LAWRENCE K. KARLTON, Senior District Judge.
Plaintiffs are a class of prisoners with serious mental disorders confined in the California Department of Corrections and Rehabilitation ("CDCR"). In 1995, this court found defendants in violation of their Eighth Amendment obligation to provide class members with access to adequate mental health care. Coleman v. Wilson, 912 F.Supp. 1282 (E.D.Cal.1995). To remedy the gross systemic failures in the delivery of mental health care, the court appointed a Special Master to work with defendants to develop a plan to remedy the violations and, thereafter, to monitor defendants' implementation of that remedial plan. See Order of Reference, filed December 11, 1995 (Dkt. No. 640). That remedial process has been ongoing for over seventeen years.
This matter is before the court on defendants' motion pursuant to 18 U.S.C. § 3626(b) and Fed.R.Civ.P. 60(b)(5) to "terminate all relief in this action, vacate the Court's judgment and orders and dismiss the case." Notice of Motion and Motion to Terminate Under the Prison Litigation Reform Act [18 U.S.C. § 3626(b)] and Vacate the Court's Judgement and Orders Under Federal Rule of Civil Procedure 60(b)(5), filed January 7, 2013 ("Notice of Motion") (ECF No. 4275) at 1.
I. Motion to Terminate Under 18 U.S.C. § 3626(b)
Pursuant to 18 U.S.C. § 3626(b), defendants seek termination of all prospective relief and dismissal of this action. Defendants contend that they have remedied the six core constitutional deficiencies identified in the court's 1995 order, that they provide timely access to mental health care, and that they are not deliberately indifferent to the serious needs of class members for mental health care.
A. General Legal Standards
Section 3626(b) of Title 18 of the United States Code, enacted as part of the Prison Litigation Reform Act of 1995 ("PLRA"), provides in relevant part that "prospective relief" ordered in "any civil action with respect to prison conditions" is "terminable upon the motion of any party — 2 years after the date the court granted or approved the prospective relief." 18 U.S.C. § 3626(b)(1)(i). However, "[p]rospective
As the moving party, defendants have the burden of demonstrating "that there are no ongoing constitutional violations, that the relief ordered exceeds what is necessary to correct an ongoing constitutional violation, or both." Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir.2010) (citing Gilmore v. California, 220 F.3d 987, 1007-08 (9th Cir.2000)). Plaintiffs do not, as defendants contend, have the burden of proving either of those two elements of defendants' termination motion. "[N]othing in the termination provisions [of 18 U.S.C. § 3626(b)] can be said to shift the burden of proof from the party seeking to terminate the prospective relief." Gilmore, 220 F.3d at 1007. Defendants argue that the court is somehow free to disregard the specific holdings in Gilmore and Graves that defendants bear the burden of proof on this motion, holdings that are, after all, consistent with the ordinary rule that the party seeking an order bears the burden of proof.
The record on which this motion is decided must reflect "`conditions as of the time termination is sought.'" Gilmore, 220 F.3d at 1010 (quoting Benjamin v. Jacobson, 172 F.3d 144, 166 (2nd Cir. 1999)). "Because the PLRA directs a district court to look to current conditions, and because the existing record at the time the motion for termination is filed will often be inadequate for purposes of this determination, the party opposing termination must be given the opportunity to submit additional evidence in an effort to show current and ongoing constitutional violations." Hadix v. Johnson, 228 F.3d 662, 671-72 (6th Cir.2000) (emphasis in text) (and cases cited therein) (emphasis in original).
On January 18, 2013, pursuant to court order, the Special Master filed his Twenty-Fifth Round Monitoring Report ("Twenty-Fifth Round Report") (ECF No. 4298). It was circulated to the parties on December 28, 2012. It is the Special Master's twenty-fifth report to the court on defendants' compliance with the remedial plan in this action, currently referred to as the Revised Program Guide. It covers the period from May 1, 2012 through September 11, 2012, and is based on visits by the Special Master and his monitoring team to twenty-three prison institutions and document reviews for the remaining institutions. Twenty-Fifth Round Monitoring Report (ECF No. 4298) at 10.
In opposition to defendants' termination motion, plaintiffs filed five expert declarations totaling over 400 pages and accompanied by numerous exhibits, as well as three declarations of counsel with over one hundred additional exhibits. Plaintiffs have also tendered numerous depositions of defendants' declarants, experts, and other witnesses. In reply to plaintiffs' opposition, defendants have filed fifty-four declarations and a declaration of counsel to which are attached numerous additional exhibits.
The PLRA requires that the court "promptly rule on any motion to modify or terminate prospective relief," 18 U.S.C. § 3626(b)(1), and an automatic stay goes into effect not later than ninety days after the motion is filed unless the court timely rules on the motion. See 18 U.S.C. § 3626(b)(2). As discussed above, defendants have the burden of proof on the motion at bar, and the motion is resolved with reference to prison conditions at the time the motion is filed. As part of meeting their burden, defendants must first meet their burden of producing evidence that they are in constitutional compliance and that all prospective relief should be terminated.
The reply declarations filed by defendants are apparently intended to raise factual and credibility disputes with plaintiffs' evidence. The task of resolving these disputes,
In accordance with the above, except where due process requires otherwise, see Hadix, supra, the court has focused on the evidence tendered by defendants with their motion and the Special Master's most recent monitoring report.
B. Defendants' Expert Reports
Before turning to the merits of defendants' motion, the court must address serious concerns raised in connection with two expert reports filed by defendants with their motion. Plaintiffs filed objections to these expert reports alleging, among other things, that the experts conducted "secret" inspections of prisons, and that they "conducted unprofessional and unethical interviews with represented class members outside the presence and without the consent of plaintiffs' counsel." Plaintiffs' corrected objections to termination motion, filed March 15, 2013 ("Objs. to Termination Motion") (ECF No. 4423 at 9-13). Plaintiffs assert that the ex parte contact with their clients violated defense counsels' ethical
Of course, since the attorneys for defendants are members of the California Bar, they are bound by the California rules of ethical behavior. Their conduct is not only of concern to the California Bar, however, as this court has "adopted [those rules] as standards of professional conduct in this court." Local Rules of the United States District Court Eastern District of California, 180(e). Since it is accordingly of concern to this court, the court reviews the matter, below.
1. The expert reports.
The first expert report, signed by Drs. Joel A. Dvoskin, Jacqueline M. Moore and Charles L. Scott, makes clear that the experts planned and conducted ex parte interviews with inmates at all thirteen CDCR institutions they visited. Clinical Evaluation of California's Prison Mental Health Services Delivery System by Dyoskin, et al., filed January 7, 2013 ("Clinical Exp. Rpt.") (ECF No. 4275-5) at 18 ("At every facility we visited, we interviewed randomly selected CCCMS inmates"). Those interviews were among the critical pieces of information that formed the "basis" for the experts' report. Id. at 10 ("Basis and Reasons for Opinions: ... Site visits (including confidential and private conversations with inmates and staff)"). It is clear that the author of the second expert report, Steve J. Martin, Esq., also spoke with inmates. See Excerpts of February 28, 2013 Deposition of Steve J. Martin, filed March 26, 2013 ("Excerpts of Feb. 28, 2013 Martin Depo.") (ECF No. 4522-1) at 70-72.
