FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED PIERCE; TIMOTHY LEE CONN;
FERMIN VALENZUELA; LAURIE D.
ELLERSTON,
Plaintiffs-Appellants, No. 05-55829
v. D.C. No.
COUNTY OF ORANGE, a Governmental CV-01-00981-GLT
entity; MICHAEL S. CARONA,
individually,
Defendants-Appellees.
5563
5564 PIERCE v. COUNTY OF ORANGE
RICHARD EUGENE SMITH; KENNETH
WILSON; WILLIAM BROWN; SUSAN
YOUNG, on behalf of themselves and
all others similarly situated,
Plaintiffs,
and
JERRY E. STEWART; FRED PIERCE; No. 05-55845
TIMOTHY LEE CONN; FERMIN
D.C. No.
VALENZUELA; LAURIE D. ELLERSTON,
CV-75-03075-GLT
Plaintiffs-Appellants,
v. ORDER
AMENDING
BRAD GATES, individually and in his OPINION AND
official capacity as Orange County AMENDED
Sheriff; WILLIAM WALLACE, OPINION
individually and in his official
capacity as Chief Deputy of the
Orange County Sheriffs Department
and Jail Division; COUNTY OF
ORANGE, a governmental entity;
MICHAEL S. CARONA, individually,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
April 12, 2007—Pasadena, California
Filed March 24, 2008
Amended May 15, 2008
Before: Betty B. Fletcher, M. Margaret McKeown, and
Jay S. Bybee, Circuit Judges.
PIERCE v. COUNTY OF ORANGE 5565
Opinion by Judge B. Fletcher
PIERCE v. COUNTY OF ORANGE 5569
COUNSEL
Virginia Keeny, Pasadena, California, and Richard P. Her-
man, Newport Beach, California, for the plaintiffs-appellants.
Steven C. Miller, Santa Ana, California, David D. Lawrence
and Christina Sprenger, Orange, California, for the
defendants-appellees.
ORDER
The opinion filed on March 24, 2008 and published at 519
F.3d 985 (9th Cir. 2008), is AMENDED as follows:
(1) At 519 F.3d at 1016, after the sentence ending, “with
or without reasonable accommodations, meet the essential eli-
gibility requirements to participate,” insert the following addi-
tional two sentences:
Whether this “program access” standard may reason-
ably be met or whether any restriction on access is
reasonably related to a legitimate government objec-
tive is necessarily fact-specific. We also emphasize
that the district court should look at the offerings as
a whole and in their entirety and thus the court is not
5570 PIERCE v. COUNTY OF ORANGE
required to ensure that each individual program or
service offered at Theo Lacy and Musick is offered
in complete parity with an offering at the Central
Jail.
(2) At 519 F.3d at 1016, delete the sentence reading, “In
particular, the district court should examine the extent to
which the programs offered at Theo Lacy and Musick are
capable of reassignment to the Central Jail without eliminat-
ing those programs at Theo Lacy or Musick.” Replace the
deleted sentence with the following three sentences:
In particular, the district court should examine the
feasibility of offering similar programs at the Central
Jail, and the extent to which the programs offered at
Theo Lacy or Musick are capable of being offered at
the Central Jail without eliminating those programs
at Theo Lacy or Musick. There may be other appro-
priate remedies that provide disabled inmates access
to programs and services, and the district court
should consider those options as well. Our intention
is not to suggest or cause the termination or diminu-
tion of programs or facilities other than the Central
Jail, but to have the district court explore available
options on a full evidentiary record.
Judges McKeown and Bybee have voted to deny the peti-
tion for rehearing en banc, and Judge Fletcher has so recom-
mended. The petition for en banc rehearing has been
circulated to the full court, and no judge has requested a vote
on whether to rehear the matter en banc. Fed. R. App. P.
35(b). The petition for rehearing en banc is denied. No further
petitions for rehearing or rehearing en banc will be accepted.
IT IS SO ORDERED.
PIERCE v. COUNTY OF ORANGE 5571
OPINION
B. FLETCHER, Circuit Judge:
In 2001, plaintiffs-appellants Fred Pierce, Timothy Lee
Conn, Fermin Valenzuela, and Laurie D. Ellerston—pretrial
detainees in Orange County’s jail facilities—initiated Pierce
v. County of Orange, No. 05-55829 (D. Ct. No. 01-981), a
class action suit against the County of Orange and Michael S.
Carona, the county’s sheriff and agent.1 Seeking relief under
42 U.S.C. § 1983 for violations of their Fourteenth Amend-
ment due process rights, plaintiffs contend, in essence, that
the Orange County jails are operated in an unconstitutional
manner, depriving them of opportunities for exercise, unduly
limiting their access to common areas, and impermissibly
restricting their ability to practice religion. Plaintiffs further
assert that they have been deprived of a number of the federal
rights previously recognized in Stewart v. Gates, 450 F. Supp.
583 (C.D. Cal. 1978) (“Stewart”)—a decision and resulting
injunctive orders (“the Stewart orders” or “the Stewart injunc-
tion”) that established standards for pretrial detention in
Orange County jails. The plaintiffs seek relief for the same
injuries under the California Constitution, as well as Title 15
of the California Code of Regulations (which sets minimum
standards for county jails) in violation of § 815.6 of the Cali-
fornia Government Code, and breach of § 54.1 of the Califor-
nia Civil Code. Finally, the plaintiffs in Pierce assert an equal
protection claim under § 1983 based on the denial of equal
treatment to disabled detainees, and they advance a separate
claim for violations of Title II of the Americans with Disabili-
ties Act (“ADA”), 42 U.S.C. § 12131 et seq., alleging non-
compliant jail facilities and denial of access to programs and
services available to non-disabled detainees. On appeal, the
1
Plaintiffs’ claims against Carona were dismissed, leaving the County
as the sole defendant-appellee involved in this consolidated appeal. In a
separate order, we grant Carona’s motion to dismiss the plaintiffs’ appeal
as untimely with respect to him.
5572 PIERCE v. COUNTY OF ORANGE
plaintiffs also challenge a number of the district court’s pre-
trial procedural and evidentiary rulings.
After a six day trial, the district court found that the plain-
tiffs had failed to establish any constitutional injury giving
rise to relief under § 1983. The district court went on to find
that the fourteen Stewart orders at issue were no longer neces-
sary, and ordered them all terminated pursuant to the Prison
Litigation Reform Act (“PLRA”),2 18 U.S.C. § 3626(b)(3).
The district court likewise rejected plaintiffs’ equal protection
and ADA claims, finding that although the County was not in
“full ADA compliance, [ ] it can reasonably be expected to
move toward full compliance.”
Having conducted a thorough review of the extensive pre-
trial and trial record, we affirm in part and reverse in part. We
affirm the district court’s pre-trial and evidentiary rulings
challenged by the plaintiffs; the district court did not abuse its
discretion in its pre-trial management of the case or its deci-
sions related to the admission of evidence. On the merits, we
affirm the district court’s termination of nearly all of the four-
teen Stewart orders at issue. Two of those orders, however,
which secure inmates housed in administrative segregation
some minimal access to religious services and exercise, may
not be terminated. The district court clearly erred in its find-
ing that these two orders are unnecessary to correct a current
and ongoing violation of a Federal right. We likewise con-
clude that, because of physical barriers that deny disabled
inmates access to certain prison facilities (bathrooms, show-
ers, exercise and other common areas), and because of dispa-
rate programs and services offered to disabled versus non-
disabled inmates, the County is in violation of the ADA.
2
Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321, 1321-66 to 1321-77
(1996) (codified at 11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626
(2000); 28 U.S.C. §§ 1346, 1915, 1915A, 1932 (2000); 42 U.S.C.
§§ 1997a-1997h (2000)).
PIERCE v. COUNTY OF ORANGE 5573
I. PLAINTIFFS’ ALLEGATIONS
A. Violation of the Stewart orders governing prison
conditions.
Stewart v. Gates was commenced in 1975 when a class of
pretrial detainees challenged the constitutionality of various
practices and conditions of confinement in the Orange County
Central Jail in Santa Ana, California. 450 F. Supp. 583 (D.C.
Cal. 1978). In 1978, the district court presiding over the case
issued an injunction, establishing various standards for pre-
trial detention. Id. at 590-91 (holding that the court retained
jurisdiction to modify the orders upon a showing of good
cause). In 1991, the district court made clear that the order
applied to all of the Orange County jails: Men’s Central Jail,
Women’s Central Jail, Intake Release Center, James A. Mus-
ick Facility, and Theo Lacy Facility.
The Stewart orders—which have been modified in the
years since the initial injunction was issued—address detain-
ees’ access to telephones, law books, reading materials, and
interjail mail to jailhouse lawyers; provide for mattresses,
beds, and blankets; establish mealtimes and sleeptimes;
require seating while awaiting transport to and from court;
and set population caps. The orders also address several issues
pertaining specifically to inmates in administrative segrega-
tion: their access to religious services, day rooms, exercise,
and visitors.3 The Stewart orders subject to challenge in this
litigation are reproduced as Appendix A to this opinion. Spe-
cifically, plaintiffs in Pierce maintain that they have been sub-
3
Administrative segregation applies to inmates “who are determined to
be prone to: escape; assault staff or other inmates; disrupt the operations
of the jail, or likely to need protection from other inmates.” Cal. Code
Regs. Tit. 15, § 1053. This encompasses the definitions of both Adminis-
trative Segregation and Protective Custody. According to the testimony of
County witness Sergeant Rich Himmel, inmates who have “violent ten-
dencies and have been deemed a threat to Department staff or other
inmates,” are classified as “Administrative Segregation.”
5574 PIERCE v. COUNTY OF ORANGE
jected to holding-cell conditions deemed unconstitutional in
Stewart and have been denied the minimum mealtime held to
be constitutionally required in Stewart. In addition, plaintiffs
contend that inmates housed in administrative segregation are
denied the minimum access to religious services, the day
room, and exercise that Stewart held to be constitutionally
required. Plaintiffs sought relief for the alleged violations pur-
suant to § 1983. Attacking the same conduct, plaintiffs also
allege due process violations under the California Constitu-
tion, breach of mandatory duties under Title 15 of the Califor-
nia Code of Regulations (which sets minimum standards for
county jails) in violation of § 815.6 of the California Govern-
ment Code, and breach of § 54.1 of the California Civil Code.
The County, meanwhile, sought termination of the Stewart
orders in their entirety pursuant to 18 U.S.C. § 3626(b), a sec-
tion of the PLRA that allows a court to terminate prospective
injunctive relief governing prison conditions on a showing
that the injunction is no longer needed to correct a current and
ongoing violation of a Federal right.
B. Equal protection and ADA violations.
Plaintiffs in Pierce assert an equal protection claim under
§ 1983 based on the denial of equal treatment to disabled
detainees, and they advance a separate claim for violations of
Title II of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131 et seq. Plaintiffs maintain that the County has
violated the ADA by failing to address numerous structural
barriers, such as inaccessible bathroom facilities,4 and failing
to provide adequate access to various programs offered by the
County’s jails.
One of the plaintiff inmates, Timothy Conn, claimed to
have suffered physical injuries, as well as mental and emo-
4
The particular architectural features at issue are discussed in greater
detail infra Section V.D.3.a.
PIERCE v. COUNTY OF ORANGE 5575
tional harms, because of the County’s failure to accommodate
his disability. Conn is wheelchair-bound and alleged that he
suffered recurrent bladder infections because the County
failed to provide him with an adequate supply of catheters.
Conn also claimed to have developed bed sores that were
exacerbated when he was forced to sit on a holding cell
bench, and eventually required surgery. The district court dis-
missed Conn’s claims on summary judgment prior to trial on
the grounds that they were “de minimis” and thus not action-
able pursuant to the PLRA. See 42 U.S.C. § 1997e(e).
II. PROCEDURAL HISTORY
A. Class certification.
In August 2003, plaintiffs filed a motion for class certifica-
tion under Federal Rules of Civil Procedure 23(b)(2) and
23(b)(3)5 of a “main class” of pretrial detainees who had been
held in Orange County jails after October 21, 2001 and had
experienced violations of certain rights enumerated in Stew-
art, as well as certification of a “sub-class” of disabled detain-
ees who had been denied rights under the ADA. Plaintiffs’
motion was granted on October 15, 2003.
In January 2004, Orange County filed a motion to decertify
5
According to Federal Rule of Civil Procedure 23(b)(2), a class action
may be maintained when the prerequisites under subsection (a) of the rule
are satisfied (i.e., numerosity, commonality, typicality, and representative-
ness), and “the party opposing the class has acted or refused to act on
grounds that generally apply to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2).
If subsection (a) is satisfied, Federal Rule of Civil Procedure 23(b)(3)
provides that a class action may be maintained where “the court finds that
the questions of law or fact common to class members predominate over
any questions affecting only individual members, and that a class action
is superior to other available methods fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3).
5576 PIERCE v. COUNTY OF ORANGE
the class. The district court ruled on the motion on March 1,
2004, holding that certification as an “equitable relief class”
remained proper under Rule 23(b)(2), but that certification as
a “damages class” under Rule 23(b)(3) was inappropriate.
Specifically, the court rejected plaintiffs’ proposed proof of
“aggregated damages” by relying on “statistical sampling to
determine the proper amount of damages.” Plaintiffs’ counsel
subsequently waived nominal damages on behalf of the
named plaintiffs. It was agreed at a status conference on
March 5, 2004, that the case would proceed to a bench trial
as an equitable relief class without claims for damages.
In November 2004, the district court clarified the scope of
class membership based on ADA violations. The court ruled
that “ADA disability evidence [would] be limited to condi-
tions applicable to Plaintiff Conn [a wheelchair-bound named
plaintiff] and persons having a disability similar to his.”6
B. Summary judgment on claims for mental and
emotional injury.
