Armstrong, et al v. Newsom, et al, No. 4:1994cv02307 - Document 3025 (N.D. Cal. 2020)

Court Description: ORDER GRANTING IN PART MOTION FOR A PRELIMINARY INJUNCTION Re Docket Nos. 2978 and 2979 . Signed by Judge Claudia Wilken on 7/30/2020. (ndrS, COURT STAFF) (Filed on 7/30/2020)

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Armstrong, et al v. Newsom, et al Doc. 3025 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 1 of 50 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court Northern District of California 9 10 JOHN ARMSTRONG, et al., Plaintiffs, 11 v. 12 Case No. 94-cv-02307 CW ORDER GRANTING IN PART MOTION FOR A PRELIMINARY INJUNCTION (Re: Dkt. Nos. 2978, 2979) 13 GAVIN C. NEWSOM, et al., 14 Defendants. 15 Before the Court is Plaintiffs’ motion for a preliminary 16 17 injunction to continue in effect the transfer of Inmate 11 and 18 Inmate 2 (Witnesses) from R.J. Donovan Correctional Facility 19 (RJD) to another facility in light of the Witnesses’ concerns for 20 their safety at RJD. 21 submissions, and the argument presented at the hearing held on 22 July 16, 2020, the Court GRANTS IN PART the motion for a 23 preliminary injunction. 24 // Having carefully considered the parties’ 25 26 27 28 1 The Court finds that the parties have shown that compelling reasons exist for using pseudonyms to maintain the names of the inmates discussed in this order as confidential. The real names of the inmates will be listed in a separate order that will be filed under seal. Dockets.Justia.com Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 2 of 50 FINDINGS OF FACT 1 2 3 Procedural History In 1994, Plaintiffs, “a class of all present and future 4 California state prison inmates and parolees with certain 5 disabilities, sued defendants, California state officials with 6 responsibility for the operation of the Department of Corrections 7 and Rehabilitation (the CDCR) and the Board of Parole Hearings 8 9 United States District Court Northern District of California I. 10 11 (BPH), challenging the State’s treatment of disabled prisoners and parolees.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1063 (9th Cir. 2010) (internal quotation marks omitted). A series of orders by this Court and the Ninth Circuit “established that the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131–34, and 12 the Rehabilitation Act (RA), 29 U.S.C. § 794, applied to state 13 prisoners, and that defendants’ policies and procedures with 14 regard to disabled prisoners and parolees were inadequate and 15 violative of” the ADA and the RA. 16 17 18 19 20 Id. (citations and internal quotation marks omitted); Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997) (“[W]e conclude that the plain language of the ADA and RA, and our prior interpretations of that language, support application of the statutes to state prisons.”). CDCR Defendants produced a remedial plan in January 2001 21 intended to “ensure that disabled inmates had access to programs 22 and facilities in California’s prisons.” 23 Schwarzenegger, 622 F.3d at 1063 (citation omitted). 24 2001, the Court entered a permanent injunction directing 25 enforcement of that plan. 26 entered a comparable permanent injunction with respect to the BPH 27 defendants in 1999 and a revised permanent injunction in 2002. 28 Id. (citation omitted). Armstrong v. Id. (citation omitted). 2 In March The Court Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 3 of 50 1 “By 2007, however, the State had failed to bring its 2 correctional facilities into compliance with the remedial plan 3 and the 2001 Injunction.” 4 (9th Cir. 2014) (citation omitted). 5 issued another injunction in 2007, which required Defendants to 6 7 8 United States District Court Northern District of California 9 Armstrong v. Brown, 768 F.3d 975, 978 Accordingly, the Court develop accountability procedures to track their non-compliance with the remedial plan and the Court’s orders. The Court has modified the 2007 injunction several times to clarify Defendants’ obligations regarding accountability. Id. Since then, the litigation has been in a remedial phase, 10 with Defendants evaluating and modifying their procedures and 11 policies and Plaintiffs monitoring Defendants’ compliance with 12 the injunctions and the remedial plan and at times seeking 13 enforcement. Id. 14 In February and June 2020, respectively, Plaintiffs filed 15 two motions (enforcement motions) in which they argue that 16 Defendants’ employees have engaged and continue to engage in 17 adverse actions against Armstrong class members that violate the 18 ADA, the RA, the remedial plan, and this Court’s prior orders, 19 including the 2007 injunction and the Court’s subsequent orders 20 regarding accountability. Docket Nos. 2922, 2948. The conduct 21 alleged involves abuse specifically directed at class members, 22 who are more vulnerable to abuse and less able to defend 23 themselves in light of their disabilities, as well as acts of 24 retaliation against class members who report the abuse. This 25 conduct has allegedly deterred class members from requesting 26 disability accommodations, either informally or through the 27 Court-ordered disability grievance process, because class members 28 3 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 4 of 50 1 fear that such requests will invite more abuse. 2 enforcement motion addresses alleged abuse and retaliation 3 against class members at RJD (RJD enforcement motion), and the 4 second enforcement motion addresses alleged abuse and retaliation 5 at other prisons throughout California (state-wide enforcement 6 motion). 7 remain pending. 8 112 declarations of inmates (inmate-declarants) who are or were 9 incarcerated at RJD and other prisons and who suffered or 10 11 The first The enforcement motions have not been fully briefed and Part of the support for the motions consists of witnessed the conduct at issue. The Witnesses are two of the inmate-declarants who filed 12 declarations in support of the enforcement motions. 13 present proceeding, the Witnesses claim that staff at RJD have 14 retaliated against them, on multiple occasions, for submitting 15 declarations in support of the enforcement motions and, in 16 particular, for describing in such declarations that a certain 17 officer, Officer Rucker, ignored the requests of Inmate 4, 18 another inmate-declarant, to be transferred to another cell 19 because of safety concerns related to his cellmate. 20 4, 2020, Inmate 4 was attacked by his cellmate and died on 21 February 19, 2020. 22 the retaliation they have suffered since they filed declarations 23 in support of the enforcement motions is the result of having 24 made statements in such declarations that implicate Officer 25 Rucker in Inmate 4’s death. 26 In the On February The Witnesses believe that at least some of Plaintiffs argue that the alleged retaliation against the 27 Witnesses has continued to occur despite this Court’s stipulated 28 order of March 17, 2020, which provides, “Defendants and their 4 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 5 of 50 1 employees are prohibited from retaliating against the Declarants, 2 Armstrong class members at RJD, or incarcerated people at RJD for 3 participating in the [RJD motion].” 4 The order also provides, “If the Court finds that retaliation has 5 occurred, the Court will issue appropriate relief.” United States District Court Northern District of California 6 Order at 1, Docket No. 2931. Id. at 4. In light of the continued alleged acts of retaliation 7 against the Witnesses, Plaintiffs moved for a temporary 8 restraining order and preliminary and permanent injunction 9 requiring Defendants to transfer the Witnesses out of RJD. On 10 July 2, 2020, the Court issued an order granting this motion in 11 part and deferring it in part. 12 Court ordered Defendants to propose a plan for transferring the 13 Witnesses to another placement that satisfied certain criteria. 14 The criteria were based on the Witnesses’ disabilities, the pre- 15 existing conditions that make them vulnerable to Covid-19 16 complications, their security level, and their vulnerability to 17 acts of retaliation because of their assistance with the 18 enforcement motions. 19 parties to meet and confer and to file by July 9, 2020, a joint 20 statement describing their positions as to the appropriate 21 placement for the Witnesses. Order, Docket No. 2972. Id. at 3-5. Id. The The Court also ordered the The parties did so. 22 On July 10, 2020, the Court granted Plaintiffs’ motion for a 23 temporary restraining order to transfer the Witnesses out of RJD. 24 The Court ordered that, no later than July 12, 2020, (1) Inmate 2 25 be transferred to a Mental Health Crisis Bed (MHCB) at the 26 California Health Care Facility (CHCF), Docket No. 2979; and (2) 27 Inmate 1 be transferred to an Enhanced Outpatient Program Housing 28 unit on Facility D or E at Mule Creek State Prison (MCSP) or to 5 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 6 of 50 1 CHCF, Docket No. 2978. 2 to a different placement, with the transfer of each Witness to 3 take place the morning after each Witness received a negative 4 Covid-19 test result. 5 transferred to the MHCB at California Men’s Colony (CMC) on a 6 temporary basis pending placement at CHCF once it is open for 7 transfers, and Inmate 1 would be transferred to an Enhanced 8 Outpatient Program housing unit on Facility D at MCSP. 9 Court approved this stipulation on July 13, 2020. 10 On July 12, 2020, the parties stipulated Docket No. 2987. Inmate 2 would be Id. The Docket No. 2991. The Court ordered Defendants to show cause why a preliminary 11 12 injunction should not issue to continue in effect the order to 13 transfer the Witnesses out of RJD and retain the Witnesses at a 14 suitable non-RJD facility, and it held a hearing on July 16, 15 2020. 16 II. Factual Findings on Current Motion2 17 A. 18 As noted, Plaintiffs argue in the RJD enforcement motion 19 Protected Activity that Defendants’ employees abuse and retaliate against class 20 21 22 23 24 25 26 27 28 2 Both sides have submitted materials that do not strictly comply with the Federal Rules of Evidence. The Court will exercise its discretion to consider these materials in light of the difficulties created by the present pandemic. Herb Reed Enterprises, LLC v. Fla. Entm’t Mgmt., Inc., 736 F.3d 1239, 1250 n.5 (9th Cir. 2013) (“Due to the urgency of obtaining a preliminary injunction . . . when there has been limited factual development, the rules of evidence do not apply strictly to preliminary injunction proceedings.”); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988) (“It was within the discretion of the district court to accept . . . hearsay for purposes of deciding . . . the preliminary injunction.”). Questions as to the submitted materials’ reliability will go to their weight rather than to their admissibility. 6 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 7 of 50 1 members at RJD in violation of the ADA, the RA, the remedial 2 plan, and this Court’s prior orders, including the 2007 3 injunction and the Court’s subsequent orders regarding 4 accountability. 5 is protected activity. 