2. The scope of the
ex parte interviews.
The inmate interviews were not, despite defendants' descriptions of them, simply occasional, unintended by-products of the inspections. Rather, at every facility the defense experts visited, they without fail sought out class members — inmates with serious mental disorders — for their interviews. See Clinical Exp. Rpt. (ECF No. 4275-5) at 21 ("At every prison visited with a Mental Health Crisis Bed (MHCB) unit or Correctional Treatment Center serving inmates experiencing mental health crises, a member of our team assessed the program by interviewing randomly selected inmates").
3. The reasons for the
ex parte interviews.
Notwithstanding defendants' descriptions of these interviews, they were not in the nature of pastoral visits to sick patients, in which the experts simply were visiting the inmates because they were "`interested in how you're doing,'" or to "ensure that they were not lacking appropriate care."
4. How the interviews were used.
Defendants used the information they gleaned from the inmates against the inmates, in support of their motion to terminate and to vacate the injunction.
Clinical Exp. Rpt. (ECF No. 4275-5) at 18, 23 ("We conducted randomly selected interviews of CCCMS inmates housed in Administrative Segregation Units (ASU). All CCCMS inmates we identified in ASU were provided appropriate services and periodically assessed to evaluate if they needed a higher level of care"); see also id. at 14 ("inmates expressed concerns" about participating in mental health treatment), 19 ("Inmates consistently reported that their Primary Clinician met with them according to the Program Guide parameters"), 31 ("interviews with inmates did not confirm" a medication availability problem complained about by a mental health staff member).
The court concludes that these experts were hired for a litigation purpose — to file this termination motion. The ex parte interviews of represented inmates were then used against those inmates, directly, in this motion. The court does not mean to imply that defendants would have filed the motion even if they had interpreted the expert reports as precluding such a motion. However, there is no dispute, from the record before the court, that they were hired in anticipation of filing this motion,
5. Consent to the interviews.
Defendants insinuate that plaintiffs consented to these interviews. Resp. to OSC (ECF No. 4499) at 9. In support, defendants cite a single conversation that Steve Martin, one of the defense experts, had with plaintiffs' counsel Donald Specter: "I believe it was understood that we would be talking to inmates during the site visits, as is the case in any prison tour." See Reply Declaration of Steve J. Martin, Filed March 22, 2013 ("Reply Decl. Martin") (ECF No. 4483) ¶ 24.
In any event, plaintiffs' counsel testified in open court to the conversation at issue. Mr. Specter testified that the conversation was principally a casual conversation between him and Dr. Martin. Reporter's Transcript of Proceedings held on March 27, 2013 ("RT") (ECF No. 4538) at pp. 32-34. While the expert mentioned that he would participate in a site inspection, Specter testified, there was no mention of whether plaintiffs' attorneys would be present, or whether he or any other expert would interview inmates.
However, even if the expert had fully disclosed his plans to plaintiffs' counsel, that would not have cured the ethical problem that defense counsel face. Nothing in Rule 2-100 permits counsel (or his expert) to simply inform opposing counsel that he will be talking with a represented party in violation of the Rule. Moreover, the only notice that was even alleged is not enough, since at best it was notice that defense experts would inspect the prisons, not that they would also interview the plaintiff class with no counsel present.
6. Applicability of the no-contact rule.
Defendants next assert that the no-contact rule does not apply, or is "relaxed," in the remedial phase of litigation. Resp. to OSC (ECF No. 4499) at 8 and 10. However, they cite no relevant authority for this proposition. Further, they make no mention of the California authority plaintiffs cite, which states that contact by a person retained by counsel for an adverse party is prohibited by Rule 2-100:
Defendants do cite a 1980 opinion from the Supreme Judicial Court of Massachusetts, and a 1979 law review article in support. Id. at 10. The Massachusetts decision has nothing to do with the issue at hand. It addressed an ex parte communication made by a judge. See Perez v. Boston Hous. Auth., 379 Mass. 703, 741-42, 400 N.E.2d 1231 (1980) (addressing ex parte communications with defendant). The court did not condone the judge's conduct in talking with the defendant housing authority, but noted that it came in the context of the remedial phase of the case "where the judge tends to be more active in such proceedings and to use less formal procedures." Id. at 741-42, 400 N.E.2d 1231 ("We do not condone such communications, but the nature of the case suggests some palliation of the misbehavior").
Even if there were authority in support of defendant's argument, and such contacts could be permitted while all sides were working cooperatively to make a consent decree work — and defendants have cited no such authority — that is not the situation here. The results of these ex parte interviews are being presented in an adversarial litigation context, against the interest of the interviewees, in an attempt to terminate and vacate the injunction plaintiffs had obtained through protracted litigation against defendants.
7. Plaintiffs' contacts with CDCR personnel.
For their remaining responses, defendants assert that plaintiffs engaged in the same conduct.
Even if this were a valid defense to defendants' conduct — and it is not — the declarations cited do not even support the charge. In support of this assertion, defendants cite the Reply Declaration of Martin Hoshino, filed March 25, 2013 ("Reply Decl. Hoshino") (ECF No. 4495), the Reply Declaration of Matthew Cate, filed March 25, 2013 ("Reply Decl. Cate") (ECF No. 4497), and the Reply Declaration of Debbie Vorous, filed March 25, 2013 ("Reply Decl. Vorous") (ECF No. 4496).
a. Hoshino and Cate Declarations.
The Hoshino declaration does not state or imply that any conversation Hoshino had with plaintiffs' counsel was done without notice to, or the consent of, defendants' counsel. Reply Hoshino Decl. (ECF No. 4495). It does not even address the issue of notice or consent. Moreover, defendants' assertion that these contacts "commonly" occurred, or were "pervasive," is flatly belied by the Hoshino declaration.
The Cate declaration states that he spoke with plaintiffs' counsel without the presence or "specific" approval of defense counsel. Reply Decl. Cate (ECF No. 4497) ¶ 2. There is no explanation for what "specific" approval refers to, or whether it is distinguished from any "general" or "blanket" approvals that may, or may not, have been given. Cate goes on to state that "to my knowledge," the plaintiffs (who are mentally ill inmates) never sought the consent of defense counsel for the conversation. Id. Cate does not, however, set forth why this information would ever be within his knowledge. Accordingly, the fact that he does not know about whether or not consent was given is irrelevant.
In contrast, plaintiffs' counsel has presented a declaration stating, of his own personal knowledge, that of his conversations with CDCR officials, including Hoshino and Cate, "[i]n virtually every case, Benjamin Rice, CDCR General Counsel, or another attorney representing the State or CDCR was present, had been informed or gave permission." Declaration of Michael Bien, filed March 26, 2013 ("Becl. Bien") (ECF No. 4522) ¶ 6.
b. The Vorous Declaration.
