Todd Ashker v. Gavin Newsom

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

TODD LEWIS ASHKER; DANNY Nos. 21-15839
TROXELL; GEORGE RUIZ; 22-15345
JEFFREY ANTHONY FRANKLIN;
GEORGE FRANCO; GABRIEL D.C. No. 4:09-
RALPH REYES; RICHARD K. cv-05796-CW
JOHNSON; PAUL A. REDD, Jr.;
LUIS ESQUIVEL; RONNIE N.
DEWBERRY, OPINION

Plaintiffs-Appellees,

v.

GAVIN NEWSOM, Governor of the
State of California; MATTHEW
CATE; ANTHONY CHAUS, Chief,
Office of Correctional Safety, CDCR;
GREG LEWIS, Warden,

Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding

Argued and Submitted May 18, 2023
SD Carter & Keep U.S. Courthouse
2 ASHKER V. NEWSOM

Filed August 24, 2023

Before: J. Clifford Wallace and Ryan D. Nelson, Circuit
Judges, and James S. Gwin, * District Judge.

Opinion by Judge R. Nelson;
Concurrence by Judge R. Nelson

SUMMARY **

Prisoner Civil Rights

The panel (1) reversed the district court’s order granting
inmates a twelve-month extension of a 2015 settlement
agreement in which the State of California agreed to stop
housing inmates in solitary confinement for long-term or
indefinite periods based on gang affiliation; and (2) vacated
on jurisdictional grounds the district court’s order granting
inmates a second twelve-month extension of the settlement
agreement, and dismissed the appeal from that order as
moot.
Pursuant to the 2015 settlement agreement, the
California Department of Corrections and Rehabilitation and
state officials (collectively “CDCR”) agreed to implement
various reforms. The inmates’ counsel would monitor
compliance for twenty-four months and could seek a twelve-

*
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ASHKER V. NEWSOM 3

month extension if the inmates demonstrated a continuing
constitutional violation that was either alleged in their
complaint or resulted from the settlement agreement’s
reforms.
The panel reversed the district court’s order granting the
first twelve-month extension of the settlement
agreement. First, the panel held that there was no basis for
extending the agreement based on the inmates’ claim that the
CDCR regularly mischaracterizes the confidential
information used in disciplinary hearings and fails to verify
the reliability of that information. The claim was not alleged
in the inmates’ complaint, CDCR’s alleged misuse of
confidential information was not caused by the agreement’s
reforms, and plaintiffs failed to demonstrate current and
ongoing systemic Fourteenth Amendment due process
violations arising from CDCR’s confidential information
disclosures and reliability determinations.
Next, the panel held that there was no basis for extending
the agreement based on the inmates’ claim that CDCR
unconstitutionally validates inmates as gang affiliates and
fails to tell the parole board that old gang validations are
flawed or unreliable. The claim was not included in, or
sufficiently related to, the complaint. Moreover, even if the
prior validation process and resulting validations were
deficient, an extension was not justified because CDCR had
no reason to doubt the reliability of the validations and did
not misrepresent or omit information to the parole board
deliberately or with reckless disregard for the truth.
Finally, the panel held that there was no basis for
extending the agreement based on the inmates’ claim that
CDCR violates due process by placing inmates with safety
concerns in the Restrictive Custody General Population Unit
4 ASHKER V. NEWSOM

(“RCGP”). The inmates do not have a liberty interest in
avoiding RCGP placement, which does not impose an
atypical and significant hardship in relation to the ordinary
incidents of prison life. Moreover, CDCR employed
constitutionally sufficient procedural protections in effecting
the placements.
Because the first twelve-month extension of the
settlement agreement was improper, the district court’s
jurisdiction over the matter terminated when the agreement’s
initial twenty-four-month monitoring period ended. The
district court therefore lacked jurisdiction to order the second
twelve-month extension of the settlement agreement. The
panel vacated the district court’s second extension order and
dismissed the appeal from that order as moot.
Concurring, Judge R. Nelson, joined by Judge Gwin,
noted that this court has not definitively resolved what the
proper baseline is for measuring what constitutes an atypical
and significant hardship in evaluating whether inmates have
a liberty interest in avoiding certain conditions of
confinement. In his view, the conditions of administrative
segregation or protective custody are the proper baseline
comparators when determining whether a challenged prison
condition is atypical and significant.

COUNSEL

Sarah M. Brattin (argued), Deputy Attorney General;
Monica N. Anderson, Senior Assistant Attorney General;
Rob Bonta, California Attorney General; California
Attorney General’s Office, Sacramento, California; Jeffrey
T. Fisher, and Neah Huynh, Supervising Deputy Attorneys
 ASHKER V. NEWSOM 5

General; Cassandra J. Shryock (argued), Deputy Attorney
General; California Attorney General’s Office, San
Francisco, California; for Defendants-Appellants.
Jules Lobel (argued), Pittsburgh, Pennsylvania; Carmen E.
Bremer (argued), Bremer Law Group PLLC, Seattle,
Washington; Rachel A. Meeropol, American Civil Liberties
Union, Criminal Law Reform Project, New York, New
York; Samuel Miller, Center for Constitutional Rights, New
York, New York; Charles F.A. Carbone, Law Offices of
Charles Carbone, San Francisco, California; Matthew D.
Strugar, Law Office of Matthew Strugar, Los Angeles,
California; Anne M. Cappella, Weil Gotshal & Manges LLP,
Redwood Shores, California; Anne Butterfield Weills,
Siegel Yee & Brunner, Oakland, California; Caitlin Sandley,
Center for Constitutional Rights, Birmingham, Alabama;
Baher Azmy, Center for Constitutional Rights, New York,
New York; for Plaintiffs-Appellees.
Donald Specter, Margot Mendelson, and Patrick Booth,
Prison Law Office, Berkeley, California, for Amici Curiae
Former Corrections Officials.
Paula Mitchell, The Project for the Innocent at Loyola Law
School, Loyola Law School, Los Angeles, California; Linda
Starr, The Northern California Innocence Project, Santa
Clara University School of Law, Santa Clara, California;
Anton Robinson and Faith Barksdale, The Innocence Project
Inc., New York, New York; Alexander Simpson, The
California Innocence Project, California Western School of
Law, San Diego, California; for Amici Curiae The California
Innocence Project, The Innocence Project, The Northern
California Innocence Project, and The Project for the
Innocent at Loyola Law School.
6 ASHKER V. NEWSOM

OPINION

R. NELSON, Circuit Judge:

A settlement agreement generally ends a legal dispute.
Here, it was just the beginning. In August 2015, the State of
California settled a dispute with a plaintiff class of inmates
over alleged constitutional violations. Eight years later, the
dispute continues.
In settlement, the State agreed to stop housing inmates in
solitary confinement for long-term or indefinite periods
based on gang affiliation. The inmates’ counsel would
monitor the state’s compliance for two years. The settlement
agreement and monitoring period could be extended for
twelve months if the inmates demonstrated continuing
constitutional violations that were either alleged in their
complaint or resulted from the agreement’s reforms.
The inmates twice successfully extended the settlement
agreement before the district court. We are tasked with
determining whether the settlement agreement was properly
extended based on the alleged constitutional violations. For
the reasons below, we reverse in part, vacate in part, and
dismiss in part the district court’s extensions of the
settlement agreement.
I
Nearly fourteen years ago, California inmates Todd
Ashker and Danny Troxell filed a pro se action challenging
their conditions of confinement in the Pelican Bay solitary
housing facility. They ultimately secured counsel and
converted their action into a putative class action with other
long-term inmates incarcerated in Security Housing Units
(“SHU”) and living in similar conditions. The plaintiff class
 ASHKER V. NEWSOM 7

of California inmates (“Inmates”) sued the California
Department of Corrections and Rehabilitation, the Governor
of California, and other state correctional officials
(collectively, “CDCR”). The Inmates alleged violations of
the Eighth Amendment and the Fourteenth Amendment Due
Process Clause based on CDCR’s practice of housing
inmates in SHU based solely on “gang validation”—the
prison’s determination that an inmate is affiliated with a
prison gang.
The parties ultimately settled the action in a written
settlement agreement (“Settlement Agreement”). Under the
Settlement Agreement, CDCR agreed to implement various
reforms within Pelican Bay and other CDCR SHU facilities.
Those reforms were chiefly intended to end the practice of
SHU placement based on gang validation alone, eliminate
indeterminate SHU sentences, reevaluate the placement of
inmates currently serving indeterminate SHU sentences
based on gang validation, and implement related reforms.
A
Several of the Settlement Agreement’s reforms are
relevant to this appeal. For instance, rather than place
inmates in SHU based on gang validation status alone, an
inmate can now be housed there only if found guilty of a
SHU-eligible offense in a disciplinary hearing. The
Settlement Agreement also states that CDCR must continue
adhering to existing state regulations about the use of
confidential information in disciplinary proceedings and
train staff who use that information. And CDCR was
required to produce documents relating to determinations
about whether class members were guilty of SHU-eligible
offenses, including confidential information.
8 ASHKER V. NEWSOM

The Settlement Agreement also created the Restrictive
Custody General Population Unit (“RCGP”), designed to
house inmates released from SHU under the Settlement
Agreement who face threats to their safety. The RCGP is
designed to increase social interaction, including educational
opportunities, out-of-cell time in small group yards,
religious services, job assignments, leisure time activity
groups, and contact visits from family members—all
without the use of mechanical restraints.
CDCR must also regularly review inmates’ RCGP
placement. The Institution Classification Committee
(“ICC”) reviews the placement of inmates every 180 days.
If the ICC determines that an inmate no longer faces a threat
to his safety, it refers the inmate to the Departmental Review
Board (“DRB”) for review. In the DRB hearing, an inmate
is aided by a staff assistant in presenting his case.
The parties also agreed that the Inmates’ counsel (under
the district court’s supervision) would monitor CDCR’s
compliance with the Settlement Agreement for twenty-four
months. During that time, CDCR had to produce certain
documents, and the Inmates’ counsel collected attorney’s
fees from CDCR for monitoring and enforcing CDCR’s
compliance. The Inmates can extend the Settlement
Agreement for twelve months if they establish by a
preponderance of the evidence a “current and ongoing
systemic” constitutional violation “as alleged in” either the
Inmates’ Second Amended Complaint or Supplemental
Complaint (collectively, the “Complaint”) or “as a result of
CDCR’s reforms to its Step Down Program or the SHU
 ASHKER V. NEWSOM 9

policies contemplated by this Agreement.” 1 The Settlement
Agreement provides that if the Inmates fail to make this
showing, the “Agreement and the Court’s jurisdiction over
this matter shall automatically terminate, and the case shall
be dismissed.”
B
The district court approved the Settlement Agreement,
and the twenty-four-month monitoring period commenced.
Once the monitoring period concluded, the Inmates invoked
the extension provision based on three alleged violations of
the Fourteenth Amendment Due Process Clause. The
magistrate judge recommended granting the Inmates’
extension motion, relying on two of the alleged violations.2
Considering the magistrate judge’s recommendation, the
district court granted the motion but relied on all three of the
Inmates’ alleged due process violations. The district court
also permitted the Inmates to move for a second extension of
the Settlement Agreement. CDCR appealed.
After the first twelve-month extension, the Inmates
sought a second extension of the monitoring period based on
nearly identical allegations of due process violations. This

