Armstrong, et al v. Davis, et al
Filing
2180
ORDER by Judge Claudia WilkenDENYING 2024 MOTION FOR CONTEMPT, DENYING AS MOOT 2135 MOTION TO STRIKE AND MODIFYING PERMANENT INJUNCTION. (ndr, COURT STAFF) (Filed on 8/22/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOHN ARMSTRONG, et al.,
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No. C 94-2307 CW
Plaintiffs,
v.
EDMUND G. BROWN, JR., et al.,
Defendants.
________________________________/
United States District Court
For the Northern District of California
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Plaintiffs move for an order to show cause why Defendants
should not be held in civil contempt for violating the January 18,
2007 Injunction and to hold Defendants in contempt.
oppose the motion.
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Defendants
Having considered the papers filed by the
parties and their arguments at the hearing, the Court DENIES
Plaintiffs’ motion.
The Court also MODIFIES the 2007 Injunction.
BACKGROUND
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ORDER DENYING
MOTION FOR
CONTEMPT, DENYING
AS MOOT MOTION TO
STRIKE AND
MODIFYING
PERMANENT
INJUNCTION
(Docket Nos. 2024
and 2135)
In a series of orders between 1996 and 2002, the Court found
that Defendants’ treatment of prisoners with disabilities violated
the American with Disabilities Act (ADA) and section 504 of the
Rehabilitation Act.
On January 3, 2001, Defendants issued the
amended Armstrong Remedial Plan (ARP) setting forth their own
plans and policies to come into compliance with their obligations
under these federal laws.
Docket No. 681.
On March 21, 2001, the
Court issued a Permanent Injunction ordering Defendants to comply
with the ADA and section 504 in eight specific areas previously
litigated by the parties.
Docket No. 694.
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On January 18, 2007, this Court held that Defendants were not
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yet in compliance with the ADA, section 504, the Permanent
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Injunction or the ARP.
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“Plaintiffs have demonstrated that defendants continue to violate
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the rights of prisoners with disabilities under the ADA and
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Rehabilitation Act” and described in detail its factual findings
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of Defendants’ ongoing and systemic violations of class members’
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rights, including failure to provide safe accessible housing to
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prisoners with mobility impairments, denial of sign language
Docket No. 1045.
The Court found that
United States District Court
For the Northern District of California
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interpreters to prisoners who need them, confiscation of medically
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prescribed assistive devices, and late and inadequate disability
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grievance responses and systems.
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specifically found that some institutions responded chronically
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late to class members’ grievances regarding accommodations and
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that other institutions simply did not process and address such
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grievances at all.
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the Court’s prior orders requiring Defendants to provide
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reasonable accommodations and violated the ARP developed by
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Defendants.
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Id. at 4.
Id. at 2-4.
The Court
These failures persisted despite
The Court entered an injunction, requiring Defendants to take
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certain steps to address the ongoing rights violations.
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Injunction, Docket No. 1045.
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would be identified and addressed, the Court ordered, among other
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things,
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To ensure that repeated violations
Within 120 days of the date of this Order, defendants,
in cooperation with the Office of the Inspector General
and the Receiver in Plata v. Schwarzenegger, shall
develop a system for holding wardens and prison medical
administrators accountable for compliance with the
Armstrong Remedial Plan and the orders of this Court.
This system shall track the record of each institution
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United States District Court
For the Northern District of California
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and the conduct of individual staff members who are not
complying with these requirements. Defendants shall
refer individuals with repeated instances of noncompliance to the Office of Internal Affairs for
investigation and discipline, if appropriate.
Id. at 7.
On November 21, 2008, Defendants issued a memorandum entitled
“Expectations for Staff Accountability and Non-compliance of the
Disability Placement Program” (DPP).
Godbold Decl. ¶ 3, Ex. 1.
Plaintiffs allege that this memorandum sets forth “Defendants’
sole means of implementing” the accountability tracking
requirements of the 2007 Injunction.
Mot. at 4.
The memorandum
states, “In order to provide the documentation to meet the Court’s
Injunction related to staff conduct, the following recording and
reporting protocols shall be implemented.”
Id. at 2.
If a
supervisor or manager observes violations of the DPP or if staff
misconduct is alleged or reported by others, including “staff,
inmate interviews, submitted via CDC Form 602 - Inmate/Parolee
Appeal or CDCR Form 1824 - Request for Reasonable Modification or
Accommodation,” or is found through “other fact-finding efforts,”
the supervisor or manager is required to “prepare and forward a
memorandum to the Employee Disciplinary Officer/Employee Relations
Officer (EDO/ERO) in the Employee Relations Office,” setting forth
the details of the misconduct.
Id.
The EDO/ERO is then to
forward this information to the appropriate Hiring Authority,
which is either the warden of the institution or the Health Care
Manager, who is to determine “what action should be taken” and
whether the involvement of the Office of Internal Affairs (OIA) is
warranted.
