*1 kept apparently firearms, Krouse drug busi- his unrelated purposes in his bedroom shotgun
ness, including rifle, stored collectable and a closet home. When throughout elsewhere most light in the is viewed this evidence prosecution, the successful favorable possessed Krouse conclude jury could office in his home weapons discovered trafficking oper- drug of his in furtherance ation. 924(c) § under conviction
Krouse’s AFFIRMED. Plaintiff-Appellant, WALKER,
Jamel Kingston GOMEZ; W. H. James Rath, Correctional Prunty; R.R. Defendants-Appellees. Sergeant, 99-55265. No. Appeals, Court States United Ninth Circuit. July Submitted Argued 7, 2004. Filed June
K. Walker, Jamel plaintiff-appellant propria persona, Calipatria, CA; and Brett Williamson, J. Amy J. Laurendeau, and Christine E. Cwiertny, pro attorneys, bono O’Melveny Myers LLP, & Newport Beach, CA; for the plaintiff-appellant. Bill Lockyer, Attorney General of the of California, State R. Anderson, Robert Chief Assistant Attorney General, David Druliner, P. Assistant Attorney General, Gifford, Paul D. Senior Assistant Attorney General, Crown, Allen Acting Senior Assis- Attorney tant General, Darrell Lepkow- sky, Supervising Deputy Attorney General, Helfand, Robert F. Deputy Attorney General, Los Angeles, CA, for the defen- dants-appellees. KOZINSKI,
Before: FERNANDEZ RYMER, Circuit Judges. KOZINSKI, Judge: Circuit Plaintiff, a black inmate, California brings suit under 42 § U.S.C. claim- ing he was equal denied protection be- cause, during prison lockdowns, three he was not allowed to resume his job until after similarly-situated inmates of other races. black five On staff. Facts in Fa- members staff attacked prisoners a life sen- serving K. Jamel as a injured A; eight staff cility De- the California custody of in the
tence were members five All assailants result. Corrections, Calipatria partment *3 predominantly Crips, a Coast the East of of made up is The Prison. State family except All activities gang. black B, C yards A, facilities separate four — pend- immediately terminated were visits InA. Facility in D; is housed Walker and The the incident. of investigation ing a to be assigned 1994, was Walker April re- day that investigation preliminary He Library. Law Facility A the in clerk in retaliation was the attack that vealed of hourly rate initially paid at was May 4. on of an inmate subduing the for the maxi- earns cents; he now nineteen investigation, complete the of part As is Lead and cents thirty-two of rate mum interviewed were A inmates Facility that asserts Walker Library Clerk. Law 10, May Warden May On 8. starting on gang a been has never not and he a for authorization requested Prunty member. 11, Prunty May On emergency. of statе history of has Prison Calipatria State critical work- of groups limited allowed On and violence. tension racial significant be re- “clerks”—to as ers—identified Hispanic 1994, example, several 2, for May and, ex- May on jobs leased fight, in a involved were inmates and black include list critical-workers the panded placed was the of which a result as kitchen, crews, central work “[i]n-grounds lockdown, all the part of As on lockdown. crews, visiting porters, yard laundry, PIA and cells to their restricted were prisoners of State Synopsis clerks.” and canteen However, only to exercise. not permitted Mo- 4 to Defendants’ Exh. Emergency, of ex- also were inmates black Hispanic and [here- at 2 Judgment, Summary for tion list—a critical-workers the cluded not were Black inmates Report]. inafter to continue approved of workers category workers. critical eligible to be despite assignments job attending their ex- permitted further list was was Walker The critical-workers the lockdown. until inmates assignment more library allow May 15 to to his on panded to return af- weeks, alleges, assign- he previously-identified 1994—three attend June had as Assistant officials served who inmate ter white As ments. to work. back informa- significant allowed further had been no Clerk discovered His- investiga- between preliminary incidents violence to the Similar to add tion on place that the prisoners took apparent and black panic tion, it had “become and 9,1994. 