use. Martin Decl at 10; Start

Decl. at 122-26. Notably, defendants’ expert McCarthy testified that he is "not a big supporter of tasers." Tr. 15-2470.

n44 In the extractions in which the taser was used during this period, the gas gun or mace also was used approximately 79% of

the time (82 out of 104 extractions). These numbers strongly support the conclusion that if the purpose of the taser was to

immobilize the inmate, it manifestly was not accomplishing that purpose. Yet there was testimony from a senior staff member at

the prison that in his experience the taser was a "very effective" weapon that disabled almost every inmate on which it was used.

Scribner Tr. 7-1169-70. If that is the case, then the repeated use of multiple weapons, in addition to the taser, supports the

Court’s conclusion that unnecessary and excessive force was applied in cell extractions.

n45 Defendants suggested that the change in policy was prompted by a September 1991 departmental bulletin which required

staff to contact the medical department before using the taser to ensure that inmate was not on psychotropic medication, was

not being treated for cardiac arrhythmia or did not have a pacemaker. However, the weight of the testimony shows that it had

always been the policy that medical clearance should be obtained prior to using the taser. Thus, the Court is not persuaded that

this bulletin fully explains the change in practice. Program Administrator Lopez, for example, offered that the change

was a response to officers playing with the tasers and wearing the batteries down. Tr. 14-2247-48.

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The 38 millimeter gas gun can also cause serious pain and injury. Generally fired into the cell through the narrow food port, it

ejects high speed rounds of rubber blocks (approximately 1 and ½ inches across) which ricochet in an unpredictable pattern

around the cell. Given the small space of the cell, the ricochet has sufficient velocity to inflict significant pain or injury if it hits an

inmate. As Captain Scribner testified, if such a ricochet hit an inmate’s head, it could possibly cause "great bodily injury." Tr.

6-1113. Captain Jenkins similarly testified that it was possible that a ricochet from a gas gun round could strike an inmate in the

face with sufficient force during a cell extraction to knock out his teeth. Jenkins Tr. 3-408. And should an inmate be hit directly

at close range, the result could be serious injury and possibly death. n46 Former Warden Fenton emphasized the serious nature

of using a gas gun in cell extractions: "The pellet [gas] gun . . . If it hits in the wrong place, it can result in serious injury or death.

. . . Why would you fire that into a cell where the maximum distance doesn’t exceed eight feet if, in your own opinion, it’s

capable of killing somebody?" Fenton Tr. 5-780 (referring to policy discussed in note 46, supra).

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n46 The Pelican Bay cell extraction policy for the general population prohibits direct shots in acknowledgement of this risk:

"Great care and conservative judgement [sic] must be used when utilizing these [gas gun] rounds at close distances. Staff must

not aim the round directly at the main torso or head, of inmates, as the impact at short distance can severely injure or kill." Trial

Exh. D-43 at 4132.

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Nonetheless, gas guns were routinely discharged during cell extractions. Although no one has yet been killed, inmates have

suffered injuries from shots that have hit the inmate directly or by ricochet. Notably, the evidence does not show that any

consideration has ever been given to tempering the frequency or the manner in which the gas gun is used at the prison.

Use of the short baton has also resulted in numerous injuries. Although Pelican Bay policy provides that its purpose is to strike

an inmate on the shoulders if he is still struggling or reaching around the shield, there is little evidence that the baton is limited to

this use. Not only did staff testify that it was used to strike inmates on the feet or ankles, but the medical reports reflect that

inmates received baton welts on their backs and other parts of their bodies during cell extractions. n47 The Court has no doubt

that the baton has frequently been used against inmates in ways beyond those authorized by formal cell extraction procedures.

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n47 In one such instance, the medical report stated that inmate Calhoun had sustained eight baton welt marks on his back. Trial

Exh. P-3738 at 3217-18. At trial, the officer involved denied that he ever hit Calhoun on his back with the baton, and offered

another explanation for the marks: his kneeling on Calhoun’s back in order to gain control over Calhoun during an extraction.

The Court did not find this testimony or explanation to be credible.

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Both of plaintiffs’ experts were clearly amazed and disturbed by the level of force that was employed in cell extractions on a

routine basis. n48 Martin unequivocally testified that the amount of force used in Pelican Bay cell extractions, as a routine

practice, has been grossly excessive, utterly unbelievable, and without parallel in present-day American corrections. Decl. at 7;

Tr. 8-1322. Former Warden Fenton stated that he could only come up with two explanations for the methods of carrying out

cell extractions at Pelican Bay: "either they absolutely don’t know what they’re doing, or they’re deliberately inflicting pain." Tr.

5-792. Neither was aware of any other institution which even approached the level of force in cell extractions that was routinely

applied at Pelican Bay. Nor did defendants’ expert Dubois offer a defense of the routine use of multiple weapons which

characterized actual cell extraction practices at Pelican Bay. n49

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n48 Indeed, the routineuse of highly violent cell extractions, for all types of infractions, is difficult to square with the directive in

Cal. Code of Regs., Title 15, @ 3279 that "in the event the inmate . . . refuses to cooperate in a change of location, only the

minimum force required to complete the move will be used."

n49 DuBois testified that a mock demonstration he was given at Pelican Bay by a four person cell extraction team was similar

to cell extractions in other systems at which he had worked, and that he did not find use of the gas gun "as a distraction," or use

of a taser to be objectionable in a cell extraction. Tr. 29-4704-10 (emphasis added).