Id. at 2-3.
The Hiring Authority’s decision is to be
“entered on the DPP Employee Non-Compliance Log.”
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Id. at 3.
Each
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month, the logs compiled at each institution are produced to
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Plaintiffs’ counsel.
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United States District Court
For the Northern District of California
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Id.; Godbold Decl. ¶ 4.
On July 13, 2010, the parties filed a joint status conference
statement, stating in relevant part,
Plaintiffs are concerned that the staff accountability
program, required by this Court’s January 18, 2007
Injunction, is not working as intended.
Under Defendants’ November 21, 2008 memorandum governing
accountability procedures, supervisors are required to
forward a memo to the Employee Relations Officer when
they “discover” -- via direct observation, prisoner
complaint, or reports by others -- that staff has
“fail[ed] to fulfill their responsibilities in regards
to the DPP.” The Employee Relations Officer submits the
information to the Hiring Authority, and the Hiring
Authority is then to determine whether/what action to
take. Once the Hiring Authority has made its
determination, the Employee Relations Officer “shall
enter the decision in the DPP Employee Non-Compliance
Log.”
Despite this direction, the non-compliance logs for
several institutions are completely blank for the entire
period of February 2009 through April 2010. The logs
for many other institutions are empty for months at a
time, and the logs for still others have very few
entries.
The lack of entries exist even where Plaintiffs have
produced reports alleging numerous and serious
violations of the Remedial Plan.
Without waiving any legal rights, Defendants have agreed
to put together a training module to ensure that staff
are properly investigating potential violations and
noting the investigations in the accountability logs.
The parties have agreed to meet on July 27 at 10:00 to
discuss the contents and status of such training.
Docket No. 1729, at 2-3.
In February 2011, Defendants required all institutional
staff, except staff working under the authority of the Receiver
appointed by the court in Plata v. Brown, to complete a training
module on the accountability procedures.
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Martinez Decl. ¶ 4.
The
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training consisted of written materials summarizing the procedures
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and a quiz regarding the materials.
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Id., Ex. C.
Between April 2011 and December 2011, Plaintiffs submitted
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allegations of more than 150 violations of the Armstrong Remedial
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Plan to Defendants, which were not reported on the corresponding
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DPP Employee Non-Compliance Logs provided by Defendants to
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Plaintiffs.
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¶¶ 3-5.1
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United States District Court
For the Northern District of California
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Godbold Decl. ¶¶ 7-57, Exs. 3-53; Evenson Decl.
On January 18, 2012, Plaintiffs sent Defendants a letter,
stating
Based on a review of the non-compliance logs produced
since completion of the training (April 2011 - November
2011), plaintiffs’ counsel remains seriously concerned
about the incompleteness and inconsistency of the noncompliance logs. Despite additional staff training,
logs at nine institutions remaining entirely blank even
though clear Armstrong violations have been identified
through monitoring at those prisons. Though logs at the
remaining institutions are not blank, at least 17 other
prisons fail to document violations which plaintiffs’
counsel identified in monitoring reports.
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Godbold Decl. ¶ 6, Ex. 2.
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solutions to these issues during a February 3, 2012 meeting.
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Defendants refused to comment on plans to address these issues and
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stated that they would respond in writing by March 1, 2012.
Plaintiffs attempted to discuss
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In their opposition, Defendants argue that Plaintiffs’
counsel’s monitoring letters are inadmissible hearsay offered to
prove the truth of the allegations of violations contained in the
letters, and that they do not qualify for any exception to the
hearsay rule. Opp. at 12-13. Plaintiffs do not offer these
letters to establish that Defendants had in fact violated the
Armstrong Remedial Plan, but rather to establish that the fact
that Plaintiffs had submitted allegations of such violations to
Defendants between these dates, which did not appear on the DPP
Employee Non-Compliance Logs. Accordingly, the Court OVERRULES
Defendants’ objections to these documents.
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Godbold Decl. ¶ 6.
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2012.
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Defendants had not responded as of March 22,
Id.
On March 22, 2012, Plaintiffs filed the instant motion,
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alleging that Defendants have failed to comply with the quoted
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portion of the 2007 Injunction.
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stipulated to extend the briefing and hearing schedule on the
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motion.
The parties subsequently
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In March 2012, Defendants required all managerial and
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supervisory staff at the prisons, except staff working under the
United States District Court
For the Northern District of California
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authority of the Receiver appointed by the court in Plata v.
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Brown, to complete again the training module on the accountability
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procedures.
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Calderon Decl. ¶ 2.