The declaration of Debbie Vorous, a Deputy Attorney General for the State, is troubling. Vorous asserts that during a site inspection of a prison by plaintiffs' expert and plaintiffs' counsel, she "observed" plaintiffs' counsel "talking to prison staff without counsel present." Reply Decl. Vorous (ECF No. 4496) ¶ 4. Vorous never addresses the obvious questions raised by this assertion. For example, how could she have been present at the inspection and "observed" this conduct, without being "present" for purposes of Rule 2-100? Also, if she "observed" this conduct, why did she not make her objection known at the time, when it could have been stopped?
Most troubling about this declaration is the insinuation that plaintiffs' counsel spoke with CDCR staff apart from the time Vorous was making her observations. Here, Vorous states that counsel engaged prison staff "without my ability to participate," and "without my presence." Id. Vorous does not indicate whether her participation or presence was even relevant, since she does not indicate whether other defense lawyers were present who did participate or were present. In fact, plaintiffs' counsel states in his declaration that Vorous was not alone on that inspection. Rather, she was accompanied by two other defense lawyers, Katherine Tebrock and Heather McCray. Decl. Bien ¶ 17. Vorous does not state that any conversation with plaintiffs' counsel took place outside of the presence or consent of any of the other two CDCR lawyers who were present. If the other CDCR lawyers were present, then the declaration gives a decidedly false impression.
8. Disposition of defendants' expert reports.
In sum, it appears clear that defendants' conduct violated Cal. R. Prof. Conduct 2-100, in having its experts conduct these ex parte interviews with represented class members, especially since those interviews were used against the plaintiffs in support of defendants' Termination Motion.
The reports are problematic for an additional reason.
During the time period when defendants' experts were carrying out the prison inspections and inmate interviews that went into their reports, defendants were opposing efforts by plaintiffs, in the three-judge court, to conduct their own discovery. See Defendants' Response and Motion To Strike Plaintiffs' "Application for Limited Discovery and Order To Show Cause re Contempt" filed September 5, 2012 ("Response to App. for Limited Discovery") (ECF No. 4234). Plaintiffs' discovery request was for information relating to defendants' efforts to reduce prison overcrowding, the principal cause of the constitutional violations. The court denied the discovery request. Order of three-judge court filed September 7, 2012 (ECF No. 4235). This raises issues of fairness to plaintiffs, who were denied discovery they could have used for their own expert reports, while defendants were conducting ex parte communications for their expert reports.
Given all the above, it is clear that plaintiffs were prejudiced. Defendants' assertion that this conduct was "harmless" is plainly belied by the expert reports themselves, which directly use these tainted interviews against the interviewees in this termination motion. However, the defense experts made no attempt to hide the fact of interviews — after they had occurred. Thus the court can theoretically attempt to discount those portions of the report that appear to be based upon, or influenced by, those statements.
The court thus believes that it is entirely proper to strike these expert reports and not consider them in connection with this motion. Under normal circumstances, defendants could then correct this problem by retaining untainted experts to re-inspect the prisons, and give their report. However, the PLRA places such a strict time limit on the court's decision-making that this approach is not possible. As a consequence of striking these reports, the court must deny the motion, since defendants' remaining evidence is plainly insufficient to meet their burden to show that
In sum, the court finds that defendants violated their professional duty and the plaintiffs were prejudiced thereby. Accordingly, the court strikes the experts' reports, and finds therefore that there is insufficient evidence to support defendants' motion, and thus, denies it.
Nonetheless, the court recognizes that, given the paucity of authority, a reviewing court might find the sanction inappropriate. Accordingly, the court will consider whether, even considering the affidavits, the defendants have made their case.
C. Standards for Eighth Amendment Violation
The Eighth Amendment violation in this action is defendants' "severe and unlawful mistreatment" of prisoners with "serious mental disorders," through "grossly inadequate provision of ... mental health care." Brown v. Plata, 131 S.Ct. at 1922 & 1923. As the United States Supreme Court noted, the serious and persistent constitutional violation in this action is based on "systemwide deficiencies in the provision of ... mental health care that, taken as a whole, subject ... mentally ill prisoners in California to `substantial risk of serious harm' and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society." Id. at 1925 n. 3 (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). "For years the ... mental health care provided by California's prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners' basic health needs. Needless suffering and death have been the well-documented result." Id. at 1923.
As recently as August 30, 2012, this court identified several "critically important" goals which are necessary to remedy the Eighth Amendment violation in this action. These include:
See Order, filed August 30, 2012 (ECF No. 4232) at 5 n. 3. These goals, identified by the Special Master two years ago in his Twenty-Second Round Monitoring Report, have been the most recent focus of the extended remedial phase of this litigation.
Finally, several of the goals set forth in the court's August 30, 2012 order (ECF. No. 4232) are tied to constitutional deficiencies described by the United States Supreme Court in its 2011 Opinion affirming the three-judge court's population reduction order, which include:
Defendants' motion is premised on their contention that they now have a mental health care delivery system that includes each of the "six basic, essentially common sense, components of a minimally adequate prison mental health care delivery system," Coleman, 912 F.Supp. at 1298,
The motion also disregards most of the relevant context in which it arises. As a general proposition, proof of an Eighth Amendment violation in the delivery of health care to inmates has two components: an objective component that identifies deficiencies in the provision of inmate health care, and a subjective component that requires a finding that defendants are "deliberately indifferent" to those deficiencies. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); see also Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Here, the objective component turns generally on whether there are ongoing deficiencies in the delivery of mental health care to class members that subject them to "substantial risk of serious harm," see Brown v. Plata, supra. The subjective component is discussed infra.
As this court observed in its 1995 decision, the standards for compliance with the Eighth Amendment must and indeed "can only be developed contextually." Coleman, 912 F.Supp. at 1301. At the time of trial in this matter, among other "woeful inadequacies," defendants did not "have a systematic program for screening and evaluating inmates for mental illness." Id. at 1305. Evidence at trial in 1994 showed that in 1987, the state prison system had identified 2,966 inmates with psychiatric classifications, while studies estimated that there were over 4,000 inmates suffering from serious mental disorders who had not been detected. Id. at 1306 n. 29. By July 1997, a year and a half into the remedial phase of this action, the state prison system had identified 14,293 inmates with serious mental disorders. As of November 2, 2012, there were 32,106 inmates in CDCR's mental health services delivery system. See February 28, 2013 Order (ECF No. 4361) at 6 n. 6.
As the history of this "complex and intractable constitutional violation" shows, the prospective relief required for the delivery of constitutionally adequate mental health care to over 32,000 mentally ill prison inmates is not "susceptible of simple or straightforward solutions." Brown v. Plata, 131 S.Ct. at 1936. See also Armstrong v. Schwarzenegger, 622 F.3d 1058, 1070 (9th Cir.2010) ("Prospective relief for institutions as complex as prisons is a necessarily aggregate endeavor, composed of multiple elements that work together to redress violations of the law.")
The first remedial order in this action directed defendants to work with the Special Master and his staff to develop and implement plans to remedy the Eighth Amendment violation. See Coleman, 912 F.Supp. at 1323-24.
Over the past seventeen years this court has issued over one hundred other substantive
This motion comes before the court focused on a basic structure identified by the court almost two decades ago. Defendants have, through the Revised Program Guide, designed an adequate system for the delivery of mental health care to prison inmates. Their motion fails to address in any meaningful way the more recent specific findings concerning ongoing constitutional violations that have continued to plague adequate implementation of that system. This failure notwithstanding, the court must determine whether defendants have met their burden of proving that those ongoing violations no longer exist.