28,1994, December incident isolated anwas November incident May 5th inmate Facility ‘A’ of the majority that a proce- lockdown are here issue At planned of the aware was not population inci- separate three that followed dures identi- day, inmates That at 3. Id attack.” inmate-on-in- Unlike in 1995.1 dents Crips Coast the East as associates fied that occurred violence mate On prison.2 of the out transferred inmate attacks involved these instances to whether as conflicts The evidence inci- violent that the assumes dissent The Crips were Coast East at are those conclusion as as well dents in reached, contrary, was 980. To the incident responsible See Dissent issue. opposition to sum- clear in made Walker briefing appeal that mary judgment procedures only lockdown challenges he incidents. the 1995 followed was May Walker escorted job to his Walker alleges he was added the criti- assignment library. alleges He cal-workers list on June 21 and that he he told was soon after his arrival that was, at time, black worker blacks were still not eligible to be critical the list. That same day, thirty-six prison- workers, they though could use the law ers affiliated with the East Coast Crips library they if had verified court deadlines. were transferred out prison. of the Walk- Despite this, says, he permit- began er work the next day when the ted to perform his duties because li- library reopened. On June a “compre- brary lacked other clerks with adequate hensive list of critical workers ... [was] skills.3 -May 19, On additional Facility A published based on central file screening *4 critical workers were released, but “[n]o and need for workers.” Id. at 8. Black inmates ... [were] utilized as ‘criti- ” The third incident also took place in cal workers.’ Id. On May 22, black Facility B. On October a group of inmates were added to the critical-workers black alleges inmates —Walker they were list. gang members —stabbed a staff member. The second incident took place on June prison The was once again placed on lock- 18, 1995, in Facility B. Three black in- down, and black inmates were excluded mates attacked staff members in front of from the critical-workers list until dining room, as a result of which three officials completed their investigation. staff injured. were The prison, entire in- Walker alleges that, although he al- was cluding A, Facility put was on lockdown. lowed to report to work on November 2 Two of the assailants were East Coast and he was forced to return to his cell Crips and the third a member of another November and told that blacks were gang black the Rolling 40’s Crips. On not eligible to be placed on the critical- June Prunty Warden ordered that all workers list. Walker adds that he not black inmates’ central files be reviewed allowed to return to job his for the next order to identify members and of affiliates week. the East Coast Crips, and or- additionally dered that be searched for se, Acting pro Walker sued defendants weapons. Black workers could be author- under section 1983. He seeks declaratory ized for eligibility for the critical-workers injunctive relief and monetary dam- list after central file review. ages.4 Defendants moved for summary the inmates associated with the East Coast 3. appear Defendants to misconstrue the rec- Crips out, were transferred May May 15 or ord. Citing complaint, Walker's they state 17. In defendants' statement undisputed of that put Walker was on the critical-workers support facts in of their summary judgment May list on 18. Walker makes no such asser- motion, they assert that this conclusion was tion in his complaint. May reached on citing Walker's com- plaint, a by declaration Deputy Chief Warden 4. The relevant purposes defendants for of this Garcia, Silvia H. and an report undated enti- issue are K.W. Prunty, the Warden of Calipat- tled “Synopsis of State Emergency,” of Prison; ria State Reed, Bobby L. the Chief was submitted as an exhibit to the summary Warden; Deputy Sylvia Garcia, Huerta an
judgment motion. Defendants do not state warden; Tutt, associate A.M. employee an there day what the inmates were transferred and correctional captain/program administra- out. Report The and the complaint give May A; Facility tor in Janda, and G.J. employee occurred, as the date both while Garcia's and a correctional lieutenant. says declaration Defendants discrepancy This held positions these material analysis, to our relevant times. and so we leave it unresolved. Garcia, by Sylvia H. as declaration Chief granted. court judgment, which the district se; pro Calipatria an initial Deputy after Warden at State Prison. appealed Walker pro briefing, we ordered opposition, round Walker submitted own appointed be counsel bono declaration. briefing. supplemental file