1
The “Step Down Program” is an incentive-based, multi-step process
designed to afford validated inmates a way to transfer into the general
population.
2
The magistrate judge initially granted the motion outright. We held
that the magistrate judge’s order was not final and dismissed the appeal,
allowing the district court on remand to “constru[e] the magistrate
judge’s extension order ‘as a report and recommendation and afford the
parties reasonable time to file objections.’” Ashker v. Newsom, 968 F.3d
975, 985 (9th Cir. 2020) (Ashker I) (quoting Allen v. Meyer, 755 F.3d
866, 869 (9th Cir. 2014)). This appeal follows the district court’s order
on remand.
10 ASHKER V. NEWSOM

time, the magistrate judge recommended denying the
motion. But the district court disagreed and granted the
second extension as well. CDCR again appealed.
The two appeals challenging the district court’s
extension orders were consolidated for argument. We
address each appeal below.
II
We have subject-matter jurisdiction over district courts’
final orders under 28 U.S.C. § 1291. We review the district
court’s enforcement of a settlement agreement for abuse of
discretion, Parsons v. Ryan, 949 F.3d 443, 453 (9th Cir.
2020), but we review the interpretation of a settlement
agreement de novo, Ashker v. Newsom, 968 F.3d 939, 944
(9th Cir. 2020) (Ashker II). “We defer to any factual findings
made by the district court in interpreting the settlement
agreement unless they are clearly erroneous.” Parsons, 949
F.3d at 453 (quoting City of Emeryville v. Robinson, 621
F.3d 1251, 1261 (9th Cir. 2010)) (alteration adopted).
III
We first address CDCR’s appeal of the district court’s
first extension order. Under paragraph 41 of the Settlement
Agreement, the Inmates must satisfy two requirements for
an extension. They must demonstrate by a preponderance of
the evidence (1) a current and ongoing systemic
constitutional violation (2) either alleged in the Complaint or
resulting from the Settlement Agreement’s reforms to its
Step Down Program or SHU policies. 3

3
Paragraph 41 of the Settlement Agreement reads:
Plaintiffs shall have thirty days after the end of the
twenty-four-month period to seek an extension, not to
 ASHKER V. NEWSOM 11

The Inmates raise three claims, each independently
sufficient to extend the Settlement Agreement if successful.
The “Confidential Information Claim” alleges that CDCR
regularly mischaracterized the confidential information used
in disciplinary hearings, and failed to verify the reliability of
that information. The “Parole Claim” alleges that CDCR
unconstitutionally validated inmates as gang affiliates and
failed to tell the parole board that old gang validations were
constitutionally suspect. The “RCGP Claim” alleges that
CDCR’s notice and periodic reviews provided inadequate
due process for inmates placed in the RCGP. We must first
determine whether each claim is alleged in the Complaint or
results from the Settlement Agreement’s SHU or Step Down
Program reforms. Next, because all three claims allege
violations of the Fourteenth Amendment Due Process

exceed twelve months, of this Agreement and the
Court’s jurisdiction over this matter by presenting
evidence that demonstrates by a preponderance of the
evidence that current and ongoing systemic violations
of the Eighth Amendment or the Due Process Clause
of the Fourteenth Amendment of the United States
Constitution exist as alleged in Plaintiffs’ Second
Amended Complaint or Supplemental Complaint or as
a result of CDCR’s reforms to its Step Down Program
or the SHU policies contemplated by this Agreement.
Defendants shall have an opportunity to respond to
any such evidence presented to the Court and to
present their own evidence. If Plaintiffs do not file a
motion to extend court jurisdiction within the period
noted above, or if the evidence presented fails to
satisfy their burden of proof, this Agreement and the
Court’s jurisdiction over this matter shall
automatically terminate, and the case shall be
dismissed.
12 ASHKER V. NEWSOM

Clause, we must determine whether each claim alleges an
ongoing and systemic due process violation.
A
We begin with the Inmates’ Confidential Information
Claim. When prison officials learn information about an
inmate from a confidential source, under CDCR regulations,
that information is documented in a confidential
memorandum not disclosed to the inmate. Cal. Code Regs.
tit. 15 § 3321; Ashker v. Newsom, No. 09-cv-05796 CW,
2021 WL 5316414, *16 (N.D. Cal. Apr. 9, 2021) (Ashker
III). If that confidential information is subsequently used in
a disciplinary proceeding, prison officials provide the inmate
with a confidential disclosure form, which summarizes the
information without revealing anything sensitive or
confidential, such as the informant’s identity. Cal. Code
Regs. tit. 15 § 3321; Ashker III, 2021 WL 5316414, at *16.
The Inmates argue that CDCR violates inmates’ due
process rights by misrepresenting the evidence in
confidential disclosure forms as more inculpatory and by
failing to verify the confidential information’s reliability.
The district court ruled that the Confidential Information
Claim resulted from the Settlement Agreement’s SHU or
Step Down Program reforms, and is thus a proper basis for
extension. Ashker III, 2021 WL 5316414, at *14. The
district court then determined that CDCR systemically
denies inmates due process. Id. at *19–20. We disagree with
the district court on both counts.
1
We interpret the Settlement Agreement de novo to
determine whether it authorizes extension based on the
Confidential Information Claim. See Ashker II, 968 F.3d at
 ASHKER V. NEWSOM 13

944. In doing so we apply state law—here, the law of
California as provided in the Settlement Agreement. See
Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d
1083, 1089 (9th Cir. 2015).
In California, contract law applies to settlement
agreements. Ashker II, 968 F.3d at 944. “The fundamental
goal of contractual interpretation is to give effect to the
mutual intention of the parties.” California v. Continental
Ins., 281 P.3d 1000, 1004 (Cal. 2012) (citations omitted).
“Such intent is to be inferred, if possible, solely from the
written provisions of the contract.” Id. (citations omitted).
“The clear and explicit meaning of these provisions,
interpreted in their ordinary and popular sense, unless used
by the parties in a technical sense or a special meaning is
given to them by usage, controls judicial interpretation.” Id.
(cleaned up).
The Inmates contend that the Confidential Information
Claim falls within the extension provision both because it is
alleged in the Complaint and because it results from CDCR’s
reforms to its Step Down Program or SHU policies. We
disagree.
First, the Inmates’ Complaint does not allege the same
due process violation as the Confidential Information Claim.
The Inmates mainly rely on paragraph 202 of the second
amended complaint, which alleges that CDCR is

violating plaintiffs’ due process rights by
retaining plaintiffs and the class in conditions
that amount to an atypical and significant
hardship without legitimate penological
interest, as this detention occurs without
reliable evidence that plaintiffs and the class
14 ASHKER V. NEWSOM

are committing any acts on behalf of a prison
gang and are thus active gang members.

The Complaint also addresses how confidential information
is used for validating gang membership and alleges that
CDCR unlawfully places inmates in SHU based on gang
validation status alone, that is, without proof that an inmate
committed any overt SHU-eligible act.
By contrast, the Confidential Information Claim alleges
that CDCR violates due process by inadequately disclosing
confidential information and failing to verify its reliability in
inmate disciplinary hearings. This claim is necessarily
distinct because the Complaint contends that CDCR failed
to conduct disciplinary hearings at all, instead relying on
gang validation status to place inmates in SHU. The
Complaint does not allege that confidential information is
being misrepresented to inmates.
Second, the Confidential Information Claim is not “a
result of” the Settlement Agreement’s SHU or Step Down
Program reforms. The district court concluded otherwise by
emphasizing paragraph 34 of the Settlement Agreement,
Ashker III, 2021 WL 5316414, at *13–14, which requires
CDCR to “adhere to the standards for the consideration of
and reliance on confidential information set forth in” the
California Code of Regulations and “implement appropriate
training for impacted staff members” to “ensure that the
confidential information used against inmates is accurate.”
The district court also highlighted paragraph 37, which
requires CDCR to produce a sample of documents, including
confidential information, that CDCR relied on to find
inmates guilty of SHU offenses. Id. The Inmates add that
their Confidential Information Claim also results from the
Settlement Agreement’s reform that inmates must now go
 ASHKER V. NEWSOM 15

through the disciplinary process to be placed in SHU rather
than being placed based on gang validation alone.
Applying California contract law to interpret the
Settlement Agreement, Ashker II, 968 F.3d at 944, we give
the terms their “clear and explicit meaning . . . interpreted in
their ordinary and popular sense,” Continental Ins., 281 P.3d
at 1004 (internal quotation marks and citation omitted). In a
statutory context, the Supreme Court of California held that
“[t]he phrase ‘as a result of’ in its plain and ordinary sense
means ‘caused by’ and requires a showing of a causal
connection or reliance.” Kwikset Corp. v. Superior Ct., 246
P.3d 877, 887 (Cal. 2011) (citations omitted); accord Ass’n
de Eleveurs de Canards et d’Oies du Quebec v. Harris, 729
F.3d 937, 945 (9th Cir. 2013); see also Paroline v. United
States, 572 U.S. 434, 445 (2014) (“The words ‘as a result of’
plainly suggest causation.”). We conclude that the phrase
“as a result of” in the Settlement Agreement has the same
ordinary and popular meaning.
Under the Settlement Agreement’s extension provision,
the Inmates bear the burden to show by a preponderance of
the evidence that their alleged due process violation is a
proper basis for extension. They must produce evidence
showing that it is more likely than not, Conservatorship of
O.B., 470 P.3d 41, 44 (Cal. 2020), that CDCR’s alleged
confidential information misuse was caused by the
Settlement Agreement’s SHU or Step Down Program
reforms, see Kwikset Corp., 246 P.3d at 887.
As discussed, paragraphs 34 and 37 of the Settlement
Agreement require CDCR to continue adhering to state
regulations concerning confidential information use,
implement training, and produce documents containing
confidential information that CDCR relied on in disciplinary
16 ASHKER V. NEWSOM

