Plata v. Schwarzenegger

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARCIANO PLATA; RALPH COLEMAN, 
Plaintiffs-Appellees,
J. CLARK KELSO, No. 09-15864
Receiver,
v.  D.C. No.
3:01-cv-01351-TEH
ARNOLD SCHWARZENEGGER, OPINION
Governor; MICHAEL GENEST; JAMES
E. TILTON,
Defendants-Appellants.

Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding

Argued and Submitted
September 16, 2009—San Francisco, California

Filed April 30, 2010

Before: Mary M. Schroeder, William C. Canby, Jr. and
Michael Daly Hawkins, Circuit Judges.

6435
6438 PLATA v. SCHWARZENEGGER
COUNSEL

Rebekah Evenson, Prison Law Office, Berkeley, California,
for the plaintiffs-appellees.

George C. Harris, Morrison & Foerster LLP, San Francisco,
California, for the receiver.

Paul B. Mello, Hanson Bridgett LLP, San Francisco, Califor-
nia, for the defendants-appellants.

OPINION

CANBY, Circuit Judge:

This class action was brought by California prisoners to
challenge deficiencies in prison medical care that allegedly
violated the Eighth Amendment and the Americans with Dis-
abilities Act, 42 U.S.C. §§ 12101-12213. The parties con-
sented to the entry of stipulated orders providing steps to
remedy the deficiencies. When the State was unable to com-
ply with the consent orders, the court imposed a receivership
on the California Department of Corrections and Rehabilita-
tion (“CDCR”) to administer and improve prisoner health
care.

Although the State did not oppose or appeal from the
appointment of the Receiver, it now seeks, after several years,
to terminate the receivership on the ground that the Prison Lit-
igation Reform Act, 18 U.S.C. § 3626 (“PLRA” or “Act”),
deprived the district court of the power to appoint a receiver
in prison litigation. In addition, the State contends that the
receivership was not “the least intrusive means necessary to
correct the violation of the Federal right,” as the Act requires
the district court to find in granting prospective relief. Id.
§ 3626(a)(1)(A). Finally, the State challenges the Receiver’s
 PLATA v. SCHWARZENEGGER 6439
planning for construction of additional prison facilities on the
ground that the Act implicitly prohibits such planning.

We conclude that the Act does not deprive the district court
of its equitable power to appoint a receiver in prison litiga-
tion. We also reject the State’s challenge to the district court’s
finding that a receivership was the least intrusive means of
remedying constitutional violations in prisoner health care.
Finally, we conclude that we lack jurisdiction to review the
district court’s refusal to terminate the Receiver’s construc-
tion plan. We accordingly affirm the portion of the district
court’s order that denied the State’s motion to terminate the
receivership, and we dismiss the appeal of the portion reject-
ing the challenge to the Receiver’s construction planning.

I. Background

The plaintiffs brought this action on behalf of all inmates
of California state prisons. The complaint alleges that the
State has provided inmates with inadequate medical care in
violation of the Eighth Amendment and the Americans with
Disabilities Act.1 In January 2002, after almost three years of
informal negotiations and prior to discovery or any ruling on
the part of the court, the parties entered into a “Stipulation and
Order for Injunctive Relief” (“Relief Order”) designed to rem-
edy the alleged violations. The court approved the Relief
Order that June.