parties It is clear from the evidence submitted by support summary defendants in Discussion judgment they explicitly considered pris Racial discriminаtion ineligibility race threshold determining under the jails is unconstitutional ons for critical-worker status. Garcia declares “ Amendment, except for ‘the Fourteenth that, during penalty perjury under security and disci necessities of 5,1995, period following May lockdown ” Beto, 319, 321, 405 U.S. pline.’ Cruz incident, “Non inmate African-American (1972) (per L.Ed.2d 263 workers, job assignments whose curiam) Washington, 390 (quoting Lee v. critical, report were allowed to deemed 333, 334, 88 19 L.Ed.2d U.S. S.Ct. job assignments.” Decl. of Silvia H. curiam)). (1968) does (per *5 ¶ added). 5, Simi- (emphasis Garcia at 20 dispute validity confining the of not May 19, larly, Report notes that on the part prison- to their cells as of prisoners “No Black are utilized as ‘critical inmates claims, instead, that wide lockdown. He ” 3, workers,’ Report at and that “Black against by him discriminated defendants are to the ‘critical workers’ inmates added to threshold ine employing race determine 22, May on at 4. As to the June list” id. 18 on critical-workers ligibility placement incident, states, Garcia “African-American during periods.5 lists lockdown While may critical workers be considered after of the Fourteenth Due Process Clause file Decl. of Silvia H. central review.” property “does not create a Amendment ¶6, Report at 24. The confirms Garcia liberty employment,” in In interest eligible that black inmates could become (10th 595, F.2d Papalia, v. 596 gram 804 only after for critical-worker status their Cir.1986) curiam); Baumann v. (per see And, Report files See at 8. were screened. Corrections, 841, F.2d Ariz. 754 Dep’t of incident, Garcia as to the October 31 (9th Cir.1985), discrimination in racial 846 states, of ‘critical “A limited number work- pro jobs equal of violates assignment report their ers’ allowed to work tection, 561, Lane, v. F.2d Black 824 562 Afri- assignments which did not include Cir.1987). (7th H. inmates.” Decl. of Silvia can-American argued, and dis Defendants ¶6, at Garcia summary agreed, judg trict court F.3d California, In v. 321 791 Johnson because had appropriate ment was — (9th Cir.2003), U.S. -, granted, cert. failed that defendants act to demonstrate (2004), 1505, 124 L.Ed.2d 151 we S.Ct. 158 support discriminatory with intent. ed plaintiffs similar claim that confronted judgment, submit summary of defendants [by Department “use of race the California investigation ted several incident and re making housing initial undated, Corrections] of in thirty-eight- including an ports, impermissible assignments “Synopsis of of page report entitled State constituted Equal of Pro racial classification afoul covering period Emergency” 5, 1995, The 1995, 12, tection Id. CDC and a Clause.” Sеptember concurrently disposition filed issues in this memorandum 5. Walker raises numerous other opinion. separately appeal. We these in a with this address 974 Katz, 194, as a factor in its v.
employed
housing
race
Saucier
533
121 S.Ct.
U.S.
policy
2151,
in order to reduce
con
(2001),
race-based
150
272
L.Ed.2d
under-
we
among
flict and violence
Id. at
inmates.
take a
two-step inquiry
determining
considered, among
794. The
also
CDC
qualified immunity
whether
applies. We
age,
things, “gender,
other
classification
whether,
first ask
light
“[t]aken
concerns,
score,
concerns,
custody
case
party asserting
most favorable to the
health, enemy situa
physical
mental and
...
injury,
the facts
offi-
alleged show the
tions,
affiliation, background,
gang
history,
cer’s conduct violated a constitutional
custody designation.”
Id. Plaintiff
[and]
201,
right.” Id. at
121
2151. This
S.Ct.
required
рrove discriminatory
was not
prong
inquiry
the Saucier
“mirrors the
intent because
state
con
“[t]he
admit[ted]
summary judgment
substantive
decision
sidering
assigned]
race when it
inmates
McKee,
the merits.” Sorrels v.
F.3d
290
4
cell mate.” Id.
796 n.
(citing
(9th Cir.2002).
“If
969
no constitu-
Bakke,
Regents
Univ. Cal.
438 U.S.
right
tional
would have been violated were
289 n.
98 S.Ct.
57 L.Ed.2d
allegations established,”
no fur-
gowe
(1978);
Erickson,
Hunter v.
U.S.
Saucier,
ther.
fendants’
relationship
The asserted
seems
Id.