On May 10, 2012, Defendants filed their opposition to
Plaintiffs’ motion.2
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With their opposition, Defendants filed under seal a
separate 120-page document, entitled “Appendix of Defendants’
Objections to Plaintiffs’ Evidence on Plaintiffs’ Motion for an
Order to Show Cause and a Contempt Order,” and setting forth 270
evidentiary objections to Plaintiffs’ evidence. Docket No. 2117.
In their reply, Plaintiffs object to this appendix of objections
and move to strike it.
Civil Local Rule 7-3(a) requires that, for an opposition to a
motion, “[a]ny evidentiary and procedural objections to the motion
must be contained within the brief or memorandum.” Civil Local
Rule 7-4(b) provides that, unless “the Court expressly provides
otherwise pursuant to a party’s request made prior to the due
date, briefs or memoranda filed with opposition papers may not
exceed 25 pages of text.”
Between their opposition brief and their separate appendix of
evidentiary objections, Defendants have filed a total of 143 pages
in opposition to Plaintiffs’ motion, without at any point seeking
leave of the Court to exceed twenty-five pages. Accordingly, the
Court GRANTS Plaintiffs’ request to strike Defendants’ appendix of
evidentiary objections. The Court will only consider the
evidentiary objections that Defendants raised within the
opposition brief itself.
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On May 24, 2012, Plaintiffs filed their reply in support of
their motion.
On May 31, 2012, Defendants filed objections to Plaintiffs’
reply evidence.3
On June 1, 2012, Plaintiffs filed a revised proposed order
for the instant motion.4
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LEGAL STANDARD
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A district court has the inherent authority to enforce
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compliance with its orders through a civil contempt proceeding.
United States District Court
For the Northern District of California
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International Union, UMWA v. Bagwell, 512 U.S. 821, 827–28 (1994).
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A contempt sanction is considered civil if it “is remedial, and
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for the benefit of the complainant.”
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considered civil and remedial if it either “coerce[s] the
Id.
A contempt fine is
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Defendants request that the Court strike portions of the
reply declaration of Penny Godbold, arguing that these sections of
her declaration improperly contain conclusions and argument or
misstate the evidence in the record. Because the Court has not
relied on the Godbold reply declaration in resolving this motion,
Defendants’ request is OVERRULED AS MOOT.
4
On June 4, 2012, Defendants filed an administrative motion
to strike Plaintiffs’ revised proposed order, arguing that the
proposed order is actually a sur-reply brief offering additional
argument in support of their motion. Docket No. 2135.
The Court notes that Plaintiffs appear to have revised their
proposed order to incorporate the arguments they raised in their
reply brief. Defendants allege that the revised proposed order
“improperly argues, after all briefing has been completed, that
this Court should change the nature of the proceedings, by
abandoning their motion for an order to show cause,” by arguing
that “an order to show cause” is “not necessary because Plaintiffs
do not contest Defendants’ evidence.” Mot. to Strike 2 & n.1
(emphasis in original). However, Plaintiffs make this argument on
pages thirteen through fifteen of their reply brief.
Because the Court finds that the revised proposed order is
not material to the outcome of this motion and does not rely upon
it in ruling, the Court DENIES Defendants’ motion as MOOT.
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defendant into compliance with the court’s order, [or] ...
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compensate[s] the complainant for losses sustained.”
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States v. United Mine Workers, 330 U.S. 258, 303–304 (1947).
United
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“The standard for finding a party in civil contempt is well
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settled: The moving party has the burden of showing by clear and
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convincing evidence that the [non-moving party] violated a
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specific and definite order of the court.”
8
Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v.
9
City & Cnty. of San Francisco, 968 F.2d 850, 856 n.9 (9th
FTC v. Affordable
United States District Court
For the Northern District of California
10
Cir.1992)).
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good faith exception to the requirement of obedience to a court
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order.”
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10 F.3d 693, 695 (9th Cir. 1993).
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held in contempt if his action appears to be based on a good faith
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and reasonable interpretation of the court’s order.”
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(internal formatting and quotation marks omitted).
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compliance’ with the court order is a defense to civil contempt,
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and is not vitiated by ‘a few technical violations’ where every
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reasonable effort has been made to comply.”
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Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891
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(9th Cir. 1982)).
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The contempt “need not be willful, and there is no
In re Dual-Deck Video Cassette Recorder Antitrust Litig.,
“But a person should not be
Id.
“‘Substantial
Id. (citing Vertex
Thus, the Court may grant a motion for an order of contempt
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if it finds that Defendants (1) violated the court order,
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(2) beyond substantial compliance, (3) not based on a good faith
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and reasonable interpretation of the order, (4) by clear and
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convincing evidence.
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burden, the burden “shifts to the contemnors to demonstrate why
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they were unable to comply” with the court order.
Id.
Once the moving party has met its
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Stone, 968 F.2d
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at 856 n.9 (citing Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th
2
Cir. 1983)).
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comply.”
4
(9th Cir. 1976)).