hearings. CDCR correctly points out that adhering to state
regulations is not a “reform” because CDCR has always
been subject to these regulations. See Reform, Merriam-
Webster, https://www.merriam-
webster.com/dictionary/reform (last visited July 27, 2023)
(listing definitions that require some form of change from
previous practice). Implementing training and producing
documents are new practices required by the Settlement
Agreement (and therefore reforms), but they are not reforms
to CDCR’s “Step Down Program or the SHU policies
contemplated by” the Settlement Agreement because they
effected no change—and so no reform—to the Step Down
Program or SHU policies.
That is not to say the Inmates had no recourse if CDCR
failed to meet these obligations. Under the “Compliance”
heading of the Settlement Agreement, paragraph 53
authorized the Inmates to seek enforcement in the district
court if CDCR did not substantially comply with the terms
of the Settlement Agreement. Paragraph 53 encompasses
noncompliance insufficient to justify extending the
Settlement Agreement. This includes CDCR’s obligations
to abide by state regulations, implement training, and
produce documents. Indeed, the Inmates moved for several
enforcement orders during the initial twenty-four-month
monitoring period.
Our conclusion does not make the provisions requiring
CDCR to produce confidential documents meaningless, as
the district court suggested. See Ashker III, 2021 WL
5316414, at *14 (concluding that CDCR’s interpretation
“gives no effect to [the document production] provisions”).
For one thing, our task is to determine whether the alleged
constitutional violation was caused by the Settlement
Agreement’s SHU or Step Down Program reforms—not to
 ASHKER V. NEWSOM 17

speculate about why the parties included certain provisions.
Regardless, the document production obligations are not
meaningless simply because they do not support extending
the Settlement Agreement on this basis. The Settlement
Agreement includes several provisions and obligations that
are not “reforms to [CDCR’s] Step Down Program or the
SHU policies contemplated by” the Settlement Agreement.
And the Inmates could have enforced CDCR’s compliance
with those obligations under paragraph 53 during the twenty-
four-month period. But the parties agreed to a narrower set
of grounds for extending the Settlement Agreement. It is no
surprise that the grounds for extending the Settlement
Agreement are narrower because extension is stronger
medicine than enforcement during the initial monitoring
period.
Even if the obligations in paragraphs 34 and 37 could be
grounds for an extension, the Inmates’ alleged constitutional
violation in the Confidential Information Claim was not “as
a result of” or “caused by” these reforms. See Kwikset Corp.,
246 P.3d at 887. The same is true for the shift in SHU
placement criteria from gang validation to disciplinary
hearings—undisputedly a reform to CDCR’s Step Down
Program or SHU policies. The Confidential Information
Claim is that CDCR misrepresents confidential information
in disciplinary proceedings and fails to verify that
information’s reliability. But the Inmates have not proven
by a preponderance of the evidence that adhering to state
regulations, implementing training, producing documents,
or changing SHU placement criteria from gang validation to
disciplinary hearings caused CDCR’s alleged misuse of
confidential information. See id. Nothing in the record
suggests that CDCR changed the way it handles confidential
information because of the Settlement Agreement.
18 ASHKER V. NEWSOM

The Inmates’ position that the Confidential Information
Claim results from the Settlement Agreement’s reforms
stems from an overly broad reading of the extension
provision and would stretch that provision to encompass
more constitutional violations than its text reaches. We must
interpret the Settlement Agreement according to its terms.
See Continental Ins., 281 P.3d at 1004 (the parties’ intent “is
to be inferred, if possible, solely from the written provisions
of the contract” (citations omitted)). The Settlement
Agreement carefully limits extension to constitutional
violations that are alleged in the Complaint or “as a result
of” the Settlement Agreement’s SHU or Step Down Program
reforms. And the plain meaning of “as a result of” is “caused
by.” Kwikset Corp., 246 P.3d at 887. Because CDCR’s
alleged misuse of confidential information was not caused
by the Settlement Agreement’s reforms, the Confidential
Information Claim is an improper basis for extending the
Settlement Agreement.
2
Regardless, the Confidential Information Claim still
would not justify extending the Settlement Agreement
because it does not demonstrate a current and ongoing
systemic due process violation. The Inmates’ Confidential
Information Claim alleges two categories of misconduct.
The district court held that, regarding both insufficient
confidential information disclosures and the lack of
reliability determinations, the Inmates had presented
evidence of an ongoing and systemic due process violation.
Ashker III, 2021 WL 5316414, at *15–20.
 ASHKER V. NEWSOM 19

Inmates’ due process rights in disciplinary hearings are
governed by Wolff v. McDonnell, 418 U.S. 539 (1974). 4
Among other requirements, Wolff requires that an inmate
facing a disciplinary hearing be provided written notice of
the charges and the ability to call witnesses and present
documentary evidence in his defense. Id. at 564–66. We
have explained that Wolff’s requirement that an inmate be
allowed to present evidence in his defense means that the
inmate “must also have the right to access evidence that he
might use in preparing or presenting his defense.” Melnik v.
Dzurenda, 14 F.4th 981, 986 (9th Cir. 2021).
a
As for inaccurate disclosures, the district court held that
CDCR violated due process by (1) failing to provide inmates
“with adequate notice of the charges and evidence against
them” and (2) failing “to disclose non-sensitive information
or evidence that class members could have used to mount a
defense at their disciplinary hearings.” Ashker III, 2021 WL
5316414, at *17–18. These holdings rested on the district
court’s factual findings that “disclosures provided to class
members contained inaccurate information or failed to
disclose relevant and non-sensitive exculpatory information
derived from confidential sources.” Id. at *18. In “many
instances,” the district court found, the “disclosure forms
attributed to confidential informants statements that the
confidential informants did not actually make.” Id. at *16.

4
The parties do not dispute that the Inmates have a liberty interest in
avoiding SHU placement. See Zimmerlee v. Keeney, 831 F.2d 183, 186
(9th Cir. 1987) (per curiam) (“The parties do not discuss and we assume
that [the plaintiff] has a protected liberty interest in not being subject to
disciplinary segregation.”).
20 ASHKER V. NEWSOM

The district court provided three examples that it found were
“representative of the evidence” presented. Id. at *16–17.
We review the district court’s factual findings for clear
error. Parsons, 949 F.3d at 453. “A factual finding is clearly
erroneous if it ‘is illogical, implausible, or without support
in inferences that may be drawn from the record.’”
Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 1133
(9th Cir. 2021) (quoting United States v. Hinkson, 585 F.3d
1247, 1263 (9th Cir. 2009) (en banc)).
i
We start with the district court’s holding that CDCR’s
inaccurate disclosures of confidential information violate
Wolff’s notice requirement. See 418 U.S. at 564. When
determining the extent of notice required, we must
“remember ‘the legitimate institutional needs of assuring the
safety of inmates and prisoners’ and avoid ‘burdensome
administrative requirements that might be susceptible to
manipulation.’” Zimmerlee, 831 F.2d at 188 (quoting
Superintendent v. Hill, 472 U.S. 445, 454–55 (1985)).
Our circuit has not expounded on the specificity of notice
required under Wolff. See id. (“Wolff provides little guidance
as to the specificity of notice necessary to satisfy due
process.”). Notice satisfying due process, the Second Circuit
held, “need not painstakingly detail all facts relevant to the
date, place, and manner of charged inmate misconduct; it
must simply permit a reasonable person to understand what
conduct is at issue so that he may identify relevant evidence
and present a defense.” Elder v. McCarthy, 967 F.3d 113,
128 (2d Cir. 2020) (cleaned up).
Again, the district court identified three examples
“which are representative of the evidence that [the Inmates]
 ASHKER V. NEWSOM 21

have presented” involving discrepancies between the
confidential memoranda and the disclosure forms given to
inmates. Ashker III, 2021 WL 5316414, at *17. “[B]ased
on the[se] examples,” the district court held that the Inmates
had shown due process violations arising out of CDCR’s
failure to provide accurate summaries of confidential
information. Id. Reviewing for clear error, we uphold the
district court’s finding that these three examples are
representative of the evidence presented and also evaluate
the Inmates’ claim based on these examples. See Parsons,
949 F.3d at 453. Unlike the district court, however, we
conclude that Wolff’s notice requirement was satisfied in
these examples.
In the first example, the disclosure form detailed that two
confidential informants said the accused inmate wanted
another inmate killed. Ashker III, 2021 WL 5316414, at *16.
The disclosure form stated that the planned killing was
because the other inmate had not provided the accused
inmate with his portion of contraband proceeds. Id. But the
confidential memorandum stated that one of the two
confidential informants gave a different reason why the
accused inmate wanted the other inmate killed. Id.
In the second example, four inmates were accused of
conspiring to murder another inmate. Id. at *16–17.
According to the confidential memorandum, an informant
told prison authorities that “there is a possibility” the four
inmates would order the murder of the other inmate, though
the four inmates had not yet determined what to do. Here,
the district court clearly erred in finding that “the disclosure
forms failed to disclose to the four prisoners that the
confidential informant stated that the inmate who was the
alleged victim of the murder conspiracy had not been
ordered murdered by the four co-conspirators.” See id. at
22 ASHKER V. NEWSOM

*16. The disclosure form did convey the informant’s
uncertainty by stating that the other inmate’s “fate was still
in the process of being deliberated.” At most, the disclosure
form exaggerated the informant’s confidence by stating that
“it was almost certain that [the other inmate] would be
[ordered killed],” when the informant only said that “there is
a possibility” that he would be killed.
In the third example, the accused inmate had allegedly
been identified in a confidential note as ordering an attack
against two other inmates. Id. at *17. The disclosure form
only said that the accused inmate was identified. Id. It did
not disclose that the accused inmate was identified by a
nickname without connecting the accused inmate to that
nickname. Id.
We conclude that even with the discrepancies, these
inmates were “inform[ed] . . . of the charges and [enabled]
to marshal the facts and prepare a defense.” See Wolff, 418
U.S. at 564. Each inmate received notice “sufficiently
specific as to the misconduct with which [he was] charged
to inform [him] of what he [wa]s accused of doing so that he
c[ould] prepare a defense to those charges and not be made
to explain away vague charges.” See Elder, 967 F.3d at 128
(internal quotation marks and citations omitted). In the first
example, the accused inmate had notice that an informant
said the accused inmate ordered another inmate’s murder,
even if the notice partially misstated his alleged motivation
for ordering the murder. Ashker III, 2021 WL 5316414, at
*16. In the second example, the four accused inmates had
notice that an informant said they were deliberating a
potential murder, even if the notice exaggerated the
likelihood. Id. at *16–17. In the third example, the accused
inmate had notice that a confidential note identified him as
 ASHKER V. NEWSOM 23

