(a) When
an incarcerated person's presence in an institution's General Population (GP),
inclusive of the Restricted Custody General Population (RCGP) facility,
presents an immediate threat to the safety of the incarcerated person or
others, endangers institution security, or jeopardizes the integrity of an
investigation of an alleged serious misconduct, criminal activity, or the
safety of any person, the incarcerated person shall be immediately removed from
the GP and placed in a Restricted Housing Unit (RHU) pursuant to subsection
3335(c). Initial
placement into these units requires issuance of an automated Restricted Housing
Unit Placement Notice (RHUPN) (11/23), which is incorporated by reference, and
approval by an Administrative Reviewer as described in subsection
3336(b). If an
Institution Classification Committee (ICC) determines continued placement in a
RHU is appropriate, approval by the Classification Staff Representative (CSR)
for extension or an assessed Determinate RHU term, or by the Departmental
Review Board (DRB) if the incarcerated person is being assessed an
Administrative RHU term, on the basis of classification committee
recommendations and referrals is required. CDCR staff shall not place
incarcerated persons into a RHU solely on the basis of their validation
status.
(b) Non-Disciplinary
Restricted Housing.
(1) Non-Disciplinary
Restricted Housing (NDRH) means temporary restricted housing placement for
administrative reasons including, but not limited to:
(A) RHU placement for investigation of safety
concerns not resulting from the incarcerated person's own misconduct.
1. Incarcerated persons whose safety concerns
result from the incarcerated person's own misconduct or the incarcerated
person's failure to cooperate with the investigation into their safety concerns
may be denied NDRH designation by an ICC. In these cases, the ICC shall
document the information detailing the misconduct and reasoning for denial of
NDRH within the automated Classification Committee Chrono
(05/19).
(B)
Investigation not related to misconduct or criminal activity.
(C) Being a relative or an associate of a
prison staff member.
(D)
Investigation related to being the victim of a Prison Rape Elimination Act
(PREA) incident.
1. If the placement in NDRH
is related to being the victim of a PREA incident, the incarcerated person will
be afforded all programs, privileges, and education in accordance with section
3044 and subsection
3190(b)(5)(C), of
Title 15 of the CCR. If these are restricted, assigned staff shall document:
1) the opportunities that have been limited;
2) the duration of the limitation;
and
3) the reasons for such
limitations.
2. The
facility shall assign such incarcerated persons to NDRH only until an
alternative means of separation from likely abusers can be arranged, and such
an assignment shall not ordinarily exceed a period of 30 days. If the period of
restricted housing exceeds 30 days, reasoning shall be documented on an
automated Classification Committee Chrono (05/19), which is incorporated by
reference.
3. Every 30 days, the
facility shall afford each such incarcerated person a review by the assigned
custody supervisor to determine whether there is a continuing need for
restricted housing. The review shall be documented on the CDC Form 128-B (Rev.
4/74), General Chrono. If the custody supervisor determines the need for
continued restricted housing no longer exists, the incarcerated person shall be
referred to the ICC for a program review.
(E) Post Restricted Housing Unit Maximum
Release Date (RHU MRD) pending transfer to the GP.
(F) Lack of appropriate bed space.
(G) Out-to-court and return for non-criminal
proceedings with case factors precluding release to the GP.
(2) Designation as NDRH shall be made by ICC.
(A) Any case designated as NDRH, pursuant to
subsections
3335(b)(1)(A)
through
3335(b)(1)(C),
and included in the MHSDS shall be transferred to an appropriate institution
within 72 hours of initial designation.
(3) A printed copy of the Administrative
Segregation Unit Placement Notice shall be issued to the inmate at the time of
placement in administrative segregation by the official ordering placement or
by staff at the level of Correctional Lieutenant, CCII or higher.
(A) When necessary, the official ordering
administrative segregation placement shall accurately document whether the
inmate has Limited English Proficiency (LEP), or has a disability or
communication need requiring effective communication, whether there is a need
for an accommodation or assistance to ensure effective communication as defined
in Section
3000, and if necessary, document
the provision of any assistance provided that is consistent with the inmate's
communication need, and document the method staff used to determine the inmate
understood.
(4)
Administratively segregated inmate's returning to their endorsed institution
from out-to-court or out-to-medical shall not require an updated Administrative
Segregation Unit Placement Notice unless the inmate's next scheduled ICC
hearing was missed or the circumstances for segregation have
changed.
(c) The reasons
for ordering an incarcerated person's placement in restricted housing shall be
clearly articulated on an automated RHUPN (11/23) by the initial authority who
ordered placement in restricted housing.