As part of the Relief Order, the State agreed to implement
specific remedial procedures to ensure the provision of consti-
tutionally adequate medical care in prisons statewide. These
1
This case is one of four pending class actions concerning the provision
of constitutionally inadequate medical care in California state prisons. The
other three are Coleman v. Schwarzenegger, Nos. 2:90-cv-00520 (E.D.
Cal.) (mental health care); Perez v. Cate, No. 3:05-cv-05241 (N.D. Cal.)
(dental care); and Armstrong v. Schwarzenegger, No. 4:94-cv-02307 (N.D.
Cal.) (compliance with the Americans with Disabilities Act).
6440 PLATA v. SCHWARZENEGGER
measures were to be taken on a rolling basis with seven pris-
ons implementing the procedures in 2003 and five additional
prisons implementing them each year through 2008. The
Relief Order provides that it shall be “binding upon, and faith-
fully kept, observed, performed and be enforceable by and
against the parties” and empowers the district court to enforce
its terms through “specific performance and all other remedies
permitted by law.” In accord with this authorization, the dis-
trict court convened monthly status conferences, toured one of
the subject prisons, enlisted experts to monitor compliance
with the Relief Order, and encouraged the parties to devise a
joint plan for attaining the goals of the Relief Order. The
going was slow. In September 2004, after two years of little
progress, the parties entered into a Stipulated Order Regard-
ing the Quality of Patient Care and Staffing (“Care Order”),
which the court promptly approved. This Care Order was
meant to ensure the competency of medical staff and to estab-
lish procedures for the identification and treatment of high-
risk patients.

Three years after entering into the consent decree, not a sin-
gle prison had successfully implemented the remedial proce-
dures, despite the fact that a “significant number” of inmates
had died as a direct result of substandard medical care—a fact
the State openly acknowledges. Reckoning that the medical
delivery system was “too far gone to be corrected by conven-
tional methods,” the district court issued an order directing the
State to show cause as to why it should not be held in con-
tempt for failing to comply with prior orders and, also, why
the court should not appoint a receiver to manage the delivery
of constitutionally adequate medical care in state prisons.

Because the Relief Order was the product of a settlement,
attained without findings of fact, the district court conducted
a six-day evidentiary hearing on the order to show cause. At
the hearing, the court received dozens of exhibits into evi-
dence and took testimony from various experts and state
employees. Numerous experts testified as to the “incompe-
 PLATA v. SCHWARZENEGGER 6441
tence and indifference” of prison physicians and medical staff
and described an “abysmal” medical delivery system where
“medical care too often sinks below gross negligence to out-
right cruelty.” Despite such damning revelations, the State let
the reports and testimony of those experts go, in the words of
the court, “essentially uncontested.” Indeed, the State can-
didly admitted in its response to the order to show cause “that
to date [it had] failed to attain compliance with all aspects of
[prior] Court Orders.”

In October 2005, after briefing by the parties and amici
curiae, the district court issued its findings of fact and conclu-
sions of law regarding the order to show cause. After
cataloguing “extensive and disturbing” constitutional viola-
tions in the delivery of medical care to inmates, the court
declared its intention to hold the citation for contempt in
abeyance and to establish a receivership to remedy the viola-
tions. Echoing the PLRA, see 18 U.S.C. § 3626(a)(1)(A), the
court found that the receivership and “those actions necessary
to effectuate its establishment, are narrowly drawn to remedy
the constitutional violations at issue, extend no further than
necessary to correct a current and ongoing violation of a fed-
eral right, and are the least intrusive means necessary to cor-
rect these violations.” “[I]f the system is not dramatically
overhauled,” the court observed, an “unconscionable degree
of suffering and death is sure to continue.”

In February 2006, the district court issued an order appoint-
ing a Receiver and conferring upon the Receiver all of the
powers of the Secretary of the CDCR with respect to the
delivery of medical care, while concurrently suspending the
Secretary’s exercise of the same. Notwithstanding the “un-
precedented . . . scope and dimension” of the receivership, as
noted by the court, the State neither objected to nor appealed
the orderSee 28 U.S.C. § 1292(a)(2) (authorizing appeals
from “[i]nterlocutory orders appointing receivers”). Among
other things, the order requires that all costs related to the
receivership be borne by the State and directs the Receiver to
6442 PLATA v. SCHWARZENEGGER
prepare a “Plan of Action” for remedying the constitutional
violations and to file regular progress reports with the court.