6 enforcement motion on July 15, 2020. 7 Plaintiffs have not yet filed their reply. 8 reviewed the evidence filed to date by both sides in connection 9 with the enforcement motion and finds it relevant to the present 10 11 Docket No. 2922. Assisting with such a motion Defendants filed their response to this Docket No. 3006. The Court has motion. RJD has the second largest population of incarcerated people 12 with disabilities in CDCR, with nearly 1,000 Armstrong class 13 members, including 297 people who use wheelchairs, 217 people who 14 are deaf or hard of hearing, and thirteen people who are blind. 15 Grunfeld Decl., Ex. II at 184-89, Docket No. 2922-1. 16 In 2018, CDCR sent a strike team to investigate allegations 17 of staff misconduct on Facility C at RJD. 18 of fourteen investigative staff and seven ombudsmen. 19 Report at 1-3, Docket No. 2921-6. 20 interview 150 inmates on Facility C, but only 102 inmates agreed 21 to be interviewed. 22 part, that RJD staff specifically targeted for abuse inmates with 23 disabilities and other vulnerable inmates, that RJD staff hired 24 inmates to assault other inmates, that RJD staff engaged in gang- 25 like behavior, and that RJD staff retaliated against inmates who 26 reported the abuse with further abuse or by making false 27 allegations against them so that the inmates would be subjected 28 to disciplinary action. Id. The team was comprised Bishop The strike team sought to The interviewees reported, in relevant Id. at 4-9. 7 Forty-eight inmates out of United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 8 of 50 1 the 102 who chose to participate in the interviews supported 2 their claims of misconduct by RJD staff with detailed and 3 “actionable” allegations. 4 Bishop, who led the strike team and wrote its report based on his 5 assessment of the interviews, recommended that the allegations of 6 these forty-eight inmates be investigated “promptly.” 7 Associate Warden Bishop also recommended, among other things, 8 that live-feed cameras be installed in all areas of limited or 9 obstructed visibility; that non-managerial RJD staff be 10 restricted from accessing areas of low visibility; that 11 management prohibit RJD staff from wearing non-approved clothing 12 items that could be used as gang identifiers; and that the inmate 13 appeals process be modified to ensure that staff are not able to 14 interfere with the process. 15 Id. at 14-17. Associate Warden Id. Id. at 12-13. Defendants have admitted that the Bishop Report “formally 16 recognized serious problems with aspects of R.J. Donovan’s 17 operations, and specifically within Facility C, and that 18 responsive action should be taken.” 19 19, Docket No. 3006. 20 still had not completed their investigations of the specific and 21 “actionable” allegations of abuse made by the forty-eight strike- 22 team interviewees. 23 Seibel) Dep. Tr. at 133, 156, Docket No. 2921-8; id. at 221-22, 24 Docket No. 2922-1. 25 Defs.’ Resp. to RJD Mot. at As of January 29, 2020, however, Defendants See Defs.’ Rule 30(b)(6) Designee (Kimberly Plaintiffs’ expert, Jeffrey Schwartz, has assisted prisons 26 and jails over the last twenty years in applying national 27 correctional standards to their operations. 28 Docket No. 2947-9. Schwartz Decl. ¶ 2, Schwartz was retained by Plaintiffs to opine 8 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 9 of 50 1 on CDCR’s inquiry, investigation, and disciplinary process as it 2 relates to allegations of staff misconduct and the discipline of 3 staff for misconduct. 4 Schwartz analyzed the files of forty-three investigations of 5 allegations of staff misconduct at RJD. 6 opines that the situation at RJD is “horrifying” for inmates with 7 disabilities and other vulnerable inmates, and that there is 8 “substantial evidence that these vulnerable inmates are targeted 9 and preyed upon by a significant number of staff at RJD.” Id. ¶ 9. As part of his assignment, Id. ¶ 11. Schwartz Id. ¶¶ 10 23-27. 11 grievances/complaints and afraid to provide testimony during 12 investigations. 13 of intimidation are common.” 14 situation to RJD’s “dysfunctional staff culture,” which “will not 15 be changed quickly or easily.” 16 this dysfunctional culture stems in part from the ineffectiveness 17 of CDCR’s system for investigating misconduct and disciplining 18 staff; the investigations of staff misconduct at RJD are 19 incomplete, unprofessional, and biased against incarcerated 20 complainants and witnesses. 21 276, 327. 22 discounted or ignored and that plagiarism and other collusion in 23 staff reports is ignored. 24 staff is disciplined primarily when there is video evidence or 25 staff reports of misconduct. 26 219. 27 28 According to Schwartz, “Inmates are afraid to file Pressure to withdraw complaints and other forms Id. ¶ 60. Schwartz attributes this Id. ¶ 93. According to Schwartz, Id. ¶¶ 93, 40-47, 84, 181, 187, 273, Schwartz opines that inmate testimony is often Id. ¶¶ 40-49. Schwartz notes that Id. ¶¶ 53, 126, 127, 172, 208, 210, Plaintiff’s other expert, Eldon Vail, is a former correctional administrator with thirty-five years of experience 9 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 10 of 50 1 working in and administering adult correctional institutions. 2 Vail Decl. ¶ 3, Docket No. 2020-5. 3 of three adult correctional institutions, and he served as the 4 Secretary of the Department of Corrections of Washington for four 5 years. 6 declarations of fifty-four inmate-declarants, CDCR policies, and 7 various other case materials. 8 there is a pattern of violence against class members at RJD and 9 that staff at RJD routinely use force against class members after Id. ¶ 4. He has served as the Warden As part of his assignment, Vail reviewed the Id. ¶ 10. Vail concludes that 10 failing to recognize and accommodate inmates’ disabilities. 11 ¶¶ 13, 4, 27, 30. 12 staff against class members often is excessive and the frequency 13 with which such force is used is “startling.” 14 Vail, the “unnecessary and excessive use of force, including 15 closed fist punches and kicks, that result in serious injury to 16 the class members is far beyond the norm found in other 17 institutions or jurisdictions of which I am aware.” 18 Vail also identified a pattern of retaliation against class 19 members who report abuse, and widespread fear among class members 20 of reporting allegations of staff misconduct as a result. 21 16, 59-62, 88. 22 Id. In his opinion, the level of force used by RJD Id. According to Id. ¶ 13. Id. ¶¶ In their response to the RJD enforcement motion, Defendants 23 argue that they have taken steps to change the culture at RJD and 24 improve staff accountability, such as providing RJD staff with 25 additional training, making changes to the personnel at RJD, 26 referring staff complaints to the Office of Internal Affairs, and 27 taking adverse action against officers found to have engaged in 28 misconduct against inmates. Defs.’ Resp. to RJD Mot. at 17-20. 10 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 11 of 50 1 Defendants note that these steps have already proved effective to 2 some extent, as the number of RJD staff who have been disciplined 3 for misconduct against inmates has increased since 2017. 4 see also Miller Decl. ¶¶ 34-35 (providing that RJD dismissed one 5 officer in 2017, two in 2018, and six in 2019; RJD made one 6 referral for criminal prosecution against an officer in 2018 and 7 three in 2019; and that from 2017 to 2019, there were thirty-five 8 suspensions without pay or salary reductions for staff misconduct 9 involving an inmate). Id.; Defendants also note that the number of 10 use-of-force incidents involving Armstrong class members has 11 decreased. 12 See Defs.’ Resp. to RJD Mot. at 20. Nothing in Defendants’ response to the RJD enforcement 13 motion suggests that the issues described in the Schwartz and 14 Vail declarations have been eradicated or even substantially 15 diminished. 16 some improvement in the conditions at RJD for disabled inmates. 17 Defendants admit, however, that there is still “staff misconduct 18 that does occur” at RJD. 19 (Kimberly Seibel) Dep. Tr. at 267, Docket No. 2922-1. Defendants’ response suggests that there has been See Defs.’ Rule 30(b)(6) Designee 20 B. Adverse Action and Causation: Inmate 2 21 Inmate 2 is close to seventy years old and has a mobility 22 disability that requires him to use a wheelchair. Inmate 2 Decl. 23 of March 27, 2020 ¶¶ 2-3, Docket No. 2969-7. 24 504-month sentence for a robbery conviction and has been 25 incarcerated since 1996. 26 His California Static Risk Assessment (CSRA) score, a measure 27 that CDCR uses to assess risk of recidivism, is “low.” 28 Defendants have designated Inmate 2 as risk level 1, meaning that He is serving a Freedman Decl. ¶ 23, Docket No. 2969-7. 11 Id. Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 12 of 50 1 he is at high risk of complications from Covid-19 in light of his 2 various medical conditions, which include diabetes, chronic 3 kidney disease, and cardiovascular disease. United States District Court Northern District of California 4 Id. ¶ 23. Inmate 2 signed a declaration dated March 27, 2020, which 5 Plaintiffs filed in support of the enforcement motion. There, 6 Inmate 2 declared that, in December 2019, Inmate 4 told him that 7 he was trying to get transferred out of Building 1 on Facility A 8 at RJD because Officer Rucker and others were trying to arrange 9 an assault on him by other incarcerated people. Inmate 2 Decl. 10 of March 27, 2020 ¶ 7. 11 while Inmate 2 was in the hospital for surgery, Inmate 4 was 12 moved into his hospital room. 13 that he was in the hospital because of injuries that were caused 14 by an attack by his cellmate. 15 prior to the attack, he had repeatedly asked to be moved to 16 another cell because he and his cellmate were not getting along, 17 and that Officer Rucker told him in response each time he asked 18 for a transfer to “fuck or fight,” meaning that he either had to 19 learn to get along with his cellmate or had to attack his 20 cellmate to get moved to another cell, and that he would only 21 leave his cell if he were dead. 22 several days later. 23 few days thereafter, Officer Rucker asked him what Inmate 4 had 24 told him at the hospital. 25 Then, on or around February 17, 2020, Id. ¶ 14. Id. ¶ 8. Id. ¶ 9. Inmate 4 told Inmate 2 Inmate 4 also said that, Id. ¶¶ 10-11. Inmate 4 died When Inmate 2 returned to RJD a Id. ¶ 17. In a later declaration, Inmate 2 states that, when they were 26 both in the hospital in February 2020, Inmate 4 told him that 27 Officer Rucker had attacked him and had hurt him. 28 of July 13, 2020 ¶¶ 5-6, Docket No. 2998-6. 12 Inmate 2 Decl. Inmate 2 had assumed Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 13 of 50 1 that this attack had taken place on the same date on which Inmate 2 4 was assaulted by his cellmate. 3 that this assumption had been incorrect when counsel for 4 Plaintiffs told him that Officer Rucker had not been working on 5 the day that Inmate 4 was attacked by his cellmate. 