ordering an attack on other inmates, even if the notice failed
to state that he was identified by a nickname. Id. at *17.
In each example, the discrepancy between the
confidential memorandum and the disclosure form did not
deprive the inmate of notice of the charges against him and
the ability to defend against those charges. See Wolff, 418
U.S. at 564. That is all that notice requires under Wolff—it
does not require disclosure of every piece of evidence that
might provide a basis for “challeng[ing] or otherwise
rais[ing] questions as to the reliability of confidential
information that could have been or was used against
[inmates] during their disciplinary proceedings,” as the
district court concluded. Ashker III, 2021 WL 5316414, at
*17; see also Elder, 967 F.3d at 128 (“The notice given need
not painstakingly detail all facts relevant to the date, place,
and manner of charged inmate misconduct.” (cleaned up)).
We have cautioned that when “identifying the safeguards
due process requires in this context, courts should remember
‘the legitimate institutional needs of assuring the safety of
inmates and prisoners’ and avoid ‘burdensome
administrative requirements that might be susceptible to
manipulation.’” Zimmerlee, 831 F.2d at 188 (quoting Hill,
472 U.S. at 454–55). Assuring the safety of inmates and
prisoners sometimes requires prison officials to rely on
confidential information in disciplinary proceedings. To
balance the safety of informants and other inmates with the
due process rights of accused inmates, CDCR provides
accused inmates with disclosure forms summarizing the
confidential information against them. See Cal. Code Regs.
tit. 15 § 3321(b)(3). Summarizing and synthesizing
information inherently includes some omissions and
generalizations. To hold that anything less than complete
accuracy and precision in those summaries violates due
24 ASHKER V. NEWSOM

process would impose a “burdensome administrative
requirement[] that might be susceptible to manipulation.”
See Zimmerlee, 831 F.2d at 188 (quoting Hill, 472 U.S. at
454–55).
To be sure, intentional misrepresentation of evidence and
material mischaracterization would raise due process
concerns. See Edwards v. Balisok, 520 U.S. 641, 647 (1997)
(“The due process requirements for a prison disciplinary
hearing are in many respects less demanding than those for
criminal prosecution, but they are not so lax as to let stand
the decision of a biased hearing officer who dishonestly
suppresses evidence of innocence.”). But there is no
evidence of that here. The inconsistencies identified by the
district court reveal inaccuracies ranging from the
exaggerated to the inconsequential. See Ashker III, 2021
WL 5316414, at *16–17. The accused inmates in the
examples received the notice required by Wolff. See 418
U.S. at 564. Thus, the Inmates have not established by a
preponderance of the evidence that CDCR is systemically
violating Wolff’s notice requirement.
ii
Next, we turn to the district court’s holding that CDCR’s
inaccurate disclosures of confidential information violate
inmates’ due process right to access evidence. See Ashker
III, 2021 WL 5316414, at *17. The Inmates rely on Melnik,
14 F.4th at 986, to contend that “when a prisoner is provided
a fabricated summary of the confidential evidence, he is
denied access to the evidence the hearing officer will
consider, and thus has lost the opportunity to defend himself
or challenge reliability within the hearing.”
Melnik involved an inmate who faced discipline for
allegedly smuggling drugs into the prison, after prison
 ASHKER V. NEWSOM 25

officials intercepted two envelopes addressed to him
containing drugs. Id. at 984. Before his disciplinary
proceeding, the inmate repeatedly asked to examine the
envelopes but was not allowed to do so. Id. At the
disciplinary hearing, “images of the envelopes and
information about their contents were the only evidence
presented to support the charges” and the inmate was found
guilty. Id.
We held that the inmate had a constitutional “right to
access evidence that he might use in preparing or presenting
his defense,” thus giving him the right to access the
envelopes (or copies) that were withheld from him. Id. at
986–87. But “a prisoner’s right to access and prepare
evidence for a disciplinary hearing is not unlimited nor
unfettered. It may be limited by prison officials if they have
a ‘legitimate penological reason.’” Id. at 986 (quoting
Koenig v. Vannelli, 971 F.2d 422, 423 (9th Cir. 1992)).
Prison officials may deny access to evidence if it would “be
unduly hazardous to institutional safety or correctional
goals.” Id. at 986–87 (quoting Wolff, 418 U.S. at 566). Of
course, “[t]he penological reason must be legitimate” and
“not merely pretense or pretext.” Id. at 987. And
“administrative efficiency is not an adequate justification for
denying a prisoner access to evidence to be used in forming
his defense.” Id.
The Inmates have not shown a violation of their due
process right to access evidence. See id. at 986. The inmate
in Melnik was denied access to “the only evidence presented
to support the charges” when preparing his defense. Id. at
987–98. Here, by contrast, the inmates in the district court’s
three examples received confidential disclosure forms
summarizing the evidence used against them. Ashker III,
2021 WL 5316414, at *16–17. This is not a case about
26 ASHKER V. NEWSOM

inmates who sought evidence that the prison refused to turn
over. See Melnik, 14 F.4th at 987–88.
The Inmates argue that CDCR effectively withholds
evidence by misrepresenting confidential information in the
disclosure forms. But as discussed, the summaries provided
are largely accurate. Moreover, any discrepancies between
the confidential memoranda and the disclosure forms here,
even if characterized as withheld evidence, are minor and do
not violate the right set forth in Melnik because legitimate
penological reasons warrant limiting an inmate’s access to
confidential information. Id. at 986. Access may be denied
“[i]f granting a prisoner access to the requested evidence
would ‘be unduly hazardous to institutional safety or
correctional goals.’” Id. at 986–87 (quoting Wolff, 418 U.S.
at 566).
Safeguarding confidential and sensitive information is a
legitimate penological reason for limiting inmates’ access to
evidence. See id. Recall that in the Wolff notice context,
institutional safety and correctional goals inform the degree
of notice required by due process. Zimmerlee, 831 F.2d at
188. Similar concerns inform whether legitimate
penological reasons justify limiting access to evidence.
Melnik, 14 F.4th at 986–87. The Supreme Court has
instructed that when “identifying the safeguards required by
due process,” courts must be conscious of “the legitimate
institutional needs of assuring the safety of inmates and
prisoners, avoiding burdensome administrative requirements
that might be susceptible to manipulation, and preserving the
disciplinary process as a means of rehabilitation.” Hill, 472
U.S. at 454–55. We heed this instruction and “will not get
into the business of telling state prison officials how best to
protect the inmates they are charged with keeping safe.”
Johnson v. Ryan, 55 F.4th 1167, 1191 (9th Cir. 2022).
 ASHKER V. NEWSOM 27

Once again, summarizing information to ensure the
safety of confidential informants, other inmates, and prison
personnel necessarily requires generalizations and
omissions. Assuring confidentiality is not as simple as
removing the confidential informant’s name and other
identifying information. See Wolff, 418 U.S. at 562 (“The
reality is that disciplinary hearings . . . necessarily involve
confrontations between inmates and authority and between
inmates who are being disciplined and those who would
charge or furnish evidence against them. . . . [T]he basic and
unavoidable task of providing reasonable personal safety for
guards and inmates may be at stake . . . .”); see also Bell v.
Wolfish, 441 U.S. 520, 547 (1979) (“Prison administrators
therefore should be accorded wide-ranging deference in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline
and to maintain institutional security.”); Dawson v. Smith,
719 F.2d 896, 899 (7th Cir. 1983) (deferring to prison
officials’ judgment concerning confidential information
disclosure and concluding that “we leave it to prison officials
to make judgments in these sensitive matters; as all too often
they happen to be matters of life and death” (cleaned up)).
The Constitution does not require prison officials to disclose
every piece of information that an inmate might use in
support of his defense, such as minor and immaterial
inconsistencies that may “raise questions as to the reliability
of confidential information.” See Ashker III, 2021 WL
5316414, at *17; see also Melnik, 14 F.4th at 986–97;
Dawson, 719 F.2d at 899.
We reiterate that if prison officials deny or limit an
inmate’s access to evidence for penological reasons, those
reasons cannot be “mere[] pretense or pretext.” Melnik, 14
F.4th at 987. Overt evidence that officials intentionally
28 ASHKER V. NEWSOM

misrepresented confidential information would raise due
process concerns. See Edwards, 520 U.S. at 647.
But such evidence is not present here. The Inmates point
to nothing showing an intent to misrepresent. The record
shows that CDCR provided disclosure forms and any
discrepancies between the disclosure forms and the
confidential memoranda were minor and immaterial.
CDCR’s disclosure forms in the district court’s examples
satisfy due process because providing confidential evidence
to inmates in summary form is justified by legitimate
penological reasons. See Melnik, 14 F.4th at 986–87. Thus,
the Inmates have not established by a preponderance of the
evidence that CDCR is systemically violating Melnik’s
access-to-evidence requirement.
Because the inaccuracies and omissions in CDCR’s
disclosure forms identified by the district court do not violate
the Inmates’ due process rights, see Wolff, 418 U.S. at 564–
66, the alleged insufficient confidential disclosure forms do
not demonstrate “current and ongoing systemic violations of
. . . the Due Process Clause.” Thus, these allegations do not
justify extending the Settlement Agreement.
b
The district court also identified “many instances in
which [CDCR] relied upon confidential information without
first establishing its reliability as required by Zimmerlee.”
Ashker III, 2021 WL 5316414, at *19–20. In Zimmerlee,
831 F.2d at 186–87, we addressed the evidentiary standard
set by the Supreme Court for disciplinary hearings: prison
disciplinary “[f]indings that result in the loss of liberty will
satisfy due process if there is some evidence which supports
the decisions of the disciplinary board.” Id.; see also Hill,
472 U.S. at 455. That means that along with Wolff’s other
 ASHKER V. NEWSOM 29

requirements, prison disciplinary determinations must be
supported by “some evidence.” Edwards, 520 U.S. at 648.
We then held that for confidential information to constitute
“some evidence” under this standard, the hearing officer
must establish and record the evidence’s reliability to avoid
a due process violation. Zimmerlee, 831 F.2d at 186–87
(setting forth methods by which a hearing officer may
establish the reliability of confidential information).
Once again, the district court cited examples that it found
“representative of the evidence that [the Inmates] have
presented.” Ashker III, 2021 WL 5316414, at *20. The
district court found that the examples showed hearing
officers assuming without verifying that confidential
information is reliable, hearing officers refusing to allow
prisoners to ask questions about the reliability of confidential
informants, and confidential information being found
corroborated by other sources when those sources did not in
fact provide corroboration. Id. at *19. The district court
concluded that, based on these examples, the Inmates “have
shown ongoing and systemic due process violations arising
out of [CDCR’s] failure to conduct the reliability
determinations required by Zimmerlee before relying on
evidence provided by confidential informants.” Id. at *20.
The district court erred by holding that insufficient
reliability determinations alone violate due process. In
Zimmerlee, we held that a prison disciplinary determination
violates due process when it is “derived from” confidential
information that is unreliable. 831 F.2d at 186. That is,
unreliable confidential information cannot qualify as “some
evidence.” See id. But it is the lack of “some evidence” that
violates due process—not necessarily the lack of sufficient
reliability determinations alone. See id. If the disciplinary
determination is supported by “some evidence,” the due
30 ASHKER V. NEWSOM

process evidentiary standard is satisfied. See id. And that
holds true even if other confidential information has not been
found reliable.
The Inmates have not demonstrated that CDCR
systemically finds inmates guilty in disciplinary hearings
without “some evidence” to support its determinations. See
id. Recall that the Settlement Agreement placed the burden
of proof on the Inmates. The Inmates must demonstrate a
current and ongoing systemic due process violation by a
preponderance of the evidence to extend the Settlement
Agreement.
The Inmates have not carried this burden. The examples
they cite show that CDCR’s reliability determinations are
usually sufficient because officials established reliability
under Zimmerlee. See id. (“Review of . . . the reliability
determination . . . should be deferential.”). Regardless, the
Inmates have not shown by a preponderance of the evidence
that CDCR’s disciplinary determinations are systemically
unsupported by “some evidence”—a “minimally stringent”
standard requiring only that “there is any evidence in the
record that could support the conclusion reached by the
disciplinary board.” See Cato v. Rushen, 824 F.2d 703, 705
(9th Cir. 1987) (quoting Hill, 472 U.S. at 455–56). The lack
of reliability determinations alone does not violate due
process. See Zimmerlee, 831 F.2d at 186.
***
The Inmates’ Confidential Information Claim does not
allege a current and ongoing systemic violation of the due
process clause. Thus, it cannot justify extension of the
Settlement Agreement.
 ASHKER V. NEWSOM 31