In May 2007, the Receiver filed a draft Plan of Action call-
ing for the construction of 10,000 new beds and a motion to
modify the original stipulated orders to accommodate “the
changed circumstances reflected by the need for [the Receiv-
er’s] appointment, and in order to facilitate implementation of
the [Plan of Action].” Plata v. Schwarzenegger, 560 F.3d 976,
979 (9th Cir. 2009) (alteration in original) (internal quotation
marks omitted). California’s response was to join the motion,
which the district court subsequently granted. Over the course
of the next fourteen months, the Receiver filed numerous
motions and revised plans of action, many of which con-
cerned the construction of new facilities and all of which,
until mid-2008, met with the approval or acquiescence of the
State. Id. at 979-80.

In July 2008, the Receiver requested $204.6 million in pre-
viously appropriated funds from the State for the implementa-
tion of its final, court-approved plan of action. Id. at 980.
When the State denied its request, the Receiver moved the
district court to cite State defendants Schwarzenegger and
Chiang for contempt of court for failing to transfer the funds.
Id. Following the submission of briefs and a hearing, in which
the State averred that it was “unable to provide any of the
unencumbered [previously appropriated] funds to the Receiv-
er,” the court issued an order directing the State to transfer
$250 million to the Receiver no later than November 5, 2008,
or risk being cited for contempt. Id. (alteration in original)
(internal quotation marks omitted). The State appealed the
order, but, in March 2009, we dismissed the appeal as non-
final because further proceedings relating to the contempt
were clearly contemplated. Id. at 982.

Meanwhile, in January 2009, the State had filed in district
court the motion that is the subject of this appeal. The State
moved to end the receivership and replace the Receiver with
 PLATA v. SCHWARZENEGGER 6443
a special master. The motion also sought to terminate the
Receiver’s construction plan. The State contended that, as a
matter of law, the PLRA barred the district court from both
appointing a receiver and “ordering the construction of pris-
ons.” The Receiver made two requests of the district court:
first, that it convene an evidentiary hearing on the Motion to
Terminate, and, second, that the district court grant it leave to
conduct limited discovery regarding certain factual issues
implicated in the motion. The State opposed the requests,
arguing that the Motion to Terminate was “based on the plain
language of the PLRA and present[ed] discrete legal ques-
tions” and, therefore, could be decided without an evidentiary
hearing.

Observing that the State sought to terminate the receiver-
ship on purely legal grounds, the district court denied without
prejudice the Receiver’s request to schedule an evidentiary
hearing, and denied as premature the Receiver’s request to
conduct limited discovery. Three weeks later, the district
court issued an order denying the entire Motion to Terminate,
which the State now appeals.

II. Standards of Review

“We review de novo the district court’s construction or
interpretation of a statute.” United States v. Carranza, 289
F.3d 634, 642 (9th Cir. 2002). We review mixed questions of
law and fact for clear error when the factual issues predomi-
nate. See Tolbert v. Page, 182 F.3d 677, 681-85 (9th Cir.
1999) (en banc).

III. Discussion

A. The PLRA Does Not Bar the Appointment of
Receivers in Prison Litigation.

The heart of the State’s argument is that the PLRA implic-
itly bars the district court from appointing a receiver because
6444 PLATA v. SCHWARZENEGGER
it provides for the appointment of a special master. The State
relies on the general intent of the PLRA to limit judicial inter-
vention into prison management, and contends that the Act’s
provision for a special master must be read to exclude the
appointment of receivers.