90-91.
sponse.”
be a matter of common sense: Where
a valid ration
The first factor—whether
a
apparently
requires
race-related violence
defendants’
exists between
al connection
lockdown, inmates who are
prison-wide
legitimate
inter
penological
actions
a
those
involved in the
members of
races
non of the Turner
qua
sine
est—is
precluded
per
violence should be
Murphy, 532 U.S.
inquiry. Shaw v.
forming even critical functions until ade
229-30,
often based this does not mean dispute these allegations in reply their that all members of a race will be affiliated opposition Walker’s summary judgment with a gang predominantly comprised of or in briefing before us. words, members of that race. In other respect With May incident, to the 5 being black necessarily does not you mean Walker’s uncontested allegation that are a member black Thus, of a black gang. concludes, permitted inmates were making to use the blacks ineli- law gible for critical-wоrker status library not a supervised only by a vocational of- rational response May to the June 18 ficer question calls into whether pris- incidents, and October 31 the first two of security on’s really concerns were so acute gang-related were found to be it was rational to treat blacks as the last of which Walker asserts was also automatically ineligible for critical-worker gang-related. press Walker’s on the issue status.8 say We cannot the same of the of whether the violent incidents were incident, June 18 since Walker does not gang-or him gains ground. race-based little describe the of supervision conditions Garcia’s declaration indicates the law library for the period following the gang deemed primarily responsible for the However, lockdown. we do not evaluate May incidents, 5 and June 18 the East defendants’ actions collectively, but rather Coast Crips, largely comprised on an incident-by-incident basis. Their ac- blacks. Walker does not dispute this. may tions well have been rationally related Moreover, we recognized the com- to legitimate objectives during one lock- mon-sense link gangs between and racial down period, but not another. Johnson, violence in the prison context. Thus, F.3d at & n. 12. it follows Walker also alleges that his file was that prison authorities investigating gang- May screened after the 5 incident in order related violence and attempting to restore to permit him to act worker, a critical as safety might and order rationally take race thus calling into question why he needed to into accоunt in implementing lockdown be re-screened order eligible to be as a procedures. critical worker for the June 18 lockdown Walker also asserts his declaration period. least, At the very by the October that, during period the lockdown following lockdown, Walker’s file had been incident, May defendants continued screened twice—after the incident, to allow black inmates with court deadlines and again after the June 18 incident pursu- to make library use of law being while ant to a central-file review—thus raising *8 supervised only by Acting Library Law question why, at point, that he could Supervisor Christine Harris. Harris is a not eligible be made for critical-worker instructor, vocational not a correctional of- status. question This seems the more ficer. Walker adds black inmates also nagging because Walker made notes that use of library during the lock- down June 18 period and October 31 following the incidents June 18 inci- occurred dent, though he Facility B, does not describe the not Facility con- A where he is supervision. ditions of Defendants do not housed. suggests The dissent that "officials could rationality Walker called the of defendants’ well supervising conclude that an inmate who question, into actions it was incumbent on using is library is supervising easier than say to defendants as much and rebut Walker’s an inmate who working library.” in the position with evidence. See note 7 supra. be, Dissent at 981. That could but once same merely re-invoke the Instead, they race-based Johnson, held we rebut insufficient to This is housing objectives. could segregation
screening and had If defendants objective position. to Walker’s related rationally be dem- order, evidence at with further id. but forward and come ensuring safety racial rational to exclude screening why it was onstrating to only as held we so al- clearly temporary lists critical-workers while that was from blacks differentiation assignments housing library under The initial the law lowing to use in nature. them on their received, part why repeated based or prisoners supervision, low-level days only, sixty race, period for prerequisite were for were a rational screenings per- given prisoners status, point in con- at which eligibility critical-worker transferred housing assignment manent as screening used one-time to the trast at 794-95. We Id. institution. to another in John- housing policy of the CDC’s part under permissible procedure this held to defer son, required might have bеen we of, the file screening Turner because not done They have judgment. to their by, presented safety risks assessing the re- however, are therefore so, and we at arrival upon his inmate individual each uncon- Walker’s to conclude that quired to rationally related be could ra- required allegations refute tested in their violence race-based preventing tional connection. sus- particularly cells, inmates are where connection of the essential Because 802-03. Id. to attack. ceptible sufficiently is not first factor Turner's to a one- confined holding was thus Our June 18 to the out as borne By con- limited duration. time measure lockdowns, proceed do not we October lock- trast, here indicates the record Walker, remaining Turner factors. to the thus, by frequently and fairly occur downs Viewing the record at 385. 917 F.2d lists are em- critical-workers implication, favor, alleged show the facts Walker’s Moreover, frequency. with similar ployed may have violated that defendants the dura- no limits on to appear there be protection. equal to right constitutional lockdowns, for which or the periods tion of Saucier, 533 U.S. See from critical- excluded be may inmates Thus, consider whether we must workers lists.9 from free race-based be Walker’s most light in the record Viewing the status to critical-worker as discrimination must, con- Walker, we as we favorable and, established, clearly “was is one that doubt on cast sufficient that he clude official so, a reasonable if whether defen- connection between common-sense his conduct have believed would and their actions objectives dants’ asserted Barrett, 345 clearly unlawful.” Vance come forward require defendants Cir.2003). (9th 1083, 1088 F.3d Defendants evidence. rebuttal with our brought to not Walker has b. demonstrating the presented evidence attention, independent research and our ex- race-based between connection specific involving the reveal, law case does not pro- lists and critical-workers clusion *9 by this presented circumstances particular investigation. safety, order moting (Oct.2003), http:// at Up, BIGnews Board. ac- defendants’ characterizes The dissent 9. www.mainchance.org/bignews/read/october at "temporary Dissent fix." as a tions Hunter, 2003/hunter.html; Wayne Michael regularity with which disregards the This 2003), Life, (June occur, BIGnews they of Condemned are fact lоckdowns http://www.mainchance.org/bignews/read/ See Michael duration. potentially illimitable Frederick, june2003/hunter.html. J. & Wayne Bradford Hunter 978 prong
case. The second
of the Saucier
direct the district
pro
court to continue
inquiry
at a
operates
high level
specifici-
of
bono
appointment
counsel’s
remand,
ty.