The district court’s March 1, 2004 decertification order
separately granted summary judgment to Orange County on
plaintiffs’ claims for mental and emotional injuries. The dis-
trict court concluded that the PLRA, 42 U.S.C. § 1997e(e),
bars plaintiffs’ recovery for mental or emotional injury unless
there is a showing of non-de minimis physical injury. The
court found that plaintiffs’ claims of relevant physical injuries
were all de minimis, except for one incident involving plain-
tiff Conn not at issue here.7
6
Conn is described in the record as a paraplegic or incomplete quadri-
plegic, meaning that he has no mobility in his lower body and some, albeit
limited, use of his upper body. The parties agree that the subclass consists
of mobility- and dexterity-impaired inmates.
7
The court held that Conn could recover for mental and emotional dam-
ages arising directly from this incident—a van accident. This one claim
was bifurcated and ultimately settled in 2005.
PIERCE v. COUNTY OF ORANGE 5577
C. Consolidation of Pierce with review of the Stewart
orders.
On March 11, 2004, the district court sua sponte ordered
that Pierce, the plaintiffs’ affirmative suit, be consolidated
with Stewart, over which the same district court had jurisdic-
tion. According to the district court, the issue of the continu-
ing viability of the Stewart injunction had come up indirectly
“in various different ways” in the Pierce litigation, and the
court concluded that “rather than beat around the bush, [the
court] need[ed] to just deal with these issues direct[ly].” The
court explained that it would “receive evidence whether exist-
ing Stewart orders should be revised, updated, modified,
expanded, and/or vacated” at the trial already scheduled in
Pierce. The parties did not object to the consolidation, and
proceeded to brief the court on the relevant developments in
the law in the years since Stewart was first decided.
D. Summary judgment on equal protection claims.
On November 2, 2004, the district court granted Orange
County’s motion for summary judgment on plaintiffs’ equal
protection claim in Pierce. The court reasoned that disabled
detainees were required to show that they were treated differ-
ently than other similarly situated prisoners, and had not satis-
fied the summary judgment standard for doing so. In the same
order, the district court also held that plaintiffs’ requests in
Pierce for injunctive relief for non-ADA-related claims (to
redress issues of mealtimes; holding cell conditions; and
access to religious services, the day room, and exercise) were
moot, in light of the then-existing injunctions in Stewart. In
short, the court ruled that the question of injunctive relief for
the non-ADA claims in Pierce would be addressed under the
consolidated Stewart caption. The court held that declaratory
relief remained available.
E. Evidentiary and trial management rulings.
At a pretrial conference in early November 2004, the dis-
trict court announced that each side would be allowed three
5578 PIERCE v. COUNTY OF ORANGE
days to present its case. Plaintiffs filed a written objection to
the time limit on due process grounds. The objection was
overruled, and a six-day bench trial was held, with each side
receiving equal time. At trial, the district court adhered to its
prior order on time limitations, advising counsel when time
was running short.
The district court also ruled against the plaintiffs and in the
County’s favor on a number of evidentiary issues. First, the
district court barred the admission of a survey of inmates
regarding jail conditions conducted by plaintiffs’ expert, Dr.
Nadereh Pourat (“Pourat Survey”). Second, the district court
ruled that plaintiffs could not submit deposition testimony of
class members who were in prisons more than 100 miles from
the courthouse, on the grounds that such witnesses were not
“unavailable.” Third, the district court allowed the County to
introduce statements by absent class members as admissions
by party-opponents.
* * *
Trial was held during the first week of December, 2004. On
April 27, 2005, the district court issued two final orders—an
“Order Vacating Earlier Orders and Dismissing Case in Stew-
art” (“Stewart Final Order”), and “Findings of Fact and Con-
clusions of Law in Pierce” (“Pierce Final Order”). The
Stewart Final Order vacated all of the injunctive orders in
Stewart after finding that each was either “inappropriate” or
“unnecessary.” The Pierce Final Order also rejected in their
entirety plaintiffs’ § 1983 claims based on prison conditions
and practices, either on the ground that the County had not
violated a Federal right, or that there was no evidence of a
policy or custom of violations. The court also held that the
County was not liable for violations of the ADA.
III. JURISDICTION
The district court had jurisdiction over plaintiffs’ claims
under 28 U.S.C. § 1331 and § 1343. 28 U.S.C. § 1367 con-
PIERCE v. COUNTY OF ORANGE 5579
ferred jurisdiction over state claims. We have subject matter
jurisdiction pursuant to 28 U.S.C. § 1291.
IV. TRIAL MANAGEMENT AND EVIDENTIARY RULINGS
Plaintiffs appeal a number of the district court’s pre-trial
rulings related to case management and the admission of evi-
dence. We affirm each of the district court’s rulings on these
issues.
A. The district court did not abuse its discretion by
limiting the trial to six days or by de-certifying the
“damages class.”
Plaintiffs argue that their due process rights were violated
when they were given only three days to present their consoli-
dated case in Pierce and Stewart. Plaintiffs in Pierce also con-
tend that the court erred when it decertified their so-called
“damages class.” We review both decisions for abuse of dis-
cretion. See Navellier v. Sletten, 262 F.3d 923, 941 (9th Cir.
2001) (challenges to trial court management and denial of
class certification reviewed for abuse of discretion).
[1] First, although plaintiffs assert generally that they did
not have adequate time to address the factual issues in Pierce
and Stewart, we conclude that they have not shown that “there
was harm incurred as a result” of the time limit. Monotype
Corp. v. Int’l Typeface Corp., 43 F.3d 443, 451 (9th Cir.
1994). Plaintiffs objected to the time limitation but did not
specify what evidence they would have presented if more
time had been allotted, nor did they request additional time.
See id. (rejecting the plaintiff’s argument after noting similar
circumstances). Although the case was factually complex the
district court did not abuse its discretion by limiting time for
trial to three days per side.
[2] Second, the district court did not abuse its discretion in
decertifying the “damages class.” The court reasoned that
5580 PIERCE v. COUNTY OF ORANGE
Rule 23(b)(3) would not offer a superior method for fair and
efficient adjudication in light of expected difficulties identify-
ing class members and determining appropriate damages. It
explained: “Class membership here would be highly fluid and
indefinite. Issues of damages proof would be highly individu-
alized and poorly addressed through a sampling. There are too
many damages variables.”
Plaintiffs counter that the district court ignored viable ways
of assessing the damages for the Pierce class (estimated to be
some 180,000 pretrial detainees), and—as a result—harbored
undue concerns about managing the class. Plaintiffs suggest
that damages could be calculated by relying on records main-
tained by the County. Yet, they concede that such records are
incomplete, and—in fact—at various points in the trial, they
objected to reliance on the County’s records on the ground
that they were inconsistent or unreliable. Plaintiffs propose,
alternatively, that statistical sampling could have been used to
ascertain the aggregate amount of damages suffered by the
class. The district court acknowledged that statistical sam-
pling may be an appropriate tool for computing damages in
some cases, but rejected that approach here. We conclude that
the district court’s decision was not an abuse of discretion
given the facts of this case—in particular, the size of the class
and the array of variables related to causation and damages.
See Fed. R. Civ. P. 23(b)(3)(D).8
B. The district court’s exclusion of plaintiffs’ proposed
evidence was either not an abuse of discretion, or it
did not prejudice plaintiffs.
Plaintiffs contend that three of the court’s evidentiary rul-
8
Plaintiffs’ briefs suggest that they seek only nominal damages on
behalf of the class and therefore do not present issues of individual dam-
ages. The remainder of plaintiffs’ argument belies this assertion, however,
as the “aggregated damages” they describe are compensatory—not nomi-
nal.
PIERCE v. COUNTY OF ORANGE 5581
ings are erroneous. First, plaintiffs challenge the district
court’s decision to bar admission of the survey conducted by
plaintiffs’ expert, Dr. Pourat. Second, plaintiffs charge that
the district court abused its discretion in ruling that plaintiffs
could not submit deposition testimony of class members who
were in prisons more than 100 miles from the courthouse.
Third, plaintiffs contend that the district court committed
reversible error when it allowed the County to introduce state-
ments by absent class members.
We review de novo the district court’s construction or inter-
pretation of the Federal Rules of Evidence, including whether
particular evidence falls within the scope of a given rule.
United States v. Durham, 464 F.3d 976, 981 (9th Cir. 2006).
The district court’s ultimate evidentiary ruling to admit or
exclude the evidence is, however, reviewed for abuse of dis-
cretion. See id.; City of Long Beach v. Standard Oil Co., 46
F.3d 929, 936 (9th Cir. 1995). A district court’s decision will
constitute an abuse of discretion if it makes an error of law or
a clear error of fact, but “[r]eversal will not be granted unless
prejudice is shown.” City of Long Beach, 46 F.3d at 936. If
the trial court has erred, we must begin with a presumption of
prejudice, although the “presumption can be rebutted by a
showing that it is more probable than not that the jury would
have reached the same verdict even if the evidence had been
admitted.” Obrey v. Johnson, 400 F.3d 691, 701 (9th Cir.
2005).
1. Plaintiffs’ survey evidence.
Plaintiffs hired Pourat, a senior research scientist at UCLA,
to conduct a survey of County inmates. Pourat designed a sur-
vey questionnaire and trained law students and legal assistants
to administer the questionnaire to detainees. Ultimately, 440
detainees were surveyed about their experiences in the County
jails, providing the basis for Pourat’s analysis. Without
explaining its rationale, the district court refused to admit the
study as direct evidence, but allowed plaintiffs’ two expert
5582 PIERCE v. COUNTY OF ORANGE
witnesses—Dr. Patrick McManimon and Peter Robinson—to
rely on the study in their testimony.
On appeal, the County defends the exclusion of the Pourat
survey on the grounds that it did not meet the standards of
Fed. R. Evid. 807, the residual exception to the hearsay rule
that we have in the past relied on to admit survey evidence,
Prudential Ins. Co. v. Gibraltar Fin. Corp., 694 F.2d 1150,
1156 (9th Cir. 1983), and because it contends the survey evi-
dence was not “trustworthy.” Schering Corp. v Pfizer, Inc.,
189 F.3d 218, 231 (2d Cir. 1999) (noting that trustworthiness
is a requirement for the admission of survey evidence).
[3] We do not need to consider the County’s justification
of the district court’s exclusion of this evidence, however,
because we are persuaded that the exclusion of the survey as
direct evidence did not prejudice plaintiffs in this case. Plain-
tiffs’ experts were permitted to rely upon the Pourat Survey
in formulating their opinions, and to share the data upon
which they relied. McManimon described how the survey was
conducted and noted its results—for example, that 35% of the
detainees surveyed reported that they were given less than fif-
teen minutes per meal on at least one occasion, and that 67%
of that group (in other words, approximately 23% of the sur-
veyed population) reported that this occurred on at least a
weekly basis.
2. Deposition testimony of class members.
[4] Relying on Federal Rule of Evidence 804(a)(5) regard-
ing the unavailability of witnesses, plaintiffs assert that the
district court abused its discretion when it ruled that they
could not submit deposition testimony of class members who
were incarcerated in prisons more than one hundred miles
from the courthouse. “Unavailability” may be found when the
declarant “is absent from the hearing and the proponent of a
statement has been unable to procure the declarant’s atten-
dance . . . by process or other reasonable means.” Fed. R.
PIERCE v. COUNTY OF ORANGE 5583
Evid. 804(a)(5). The district court judge refused to admit the
proposed testimony under Rule 804 because he concluded that
the plaintiffs had not made an adequate attempt to procure the
witnesses’ attendance. He noted that the parties had been
warned about the “necessary administrative steps” to sub-
poena the prisoners, and found that plaintiffs had waited too
long to seek the subpoenas. On appeal, plaintiffs do not con-
test this factual finding, and we therefore conclude that the
district court judge’s determination was not an abuse of dis-
cretion.
3. Statements of absent class members as “admissions of
a party-opponent.”
Plaintiffs contend that the district court erred by admitting
the statements of absent—also referred to as unnamed or
nonnamed—class members as “admissions of a party-
opponent” under Federal Rule of Evidence 801(d)(2)(A). Fol-
lowing the court’s ruling, the County introduced statements
by twenty-four absent members of the class of pretrial detain-
ees. Plaintiffs were then allowed to counter-designate testi-
mony by those detainees under Federal Rule of Evidence 106,
the general rule of completeness.
For an absent member of a Rule 23(b)(2) class to be treated
as a party—and, hence, as a party representative of the class
as a whole—for Rule 801 purposes there must be some mech-
anism to ensure that he or she will represent the interests of
the class. See Fed. R. Civ. P. 23(a)(4) (requiring that “the rep-
resentative parties will fairly and adequately protect the inter-
ests of the class”); In re Mego Fin. Corp. Sec. Litig., 213 F.3d
454, 462 (9th Cir. 2000) (holding, in relevant part, that the
named plaintiffs must “prosecute the action vigorously on
behalf of the class” to satisfy the requirement of adequate rep-
resentation); Restatement (Second) of Judgments § 41(1)(e),
cmt. a (1980) (describing the “party” in a class action as one
who must “protect[ ] the interests” of the unnamed class
members).
5584 PIERCE v. COUNTY OF ORANGE
[5] On July 1, 2004, plaintiffs disclosed the identities of
forty-five inmates they expected to have testify regarding
prison conditions. At least eighteen of the twenty-four state-
ments that the County sought to introduce under Rule
801(d)(2) were taken from detainees on that list. We are satis-
fied that, on the facts of this case, reliance on statements by
detainees who had been disclosed by plaintiffs’ counsel as
potential witnesses adequately protected the class from the
risk of having the class’s interests undermined by unrepresen-
tative class members. The district court did not abuse its dis-
cretion by admitting those statements.9
The remaining statements admitted by the court, and now
challenged by the plaintiffs, were not disclosed to plaintiffs.