6 Court finds this explanation credible and that it does not damage 7 Inmate 2’s credibility. United States District Court Northern District of California Inmate 2 later realized Id. The In another declaration, signed on June 25, 2020, Inmate 2 8 9 Id. states that, after he began to speak with Plaintiffs’ counsel to 10 prepare the declaration in support of the enforcement motion 11 after his release from the hospital, staff at RJD began to take 12 adverse actions against him. 13 4-6, Docket No. 2969-7. 14 repeatedly failed to release him from his cell in time to take 15 his diabetes medication and other medications, which he must take 16 several times per day. 17 the declarations of Inmate 1 and Inmate 3, who, like Inmate 2, 18 reside in Building 1, on Facility A at RJD, and are released for 19 medications at the same time that Inmate 2 is supposed to be 20 released. 21 Decl. of June 30, 2020 ¶¶ 7, 9, 19. Inmate 2 Decl. of June 25, 2020 ¶¶ Inmate 2 declares that RJD staff Id. These assertions are corroborated by Inmate 1 Decl. of June 26, 2020 ¶¶ 2, 5; Inmate 3 On June 17, 2020, at around 8:30 p.m., RJD Officer Montreuil 22 23 used force against Inmate 2. According to the declarations of 24 Inmates 2, 1, and 3, Inmate 2 was not released on time for his 25 medications, and this caused him to yell and make noise to be let 26 out. 27 June 26, 2020 ¶¶ 5-6; Inmate 3 Decl. of June 30, 2020 ¶¶ 7-18. 28 Once he was released, Inmate 2 travelled in his wheelchair, Inmate 2 Decl. of June 25, 2020 ¶¶ 7-8; Inmate 1 Decl. of 13 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 14 of 50 1 carrying a cup of water to take his medications. Inmate 2 Decl. 2 of June 25, 2020 ¶ 8; Inmate 1 Decl. of June 26, 2020 ¶ 7; Inmate 3 3 Decl. of June 30, 2020 ¶ 21. 4 letting him out of his cell earlier, and the officers, including 5 Officer Montreuil, yelled back. 6 ¶ 8; Inmate 1 Decl. of June 26, 2020 ¶ 7; Inmate 3 Decl. of June 7 30, 2020 ¶¶ 19-22. 8 Montreuil, the officer grabbed him and slammed him to the ground. 9 Inmate 2 Decl. of June 25, 2020 ¶ 9; Inmate 1 Decl. of June 26, He yelled at the officers for not Inmate 2 Decl. of June 25, 2020 Even though he posed no threat to Officer 10 2020 ¶ 8; Inmate 3 Decl. of June 30, 2020 ¶ 22. 11 on his head and stomach, face down, and lost consciousness. 12 Inmate 2 Decl. of June 25, 2020 ¶ 9; Inmate 1 Decl. of June 26, 13 2020 ¶ 8; Inmate 3 Decl. of June 30, 2020 ¶ 24. 14 Inmate 2 landed Officer Montreuil then got on top of Inmate 2 and put his 15 knee into Inmate 2’s upper back and neck. 16 25, 2020 ¶ 9; Inmate 1 Decl. of June 26, 2020 ¶ 8; Inmate 3 Decl. 17 of June 30, 2020 ¶ 24. 18 and believed that Officer Montreuil was going to kill him. 19 Inmate 2 Decl. of June 25, 2020 ¶¶ 9, 12. 20 Officer Montreuil pressed a sharp object on Inmate 2’s right arm 21 and said, “This is for my homeboy Rucker, motherfucker.” 22 2 Decl. of June 25, 2020 ¶ 9. 23 building. 24 June 30, 2020 ¶ 25. Inmate 1 and Inmate 3 have not seen Inmate 2 25 since the incident. Inmate 1 Decl. of June 26, 2020 ¶ 8; Inmate 26 3 Decl. of June 30, 2020 ¶ 26. 27 28 Inmate 2 Decl. of June Inmate 2 yelled that he could not breathe After handcuffing him, Inmate Staff escorted Inmate 2 out of the Inmate 1 Decl. of June 26, 2020 ¶ 8; Inmate 3 Decl. of The Court finds the description of the June 17 incident in the declarations of Inmates 2, 1, and 3 to be credible. 14 The United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 15 of 50 1 declarations are consistent in all material respects. 2 inmates declared that Inmate 2 was in his wheelchair and did not 3 assault or pose a threat to Officer Montreuil. 4 that Inmate 1 and Inmate 3 were housed in cells that were a few 5 feet away from Inmate 2’s cell and observed the entire incident. 6 Inmate 1 Decl. of June 26, 2020 ¶ 5; Inmate 3 Decl. of June 30, 7 2020 ¶¶ 7, 19. 8 with Inmate 2 since the June 17 incident, which eliminates the 9 possibility that Inmate 2 could have colluded with Inmate 1 and 10 All three It is undisputed Inmate 1 and Inmate 3 have not had any contact Inmate 3 as to the contents of their declarations. The declarations of Inmates 2, 1, and 3 are further 11 12 corroborated by a memorandum written by a social worker named J. 13 Clayton, which states that another inmate reported to him on June 14 18, 2020, that he witnessed the June 17 incident. 15 reported that Inmate 2 did not resist the officer but two 16 officers twisted Inmate 2’s arm behind his back until he started 17 “bucking in pain.” This inmate Freedman Decl., Ex. 14, Docket No. 2998-6. Defendants’ version of the June 17 incident is based on the 18 19 declaration of Francisco Armenta, who is an Associate Warden at 20 RJD. 21 declaration, Associate Warden Armenta provides “a summary” of the 22 June 17 incident that is based, not on his personal knowledge, 23 but on his review of a preliminary incident report package that, 24 in turn, is based on incident reports authored by officers at 25 RJD. 26 under penalty of perjury, and none of the officers who filed an 27 incident report has submitted a sworn declaration describing the 28 June 17 incident. Armenta Decl. of July 10, 2020, Docket No. 2984. See id. ¶ 5 & Ex. F. In his The incident reports are not signed 15 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 16 of 50 United States District Court Northern District of California 1 Armenta declares that when Inmate 2 was released from his 2 cell for his medications in the evening of June 17, he walked out 3 of his cell without a wheelchair, yelled obscenities at Officers 4 Montreuil and Gomez, and asked to speak with the sergeant before 5 he received his medications. 6 2 that the sergeant was unavailable. 7 made derogatory comments about the officers and threatened to 8 throw at them the liquid in his cup, which Inmate 2 allegedly 9 claimed contained “piss, shit, and blood.” Id. ¶ 6. The officers told Inmate Id. In response, Inmate 2 Id. Inmate 2 10 allegedly moved toward Officer Montreuil and attempted to throw 11 the liquid onto him but missed. 12 his body weight to take Inmate 2 to the ground. 13 Id. Officer Montreuil then used Id. Once Inmate 2 was on the ground, Officer Montreuil 14 handcuffed him and searched him for contraband. 15 Officer Montreuil found no contraband on Inmate 2’s person, 16 “staff” smelled alcohol coming from Inmate 2 and later found an 17 alcoholic substance known as “pruno” in his cell. 18 that night, staff ordered Inmate 2 to provide a urine sample for 19 analysis, and he refused. 20 pain, bruising, and redness on his right shoulder. 21 Id. ¶ 9. Id. While Id. Later Officer Montreuil sustained Id. ¶ 10. Defendants’ description of the June 17 incident lacks 22 credibility. It is not at all clear that Inmate 2’s cup did 23 contain bodily fluids. 24 or records showing that the healthcare facility maintenance (HFM) 25 team was called to clean up. 26 spilled liquid had been bodily fluids, Defendants would have 27 called the HFM team to clean and sanitize the area, but the HFM 28 team did not respond to the incident or clean the liquid. There are no photographs of the contents Inmate 3 declares that, if the 16 Inmate Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 17 of 50 1 3 Decl. of June 30, 2020 ¶ 23. 2 away, also declares that the spilled liquid appeared to be clear 3 and odor-free. United States District Court Northern District of California 4 Inmate 3, who was a few feet Id. ¶¶ 19, 23. Defendants argue that Inmate 2 stated in a video interview 5 following the June 17 incident that some of the other inmates who 6 witnessed the incident were yelling that the cup in Inmate 2’s 7 hand contained bodily fluids. 8 by Inmate 2. 9 if he had thrown the liquid, that would not justify the force This does not equate to a threat Further, even if he had made such a threat and even 10 that Officer Montreuil used against him. 11 Inmate 2 face down onto the ground using the weight of the 12 officer’s body on the inmate’s back, instead of using less force 13 or no force at all. 14 injure his own shoulder and to render Inmate 2 unconscious. 15 Officer Montreuil took The officer apparently used enough force to Defendants have not offered any declarations to dispute the 16 sworn statements of Inmates 1, 2, and 3 that the force that 17 Officer Montreuil used against Inmate 2 was unprovoked and 18 sufficient to render him unconscious. 19 2020 ¶ 9; Inmate 1 Decl. of June 26, 2020 ¶ 8; Inmate 3 Decl. of 20 June 30, 2020 ¶ 24. 21 declaration that, in light of his age and disabilities, Inmate 2 22 posed no physical threat to Officer Montreuil. 23 June 30, 2020 ¶ 19. 24 Inmate 2 Decl. of June 25, Defendants also have not disputed Inmate 3’s Inmate 3 Decl. of Defendants claim that Inmate 2 was under the influence of 25 alcohol during the June 17 incident, and that inmate-made alcohol 26 was found in his cell afterward. 27 attached to Associate Warden Armenta’s declaration do state that 28 Inmate 2 had smelled of alcohol or may have been intoxicated. Some of the incident reports 17 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 18 of 50 1 These statements are not credible, and are of little relevance. 2 Notably, the incident report prepared by Officer Montreuil, who 3 had significant physical contact with Inmate 2, does not mention 4 that Inmate 2 smelled of alcohol, or that he appeared to be 5 intoxicated. 6 the medical records corroborate this claim. 7 June 17, 2020, which followed a full physical examination of 8 Inmate 2, does not mention that he was intoxicated or smelled of 9 alcohol. See Incident Report, Docket No. 2984 at 41. Nor do A medical note dated Freedman Decl., Ex. 10, Docket No. 2969-7. Another 10 medical note dated that day states that Inmate 2 complained to 11 first responders that he could not breathe and that the pain on 12 his neck was 9 on a 10-point scale. 13 Docket No. 2996-6. 14 of alcohol or appeared to be intoxicated. 15 Defendants did not photograph or retain the alcohol allegedly 16 found in Inmate 2’s cell. 17 Freedman Decl., Ex. 5, This note does not say that Inmate 2 smelled Id. Finally, The statements in the incident report regarding alcohol are 18 contradicted by Inmate 2’s declaration of July 13, 2020. There, 19 Inmate 2 denies being drunk or having had alcohol in his cell on 20 June 17, denies that he was asked to take a urine test, and 21 states that nobody on June 17 accused him of being intoxicated or 22 of possessing alcohol. 23 Docket No. 2998-6. 24 weeks after the June 17 incident that officers filed a Rules 25 Violation Report (RVR) against him for assaulting an officer and 26 another for possession of alcohol on June 17, 2020. 27 Defendants do not explain why these RVRs were not issued until 28 two weeks after the incident. Inmate 2 Decl. of July 13, 2020 ¶¶ 7-10, He also states that it was not until two Id. ¶ 7. See Armenta Decl., Ex. A & B. 18 And Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 19 of 50 1 even if Inmate 2 was under the influence of pruno found in his 2 cell, that would not justify the force used against him. 3 4 description of the June 17 incident based on Associate Warden 5 Armenta’s declaration and the incident reports attached thereto 6 lacks credibility. 