“They must show they took every reasonable step to
Id. (citing Sekaquaptewa v. MacDonald, 544 F.2d 396, 406
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DISCUSSION
Plaintiffs request that Defendants be held in civil contempt
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because they have reported “hundreds of violations of the Remedial
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Plan and instances of staff member misconduct” to Defendants and
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“Defendants have failed to track these reported instances of staff
United States District Court
For the Northern District of California
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member non-compliance, or to refer repeated instances of non-
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compliance to the OIA.”
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Defendants have developed a tracking mechanism, but argue that it
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has not been effective, that many institutions are not complying
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with it and that Defendants’ training on this mechanism has been
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insufficient.
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Mot. at 3.
Plaintiffs acknowledge that
Id. at 5.
Defendants do not dispute that they did not track allegations
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of rights violations.
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Injunction does not require them to log allegations of
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non-compliance or to investigate such allegations and instead only
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requires them to log instances in which they found that an
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employee had in fact violated a class member’s rights.
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contend that, although their November 2008 accountability program
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mandates tracking of allegations of non-compliance that were
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ultimately not substantiated, which they admit they have failed to
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do, they cannot be held in contempt for this failure because the
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information was not required by the 2007 Injunction.
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further argue that, if the 2007 Injunction does require them to
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conduct an investigation into allegations of non-compliance and to
Instead, they argue that the 2007
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Thus, they
Defendants
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report the outcome of each such investigation, including those
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that were not substantiated, then the order is ambiguous and
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unenforceable through civil contempt sanctions.
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Defendants aver that they have been acting pursuant to a good
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faith interpretation of the Injunction as not requiring this.
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Finally,
The Court finds that Defendants’ interpretation of the 2007
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Injunction fatally undermines any effectiveness that the relevant
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requirements would have had in addressing the ongoing violations
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identified in that order.
The Court required Defendants to
United States District Court
For the Northern District of California
10
“develop a system for holding wardens and prison medical
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administrators accountable for compliance with the Armstrong
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Remedial Plan and the orders of this Court,” and to track both
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“the record of each institution and the conduct of individual
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staff members who are not complying with these requirements.”
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These requirements were intended to serve multiple purposes,
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including remedying the widespread failures to respond to
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grievances and requests for accommodations, verifying compliance
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with the other parts of the Court’s orders and the ARP and
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ensuring that patterns of violations were identified and
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addressed.
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to develop effective internal oversight and accountability
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procedures to ensure that Defendants learned what was taking place
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in their facilities, in order to find violations, rectify them and
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prevent them from recurring in the future, without involvement by
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Plaintiffs’ counsel or the Court.
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identify whether institutions and staff members have complied with
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requirements, find patterns or hold wardens and medical
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administrators accountable, if they do not determine whether
Most importantly, these provisions required Defendants
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Defendants are unable to
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reports of rights violations are substantiated and record the
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results.
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of the results, are necessary to ensure that grievances are
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addressed and to identify staff error or misconduct and
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institutional deficiencies that violate class members’ rights.
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Defendants may not fail to investigate reports of rights
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violations and then declare that, because they did not
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substantiate a violation, they were not required to document it.
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Without documentation, there is no way for the Court to know
Simply put, investigations, including the documentation
United States District Court
For the Northern District of California
10
whether a complaint was investigated and found unsubstantiated, or
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was simply ignored.
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Some of Defendants’ declarations reveal that investigations
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were not conducted into complaints of rights violations until
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after the instant motion was filed.
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2011, Plaintiffs’ counsel submitted a monitoring report to
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Defendants stating that, among other things, a class member had
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reported “that his back brace was taken away following a cell
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extraction on May 2, 2011.”
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Defendants submit evidence that they conducted an investigation
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into this allegation upon receipt of the instant motion and offer
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no evidence that they investigated the report at any earlier time.
22
See Zanchi Decl. ¶¶ 2-3, 10-13 (asserting that the report was not
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substantiated, because the class member “was not medically
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authorized to have a back brace”).
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For example, on October 13,
Godbold Decl. ¶ 9, Ex. 5, 3.
The Court also notes that Defendants concede that at least
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some of the incidents at issue constituted violations of the ARP,
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which they were required to report.
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twenty-six ARP violations were not logged).
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See Opp. at 5 (admitting
Defendants state that
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they have or will amend their accountability reports to track
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these incidents.
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The Court finds that Defendants’ own evidence submitted in
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response to this motion reveals numerous additional incidents,
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which do violate the ARP or other Court orders, and which
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Defendants failed to track.
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state that they did not log that a violation of the ARP occurred
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because staff members did not intend to commit a rights violation
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or because the violation was subsequently remedied.
In multiple incidents, Defendants
However, the
United States District Court
For the Northern District of California
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2007 Injunction requires that every violation be tracked,
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regardless of whether or not it was done intentionally or based on
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an honest mistake or unavoidable.