(1)
The automated RHUPN (11/23) shall include sufficient information and detail to
allow the incarcerated person to present a written or verbal defense to the
stated reason(s) and circumstances for restricted housing during the
classification hearing.
(2) The
authority to order an incarcerated person's initial placement in restricted
housing shall not be delegated below the staff level of Correctional Lieutenant
or Correctional Counselor II (CCII) Supervisor, except when a lower level staff
member is the highest ranking official on duty.
(3) A printed copy of the automated RHUPN
(11/23) shall be issued to the incarcerated person at the time of placement in
restricted housing by the official ordering placement or by staff at the level
of Correctional Lieutenant, CCII Supervisor, or higher.
(A) When necessary, the official ordering
restricted housing placement shall accurately document whether the incarcerated
person has Limited English Proficiency (LEP), or has a disability or
communication need requiring effective communication, whether there is a need
for an accommodation or assistance to ensure effective communication as defined
in section
3000, and if necessary, document
the provision of any assistance provided that is consistent with the
incarcerated person's communication need, and document the method staff used to
determine the incarcerated person understood.
(4) Restricted housing incarcerated persons
returning to their endorsed institution from out-to-court or out-to-medical
shall not require an updated automated RHUPN (11/23) unless the incarcerated
person's next scheduled ICC hearing was missed or the circumstances for
restricted housing have changed.
(d) In addition to the automated RHUPN
(11/23), the initial authority who ordered placement in restricted housing or
designee shall prepare a CDC Form 114-A1 (11/23), Inmate Restricted Housing
Profile, which is hereby incorporated by reference, for each incarcerated
person being placed on restricted housing status.
(e) A staff member at the rank of Captain,
Correctional Counselor III (CCIII) or higher may rescind the placement and
order the release of an incarcerated person in restricted housing at any time
prior to the initial ICC.
(f) All
classification committee actions shall be documented, including a specific
record of the incarcerated person's participation, an explanation of the
reason(s), and the information and evidence relied upon for the action taken.
The incarcerated person shall be provided a copy of the automated
Classification Committee Chrono (05/19) and copies of the completed forms
relied upon in making the decisions affecting the incarcerated
person.
(g) Special circumstances
or exceptions to the placement criteria for RHU must be referred to and decided
by the DRB in accordance with section
3376.1.
Notes
Cal. Code Regs. Tit. 15, §
3335
Note: Authority cited: Section
5058, Penal
Code. Reference: Sections
5054 and
5068, Penal
Code; 28 CFR Sections
115.42 and
115.43; Wright v. Enomoto, (1976)
462 F.Supp. 397; Toussaint v. McCarthy (9th Cir. 1986) 801 F.2d 1080, cert.
denied, 481 U.S. 1069; Sandin v. Connor (1995) 515 U.S. 472; Toussaint v.
McCarthy (9th Cir. 1990) 926 F.2d 800; and Toussaint v. Yockey (9th Cir. 1984)
722 F.2d 1490.
Note: Authority cited: Section
5058, Penal
Code. Reference: Sections
5054 and
5068, Penal
Code; 28 CFR Sections
115.42 and
115.43; Wright v. Enomoto, (1976)
462 F.Supp. 397; and Toussaint v. McCarthy (9th Cir. 1986) 801 F.2d 1080, cert.
denied, 481 U.S.
1069.
1.
Repealer of Article 7 (Sections 3340-3357) and new Article 7 (Sections
3335-3345) filed 4-18-80; effective thirtieth day thereafter (Register 80 No.
16). For prior history see Registers 76, No. 31; 77, No. 9; 78, No. 25; and 79,
No. 34.
2. Amendment of subsection (b) filed 9-24-81; effective
thirtieth day thereafter (Register 81, No. 39).
3. Amendment filed
8-7-87 as an emergency; operative 8-7-87 (Register 87, No. 34). A Certificate
of Compliance must be transmitted to OAL within 120 days or emergency language
will be repealed on 12-7-87.
4. Certificate of Compliance as to
8-7-87 order transmitted to OAL 12-4-87; disapproved by OAL (Register 88, No.
16).
5. Amendment filed 1-4-88 as an emergency; operative 1-4-88
(Register 88, No. 16). A Certificate of Compliance must be transmitted to OAL
within 120 days or emergency language will be repealed on 5-3-88.
6.
Certificate of Compliance as to 1-4-88 order transmitted to OAL 5-3-88;
disapproved by OAL (Register 88, No. 24).
7. Amendment filed 6-2-88
as an emergency; operative 6-2-88 (Register 88, No. 24). A Certificate of
Compliance must be transmitted to OAL within 120 days or emergency language
will be repealed on 9-30-88.