B
The district court also extended the Settlement
Agreement based on the Inmates’ Parole Claim. Ashker III,
2021 WL 5316414, at *20–23. The district court determined
that inmates are systemically denied due process because
CDCR continues to rely on flawed gang validations when
evaluating inmates’ eligibility for parole. Id. at *23. We
disagree with the district court. The Parole Claim is an
improper basis for extending the Settlement Agreement and
does not demonstrate a due process violation. 5
1
CDCR contends that the Parole Claim is an improper
basis for extending the Settlement Agreement because it is
neither alleged in the Complaint nor a result of CDCR’s
reforms to its Step Down Programs or SHU policies. The
district court concluded otherwise, holding that the Parole
Claim was alleged in the Inmates’ Complaint. Ashker III,
2021 WL 5316414, at *21. Interpreting the Settlement
Agreement de novo to determine whether it authorizes
extension based on the Parole Claim, see Ashker II, 968 F.3d
at 944, we disagree with the district court. The paragraphs
of the Complaint that the district court relied on allege an
unwritten policy preventing anyone in SHU from receiving
parole, that the denial of parole deprives inmates of a basic
human need, and that CDCR’s “SHU policies and practices
are atypical in effectively prolonging incarceration, in that
prisoners in the SHU are . . . rendered functionally ineligible
for parole.” See Ashker III, 2021 WL 5316414, at *21.

5
CDCR also argues that the Inmates are judicially estopped from making
the Parole Claim. Though CDCR’s judicial estoppel argument is
persuasive, we resolve this issue on other grounds.
32 ASHKER V. NEWSOM

Those allegations differ from the Parole Claim, which
argues “that [CDCR’s] retention of the old gang validations
in their system without adding any qualifications to indicate
to the Parole Board that they are unreliable has deprived
class members of a fair opportunity for parole.” Id. at *20.
The Complaint does not allege a due process violation based
on CDCR’s failure to flag faulty gang violations for the
parole board. Again, the Settlement Agreement carefully
limits the bases for extending the monitoring period. The
“clear and explicit meaning” of the Settlement Agreement’s
provisions controls our interpretation and provides that only
due process violations alleged in the Complaint or resulting
from the Step Down Program or SHU reforms justify
extension. See Continental Ins., 281 P.3d at 1004. The
Inmates cannot obtain an extension by alleging due process
violations that have some peripheral relation to the
allegations in the Complaint. 6
2
The Parole Claim also does not justify extension because
it does not allege a current and ongoing systemic due process
violation. The district court held that CDCR’s “continued
retention and use of old gang validations without any
acknowledgement of the fact that they are flawed and
unreliable gives rise to violations of class members’ right to
a meaningful hearing in the context of parole.” Ashker III,
2021 WL 5316414, at *23. But the district court imposed
due process requirements that the Constitution does not.

6
We also reject the Inmates’ alternative argument that the Parole Claim
results from the Settlement Agreement’s reforms to its Step Down
Program or SHU policies. The district court did not adopt this argument
and the Inmates point to no provision of the Settlement Agreement to
support their argument.
 ASHKER V. NEWSOM 33

In Greenholtz v. Inmates of Nebraska Penal and
Correctional Complex, 442 U.S. 1, 16 (1979), the Supreme
Court addressed the procedural due process required in
parole proceedings. 7 The Court held that “an opportunity to
be heard, and when parole is denied [informing] the inmate
in what respects he falls short of qualifying for parole . . .
affords the process that is due.” Id. The Court held that
“[t]he Constitution does not require more.” Id.
The Court reiterated this holding in Swarthout v. Cooke,
562 U.S. 216, 220 (2011) (per curiam). “In the context of
parole, we have held that the procedures required are
minimal.” Id. The Court then determined that the California
habeas petitioners in that case received an opportunity to be
heard and a statement of the reasons why parole was denied.
Id. “That should have been the beginning and the end of the
. . . inquiry into whether [the petitioners] received due
process.” Id. We, too, have underscored that when the
Greenholtz procedures are employed, “that is the end of the
matter for purposes of the Due Process Clause.” Roberts v.
Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).
The district court did not heed this instruction. It
concluded that CDCR’s prior procedures for generating
gang validations and the resulting gang validations
themselves violated the Constitution. Ashker III, 2021 WL
5316414, at *22. It then held that these deficiencies deprived
inmates of due process because the parole board considers
these flawed validations, depriving inmates of a “meaningful
hearing.” Id. at *22–23.

7
The parties do not dispute that the Inmates have a liberty interest in
parole. See Pearson v. Muntz, 639 F.3d 1185, 1190–91 (9th Cir. 2011).
34 ASHKER V. NEWSOM

The district court added due process requirements
contrary to the Supreme Court’s holding that “[t]he
Constitution does not require more.” See Greenholtz, 442
U.S. at 16. There is no evidence that the Greenholtz
requirements were not satisfied here.
The Inmates maintain that they allege a different kind of
due process violation. They argue it is not the parole board
considering prior gang validations that violates due process,
but that CDCR is obstructing meaningful access to the parole
process by recklessly or deliberately providing the parole
board with unconstitutional gang validations. The Inmates
rely on Benavidez v. County of San Diego, 993 F.3d 1134,
1152 (9th Cir. 2021), and Costanich v. Department of Social
and Health Services, 627 F.3d 1101, 1108 (9th Cir. 2010),
arguing that “a party extrinsic to an administrative or judicial
proceeding who recklessly or deliberately misrepresents the
facts to the decision-making body can be liable for violating
the Constitution regardless of whether the decision-maker is
also subject to suit.”
These cases are not on point. Both hold that deliberately
fabricating evidence in child custody proceedings violates
due process. Benavidez, 993 F.3d at 1152; Costanich, 627
F.3d at 1108. “Precisely what procedures the Due Process
Clause requires in any given case is a function of context.”
Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149
F.3d 971, 983 (9th Cir. 1998). The context of civil child
custody cases is meaningfully different from the prison
parole context. The Inmates do not explain why the same
due process procedures that apply in child custody cases
should be imported here.
Even if an analogous claim could lie in the prison parole
context, there is no deliberate or reckless fabrication of
 ASHKER V. NEWSOM 35

evidence here. See Benavidez, 993 F.3d at 1152; Costanich,
627 F.3d at 1108. CDCR merely provided the parole board
with the existing gang validation information it had. The
district court concluded that CDCR’s prior validation
process and the resulting validations were illegitimate—a
conclusion on which we express no view. See Ashker III,
2021 WL 5316414, at *22. But even if the prior process and
resulting validations were deficient, CDCR did not provide
gang validations to the parole board recklessly or
deliberately because CDCR had no reason to doubt the
validations’ reliability. The Settlement Agreement states
that CDCR made no “admission or concession . . . of any
current and ongoing violations of a federal right.” And the
parties told the district court that the Settlement Agreement
“does not contemplate the ‘exoneration’ of past validations.”
Before the district court concluded that CDCR’s previous
validation process was flawed, id., no court had reached that
conclusion. Indeed, we have previously held that CDCR’s
validation of inmates satisfies due process when
accompanied by certain minimum procedures. See, e.g.,
Bruce v. Ylst, 351 F.3d 1283, 1287–88 (9th Cir. 2003)
(upholding validation of an inmate housed at Pelican Bay).
Thus, CDCR did not misrepresent or omit information to the
parole board deliberately or with reckless disregard for the
truth by failing to somehow signify that the validations were
defective. 8 See Benavidez, 993 F.3d at 1147; Costanich, 627
F.3d at 1108.

8
We likewise reject the Inmates’ argument that the parole process is
subject to systemic bias. The Inmates have not shown that the parole
board was biased or prejudiced. See O’Bremski v. Maass, 915 F.2d 418,
422 (9th Cir. 1990).
36 ASHKER V. NEWSOM

***
The Inmates’ Parole Claim does not allege a current and
ongoing systemic violation of the due process clause. Thus,
it cannot justify extension of the Settlement Agreement.
C
The Inmates’ RCGP claim is the third basis the district
court relied on for extending the Settlement Agreement.
Ashker III, 2021 WL 5316414, at *5–13. The Inmates
contend that CDCR violates the Inmates’ due process rights
by placing them in the RCGP—a new unit created by the
Settlement Agreement for housing inmates with safety
concerns. Unlike the first two claims, there is no dispute that
the RCGP Claim results from CDCR’s Step Down Program
or SHU reforms. See id. at *6. The district court held (1)
that there is a liberty interest in avoiding RCGP placement
and (2) that CDCR’s procedures for placing inmates in the
RCGP are insufficient because CDCR fails to provide
meaningful notice or periodic review. Id. at *10, 12. We
disagree on both counts.
1
“The Fourteenth Amendment’s Due Process Clause
protects persons against deprivations of life, liberty, or
property; and those who seek to invoke its procedural
protection must establish that one of these interests is at
stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To
show a due process violation, the Inmates must establish a
liberty interest in avoiding RCGP placement. See Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Though “[t]he
Constitution does not give rise to a liberty interest in
avoiding transfer to more adverse conditions of confinement,
[] such an interest may ‘arise from state policies or
 ASHKER V. NEWSOM 37

regulations.’” Johnson, 55 F.4th at 1180 (quoting Wilkinson,
545 U.S. at 221–22). An interest in avoiding certain
conditions of confinement constitutes a liberty interest
protected by the Due Process Clause if the challenged
condition “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Id. (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Though there “is no single standard” for determining
when circumstances are atypical and significant, we have
detailed three guiding considerations:

1) whether the challenged condition mirrored
those conditions imposed upon inmates in
administrative segregation and protective
custody, and thus comported with the
prison’s discretionary authority; 2) the
duration of the condition and the degree of
restraint imposed; and 3) whether the state’s
action will invariably affect the duration of
the prisoner’s sentence.