1. Suicide Prevention
In 2011, the United States Supreme Court cited California's inmate suicide rate and the percentage of those suicides that involved "`some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable'" as evidence that "[p]risoners in California with serious mental illness do not receive minimal, adequate care." Brown v. Plata, 131 S.Ct. at 1924-25. The Court cited the following specific facts: California's 2006 inmate suicide rate was "nearly 80% higher than the national average for prison populations" and that pattern appeared to have continued in 2007; 72.1 percent of the inmate suicides in 2006 involved "`some measure of inadequate assessment, treatment,
Despite the fact that current evidence shows that inmate suicides are occurring at virtually the same rate
With respect to suicide prevention, defendants' motion is premised on two basic contentions. First, they contend that "[t]he Eighth Amendment does not mandate that prisons eliminate all suicide risks." Termination Motion (ECF No. 4275) at 27 (citations omitted).
For the past several years, and continuing, over seventy percent of inmate suicides in California have involved "`at least some degree of inadequacy in assessment, treatment, or intervention,'" also described as "significant indications of inadequate treatment." See, e.g., 2011 Suicide Report (ECF No. 4308) at 3, 28; Report on Suicides Completed in the California Department of Corrections and Rehabilitation in calendar years 2008 and 2009, filed May 15, 2011 (ECF No. 4009) at 9 (82 percent rate in 2007 suicides; 78.4 percent rate in 2008 suicides); Report on Suicides Completed in the California Department of Corrections and Rehabilitation in calendar year 2010, filed November 9, 2011 (ECF No. 4110) at 9-10 (84 percent rate in 2009 suicides; 74 percent rate in 2010). In 2011, 25 of 34 completed suicides, or 73.5% of the suicides involved significant indications of inadequate treatment and "were, therefore, most probably foreseeable or preventable." 2011 Suicide Report (ECF No. 4308) at 3, 10.
These "significant indications" continue to fall into an ongoing pattern of repeating inadequacies. In the 2011 Suicide Report, Dr. Patterson's findings as to each of the suicides in question repeatedly include the following (or some combination of the following) systemic inadequacies: (1) failures to refer inmates to higher levels of care when clinically appropriate; (2) failures to
As to the suicides that occurred in segregated housing units, Dr. Patterson repeatedly found systemic failures as to (1) documentation and completion of 30-minute welfare checks; (2) completion of the 31-item screen for newly-arriving inmates in administrative segregation; (3) emergency response protocols; and (4) clinical follow-up for inmates discharged from crisis care. Id. at 10.
In the First Half of 2012 Suicide Report (ECF No. 4376), Dr. Patterson surveys the suicide prevention measures that he has repeated over the past fifteen years and which defendants have failed to implement. First Half 2012 Suicide Report (ECF No. 4376) at 8-10. These recommendations fall into three areas:
Id. These recommendations have been repeated periodically since 1999. See id. These and other repeatedly identified inadequacies, including "the need for adequate consideration of information available in the medical records of Coleman class members" were also described in this court's April 14, 2010 order. Order, filed April 14, 2010 (ECF No. 3836) at 4-6.
Defendants' clinical experts also report on inmate suicides.
2. Administrative Segregation
Another "critical goal" centers on treatment of mentally ill inmates in administrative segregation, particularly those whose stays in these units exceed ninety days and those who are placed in administrative segregation for non-disciplinary reasons. These inmates face substantial risk of serious harm, including exacerbation of mental illness and potential increase in suicide risk. See Twenty-Fifth Round (ECF No. 4298) at 36. The evidence before the court shows that a disproportionate number of inmate suicides occur in administrative segregation units. Remedial efforts over the past six years have focused on reducing the length of time EOP inmates remain in administrative segregation and providing appropriate clinical care for EOP inmates housed in such units. See id. at 34-35.
In their motion, defendants contend that they have "developed and implemented procedures for placing and retaining inmates with mental health needs in any administrative segregation or security housing unit." Termination Motion (ECF No. 4275-1) at 29. Defendants contend that while mentally ill inmates are in these units their mental health needs are "being appropriately met" and that there is no evidence to the contrary. Id. This contention is not supported by defendants' own experts.
Defendants' experts describe the "environment of administrative segregation" as "generally non-therapeutic." Clinical Exp. Rpt. (ECF No. 4275-5) at 20. They recommend that housing inmates with serious mental disorders be "as brief as possible and as rare as possible." Id. at 25.
In the Twenty-Fifth Round Report, the Special Master reported an ongoing need for improvement in treatment provided to inmates needing an Enhanced Outpatient (EOP) level of care who are placed into administrative segregation units. See Twenty-Fifth Round Report (ECF No. 4298) at 34-38. The Special Master reports an "elevated proportion of inmates in administrative segregation who are mentally ill" and describes a series of issues to be addressed, including
Id. at 38. The Special Master's findings identify remaining issues that are also identified by defendants' experts. These issues, until remedied, mean that seriously mentally ill inmates placed in administrative segregation units continued to face a substantial risk of harm.
3. Transfer to Higher Levels of Care
Evidence of ongoing constitutional violations in this action has included evidence of "an `absence of timely access to appropriate levels of care at every point in the system.'" Brown v. Plata, 131 S.Ct. at 1931 (quoting report filed by Special Master in July 2009). Delays in access to inpatient care have been shown by evidence in this action dating back to 1993, and serious delays have existed until as recently as last year. See Order, filed July 22, 2011 (ECF No. 4045), passim (discussing history of delays in access to inpatient care and ordering specific relief); Order, filed July 13, 2012 (ECF No. 4214) at 1 (commending "the parties and the Special Master for the remarkable accomplishments to date in addressing the problems in access to inpatient mental health care.")
In assessing defendants' constitutional compliance, the relevant requirement is defendants' constitutional obligation to provide "a system of ready access to adequate [mental health] care." Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982) (emphasis added), abrogated in part on other grounds by Sandin v. Conner, 515 U.S. 472, 481-84, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Defendants' mental health care delivery system provides four levels of mental health care and is designed to provide inmates at all custody levels both inpatient and outpatient mental health care. See Decl. Johnson (ECF No. 4276) ¶¶ 4-12; Declaration of Tim Belavich, filed January 7, 2013 ("Decl. Belavich") (ECF No. 4277) ¶¶ 6-8. Defendants' remedial plan, the Revised Program Guide, contains "the time frames which CDCR must meet for the transfer of MHSDS inpatient-patients between levels of care, whether within the same institution or to another institution", set out in a chart. Revised Program Guide, 2009 Revision,
a. Inpatient Beds
Citing to this court's July 13, 2012 order (ECF No. 4214), defendants contend that "[b]y July 2012, the State had successfully guaranteed timely access to inpatient mental health care for all class members needing hospitalization." Termination Motion at 17. Defendants also present evidence that "[a]s of December 17, 2012, there were no inmates waiting for acute or inpatient care" past the timelines set in the Revised Program Guide. Johnson Decl. at ¶ 13. Thirteen inmates were waiting for acute inpatient care but none had been waiting more than ten days. Id. There were forty-five inmates waiting for admission to intermediate hospital care, "the majority pending two weeks or less." Id.