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Martin also testified that the deployment of the extensive weaponry at Pelican Bay does not, in many cases, effectively advance

the purpose of an extraction, which is to secure control of and move the inmate. Tr. 8-1323. Fenton expressed the same point

in his testimony, stating that the routine use of all of these weapons "strikes me as a ritual of inflicting punishment. Why in the

world would you over and over and over again do all these things?" Tr. 5-779-80.

Most significantly, the high level of force employed in cell extractions has resulted, time and time again, in significant injuries,

many of which were indicative of beatings by staff. Martin’s declaration details many such instances (mostly unrebutted) which

are too numerous to summarize here; we include one as an example:

Luis Fierro Extraction: According to the incident report . . . Mr. Fierro . . . refused to return his dinner tray. He gave as his

reason the fact that he had been denied the opportunity to get a haircut that evening . . . Ten minutes later . . . an extraction

team [arrived]. . . . Mr. Fierro did not have a weapon, and he is listed as 5’8" and 130 pounds. According to the incident

report, Mr. Fierro "verbally challenged staff to enter his cell." Sgt. Upton states that Mr. Fierro then began "banging on the cell

door with his food tray." CO [Correctional Officer] Davis described Mr. Fierro’s conduct as an attempt "to block the food tray

slot with his tray." According to Lt. Arneson, Sgt. Avila then "discharged two multiple baton rounds from the Federal Gas Gun

to dislodge the tray from Fierro’s hands." Sgt. Avila reports that he fired one of these rounds off the cell floor, but he does not

say the same for the other round. This omission is potentially significant inasmuch as Mr. Fierro was hit in the groin by one of

the Sgt. Avila’s shots. If Mr. Fierro was standing close enough to the door to bang on it with the tray, or to attempt to block the

food tray slot, it is difficult to imagine how a shot fired off the floor could ricochet up an hit him in the groin. Based upon Lt.

Arneson’s description, it appears to be as likely that Mr. Fierro was hit directly with a shot to the groin. . . .

After [the two gas gun] rounds were fired, Sgt. Upton states that he dispensed two bursts of mace which struck Mr. Fierro in

the upper chest area, and these bursts "appeared to affect his movements." Sgt. Upton then fired "two taser cartridges striking

Fierro in the upper right leg, lower left leg, right upper chest and left arm," which cartridges Mr. Fierro is supposed to have

removed "during [the] administration of current." The extraction team finally entered the cell and "restrained Fierro after a brief

struggle." Mr. Fierro is described as being "taken to the floor and placed in restraints without hitting any staff." None of the 8

reporting officers describes in any further detail what steps were taken during the extraction itself in placing Mr. Fierro into

restraints.

At the conclusion of this retrieval of Mr. Fierro’s meal tray, therefore, Mr. Fierro had been hit in the groin (possibly directly)

with a gas gun round; struck with two bursts of mace; and been subjected to two jolts from the taser. In addition he suffered

what are described in the report . . . as "minor abrasions and bruises." These "minor" injuries are described [in the medical

report as]: (1) multiple areas of bright red bruising on back, especially upper back, (2) scratches on left neck, left cheek and

right cheek, (3) abrasion and bruising of left shoulder; (4) bruising and swelling about both eyes at edges of eye brow, (5) small

scratch on right calf . . . (6) large abrasion [on] right chin, (7) large areas of bruising around both ankles, (8) bruising on left

upper outer thigh, (9) abrasion on left shin, and (10) abrasion right calf.

Very few of these injuries can be accounted for by the officers’ version of events. Most notable are the injuries to Mr. Fierro’s

face and back, which are the areas that are most commonly a "red flag" that an inmate has been assaulted. None of these

injuries [described above] can be explained by the gas gun, the taser or the mace. Nor can they be explained by the process of

"taking [Mr. Fierro] to the floor." Common sense suggests that no matter how forcefully someone is slammed against the floor,

it is impossible simultaneously to strike the area above both eyes and also to strike the chin. Moreover, Mr. Fierro clearly

struck the floor (or was otherwise struck on the face) with

great force: the bruises above his eyes are described . . . as ‘hematomas,’ which are more serious than (and require more force

to inflict than) bruises. Finally, Mr. Fierro obviously cannot simultaneously have been taken to the floor face-first and back-first,

and therefore the back injuries remain unexplained. In my experience, they conform precisely to the description of injuries of an

inmate who has been beaten, most probably by a baton. Based on these unexplained injuries, I believe that Mr. Fierro was

subjected to an extensive beating to the head and back after the extraction team entered the cell. . . . In conclusion, from

defendants’ own reports it appears almost certain that Mr. Fierro was subjected to blatant and brutal punishment for disobeying

an order—in this case, the order to turn over the dinner tray before discussing his ability to get a hair cut.