[1] Certainly nothing in the PLRA expressly prohibits the
appointment of a receiver. Receiverships were far from
unknown in prison litigation before the enactment of the
PLRA in 1990. The best known example was the appointment
by Chief Judge Frank Johnson of a receiver (the state gover-
nor) to oversee the entire Alabama prison system. See New-
man v. Alabama, 466 F. Supp. 628, 635 (M.D. Ala. 1979).
Other receivers were employed to govern city or county jails
or jail systems. See Inmates of D.C. Jail v. Jackson, 158 F.3d
1357, 1359 (D.C. Cir. 1998) (jail’s medical and mental health
services); Shaw v. Allen, 771 F. Supp. 760, 763-64 (S.D. W.
Va. 1990) (county jail); Wayne County Jail Inmates v. Wayne
County Chief Executive Officer, 444 N.W.2d 549, 560-61
(Mich. Ct. App. 1989) (county jail system). Receiverships
were also a recognized tool for taking over other governmen-
tal agencies that could not or would not comply with the law.
See Morgan v. McDonough, 540 F.2d 527, 532-34 (1st Cir.
1976) (school desegregation); Gary W. v. Louisiana, Civ. A.
No. 74-2412, 1990 WL 17537, at *30-33 (E.D. La. Feb. 26,
1990) (state children’s services agencies); Turner v. Goolsby,
255 F. Supp. 724, 730 (S.D. Ga. 1966) (county school sys-
tem); Judge Rotenberg Educ. Ctr., Inc. v. Comm’r of Dep’t of
Mental Retardation, 677 N.E.2d 127, 150 (Mass. 1997)
(Department of Mental Retardation), abrogated on other
grounds by In re Birchell, 913 N.E.2d 799, 813 (Mass. 2009).

[2] There can be little question, therefore, that receiver-
ships are recognized equitable tools available to the courts to
remedy otherwise uncorrectable violations of the Constitution
or laws. The State accordingly has a high burden in attempt-
ing to show that the PLRA revoked this power by implication.
In Gilmore v. California, 220 F.3d 987 (9th Cir. 2000), we
 PLATA v. SCHWARZENEGGER 6445
recognized “the principle that a statute should not be con-
strued to displace courts’ traditional equitable powers
‘[a]bsent the clearest command to the contrary.’ ” Id. at 997
n.12 (quoting Califano v. Yamasaki, 442 U.S. 682, 705
(1979)) (alteration in Gilmore).

[T]he comprehensiveness of . . . equitable jurisdic-
tion is not to be denied or limited in the absence of
a clear and valid legislative command. Unless a stat-
ute in so many words, or by a necessary and inescap-
able inference, restricts the court’s jurisdiction in
equity, the full scope of that jurisdiction is to be rec-
ognized and applied.

Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). We
find no such clear command or inescapable inference in the
PLRA.

[3] The provisions of the PLRA on which the State focuses
are codified at 18 U.S.C. § 3626(f) and (g), which provide in
pertinent part:

(f) Special masters.—

(1) In general.—(A) In any civil action in
a Federal court with respect to prison
conditions, the court may appoint a
special master who shall be disinter-
ested and objective and who will give
due regard to the public safety, to con-
duct hearings on the record and pre-
pare proposed findings of fact.

....

(6) Limitations on powers and duties.—A
special master appointed under this
subsection—
6446 PLATA v. SCHWARZENEGGER
(A) may be authorized by a court to
conduct hearings and prepare pro-
posed findings of fact, which shall
be made on the record;

(B) shall not make any findings or
communications ex parte;

(C) may be authorized by a court to
assist in the development of reme-
dial plans; and

(D) may be removed at any time, but
shall be relieved of the appoint-
ment upon the termination of relief.

(g) Definitions.—As used in this section—

....

(8) the term “special master” means any
person appointed by a Federal court
pursuant to Rule 53 of the Federal
Rules of Civil Procedure or pursuant
to any inherent power of the court to
exercise the powers of a master,
regardless of the title or description
given by the court . . . .

18 U.S.C. § 3626(f)-(g). These provisions clearly authorize
the appointment of a special master in prison litigation to hold
hearings, make recommended findings, and perform certain
other related functions. They do not, however, provide that
the court may appoint a special master with these powers and
no one else. Nor does anything in § 3626(f) or (g) purport to
address the quite different office of a receiver, appointed by
 PLATA v. SCHWARZENEGGER 6447
the court to take over the day-to-day management of a prison
system or a segment of it.2