We need not decide whether the statements of these detainees
should have been excluded under Rule 801, as we conclude,
upon review of the record as a whole (and in particular the
other eighteen admitted statements), that the admission of
those five statements was not prejudicial. See Sablan v. Dep’t
of Fin. of Com. of N. Mariana Islands, 856 F.2d 1317, 1323
(9th Cir. 1988).
9
Although we conclude that the district court did not abuse it discretion,
in so doing we do not adopt a blanket rule of admissibility for the state-
ments of absent class members pursuant to Fed. R. Evid. 801(d)(2)(A).
Absent class members are considered “parties for some purposes and not
for others.” Devlin v. Scardelletti, 536 U.S. 1, 10 (2002). Here, we are sat-
isfied that there were adequate strictures in place—conditioning the Coun-
ty’s ability to obtain absent class member statements on notice to
plaintiffs’ counsel, disclosure of the nature of the suit, and plaintiffs’
counsel’s presence when the statements were taken—to ensure that the
requirements of Fed. R. Civ. P. 801 were met, while still respecting the
limitations on absent class member discovery inherent in Fed. R. Civ. P.
23.
PIERCE v. COUNTY OF ORANGE 5585
C. The district court did not abuse its discretion by
terminating the Stewart orders absent an explicit
motion by the Pierce defendants.
Plaintiffs contend that the district court did not have the
authority to vacate the Stewart injunction because the defen-
dant failed to make the necessary motion. Plaintiffs further
argue that they were not given adequate notice of the district
court’s intent to consider vacating all of the injunctive orders
in effect under Stewart (including orders pertaining to issues
that had not been raised in Pierce), and that this was a denial
of due process. A district court generally has “broad” discre-
tion to consolidate actions; we review its decision on consoli-
dation under an abuse of discretion standard. Investor’s
Research Co. v. U.S. Dist. Court for Cent. Dist. of Cal., 877
F.2d 777, 777 (9th Cir. 1989) (“broad discretion” to consoli-
date actions pending in the same district); Washington v.
Daley, 173 F.3d 1158, 1169 n.13 (9th Cir. 1999) (court’s
decision on consolidation reviewed for abuse of discretion).
The PLRA “establishes standards for the entry and termina-
tion of prospective relief in civil actions challenging prison
conditions.” Miller v. French, 530 U.S. 327, 331 (2000). The
PLRA both limits the prospective relief a court may order in
such suits, and authorizes the termination of relief that does
not fall within those limits. 18 U.S.C. § 3626(a)-(b). Section
3626(b)(1)(A) of Title 18 provides:
In any civil action with respect to prison conditions
in which prospective relief is ordered, such relief
shall be terminable upon the motion of any party or
intervener . . . (iii) in the case of an order issued on
or before the date of enactment of the Prison Litiga-
tion Reform Act, 2 years after such date of enact-
ment.
Id. § 3626(b)(1)(A). The Stewart orders long pre-dated the
PLRA’s enactment, and more than two years had passed after
5586 PIERCE v. COUNTY OF ORANGE
the enactment when this suit commenced. As such, the relief
was “terminable upon the motion of any party or intervener,”
provided that the orders were not found to fall within the limi-
tation set out in 18 U.S.C. § 3626(b)(3).10 More generally,
under Federal Rule of Civil Procedure 60(b), a district court
may “take cognizance of changed circumstances and relieve
a party from a continuing decree.” Gilmore v. California, 220
F.3d 987, 1007 (9th Cir. 2000). The text of Rule 60(b) pro-
vides that this may happen “[o]n motion and just terms.” Fed.
R. Civ. P. 60(b). In March 2004, approximately eight months
before trial, the district court consolidated Stewart and Pierce,
citing the fact that questions of the continuing legitimacy of
the injunctive orders in Stewart had been raised in various
motions in Pierce. See Fed. R. Civ. P. 42 (giving the district
court authority to consolidate matters involving common
questions of law or fact).11 The court provided the parties with
notice that it would review the status of the existing Stewart
orders and ordered related briefing. The plaintiffs did not
object, and filed a brief addressing the legal bases for all of
the Stewart orders.
Prior to the district court’s decision to vacate the Stewart
orders, the County made two written requests for termination
or modification—first, in its pre-trial brief, and then in its
closing brief after trial. While only the latter was styled a
motion, the former formally requested that “the Stewart
orders either be vacated or modified.”
10
As discussed further infra, 18 U.S.C. § 3626(b)(3) states:
[p]rospective relief shall not terminate if the court makes written
findings based on the record that prospective relief remains nec-
essary to correct a current and ongoing violation of the Federal
right, extends no further than necessary to correct the violation of
the Federal right, and that the prospective relief is narrowly
drawn and the least intrusive means to correct the violation.
11
Plaintiffs acknowledged at a March 5, 2004 status conference that the
County had raised questions about the enforceability of the orders in Stew-
art.
PIERCE v. COUNTY OF ORANGE 5587
[6] Plaintiffs have not challenged the district court’s author-
ity to consolidate Pierce and Stewart or, as the monitoring
court, to review the status of the Stewart orders. Nor do the
plaintiffs suggest any way in which, if accorded earlier notice,
they would have handled matters differently. Plaintiffs were
provided with adequate notice, and so we hold that the district
court had authority to review and, if otherwise appropriate
under § 3626, to modify or to terminate the Stewart orders.
See 18 U.S.C. § 3626(b); Miller, 530 U.S. at 353 (Breyer, J.,
dissenting) (observing that the district court may modify or
terminate relief).12
V. MERITS RULINGS
We turn next to the district court’s merits rulings chal-
lenged on appeal. First, we consider order by order whether
termination of the prospective relief ordered in Stewart was
proper. Second, we consider the Pierce plaintiffs appeal of the
district court’s conclusion that the mealtimes; holding cell
conditions; and access to religious services, the day room, and
exercise provided by the County did not violate plaintiffs’
rights under 42 U.S.C. § 1983.13 Third, we address plaintiffs’
12
In its final disposition the district court, in some instances, referred to
having “vacate[d]” the Stewart orders. In other instances, tracking the lan-
guage of the PLRA more closely, it said that the orders were “unneces-
sary” and “terminable.” See § 3626(b) (orders shall not “terminate” absent
findings that prospective relief remains “necessary”). We read the district
court’s Stewart Final Order as merely terminating prospective relief, not
vacating the Stewart judgment in its entirety. See Inmates of Suffolk
County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir. 1997) (PLRA only pro-
vides for termination of prospective relief, not vacatur of judgments).
13
The district court considered only whether plaintiffs’ Rule 23(b)(2)
equitable relief class was entitled to declaratory relief for these claims.
The court ruled that plaintiffs’ request for injunctive relief under § 1983
was moot. The district court repeatedly acknowledged its authority under
§ 3626 to modify (and thereby expand or diminish) the existing Stewart
injunction as it pertained to the same topics—mealtimes; holding cell con-
ditions; and access to religious services, the day room, and exercise—as
required by the evidence presented. In light of this, we agree that the
court’s dismissal of plaintiffs’ additional and separate request for injunc-
tive relief in the same Orange County jails with regard to the same condi-
tions was not in error.
5588 PIERCE v. COUNTY OF ORANGE
challenge to the district court’s finding of no actionable viola-
tions under § 1983 or state law. Finally, we review the district
court’s findings with respect to the § 1983 claims of physi-
cally disabled detainees raised under the ADA and the equal
protection clause.
A. Standards for termination of prospective relief under
the PLRA.
[7] Under the PLRA, the Stewart injunctive orders should
not have been terminated if, on the record presented, they sat-
isfied the requirements of 18 U.S.C. § 3626(b)(3). The Act
provides that relief shall not terminate if it “remains necessary
to correct a current and ongoing violation of [a] Federal right,
extends no further than necessary to correct the violation of
the Federal right, and . . . is narrowly drawn and the least
intrusive means to correct the violation.” 18 U.S.C.
§ 3626(b)(3).14 Review of an injunction pursuant to the
PLRA’s standards is thus sometimes referred to as a “need-
narrowness-intrusiveness” inquiry. Handberry v. Thompson,
436 F.3d 52, 64 (2d Cir. 2006).
[8] This standard requires an assessment of the
circumstances—both legal and factual—at the time termina-
tion is sought. See Gilmore, 220 F.3d at 1010 (citing Benja-
min v. Jacobsen, 172 F.3d 144, 166 (2d Cir. 1999)). As state
pretrial detainees, plaintiffs are protected by the Fourteenth
Amendment’s Due Process Clause, as well as specific sub-
stantive guarantees of the federal Constitution, such as the
First and Eighth Amendments. Under the Due Process Clause,
detainees have a right against jail conditions or restrictions
14
The district court’s final order in Stewart suggests that the fact that a
particular right has been well-established may militate against a finding
that prospective relief remains necessary and appropriate. This view is
unsupported by § 3626(b)(3). The question, in such a case, is simply
whether there is a current and ongoing violation of the right, and whether
the relief is properly tailored to correct the violation as required by the
statute.
PIERCE v. COUNTY OF ORANGE 5589
that “amount to punishment.” Bell v. Wolfish, 441 U.S. 520,
535-37 (1979). This standard differs significantly from the
standard relevant to convicted prisoners, who may be subject
to punishment so long as it does not violate the Eighth
Amendment’s bar against cruel and unusual punishment. Id.
at 535 n.16.
Absent evidence of express punitive intent, it may be possi-
ble to infer a given restriction’s punitive status “from the
nature of the restriction.” Valdez v. Rosenbaum, 302 F.3d
1039, 1045 (9th Cir. 2002); see Demery v. Arpaio, 378 F.3d
1020, 1030 (9th Cir. 2004) (noting that “to constitute punish-
ment, the harm or disability caused by the government’s
action must either significantly exceed, or be independent of,
the inherent discomforts of confinement”). As the Supreme
Court has explained, the determination of whether a particular
condition or restriction imposes punishment in the constitu-
tional sense will generally turn on whether an alternate pur-
pose is reasonably assignable:
if a particular condition or restriction of pretrial
detention is reasonably related to a legitimate gov-
ernmental objective, it does not without more,
amount to “punishment.” Conversely, if a restriction
or condition is not reasonably related to a legitimate
goal—if it is arbitrary or purposeless—a court per-
missibly may infer that the purpose of the govern-
mental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.
Bell, 441 U.S. at 539 (alterations in original) (quoting Ken-
nedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)); see
id. at 539 n.21 (noting that a de minimis level of imposition
is permissible). Legitimate nonpunitive governmental objec-
tives include “maintaining security and order” and “operating
the [detention facility] in a manageable fashion.” Id. at 540
n.23.
5590 PIERCE v. COUNTY OF ORANGE
The Due Process Clause also protects detainees’ state-
created liberty interests. See Kentucky Dep’t of Corr. v.
Thompson, 490 U.S. 454, 462 (1989). For a state statute or
regulation to create a liberty interest protected by the Consti-
tution, two things must be true:
[f]irst, the law must set forth “ ‘substantive predi-
cates’ to govern official decision making” and, sec-
ond, it must contain “explicitly mandatory
language,” i.e., a specific directive to the decision-
maker that mandates a particular outcome if the sub-
stantive predicates have been met.
Valdez, 302 F.3d at 1044 (quoting Thompson, 490 U.S. at
462-63).15
Finally, pretrial detainees retain other specific constitu-
tional guarantees. See Bell, 441 U.S. at 545. As with the Four-
teenth Amendment’s substantive due process analysis,
however, the detainees’ rights may be subject to restrictions
and limitations based on legitimate government concerns:
“when an institutional restriction infringes a specific constitu-
tional guarantee, such as the First Amendment, the practice
must be evaluated in the light of the central objective of
prison administration, safeguarding institutional security.” Id.
at 547.
Assuming the prospective relief at issue is found to be nec-
essary to correct a current and ongoing constitutional viola-
tion, we must consider whether § 3626(b)(3)’s need-
narrowness-intrusiveness criteria are met. A determination of
whether the relief goes “no further than necessary to correct
the violation” and is “narrowly drawn and the least intrusive
means to correct the violation” will obviously rest upon case-
15
This test—used in Thompson, 490 U.S. at 462-63, and Hewitt v.
Helms, 459 U.S. 460, 471-72 (1983)—remains the proper standard in the
context of pretrial detainees. Valdez, 302 F.3d at 1044 n.3.
PIERCE v. COUNTY OF ORANGE 5591
specific factors—namely, the extent of the current and ongo-
ing constitutional violations. See, e.g., Morales Feliciano v.
Rullan, 378 F.3d 42, 54-55 (1st Cir. 2004); see also Arm-
strong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001)
(“Armstrong ‘01”) (noting, for example, that a “few isolated
violations affecting a narrow range of plaintiffs” would not
provide a basis for system-wide relief).
The parties operated under the agreement that the burden of
proof to terminate the Stewart orders pursuant to § 3626 was
on the County. We proceed under this assumption, without so
holding, because the assignment of the burden of proof is not
dispositive of any issue raised by the parties.16
B. The district court properly terminated eleven of the
fourteen Stewart Orders under review.
For nine of the Stewart orders, the County’s showing of
compliance was not contested. We briefly discuss these in
subsection V.B.1, below, and affirm the district court’s termi-
nation of these orders. Gilmore, 220 F.3d at 1008. We address
two additional Stewart orders (related to seating in holding
cells and adequate meal times) for which the parties did pre-
sent conflicting evidence, in subsection V.B.2. Because our
review of these two orders overlaps considerably with our
review of the claims brought by the plaintiffs in Pierce under
42 U.S.C. § 1983 and California state law, we address plain-
tiffs’ claims as part of our review of the termination of the
orders themselves.
16
We note that there may be some tension in our case law in this area.