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tracked, even if steps are later taken to remedy the initial
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problem.
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Further, violations must be
For example, Defendants acknowledge that a deaf inmate
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submitted a grievance dated September 4, 2011, stating that his
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hearing aid was taken during a cell search that took place on
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August 24, 2011 and asking that the hearing aid be returned or
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that he be provided with a new one.
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E.
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the hearing aid was taken during the search.
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Sometime after September 28, 2011, the inmate was seen by an
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audiologist and given a new hearing aid.
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Defendants contend that they “determined that there was no
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violation that needed to be logged” in the accountability logs,
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because the inmate’s hearing aid was removed from his cell “by
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mistake, and there was no intention to deprive him of his hearing
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aid,” and because he was “provided a new hearing aid soon after he
Cavazos Decl. ¶¶ 17-18, Ex.
Defendants also admit that a later investigation revealed that
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Id. at ¶ 19.
Id. at ¶ 19-21.
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requested one.”
Id. at ¶ 22.
In another incident, Defendants acknowledge that one
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prisoner’s Disability and Effective Communication System (DECS)
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record shows that “his primary method of communication is American
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sign language and that his secondary method of communication is
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the use of written notes.”
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¶ 7, Ex. A.
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functions,” when “sign language is the inmate’s primary or only
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means of effective communication,” a qualified sign language
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United States District Court
For the Northern District of California
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interpreter must be provided, “unless the inmate waives the
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assistance of an interpreter, reasonable attempts to obtain one
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are not successful, and/or delay would pose a safety or security
13
risk.”
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2011, staff held a meeting with this prisoner to provide notice of
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his conditions of parole, but did not have a sign language
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interpreter present and instead used written notes to communicate
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with him.
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that the inmate waived the assistance of an interpreter, they made
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reasonable attempts to obtain an interpreter or that delay would
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pose a safety or security risk.
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this issue with Defendants, a second meeting was held on June 3,
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2011 with the prisoner, at which a sign language interpreter was
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present.
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concluded that no violation of the ARP occurred in the April 18,
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2011 meeting, apparently because “the correctional counselor
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responsible” for the meeting “believed that the use of written
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notes was an appropriate effective form of communication,” and
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thus that the incident need not be entered into the accountability
Aref Decl. ¶ 6.
See also Aref Decl.
The ARP requires that, “for all due process
ARP § II.E.2.d.
Defendants attest that, on April 18,
Aref Decl. ¶ 8.
Defendants do not provide evidence
After Plaintiffs’ counsel raised
Aref Decl. ¶ 10-11, Ex. 11.
13
Defendants assert that they
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logs.
Id. at ¶ 15.
Defendants’ declarations also show that they failed to
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document violations where an inmate’s grievance did not
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specifically accuse a staff member of misconduct, even though the
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inmate was deprived of an accommodation required under the ARP.
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Defendants must report incidents where an inmate complains that he
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or she was not provided with something required by the ARP, not
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only where the class member has explicitly accused a specific
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staff member of intentional malfeasance or another talismanic
United States District Court
For the Northern District of California
10
phrase.
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required to track violations where they could not identify the
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specific staff members responsible for the problem.
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Zanchi Decl. ¶¶ 8-9 (“My investigation was unable to identify the
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specific staff members responsible for the violations.
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specific staff member could be identified as the responsible
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party, this incident was not logged in the CCI DPP Accountability
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Logs.”).
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responsible individual does not negate the fact that an incident
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occurred in which a class member was deprived of his rights.
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Further, the 2007 Injunction clearly requires Defendants to track
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institutional compliance, not just the compliance of individual
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staff members.
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Defendants also repeatedly state that they are not
See, e.g.,
Because no
However, the fact that Defendants could not identify the
For example, one prisoner submitted a grievance on a CDCR
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602 form stating that he was “vision impaired [and] not receiving
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assistance from custody in reading and writing.”
26
¶ 7, Ex. C, 3.
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that, during an interview about the grievance, the inmate stated
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specifically that “staff is unwilling to assist [him] in
Cullen Decl.
In the response to his grievance, staff noted
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preparation of an Inmate/Parolee Appeal CDCR 602 form.”
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His complaint was substantiated and the associate warden concluded
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that “staff was not providing the proper assistance with your
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disability needs,” noting that the ARP mandated that “institution
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staff shall provide the assistance and equipment necessary to all
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inmates with disabilities on a case by case basis to ensure that
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inmates, who have difficult reading and/or communicating in
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writing . . . are provided reasonable access to forms, CCRs and
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procedures.”
Id.
See ARP § II.F.
Id. at 5.
Defendants contend that they
United States District Court
For the Northern District of California
10
were not required to log this because the grievance did not
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provide “information that there was a violation of the Armstrong
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remedial plan.”