It is
princi-
insufficient
the broad
unless Walker
objection
files a
by
written
ple underlying
is
well-established.
deadline to be set by the district court.
relevant, dispositive
“The
in
inquiry
deter-
part,
AFFIRMED in
REVERSED in
mining
a right
clearly
whether
is
estab-
part and REMANDED.
it
lished is whether
would be clear to a
FERNANDEZ,
Judge,
reasonable officer that his
Circuit
conduct was
concurring..
unlawful in the
he
situation
confronted.”
Saucier,
202,
533
121
U.S.
S.Ct. 2151.
I concur in Judge Kozinski’s opinion,
While it is well-established that racial dis- with one exception.
join
I do
part
2
assignment
crimination
оf prison
of the Discussion.
jobs
unconstitutional,
Black,
824
cf.
Although I
part
find that
of the Discus-
562;
F.2d at
v. Wyrick,
Foster
F.2d
823
very informative,
sion
in my opinion we
(8th
218,
Cir.1987),
220
it has not been
should not
qualified
decide
immunity is-
clearly established that such race-based
instance,
sues in the first
but should leave
differentiation is
unconstitutional
them for the district court. See Harlow v.
context of a prison-wide lockdown institut- Fitzgerald,
800, 819-20,
457 U.S.
102 S.Ct.
in response
ed
to gang-or race-based vio- 2727, 2739,
(1982);
We
that this
down
means
coign
our
vantage
of
pluck
quali-
that defendants “need not
respond
fied immunity issues from the
damages.
It
district
does not mean
they
battlefield,
court
but in
long
run I
enjoined
сannot be
from future violations
think we are better advised to
...
resist that
rights.”
[Walker’s]
Nelson v.
I,
temptation.
one,
Heiss,
do not
(9th
think
271
we
Cir.2001);
F.3d
attempt
predict
should
the nature or
see also
Fitzgerald,
Harlow v.
457 U.S.
result
further proceedings in
the district
102 S.Ct.
byterian
(U.S.A.),
Church
F.3d
(1987).1
We therefore
979
was
dispute that CSP
no
that
There is
conclude
me to
factors leads
Turner
incidents
a number of violent
plagued with
comport with
listings
worker
critical
the
They
months.
period
a
of several
though
over
even
requirements,
constitutional
2, 1994,
a
fight
with
be-
listings
on
race-based,
the
started
because
they were
in-
African-American
Hispanic
an
and
rational,
response by
tween
temporary
awere
inmates and
safety of
to a ser-
To ensure
integrated prison
mates.
fully
otherwise
to their
violent,
staff,
inci-
were confined
race-based
all inmates
extremely
of
ies
assign-
work
except
I
affirm.
for those whose
Accordingly, would
cells
dents.
Hispanic
critical.
were considered
ments
protec-
equal
that
question
no
There is
were not
inmates
and African-American
See
gate.
stop
prison
the
does not
tion
to
list
on the critical workers’
included
539, 556, 94
McDonnell, 418 U.S.
v. Wolff
be-
passed
weapons
being
prevent
(1974); Lee v.
2963, 41
935
S.Ct.
