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 viol