7 United States District Court Northern District of California In light of the foregoing, the Court finds that Defendants’ Plaintiffs allege that the adverse actions taken against 8 Inmate 2 were motivated by retaliation for his participation in 9 the motions to enforce this Court’s orders originating from the 10 ADA litigation. 11 25, 2020, he states that staff at RJD began to retaliate against 12 him after he began to speak with Plaintiffs’ counsel to prepare 13 the declaration in support of the enforcement motions, after his 14 release from the hospital in February. 15 25, 2020 ¶¶ 4-6, Docket No. 2969-7. 16 stating that Office Rucker failed to act on Inmate 4’s requests 17 to transfer to another cell because of safety concerns about his 18 cellmate, after which Inmate 4 was fatally attacked by his 19 cellmate. 20 believes that RJD staff are aware that he is assisting with these 21 proceedings because RJD staff set up his calls with Plaintiffs’ 22 counsel. 23 at RJD refer to him as a “rat” and a “snitch.” 24 In the declaration that Inmate 2 signed on June Inmate 2 Decl. of June That was the declaration Inmate 2 Decl. of June 25, 2020 ¶ 9. Id. ¶ 6. Inmate 2 Inmate 2 was told by other inmates that staff Id. ¶ 4. Inmate 2 asserts that officers repeatedly failed to release 25 him from his cell on a timely basis so that he could take his 26 medications, and he believes that such failures are connected to 27 his assistance with the enforcement motions. 28 these assertions credible. The Court finds In their declarations, Inmate 1 and 19 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 20 of 50 1 Inmate 3 state that RJD staff have regularly delayed or simply 2 failed to release Inmate 2 for his medications since on or around 3 February 2020. 4 Decl. of June 30, 2020 ¶¶ 7, 9. 5 timeframe that Inmate 2 came back from the hospital after Inmate 6 4’s death. United States District Court Northern District of California 7 Inmate 1 Decl. of June 26, 2020 ¶¶ 4-5; Inmate 3 This coincides with the The Court also finds credible that Officer Montreuil’s use 8 of force against Inmate 2 was in retaliation for Inmate 2 9 submitting a declaration in support of the enforcement motion. 10 As noted above, Inmate 2 heard Officer Montreuil tell him during 11 the incident, “This is for my homeboy Rucker.” 12 is also shown by Inmate 1’s declaration that he heard Officer 13 Montreuil say to Inmate 2 something to the effect of, “Explain 14 that to the lawyers you talk to.” 15 2020 ¶ 8. 16 Montreuil denying that he made these statements. 17 incident, according to Inmate 3, the officer in the control 18 tower, Officer Armstead, announced over the PA system, “Yeah, 19 motherfucker, that’s what you get. 20 3 Decl. of June 30, 2020 ¶ 25. 21 declaration from Officer Armstead, nor have they submitted 22 declarations by other RJD staff who witnessed the incident. 23 This connection Inmate 1 Decl. of June 26, Defendants have not submitted a declaration by Officer After the That’s how we do it.” Inmate Defendants have not submitted a After the June 17 incident, Inmate 2 reported to medical 24 staff that he was extremely upset and afraid for his safety, and 25 he was placed on suicide watch. 26 11, 12, 13, Docket No. 2969-7. 27 someone slipped nail clippers and a note stating “kill yourself” 28 under his door. See, e.g., Freedman Decl., Ex. While he was on suicide watch, Inmate 2 Decl. of July 3, 2020 ¶ 4, Docket No. 20 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 21 of 50 1 2998-6. 2 upset and afraid and wanted to get out of RJD. 3 required to remove the nail clippers. 4 Ex. 15, 16. 5 occurred as Inmate 2 describes them. United States District Court Northern District of California 6 Inmate 2 swallowed the nail clippers because he was Id. Surgery was Freedman Decl. ¶¶ 20-22 & Defendants do not dispute that that these events Inmate 2 declares that the incidents of retaliation against 7 him have led him to feel unsafe at RJD, to fear for his life, and 8 to wish that he were dead. 9 Inmate 2 states that, given these incidents, he “w[ill] not stick Inmate 2 Decl. of June 25, 2020 ¶ 12. 10 [his] neck out again and try to help in the Armstrong case 11 because the harassment is not worth dying for.” 12 finds that these statements are credible. Id. The Court 13 C. Adverse Action and Causation: Inmate 1 14 Inmate 1 is in her late forties, has hearing and mobility 15 disabilities, is serving a 348-month sentence for a conviction of 16 grand theft, and has been incarcerated since 1996. 17 Decl. ¶ 24, Docket No. 2969-7. 18 recidivism, is “low.” 19 as risk level 1, meaning that she is at high risk of 20 complications from Covid-19 in light of her multiple pre-existing 21 medical conditions, which include asthma, seizures, and sleep 22 apnea. 23 Id. Freedman Her CSRA score, or risk of Defendants have designated Inmate 1 Id. On January 29, 2020, Inmate 1 signed a declaration, which 24 Plaintiffs submitted in support of the RJD enforcement motion, in 25 which she states that in November 2019 she was placed in 26 administrative segregation and left in her cell in handcuffs for 27 approximately forty-eight hours in retaliation for filing a 28 Prison Rape Elimination Act (PREA) claim. 21 See Inmate 1 Decl. of United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 22 of 50 1 January 29, 2020 ¶¶ 6-11, Docket No. 2969-7. 2 episode, Inmate 1 was forced to urinate and defecate in her own 3 clothing more than once. 4 handcuffs that were used during this incident belonged to Officer 5 Toele. 6 interviewed by the Watch Commander, who told her that it had been 7 reported that a pair of handcuffs was missing, but staff failed 8 to conduct a search for the handcuffs. 9 believes that no search was conducted because she told everyone Id. ¶ 12. Id. ¶ 10. During this Inmate 1 declares that the Following the incident, Inmate 1 was Id. ¶ 13. Inmate 1 10 who passed by her cell during that period that she was 11 handcuffed. 12 investigation remains pending. 13 dispute that this incident occurred and they have offered no 14 contrary evidence, such as declarations by Officer Toele or the 15 Watch Commander. 16 Id. Inmate 1 reported this incident; the Id. ¶¶ 13-15. Defendants do not Inmate 1 signed a second declaration on March 27, 2020, 17 which Plaintiffs submitted in support of the state-wide 18 injunction motion, in which she states that, on or around January 19 28, 2020, Inmate 4 told her that Inmate 4 was having problems 20 with his cellmate and that he was trying to get transferred to 21 another cell. 22 2969-7. 23 Inmate 4 to “fuck or fight” and to “[g]et the fuck out of [his] 24 face.” 25 response to a request by Inmate 4 to move to another cell, 26 because Inmate 1 had heard Officer Rucker tell other inmates who 27 asked for a cell transfer to “fuck or fight.” 28 February 4, 2020, Inmate 1 heard Inmate 4’s cellmate yell, “Man Inmate 1 Decl. of March 27, 2020 ¶ 5, Docket No. A few days later, Inmate 1 heard Officer Rucker tell Id. ¶ 6. Inmate 1 believes that this statement was a 22 Id. ¶ 7. On Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 23 of 50 1 down!” 2 appeared to be unconscious, out of his cell in a gurney. United States District Court Northern District of California 3 Id. ¶¶ 10-11. Nursing staff carried Inmate 4, who Id. In a declaration signed on May 21, 2020, Inmate 1 states 4 that, about a month after Inmate 4’s death in February 2020, she 5 heard from multiple people at RJD that Officer Rucker had been 6 transferred to work in the mailroom, and that Officer Doyle, a 7 partner of Officer Rucker, had made comments to inmates 8 indicating that she believed that Officer Rucker’s transfer was 9 the result of conversations that inmates were having with lawyers 10 or investigators regarding Inmate 4’s death. 11 May 21, 2020 ¶¶ 5-6. 12 Inmate 1 Decl. of On April 8, 2020, Inmate 1 had a seizure in her cell and 13 became unconscious. 14 pain in her wrists and ankles and saw Officer Doyle and Officer 15 Garcia among the several people who were surrounding her as she 16 woke up. 17 where she reported pain in her wrists and ankles and asked to be 18 examined by a doctor. 19 inmate, whom Inmate 1 does not want to name because of the 20 inmate’s fear of retaliation, told Inmate 1 that he saw Officer 21 Doyle and Officer Garcia enter her cell and saw Officer Garcia 22 step on her hands and Officer Doyle step on her ankles before 23 dragging her out of her cell. 24 Inmate 1 reported what she heard from the inmate and asked to 25 file an excessive force complaint against Officer Doyle and 26 Officer Garcia. 27 sent back to her cell, Officer Doyle made a comment to her about 28 officers being aware of inmates talking with lawyers or Id. Id. ¶ 7. When she woke up, she felt sharp Inmate 1 was taken to a Triage and Treatment Area, Id. Id. ¶ 10. While waiting for the doctor, another Id. ¶ 9. When the doctor arrived, Inmate 1 recalls that, when she was 23 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 24 of 50 1 investigators to complain about staff, including Officer Rucker. 2 Id. ¶ 11. 3 Officer Doyle believed that Officer Rucker had been sent to the 4 mailroom because of what Inmate 1 said about Officer Rucker in 5 her declaration for these proceedings. 6 April 9, 2020, Inmate 1 filed complaints of excessive force and 7 retaliation against Officer Doyle and Officer Garcia in 8 connection with the prior day’s incident. United States District Court Northern District of California 9 Inmate 1 interpreted this comment as a warning that Id. The next day, on Id. ¶ 12. On April 15, 2020, Inmate 1 had a conversation with 10 Plaintiffs’ counsel in a room from which Inmate 1 believes the 11 Watch Commander can hear what is being said. 12 Inmate 1 returned to her building after the interview, Officer 13 Doyle confronted her and told her that “the Watch Commander told 14 me every fucking thing you said, you need to find something else 15 to do besides making complaints.” 16 Id. ¶¶ 13-14. When Id. ¶ 15. On May 13, 2020, Officer Mesa called Inmate 1 by name over 17 the public-announcement system, saying, “Internal Affairs is here 18 to see you in One Building.” 19 safety because it is known among staff and inmates that inmates 20 who talk with Internal Affairs do so to report misconduct by 21 staff or other inmates, which in turn can invite acts of violence 22 or other forms of retaliation against the person reporting 23 misconduct. 24 Inmate 1 over the public-announcement system. 25 June 30, 2020 ¶ 18. 26 Id. ¶ 17. This made Inmate 1 afraid for her Inmate 3 heard Officer Mesa call out Inmate 3 Decl. of When Inmate 1 reported to the building as directed, she was 27 told that staff from the Appeal Inquiry Management System (AIMS) 28 were there to talk with her about the complaints she had filed 24 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 25 of 50 1 against Officer Doyle and Officer Garcia. 2 21, 2020 ¶ 18. 3 Garcia were standing outside of the room where the interview 4 would take place. 5 a slot in the room, which the Tower Officer can open to listen to 6 what is being said in the room. 7 that Officer Mesa had opened the slot during the interview 8 because other inmates told her that they had seen Officer Mesa 9 talking to Officer Doyle and Officer Garcia after the interview. 