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was vague, the ensuing investigation clearly revealed that the
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class member was alleging a violation of the ARP, and Defendants’
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staff substantiated that there was such a violation.
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argument is especially disingenuous because the class member was
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complaining that he was not provided with accommodations required
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to help him complete this form properly, among other things.
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above, Defendants further aver that the inmate did not identify “a
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specific person or persons who failed to provide” him with
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assistance.
Cullen Decl. ¶ 7.
Even if the original grievance
This
As
Id.
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The Court notes that the instant motion does not involve
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Defendants’ failure to provide appropriate accommodations; rather,
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the Court considers whether Defendants have violated the 2007
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Injunction’s requirement that it develop an accountability system
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to ensure compliance with the ARP and the Court’s other orders.
27
On the record before it, the Court concludes that Defendants’
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accountability system, with which they do not dispute they have
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failed to comply, has not been effective.
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finds that the 2007 Injunction implicitly required Defendants to
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include in the accountability system requirements to investigate
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promptly and appropriately all allegations of violations,
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regardless of the source, and to record the outcomes of the
6
investigations, including whether or not the allegations were
7
substantiated, in an abundance of caution the Court concludes that
8
the 2007 Injunction may not state this plainly enough.
9
Accordingly, the Court DENIES Plaintiffs’ motion to hold
United States District Court
For the Northern District of California
10
Although the Court
Defendants in contempt.
11
The Court finds the 2007 Injunction should be clarified and
12
made more detailed, to make clear what is expected of Defendants
13
and to allow Defendants to conform their future behavior to its
14
terms.
15
forth below.
16
that were set forth in Defendants’ November 21, 2008 memorandum,
17
with minimal changes.
18
areas--tracking, investigation, corrective action and discipline,
19
dispute resolution, and requirement for a protective order.
20
Court finds that these changes are narrowly drawn, extend no
21
further than necessary to correct the violations of federal rights
22
identified in the 2007 Injunction, and are the least intrusive
23
means necessary to correct the violations of the federal rights.
24
The Court therefore MODIFIES the 2007 Injunction, as set
The modifications largely reflect the procedures
The Court makes changes in five substantive
The
The modifications require Defendants to track all allegations
25
of non-compliance with the ARP and the orders of this Court.
26
modifications are similar to Defendants’ own procedures.
27
Godbold Decl. ¶ 3, Ex. 1, 2-3.
This must be done regardless of
28
the source of the allegations.
The only difference is that this
16
The
See
1
order also requires Defendants to list when the investigation was
2
initiated, the name and title of the investigator, the date the
3
investigation was completed, the result of the investigation, and
4
the number of prior allegations of non-compliance against the
5
involved employees or employees.
6
this additional information is necessary because Defendants have
7
not tracked or conducted violations into all reported violations,
8
and those facts will show whether Defendants are fully and
9
effectively complying with the 2007 Injunction and holding staff
The Court finds that tracking of
United States District Court
For the Northern District of California
10
members accountable for non-compliance.
11
finds tracking the number of prior allegations of non-compliance
12
is necessary in order to meet the requirement in the 2007
13
Injunction that “Defendants shall refer individuals with repeated
14
instances of non-compliance to the Office of Internal Affairs for
15
investigation and discipline, if appropriate.”
16
7.
17
Furthermore, this Court
2007 Injunction at
Like Defendants’ own procedures, the modifications to the
18
Injunction set forth below also require Defendants to conduct an
19
investigation when they receive allegations of staff member
20
non-compliance.
21
difference is that this order requires the investigation to be
22
initiated within ten business days of receiving notice of such
23
allegation, and Defendants’ internal policy does not specify the
24
timeframe for the investigation.
25
necessary because some of Defendants’ investigations were
26
untimely, and such investigations may be less effective because of
27
the passage of time.
28
which class members are deprived of accommodations set forth in
See Godbold Decl. ¶ 3, Ex. 1, 2-3.
The only
Specifying a timeframe is
Further, such delays extend the time in
17
1
the ARP.
2
business days, is necessary to ensure that allegations are
3
investigated while memories are fresh, the facts surrounding the
4
allegations are still in existence and the violation can be
5
remedied.
6
the parties resulting from investigations, this Court finds that
7
Plaintiffs’ counsel must have access to the results of the
8
investigation, including all sources of information relied on to
9
substantiate or refute the allegations.
Initiation of a timely investigation, within ten
Further, in order to reconcile disagreements between
Such access is
United States District Court
For the Northern District of California
10
consistent with the monitoring powers already granted to
11
Plaintiffs.
12
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292(b), Docket No.
13
158, at 5 (“Plaintiffs shall be entitled to reasonable access to
14
information sufficient to monitor defendants’ compliance with the
15
guidelines, plans, policies and procedures that have been approved
16
by the Court.