In the Twenty-Fifth Round Monitoring Report, the Special Master reported in relevant part that by the end of June 2012, "defendants had substantially implemented the objectives" of a sustainable self-monitoring process developed over the preceding year. Twenty-Fifth Round Monitoring Report at 31. The objectives of that self-monitoring process are "to timely identify, refer, and transfer inmate-patients needing DSH inpatient care and to internally monitor and improve the process." Id. The July 12, 2012 completion of a project at California Medical Facility (CMF) permitted placement of high-custody inmates waiting for inpatient care in hospital beds, "a milestone in the process of eliminating the intermediate care wait list." Id. The Special Master reports that "[f]rom an overall perspective, identification,
The gains in timely and adequate access to inpatient care are new.
The substantial improvement in access to inpatient care cannot be gainsaid. Defendants have made significant progress in remedying one of the most tragic failures in the delivery of mental health care — the unconscionable delays in access to inpatient care and the sequelae therefrom, including periodic substantial decline in clinical referrals to necessary hospital care. As noted above, however, the gains are new and work remains. The gains that have been made, however significant, do not entitle defendants to termination of all relief in this action.
b. Mental Health Crisis Beds
Mental health crisis beds (MHCBs) are for inmates who are suffering "[M]arked Impairment and Dysfunction in most areas... requiring 24-hour nursing care" and/or dangerous to others as a result of a serious mental illness or to themselves for any reason. Revised Program Guide, 2009 Revision, 12-1-8. They are also used for "short-term inpatient care for seriously mentally disordered inmate-patients awaiting transfer to a hospital program or being stabilized on medication prior to transfer to a less restrictive level of care." Id. They are short-term care units, with inmates
In support of their motion, defendants present evidence that there were no inmates waiting for placement in a mental health crisis bed as of December 17, 2012. Decl. Johnson (ECF No. 4276) at ¶ 9. This statement, however true, obscures the relevant issue with respect to access to mental health crisis care. While it may be technically true that the inmates are not waiting for a crisis bed, that is only because they are being housed in facilities totally inappropriate for a person in need of a mental health crisis bed.
Defendants do not presently have a sufficient number of mental health crisis beds (MHCBs) to meet the need for such beds. Twenty-Fifth Round Report (ECF No. 4298) at 21. For an extended period of time, inmates in need of mental health crisis care have been placed in a variety of alternative holding areas when MHCBs are unavailable. During the twenty-fifth round monitoring period, only eight prisons with mental health crisis beds had sufficient beds to meet the need. Id. at 76. Ten other prisons had insufficient beds and had to use "alternative holding areas" to monitor inmates in need of mental health crisis bed care. Id. During the monitoring period, 722 inmates at California State Prison-Sacramento (CSP/Sac) in need of crisis bed care were placed in "medical OHU beds, ZZ cells, and contraband cells" when crisis beds were unavailable. Id. Two hundred-sixty nine of these inmates were eventually transferred to MHCBs. Id. Eight other prisons also placed numerous inmates in need of crisis care in these "alternative holding areas." Id. Lengths of stay ranged from four hours to four to five days. Id. Folsom Prison used "eight alternative holding cells in administrative segregation" to monitor inmates in need of mental health crisis beds "via continuous watch." Id. at 77.
On June 15, 2012, the court ordered defendants to continue to work with the Special Master to incorporate the number of inmates placed in alternative housing areas into their future planning for necessary MHCBs and to meet any increased need for such beds identified by this process. Order, filed June 15, 2012 (ECF No. 4199) at 2. In the Twenty-Fifth Round Report, the Special Master reports that it appears defendants have now planned for sufficient MHCBs. Twenty-Fifth Round Report (ECF No. 4298) at 21. "Work on the provision of those beds is continuing." Id.
Until the necessary number of mental health crisis beds are complete and operational, mentally ill inmates in need of this care are held in conditions that defendants have now agreed should not be used to house inmates in need of crisis care. This aspect of the Eighth Amendment violation is ongoing.
4. Treatment Space/Beds
Shortages in treatment space and access to beds at each level of mental health care have plagued the entire remedial phase of this action. Defendants identify several ongoing construction projects in their termination motion, some of which are at very preliminary stages, yet they seek termination of this action before critically important construction is complete. See Termination Motion (ECF No. 4275-1) at 12-13. Those projects are underway pursuant to a bed plan that took at least four attempts and numerous court orders to complete so that defendants had a plan for sufficient beds and treatment space at each level of the mental health care delivery system. Creation of that plan for a constitutionally adequate number of beds has taken years. The construction required by the bed plan is ongoing. Until all necessary projects are complete, the
Inadequate staffing has plagued the delivery of mental health care in CDCR prisons for decades, and chronic understaffing and high vacancy rates in mental health staff positions are evidence of an ongoing Eighth Amendment violation. See Brown v. Plata, 131 S.Ct. at 1926, 1932-33 & n. 5. In their motion, defendants acknowledge that the Constitution "requires the employment of `trained mental health professionals ... in sufficient numbers to identify and treat in an individualized manner those treatable inmates suffering from serious mental disorders.'" Termination Motion (ECF No. 4275-1) at 24 (quoting Ruiz v. Estelle, 503 F.Supp. 1265, 1339 (S.D.Tex.1980)). Defendants acknowledge ongoing mental health staffing vacancies, but contend that these vacancies do not "significantly impair the level of care being provided to inmates, and that `the clinical care itself places CDCR in the upper echelon of state prison mental health systems.'" Termination Motion (ECF No. 4275-1) at 25 (quoting Clinical Exp. Rpt. (ECF No. 4275-5) at 1, 14; and citing Twenty-Fourth Round Report (ECF No. 4205) at 41).
In 2009, pursuant to this court's June 18, 2009 Order (ECF No. 3613), defendants developed a staffing allocation plan (ECF No. 3693) (2009 Staffing Plan). Defendants' 2009 Staffing Plan sets forth how defendants' mental health delivery system is to be staffed. See Declaration of Diana Toche, filed January 7, 2013 ("Decl. Toche") (ECF No. 4275-3) ¶ 6. The 2009 Staffing Plan is driven by ratios of clinical and support staff to inmate population at each level of the mental health delivery system. See 2009 Staffing Plan (ECF No. 3693), passim. Defendants' experts opine that the 2009 Staffing Plan "will provide adequate resources to meet the mental health needs of inmates in a reasonable manner and within the standard of care." Clinical Exp. Rpt. (ECF No. 4275-5) at 14. That opinion comports with defendants' representation to the California Legislature that full implementation of that plan was necessary.