L.Ed.2d
side,
prevent
to
of either
tween members
994,
19
88 S.Ct.
Washington,
U.S.
fight-
continue the
plans
of
to
making
the
(1968). However, unlike
L.Ed.2d
A full inves-
things down.
and to calm
ing,
analysis, prison
protection
equal
normal
a
that
included
conducted
tigation was
scrutiny
subject to strict
are not
policies
surrounding ar-
and
of
facilities
search
interest
compelling government
and no
weapons.
for
inmate-manufactured
eаs
day-to-
“Subjecting the
be shown.
need
list
on the
workers
not
critical
Walker was
an
to
prison officials
judgments of
day
the
work at
to return to
but was allowed
analysis
scrutiny
would
strict
inflexible
1, 1994.
library
law
Facility “A”
June
ability
anticipate
to
seriously hamper their
adopt innovative
to
security problems and
of African-
group
28 a
On November
of
problems
to the intractable
solutions
Hispan-
attacked eleven
inmates
American
Turner,
U.S.
prison administration.”
Facility
yard.
“D”
Six
in the
ic inmates
Instead,
“when
107 S.Ct.
stab wounds
received
Hispanic inmates
on inmates’
impinges
regulation
prison
inmates continued
The
lacerations.
is valid
regulation
the
rights,
constitutional
them to
prison officials ordered
fight after
legitimate
reasonably related to
it is
if
shots. Six
warning
three
stop and fired
85, 107 S.Ct.
Id. at
interests.”
penological
quell the
warning shots were fired
more
incident,
this
a result of
As
disturbance.
all in-
of
ordered a lockdown
Turner,
warden
than the adminis
rather
Under
emergency
mates,
a state of
declared
their
proving
of
bearing the burden
trators
weapons,
prison-wide
search
included
constitutional,
inmate
bears
policy
list
critical workers’
developed another
act
prison officials
proving
of
burden
and His-
African-American
that excluded
See
discretion.
outside
broad
ed
On December
126, 132,
inmates.
Bazzetta,
panic
539 U.S.
v.
Overton
effect,
still
was
(2003);
while the lockdown
Shaw
156 L.Ed.2d
S.Ct.
(who
way to
was on
inmate
Hispanic
532 U.S.
Murphy,
in-
shower)
an African-American
(2001).
has
stabbed
A staff May member was assaulted by an African-American inmate and on Against backdrop, this which unfortu- 5,May 1995, five in- nately African-American unrest, is one of racial it is clear to mates attacked staff members in the Facil- me prison’s that the policy of not consider- ity “A” program office with Walker, inmate-manu- ing an African-American, as as a factured weapons. Four staff members critical worker is reasonably related to the multiple received stab legitimate wounds and four penological interests prison injuries. others Pending sustained an in- security and safety.
vestigation, Prunty suspended Warden Valid, rational connection. .Restricting visits, family activities except ordered the critical workers’ list for the limited search of weapons, and al- period following a disturbance until an in- lowed critical workers who were not vestigation completed could be served the report jobs. African-American to to their prison’s in interest maintaining order and The investigation revealed that May 5 assuring safety. objective This- legiti- attack was instigated by the “East Coast neutral, mate and although the decision to Crips,” an African-American gang. inmates, (and keep African-American after Walker was added to the critical workers’ incidents, the first two inmates) Hispanic list on 1995 and returned to work off of the list during the lockdown was library. the law obviously related to ethnicity. To 18, 1995, On June two African-American this extent it was neutral and was members of the East Coast Crips However, stabbed discriminatory. “prison authori- two staff members in the Facility “B” din- ties have right, acting good faith and ing hall. Prunty Warden another particularized ordered circumstances, to take lockdown, a for weapons search in common into account racial tensions maintaining library, areas such as the law and a security, review discipline, good order in pris- of the central of all files Lee, African-American jails.” ons and 390 U.S. at identify (three inmates to members East justice concurrence); S.Ct. 994 Cruz Crips Coast Beto, and their associates. The U.S.