10 Inmate 1 Decl. of May Inmate 1 saw that Officer Doyle and Officer Id. Further, Inmate 1 believes that there is Id. ¶ 22. Inmate 1 suspects Id. Later that day, Officer Mesa opened Inmate 1’s cell and 11 12 allowed four other inmates to enter, one of whom told Inmate 1, 13 “Doyle don’t want no problems with you, we work with her, so we 14 need you not to make any more complaints about her,” and told her 15 to let the complaints she had already filed against Officer Doyle 16 “go.” 17 1 but could not hear what was said. 18 2020 ¶ 18. 19 Id. ¶ 23. Inmate 3 saw a group of inmates speak to Inmate Inmate 3 Decl. of June 25, On May 19, 2020, another inmate told Inmate 1 that Officer 20 Mesa and Officer Doyle had told a group of inmates that a new 21 rule limiting telephone calls and showers to every other day was 22 caused by the complaints that Inmate 1 had filed. 23 of May 21, 2020 ¶ 24. 24 blamed Inmate 1 for these unpopular rule changes in order to put 25 a target on her back. 26 Inmate 1 Decl. Inmate 1 believes that these officers Id. On June 17, 2020, Inmate 1 observed the incident during 27 which Officer Montreuil used force against Inmate 2. 28 Decl. of June 26, 2020 ¶¶ 4-8. Inmate 1 Inmate 1 declares that she lives 25 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 26 of 50 1 in “great fear” following what happened to Inmate 2 on June 17. 2 Id. ¶ 9. 3 assisting in this litigation because staff routinely call her a 4 “snitch” and announce over the speaker system that she has phone 5 calls with Plaintiffs’ counsel. 6 is very “dangerous” to be publicly called out for talking with 7 Plaintiffs’ counsel because “[t]alking to the Armstrong attorneys 8 is considered the equivalent of snitching on staff[.]” Id. Inmate 1 declares that it Id. On June 25, 2020, Inmate 1 had an interview with Internal 9 United States District Court Northern District of California Inmate 1 believes that RJD staff know that she is 10 Affairs about a complaint she filed and Officer Mesa called out 11 Inmate 1 by name over the public-announcement system and 12 announced, “[I]t’s time for you to go talk to Internal Affairs.” 13 Inmate 1 Decl. of June 26, 2020 ¶ 10. 14 Officer Sanchez’s door on the way to this meeting, Officer 15 Sanchez said to Inmate 1, “I know you are snitching, make sure 16 you spell my name right.” 17 Affairs took place in the chapel on the prison yard, which means 18 that everyone on the yard saw the Internal Affairs officer and 19 Inmate 1 go to the chapel for the interview. 20 “very afraid for [her] safety” as a result. Id. As Inmate 1 passed by The interview with Internal Id. Inmate 1 is Id. On or around June 29, 2020, Inmate 3 heard Officer Mesa 21 22 announce over the public-announcement system that Inmate 1 was 23 meeting with Internal Affairs. 24 ¶ 29. 25 Inmate 3 Decl. of June 30, 2020 The Court finds Inmate 1’s allegations of retaliation for 26 assisting Plaintiffs’ counsel with these proceedings, and of 27 living in fear for her safety at RJD, to be credible. 28 the incidents Inmate 1 describes in her declarations involve 26 Most of Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 27 of 50 1 Officer Doyle, who she claims is Officer Rucker’s partner, which 2 Defendants do not dispute. 3 Inmate 1 believes that a connection exists between Officer 4 Doyle’s actions and Inmate 1’s participation in this litigation 5 because her participation has involved complaining about Officer 6 Rucker’s involvement in the events leading up to Inmate 4’s 7 death. 8 United States District Court Northern District of California 9 Inmate 1 Decl. of June 26, 2020 ¶ 9. Id. Defendants have offered no affirmative evidence to dispute that any of the incidents that Inmate 1 describes in her 10 declaration occurred, including the multiple instances of being 11 called out over the public-announcement system as having meetings 12 with Plaintiffs’ counsel and Internal Affairs, and the multiple 13 instances in which an officer approached Inmate 1 to say 14 something to discourage her from complaining about staff or to 15 make her aware that staff know about her discussions with 16 Plaintiffs’ counsel or complaints about staff. 17 declaration corroborates some of these incidents. 18 Inmate 3’s Instead, Defendants argue that Inmate 1’s declarations are 19 not credible because she stated during a videotaped interview on 20 July 7, 2020, that she had no safety concerns on Facility A, 21 which is inconsistent with the statement in her declaration of 22 June 26, 2020, that she was “very afraid for [her] safety.” 23 Inmate 1 Decl. of June 26, 2020 ¶ 10, Docket No. 2969-7. 24 25 See Associate Warden Scott Anderson conducted the July 7 video interview of Inmate 1 for the purpose of determining whether she 26 27 28 27 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 28 of 50 1 had any safety concerns on Facility A.3 2 Docket No. 2984. 3 states that he and staff were “made aware” that Inmate 1 “might 4 have safety concerns on the facility,” and asks Inmate 1 whether 5 she has “any safety concerns staying in Facility A.” 6 1 responds that she does not have safety concerns and that, if 7 she had any, she would say so. 8 United States District Court Northern District of California 9 See Armenta Decl., Ex. E, During the interview, Associate Warden Anderson Id. Inmate Id. Inmate 1 signed a declaration dated July 11, 2020, in which she explains her statements during the video interview of July 7. 10 Inmate 1 states that, starting in May 2020, she had been 11 interviewed by various RJD staff about whether she had any safety 12 concerns. 13 Inmate 1 did “fear for [her] safety” because “officers on 14 Facility A have engaged in a campaign of harassment and 15 retaliation against [her] for complaining about staff misconduct 16 and participating in Plaintiffs’ motions,” Inmate 1 “denied 17 having safety concerns when asked because [she] did not want to 18 go to administrative segregation,” as she had been left in 19 handcuffs for forty-eight hours the last time she was there. 20 Inmate 1 Decl. of July 11, 2020 ¶ 4. Even though Id. On July 7, 2020, before the videotaped interview with 21 Associate Warden Anderson, four officers, Officers Torrones, 22 Lacroix, Silkk, and another officer whose name Inmate 1 does not 23 24 25 26 27 28 3 Plaintiffs move to strike this video on the grounds that it violates the Court’s order of March 17, 2020, and California Rule of Professional Conduct 4.2, because Defendants conducted the video interview without first obtaining consent from Plaintiffs’ counsel. Defendants represented during the hearing on July 16, 2020, that they questioned Inmate 1 about her safety concerns in order to ensure her safety. In an abundance of caution, the Court will consider the video and weigh it in light of the circumstances. 28 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 29 of 50 1 know, and two sergeants whose names Inmate 1 does not know, came 2 to Inmate 1’s cell and told her that she was being taken to 3 administrative segregation for safety concerns. 4 1 refused to go to administrative segregation and said that she 5 did not have any safety concerns. 6 later, Sergeant Jackson and a female lieutenant told Inmate 1, 7 “Your lawyer called and said that you have safety concerns.” 8 ¶ 8. 9 wanted to be placed in administrative segregation for safety, and Id. ¶¶ 5-7. Id. ¶ 5. Inmate About an hour Id. Inmate 1 responded that she never told her lawyer that she 10 that it was “safer for [her] in Building 1 than in ad-seg.” 11 Defendants have not filed any declarations by Officers Id. 12 Torrones, Lacroix, and Silkk, or Sergeant Jackson, to dispute 13 Inmate 1’s version of these events. About an hour and a half later, Associate Warden Anderson 14 15 and Counselor Belmares came to Inmate 1’s cell and Anderson told 16 Inmate 1 that she had to go to the mental health building to sign 17 a chrono stating that she did not want to go to administrative 18 segregation. 19 Inmate 1 to Associate Warden Armenta’s office in the mental 20 health building and filmed the interview discussed above. 21 9. 22 Anderson and Armenta about the time she was left in handcuffs for 23 forty-eight hours in administrative segregation to explain why 24 she did not want to go to administrative segregation. 25 Associate Wardens have not filed a declaration that contradicts 26 Inmate 1’s version of the events. 27 28 Id. ¶¶ 8-9. Associate Warden Anderson then took Id. ¶ After the end of the videotaped interview, Inmate 1 told Id. The Inmate 1 declares that she remains afraid for her safety on Facility A but is “terrified” of being sent to administrative 29 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 30 of 50 1 segregation, where she “fears staff would hurt [her]” like they 2 did during the handcuffs incident and where staff could also 3 allow other incarcerated people to hurt her. 4 The Court does not find the videotaped interview of July 7 5 to be probative of whether Inmate 1 did, in fact, have concerns 6 for her safety at RJD. 7 credibility. 8 9 United States District Court Northern District of California Id. ¶ 10. Nor does this video undermine Inmate 1’s In sum, Inmate 1’s sworn statements regarding multiple acts by RJD staff, which Inmate 1 believes were intended to intimidate 10 her, threaten her, and discourage her from cooperating with 11 Plaintiffs’ counsel in these proceedings and from complaining 12 about staff in general, are uncontroverted. 13 connected these incidents to her assistance with the enforcement 14 motions by declaring that, during some of the incidents, officers 15 have made references to Officer Rucker and to Inmate 1 talking 16 with Plaintiffs’ counsel. 17 1’s credibility is ineffective. 18 that Inmate 1’s statements regarding the incidents described 19 above, and their connection to her assistance with the 20 enforcement motions, are credible. Inmate 1 has Further, Defendants’ attack on Inmate Accordingly, the Court finds 21 D. Findings Related to Winter Factors 22 As will be discussed below, the issuance of a preliminary 23 injunction requires findings (1) that the movant is likely to 24 succeed on the merits; (2) that he is likely to suffer 25 irreparable harm in the absence of preliminary relief; (3) that 26 the balance of the equities tips in his favor; and (4) that a 27 preliminary injunction is in the public interest. 28 30 The Court’s Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 31 of 50 1 factual findings with respect to each of these factors are as 2 follows. 1. 3 Based on the evidence detailed above, the Court finds that 4 United States District Court Northern District of California Likelihood of Success on the Merits 5 Plaintiffs have shown that they are likely to succeed on the 6 merits of their claims that the Witnesses have suffered adverse 7 actions due to retaliation, in violation of the ADA, or that, at 8 the very least, Plaintiffs have raised serious questions as to 9 such claims. 