Prior to development of defendants' 2009 Staffing Plan, expert testimony showed that the state had underestimated its mental health staffing needs. See Brown v. Plata, 131 S.Ct. at 1932 n. 5. After submitting the 2009 Staffing Plan to this court, defendants, at the end of 2009, submitted a budget change proposal to the California Legislature to "fully implement" the staffing model described in the 2009 Staffing Plan. Exhibit K to Declaration of Jane E. Kahn in Support of Plaintiffs' Response to Defendants' Motion to Strike or Modify Portions of the Twenty-Fifth Round Monitoring Report of the Special Master, filed February 11, 2013 (Ex. K to Decl. Kahn) (ECF No. 4325) at 93. The budget change proposal described the critical flaws in defendants' prior staffing model, and represented that the 2009 Staffing Plan "identifies appropriate staffing levels to meet constitutional standards...." Id. at 95.
With their motion, defendants present evidence that for Fiscal Year 2012/2013, the ratios in the 2009 Staffing Plan require 2268.26 staff positions. Decl. Toche (ECF
The Special Master, on the other hand, provided the parties and the court with a detailed report of staffing vacancies in his his Twenty-Fifth Round Report. That report covers much of the same time period, May 1, 2012 through September 11, 2012, as defendants' declaration. (ECF No. 4298) at 10. The Special Master reports a vacancy rate among staff psychiatrists of 42 percent, with use of contract psychiatrists reducing that rate to 26 percent. Id. at 45. The vacancy rate among staff psychologists and social workers was reported at 21 and 24 percent, respectively. Id. at 45-46. Contractors reduced those vacancy rates to 17 and 20 percent, respectively. Id.
The 29% staffing vacancy rate at the end of November 2012 attested to by defendants is higher than that reported by the Special Master in his Twenty-Fifth Round Report. The Special Master reported an overall vacancy rate of 21.2 percent, lowered only marginally to 18.3 percent through use of contractors. Twenty-Fifth Round Report (ECF No. 4298) at 44. Significantly, the Special Master reported that "[t]his was a reversal of the trend of consistently declining vacancy rates across preceding monitoring periods. It signaled a significant departure from the overall mental health vacancy rate of 14 percent and the overall functional vacancy rate of 7.7 percent that was reported for the twenty-third monitoring period", from October 2010 to April 2011, "the most recent review period in which all institutions were audited." Id. at 44.
Altogether, the vacancy rates in these three clinical categories significantly exceed the 10 percent maximum vacancy rate in those positions required by this court's June 12, 2002 Order (ECF No. 1383). See Twenty-Fifth Round Report (ECF No. 4298) at 44. The Special Master concluded,
Id. at 47.
Despite this, defendants assert, in conclusory fashion, that notwithstanding these vacancies, "[a]dequate numbers of mental health professionals and administrators" are providing class member inmates with "access to high-quality mental health care." Decl. Toche at ¶ 10.
To meet the requirements of the Eighth Amendment, defendants are required to "employ mental health staff in `sufficient numbers to identify and treat in an individualized manner those treatable inmates suffering from serious mental disorders.'" Coleman v. Wilson, 912 F.Supp. at 1306 (quoting Balla, 595 F.Supp. at 1577). The Clinical Experts' Report tendered by defendants with their termination motion (ECF No. 4275-5), does not show that defendants have "sufficient numbers" of mental health staff in place. Even if it were proper for defendants to back away from the 2009 Staffing Plan, they have not met their burden of proving that they can meet their constitutional obligations with the existing levels of staffing vacancies.
For example, defendants' experts report that at Salinas Valley State Prison, "[t]he mental health director expressed concerns regarding staffing and space shortages" and the defense experts "were especially concerned with the number of psychiatrists on staff there." Id. at 14. Concerns regarding mental health staffing shortages were also reported to the defense experts at Pelican Bay State Prison; at California Men's Colony, where staff reported that the shortages "adversely impacted their ability to provide care to inmates"; and at the Substance Abuse Treatment Facility (SATF), where "mental health staff reported dramatic mental health staffing shortages." Id. at 15. Defendants experts found the staffing shortages at SATF "particularly apparent for recreational
In short, defendants have not met their initial burden of showing that seriously mentally ill inmates in the CDCR no longer face substantial risk of serious harm due to significant shortages in mental health staffing. Chronic understaffing continues to hamper the delivery of constitutionally adequate medical care and is a central part of the ongoing constitutional violation in this action.
6. Deliberate Indifference
Relying on the opinion of their experts, defendants contend that they are no longer acting with deliberate indifference to the serious mental health needs of the plaintiff class. See, e.g., Termination Motion (ECF No. 4275-1) at 11. (citing Clinical Ex. Rpt. at 2, 8). The court is not persuaded that defendants have focused on the proper analysis of this factor in this context.
In order to obtain injunctive relief for an Eighth Amendment violation, plaintiffs must present evidence sufficient to give rise to an inference that defendants are "knowingly and unreasonably disregarding an objectively intolerable risk of harm" and that defendants will continue to disregard the risk into the future. Farmer v. Brennan, 511 U.S. at 846, 114 S.Ct. 1970. To avoid entry of an injunction, defendants may prove either that they were unaware of the risk of harm or that they have responded reasonably to it. Id.
Defendants were found to be deliberately indifferent at the initial phase of these proceedings. Since then, they have been under a series of court orders to develop and implement plans to remedy the serious inadequacies in the delivery of mental health care to prison inmates. The court also appointed a Special Master whose very purpose, among other things, has been to insure that defendants do not remain deliberately indifferent to their duty to remedy the constitutional violation in this action. Where, as here, defendants were found to be deliberately indifferent in the initial phase of these proceedings, they must either comply with the court-ordered relief to remedy the identified violation or establish that the identified violation has been remedied in another way. They can no longer act in a manner that is deliberately indifferent to the objective violation without risking contempt.
At most, the relevant subjective inquiry turns on the policies defendants have adopted to remedy the harm and the manner and extent to which those policies have been implemented and are being administered. See Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); see also Hadix v. Johnson, 367 F.3d 513, 516 (6th Cir.2004) (where court is concerned with "future conduct to correct prison conditions," finding of objectively unconstitutional conditions also satisfies subjective prong because the same information that leads to court's conclusion is also available to prison officials).
Further, based on defendants' conduct to date, the court cannot rely on their averments of good faith as a basis for granting termination. There is overwhelming evidence in the record that much of defendants' progress to date is due to the pressure of this and other litigation. While defendants take credit for building the Correctional Health Care Facility (CHCF), which will substantially remedy the ongoing shortages in necessary beds, that project came into existence because of the Receiver in Plata. Defendants' current mental health bed plan, current mental health staff plan, and sustainable process for referring inmates to necessary inpatient care were the result of numerous court orders and years of effort by the Special Master, defendants, and plaintiffs' counsel.
In light of the foregoing, I am satisfied that outstanding orders for prospective relief remain necessary to correct current and ongoing violations in the delivery of adequate mental health care to plaintiff class members and extend no further than necessary to correct those violations. I am also satisfied that these orders are narrowly drawn and the least intrusive means to correct the ongoing violations. The court emphasizes again that the court and the Special Master have been guided throughout the remedial phase of this action by the view that it is the court's obligation to identify constitutional deficiencies and defendants' obligation to remedy them. See Coleman, 912 F.Supp. at 1301. The Special Master has been required numerous times to make specific recommendations for further action by defendants to remedy ongoing constitutional violations, and the court has been required numerous times to issue specific orders to defendants to develop and/or implement plans to remedy ongoing constitutional violations. Defendants have had full and fair opportunities to object to each of the Special Master's recommendations, and to litigate fully the propriety of orders issued by the court. They must comply with outstanding court orders and complete remediation of ongoing Eighth Amendment violations in the delivery of mental health care to seriously mentally ill inmates in the state's prison system.