warden (1972) allowed African-American inmates L.Ed.2d 263 (noting that racial seg- placed be on the critical regation workers’ list is unconstitutional outside and in- after the central file Thirty-six review. side prisons “save for ‘the necessities of ” inmates identified with the “East Coast security and discipline’ as Lee Crips” held). were transferred to Corcoran State Prison on placed June Walker was argues that a triable issue exists
the critical day workers’ list the same because evidence that the incidents reported for on June 22. work The state gang-related were and not racially-moti- of emergency September ended on remains, however, vated. The fact
On October an African-Ameri- Crips East Coаst were an African- can inmate stabbed a staff member. gang, American and African-Americans Prunty Warden temporary ordered a sus- were involved the violent incidents. It pension of all programs for the safety of was not (though irrational may -it inmates and A search staff. and investi- been uhnecessary) to keep all African- gation conducted, after American, Afri- as well as all other inmates who who had not can-Americans been included jobs, had non-critical loeked-down until ev- *12 from racial dis- ed alternatives membership or reasonable gang erything including — general. in- The work restric- out. Inmates crimination got sorted association — only inmate- in nature and temporary had used tions were in the incidents volved common sense weapons, period a limited of time when plаce manufactured weapons could be ex- that such suggests imposed. Each critical workers’ list di- the law areas such as changed in common racial incident. rectly followed serious threats, and messages, could library. So or duration of Nothing the character about like. suggests that offi- the restriction overreacted to violence with cials partic- that it was maintains also Walker inmates, confront- they, and all were which job keep him from his ularly nonsensical to job able to return to his ed. Walker was fact that African-American light of the safety government’s interest once the al- court deadlines were prisoners with In these cir- security was satisfied. library. points He out to the lowed access cumstances, that assuming disparate even supervised single that a vocation instructor occurred in the impermissibly treatment twenty-two African-Ameri- average an listing, none occurred day incident. critical workers’ library per users without can right However, respect primary decision to Walker’s this makes the officials’ with —to using library fully facility. integrated rational. Inmates housed at a no'less be In one at a time. may have been there inmates and Impact guards, event, to use the law allowing inmates any dispute that con- resources. There is no emergency an serves library during even tinued, renewed, posed signif- violence or maintaining their important function of safety icant risk to the of inmates courts, not served to the a function access showing otherwise. staff. made no Walker library. in the by allowing work Walker eliminating, that or Nor did he show Further, that could well conclude officials policy critical workers’ would changing, the using an inmate who is supervising impact. have no harmful an in- library supervising easier than working library, in the be- mate who is sug- alternatives. Walker Reasonable may have more cause inmate-librarian have used a gests that could and interaction with freedom of movement identify those Afri- screening process to and, therefore, library prisoners using gang inmates who can-American passing risk of may pose an increased excluding or associates instead members weapons messages. inmates from critical all African-American However, job assignments. Perhaps so. right. Alternative means to assert any such screen- job it is not self-evident pursue any opportu- could Walker worked, or would being ing prоcess would lockdown without nity during the effectively enough, quickly list, have worked but he had no the critical workers’ any good.2 enough, to have done library in the Walker to work or to work showing. makes no such At least question is not whether begin with. The ready alternatives Absent evidence reasonable alterna- prison provided at de minimus cost would have come as a factor for the using tives from race valid, interests, say I cannot list, penological provid- it critical workers’ but whether 23, thirty-six Coast days By June East incident. off work for thirteen 2. Walker was incident, investigation Crips identified and trans- after the members had been instigated by been East Coast revealed had ferred. days June 18 Crips, and for three after the decision falls short of the prison’s relationship reasonable test. sum, response the administrators’ *13 It temporary
was not unreasonable. was a fix that I believe was within the discretion impose given officials to the na- precipitated ture of the incidents that situations, emergency and the need to operations maintain critical facility. The critical work list was terminated once searched, facility had been an investi- conducted,
gation ap- had been and order peared to been Beyond restored.
this, “to guess we are not second the de- prison management.” Bradley
tails of Hall, (9th Cir.1995). 64 F.3d I
Accordingly, conclude that the critical lists, race-based, although workers’ reasonably government’s related to the le-
gitimate in prison safety. interest I would therefore affirm on equal protec- Walker’s tion claim.
In re LORILLARD TOBACCO
COMPANY, Plaintiff-
Appellant. No. 03-16553. R. Bailey, Merrill, John David J. Appeals, United States Court of Dickey, Joshua M. Law Offices of John R. Ninth Circuit. Bailey, NV, Vegas, Las plaintiff- for the appellant. Argued and Submitted Jan.
Filed June WALLACE, McKEOWN,
Before:
CALLAHAN, Judges. Circuit