The State invokes, however, the canon of expressio unius
est exclusio alterius, arguing that, by providing for special
masters, Congress implicitly negated the appointment of
receivers. But that canon does not work when a single thing
provided for is quite different from another thing omitted. The
canon “does not apply to every statutory listing or grouping;
it has force only when the items expressed are members of an
‘associated group or series,’ justifying the inference that items
not mentioned were excluded by deliberate choice, not inad-
vertence.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168
(2003) (quoting United States v. Vonn, 535 U.S. 55, 65
(2002)); see also Chevron U.S.A. Inc. v. Echazabal, 536 U.S.
73, 81 (2002). The role of a special master as envisaged by
Federal Rule of Civil Procedure 53 and the PLRA is suffi-
ciently distinct from that of a receiver appointed under the
pre-existing inherent authority of a court so that Congress’s
treatment of one without the other does not imply a prohibi-
tion against receivers. Instead, “the better inference is that
what we face here is nothing more than a case unprovided
for.” Barnhart, 537 U.S. at 169. We also note that, even if
expressio unius did apply, the negative implication arguably
drawn from it scarcely could qualify as “the clearest com-
mand” of Congress, Yamasaki, 442 U.S. at 705, or a “neces-
sary and inescapable inference,” Warner Holding Co., 328
U.S. at 398, required to limit the traditional equity powers of
the district court.

The State argues, however, that we should draw a prohibi-
tion against receivers from the general intent behind the
2
Section 3626(g)(8) does include in the definition of “special master” a
person appointed under the inherent authority of the court, but the inclu-
sion is limited to persons appointed “to exercise the powers of a master.”
18 U.S.C. § 3626(g)(8). The Receiver here was appointed to exercise quite
different powers.
6448 PLATA v. SCHWARZENEGGER
PLRA. There is no doubt that one of the purposes of the Act
was to restrict severely the intrusion of the judiciary into the
operation of prisons. See Gilmore, 220 F.3d at 996-97. Much
of that goal was achieved by § 3626(a)(1)(A) of the Act,
which provides that all prospective judicial relief (necessarily
including the appointment of receivers) must be accompanied
by findings that the relief is “narrowly drawn, extends no fur-
ther than necessary to correct the violation of the Federal
right, and is the least intrusive means necessary to correct the
violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). We
are not convinced, however, that Congress effectuated an
intent to prohibit receivers when it wrote the provision gov-
erning special masters into the Act.3

[4] There is little legislative history attending the final
enactment of the PLRA because it was tacked onto an omni-
bus bill. See Omnibus Consolidated Rescissions and Appro-
priations Act of 1996, Pub. L. No. 104-34, § 802(a), 110 Stat.
1321, 1321-66. The PLRA had its origins in three bills earlier
addressed by both chambers of Congress: the Violent Crime
Control and Law Enforcement Improvement Act of 1995, S.
3, 104th Cong. § 103 (1995); the Stop Turning Out Prisoners
Act (“STOP”), S. 400, 104th Cong. (1995), and the PLRA bill
itself, S. 866, 104th Cong. (1995) (enacted). Another pre-
decessor was considered by the House alone, the Violent
Criminal Incarceration Act of 1995, H.R. 667, 104th Cong.
(1995). The legislative history of these bills includes varying
statements of intent to limit judicial management of prisons,
but this general intent appears to have undergone considerable
refinement as the bills were shaped into the enacted PLRA.
For example, the Violent Criminal Incarceration bill included
3
It is clear, of course, that the PLRA does not authorize the appointment
of receivers. As we have explained, federal courts have inherent power
under their equity jurisdiction to appoint receivers, and do not need the
PLRA to confer on the courts what they already have. The only issue pre-
sented here is whether the PLRA prohibits the appointment of receivers,
a question that we answer in the negative.
 PLATA v. SCHWARZENEGGER 6449
a provision regulating special masters that applied to “any
special master or monitor” and provided that such master or
monitor, who had to be a magistrate judge, shall make pro-
posed findings of fact on issues submitted by the court but
that they “shall have no other function.” See, e.g., H.R. Rep.
No. 104-21, at 6 (1995) (emphasis added).4 The House Judi-
ciary Committee Report on this bill stated that this broad lan-
guage was intended to apply to all kinds of persons, including
receivers, that might aid the court in enforcing judicial relief
in a prison lawsuit. Id. at 27-28. But this expansive language
was discarded before the PLRA was enacted. Monitors (or
other court agents) were not included in the limitations appli-
cable to special masters, and even special masters no longer
had to be magistrate judges and they were not expressly lim-
ited to making recommended factual findings. “Where Con-
gress includes limiting language in an earlier version of a bill
but deletes it prior to enactment, it may be presumed that the
limitation was not intended.” Russelloo v. United States, 464
U.S. 16, 23-24 (1983). We conclude that § 3626(f) as finally
enacted neither applies to receivers nor prohibits their use in
implementing judicial relief in prison litigation.