10 The Court finds that the enforcement motions are ADA 11 proceedings because they seek to enforce class members’ rights 12 under the ADA. 13 that Defendants’ employees have violated class members’ rights 14 under the ADA and the RA, and have violated the Court’s 15 injunctions and orders in this action, by attacking and 16 retaliating against class members on account of their 17 disabilities or for exercising their statutory rights. In their enforcement motions, Plaintiffs argue The Witnesses have filed declarations in support of the 18 19 enforcement motions, and such declarations, as well as the 20 Witnesses’ assistance to Plaintiffs’ counsel, are protected 21 activity under the ADA. 22 The Court further finds that Plaintiffs have shown that they 23 are likely to succeed on their claims that the Witnesses suffered 24 adverse actions that were retaliatory, in that they were caused 25 by the Witnesses’ assistance with the enforcement motions. 26 // 27 28 31 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 32 of 50 2. 1 2 The Court finds that Plaintiffs have shown that they are 3 likely to suffer irreparable harm absent a preliminary 4 injunction. 5 United States District Court Northern District of California Irreparable Harm The situation for inmates with disabilities and otherwise 6 vulnerable to abuse at RJD has been described by Plaintiffs’ 7 expert as “horrifying” in light of the “substantial evidence that 8 these vulnerable inmates are targeted and preyed upon by a 9 significant number of staff at RJD.” Schwartz Decl. ¶¶ 23-27. 10 The alleged misconduct by RJD staff includes the use of excessive 11 force, which is employed against RJD inmates at a “startling” 12 rate that is “far beyond the norm[.]” 13 Bishop Report of December 2018 describes allegations by inmates 14 of violence and retaliation by RJD staff aimed at vulnerable 15 populations, including disabled inmates. 16 Vail Decl. ¶ 13. The Defendants have acknowledged that the Bishop Report 17 “formally recognized serious problems with aspects of R.J. 18 Donovan’s operations . . . and that responsive action should be 19 taken.” 20 expert noted and Defendants have not disputed, the situation at 21 RJD is the result of the “dysfunctional staff culture,” which 22 “will not be changed quickly or easily.” 23 Thus, while Defendants have taken steps to improve the conditions 24 for class members housed at RJD since the Bishop Report, the 25 Court finds a likelihood that the Witnesses who now seek 26 injunctive relief will suffer from acts of retaliation and abuse 27 that could cause them great bodily or psychological injury, and 28 violations of their statutory rights, absent injunctive relief. Defs.’ Resp. to RJD Mot. at 19. 32 But, as Plaintiffs’ Schwartz Decl. ¶ 93. Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 33 of 50 United States District Court Northern District of California 1 As noted, the Court finds that Plaintiffs have shown a 2 likelihood that the Witnesses have suffered acts of retaliation 3 even after Defendants, pursuant to the Court’s order of March 17, 4 2020, posted anti-retaliation notices in the housing units at 5 RJD, provided RJD staff with additional anti-retaliation 6 training, and took other steps to ensure that inmate-declarants 7 would suffer no retaliation as a result of having provided 8 assistance to Plaintiffs’ counsel in connection with the 9 enforcement motions. The incidents of retaliation at issue took 10 place even after Defendants began to report allegations of staff 11 misconduct to AIMS. 12 danger of bodily or psychological harm, or of further violations 13 of their rights under the ADA to participate or assist in these 14 proceedings. 15 Each of these incidents put the Witnesses in The fact that these incidents likely occurred as Inmate 2 16 and Inmate 1 describe them in their declarations, which, as 17 discussed above, the Court finds to be credible in light of the 18 totality of the record now before it, shows that nothing the 19 Court or Defendants have done so far has been effective at 20 preventing retaliation against the Witnesses. 21 indication in the record that any effective mechanism is in place 22 to guarantee that this conduct against the Witnesses will stop if 23 the Witnesses remain at RJD. 24 is still “staff misconduct that does occur” at RJD. 25 Rule 30(b)(6) Designee (Kimberly Seibel) Dep. Tr. at 267, Docket 26 No. 2922-1. 27 retaliatory conduct against the Witnesses is likely to occur 28 absent an injunction. There is no As Defendants have admitted, there See Defs.’ Accordingly, Plaintiffs have shown that further 33 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 34 of 50 1 2 the Witnesses are at risk of suffering irreparable harm and that 3 their participation as witnesses in this litigation could be at 4 risk absent a preliminary injunction that continues in effect the 5 order requiring that they be transferred to and housed in a 6 suitable place outside of RJD. 7 8 9 United States District Court Northern District of California The Court therefore finds that Plaintiffs have shown that 3. Balance of the Equities The Court finds that the balance of the equities tips sharply in Plaintiffs’ favor. Plaintiffs have shown that, in the 10 absence of a preliminary injunction, they would suffer 11 significant burdens, which include serious bodily and 12 psychological harm, and violations of their rights under the ADA 13 in the form of further retaliation for their assistance in these 14 proceedings. 15 On the other hand, Defendants have not pointed to any 16 burdens that the issuance of a preliminary injunction, continuing 17 in effect the transfer to and housing of the Witnesses at a 18 suitable non-RJD facility, would impose upon them. 19 burdens that Defendants have identified do not appear to be 20 related to such a transfer. 21 injunction could result in future requests for transfer by other 22 inmates, and that it would be burdensome to remove officers each 23 time an allegation of misconduct is lodged against such officers. 24 Defendants, however, do not explain how these matters relate to 25 the preliminary injunction at issue here. 26 are unpersuasive for the additional reasons that Plaintiffs have 27 not yet requested to remove any officers and that, in the lengthy The only Defendants argue that a preliminary 28 34 Defendants’ arguments Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 35 of 50 1 history of this action, Plaintiffs have never before moved to 2 transfer particular inmates from one prison to another. The present pandemic presents special challenges to prison United States District Court Northern District of California 3 4 management, but such challenges affect every aspect of the prison 5 system. 6 of the preliminary injunctive relief at issue here, which is 7 limited to the transfer and housing of two inmates at a suitable 8 non-RJD facility, are slight when weighed against the burdens 9 that the Witnesses would suffer in the absence of a preliminary 10 The Court finds that any such challenges in the context injunction. Accordingly, the Court finds that the burden on Defendants 11 12 and on prison administration of transferring and housing the two 13 Witnesses in a suitable facility other than RJD is minimal, and 14 that any such burdens are heavily outweighed by the burdens that 15 the Witnesses could face if they continue to be housed at RJD. 16 4. The Court finds that Plaintiffs have shown that a 17 18 Public interest preliminary injunction is in the public interest. After experiencing various incidents involving threats, 19 20 intimidation, and even violence, Inmate 2 and Inmate 1 believe 21 that reporting misconduct by RJD staff and assisting with these 22 proceedings has placed their personal safety at risk. 23 Decl. of June 26, 2020 ¶ 12; Inmate 1 Decl. of June 26, 2020 ¶ 24 10. 25 the Witnesses and other inmates to assist with or participate in 26 these proceedings could be negatively impacted. 27 one, has stated that he “will not stick out [his] neck out again 28 and try to help in the Armstrong case because the harassment is Inmate 2 If such incidents continue, the ability or willingness of 35 Inmate 2, for United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 36 of 50 1 not worth dying for.” Inmate 2 Decl. of June 26, 2020 ¶ 12. 2 Inmate 1, for another, has refused to ask other inmates to come 3 forward to corroborate the incidents she describes in her 4 declarations because she “know[s] that they will not be protected 5 from retaliation.” 6 light of these sworn statements, which the Court deems credible, 7 the Court finds that the integrity of these proceedings would 8 deteriorate in the absence of a preliminary injunction. 9 Court further finds that a preliminary injunction would promote Inmate 1 Decl. of May 21, 2020 ¶ 26. 10 the enforcement of the ADA’s anti-interference and anti- 11 retaliation provisions, which is in the public interest. 12 In The Defendants argue that the public interest weighs in favor of 13 non-interference with prison administration. 14 Defendants have not shown how the preliminary injunction at issue 15 here would burden the prison system or would otherwise improperly 16 interfere with prison administration. 17 As discussed above, Accordingly, the Court finds that a preliminary injunction 18 that would continue in effect the order to transfer and house the 19 inmates at a suitable non-RJD facility is in the public interest. 20 21 LEGAL STANDARD “A plaintiff seeking a preliminary injunction must establish 22 that he is likely to succeed on the merits, that he is likely to 23 suffer irreparable harm in the absence of preliminary relief, 24 that the balance of equities tips in his favor, and that an 25 injunction is in the public interest.” 26 Def. Council, Inc., 555 U.S. 7, 20 (2008). 27 28 Winter v. Natural Res. Alternatively, “a preliminary injunction could issue where the likelihood of success is such that serious questions going to 36 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 37 of 50 1 the merits were raised and the balance of hardships tips sharply 2 in plaintiff’s favor,” so long as the plaintiff demonstrates 3 irreparable harm and shows that the injunction is in the public 4 interest. 5 1127, 1131 (9th Cir. 2011) (citation and internal quotation and 6 editing marks omitted). 7 considering a plaintiff’s showing as to the likelihood of success 8 on the merits and the likelihood of irreparable harm. 9 “Under this approach, the elements of the preliminary injunction 10 test are balanced, so that a stronger showing of one element may 11 offset a weaker showing of another.” A court employs a sliding scale when Id. Id. CONCLUSIONS OF LAW 12 13 Alliance for the Wild Rockies v. Cottrell, 632 F.3d I. Plaintiffs Have Shown that a Preliminary Injunction is Warranted 14 15 As discussed below, and based on the factual findings above, 16 the Court concludes that Plaintiffs have met their burden to show 17 that the issuance of a preliminary injunction to transfer and 18 maintain the Witnesses out of RJD is warranted because they have 19 shown that each of the four factors of the Winter framework is 20 met. 21 likelihood of success on the merits of their claims of 22 retaliation in violation of the ADA, only shown that serious 23 questions exist as to such claims, the preliminary injunction 24 would be justified under the alternative sliding-scale standard 25 based on the Court’s factual findings, and conclusions below, 26 that the balance of hardships tips sharply in Plaintiffs’ favor, 27 that Plaintiffs have demonstrated a likelihood of irreparable However, even if Plaintiffs had, instead of showing a 28 37 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 38 of 50 1 harm, and that the injunction is in the public interest. 