Id. at 1195–96 (quoting Ramirez v. Galaza, 334 F.3d 850,
861 (9th Cir. 2003)) (internal quotation marks omitted).
We have also acknowledged inconsistency among courts
in “identifying the baseline from which to measure what is
atypical and significant in any particular prison system.” Id.
at 1195 (quoting Wilkinson, 545 U.S. at 223); Brown v. Or.
Dep’t of Corr., 751 F.3d 983, 988 (9th Cir. 2014) (“We . . .
have not clearly held that conditions in the general
population, as opposed to those in other forms of
administrative segregation or protective custody, form the
appropriate baseline comparator.”). The district court
acknowledged this uncertainty about the proper baseline.
38 ASHKER V. NEWSOM

Ashker III, 2021 WL 5316414, at *7. It then concluded “that
the conditions in the general prison population are the
appropriate basis for comparison” because inmates who
were placed in the RCGP “otherwise would have been
placed in the general population.” Id.
In supplemental briefing addressing this question, the
parties largely agreed. 9 Both parties maintain that the proper
baseline when deciding whether a challenged condition is
atypical and significant is fact-specific and varies from case
to case. The parties also agree that the baseline here is Level
IV general population facilities. See Cal. Code Regs. tit. 15
§ 3377(d). Given the agreement between the parties, we
assume that the conditions in Level IV general population
facilities form the appropriate baseline comparator here.
Using this baseline, we address whether the conditions
of the RCGP are atypical and significant. See Sandin, 515
U.S. at 484. Recall that the RCGP was “designed to provide
increased opportunities for positive social interaction with
other prisoners and staff,” including educational
opportunities, out-of-cell time in small group yards,
religious services, job assignments, leisure time activity
groups, and contact visits from family members—all
without the use of mechanical restraints.
All inmates who enter the RCGP are initially placed on
walk-alone status—an orientation and observation period to
determine whether an inmate can program safely with
others. After this period, an inmate appears before the ICC,
which determines whether the inmate can be safely placed in
a programming group with other RCGP inmates. If the ICC

9
Along with their supplemental brief, the Inmates moved to file
supplemental excerpts of record under seal. We grant the motion.
 ASHKER V. NEWSOM 39

does not find that the inmate can be safely placed in a
programming group, he remains on walk-alone status
subject to periodic reviews that occur every six months.
Like general placement in the RCGP, an inmate remains on
walk-alone as long as CDCR determines it is necessary, and
an inmate may remain on walk-alone status for his entire
time in the RCGP.
Inmates on walk-alone status experience increased
restrictions compared to other RCGP inmates, but they retain
several privileges. In declarations, inmates state that walk-
alone inmates can exercise for two hours a day in fenced,
outdoor enclosures without exercise equipment. During that
time, they can speak to other walk-alone inmates also
exercising in separate enclosures. Walk-alone inmates can
also visit the “dayroom” one to three times per week for
about one hour. During dayroom time, walk-alone inmates
may talk to other inmates from outside their cell doors. They
also have opportunities for 15-minute phone calls and
educational programming, though the programming is
limited to self-study with some teacher contact. Walk-alone
inmates have access to a law library kiosk and the “canteen”
(store) is brought to them once a month.
These inmate declarations track RCGP Captain J. Berg’s
declaration. Captain Berg states that “[i]nmates on walk-
alone status have access to educational opportunities, yard
and out-of-cell time commensurate with the general
population, religious services, job assignments, leisure time
opportunities, and privileges like canteen and non-contact
visits, and telephone calls.” Further, “[a]ll RCGP inmates
receive a housing review every six months” and “[s]eparate
from those periodic reviews,” walk-alone inmates can
“inform[] staff that [they] can safely program with [general
RCGP] inmates” and the “staff evaluates the request at that
40 ASHKER V. NEWSOM

time.” They can receive work assignments that “take
inmates out of their cells as much as six-and-one-half hours
a day” and “present opportunities for further interaction with
other inmates and staff.” Captain Berg testifies that RCGP
conditions are “very similar” to his experience in “Pelican
Bay’s Level IV general-population housing unit.”
Because all RCGP inmates are initially placed on walk-
alone status with no predetermined end date, we consider
both general RCGP conditions and walk-alone conditions in
our liberty interest analysis. The first guidepost directs us to
consider whether RCGP conditions mirror those in
administrative segregation and protective custody, “and thus
comport[] with the prison’s discretionary authority.”10
Ramirez, 334 F.3d at 861. California regulations describe
the conditions of administrative segregation. 11 Cal. Code
Regs. tit. 15 § 3343. In many ways, the conditions of

10
As discussed, we assume here that the conditions of Level IV general
population facilities are the baseline when determining whether RCGP
conditions are atypical and significant. That said, our precedent still
directs us to consider the conditions of administrative segregation and
protective custody. Ramirez, 334 F.3d at 861; see also Chappell v.
Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013) (“[A]t least” these three
guideposts “should be considered in each case[.]”). This makes sense
because even if Level IV general population facilities are the primary
baseline, administrative segregation and protective custody are forms of
confinement that a prison has discretion to impose. See Chappell, 706
F.3d at 1064–65. The conditions of these “discretionary confinement
settings” should inform the atypical-and-significant analysis even if
those conditions are not the primary baseline comparator. See id. at
1064; Sandin, 515 U.S. at 486 (“Conner’s confinement did not exceed
similar, but totally discretionary, confinement . . . .”).
11
In this case, we assume that the conditions of “administrative
segregation” and “protective custody” are equivalent. See Pierce v.
County of Orange, 526 F.3d 1190, 1196 n.3 (9th Cir. 2008).
 ASHKER V. NEWSOM 41

administrative segregation are like those of the general
population. See id. § 3343(a). The regulations state that
inmates in administrative segregation are permitted
non-contact visits, id. § 3343(f), “a minimum of one hour per
day, five days a week, of exercise outside of their rooms or
cells unless security and safety considerations preclude such
activity,” id. § 3343(h), “[l]ibrary services” representing “a
cross-section of material available to the general
population,” id. § 3343(i), telephone calls with supervisor
approval, id. § 3343(j), and “access to such programs and
services as can be reasonably provided within the unit
without endangering security or the safety of persons,” id.
§ 3343(k).
Walk-alone conditions mirror these conditions. As
discussed, walk-alone inmates receive similar daily exercise
time and opportunities for programs and services. The
district court focused on the fact that contact visits for RCGP
inmates are limited to weekdays and concluded that this
restriction is atypical. Ashker III, 2021 WL 5316414, at *8.
The district court also noted the diminished opportunities for
socializing and programming provided to walk-alone
inmates. Id. at *9. But these limitations do not impose
atypical and significant hardship. In Johnson, we stressed
that restrictions constituting atypical and significant
hardship should cause a “material change in the underlying
conditions of [an inmate’s] confinement,” with “incidental,
fleeting benefits” such as “a two-person recreation period,
favorable job assignments, unrestrained meals, unrestrained
walks and access to the showers and recreation areas, or
access to a GED program” failing to rise to that level. 55
F.4th at 1196 (emphasis omitted). Receiving fewer contact
visits than other inmates does not constitute “a beyond-
standard deviation from the ordinary circumstances of prison
42 ASHKER V. NEWSOM

life.” See id.; see also Gerber v. Hickman, 291 F.3d 617,
621 (9th Cir. 2002) (en banc) (“[I]t is well-settled that
prisoners have no constitutional right while incarcerated to
contact visits . . . .”). Likewise, RCGP inmates receive
multiple opportunities for socializing and programming.
The limitations on these privileges are not atypical and
significant compared to administrative segregation. See Cal.
Code Regs. tit. 15 § 3343.
The second guidepost is “the duration of the condition,
and the degree of restraint imposed.” Ramirez, 334 F.3d at
861. We addressed this balance in Brown, and held that an
inmate’s twenty-seven-month confinement in the Intensive
Management Unit, or “IMU,” which “subjected [the inmate]
to solitary confinement for over twenty-three hours each day
with almost no interpersonal contact, and denied him most
privileges afforded inmates in the general population” gave
rise to a liberty interest. 751 F.3d at 988. We also observed
that the inmate “was given a fixed and irreducible period of
confinement in the IMU for twenty-seven months, in
contrast to the limited period of confinement with periodic
review afforded inmates in [the Oregon prison system’s]
other segregated-housing units.” Id.
Conditions in the RCGP are far removed from those in
Brown. As to the “duration of the condition,” RCGP
placement and walk-alone status are designed as “limited
period[s] of confinement with periodic review,” not “fixed
and irreducible period[s] of confinement.” See id. at 987–
88. Still, there is no maximum term of confinement, and the
duration of confinement is a “crucial factor.” Id. at 988.
But here, the potential duration of confinement is offset
by the minimal “degree of restraint imposed” on inmates in
the RCGP. See id. at 987. Even RCGP walk-alone
 ASHKER V. NEWSOM 43

conditions are significantly less severe than the IMU
conditions addressed in Brown. See id. at 987–88. Unlike
the IMU inmate who was held in “solitary confinement for
over twenty-three hours each day with almost no
interpersonal contact” and denied “most privileges afforded
inmates in the general population,” id. at 988, inmates on
walk-alone status receive two hours of daily exercise, the
opportunity to talk with other inmates, dayroom visits, phone
calls, and programming such as educational opportunities, a
law library kiosk, and access to the canteen.
“[T]he transfer of an inmate to less amenable and more
restrictive quarters for nonpunitive reasons is well within the
terms of confinement ordinarily contemplated by a prison
sentence.” Hewitt v. Helms, 459 U.S. 460, 468 (1983),
abrogated in part on other grounds by Sandin, 515 U.S. at
472. Thus, on balance, the “duration of the condition” and
the “degree of restraint imposed” do not suggest that the
RCGP imposes atypical and significant hardship compared
to Level IV general population facilities. See Brown, 751
F.3d at 987. Indeed, we previously held that the limitations
of walk-alone status “are only minor deviations” from what
the Settlement Agreement required. Ashker II, 968 F.3d at
945–46. The restrictions the district court and the Inmates
rely on—contact visits limited to weekdays, no maximum
term of confinement, and walk-alone status—“do not
represent a beyond-standard deviation from the ordinary
circumstances of prison life.” Johnson, 55 F.4th at 1196.
Considering the third guidepost, RCGP placement will
not “invariably affect the duration of the prisoner’s
sentence.” Ramirez, 334 F.3d at 861. The district court
determined “that diminished opportunities for programming
. . . can negatively impact inmates’ eligibility for parole . . .
which in turn can lengthen the duration of inmates’
44 ASHKER V. NEWSOM