We are supported in our reasoning and conclusion by Ben-
jamin v. Fraser, 343 F.3d 35 (2d Cir. 2003), abrogated in part
on other grounds by Caiozzo v. Koreman, 581 F.3d 63, 70-72
(2d Cir. 2009). In that case, the Second Circuit was faced with
the question whether the PLRA’s provisions regarding special
masters applied to a neutral organization, the Office of Com-
pliance Consultants, appointed by the district court to monitor
relief ordered by the district court for fourteen jails in New
York City. Id. at 39. The Second Circuit noted that the func-
tions of a monitor differed greatly from those of a special
master, and concluded:
4
The special-masters clause in the Senate version of STOP is identical.
See S. 400; see also Local Law Enforcement Enhancement Act of 1995,
S. 816, 104th Cong. (1995).
6450 PLATA v. SCHWARZENEGGER
Nothing in the text of § 3626(f) expressly reveals
Congress’s intent either to treat all court-appointed
agents as special masters or to prohibit a court from
appointing agents to perform functions that differ
from the quasi-judicial activities of special masters.
Indeed, to the extent the PLRA’s definition of “spe-
cial master” is not entirely circular, by limiting its
reference to court-appointed agents to those perform-
ing the duties of a master, the Act, we believe,
implicitly incorporates the long-recognized principle
that Article III courts may appoint agents to engage
in a variety of activities essential to the performance
of judicial responsibilities.

Id. at 45-46. Relying as well on the deletion of the reference
to “monitors” in predecessor bills, the Second Circuit con-
cluded that the court’s inherent power to appoint and employ
monitors was unaffected by § 3626(f). Id. at 46-47.

[5] For parallel reasons, we conclude that the special mas-
ter provisions of § 3626 neither apply to nor prohibit the dis-
trict court’s appointment of a receiver in the present litigation.

B. The District Court Did Not Err in Finding That the
Receivership Was the Least Intrusive Means of
Remedying the Constitutional Violation.

The State next contends that the district court was required
to terminate the receivership because, when it initially
imposed the receivership, it failed to meet the following
requirements of § 3626(a)(1)(A):

Prospective relief in any civil action with respect to
prison conditions shall extend no further than neces-
sary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not
grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn,
 PLATA v. SCHWARZENEGGER 6451
extends no further than necessary to correct the vio-
lation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Fed-
eral right.

18 U.S.C. § 3626(a)(1)(A). The State complains that the dis-
trict court ran afoul of this provision when it failed to appoint
a special master and proceeded to the more drastic remedy of
appointing a receiver.

At the outset, we are compelled to point out that, as a mat-
ter of equity, if not estoppel, the State is in a poor position to
assert this objection to the receivership. The receivership was
imposed only after the State admitted its inability to comply
with consent orders intended to remedy the constitutional vio-
lations in its prisons. After a hearing on the court’s order
requiring the State to show cause why it should not be held
in contempt, the district court issued findings and conclusions
establishing the need for further measures to remedy gross
constitutional violations, and held the contempt proceeding in
abeyance while a receivership was imposed. The State
acknowledged without reservation the court’s authority to
appoint a receiver. That was in 2005. The district court
appointed the Receiver the following year, and the State took
no appeal. Since that time—a period of more than three years
—the State has unstintingly cooperated with the Receiver in
his efforts to develop remedial plans and renovate existing
medical facilities. And, as recently as November 2008, the
appellant argued to the three-judge court in parallel proceed-
ings in Coleman v. Schwarzenegger, see supra n.1, that the
Receiver is the least intrusive means of remedying constitu-
tional violations in the provision of medical services to Cali-
fornia’s prisoners. (S.E.R. 1369.)