Compare Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) with Gil-
more, 220 F.3d at 1008.
5592 PIERCE v. COUNTY OF ORANGE
1. Termination of Stewart Orders related to reading
materials, mattresses and beds, law books, population
caps, sleep, blankets, telephone access, and
communication with jailhouse lawyers.
[9] The district court found that the Stewart order regarding
the availability of reading materials by mail, as well as the
order regarding the availability of mattresses and beds, prop-
erly sought to enforce detainees’ federal rights. The district
court also acknowledged that the Stewart order regarding law-
book access merely required that the County’s policy be
applied to each of its jail facilities. The district court went on
to conclude, however, that these orders were not needed to
correct current and ongoing violations. We agree. The County
presented evidence tending to show its compliance with these
Stewart orders,17 and the plaintiffs did not present any con-
trary evidence related to these orders to contest the County’s
showing.
The district court also acknowledged that population caps
may be an appropriate remedy when overcrowding rises to the
level of constitutional violation, but found no ongoing viola-
tion here. On the record presented we agree.
Finally, the district court terminated the Stewart orders per-
taining to sleeptimes, blanket use, telephone access, commu-
nications with “jailhouse lawyers,” and visitation for inmates
in administrative segregation. In light of the County’s presen-
tation of evidence and the plaintiffs’ failure to contest the
County’s showing, we affirm the district court on the ground
17
Testimony and documentary evidence showed that deputies and other
officials or employees of the Sheriff’s department received substantial
training regarding the Stewart orders, and that department policies had
been modified to reflect the requirements set out in Stewart. In addition,
laminated reference cards were distributed to jail employees, to be carried
in their uniforms, as reminders of the Stewart orders. Sheriff’s department
employees testified, with specificity, to their roles in ensuring compliance
with the Stewart orders.
PIERCE v. COUNTY OF ORANGE 5593
that these orders are not necessary to correct current and
ongoing violations. We therefore do not reach the question of
whether these orders extend no further than necessary and are
narrowly drawn and the least intrusive means to correct the
violation. See § 3626(b)(3).
2. Termination of Stewart Orders related to seating and
meal times.
a. Seating/holding cells.
[10] The Stewart order requires that inmates be provided
with seating while detained in holding cells, or elsewhere,
awaiting transport to or from court. We affirm the district
court’s termination of the order, as we conclude that the evi-
dence presented does not suggest that the continuation of pro-
spective relief was necessary to correct a current and ongoing
constitutional violation.
The record shows that the County actively seeks to avoid
overcrowding of holding cells; maximum capacities are
posted in the cells, and deputies monitor the cells to ensure
compliance. Deputies testified that, on occasion, overcrowd-
ing of a particular holding cell may be necessary for logistical
and security reasons, but—as the district court found—these
instances occur infrequently. Moreover, the record here shows
that the hardship associated with the County’s occasional
overcrowding of the holding cells does not rise to the level of
constitutional violation, given the relatively short periods (i.e.,
matters of hours) detainees spend in the holding cells. There
is no evidence of unsanitary conditions or other concerns that
would elevate such overcrowding to a constitutional violation.
See, e.g., Bell, 441 U.S. at 542; Lareau v. Manson, 651 F.2d
96, 103 (2d Cir. 1981). For these reasons, we also affirm the
district court’s conclusion that plaintiffs failed to establish
that the treatment of detainees in the County’s holding cells
constituted a violation of 42 U.S.C. § 1983.
5594 PIERCE v. COUNTY OF ORANGE
b. Time for meals.
The Stewart order requires that inmates be given “not less
than fifteen minutes within which to complete each meal.”
The district court terminated this Stewart order and rejected
plaintiffs’ § 1983 claim that they had been denied adequate
meal times in violation of a federally protected right.
[11] Turning to plaintiffs’ § 1983 claim, we conclude that
they have not established that the mealtimes allowed by the
County amounted to punishment in the constitutional sense
and thus a deprivation of substantive due process. The only
potential ground for constitutional relief suggested by the
record would be a liberty interest created by a state regulation,
in this case Cal. Code. Regs. Tit. 15, § 1240. See Kentucky
Dep’t of Corr. v Thompson, 490 U.S. 454, 462 (1989). How-
ever, the plaintiffs have not appealed the district court’s pre-
trial ruling that this was not adequately pled as a basis for
§ 1983 relief.
Finally, plaintiffs brought a state law claim for relief based
on California Code of Regulations § 1240. Even assuming,
without deciding, that § 1240 is sufficient to create an action-
able duty under California law, see Cal. Govt. Code § 815.6;
Haggis v. City of Los Angeles, 22 Cal. 4th 490, 498-99 (2000)
(to be actionable under § 815.6, the enactment at issue must:
(1) be obligatory, rather than discretionary or permissive; (2)
must require that a particular action be taken or not taken, and
(3) require that the mandatory duty be designed to prevent the
kind of injury suffered by the plaintiff), in light of the policies
and procedures implemented by the County to facilitate com-
pliance with the Stewart order, we affirm the district court’s
conclusion that the County exercised reasonable diligence.18
18
We offer no view whether the parties may pursue state remedies in
state court for violations of the state constitution, statutes or mandatory
regulations.
PIERCE v. COUNTY OF ORANGE 5595
C. The district court erred by terminating two Stewart
orders mandating minimal access to religious services
and exercise for inmates housed in administrative
segregation.
Three of the remaining fourteen Stewart orders under
review concern conditions for inmates in administrative seg-
regation. As mentioned above, see n.3, supra, administrative
segregation is a classification for inmates with violent tenden-
cies that have been deemed a threat to the jail’s staff or to
other inmates. The Stewart orders provide that inmates classi-
fied as administrative segregation must nonetheless be pro-
vided with limited access to religious services, limited access
to exercise, and limited access to use of a day room. The dis-
trict court terminated all three Stewart orders ensuring such
access, and likewise found that plaintiffs had not proved any
actionable § 1983 claim based on a deprivation of those
rights. As explained below, we conclude that the district
court’s finding that inmates in administrative segregation
were only “sporadically” denied access to religious services
is clearly erroneous. The denials were systematic, and suffi-
ciently so to constitute a violation of § 1983. Likewise, the
record also demonstrates that detainees in administrative seg-
regation were not provided with even the two hours per week
of exercise required under the Stewart order. We are satisfied
that providing inmates only ninety minutes of exercise per
week—less than thirteen minutes per day—does not comport
with constitutional standards, and that such a severe curtail-
ment of the detainees’ ability to exercise evidences its puni-
tive intent and necessitates reinstatement of the Stewart order.
1. Termination of Stewart order related to religious
worship.
The Stewart order requires that inmates in administrative
segregation be allowed one of the following opportunities for
religious worship: attending regularly scheduled religious ser-
vices once a week, making short individual visits to the
5596 PIERCE v. COUNTY OF ORANGE
chapel once each week, or meeting with a bona fide religious
adviser upon request of the inmate or adviser. The order also
provides for the curtailment or elimination of the right if, in
the course of exercising it, the inmate is disruptive or violent.
[12] Under the Constitution, “reasonable opportunities
must be afforded to all prisoners to exercise the religious free-
dom guaranteed by the First and Fourteenth Amendments.”
Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (addressing the
rights of convicted prisoners). However, as with other First
Amendment rights in the inmate context, detainees’ rights
may be limited or retracted if required to “maintain[ ] institu-
tional security and preserv[e] internal order and discipline.”
Bell, 441 U.S. at 549; see, e.g., Freeman v. Arpaio, 125 F.3d
732, 737 (9th Cir. 1997). Restrictions on access to “religious
opportunities”—whether group services, chapel visits, or
meetings with religious advisers—must be found reasonable
in light of four factors: (1) whether there is a “valid, rational
connection” between the regulation and a legitimate govern-
ment interest put forward to justify it; (2) “whether there are
alternative means of exercising the right that remain open to
prison inmates”; (3) whether accommodation of the asserted
constitutional right would have a significant impact on guards
and other inmates; and (4) whether ready alternatives are
absent (bearing on the reasonableness of the regulation). Tur-
ner v. Safley, 482 U.S. 78, 89-90 (1987); see also Beard v.
Banks, 126 S. Ct. 2572 (2006); Mauro v. Arpaio, 188 F.3d
1054, 1058-59 (9th Cir. 1999) (en banc). Further, because we
are dealing with pretrial detainees, to satisfy substantive due
process requirements the restriction or regulation cannot be
intended to serve a punitive interest. Bell, 441 U.S. at 535.19
19
The Religious Land Use and Institutionalized Persons Act of 2000
(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., requires the government to
meet a higher burden of proof than the rational basis standard of Turner.
See Green v. Solano County Jail, 513 F.3d 982 (9th Cir. 2008). Because
the plaintiffs have not brought a RLUIPA claim, we apply only the consti-
tutional analysis and the Turner standard.
PIERCE v. COUNTY OF ORANGE 5597
[13] As the district court observed, under this standard
some courts have allowed restrictions on worship for security
purposes. Perdraza v. Meyer, 919 F.2d 317, 320 (5th Cir.
1990) (restriction on type of service inmate may attend per-
missible where inmate still provided with reasonable opportu-
nities to worship). Denying inmates access to all outlets for
religious worship, however, offers no “alternative means of
exercising the right,” as called for by the second prong of Tur-
ner. Cf. O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)
(concluding that prison rules which prohibited Muslim
inmates from engaging in Friday afternoon prayer services
were reasonable, and relying in part on the fact that the
inmates were allowed to participate in other weekly religious
services and to have “free access” to the prison’s imam).
[14] Accordingly, a detainee’s placement in administrative
segregation does not, standing alone, justify a complete denial
of opportunities to practice religion. See Alston v. DeBruyn,
13 F.3d 1036, 1040 (7th Cir. 1994) (holding that it was
improper for the district court to assume that limits on an
inmate’s access to religious services were justified based on
the inmate’s placement in administrative segregation);
Mawhinney v. Henderson, 542 F.2d 1, 3 (2d Cir. 1976) (hold-
ing that inmates in “punitive segregation and keeplock” could
not be denied participation in chapel services simply on the
basis of their classification; individualized determinations of
the “necessity of their exclusion” were required).
The district court’s final order in Stewart states that there
was “no indication of punishment” or “any ongoing violation”
of detainees’ rights with respect to access to religious ser-
vices. Although the court’s final order in Pierce acknowl-
edges evidence of at least “[o]ccasional instances of
impediments to participation,” the court characterized these
denials as merely “sporadic.” But the record evidences consis-
tent denial of access to the chapel (whether for group services
or individual visits) and to religious advisers to those in
administrative segregation.
5598 PIERCE v. COUNTY OF ORANGE
Both of the plaintiffs’ witnesses that were housed in admin-
istrative segregation, Fermin Valenzuela and Keith Hawkins,
testified that they were routinely denied access to any kind of
religious worship. Valenzuela testified that none of his
requests to meet with his chaplain were granted, and testified
that the verbal explanation he received for the denial was that
inmates “in administrative segregation . . . don’t have it com-
ing.” Likewise, Hawkins testified that when he was classified
in administrative segregation between March 2003 and June
2003, he was “never” allowed to attend chapel. Even the
County’s own witness, Deputy Brian Nissen, testified that he
had “never seen one of our Ad Seg inmates” in chapel.
The County’s evidence was not to the contrary. Although
the County argues on appeal that testimony from three
detainee plaintiffs (detainees Conn, Palmitessa and Robledo)
supported its contention that it provided “regular access to
religious services and clergy at every opportunity,” the record
does not bear out the County’s characterization. Conn—who
was not an administrative segregation inmate—merely testi-
fied that he was permitted to attend chapel and that no Deputy
ever told him that administrative segregation inmates had lim-
ited access to religious services. We are not persuaded that an
inmate’s failure to obtain a voluntary admission of non-
compliance from his jailer somehow constitutes proof of com-
pliance. Similarly, Palmitessa—also not an administrative
segregation detainee—testified that he went to chapel when-
ever it was offered, but that it had not, in fact, been offered
to him for several weeks. Finally, Robledo—another non-
administrative segregation witness—testified on cross-
examination that she was allowed access to religious services,
but as she made clear on re-direct, she had “difficulties” get-
ting access to chapel.20
20
Although the County offers the testimony of these three non-
administrative segregation detainees to support affirmance, it simulta-
neously chastises the plaintiffs for referring to the testimony of several
other non-administrative segregation detainees who testified that they had
PIERCE v. COUNTY OF ORANGE 5599
Nor did the County’s affirmative evidence support the dis-
trict court’s factual finding that the County provides “opportu-
nities for inmates to participate in religious services and
counseling,” at least not as to administrative segregation
detainees. The County relied primarily on the testimony of
two jail personnel—Sergeant Dubsky and Deputy McCulloch
—to support its contention that inmates were provided “regu-
lar access to religious services and clergy at every opportuni-
ty.” Sergeant Dubsky testified that administrative segregation
detainees must fill out a message slip to obtain access to a
chaplain, and that there is no limitation on the number of vis-
its available. But Sergeant Dubsky did not testify that admin-
istrative segregation detainees were actually given such
access. Likewise, Deputy McCulloch merely testified as to the
manner in which chapel is called for non-administrative seg-
regation detainees. He did not establish that chapel was called
weekly, bi-weekly or with any other pattern of regularity.
A custom can be shown or a policy can be inferred from
widespread practices or “evidence of repeated constitutional
violations for which the errant municipal officers were not
discharged or reprimanded.” Gillette v. Delmore, 979 F.2d
1342, 1349 (9th Cir. 1992); see also Nadell v. Las Vegas
Metro. Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001). Plain-
tiffs’ counsel asked the Sheriffs’ department officials who tes-
tified whether deputies were ever disciplined or reprimanded
for Stewart violations. No witness was able to identify any
great difficulty in gaining any access to religious services. For example,
Detainee Ronald Rogers testified that he had “never in over two-and-a-
half years been offered religious services.” Detainee James Sukanich testi-
fied that when housed in the main jail he had not been given access to any
religious services for seven months. Detainee Edward Swanstrom testified
that he received “no response” to his multiple requests for access to reli-
gious services. Although the district court’s finding of “sporadic” denials
is erroneous without consideration of this additional testimony, it nonethe-
less undermines the County’s claim that inmates, in any population,
received regular access to religious services.