sentences.” Ashker III, 2021 WL 5316414, at *9. But our
question is “whether the state’s action will invariably affect
the duration of the prisoner’s sentence.” Ramirez, 334 F.3d
at 861 (emphasis added). Even if RCGP placement can have
a potential negative effect on parole eligibility, it does not
“invariably” lengthen the sentence of RCGP inmates. See
id.
We conclude that RCGP placement, including walk-
alone status, does not “impose[] atypical and significant
hardship on the [I]nmate[s] in relation to the ordinary
incidents of prison life.” See Sandin, 515 U.S. at 484. This
holding tracks our recent opinion in Johnson. In that case,
the inmate asserted several liberty interests. First, we
addressed whether the inmate had “a liberty interest in
avoiding maximum security confinement in the Browning
Unit.” 55 F.4th at 1180; see also id. at 1197–98 (addressing
the related question of whether the inmate “stated a liberty
interest in avoiding a return to maximum custody from close
custody”). The inmate alleged that “he is confined to his cell
for twenty-four hours per day, strip searched every time he
leaves his cell, takes meals in his cell, and has limited access
to rehabilitation programs.” Id. at 1180; see also id. at 1198
(maximum custody also “permits inmates a maximum of
three phone calls per week, three non-contact visits per week
. . . three three-hour recreation opportunities per week,” and
requires “single-cell housing, [being] escorted in full
restraints any time [inmates] move within the institution . . .
frequent[] monitor[ing], and . . . only limited work
opportunities within the secure perimeter”). The inmate also
alleged that he was “denied the opportunity for restoration
of lost earned release credits.” Id. at 1180. We concluded
that these conditions imposed atypical and significant
hardship and held that the inmate had a liberty interest in
 ASHKER V. NEWSOM 45

avoiding these maximum security conditions. Id.; see also
id. at 1198.
Second, we addressed whether the inmate had a liberty
interest in participating in the Arizona prison system’s step
down program, or “SDP.” Id. at 1194. We concluded that
the inmate did not have a liberty interest because “[t]he
inmate removed from SDP has only lost access to one of
several procedures by which he might change his conditions
of confinement, and that alone is insufficient to create a
liberty interest independent of any underlying change to [the
inmate’s] conditions.” Id. at 1195. We also held that
removal from the first three phases of the SDP did “not result
in any significant change in an inmate’s conditions of
confinement” because nothing “in our cases would suggest
that denying an inmate a two-person recreation period,
favorable job assignments, unrestrained meals, unrestrained
walks and access to the showers and recreation areas, or
access to a GED program rises to the level of an ‘atypical or
significant hardship.’” Id. at 1195–96.
The conditions of RCGP walk-alone status are more like
the first three phases of the SDP than maximum security
confinement in the Browning unit. As described above,
walk-alone status conditions are less restrictive than the
conditions of maximum security confinement in Johnson.
See id. at 1180, 1198. The privileges that are limited by
RCGP walk-alone status are like those privileges we
described as “incidental, fleeting benefits” that do “not
introduce an ‘atypical and significant hardship’ that would
trigger a liberty interest.” See id. at 1196.
“Not every transfer accompanied by marginally harsher
conditions creates a liberty interest.” Id. That is the case
here because the conditions of the RCGP and walk-alone
46 ASHKER V. NEWSOM

status do not impose “atypical and significant hardship” on
inmates “in relation to the ordinary incidents of prison life.”
See Sandin, 515 U.S. at 484. “[T]ransfer of an inmate to less
amenable and more restrictive quarters for non-punitive
reasons is well within the terms of confinement ordinarily
contemplated by a prison sentence.” Johnson, 55 F.4th at
1196 (quoting Hewitt, 459 U.S. at 468). So the Inmates have
not established a liberty interest.
2
Further, the Inmates’ RCGP Claim would not justify
extending the Settlement Agreement even if the Inmates had
a liberty interest in avoiding RCGP placement. That is
because CDCR employs constitutionally sufficient
procedural protections when placing inmates in the RCGP.
To determine whether procedures provide sufficient due
process, we evaluate (1) the private interest affected; (2) the
risk of an erroneous deprivation and the probable value of
additional or substitute safeguards; and (3) the government’s
interest. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
For prison housing placement that is administrative, not
disciplinary, “informal, nonadversary review” is sufficient.
Hewitt, 459 U.S. at 476. Those procedures include notice of
the reason for confinement, an opportunity to be heard, and
periodic review. Id. at 476 & 477 n.9.
The district court held that CDCR’s RCGP placement
procedures fell short of this standard because CDCR failed
to provide meaningful notice or periodic review. Ashker III,
2021 WL 5316414, at *11. The Inmates rely on these same
purported shortcomings to argue that the RCGP placement
procedures are constitutionally deficient. We review these
arguments within the three-factor framework established by
Mathews. 424 U.S. at 335.
 ASHKER V. NEWSOM 47

The first and third Mathews factors—the balance of
inmate private interests and the governmental interest—
weigh in CDCR’s favor. “Prisoners held in lawful
confinement have their liberty curtailed by definition, so the
procedural protections to which they are entitled are more
limited than in cases where the right at stake is the right to
be free from confinement at all.” Wilkinson, 545 U.S. at 225.
When an inmate is “merely transferred from one extremely
restricted environment to an even more confined situation,”
the inmate’s private interest “is not one of great
consequence.” Hewitt, 459 U.S. at 473. By contrast, the
government-interest factor is a “dominant consideration” in
“the context of prison management,” because “[t]he State’s
first obligation must be to ensure the safety of guards and
prison personnel, the public, and the prisoners themselves.”
Wilkinson, 545 U.S. at 227. The government’s interest is of
“great importance” because the “safety of the institution’s
guards and inmates is perhaps the most fundamental
responsibility of the prison administration.” Hewitt, 459
U.S. at 473. Thus, the first and third Mathews factors favor
CDCR here.
The second Mathews factor also weighs in CDCR’s
favor. The district court held that CDCR’s procedures for
RCGP placement risked an erroneous deprivation because
they provided insufficient notice and periodic review.
Ashker III, 2021 WL 5316414, at *11. As to notice, the
district court found that CDCR “relied on findings that
releasing prisoners to the general population would pose a
threat to the safety of the institution even though [the
Settlement Agreement] does not contemplate the safety of
the institution as a reason for keeping prisoners in the
RCGP.” Id. The district court also found that “CDCR told
prisoners that participating in programming and remaining
48 ASHKER V. NEWSOM

incident-free for six months would result in transfer out of
the RCGP.” Id. The district court concluded that this
conflicted with the Settlement Agreement because it
“permits Defendants to retain inmates in the RCGP only if
the ICC verifies that ‘there continues to be a demonstrated
threat to the inmate’s personal safety.’” Id. Indeed, the
Inmates argue that CDCR “retained scores of people in
RCGP despite expressly noting they had positively
programmed and remained incident-free.”
These findings do not risk an erroneous deprivation of
RCGP inmates’ rights based on insufficient notice. For one,
relying on the safety of the institution to house an inmate in
the RCGP fits the notice the inmates were given. The district
court concluded otherwise because the Settlement
Agreement states the relevant consideration to be prisoner
safety and not institutional safety. Id. But a threat to an
inmate’s safety and to the institution’s safety are often
intertwined—a threat to an inmate endangers the safety of
the institution as a whole. See Farmer v. Brennan, 511 U.S.
825, 833 (1994) (“Prison officials have a duty to protect
prisoners from violence at the hands of other prisoners.”
(cleaned up)).
At any rate, notice sufficient to satisfy due process does
not require such granular detail. Hewitt involved an inmate
placed in administrative segregation because prison officials
determined that he could endanger the safety of others and
that it was wise to separate him from the general population
while his role in a prison riot was investigated. 459 U.S. at
473. The Supreme Court held that “some notice of the
charges against him” was sufficient to confine him in the
challenged housing conditions. Id. at 476–77. The Court
also addressed the notice requirement in Wilkinson. 545
U.S. at 225–26. The policy in that case provided that “an
 ASHKER V. NEWSOM 49

inmate must receive notice of the factual basis leading to
consideration for [the challenged housing] placement and a
fair opportunity for rebuttal.” Id. The Court held that
“[r]equiring officials to provide a brief summary of the
factual basis for the classification review and allowing the
inmate a rebuttal opportunity safeguards against the inmate’s
being mistaken for another or singled out for insufficient
reason.” Id. at 226.
Here, the Inmates have not shown by a preponderance of
the evidence that they were given insufficient notice, that is,
“a brief summary of the factual basis” for their confinement
in the RCGP. See id. Providing inconsistent information
about exactly how to return to the general population is an
ignoble practice, but it does not violate the constitutional
notice requirement or create a risk of erroneous placement
or retention in the RCGP when the inmates were otherwise
told why they were housed there. According to their
declarations, inmates housed in the RCGP were given notice
that they were placed there because CDCR determined there
were threats to their safety. These inmates did not always
agree with CDCR’s assessment, but they received the notice
required. See id.
Further, we afford CDCR significant deference on its
safety determinations. “[A] prison’s internal security is
peculiarly a matter normally left to the discretion of prison
administrators.” Hewitt, 459 U.S. at 474 (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 n.14 (1981)); see also id. (“The
judgment of prison officials in this context . . . turns on
purely subjective evaluations and predictions of future
behavior . . . indeed, the administrators must predict not just
one inmate’s future actions . . . but those of an entire
institution.” (internal quotation marks and citation omitted)).
“Prison officials must strike a careful balance to determine
50 ASHKER V. NEWSOM

who must be protected from whom and for how long,” thus,
“[w]e will not get into the business of telling state prison
officials how best to protect the inmates they are charged
with keeping safe.” Johnson, 55 F.4th at 1190–91.
As to periodic review, the district court found that
“instead of evaluating whether a safety concern continues to
exist, the ICC operates under what appears to be a
presumption that historical threats to prisoners’ safety
continue to exist in the absence of affirmative evidence that
the threats have abated.” Ashker III, 2021 WL 5316414, at
*11. This finding does not risk an erroneous deprivation of
the Inmates’ rights by depriving RCGP inmates of adequate
review. “[P]eriodic reviews do not necessarily require
additional evidence and may rely on facts that were
ascertained when the initial decision to confine the inmate .
. . was made.” Johnson, 55 F.4th at 1185. Even if CDCR
assumes that a threat exists until new evidence shows
otherwise, that is no more likely to risk erroneous
deprivation than relying on gang status in Johnson. See id.
As in Johnson, the Inmates have not shown that RCGP
placement “is based on stale information or is so outdated as
to be irrelevant to a current risk analysis” and that threats to
the Inmates’ safety have abated. See id. at 1188. And just
as “prison officials’ judgment that an inmate represents a
threat to the safety of the prison may ‘turn[] largely on purely
subjective evaluations and on predictions of future behavior’
and may be appropriate ‘even if [the inmate] himself has
committed no misconduct,’” id. at 1187 (quoting Hewitt, 459
U.S. at 474), the same is true for prison officials’ judgment
that an inmate’s own safety is at risk.
In sum, our review of the Mathews factors shows that
CDCR’s RCGP placement procedures are constitutionally
 ASHKER V. NEWSOM 51