2 Alliance for the Wild Rockies, 632 F.3d at 1131. United States District Court Northern District of California 3 See That the preliminary injunction at issue here is a mandatory, 4 and not a prohibitory, injunction does not undermine the Court’s 5 conclusion. 6 here, the facts and law clearly favor the moving party. 7 Stanley v. Univ. of S. California, 13 F.3d 1313, 1320 (9th Cir. 8 1994); see also Charles A. Wright & Arthur R. Miller, 11A Fed. 9 Prac. & Proc. Civ. § 2942 (3d ed.) (“It has been said that courts A court can issue a mandatory injunction where, as See 10 are more reluctant to grant a mandatory, or affirmative, 11 injunction than a prohibitory, or negative, one. 12 injunctions compelling the doing of some act, as opposed to 13 forbidding the continuation of a course of conduct, are an ancient 14 and familiar tool of equity courts and will be used whenever the 15 circumstances warrant.”). Nonetheless, 16 A. Likelihood of Success on the Merits 17 The Court first must determine what legal standard governs 18 the Witnesses’ claims of retaliation. Defendants argue that the 19 standard is that for proving retaliation in violation of the First 20 Amendment, and Plaintiffs argue that the standard is that for 21 proving retaliation in violation of the ADA. 22 The retaliation about which the Witnesses complain is 23 allegedly connected to their assistance with or participation in 24 Plaintiffs’ enforcement motions, which in turn seek redress for 25 violations of the ADA, the RA, the remedial plan, and the Court’s 26 injunctions and related orders. 27 retaliation that underlies their request for preliminary 28 injunctive relief was in violation of the Witnesses’ First Plaintiffs do not argue that the 38 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 39 of 50 1 Amendment rights. 2 relevant standard here is the standard for proving retaliation in 3 violation of the ADA. A claim for retaliation in violation of the ADA requires a 4 United States District Court Northern District of California Accordingly, the Court concludes that the 5 showing “that (1) [the plaintiff] engaged in statutorily 6 protected activity; (2) adverse action was taken against him; and 7 (3) a causal connection exists between the adverse action and 8 protected activity.” 9 3263, 2020 WL 3579862, at *4 (8th Cir. July 2, 2020) (applying Rinehart v. Weitzell, __F.3d__, No. 18- 10 test for retaliation in violation of the ADA to claim brought by 11 incarcerated person). As discussed below, and based on the facts found above, 12 13 Plaintiffs are likely to show that all three prongs for a claim 14 of retaliation in violation of the ADA have been met with respect 15 to each Witness. 16 are likely to succeed on the merits of their claims for 17 retaliation in violation of the ADA as to each Witness, as well 18 as their claims for violations of the Court’s order of March 17, 19 2020. 20 least, Plaintiffs have raised serious questions with respect to 21 the merits of their retaliation claims. In the alternative, the Court concludes that, at the very 1. 22 23 Accordingly, Plaintiffs have shown that they Protected Activity Under the ADA Title II of the ADA provides that “no qualified individual 24 with a disability shall, by reason of such disability, be 25 excluded from participation in or be denied the benefits of the 26 services, programs, or activities of a public entity, or be 27 subjected to discrimination by any such entity.” 28 § 12132. The ADA applies to state prisons. 39 42 U.S.C. Armstrong v. Wilson, United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 40 of 50 1 124 F.3d at 1023 (“[W]e conclude that the plain language of the 2 ADA and RA, and our prior interpretations of that language, 3 support application of the statutes to state prisons.”). 4 In their enforcement motions, Plaintiffs argue that 5 Defendants’ employees have violated class members’ rights under 6 the ADA and the RA, and have violated the remedial plan and the 7 Court’s injunctions and orders in this action, by attacking and 8 retaliating against class members on account of their 9 disabilities or for exercising their rights under the ADA and the 10 RA. Because the enforcement motions are brought to protect class 11 members’ rights under the ADA, such motions are ADA proceedings. 12 The ADA prohibits retaliation for or interference with 13 assisting or testifying in connection with an ADA proceeding. 14 Specifically, 42 U.S.C. § 12203(a) provides, “No person shall 15 discriminate against any individual because such individual has 16 opposed any act or practice made unlawful by this chapter or 17 because such individual made a charge, testified, assisted, or 18 participated in any manner in an investigation, proceeding, or 19 hearing under this chapter.” 20 provides, “It shall be unlawful to coerce, intimidate, threaten, 21 or interfere with any individual in the exercise or enjoyment of, 22 or on account of his or her having exercised or enjoyed, or on 23 account of his or her having aided or encouraged any other 24 individual in the exercise or enjoyment of, any right granted or 25 protected by this chapter.” 26 Additionally, 42 U.S.C. § 12203(b) Here, the Witnesses have filed declarations in support of 27 the enforcement motions, which, as found and concluded, are ADA 28 proceedings. The Witnesses’ assistance with the enforcement 40 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 41 of 50 1 motions, therefore, is protected activity under the ADA, 42 2 U.S.C. §§ 12203(a) and (b). 3 claim for retaliation in violation of the ADA is met. 2. 4 United States District Court Northern District of California 5 Accordingly, the first prong of a Adverse Action and Causation The Court next addresses the second and third prongs of a 6 claim for retaliation in violation of the ADA, which here require 7 a showing that adverse action related to the Witnesses’ 8 declarations in support of the enforcement motions was taken 9 against the Witnesses. After carefully reviewing all of the 10 materials presented by both sides, the Court has found and 11 concludes that Plaintiffs are likely to show that the Witnesses 12 suffered adverse actions that were caused by their assistance 13 with the enforcement motions. 14 Specifically, as discussed in more detail in the Findings of 15 Fact, the Court has found that Plaintiffs are likely to show that 16 Inmate 2 suffered several adverse actions by staff at RJD that 17 have a causal nexus to his assistance with the enforcement 18 motions. 19 providing, or failed to provide, Inmate 2 with his medications on 20 multiple occasions; that Officer Montreuil used excessive force 21 against Inmate 2 on June 17, 2020; and that RJD staff allowed 22 nail clippers in Inmate 2’s cell and a note encouraging him to 23 kill himself while he was on suicide watch. 24 These actions include: that RJD staff delayed in The Court also has found that Plaintiffs are likely to show 25 that Inmate 1 suffered several adverse actions by staff at RJD 26 that have a causal nexus to her assistance with the enforcement 27 motions. 28 instances, stated over the public-announcement system that Inmate These actions include: that staff at RJD, on multiple 41 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 42 of 50 1 1 was meeting with Plaintiffs’ counsel and internal 2 investigators; and that officers made statements or otherwise 3 behaved in a way intended to intimidate, threaten, or discourage 4 Inmate 1 from assisting Plaintiffs’ counsel in these proceedings 5 or otherwise complaining about staff misconduct. United States District Court Northern District of California 6 Defendants argue that the June 17 incident involving Inmate 7 2 is not an act of retaliation because Officer Montreuil’s use of 8 force against him “was not because of Inmate 2’s protected 9 conduct, but instead advanced a legitimate correctional goal.” 10 Defs.’ Resp. at 5, Docket No. 2981-3. But Defendants have cited 11 no case showing that a claim for retaliation in violation of the 12 ADA fails where the adverse action in question “advanced a 13 legitimate correctional goal.” 14 rely to support that proposition are inapposite, because they 15 address claims for retaliation in violation of the First 16 Amendment, which require proof of an additional element not 17 required for a retaliation claim under the ADA, namely that the 18 adverse conduct in question did not advance a legitimate 19 correctional goal. 20 (9th Cir. 1995) (holding that, “[b]ecause a prisoner’s First 21 Amendment rights are necessarily curtailed” while in custody, “a 22 successful retaliation claim [under the First Amendment] requires 23 a finding that the prison authorities’ retaliatory action did not 24 advance legitimate goals of the correctional institution or was 25 not tailored narrowly enough to achieve such goals”). The cases upon which Defendants See, e.g., Pratt v. Rowland, 65 F.3d 802, 806 26 Further, the record does not support a finding that Officer 27 Montreuil’s use of force advanced a legitimate correctional goal 28 in any case. As discussed above, Defendants have not shown that 42 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 43 of 50 1 level of force that Officer Montreuil used against Inmate 2, 2 which was enough to render him unconscious, was appropriate even 3 if Inmate 2 had, in fact, been walking toward Officer Montreuil 4 and had tried to throw bodily fluids at the officer. United States District Court Northern District of California 5 With respect to Inmate 1, Defendants argue that she has no 6 actionable retaliation claim because the acts about which she 7 complains amount to “bad mouthing” and verbal threats that do not 8 violate her First Amendment rights. 9 No. 2981-3. Defs.’ Resp. at 9-10, Docket As discussed above, however, the relevant standard 10 for proving retaliation here is the one under the ADA, not the 11 First Amendment. 12 13 Accordingly, the first factor under the Winter framework weighs in favor of issuing a preliminary injunction. 14 B. Irreparable Harm 15 The Court finds that Plaintiffs have made a strong showing 16 that the Witnesses are likely to suffer irreparable harm absent a 17 preliminary injunction. 18 Findings of Fact, it is undisputed that staff misconduct at RJD 19 continues to occur notwithstanding the Court’s orders and the 20 steps that Defendants have taken. 21 Witnesses likely have suffered acts of retaliation despite the 22 efforts that the Court and the parties have taken to protect 23 class members from retaliation. 24 in the record that there is any effective mechanism in place to 25 guarantee that retaliatory conduct against the Witnesses will 26 stop, the Court has found that the Witnesses are likely to suffer 27 irreparable harm in the form of serious physical or psychological 28 injury, and further retaliation in violation of their rights As discussed in more detail in the The Court has found that the In the absence of any indication 43 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 44 of 50 1 under the ADA, absent a preliminary injunction. 