5600 PIERCE v. COUNTY OF ORANGE
instance in which disciplinary steps were taken or a reprimand
was issued.
[15] Moreover, the County’s witnesses did not contend, and
its brief on appeal does not suggest, that detainees in adminis-
trative segregation are denied worship opportunities because
of security concerns, or for other legitimate non-punitive rea-
sons. The district court should not have blindly deferred to the
County’s bare invocation of security concerns, when the
County has failed to even establish that there is regular access
to religious services for administrative segregation detainees,
much less that interruptions in such access are on account of
security. Walker v. Sumner, 917 F.2d 382, 386 (9th Cir. 1989)
(“Without requiring some evidence that prison policies are
based on legitimate penological justifications . . . ‘judicial
review of prison policies would not be meaningful.’ ”) (cita-
tion omitted). In sum, the district court erred in denying
declaratory or injunctive relief under § 1983.
[16] Similarly, the Stewart order remains necessary to
ensure that detainees in administrative segregation are not
denied access based on their classification alone. We there-
fore reverse the judgment of the district court with regard to
this component of the Stewart injunction, as the record dem-
onstrates that its enforcement “remains necessary to correct a
current and ongoing violation of [a] Federal right.” 18 U.S.C.
§ 3626(b)(3). We also conclude that the Stewart order, as
presently constituted, extends no further than is necessary and
is the least intrusive means to correct the violation. Id. The
terms of the Stewart injunction require that detainees in
administrative segregation be afforded opportunities for wor-
ship, provided the detainees have not become disruptive or
violent, implicating legitimate security concerns, even though
the injunction does not require that detainees be afforded
access to group religious services. The jail may instead satisfy
the order by allowing individual chapel visits or meetings
with religious advisers. In sum, the order—with its provision
for the curtailment or elimination of detainees’ rights based
PIERCE v. COUNTY OF ORANGE 5601
on security concerns—provides for no more than a minimum
level of ongoing participation in religious activities. Accord-
ingly, we conclude that the injunction is narrowly drawn and
extends no further than necessary to correct the violation of
a Federal right. 18 U.S.C. § 3626(b)(3).
2. Termination of Stewart order related to regular
exercise.
[17] Exercise is one of the basic human necessities pro-
tected by the Eighth Amendment. See LeMaire v. Maass, 12
F.3d 1444, 1457 (9th Cir. 1993) (as amended). Moreover, the
Fourteenth Amendment requires that pretrial detainees not be
denied adequate opportunities for exercise without legitimate
governmental objective. See Bell, 441 U.S. at 538. Determin-
ing what constitutes adequate exercise requires consideration
of “the physical characteristics of the cell and jail and the
average length of stay of the inmates.” Housley v. Dodson, 41
F.3d 597, 599 (10th Cir. 1994). In the Orange County jails,
the average period of pretrial detention is 110 days, with those
accused of being “third strike” offenders spending an average
of 312 days. Even by conservative estimates, detainees in
administrative segregation and protective custody21 spend
twenty-two hours or more in their cells each day.
As the district court noted, other courts have held that
detainees who are held for more than a short time and spend
the bulk of their time inside their cells are ordinarily entitled
to daily exercise, or five to seven hours of exercise per week,
outside their cells. See Campbell v. Cauthron, 623 F.2d 503,
507 (8th Cir. 1980) (holding that pretrial detainees are gener-
ally entitled to one hour of exercise outside their cells daily
if they spend more than sixteen hours in their cells); see also
Housley, 41 F.3d at 599 (“ ‘a failure to provide inmates (con-
fined for more than a very short period . . . ) with the opportu-
nity for at least five hours a week of exercise outside the cell
21
See n.3, supra.
5602 PIERCE v. COUNTY OF ORANGE
raises serious constitutional questions’ ”) (quoting Davenport
v. DeRobertis, 844 F.2d 1310, 1315 (7th Cir. 1988)). And at
least one district court, in a class action brought pursuant to
§ 1983 challenging pre-trial conditions of confinement, has
held that “defendants’ failure to provide each inmate one hour
per day of exercise outside the cells is a constitutionally intol-
erable condition.” Hutchings v. Corum, 501 F. Supp. 1276,
1294 (D. Neb. 1980).
[18] The record shows that pretrial detainees in administra-
tive segregation and other restrictive classifications, such as
protective custody, are typically afforded, at best, only ninety
minutes weekly in a space equipped for exercise.22 Although
we need not hold that there is a specific minimum amount of
weekly exercise that must be afforded to detainees who spend
the bulk of their time inside their cells, we hold that providing
the equivalent of slightly less than thirteen minutes of exer-
cise a day does not give meaningful protection to this basic
human necessity. See Lemaire, 12 F.3d at 1457; Housely, 41
F.3d at 599. We therefore conclude that plaintiffs have estab-
lished a violation of § 1983.
[19] In finding no punitive intent, the district court relied
exclusively on the fact that “a group of detainees congregat-
ing in an open area containing weights and other equipment
raises security concerns.” We agree that the County has con-
siderable discretion to curtail access to exercise based on
security concerns. Bell, 441 U.S. at 539 n.23. Here, however,
the curtailment to ninety minutes weekly for inmates who oth-
22
The County contends that, contrary to the testimony of several
inmates, detainees may also exercise in the day rooms. The County con-
cedes, however, that day rooms are not designed for exercise and that
detainees may not use any of the room’s fixtures (such as bars, chairs,
tables, or wall hooks) for exercise purposes. While inmates’ access to day
rooms, discussed further infra, is a factor affecting our determination of
what constitutes adequate exercise, it does not—given the space con-
straints and absence of any appropriate equipment—constitute an exercise
opportunity.
PIERCE v. COUNTY OF ORANGE 5603
erwise spend the bulk of their time inside their cells reduces
the amount of exercise to a point at which there is no mean-
ingful vindication of the constitutional right to exercise for
this entire category of detainees. The County has provided
nothing more to justify this almost complete denial of exer-
cise than a generalized reference to institutional security con-
cerns. It has made no showing that such a severe restriction
is reasonably related to satisfying those concerns. Compare
Spain v. Procunier, 600 F.2d 189, 192, 199-200 (9th Cir.
1979) (impermissible to completely deny access to outdoor
exercise for a particular category of inmates, even when
inmates within that category were being disciplined for com-
mitting violent acts while in prison) with LeMaire, 12 F.3d at
1458 (upholding denial of exercise privileges for a particular
inmate deemed a “grave security risk” who had previously
attacked corrections officers). Given the severity of the cur-
rent restrictions and their application across an entire category
of detainees, we conclude that ninety minutes of exercise per
week constitutes punishment for purposes of § 1983.
[20] Accordingly, we also determine that the Stewart order,
which requires that inmates in administrative segregation be
permitted exercise at least twice each week for a total of not
less than 2 hours per week, is “necessary to correct a current
and ongoing violation of [a] Federal right.” 18 U.S.C.
§ 3626(b)(3). We likewise conclude that the Stewart order, as
it is currently constituted, is “narrowly drawn and is the least
intrusive means to correct the violation.” Id. The Stewart
order requires considerably less exercise—just two hours a
week—than the one hour a day recognized elsewhere as a
constitutional floor. More importantly, the Stewart order con-
tains a safety-valve that permits the County, in its discretion,
to “curtail or eliminate” exercise rights “in the event such
inmate becomes violent or disruptive in the course of exercis-
ing such rights.” Thus, the existing Stewart order accords the
County sufficient deference in determining whether a particu-
lar inmate poses a risk to security requiring limitations on or
5604 PIERCE v. COUNTY OF ORANGE
revocation of the right. On remand, the district court must
reinstate the Stewart order and enjoin violation under § 1983.
3. Termination of Stewart order related to access to day
room.
The Stewart order requires that inmates be given access to
the day room for two hours daily, but provides for curtailment
or elimination of the right to day room access for security or
disciplinary reasons. Confinement necessarily imposes
restraints on detainees’ freedom of movement and access to
recreation. Nonetheless, such restrictions may “constitute
punishment in the constitutional sense,” and thus violate the
Fourteenth Amendment, if they are not “rationally related to
a legitimate nonpunitive governmental purpose and . . . appear
excessive in relation to that purpose.” Bell, 441 U.S. at 561.
Given the conditions and average duration of confinement in
administrative segregation and similarly restrictive classifica-
tions, failure to provide detainees with the opportunity for
some daily out-of-cell movement raises serious constitutional
questions. See Bell, 441 U.S. at 543 (considering day room
access as a factor that mitigates overcrowding); Lock v. Jen-
kins, 641 F.2d 488, 493-94 (7th Cir. 1981) (finding that the
importance of day room access increases as the length of time
the detainee spends in the cell increases and the size of the
cell decreases).
[21] The record evidence demonstrated that administrative
segregation detainees, were, in fact, given access to the day
room. The restrictions placed on use of the day room—
limiting administrative segregation detainees’ use of the room
to one or two inmates at a time—are reasonably related to
institutional security concerns. For these reasons, we affirm
the district court’s denial of plaintiffs’ claim under 42 U.S.C.
§ 1983, because in this instance the County’s restrictions still
permit access to the day rooms and do not evince any punitive
intent. Accordingly, there is no evidence of a “current and
ongoing violation of a Federal right,” and we therefore also
PIERCE v. COUNTY OF ORANGE 5605
affirm the district court’s termination of this Stewart order. 18
U.S.C. § 3626(b)(3).23
D. The district court erred by finding that the County
was not in violation of the ADA.
Having addressed the portions of this appeal relating to the
Stewart injunction and the claims of the overall Pierce class,
we turn our attention to the rights of the Pierce sub-class of
mobility- and dexterity-impaired pretrial detainees.
Plaintiffs argued at trial that the County was not in compli-
ance with the ADA or California’s co-extensive access
requirements at § 54.1 of the California Civil Code. Plaintiffs
maintained that the County failed to address numerous struc-
tural barriers and, as a result, denied mobility- and dexterity-
impaired detainees access to various features and elements of
their cells and common spaces. They also argued that,
because of their disabilities, they were segregated and denied
access to a variety of the County’s educational, rehabilitative,
and recreation programs, services, and activities for pretrial
detainees. Despite finding that the County was not “in full
ADA compliance,” the district court “decline[d] to declare an
ADA or California Civil Code violation, or order injunctive
relief.” This decision cannot stand. As we explain below, we
23
Plaintiffs advance two related claims based on state law. First, plain-
tiffs argue that § 1053 of Title 15 of the California Code of Regulation
creates a general mandatory duty actionable under § 815.6 of the Califor-
nia Government Code. We disagree. Because of the high degree of discre-
tion left to officials under § 1053, we do not agree that § 1053 satisfies the
standard articulated in Haggis, 22 Cal. 4th at 498. Second, plaintiffs main-
tain that § 1065 of Title 15 creates a duty actionable under § 815.6. During
the relevant time period, § 1065 instructed the jails’ facility administrators
to develop written policies and procedures to provide a minimum of three
hours of exercise or recreation per week. Even assuming § 1065 satisfies
California’s three-pronged test, see Haggis, 22 Cal. 4th at 498, the evi-
dence does not show a lack of reasonable diligence in providing the
detainee population three hours of exercise or day room recreation per
week. We affirm the district court’s denial of these state law claims.
5606 PIERCE v. COUNTY OF ORANGE
reverse in part and remand for further proceedings consistent
with this opinion.
1. Standards for evaluation of the ADA claims.
[22] Pursuant to Title II of the ADA, a “qualified individual
with a disability” cannot, “by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be sub-
jected to discrimination by any such entity.” 42 U.S.C.
§ 12132.24 It is undisputed that Title II applies to the Orange
County jails’ services, programs, and activities for detainees.
See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209-10
(1998); Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th
Cir. 2001). The regulations promulgated under Title II spell
out the obligations of public entities.25 Under the regulations,
a qualified individual with a disability (an individual for
whom reasonable modifications may be required, 42 U.S.C.
§ 12131(2)) must not be excluded from or denied the benefits
of a public entity’s services, programs, or activities because
the entity’s facilities are inaccessible or unusable. See 28
C.F.R. § 35.149.
24
The ADA’s definition of “public entity” includes “any department,
agency, special purpose district, or other instrumentality of a State or
States or local government.” 42 U.S.C. § 12131(1); Lee v. City of Los
Angeles, 250 F.3d 668, 691 (9th Cir. 2001).
The ADA defines a “qualified individual with a disability” to include
anyone with a disability “who, with or without reasonable modifications
to rules, policies, or practices, the removal of architectural, communica-
tion, or transportation barriers, or the provision of auxiliary aids and ser-
vices, meets the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public
entity.” 42 U.S.C. § 12131(2).
25
Congress authorized the Attorney General to promulgate regulations
under the ADA. 42 U.S.C. § 12134(a). The regulations are therefore given
“legislative and hence controlling weight unless they are arbitrary, capri-
cious, or plainly contrary to the statute.” United States v. Morton, 467 U.S.
822, 834 (1984).
PIERCE v. COUNTY OF ORANGE 5607
Generally, public entities must “make reasonable modifica-
tions in policies, practices, or procedures when the modifica-
tions are necessary to avoid discrimination on the basis of
disability, unless the public entity can demonstrate that mak-
ing the modifications would fundamentally alter the nature of
the service, program, or activity.” Id. § 35.130(b)(7); see
McGary v. City of Portland, 386 F.3d 1259, 1265-67 (9th Cir.