17
documents, . . . interviews or depositions of institution and
18
departmental staff. . .”).
19
See Remedial Order, Injunction, and Certification of
Such monitoring shall include access to relevant
The 2007 Injunction requires that Defendants refer
20
individuals with repeated instances of non-compliance to the OIA
21
for investigation and discipline if appropriate.
22
not specify when and under what circumstance corrective and/or
23
disciplinary action is warranted.
24
accountability system must specify what discipline will result
25
from staff member violations.
26
that Defendants comply with the Employee Disciplinary Matrix set
27
forth in the CDCR Departmental Operations Manual, Chapter 3,
28
Article 22.
However, it does
To be effective, an
Accordingly, this order requires
See CDCR Operations Manual (2012) Personnel,
18
1
Training, and Employee Relations, §§ 33030.16–33030.19,
2
pp. 238-245.
3
The Court also finds it necessary to create a process for
resolving disputes between the parties regarding whether an
5
incident constitutes a violation of the ARP and this Court’s
6
orders, in order to facilitate Defendants’ compliance with the
7
2007 Injunction.
8
reached conclusions that no violation that needed to be documented
9
occurred, even though this was inconsistent with the ADA, the ARP
10
United States District Court
For the Northern District of California
4
and the evidence, the Court will establish a process for resolving
11
disputes between the parties.
12
accurate decision making while not unduly burdening the resources
13
of the Court or of the State.
14
Given the evidence that Defendants frequently
This process will promote more
Further, the Court determines that it is necessary for the
15
parties to protect the rights of Defendants’ employees.
16
facts surrounding the employees who are at the center of
17
non-compliance investigations will necessarily become known by the
18
parties.
19
complaints and reports from prisoners and again as part of the
20
tracking, investigation, disciplinary and dispute resolution
21
processes cited above.
22
essential part of the dispute resolution process and that a
23
protective order is necessary to protect Defendants’ employees
24
from disclosure of personnel information that is not necessary to
25
the conduct of this litigation.
26
27
28
Certain
Such personnel information will be disclosed through
The Court finds that this will be an
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiffs’
motion for an order holding Defendants in contempt (Docket No.
19
1
2024).
2
strike (Docket No. 2135).
3
The Court also DENIES AS MOOT Defendants’ motion to
IT IS HEREBY ORDERED THAT the following shall be substituted
4
in place of page seven, lines five through twelve of the 2007
5
Injunction:
6
Defendants, their agents and employees shall promptly take
7
all reasonable steps to comply with each provision set forth
8
below:
9
A.
United States District Court
For the Northern District of California
10
Tracking of All Allegations of Staff Member Non-Compliance
1.
Defendants, their agents and employees (Defendants) shall
11
track any allegation that any employee of the Department of
12
Corrections and Rehabilitation was responsible for any member of
13
the Plaintiff class not receiving access to services, programs,
14
activities, accommodations or assistive devices required by any of
15
the following: the Armstrong Remedial Plan, the Americans with
16
Disabilities Act or this Court’s prior orders.
17
tracked include, but are not limited to, those received from CDCR
18
staff, prisoners, Plaintiffs’ counsel, administrative appeals and
19
third parties.
20
non-compliance was unintentional, unavoidable, done without
21
malice, done by an unidentified actor or subsequently remedied.
22
2.
Allegations to be
All such allegations shall be tracked, even if the
The allegations shall be tracked in an electronic
23
spreadsheet that can be searched and sorted.
24
shall contain at least the following information: the prison at
25
which the incident occurred, the name and CDCR number of the
26
prisoner, the date of the allegation, the name of the employee(s),
27
the date the investigation was initiated, the name and title of
28
the investigator, the date the investigation was completed, the
20
The spreadsheet
1
result of the investigation, the number of prior allegations of
2
non-compliance against the employee(s), and the action taken, if
3
any, as a result of the investigation, including whether the
4
incident was referred to the Office of Internal Affairs.
5
3.
The spreadsheet shall be produced to Plaintiffs’ counsel
6
in electronic format monthly.
7
Plaintiffs’ counsel, the employees’ names shall be removed and
8
shall be replaced with a unique identifier.
9
employees’ names in records produced to Plaintiffs in accordance
When the spreadsheet is produced to
When redacting
United States District Court
For the Northern District of California
10
with this Order, Defendants shall consistently identify an
11
individual employee by the same unique identifier.
12
B.
13
Investigations
1.
Defendants shall investigate all allegations of employee
14
non-compliance, regardless of whether the allegation includes the
15
name of the employee(s).
16
ten business days of receiving notice of such allegations and
17
shall be completed as promptly as possible.
18
include a review of all information necessary to determine whether
19
or not the allegation is true and shall include an interview with
20
the affected prisoner(s).