[6] Be that as it may, the record simply does not support
the State’s contention that anything less than a receivership
would have remedied the undisputed constitutional deficien-
cies in prisoners’ health care at the time the receivership was
6452 PLATA v. SCHWARZENEGGER
imposed. The State stipulated to two orders intended to rem-
edy the deficiencies and it later confessed its inability to carry
out those orders. The State never suggested how it could,
through its own machinery, comply with those orders or oth-
erwise rectify the constitutional deficiencies in its prison
health care. The court imposed the receivership not because
it wanted to, but because it had to. After attempting less dras-
tic remedies, and after long periods of working closely with
State authorities to try to bring them into compliance with the
orders to which they had stipulated, the district court justifi-
ably concluded that the State’s personnel simply could not or
would not bring the State into constitutional compliance in the
foreseeable future.

The State further argues that, whatever the situation at the
time the receivership was imposed, the receivership no longer
is the least intrusive means of remedying the constitutional
violations. See 18 U.S.C. § 3626(b); Morales Feliciano v.
Rullan, 378 F.3d 42, 52 (1st Cir. 2004). It is not at all clear
that the State raised this issue in the district court. The ques-
tion whether there are present constitutional violations is fact-
intensive, see Morales Feliciano, 378 F.3d at 52-53, but the
State opposed the Receiver’s request for an evidentiary hear-
ing and insisted that its Motion to Terminate raised only ques-
tions of law.

In any event, nothing in the record supports the State’s con-
tention regarding the current necessity for a receivership, and
a great deal of evidence in the record contradicts it.5 The State
to this day has not pointed to any evidence that it could rem-
5
The State contends that the district court improperly placed on the
State the burden of proving that the receivership was not the least intrusive
method of remedying the constitutional violations. We need not address
that issue because, regardless of the burden of proof, overwhelming evi-
dence in the record supports the district court’s finding that termination of
the receivership and appointment of a special master would not remedy
the constitutional violations. See Pierce v. County of Orange, 526 F.3d
1190, 1206 & n.16 (9th Cir. 2008).
 PLATA v. SCHWARZENEGGER 6453
edy its constitutional violations in the absence of the receiver-
ship. The district court appointed the Receiver to stand in the
stead of the Secretary of the CDCR. The State’s motion to
replace the Receiver with a special master contains no hint of
how a special master, with the limited functions set by the
PLRA, could remedy the violations. A special master is pri-
marily useful for conducting hearings and making recom-
mended findings of fact. The State has not raised any factual
issues to be addressed in such hearings, and it has not asked
for those hearings.

[7] At its most relevant, the PLRA permits a special master
to assist in developing remedial plans. But there has been no
shortage of remedial plans; the State admitted that it could not
comply with two plans to which it had stipulated. Others have
been developed by the Receiver. The problem has not been
with a lack of plans, but with the State’s inability to execute
them. The district court did not err in ruling that a special
master could not remedy the constitutional violations.

The State in its briefing has raised various complaints that
the Receiver has taken unnecessary particular actions, or has
made inappropriate expenditures, beyond those required to
remedy constitutional violations. These individual complaints,
however, do not address the legality or propriety of the
receivership as the least intrusive means of remedying consti-
tutional violations. Whether the Receiver has violated instruc-
tions or gone beyond his mandate in any given instance—
allegations that the Receiver denies—is a matter that must be
addressed to the district court, and be resolved in an evidenti-
ary hearing if necessary. The State successfully opposed an
evidentiary hearing in the district court. It cannot now, on
appeal, make use of its untested allegations in challenging the
legality of the receivership.