2004).
In a subsection titled “existing facilities,” the regulations
provide that a public entity must “operate each service, pro-
gram, and activity so that the service, program, or activity,
when viewed in its entirety, is readily accessible to and usable
by individuals with disabilities.” 28 C.F.R. § 35.150(a). The
regulations, however, note in relevant part that: (1) a public
entity is not necessarily required “to make each of its existing
facilities accessible to and usable by individuals with disabili-
ties,” id. § 35.150(a)(1); and (2) a public entity is not required
“to take any action that it can demonstrate would result in a
fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens,” id.
§ 35.150(a)(3).26
26
Section 35.150(a)(3) further explains:
In those circumstances where personnel of the public entity
believe that the proposed action would fundamentally alter the
service, program, or activity or would result in undue financial
and administrative burdens, a public entity has the burden of
proving that compliance with § 35.150(a) of this part would
result in such alteration or burdens. The decision that compliance
would result in such alteration or burdens must be made by the
head of a public entity or his or her designee after considering all
resources available for use in the funding and operation of the
service, program, or activity, and must be accompanied by a writ-
ten statement of the reasons for reaching that conclusion. If an
action would result in such an alteration or such burdens, a public
entity shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that
individuals with disabilities receive the benefits or services pro-
vided by the public entity.
5608 PIERCE v. COUNTY OF ORANGE
The regulations allow public entities to use a variety of
methods to make existing facilities “readily accessible,”
including the “reassignment of services to accessible build-
ings” and the “alteration of existing facilities and construction
of new facilities.” Id. § 35.150(b)(1). Section 35.150(b)(1)
provides:
A public entity is not required to make structural
changes in existing facilities where other methods
are effective in achieving compliance with this sec-
tion. . . . In choosing among available methods for
meeting the requirements of this section, a public
entity shall give priority to those methods that offer
services, programs, and activities to qualified indi-
viduals with disabilities in the most integrated set-
ting appropriate.
Id.; see also 28 C.F.R. Pt. 35, App. A (stating that under Title
II “the concept of program access will continue to apply with
respect to facilities now in existence, because the cost of
retrofitting existing facilities is often prohibitive”).
To the extent that structural changes are to be made to an
existing facility, the accessibility requirements that apply to
new construction and alterations, set out in 28 C.F.R.
§ 35.151, must be met. 28 C.F.R. § 35.150(b)(1). In addition,
the regulations require that an entity with more than fifty
employees, such as Orange County, develop a “transition
plan” setting forth the steps that must be taken to complete
any planned structural changes. Id. § 35.150(d)(1). Finally,
January 26, 1995, was the deadline for making structural
changes under the regulations. Id. § 35.150(c).
While § 35.150 addresses itself to “existing facilities,”
§ 35.151 concerns “new construction and alterations.” The
regulatory requirements in this section are somewhat more
straightforward. See Parker v. Universidad de Puerto Rico,
225 F.3d 1, 6 & n.7 (1st Cir. 2000) (comparing Title II’s regu-
PIERCE v. COUNTY OF ORANGE 5609
lations governing “existing facilities” and “new construction
and alterations”). Section 35.151 requires that any part of a
public entity’s facility constructed after January 26, 1992
must be designed and constructed “in conformance with the
Uniform Federal Accessibility Standards (‘UFAS’) (41 C.F.R.
Pt. 101-19.6, App. A) or with the Americans with Disabilities
Act Accessibility Guidelines for Buildings and Facilities
(‘ADAAG’) (28 C.F.R. Pt. 36, App. A).” Id. § 35.151(a), (c)
(allowing departures from these standards when it is “clearly
evident that equivalent access” is afforded). And, to the maxi-
mum extent possible, any part of a public entity’s facility
altered after January 26, 1992 “in a manner that affects or
could affect [its] usability” must also be altered in confor-
mance with one of these accessibility standards. Id.
§ 35.151(b), (c).
2. ADA standards in the context of prison
administration.
While the regulations promulgated under Title II provide a
framework for analyzing ADA claims generally, we have held
that inmates’ rights must be analyzed “in light of effective
prison administration.” Gates v. Rowland, 39 F.3d 1439, 1446
(9th Cir. 1994). As the district court observed, we held in
Gates, 39 F.3d at 1447, that inmates’ claims that their rights
under the Rehabilitation Act had been violated were subject
to the so-called “reasonable relation” standard articulated in
Turner. 482 U.S. at 89.27 Under Turner, a regulation that
27
Title II of the ADA was expressly modeled after § 504 of the Rehabil-
itation Act of 1973, Pub. L. No. 93-112, 87 Stat. 355 (codified as amended
in scattered sections of Title 29 of the United States Code), and essentially
extends coverage to state and local government entities that do not receive
federal funds. Compare 29 U.S.C. § 794(a) with 42 U.S.C. §§ 12131,
12132. We have therefore observed that “[t]here is no significant differ-
ence in analysis of the rights and obligations created by the ADA and the
Rehabilitation Act.” Zukle v. Regents of Univ. of California, 166 F.3d
1041, 1045 n.11 (9th Cir. 1999); see Armstrong v. Wilson, 124 F.3d 1019,
1023 (9th Cir. 1997) (noting that “Congress has directed that the ADA and
RA be construed consistently”) (citing 42 U.S.C. § 12134(b)).
5610 PIERCE v. COUNTY OF ORANGE
would impinge on inmates’ constitutional rights is neverthe-
less valid if it is reasonably related to the prison’s legitimate
interests.28 Id. We concluded in Gates that to prevail on a
claim that their statutory rights have been violated, inmates
must show that the challenged prison policy or regulation is
unreasonable. Gates, 39 F.3d at 1447.29
In ADA cases, the plaintiff bears the burden of establishing
the elements of the prima facie case, including—if needed—
“the existence of a reasonable accommodation” that would
enable him to participate in the program, service, or activity
at issue. Zukle, 166 F.3d at 1046. The public entity may then
rebut this by showing that the requested accommodation
would require a fundamental alteration or would produce an
undue burden. See 28 C.F.R. § 35.150(a)(3). As we explained
in Zukle, determining whether a modification or accommoda-
tion is reasonable always requires a fact-specific, context-
specific inquiry. 166 F.3d at 1048. This analysis permits a
28
Turner identified four factors relevant in determining the reasonable-
ness of prison policies, discussed briefly supra Section V.C.1. The first of
these—whether there is a “ ‘valid, rational connection’ between the prison
policy and the legitimate governmental interest put forward to justify it[,]”
482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984))—
“constitutes a sine qua non.” Walker v. Sumner, 917 F.2d 382, 385 (9th
Cir. 1990); see Ashker v. California Dep’t of Corr., 350 F.3d 917, 922 (9th
Cir. 2003) (same); see also Beard, 126 S. Ct. at 2577-79 (considering all
factors but noting “we believe that the first rationale itself satisfies Tur-
ner’s requirements”).
29
Plaintiffs argue that Supreme Court cases since Gates have effectively
overruled the approach taken in that case. They note that the Supreme
Court, in holding that Title II applies to state prisons, reasoned that “[t]he
text of the ADA provides no basis for distinguishing these programs, ser-
vices, and activities from those provided by public entities that are not
prisons.” Yeskey, 524 U.S. at 210. Plaintiffs also note that in Johnson v.
California, 543 U.S. 499 (2005), the Supreme Court refused to analyze
inmates’ claim of racial discrimination under Turner, opting instead for a
strict scrutiny analysis. The appeal before us today, however, does not
require a reexamination of Gates, because reversal is warranted on this
record even when measured against the deferential “reasonable relation”
standard.
PIERCE v. COUNTY OF ORANGE 5611
court to consider, with deference to the expert views of facil-
ity administrators, a detention or correctional facility’s legiti-
mate interests (namely, in “maintaining security and order”
and “operating [an] institution in a manageable fashion,” Bell,
441 U.S. at 540 n.23) when determining whether a given
accommodation is reasonable. Cf. Crawford v. Indiana Dep’t
of Corr., 115 F.3d 481, 487 (7th Cir. 1997).
3. The County has failed to reasonably accommodate
mobility-impaired and dexterity-impaired inmates in
violation of the ADA.
The plaintiff class of mobility- and dexterity-impaired pre-
trial detainees contends that the County’s failure to accommo-
date their disabilities has prevented them from enjoying a
number of the County’s services, programs, and activities.
They argue that the County has not reasonably addressed vari-
ous structural barriers, and maintains unreasonable policies
and practices in violation of the ADA.
a. Physical barriers.
With regard to barriers, the district court found the evi-
dence to show that “the Orange County jails have not yet been
brought into full ADA compliance. In 2000, Orange County
adopted a Transition Plan to move existing facilities toward
ADA compliance. That plan was directed more toward struc-
tural modifications of public and visitor areas than toward
compliance in inmate areas.” The district court went on to
state that “inmate witnesses and plaintiff’s expert, Mr. Robert-
son, identified various specific architectural barriers and fea-
tures that are out of compliance with the ADA.”
These findings are clearly supported by the record. As of
2004, when the case went to trial, the County housed
mobility- and dexterity-impaired pretrial detainees in two of
its five facilities—the Men’s and Women’s Central Jails.
Male inmates with such disabilities were placed in one of
5612 PIERCE v. COUNTY OF ORANGE
three parts of Module O in the Men’s Jail: Sheltered Living,
Ward C, or Ward D. Female inmates with such disabilities
were housed in either Sheltered Living in Module P of the
Women’s Jail or the infirmary. Plaintiffs’ expert witness Peter
Robertson was permitted to tour these areas, and to take pho-
tographs and measurements of the structures and fixtures. He
testified at length regarding his measurements, observations,
and conclusions. Robertson maintained that a host of features
and fixtures—including toilets, sinks, showers, hot water dis-
pensers, telephones, and water fountains—in cells or common
spaces the County referred to as “accessible” did not comply
with federal accessibility standards.30 Since the district court’s
order fails to specify which “architectural barriers and fea-
tures [were] out of compliance with the ADA,” we limit our-
selves to noting—in support of the court’s proper, but vague,
finding—that a number of the deficiencies reported by Rob-
ertson were conceded by Ron Bihner, the project manager
charged with supervising structural modifications at the
County jails pursuant to the Transition Plan, and many others
were not explicitly disputed. Notably, Bihner agreed that the
showers in Wards C and D were not accessible to the
mobility-impaired, conceded that the toilet and sink in the
women’s infirmary day room were inaccessible to individuals
in wheelchairs, and acknowledged that the rooftop exercise
30
Our references to “accessibility”—like those made by the district
court and the parties—are to be construed in terms of the impairments of
the sub-class of mobility- and dexterity-impaired detainees. Issues of
accessibility for those with other impairments—such as loss of hearing or
sight—are not before us.
Robertson examined housing cells which the County asserted were
intended to accommodate individuals with mobility and dexterity disabili-
ties. There was one such cell in Men’s Sheltered Living (an area dedicated
to housing disabled detainees, which consists of eighteen cells, each hous-
ing two to four inmates), three such cells in Women’s Sheltered Living,
and one such cell in the Women’s Infirmary. Men’s Wards C and D are
open dormitory-style medical wards and do not consist of discrete cells.
Robertson also examined day rooms and other common spaces intended
for use by those with mobility and dexterity impairments.
PIERCE v. COUNTY OF ORANGE 5613
and recreation areas afforded to male and female disabled
detainees did not offer accessible bathroom facilities.31 The
County presented no evidence to dispute Robertson’s asser-
tions that rooftop telephones and water fountains were inac-
cessible to those in wheelchairs and that the sinks and toilets
serving the Women’s Central Jail classroom were inaccessi-
ble, as well as facilities in other areas.32
[23] While it is evident that the district court was well-
supported by the record when it observed (albeit without
specificity) that the “existence of barriers” had been shown,
the district court inexplicably made further findings which are
unsupported by and contrary to the record: The court con-
cluded that the plaintiffs were not entitled to relief because
they had not shown that “effective modifications could be
made,” or that “where an architectural shortcoming existed, it
was not made accessible by other appropriate action taken by
a jail employee.” The district court asserted broadly that
where structural corrections had not been made, the County
had shown that “other effective remedies [were] in use.”
31
In the men’s rooftop area, for example, the bathroom facilities can
only be reached via a narrow doorway and stairs. The County’s Transition
Plan did not include any plans to modify any elements or features of the
men’s or women’s rooftop recreation areas.
32
As we discuss further infra, the County asserted that it did not house
mobility- and dexterity-impaired detainees in its other jail facilities—Theo
Lacy, James A. Musick, and the Intake Release Center (“IRC”). The
County acknowledged, however, that disabled detainees are kept in the
IRC’s holding cells and booking cells. Because the County did not permit
Robertson to tour those areas, the only related evidence came from the
statement of a Sheriff’s Department official, Lieutenant Rick Edgmon.
Edgmon claimed that two cells in the booking loop (one female and one
male) had been partially modified. At that time of this statement in July
2003, he noted that accessible sinks had not yet been installed. Neither he
nor other witnesses stated whether, or to what extent, any cells in the “re-
lease section” of the IRC had been modified, as called for by the Transi-
tion Plan.
5614 PIERCE v. COUNTY OF ORANGE
To begin, we agree that plaintiffs were required to show
“ ‘the existence of . . . reasonable accommodation[s]’ ” that
would enable them to make use of the facilities. Zukle, 166
F.3d at 1046 (quoting Barnett v. U.S. Air, Inc., 157 F.3d 744,
749 (9th Cir. 1998)). Any finding that they did not do so is
legal error. Robertson’s testimony included site-specific sug-
gestions of structural, as well as non-structural, accommoda-
tions. He drew upon the minimum standards set out in the
UFAS or the ADAAG for proposed structural changes, such
as the repositioning of a sink or the replacement of controls.