7. Prospective Relief Remains Necessary
Defendants bear the burden of showing that outstanding orders for prospective relief "exceed what is necessary to correct an ongoing constitutional violation." Graves, 623 F.3d at 1048. Defendants seek termination of all outstanding prospective relief. They have not identified or addressed particular orders for prospective relief which they contend should be set aside.
With their opposition, plaintiffs filed a separate statement of orders issued by this court over the past four years. (ECF No. 4409.) Plaintiffs have identified each outstanding order, as well as those that have expired by their own terms. Id. Plaintiffs have also included one or more reasons why outstanding orders remain necessary
The court is satisfied that its outstanding orders for prospective relief remain necessary to correct current and ongoing violations in the delivery of adequate mental health care to plaintiff class members and extend no further than necessary to correct those violations. The court is also satisfied that these are narrowly drawn and the least intrusive means to correct the ongoing violations.
For the foregoing reasons, this court finds that ongoing constitutional violations remain in this action and the prospective relief ordered by this court remains necessary to remedy those violations. Defendants' motion to terminate under the Prison Litigation Reform Act, 18 U.S.C. § 3626(b) will be denied.
II. Rule 60(b)(5)
Defendants also move to vacate the judgment of this court and orders for prospective relief pursuant to Fed.R.Civ.P. 60(b)(5) on the ground that they are delivering constitutionally adequate mental health care to the plaintiff class. In relevant part, Rule 60(b)(5) provides for relief from a final judgment or other order on the grounds that "the judgment has been satisfied, released, or discharged; ... or applying it prospectively is no longer equitable." Fed.R.Civ.P. 60(b)(5). Defendants contend that the court must "vacate its judgment and orders for prospective relief" because they are delivering constitutionally adequate mental health care. Termination Motion (ECF No. 4275-1) at 31. The court construes this as a request for finding that the judgment has been satisfied and prospective relief is no longer equitable.
For the reasons set forth supra, defendants have not met the "more exacting" standard of 18 U.S.C. § 3626(b) for termination of relief in this action. See Gilmore, 220 F.3d at 1007. A fortiori, they are not entitled to relief under Rule 60(b)(5) at this time.
In accordance with the above, IT IS HEREBY ORDERED that defendants' January 7, 2013 motion to terminate this action (ECF No. 4275) is DENIED.
IT IS SO ORDERED.
See ECF No. 4275-5 at 16, 17, 20, 22, 23 and 24.
In addition, the Clerk is directed to deliver a copy of this order to the State Attorney General, to ensure that she is made aware of the conduct.
The percentage of suicides that involved "`some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable'" has been at or above 72.1 percent since 2006. See discussion infra.
The time and place for defendants to submit this declaration, along with properly authenticated exhibits, was in their moving papers, not in their Reply. Defendants' error creates no hardship for them however, as the PLRA appears to permit them to file successive motions to terminate at appropriate times in the future. See 18 U.S.C. § 3626(b)(1)(A)(ii). If defendants do so, they will be able to file their papers next time with an awareness of their burden of production and proof. Defendants will also have the benefit of this court's order, which identifies for them at least some of the work that remains to be done to bring the prison's mental health system into constitutional compliance.
As an example, defendants objected to Dr. Patterson's assessment of Inmate H, finding that "[Inmate H's] statement to his psychiatrist that he would be going home to Mexico and that his mother was there may very well have been an indication of his intent to go home to Mexico after his death given that his mother was already dead,'" as "retroactive speculation" without a "factual basis for th[e] assertion." Objs. To 2011 Suicide Report (ECF No. 4526) at 17. However, defendants failed to note Dr. Patterson's overt reliance on the fact that a suicide risk evaluation ("SRE") performed at Salinas Valley Psychiatric Program ("SVPP"), before his release to a lower level of care, failed to recognize Inmate H's "serious suicide attempt in 2010" and his "imminent deportation." See 2011 Suicide Report (ECF No. 4308) at 107.
Even CDCR's suicide reviewer acknowledged the inadequacies in the SRE performed at SVPP prior to Inmate H's discharge, because it was "not completed with the aid of an interpreter, nor was there more than a cursory record review." Id. at 106.
As to Inmate P, defendants contended that Dr. Patterson's finding that Inmate P's suicide was "very likely preventable" lacks a foundation because "[d]espite a challenging clinical presentation, staff continued to provide this inmate with mental health care — immediately prior to his death, his treatment team considered a Keyhea petition, but determined he did not meet the grave disability requirement." Objs. to 2011 Suicide Report (ECF No. 4526) at 19-20. Defendants further argued that "given the staff's efforts to treat this inmate, [it] should not be considered an error in clinical care." Id. at 20. Defendants, however, omitted reference to: (1) the inmate's "clear deterioration in mental health functioning," which Dr. Patterson found required that Inmate P be "referred to a higher level of care for more comprehensive and adequate examination"; (2) the inmate's placement in SHU, "despite the requirement that inmates with serious mental illness be placed in a PSU," and with only "minimal consideration that he should have had an evaluation to determine his ability to remain mentally healthy in a SHU"; and (3) the fact that, because a "recently hired psychiatrist inappropriately completed a Removal Chrono after his first meeting with the inmate because the inmate [had] refused medications and treatment," the inmate was "errantly removed from the MHSDS on 2/10/11 and was not seen again until 5/5/11," even though his condition "had clearly deteriorated and continued to do so." 2011 Suicide Report (ECF No. 4308) at 168, 170-71.
The CDCR suicide reviewer in Inmate P's case similarly noted that "it was concerning that the response and decision making of the IDTT with respect to the primary clinician's concerns as to the inmate's increasing symptoms and possible need for a level of care change, especially in the context of no established therapeutic relationship and extreme diagnostic uncertainty, was `concerning'," given that "ample clinical justification was present for a level of care change at IDTT reviews on 6/9/11 and 6/16/11," including "the inmate's deteriorating condition and that his functioning was `most definitely no longer stable'." Id. at 166-67. The CDCR reviewer further found that no SREs "were completed during the inmate's second term of incarceration," despite the inmate's documented history of a suicide attempt in 2006, and that "another SRE should have been completed at some time during the obvious decline in his functioning beginning at the end of May 2011." Id. at 167. The reviewer also noted that two areas of concern "ultimately under the control of custody" were "the inmate's single cell status without adequate documentation," given that single cell housing is a risk factor for suicide, and the lack of "out-of-cell time for the inmate to have had regular breaks from SHU confinement," even though "regular breaks from the confinement of a SHU cell is an important stress reducer." Id. at 167-68.