21
written report that shall list all sources of information relied
22
upon in deciding whether employee non-compliance occurred and
23
whether any other finding(s) of non-compliance against the
24
employee(s) has been sustained.
25
2.
Investigations shall be initiated within
Investigations must
The investigation must result in a
If Plaintiffs’ counsel has a good faith disagreement with
26
the result of a particular investigation, they may request a copy
27
of the written report and it shall be produced.
28
instances, Plaintiffs’ counsel shall have the right to review all
21
In such
1
written documents utilized in making the determination set forth
2
in the report.
3
also have the right to interview individuals who provided
4
information utilized in making this determination.
5
Upon a showing of need, Plaintiffs’ counsel shall
3. When producing documents to Plaintiffs’ counsel pursuant
6
to this section, Defendants shall replace employees’ names with
7
unique identifiers as described in paragraph A.3.
8
C.
9
Corrective Action and Discipline
1.
Whenever an investigation reveals employee non-
United States District Court
For the Northern District of California
10
compliance, Defendants must comply with procedures set forth in
11
Defendants’ November 21, 2008 memorandum, “Expectations for Staff
12
Accountability and Non-Compliance of the Disability Placement
13
Program.”
14
2.
Defendants shall determine whether to initiate
15
disciplinary proceedings or corrective action against an employee
16
found in non-compliance, depending upon the number of prior
17
violations, the seriousness of the harm to the prisoner, and the
18
culpability of the employee.
19
employees in compliance with the Employee Disciplinary Matrix set
20
forth in the CDCR Departmental Operations Manual, Chapter 3,
21
Article 22, Personnel, Training, and Employee Relations.
22
3.
Defendants shall discipline
All determinations of whether to initiate disciplinary
23
proceedings or corrective action shall be produced to Plaintiffs’
24
counsel upon request.
25
Plaintiffs’ counsel, Defendants shall replace employees’ names
26
with unique identifiers as described in paragraph A.3.
27
D.
28
When producing these documents to
Dispute Resolution
1.
In the event of a dispute about the production of
22
1
information, the results of Defendants’ investigation of alleged
2
non-compliance or their decision about whether to initiate
3
corrective action, Plaintiffs’ counsel shall provide notice to
4
Defendants and attempt to resolve the matter through negotiation.
5
Defendants must respond to this notice within ten business days.
6
2. If the parties are unable to resolve the dispute
7
informally, Plaintiffs’ counsel may request that the Court’s
8
expert review and resolve the matter.
9
the dispute, the Court’s expert shall resolve disputes about the
Depending on the nature of
United States District Court
For the Northern District of California
10
production of information, determine whether non-compliance
11
occurred or, if it did, whether corrective action should be
12
initiated.
13
Plaintiffs’ counsel shall substantiate their contentions with
14
sworn declarations from the class member or members involved,
15
signed under penalty of perjury.
16
documents requested by the Court’s expert and shall make all
17
employees available for interview, on a confidential or non-
18
confidential basis as determined by the Court’s expert.
19
Administrative decisions made by the Court’s expert pursuant to
20
this section shall be final as between Plaintiffs and Defendants.
21
3.
When requesting review by the Court’s expert,
Defendants shall produce all
The parties dispute whether certain incidents set forth
22
in the pleadings constitute non-compliance with the Remedial
23
Order.
24
incidents remain in dispute and shall attempt to resolve these
25
disputes through negotiation with Defendants.
26
fail, the disputes may be referred to the Court’s expert pursuant
27
to paragraph D.2., above.
Plaintiffs’ counsel shall inform Defendants which
28
23
If negotiations
1
E.
2
Protective Order
The parties shall negotiate an order to protect the state law
3
rights of Defendants’ employees from unnecessary disclosure of
4
personnel information.
5
information produced to Plaintiffs’ counsel and the Court’s expert
6
pursuant to this Order shall be covered by this protective order.
7
If the parties are unable to agree on the terms of a protective
8
order, the Court’s expert will recommend one.
9
F.
United States District Court
For the Northern District of California
10
All documents that contain personnel
Notice
Defendants shall provide a copy of this Order to the present
11
and future individual employees who occupy the following positions
12
within the California Department of Corrections and
13
Rehabilitations:
14
a.
the Undersecretaries of the CDCR,
15
b.
the Director of the Division of Adult Institutions,
16
c.
the Deputy Directors of the Division of Adult
17
Institutions,
18
d.
19
Institutions,
20
e.
21
f.
22
23
the Associate Directors of the Division of Adult
all Wardens of adult institutions, and
all adult institution ADA coordinators.
G. Miscellaneous
The procedures set forth in this order or in the 2007
24
Injunction shall not apply to staff working under the authority
25
of the Receiver appointed by the court in Plata v. Brown.
26
27
28
IT IS SO ORDERED.
Dated:
8/22/2012
CLAUDIA WILKEN
United States District Judge
24
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