8. Certificate of Compliance
transmitted to OAL 9-26-88 and filed 10-26-88 (Register 88, No.
50).
9. Amendment of article heading and subsection (c), repealer of
subsections (c)(1)-(c)(1)(B), new subsections (d)-(i) and amendment of Note
filed 6-15-2005 as an emergency pursuant to Penal Code section
5058.3;
operative 6-15-2005 (Register 2005, No. 24). A Certificate of Compliance must
be transmitted to OAL by 11-22-2005 or emergency language will be repealed by
operation of law on the following day.
10. Editorial correction of
subsection (d)(3) and History 9 (Register 2005, No. 50).
11.
Certificate of Compliance as to 6-15-2005 order transmitted to OAL 10-31-2005
and filed 12-15-2005 (Register 2005, No. 50).
12. Change without
regulatory effect amending subsection (d)(3) filed 5-4-2009 pursuant to section
100, title 1, California Code of Regulations (Register 2009, No.
19).
13. Change without regulatory effect amending subsection (g)
filed 5-11-2011 pursuant to section 100, title 1, California Code of
Regulations (Register 2011, No. 19).
14. New subsections (b)-(b)(3)
and subsection relettering filed 9-24-2013 as an emergency; operative 9-24-2013
(Register 2013, No. 39). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 3-3-2014 or emergency
language will be repealed by operation of law on the following
day.
15. Certificate of Compliance as to 9-24-2013 order, including
further amendment of subsections (b)-(b)(1), transmitted to OAL 2-20-2014 and
filed 3-24-2014; amendments operative 3-24-2014 pursuant to Government Code
section
11343.4(b)(3)
(Register 2014, No. 13).
16. Amendment of subsections (e)(2)-(3) and
(h) filed 10-17-2014; operative 10/17/2014 pursuant to Government Code
section
11343.4(b)(3)
(Register
2014, No. 42).
17. Amendment of article heading,
repealer of subsections (a)-(i), new first paragraph, new subsections (a)-(d)
and subsection relettering filed 6-1-2015 as an emergency; operative 6-1-2015
(Register 2015, No. 23). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 11-9-2015 or emergency
language will be repealed by operation of law on the following
day.
18. Certificate of Compliance as to 6-1-2015 order, including
further amendment of subsections (b) and (c), transmitted to OAL 10-19-2015 and
filed 12-3-2015; amendments effective 12/3/2015 pursuant to Government Code section
11343.4(b)(3)
(Register
2015, No. 49).
19. New subsections
(a)(1)(D)-(a)(1)(D)3. and amendment of Note filed 10-20-2016; operative
10/20/2016
pursuant to Government Code section
11343.4(b)(3)
(Register
2016, No. 43).
20. Amendment of first paragraph and
subsections (a)(1)-(a)(1)(A) filed 10-9-2017 as an emergency; operative
10/9/2017
(Register
2017, No. 41). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 3-19-2018 or emergency
language will be repealed by operation of law on the following
day.
21. Amendment of first paragraph and subsections
(a)(1)-(a)(1)(A) refiled 3-5-2018 as an emergency; operative 3-19-2018
(Register 2018, No. 10). Pursuant to Penal Code section
5058.3,
a Certificate of Compliance must be transmitted to OAL by 8-27-2018 or
emergency language will be repealed by operation of law on the following
day.
22. Certificate of Compliance as to 3-5-2018 order transmitted
to OAL 8-21-2018 and filed 10/3/2018 (Register
2018, No. 40).
23. Amendment of subsections
(a)(1)(D)2., (b)-(b)(1) and (b)(3)-(c) filed 6-9-2020; operative
10/1/2020
(Register
2020, No. 24).
24. Amendment of article heading,
repealer and new section heading and amendment of section filed 10-24-2023 as
an emergency; operative 11/1/2023 (Register
2023, No. 43). Pursuant to Penal Code section
5058.3, a
Certificate of Compliance must be transmitted to OAL by 4-9-2024 or emergency
language will be repealed by operation of law on the following
day.
25. Amendment of article heading, repealer and new section
heading and amendment of section refiled 4-8-2024 as an emergency; operative
4/11/2024
(Register
2024, No. 15). Pursuant to Penal Code section 5058.3, a
Certificate of Compliance must be transmitted to OAL by 7-10-2024 or emergency
language will be repealed by operation of law on the following day.
26. Change without regulatory effect amending section filed
7-1-2024 pursuant to section 100, title 1, California Code of Regulations
(Register
2024, No. 27).