2 Bookstore, Inc. v. Superior Court of State of Cal., 739 F.2d 466, 3 472 (9th Cir. 1984) (holding that finding of potential injury 4 that was “not based on any factual allegations” was insufficient 5 because “[s]peculative injury does not constitute irreparable 6 injury”). United States District Court Northern District of California 7 Cf. Goldie’s Defendants argue that the Witnesses have not shown that they 8 are likely to suffer irreparable harm because their declarations 9 are not credible. Defendants note that Inmate 1 changed her 10 story about having safety concerns as shown in the July 7 video 11 interview, and that Inmate 2 changed his story about Officer 12 Rucker’s physical involvement in Inmate 4’s death. 13 reasons discussed above, the Court has found that these attacks 14 on the Witnesses’ credibility are ineffective. 15 16 For the Accordingly, this factor weighs strongly in favor of issuing a preliminary injunction.4 17 C. Balance of the Equities 18 Plaintiffs have shown that the balance of the equities 19 weighs heavily in the Witnesses’ favor. As discussed in more 20 detail in the Findings of Fact, the Court has found that the 21 burden, if any, on Defendants and on prison administration of 22 transferring and housing the Witnesses in a suitable facility 23 other than RJD is minimal, and that any such burden is heavily 24 outweighed by the burdens that the Witnesses could face if they 25 26 27 28 4 The strong showing that Plaintiffs have made with respect to the factor of irreparable harm would more than offset any weakness in Plaintiffs’ showing with respect to the likelihood of success on the merits. See Alliance for the Wild Rockies, 632 F.3d at 1131. 44 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 45 of 50 1 continue to be housed at RJD, which include the possibility of 2 serious bodily injury, psychological harm, and ongoing violations 3 of their rights. 4 (9th Cir. 2017) (“Faced with . . . preventable human suffering, 5 [the Ninth Circuit] ha[s] little difficulty concluding that the 6 balance of hardships tips decidedly in plaintiffs’ favor.”) 7 (citation and internal quotation marks omitted). 8 United States District Court Northern District of California 9 See Hernandez v. Sessions, 872 F.3d 976, 996 Accordingly, this factor weighs in favor of issuing a preliminary injunction. 10 D. 11 Plaintiffs have shown that issuing a preliminary injunction 12 13 Public Interest is in the public interest. As discussed in the Findings of Fact, the Court has found 14 that a preliminary injunction would preserve the integrity of 15 these proceedings by protecting the Witnesses from retaliation 16 for assisting Plaintiffs’ counsel with the enforcement motions. 17 This is in the public interest and is consistent with Defendants’ 18 legal obligations. 19 requirement of custodial security and of staff, inmate and public 20 safety must take precedence over all other consideration in the 21 operation of all the programs and activities of the institutions 22 of the department.”); 15 Cal. Code Regs. § 3271 (“Every employee, 23 regardless of his or her assignment, is responsible for the safe 24 custody of the inmates confined in the institutions of the 25 department.”). See, e.g., 15 Cal. Code Regs. § 3270 (“The 26 The Court also has found that a preliminary injunction would 27 protect the Witnesses’ rights under the ADA, which also is in the 28 45 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 46 of 50 1 public interest. See Enyart v. Nat’l Conference of Bar 2 Examiners, Inc., 630 F.3d 1153, 1167 (9th Cir. 2011). The Court also has found that Defendants have not shown that 3 4 the preliminary injunction at issue would improperly interfere 5 with prison administration. Accordingly, this factor also weighs in favor of issuing a 6 7 8 preliminary injunction. II. The Preliminary Injunction Is Consistent with the Prison Litigation Reform Act United States District Court Northern District of California 9 10 The Prison Litigation Reform Act (PLRA) provides that courts 11 “shall not grant or approve any prospective relief [with respect 12 to prison conditions] unless the court finds that such relief is 13 narrowly drawn, extends no further than necessary to correct the 14 violation of the Federal right, and is the least intrusive means 15 necessary to correct the violation of the Federal right.” 16 U.S.C. § 3626(a)(1)(A). 17 appropriate in light of the PLRA depends on whether the court 18 finds, in light of the “order as a whole,” “that the set of 19 reforms being ordered—the ‘relief’—corrects the violations of 20 prisoners’ rights with the minimal impact possible on defendants’ 21 discretion over their policies and procedures.” 22 Schwarzenegger, 622 F.3d at 1071. 23 18 Whether prospective relief is Armstrong v. The Court concludes that a preliminary injunction that 24 continues in effect the transfer to and housing of the Witnesses 25 at a suitable facility that is not RJD meets the requirements of 26 the PLRA. 27 because it requires action only with respect to the two inmates 28 The preliminary injunction is narrowly tailored who have shown a likelihood of success on their claims of 46 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 47 of 50 1 retaliation, and because the transfer of the Witnesses is the 2 least that can be done to keep the Witnesses safe from further 3 incidents that could cause them serious bodily or psychological 4 injury and violations of their rights under the ADA. 5 (holding that the scope of permissible injunctive relief “is 6 7 8 United States District Court Northern District of California 9 Id. at 1072 dictated by the extent of the violation established”) (citation and internal quotation marks omitted). The preliminary injunction is not overly intrusive because it does not micromanage the process of transferring the Witnesses out of RJD. That the Court has required that the new placements 10 for the Witnesses meet certain criteria in light of the 11 Witnesses’ disabilities, medical conditions, security level, and 12 vulnerability to acts of retaliation in violation of the ADA does 13 not change this conclusion. 14 15 16 See Armstrong v. Brown, 768 F.3d at 986 (holding that “[a] court may, as the district court did here, provide specific instructions to the State without running afoul of the PLRA”). Such criteria are necessary to ensure that the 17 Witnesses are not deprived of their rights at the new location. 18 As the Ninth Circuit has held, “the defendants have the 19 responsibility of ensuring that their prisoners are afforded 20 their rights under the ADA, regardless of where the State 21 incarcerates them[.]” 22 at 1072. See Armstrong v. Schwarzenegger, 622 F.3d 23 Critically, Defendants have not advanced any viable 24 alternative means to protect the Witnesses’ rights that are 25 narrower or less intrusive. 26 at RJD is not a viable alternative to the preliminary injunction 27 at issue because the record shows that prior orders by the Court 28 and prior actions by Defendants to protect class members at RJD Ordering that the Witnesses remain 47 Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 48 of 50 1 from retaliation have been ineffective. 2 768 at 986 (noting that, where the “the district court has 3 attempted narrower, less intrusive alternatives—and those 4 alternatives have failed,” the court has discretion to order 5 relief that might have raised concerns about breadth and 6 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 intrusiveness under the PLRA in the first instance) (citation and internal quotation marks omitted). Further, the Court has considered Defendants’ arguments regarding the potential burdens that the preliminary injunction would impose on them, and it has found that the potential burdens, if any, would be minimal. 27 28 Even if complying with the preliminary injunction were burdensome for Defendants, however, “[a] demonstration that an order is burdensome does nothing to prove that it was overly intrusive,” which is the relevant consideration under the PLRA. Armstrong v. Schwarzenegger, 622 F.3d at 1071 (“With Congress having made the decision to recognize the rights of disabled persons, the question is not whether the relief the court ordered to vindicate those rights is expensive, or difficult to achieve, but whether the same vindication of federal rights could have been achieved with less involvement by the court in directing the details of defendants’ operations.”). Accordingly, the Court finds that the issuance of the preliminary injunction at issue is appropriate. CONCLUSION 25 26 See Armstrong v. Brown, The Court GRANTS IN PART Plaintiffs’ motion for a preliminary injunction. a separate order. The preliminary injunction will issue as The Witnesses have been transferred out of RJD 48 United States District Court Northern District of California Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 49 of 50 1 pursuant to the Court’s temporary restraining order. 2 shall remain housed at the MHCB at CMC on a temporary basis 3 pending placement at CHCF once it is open for transfers, and 4 Inmate 1 shall remain housed at an Enhanced Outpatient Program 5 housing unit on Facility D at Mule Creek State Prison, subject to 6 the exceptions set forth in the preliminary injunction. 7 the Witnesses are housed at these facilities, Defendants shall 8 have the ADA coordinator meet with each Witness on a regular 9 basis to discuss whether the Witness has any safety concerns or 10 has faced retaliation, and Defendants shall arrange for regular 11 confidential telephone calls between each Witness and Plaintiffs’ 12 counsel. 13 14 15 Inmate 2 While No security shall be required because the Witnesses are incarcerated and presumably indigent. The preliminary injunction shall remain in effect for ninety 16 days of the date of this order. See 18 U.S.C. § 3626(a)(2). 17 Court will make the injunction final before the expiration of the 18 ninety-day period based on the findings set forth herein, unless 19 Defendants make a further factual showing that they were unable 20 to make in opposition to the issuance of a preliminary injunction 21 in light of the expedited schedule for that proceeding. 22 than September 21, 2020, Defendants may submit a brief of not 23 more than ten pages and supporting evidentiary materials showing 24 that a final injunction should not issue. 25 response of equal length no later than October 5, 2020. 26 Court defers ruling on Plaintiffs’ request to strike Inmate 2’s 27 RVRs from the incident on June 17, 2020, pending the results of 28 the internal RVR hearings. No later Plaintiffs may file a The Defendants shall report on the 49 The Case 4:94-cv-02307-CW Document 3025 Filed 07/30/20 Page 50 of 50 1 results of these hearings in their next brief and Plaintiffs may 2 respond. 3 4 IT IS SO ORDERED. Dated: July 30, 2020 CLAUDIA WILKEN United States District Judge 5 6 7 8 United States District Court Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50

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