See 28 C.F.R. § 35.150(b)(1) (requiring that structural modifi-
cations be made in accord with the guidelines for new con-
struction, UFAS or ADAAG). Alternative solutions to remedy
some access problems were also offered. For example, Rob-
ertson noted in one instance that an inaccessible water foun-
tain could be remedied by adding a cup dispenser rather than
changing the position of the fountain.
The district court found further that the County was not
required to remedy structural deficiencies because “other
curative methods” provided disabled individuals with the req-
uisite access. We agree, as a matter of law, that where reason-
able alternative methods achieve compliance, structural
changes to existing facilities need not be made. 28 C.F.R.
§ 35.150(b)(1). However, there is no support for the court’s
conclusion that such methods were shown to cure the many
structural deficiencies in this case.
The only deficiencies that were shown to be addressed by
alternate methods were small surface-elevation changes—i.e.,
ridges or curbs—that otherwise posed obstacles to movement
between locations. Robertson observed, for example, that a
five-inch curb obstructed access to the women’s rooftop rec-
reation area. He testified that this could be overcome by hav-
ing a trained deputy guide a wheelchair over the curb. The
record supports the conclusion that deputies, in fact, do this,
PIERCE v. COUNTY OF ORANGE 5615
and plaintiffs are not denied access to the rooftop or other
locations because of these surface irregularities.33
The County did not present evidence, as the district court’s
broad finding asserts, that other deficiencies were remedied
through the assistance of deputies or by “other curative meth-
ods.” Plaintiffs, on the other hand, presented evidence to show
that deficiencies were not remedied. Robertson testified, for
example, that he observed detainees—not deputies—
struggling to lift a fellow wheelchair-bound detainee over a
foot-high retention wall in one of Ward C’s inaccessible
showers. Conn also testified that he was forced to rely on fel-
low inmates for assistance when faced with inaccessible bath-
room facilities.34
The impediment posed by such a barrier highlights the
inadequacy of deputy or other inmate assistance. The County
maintained throughout the trial that the deputies have their
hands full given the ratio of deputies to inmates and the vari-
ous duties incumbent upon the former. Staffing limits make
it unreasonable to expect to address all structural deficiencies
through deputy assistance.
The County argues that the district court’s holding should,
in any event, be affirmed because plaintiffs failed to satisfy
their burden under Turner. We disagree. Even under Turner,
the County was required to proffer some reason for its policy
33
County policies require deputies to transport wheelchair-bound detain-
ees between locations—that is, between their cells and other areas, such
as the day room, rooftop, or chapel. (In other words, deputies push the
wheelchairs, rather than allowing the detainees to propel themselves, as
they do once they have arrived at a given location.)
34
While examining Robertson and Bihner, counsel for the County asked
whether, in certain instances, assistance from deputies or other non-
structural solutions might adequately accommodate individuals with dis-
abilities. We pause to note the obvious—that such questions and answers
may establish that a reasonable accommodation is possible, but do not
show that it is practical or has been implemented.
5616 PIERCE v. COUNTY OF ORANGE
or practice. See Armstrong ‘01, 275 F.3d at 874. The County
did not posit any legitimate rationale for maintaining inacces-
sible bathrooms, sinks, showers, and other fixtures in the
housing areas and commons spaces assigned to mobility- and
dexterity impaired detainees.35 The vague assertion by the
County’s counsel that some accommodations might be costly
cannot be construed as a legitimate basis for failing to comply
with the ADA (whether through structural modifications or
other reasonable methods). See id.; Walker, 917 F.2d at 386.
[24] We conclude that the district court erred in denying
relief because it based its conclusion on clearly erroneous fac-
tual findings. Accordingly, we remand for further proceed-
ings.
b. Integration and access to programs and services.
Plaintiffs also argued that, by virtue of being housed exclu-
sively in the Men’s and Women’s Central Jails, they were
denied access to a variety of programs, activities, and services
for which they would otherwise be eligible. Plaintiffs essen-
tially advanced two arguments: First, they challenged the
County’s policy of segregating disabled detainees, rather than
allowing them to reside, recreate, and consume meals in inte-
grated settings. Second, they argued that, regardless of where
they are housed, the County had not “operate[d] each service,
program, or activity so that the service, program, or activity,
when viewed in its entirety, [was] readily accessible to and
usable by individuals with disabilities,” as required by 28
C.F.R. § 35.150(a).
The district court rejected plaintiffs’ claims. First, the court
concluded that the segregation of disabled detainees was rea-
35
We note the one exception discussed supra. We agree that the Coun-
ty’s policy with regard to small level changes—eschewing structural mod-
ification in favor of another reasonable method of achieving compliance—
was not shown to be unreasonable.
PIERCE v. COUNTY OF ORANGE 5617
sonably related to legitimate interests, and therefore declined
to order mainstreaming. Second, the court found that “the evi-
dence shows that, except for the ‘Best Choice’ Program, the
various inmate programs are also available to disabled
inmates,” and concluded that this was reasonable. The exclu-
sion of disabled inmates from the Best Choice Program, a
drug rehabilitation program, was deemed reasonable in light
of security concerns.
[25] We do not find error in the district court’s ruling
regarding mainstreaming. Sheriff’s Department officials testi-
fied at some length regarding the security concerns related to
housing mobility- and dexterity-impaired detainees with non-
disabled detainees. The district court’s finding that plaintiffs
did not refute this evidence is not clearly erroneous.
[26] The district court’s finding that disabled inmates had
access to all programs, save the Best Choice program, cannot,
however, be squared with the record.36 As we mentioned ear-
lier, as of 2004, disabled detainees with mobility and dexterity
impairments were not housed in the County’s James A. Mus-
ick Facility or Theo Lacy Facility.37 The testimony of Sher-
iff’s Department officials revealed that Theo Lacy and
Musick offered a variety of programs, services, and activities
which were not available to inmates of the Men’s and
36
The district court’s decision speaks only of “inmate programs” and
makes no mention of “services” or “activities” offered by the County jails.
It is impossible to say whether the court considered the full breadth of
plaintiffs’ claims (which included services and activities). We assume, for
purposes of our review, that the court intended to include, and thereby
reject, plaintiffs’ claim as it related to services and activities.
37
According to the County, Musick does not offer accessible in-custody
facilities. (The Transition Plan only provided for modifications to Mus-
ick’s public and visitor areas.) Theo Lacy, which houses male detainees,
was substantially renovated in the late 1990s. County and Sheriff’s
Department officials asserted at trial that a new Sheltered Living module
for men was built, but had not yet been staffed due to budgetary con-
straints.
5618 PIERCE v. COUNTY OF ORANGE
Women’s Central Jails. For example, programs in agriculture,
woodworking, and welding were among the vocational oppor-
tunities available at Musick or Theo Lacy, but not available
at the Central Jail Complex. In addition, detainees at Musick
and Theo Lacy were afforded opportunities to participate in
off-site or community work projects. The recreational oppor-
tunities available at Musick or Theo Lacy—where inmates
had access to a softball field, volleyball courts, pool tables,
and other indoor and outdoor facilities—also exceeded those
provided at the Central Jail Complex.
The Central Jail Complex houses both disabled and non-
disabled detainees. However, non-disabled detainees retain at
least the possibility of access to the programs offered at Mus-
ick and Theo Lacy, while disabled detainees—solely by virtue
of their status as disabled—have no possibility of access to
the superior services offered outside of the Central Jail Com-
plex. The ADA does not require perfect parity among pro-
grams offered by various facilities that are operated by the
same umbrella institution. But an inmate cannot be categori-
cally excluded from a beneficial prison program based on his
or her disability alone. Yeskey, 524 U.S. at 210 (“Modern pris-
ons provide inmates with many recreational ‘activities,’ medi-
cal ‘services,’ and educational and vocational ‘programs,’ all
of which at least theoretically ‘benefit’ the prisoners (and any
of which disabled prisoners could be ‘excluded from partici-
pation in’).”). Moreover, ADA regulations contemplate “reas-
signment of services to accessible buildings,” as a permissible
means of accommodation. 28 C.F.R. § 35.150(b)(1). The
County would not have to make Musick and Theo Lacy phys-
ically or structurally ADA compliant. It might consider, for
example, redistributing some programs available at those two
facilities to make them available at the Central Jail so that
when “viewed in [their] entirety” the County’s programs are
“readily accessible to and usable by individuals with disabili-
ties.” 28 C.F.R. § 35.150(a). But the County may not shunt
PIERCE v. COUNTY OF ORANGE 5619
the disabled into facilities where there is no possibility of
access to those programs.38
While the County need not make all of its existing facilities
accessible to individuals with or without disabilities, it is
expected to provide “program access.” 28 C.F.R. Pt. 35, App.
A. Any type of educational, vocational, rehabilitative, or rec-
reational program, service, or activity offered to nondisabled
detainees should, when viewed in its entirety, be similarly
available to disabled detainees who, with or without reason-
able accommodations, meet the essential eligibility require-
ments to participate. Whether this “program access” standard
may reasonably be met or whether any restriction on access
is reasonably related to a legitimate government objective is
necessarily fact-specific. We also emphasize that the district
court should look at the offerings as a whole and in their
entirety and thus the court is not required to ensure that each
individual program or service offered at Theo Lacy and Mus-
38
There is no clear case authority on this precise point—whether the
ADA permits an umbrella organization to exclude the disabled from par-
ticular facilities with superior programs and services, so long as there is
one accessible facility with inferior programs. But at least one district
court has noted, in the context of school programs, that there is a “discrim-
inatory effect” when disabled students are discouraged from “attempting
to participate in classes and other programs located in inaccessible facili-
ties.” Putnam v. Oakland Unified School Dist., 1995 WL 973734 at *10,
15 A.D.D. 1361 (N.D. Cal. Jun. 9, 1995). There are, of course, security
concerns in a prison system that are not present in a high school system,
but the concerns associated with inequalities between different facilities
inhere in both scenarios. While a court should be “hesitant to second-
guess” a “good faith accessibility plan,” here there is no plan to make any
of the services available at Musick and Theo Lacy accessible to disabled
inmates housed at Central Jail. Id. Thus, while the County has consider-
able discretion under the regulations to determine whether and how it can
extend program accessibility, it cannot simply do nothing. Id. (“For exam-
ple, upon determining that none of its schools was accessible with respect
to all necessary and unique facilities, the District might have decided to
make some of its high school campuses partially accessible, in such a way
as to make all the Districts’ programs accessible at those campuses.”).
5620 PIERCE v. COUNTY OF ORANGE
ick is offered in complete parity with an offering at the Cen-
tral Jail.
[27] The County has offered no explanation or justification,
either in district court or on appeal, for the significant differ-
ences between the vocational and recreational activities avail-
able at Theo Lacy and Musick, and those available to either
able or disabled detainees at the Central Jail. As such, the
County has not raised the defense that a policy of restricting
access to these programs, services, or activities is reasonably
related to a legitimate government objective. See Armstrong
‘01, 275 F.3d at 874. We conclude that the district court erred
when it concluded that disabled inmates had access to “the
various inmate programs,” and we must remand as further
fact-finding is required to determine what relief is appropriate.39
In particular, the district court should examine the feasibility
of offering similar programs at the Central Jail, and the extent
to which the programs offered at Theo Lacy or Musick are
capable of being offered at the Central Jail without eliminat-
ing those programs at Theo Lacy or Musick. There may be
other appropriate remedies that provide disabled inmates
access to programs and services, and the district court should
consider those options as well. Our intention is not to suggest
or cause the termination or diminution of programs or facili-
ties other than the Central Jail, but to have the district court
explore available options on a full evidentiary record.
c. The district court’s unsupported assumption that
the County would “move toward” full compliance
was clearly erroneous.
The district court determined that the County was not in
compliance with the ADA, but took it on faith that the County
39
We do not disturb the district court’s ruling with regard to the Best
Choice Program but do require the district court to determine whether and
how security is a problem and to determine whether other programs at the
Central Jail offer similar or essentially equivalent programs.
PIERCE v. COUNTY OF ORANGE 5621
would “move toward full compliance.” This conclusion is
unwarranted given the County’s track record. The County
adopted its Transition Plan for structural changes in August
2000—eight years after the deadline set by the regulations for
such plans, and five and a half years after the regulations’
deadline for the completion of structural modifications.40 Fur-
thermore, when ultimately adopted, the Plan failed to address
many architectural barriers in common spaces used by dis-
abled detainees (for example, those on the rooftop of the
Men’s and Women’s Jails). Diane DeHaas, the Orange
County ADA Title II Coordinator, testified that the work
under the Transition Plan had been completed, and spoke of
no particular plans to remedy any of the glaring deficiencies.
The County has done even less to ensure that disabled
detainees are given opportunities to benefit from the various
programs, activities, and services offered by the jails. While
Title II regulations require that the County complete a self-
evaluation regarding the availability of programs, activities,
and services, see 28 C.F.R § 35.105(a), DeHaas conceded that
she did not know whether it had been done for the County
jails. Moreover, she admitted that she had no information
about whether disabled detainees could have access to educa-
tional programs or a variety of other services.
In any event, neither the fact that Orange County might
move toward compliance nor the district court’s belief that it
would do so eventually constituted a proper basis for denying
plaintiffs relief. We must remand so that the district court can
engage in further fact-finding, consistent with our opinion, to
determine what relief should be granted. We note that several
years have passed since the trial was held, and, as a result,
40
Further, Ron Bihner testified that the adoption of the Plan was not on
the County’s initiative but rather was prompted by a declaratory relief case
brought in Orange County Superior Court, Blaser v. Orange County, No.
78892.