[8] We therefore reject the State’s challenge to the receiv-
ership. We conclude that the record amply supports the dis-
trict court’s initial findings that the relief of a receivership
6454 PLATA v. SCHWARZENEGGER
was narrowly drawn, extended no further than necessary to
correct the constitutional violations, and was the least intru-
sive means to correct them. The record also supports the
court’s determination that nothing has cast doubt on the con-
tinuing validity of these findings. There has been no violation
of §§ 3626(a)(1)(A) or 3626(b). We accordingly affirm the
district court’s denial of the State’s motion to terminate the
receivership and appoint a special master.

C. The State’s Challenge to the District Court’s
Refusal to Terminate the Receiver’s Construction
Plan is Not Appealable.

In the district court, the State moved to terminate the
Receiver’s construction plan, asserting that the plan to con-
struct 10,000 health care beds at a cost of $8 billion went well
beyond what was needed to cure the constitutional violations
and lacked the necessary § 3626(a)(1)(A) findings by the dis-
trict court. The district court rejected the motion in part
because the Receiver’s plan had been superseded, and present
plans were still under consideration and in flux, rendering the
challenge premature.

On appeal, the State has shifted its ground somewhat and
argues that the Receiver has no power to engage in planning
for the construction of prison facilities, and that this purported
exercise of power must be terminated. The reason, according
to the State, is that the PLRA deprives the district court and
its Receiver of the power to order prison construction. To the
extent that this argument was presented to the district court,
that court found no need to address it because it had autho-
rized no construction other than renovations to which the
State had not objected.

[9] Whichever form of argument the State now pursues on
appeal, we conclude that we have no jurisdiction to entertain
it. The district court’s ruling rejecting the challenge to the
Receiver’s particular construction plan is not a final judg-
 PLATA v. SCHWARZENEGGER 6455
ment; the plan itself was in flux and, as the district court
stated, the challenge was premature. More important, the rul-
ing did not end the litigation. We therefore have no jurisdic-
tion to review the district court’s ruling as a final judgment
under 28 U.S.C. § 1291.

[10] We also have no jurisdiction over the district court’s
order refusing to terminate the construction plan under
§ 1292(a)(2), which permits interlocutory appeals of orders
“appointing receivers, or refusing orders to wind up receiver-
ships or to take steps to accomplish the purposes thereof.” Id.
§ 1292(a)(2). That statute clearly gave us authority over the
district court’s refusal to terminate (i.e., “wind up”) the
receivership. But the district court’s refusal to block the
Receiver’s construction plan (or to deny the Receiver the
power to plan, as the State now presents it) is not a refusal to
terminate the receivership, nor is it a refusal to take a step to
accomplish the winding up of the receivership. See SEC v.
Am. Principals Holdings, Inc., 817 F.2d 1349, 1350-51 (9th
Cir. 1987) (interpreting § 1292(a)(2)’s “take steps to accom-
plish the purposes thereof” to apply only to orders refusing to
take steps to wind up a receivership). The State’s motion to
terminate construction planning clearly was not intended as a
step toward termination of the receivership; if its motion to
terminate the receivership were granted, no such “step” as
limiting the Receiver’s power would have been necessary or
useful. Instead, the motion to terminate the construction plan
was an alternative to limit the Receiver’s power in the event
that the receivership were to continue. The district court’s
denial of the motion therefore is not a refusal to take a step
to accomplish the winding up of the receivership, and we lack
jurisdiction over the appeal under § 1292(a)(2).

[11] Thus, the order denying the motion to terminate the
Receiver’s construction plan (whether or not based on a
denial of power to plan) is simply one more event in the
administration of the receivership that is not appealable prior
to a final judgment. It does not gain appealability by being
6456 PLATA v. SCHWARZENEGGER
joined to the appeal of an order over which we do have statu-
tory jurisdiction. See Morales Feliciano, 378 F.3d at 48 &
n.3. We accordingly dismiss the appeal of the portion of the
district court’s order refusing to terminate the Receiver’s con-
struction plan.

IV. Conclusion

The portion of the district court’s order denying the motion
to terminate the receivership is affirmed. The appeal from the
portion of the district court’s order denying termination of the
Receiver’s construction plan is dismissed.

AFFIRMED in part, DISMISSED in part.