sufficient. The Inmates have not shown by a preponderance
of the evidence that inmates housed in the RCGP receive
constitutionally deficient notice or periodic review that risks
erroneous deprivation of inmates’ rights. See Mathews, 424
U.S. at 335. We owe substantial deference to CDCR’s
determination that an inmate faces safety concerns.
Johnson, 55 F.4th at 1190–91. Also considering the balance
of public and private interests, the Mathews factors favor
CDCR. Thus, CDCR’s procedures for RCGP placement and
retention do not systemically violate the Due Process Clause.
See Matthews, 424 U.S. at 335.
***
The Inmates’ RCGP Claim does not allege a current and
ongoing systemic violation of the due process clause. Thus,
it cannot justify extension of the Settlement Agreement.
IV
We reverse the district court because the first extension
of the Settlement Agreement was improper. Given that,
under the Settlement Agreement, the “Agreement and the
Court’s jurisdiction over this matter shall automatically
terminate, and the case shall be dismissed.” The initial
twenty-four-month monitoring period ended in October
2017, so the Settlement Agreement and the court’s
jurisdiction over the matter automatically terminated then. 12

12
This appeal does not require us to address any claims that the Inmates
may retain based on “limited jurisdiction” under paragraph 46 of the
Settlement Agreement, which provides that “[i]f there is a motion
contesting [CDCR’s] compliance with the terms of this Agreement
pending at the time the case is otherwise terminated, the Court will retain
limited jurisdiction to resolve the motion.”
52 ASHKER V. NEWSOM

Because the court’s jurisdiction terminated, the district
court lacked jurisdiction to order a second extension of the
Settlement Agreement. See Ashker v. Newsom, No. 09-cv-
05796 CW, 2022 WL 309862 (N.D. Cal. Feb. 2, 2022)
(Ashker IV). That order is the subject of the second appeal
before us. Without jurisdiction, the district court’s second
extension order is null. See Morongo Band of Mission
Indians v. Cal. St. Bd. of Equalization, 858 F.2d 1376, 1381
(9th Cir. 1988) (“If jurisdiction was lacking, then the
[district] court’s various orders . . . were nullities.”). Thus,
we vacate the district court’s second extension order and
dismiss the second appeal as moot.
REVERSED in part, VACATED in part, and
DISMISSED in part.

R. NELSON, Circuit Judge, joined by GWIN, District
Judge, concurring:

In the majority opinion, we identify the inconsistency
among courts in “identifying the baseline from which to
measure what is atypical and significant in any particular
prison system.” Johnson v. Ryan, 55 F.4th 1167, 1195 (9th
Cir. 2022) (quoting Wilkinson v. Austin, 545 U.S. 209, 223
(2005)); Brown v. Or. Dep’t of Corr., 751 F.3d 983, 988 (9th
Cir. 2014) (“We . . . have not clearly held that conditions in
the general population, as opposed to those in other forms of
administrative segregation or protective custody, form the
appropriate baseline comparator.”). We also acknowledge
the parties’ agreement that the baseline for comparison here
is Level IV general population facilities. Given the lack of
dispute on the question, we assume the parties’ proposed
 ASHKER V. NEWSOM 53

baseline for our analysis. But I believe that is the wrong
baseline for this case and for future cases.
Thus far, our court has taken a somewhat ad hoc
approach without definitively resolving whether the proper
baseline is the general prison population or a different form
of confinement, such as administrative segregation or
protective custody. See Johnson, 55 F.4th at 1198
(comparing the challenged conditions to the inmate’s
“underlying conditions of confinement”); Brown, 751 F.3d
at 988 (“[W]e need not locate the appropriate baseline here
because Brown’s [confinement] imposed an atypical and
significant hardship under any plausible baseline.”); Jackson
v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (“Sandin
requires a factual comparison between conditions in general
population or administrative segregation (whichever is
applicable) and disciplinary segregation . . . .”).
The D.C. Circuit surveyed the landscape on this question
in Aref v. Lynch, 833 F.3d 242, 253 (D.C. Cir. 2016), noting
that “lower court assessments have diverged.” “The Third,
Sixth, and Tenth Circuits all generally look to administrative
confinement as the baseline.” Id. (citing Griffin v. Vaughn,
112 F.3d 703, 706–08 (3d Cir. 1997); Jones v. Baker, 155
F.3d 810, 812–13 (6th Cir. 1998); Gaines v. Stenseng, 292
F.3d 1222, 1224–26 (10th Cir. 2002)). The Fourth Circuit,
by contrast, “looks to the general population as the baseline.”
Id. at 254 (citing Beverati v. Smith, 120 F.3d 500, 504 (4th
Cir. 1997)). The D.C. Circuit explained how the Second,
Fifth, and Seventh circuits take different approaches still.
“[T]he Second Circuit requires a fact-specific determination
that compares the duration and conditions of segregation
with conditions in both administrative confinement and the
general population.” Id. (citing Arce v. Walker, 139 F.3d
329, 336 (2d Cir. 1998)). “The Fifth Circuit . . . has held
54 ASHKER V. NEWSOM

disciplinary segregation can never implicate a liberty interest
unless it ‘inevitably’ lengthens a prisoner’s sentence . . . and
that administrative segregation—being an ordinary incident
of prison life—is essentially incapable of creating a liberty
interest.” Id. at 253 (citing Carson v. Johnson, 112 F.3d 818,
821 (5th Cir. 1997); Orellana v. Kyle, 65 F.3d 29, 31–32 (5th
Cir. 1995)). And “[t]he Seventh Circuit [holds] the baseline
is not just the conditions of confinement within that
particular prison, but those at the harshest facility in the
state’s most restrictive prison.” Id. at 253–54 (citing Wagner
v. Hanks, 128 F.3d 1173, 1175 (7th Cir. 1997)). The D.C.
Circuit then reaffirmed its own approach identifying
administrative segregation as the proper baseline. Id. at
254–55.
In my view, the conditions of administrative segregation
or protective custody are the proper baseline comparators
when determining whether a challenged prison condition
imposes atypical and significant hardship. 1 The Supreme

1
Both parties suggest in their supplemental briefing that there is no
single baseline from which to measure atypical and significant hardship,
and that the proper baseline is fact-specific and varies case by case. For
most inmates, the ordinary incidents of prison life will include the
possibility of administrative segregation, making it the proper baseline.
See Hewitt v. Helms, 459 U.S. 460, 468 (1983), abrogated in part on
other grounds, Sandin v. Conner, 515 U.S. 472 (1995). That said, the
specific conditions of administrative segregation could vary from prison
to prison. And for certain inmates, the ordinary incidents of prison life
may deviate from the standard based on specific conditions imposed by
the sentence. See, e.g., Porter v. Pa. Dep’t of Corr., 974 F.3d 431, 456
(3d Cir. 2020) (Porter, J., concurring in part and dissenting in part)
(describing an inmate whose “death sentence carries with it the statutory
requirement that he remain in solitary confinement,” thus concluding
that “solitary confinement is ‘within the sentence imposed’” and “not
atypical but exactly what [the inmate] could reasonably expect”). Thus,
 ASHKER V. NEWSOM 55

Court held in Sandin that we ask whether the challenged
condition “imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
515 U.S. at 484 (emphasis added). “[A]dministrative
segregation is the sort of confinement that inmates should
reasonably anticipate receiving at some point in their
incarceration.” Hewitt, 459 U.S. at 468; see also Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (“[T]he Ninth
Circuit explicitly has found that administrative segregation
falls within the terms of confinement ordinarily
contemplated by a sentence.” (quoting May v. Baldwin, 109
F.3d 557, 565 (9th Cir. 1997)). Holding that the inmate in
Sandin had no liberty interest in avoiding the challenged
condition, the Supreme Court concluded that the challenged
condition “mirrored those conditions imposed upon inmates
in administrative segregation and protective custody.” 515
U.S. at 486.
Our precedent acknowledges this. In setting forth
“guideposts” for determining whether a condition is atypical
and significant, we have said that courts should consider
“whether the challenged condition mirrored those conditions
imposed on inmates in administrative segregation and
protective custody.” Johnson, 55 F.4th at 1195–96 (quoting
Ramirez, 334 F.3d at 861) (internal quotation marks
omitted).
This makes sense. Administrative segregation is a form
of confinement that prison officials may impose. Hewitt,
459 U.S. at 468; see also Chappell v. Mandeville, 706 F.3d
1052, 1064–65 (9th Cir. 2013) (characterizing
administrative segregation and protective custody as

I would leave open the possibility that the baseline could vary from case
to case. See Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).
56 ASHKER V. NEWSOM

“discretionary confinement settings.”). If the challenged
condition mirrors conditions that the prison may impose
without additional procedures, then the challenged condition
is not atypical and significant. See Chappell, 706 F.3d at
1064–65; see also Sandin, 515 U.S. at 486 (“Conner’s
confinement did not exceed similar, but totally discretionary,
confinement . . . .”); Johnson, 55 F.4th at 1196 (no liberty
interest is implicated by transfers that “may be made on the
basis of ‘informed predictions as to what would best serve
institutional security or the safety and welfare of the
inmate’” (quoting Meachum v. Fano, 427 U.S. 215, 225
(1976))). That is why we have framed our first guidepost as
“whether the challenged condition ‘mirrored those
conditions imposed upon inmates in administrative
segregation and protective custody,’ and thus comported
with the prison’s discretionary authority.” Ramirez, 334
F.3d at 861 (quoting Sandin, 515 U.S. at 486–87) (emphasis
added).
In my view, discretionary confinement such as
administrative segregation and protective custody constitute
the proper baseline for whether a challenged prison
condition is atypical and significant. 2 See Aref, 833 F.3d at
253–54.

2
When comparing a challenged condition to the conditions of
administrative segregation or protective custody, we should also
consider the typical duration of confinement in administrative
segregation or protective custody. See Sandin, 515 U.S. at 486
(“Conner’s confinement did not exceed similar, but totally discretionary,
confinement in either duration or degree of restriction.” (emphasis
added)); Aref, 833 F.3d at 254–55. Our guideposts account for this
consideration. Ramirez, 334 F.3d at 861 (considering “the duration of
the condition, and the degree of restraint imposed”).