Martin Decl. at 19-22.

In another instance, an inmate was extracted after failing to submit to a cell search. Afterwards, he was taken to the medical

clinic for treatment for abrasions. He was in a very agitated state and dared officers to "do this again." Instead of giving him time

to calm down in a holding cell, he was immediately replaced in his own cell, still agitated. He immediately began strenuously

kicking the cell door, which set off an electronic sensor in the control booth. He was then almost immediately extracted again,

within about 25 minutes of the first extraction. n50 The second cell extraction team included the one officer who had received

an injury (a cut) in the first cell extraction. As a result of the second extraction, the inmate was left unconscious for one minute,

and suffered a contusion to the forehead and several abrasions. Trial Exh. P-1199 at 6371; Martin Decl. at 61-62.

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n50 Notably, the log says "Quiet day up to 1345 [hours], when inmate Dunn got extracted in C-SHU. He liked it so much,

they probably did him again by the time this is written." Trial Exh. P-3044 at 27715.

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As the above incident reflects, there was a practice for some period of time of including, as a member of the cell extraction

team, the officer who had been either previously injured by the inmate or involved in whatever incident precipitated the cell

extraction. Lieutenant Carl told investigators that, for a time at Pelican Bay, it was "normal" to include the previously involved

officer and that he had to go to "real lengths" to get that practice changed. Trial Exh. P-3111 (tape interviews). Similarly,

another officer told investigators that it was his understanding that whatever officers were "working the floor" were included on

the cell extraction team, even if they had been a "victim" of the inmate being extracted. Id. It is generally understood, however,

that such a practice should be avoided to allow the situation to defuse and preclude the potential for retaliation. As Lieutenant

Mallory explained: "you may have an incident where the cop in the first cell extraction got bit, spit on, or whatever, and he may

be a little mad. You don’t want to put him back in there and make him . . . do something that he would not normally do."

Mallory Depo. at 83. The fact that Pelican Bay tolerated such a procedure further supports the conclusion that cell extractions

were

utilized as a vehicle for inflicting punishment.

As the Court has previously emphasized, cell extractions are an essential part of effective prison management, given that there

will inevitably be circumstances where security concerns require the forced removal of an inmate from his cell. Nor do we

doubt that each of the cell extraction weapons discussed above may have an appropriate use in certain situations. There may

even be certain situations where it would not be excessive to use all of the above-described weaponry, either in some

combined or sequential form. We need not, and do not, find that any particular weaponry or cell extraction strategy constitutes

a per se use of excessive force.

What the record does reveal, however, is the disturbing pattern—an apparent modus operandi—of routinely using the same

extremely high level of force, no matter the level of threat posed or the particularities of the situation. Not surprisingly, it is a

pattern that has caused the substantial infliction of pain and left behind a string of injuries—injuries that are too often left

unexplained and unjustified in official reports.

Viewed separately, the high level of force deployed as a routine practice, the string of significant injuries, and the unnecessarily

high number of cell extractions, could each raise a legitimate concern. Combined, however, they are potent evidence that cell

extractions at Pelican Bay have too often been considered, not as tools to be used sparingly in response to threats to prison

security, but as opportunities to punish, and inflict pain upon, the inmate population for what were often minor rules violations.

The evasive and cursory nature of incident reports, discussed supra, further reinforces this conclusion.

(5) Lethal force

The California Department of Corrections has for many years integrated firearms into its system of maintaining security, both

inside and outside of housing units. n51 Pelican Bay is no exception. It employs a variety of firearms to maintain control inside

the general population maximum security housing units and exercise yards and inside the SHU. n52 The general population

yards are observed by an armed officer in a central tower overlooking the entire yard, as well as by armed officers in control

booths in each housing unit, who oversee daily activities through windows that look onto the yard. n53 The housing units in both

the maximum security general population units and the SHU are monitored by armed officers in the control booths. In the

former, the armed officers have a direct line of sight into the cells, while in the SHU, armed control booth officers have a direct

line of sight into the common pod area outside of the cells but not into the cells themselves.

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n51 This practice appears at least in part designed to compensate for the fact that California is ranked 47^th in the nation in the

number of correctional officers per inmate. Gomez. Tr. 28-4612-13. Defendant’s expert McCarthy also hypothesized that "I

guess we [in California] were [in] the wild west days there and never got out." Tr. 15-2539-40.

n52 The firearms used at Pelican Bay are: (1) the Ruger Mini-14.223 caliber rifle, (2) the Heckler & Koch Model 94 ("H&K

94") 9 millimeter carbine, using the Glaser Safety Slug, (3) the Smith & Wesson .38 caliber revolver, and (4) the Remington

12-gauge pump shotgun. Firearms were discharged 177 times in 129 incidents between the time the prison opened and

September 9, 1993. Of the 177 shots fired, 23 were intended to be for effect (i.e. were fired with the intent to hit a person),

152 were intended to be warning shots, and 2 were accidental. 109 shots were fired outdoors and 68 indoors. Of the 152

warning shots, 13 caused or were alleged to have caused inmate injuries from ricochets or bullet fragments.

n53 Th