5622 PIERCE v. COUNTY OF ORANGE
determining what prospective relief is warranted may require
consideration of any significantly changed facts.41
Finally, the district court’s Final Pierce Order did not
address plaintiffs’ claims that they were denied adequate
notice of their rights under the ADA and an appropriate griev-
ance procedure, as required by the regulations. See 28 C.F.R.
§§ 35.106, 35.107. On remand, the district court also should
make findings on these issues.
d. Claims for mental and emotional harms.
Prior to trial the district court granted summary judgment
to Orange County on plaintiffs’ claims for mental and emo-
tional harms. We conclude that decision was in error as it
related to two specific allegations advanced by plaintiff Timo-
thy Conn.
[28] According to plaintiffs’ complaint, Conn alleged that
the County failed to adequately accommodate his disability in
violation of the ADA, and that he suffered physical injuries,
as well as mental and emotional distress, as a result. The dis-
trict court’s March 1, 2004 order held that these alleged inju-
ries were merely de minimis, and therefore precluded by the
PLRA, 42 U.S.C. § 1997e(e), from giving rise to any cogniza-
ble claim under the ADA for compensatory damages. The
PLRA, 42 U.S.C. § 1997e(e), states, “No Federal civil action
may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suf-
fered while in custody without a prior showing of physical
injury.” See Oliver, 289 F.3d at 626-27 (concluding that
§ 1997e(e) requires a “showing of physical injury that need
not be significant but must be more than de minimis.”).
41
Whether or not disabled detainees are now housed in Theo Lacy will
obviously be pertinent to the district court’s inquiry.
PIERCE v. COUNTY OF ORANGE 5623
Conn challenges the district court’s determination, arguing
that § 1997e(e) does not apply to claims under the ADA and
that his injuries were in any case more than de minimis. While
the former argument is unpersuasive in light of the plain lan-
guage of § 1997e(e),42 the latter argument compels our rever-
sal of the district court’s decision with regard to two of
Conn’s allegations.
[29] Conn alleged that during his detention in 2000-2001
he was denied an adequate supply of catheters, and as a result
suffered recurrent bladder infections. He also alleged that he
was not provided a proper mattress given his disability, and
as a result developed bed sores. Neither of these injuries is de
minimis. Both bladder infections and bed sores pose signifi-
cant pain and health risks to paraplegics like Conn.43 Our
court has rejected as overly restrictive the standard for de
minimis injuries espoused by the Northern District of Texas
in Luong v. Hatt, 979 F. Supp. 481 (N.D. Tex, 1997), which
requires “ ‘an observable or diagnosable medical condition
requiring treatment by a medical care professional,’ which
would cause a ‘free world person’ to seek such treatment.”
Oliver, 289 F.3d at 628. We have maintained that if allowing
claims for de minimis injuries requires too little of plaintiffs,
42
Plaintiffs have offered no reasoned basis for carving out an exception
for ADA claims. They point to our holding in Armstrong v. Davis, 318
F.3d 965 (9th Cir. 2003), that § 1997e(d)(3)’s cap on awards of attorneys
fees authorized by 42 U.S.C. § 1988 does not apply to the successful liti-
gation of ADA claims, and maintain that § 1997e(e) is analogous. Section
1997e(e), however, does not include language similar to that which is
found in subsection (d)(3) constraining its application. Moreover, in Arm-
strong we explicitly declined to look to other provisions of the PLRA in
interpreting § 1997e(d)(3). Id. at 974 n.9; see also Cassidy v. Indiana
Dep’t of Corr., 199 F.3d 374, 376 (7th Cir. 2000) (rejecting a similar argu-
ment).
43
The physical injury requirement directs the court to consider the injury
suffered by an individual and not the degree of force used by the state to
inflict the injury. See Oliver, 289 F.3d at 628. Where, as here, the com-
plainant is a paraplegic, particular injuries pose different, and possibly
more substantial, risks than they might to an average prisoner.
5624 PIERCE v. COUNTY OF ORANGE
this standard requires too much. Id. Yet notably, Conn’s
alleged bed sores and bladder infections clear even that strin-
gent standard. Both constitute “ ‘observable or diagnosable
medical conditions’ ” that would lead a person to seek treat-
ment. See id.44 In sum, these claims were improperly dis-
missed, and we remand to the district court for further
proceedings consistent with this opinion.
E. The district court did not err in rejecting plaintiffs’
equal protection claims.
Finally, the disabled plaintiffs argue that the district court
improperly rejected the equal protection claim brought by the
sub-class of mobility- and dexterity-impaired detainees. After
reviewing the district court’s November 2004 ruling de novo,
see Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004), we
affirm the grant of summary judgment.
The district court considered whether plaintiffs could estab-
lish that they were treated differently from how similarly situ-
ated prisoners are treated. This is the first step in a successful
equal protection claim based on disability. See McGowan v.
Maryland, 366 U.S. 420, 425 (1961); Williamson v. Lee Opti-
cal of Oklahoma, Inc., 348 U.S. 483, 490 (1955). “Because
‘the disabled do not constitute a suspect class’ for equal pro-
tection purposes, a governmental policy that purposefully
treats the disabled differently from the non-disabled need only
be ‘rationally related to legitimate legislative goals’ to pass
44
On appeal, the County urges us to affirm the district court on other
grounds. The County argues that, even if Conn’s alleged injuries were not
de minimis, his claims would not have been actionable under the ADA.
We disagree. Providing inmates with appropriate and adequate bedding
and bathroom facilities are “services” of the jail. The fact that Conn’s
required “bathroom facilities” included catheters does not change the anal-
ysis. The jail was required to provide him with an adequate and appropri-
ate means of relieving himself. There is still an issue as to whether he was
provided adequate toilet facilities because the expert, Robertson, testified
that the grab bar is still not properly positioned.
PIERCE v. COUNTY OF ORANGE 5625
constitutional muster.” Lee, 250 F.3d at 687 (quoting Does 1-
5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996)). However,
the court’s assertion that “disabled and nondisabled detainees
are not similarly situated for equal-protection purposes” is an
overstatement. Disabled and nondisabled detainees may be
similarly situated in some instances. See, e.g., More v. Far-
rier, 984 F.2d 269, 270-71 (8th Cir. 1993) (finding that
wheelchair-bound inmates and nondisabled inmates were
equally capable of watching television without assistance, and
therefore were similarly situated with regard to the installation
of cable television); see also City of Cleburne v. Cleburne
Living Ctr., 473 U.S. 432, 446 (1985) (“The State may not
rely on a classification whose relationship to an asserted goal
is so attenuated as to render the distinction arbitrary or irratio-
nal.”).
[30] Nonetheless, we conclude that the district court’s hold-
ing was proper, given the case presented by the plaintiffs.
Plaintiffs’ allegations in support of their equal protection
claim did not show that they were treated differently from
similarly situated prisoners. For example, although plaintiffs
alleged that paraplegic and quadriplegic detainees were kept
in holding cells without accessible toilets and sinks, they did
not allege that the County accommodated the special needs of
any other group with regard to toilet or sink access. While
these allegations implicate the County’s ADA obligations,
they do not, without more, implicate equal protection con-
cerns.
VI. CONCLUSION
We affirm all of the district court’s pre-trial management
and evidentiary rulings challenged on appeal. We conclude
that the district court did not abuse its discretion in consolidat-
ing the Pierce action with the Stewart decree proceeding. We
further hold in respect to the trial that the district court did not
violate the Pierce plaintiffs’ due process rights by limiting the
5626 PIERCE v. COUNTY OF ORANGE
length of the trial, nor do we find reversible error in its evi-
dentiary rulings.
As to the claim that the district court lacked authority on its
own to terminate the orders in the Stewart decree, we con-
clude that the County, in effect, moved for the termination.
The parties consented to the consolidation and briefed the
issues relating to the continuing viability of orders in the
Stewart decree. Accordingly, we hold that the district court
had the requisite authority.
On the merits, of the fourteen Stewart orders under review,
we concur in the termination of all but two of those orders,
and grant plaintiffs corresponding injunctive relief under
§ 1983 related to those two orders. We grant relief under
§ 1983 for the violation of the rights of inmates held in
administrative segregation to access to religious services and
hold that they are entitled to injunctive relief. We hold further
that the Stewart order on the provision of religious services
may not be terminated. We grant relief under § 1983 to
inmates in administrative segregation for violation of their
right to constitutionally protected exercise and hold that they
are entitled to injunctive relief. We hold further that the Stew-
art order requiring exercise for inmates in administrative seg-
regation, subject to that order’s safety-valve provision
permitting the County to curtail or eliminate exercise for
inmates that become violent or disruptive, may not be termi-
nated.
As to the claims of disabled inmates, although we hold
there is no equal protection violation inherent in the disparate
treatment of those detainees, we conclude that the County has
violated the ADA. Accordingly, we grant relief to disabled
prisoners on their ADA claims as follows: (a) The district
court must conduct further fact finding on the current state of
physical barriers to adequate access to bathrooms, showers,
exercise areas, day rooms, dining rooms, cells and all other
areas to which disabled persons should have access and order
PIERCE v. COUNTY OF ORANGE 5627
remedial remedies as required; (b) The district court must
conduct further fact finding as to the programs and activities
disabled persons currently have access to and order such
remedial measures as required to make the County’s provision
of programs and services, when viewed in their entirety,
accessible to mobility- and dexterity-impaired inmates.
Finally, we conclude that Conn suffered physical injuries
that were not de minimis as a result of inadequacies in jail
facilities. The district court thus erred in dismissing his claims
of mental and emotional harms. We remand those claims for
further proceedings.
AFFIRMED IN PART, REVERSED IN PART,
REMANDED.
5628 PIERCE v. COUNTY OF ORANGE
APPENDIX A (the Stewart Orders)
The following Stewart orders are at issue in this appeal:
Reading Materials Via Mail
Inmates will be permitted to receive through the mail
any newspapers, magazines or paperback books that
may lawfully be transmitted through the United
States Postal System, subject to reasonable withhold-
ing for contraband and security purposes. Inmates
may receive hard cover books upon prior request and
a showing of particularized need.
Mattresses and Beds
Every prisoner kept overnight in the jail will be
accorded a mattress and bed or bunk upon which to
sleep. This Order shall not preclude defendants from
permitting inmates to be housed with full bedding
but without a bunk, for one night only if, in defen-
dants’ judgment, said inmate or inmates require
more secure housing than is provided in the available
areas and the appropriate housing does not have a
sufficient number of bunks. This Order shall also not
apply in the event of an emergency causing a sudden
and unusual intake of prisoners, in which case full
bedding shall be provided and defendants will exer-
cise their best efforts to provide bunks for all
inmates as soon as possible.
Law Books
The rights of inmates to obtain law books [through
the process established by jail authorities] shall
apply to each facility of the jail.
Population Cap
PIERCE v. COUNTY OF ORANGE 5629
Beginning 10 days after filing of this Order, the
Sheriff of Orange County will not receive an inmate
in the Central Jail any person to whom he cannot
(and does not) provide a bed within twenty-four
hours after arrival. Beginning 10 days after filing of
this Order, no more than 90 inmates shall be incar-
cerated in the 8 respective dormitories into which the
3-tier bunks have been installed. . . . [I]n the Main
Men’s Jail in Santa Ana, California, there will be a
population capacity of 1296 inmates assigned to
housing. Such housing shall be defined as only the
third and fourth floor general population modules on
the Main Men’s Jail in Santa Ana, California.
Sleep
The defendant jail authorities are ordered to accord
to each inmate the opportunity for eight hours unin-
terrupted sleep on the night before and the night after
each court appearance.
Blankets
Whenever inmates in their cells may properly be at
ease on their beds, they will be permitted to cover
themselves with blankets provided that sufficient
anatomy is exposed to establish the presence of a
person.
Telephone Access
The defendant jail authorities shall cause to be
installed no fewer than sixteen telephones (in addi-
tion to those in operation on January 1978) in loca-
tions that the defendants shall determine to be most
reasonably accessible to the inmates. These tele-
phones, and all other telephones installed for
inmates’ use, shall be made available to the inmates
5630 PIERCE v. COUNTY OF ORANGE
for outgoing calls at reasonable times upon request,
subject to priorities of emergency and rotation. Such
telephone availability will be accorded inmates in
administrative segregation and in medical isolation.
Interjail Communication with “Jailhouse Lawyers”
The Sheriff shall furnish envelopes for the purported
valid purpose [of inmates’ interjail communications
with their fellow inmate “jailhouse lawyers”]; . . .
may inspect the envelope and its contents; [and]
shall promptly deliver the envelope to the addressee
unless some sinister purpose is disclosed.
Seating/Holding Cells
The defendant jail authorities will provide a place,
other than the floor, for each inmate to sit while
being detained in a holding cell, or elsewhere, before
leaving for court or following return from court.
Mealtime
The defendant jail authorities are ordered to allow
inmates not less than fifteen minutes within which to
complete each meal.
Administrative Segregation
Nothing in this paragraph shall interfere with the
authority of the defendants to curtail or eliminate the
rights herein accorded an inmate in administrative
segregation in the event such inmate becomes vio-
lent or disruptive in the course of exercising such
rights.
Inmates in administrative segregation will be permit-
ted:
PIERCE v. COUNTY OF ORANGE 5631
Religious Services
To attend regularly scheduled religious ser-
vices of their own selection once each week
or, alternatively, to make individual visits
to the chapel once each week for not more
than twenty minutes, or at defendants’
option, . . . to meet with a bona fide minis-
ter, priest, rabbi, or other similar religious
adviser at any time upon request of either
the inmate or the religious adviser.
Day room
Daily use of a day room for not less than 2
hours.
Exercise
Rooftop exercise and recreation at least
twice each week for a total of not less than
2 hours per week.
Visitors
Will be permitted to receive visitors not
less than twice each week. Such visits will
take place at the regular visitors’ facility or
at such other place as the defendants shall
determine.