As a final example, defendants objected to Dr. Patterson's assessment that Inmate R's suicide was "very likely ... preventable", and argued that Dr. Patterson's finding that the inmate "was discharged from APP to an EOP level of care in a psychiatrically fragile state," lacks a foundation because "[i]mprovement had been noted." (ECF No. 4308) Objs. To 2011 Suicide Report (ECF No. 4526) at 20-21. Defendants, however, failed to address either Dr. Patterson's finding that "the level of improvement d[id] not appear to have justified his return to an EOP level of care" or the fact that "the inmate was discovered in rigor mortis, which raised appropriate questions from the warden regarding monitoring by custody staff." 2011 Suicide Report (ECF No. 4308) at 192.
In August 2011, the first year of the three year contract, Mr. Hayes delivered a report to defendants with his findings and recommendations. See Order, filed February 14, 2013 (ECF No. 4341) at 5 (citing Declaration of Lindsay Hayes, filed February 12, 2013 ("Decl. Hayes") (ECF No. 4328) ¶ 5). The "report was written with the explicit intent to provide CDCR with a strategy to reduce inmate suicides within the prison system." Decl. Hayes ¶ 5. Despite explicit contractual provisions for additional services, Mr. Hayes was not contacted by CDCR again except to redact his report in order for certain parts to be provided to the Special Master and plaintiffs' counsel. See February 14, 2013 Order (ECF No. 4341) at 5.
In what he now describes as an "unfortunate off-hand remark," in June 2012, Robert Canning, PhD, CDCR's Suicide Prevention and Response Coordinator, told Mr. Hayes in an email that when his "report landed it was not roundly applauded and in fact was buried." Reply Declaration of Robert Canning, Ph.D.), filed March 22, 2013 (ECF No. 4474) at ¶ 4. He now avers that he asked additional questions in the same email because he "wanted to know whether the department could have done anything else to help Mr. Hayes produce a more useful product for the department." Id. at ¶ 5. Dr. Canning also avers that CDCR has "analyzed" all of the recommendations in Mr. Hayes' report and "has acted on several of them, including installing hundreds of suicide resistant beds in the Mental Health Crisis Bed Units." Id. at ¶ 6; see also Reply Declaration of Tim Belavich, filed March 22, 2013 (ECF No. 4472) at ¶¶ 5, 20 (same). No explanation, however, is provided as to why the other recommendations were not adopted.
In fact, the Special Master recommended that defendants develop a plan for installation of suicide resistant beds in mental health crisis bed units in a report and recommendations on defendants' review of their suicide prevention policies filed September 27, 2010. See Order, filed September 27, 2010 (ECF No. 3918). Of five recommendations contained in that report, defendants objected only to the recommendation to furnish suicide resistant beds in mental health crisis bed units. See Order, filed November 18, 2010 (ECF No. 3954) at 3. Defendants' objections were overruled on July 21, 2011 (ECF No. 4044) and defendants were ordered to file with the court and submit to the Special Master a plan to furnish suicide resistant beds. Order, filed July 21, 2011 (ECF No. 4044) at 8. While this court is refraining from making credibility assessments in connection with this alternative disposition of defendants' motion, defendants' representation concerning the implementation of this recommendation by Mr. Hayes would appear to ignore some relevant history with respect to the provision of suicide resistant beds in their mental health crisis bed units.
• Chief Psychiatrists: 33 percent vacancy rate in 18 allocated positions; no contract coverage for any vacant position. Six institutions "operated without chief psychiatrists," including CSP/LAC, which was without a chief psychiatrist for the fourth consecutive monitoring period.
• Senior Psychiatrists: 50 percent vacancy rate; nine institutions filled all positions; one institution had one of three positions filled; nine institutions had 100 percent vacancy rates; no vacancies covered by contractors.
• Staff Psychiatrists: 42 percent vacancy rate; use of contractors reduced functional vacancy rate to 26 percent; including contract coverage, six institutions had vacancy rates of 10% or less; seventeen institutions had vacancy rates from 11 percent to 50 percent; seven institutions had vacancy rates from 54 percent to 83 percent, and four institutions "did not fill any of their line psychiatry allocations with full-time psychiatrists."
• Chief Psychologists: 7 percent vacancy rate; 26 of 28 positions filled; no contract coverage for remaining two positions.
• Senior Psychologists: 39 percent vacancy rate; no contractors used to cover vacancies; seven institutions were filled or nearly filled; fifteen institutions had vacancy rates from 20 to 50 percent; six institutions had vacancy rates from 60 percent to 75 percent; and four institutions, each with one position, had not filled the position.
• Staff Psychologists: 21 percent vacancy rate; use of contractors reduced functional vacancy rate to 17 percent. Fifteen institutions had all their positions or a vacancy rate under 10 percent either through filled positions or use of contractors; eleven institutions had vacancy rates from 13 percent to 30 percent; and six institutions had vacancy rates from 31 percent to 65 percent.
• Social Workers: 24 percent vacancy rate; use of contractors made functional vacancy rate 20 percent; five institutions filled all their positions; two had functional vacancy rates below ten percent; ten institutions had vacancy rates from 11 to 29 percent; nine institutions had vacancy rates from 30 percent to 59 percent; and two institutions had vacancy rates of 67 percent and 69 percent, respectively.
• Psych techs: 6.5 percent vacancy rate; functional vacancy rate of five percent.
• Recreational therapists: 26 percent vacancy rate; negligible use of contractors; six institutions filled all positions; three institutions had vacancy rates under 10 percent; ten institutions had vacancy rates between 13 and 50 percent; three institutions had vacancy rates of 57 percent, 71 percent, and 75 percent, respectively, and three institutions did not fill their recreational therapist positions.
• Office techs: 33 percent vacancy rate; use of contractors reduced functional vacancy rate to 32 percent. Five institutions had full coverate; twenty-one institutions had vacancy rates from 14 to 50 percent; four institutions had vacancy rates ranging from 56 to 67 percent; and two institutions, each with a .5 position, had no office tech.
Twenty-Fifth Round Report (ECF No. 4248) at 52-56.
Defendants' current objections to the Special Master's findings concerning staffing shortages bear a striking resemblance to their objections to the Magistrate Judge's 1994 findings concerning constitutionally inadequate staffing levels. Here, defendants contend: (1) they do have mental health staff; (2) the Constitution does not specify the specific number of staff required; and (3) their staffing allocation plan is designed to provide optimal staffing. Then, they contended: (1) they did have mental health staff; (2) the magistrate judge failed to specify a constitutional minimum number of staff; and (3) a staffing plan in a consultants' report offered at trial exceeded constitutional minima. See Coleman, 912 F.Supp. at 1306.
Moreover, the evidence tendered by defendants to support their current specific objections consists of "comments" by one of their experts, Dr. Joel Dvoskin. Dvoskin Comments Regarding Twenty-Fifth Round Report, filed February 19, 2013 (ECF No. 4347-1). Dr. Dvoskin reports that he was asked by defendants' counsel to "offer [his] initial impression of the 25th Round Monitoring Report of the Special Master." Id. at 3. Dr. Dvoskin's "impression" of the Special Master's Report is of no utility to the matters at bar. Indeed, his only relevant comment is that he was leaving the assessment of the quality of psychiatric services being provided to another defense expert, Dr. Scott. Id. at 7.