Armstrong, et al v. Brown, et al, No. 4:1994cv02307 - Document 2194 (N.D. Cal. 2012)

Court Description: OPINION IN SUPPORT OF ORDER DISTRIBUTING AND ENFORCING THE AMENDED COUNTY JAIL ORDER AND PLAN re 2161 . Signed by Judge Claudia Wilken on 8/28/2012. (Attachments: # 1 Appendix)(ndr, COURT STAFF) (Filed on 8/28/2012) Modified on 8/28/2012 (ndr, COURT STAFF).

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 JOHN ARMSTRONG, et al., on behalf of themselves and as representatives of the class, 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 Plaintiffs, v. EDMUND G. BROWN, JR., Governor of the State of California; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; MICHAEL MINOR, Acting Director of the Division of Juvenile Justice; MATTHEW CATE, Secretary of the California Department of Corrections and Rehabilitation; JENNIFER SHAFFER, the Executive Officer of the Board of Parole Hearings; DIANA TOCHE, Acting Director of the Division of Correctional Health Care Services; CHRIS MEYER, Director of the Division of Facility Planning, Construction and Management; KATHLEEN DICKINSON, Acting Director of Adult Institutions; and ROBERT AMBROSELLI, Acting Director of Division of Adult Parole Operations, No. C 94-2307 CW OPINION IN SUPPORT OF ORDER DISTRIBUTING AND ENFORCING THE AMENDED COUNTY JAIL ORDER AND PLAN (Docket No. 2161) Defendants. ________________________________/ 22 Plaintiffs move to enforce the Court s April 11, 2012 Amended 23 Order Granting Plaintiffs Renewed Motion to Require Defendants to 24 Track and Accommodate the Needs of Armstrong Class Members Housed 25 in County Jails, Ensure Access to a Grievance Procedure and to 26 Enforce 2001 Permanent Injunction (the Amended Order). 27 oppose the motion. 28 Court find the Amended Order unenforceable based on a recent Defendants In their opposition, Defendants ask that the 1 amendment to California Penal Code section 3056 or stay the 2 Amended Order pending resolution of their appeal of it. 3 reasons set forth below, the Court GRANTS Plaintiffs motion and 4 declines to stay the Amended Order or find it unenforceable. For the 5 BACKGROUND 6 As explained in detail in the Court s prior orders, this 7 lawsuit was originally filed seventeen years ago by disabled 8 prisoners and parolees against the California officials with 9 responsibility over the corrections and parole systems. United States District Court For the Northern District of California 10 11 The Court sets forth here only the background necessary to this motion. On May 28, 2009, Plaintiffs filed a Motion to Require 12 Defendants to Track and Accommodate Needs of Armstrong Class 13 Members Housed in County Jails and Ensure Access to a Workable 14 Grievance Procedure. 15 On September 16, 2009, this Court held that Defendants are 16 responsible for ensuring that Armstrong class members receive 17 reasonable accommodations when Defendants elect to house them in 18 county jails. 19 Defendants to Track and Accommodate Needs of Armstrong Class 20 Members Housed in County Jails and Ensure Access to a Workable 21 Grievance Procedure, September 16, 2009, Docket No. 1587, at 7-9. 22 The Court stated that Plaintiffs had submitted evidence 23 demonstrating that, pursuant to their authority, Defendants were 24 housing a significant number of persons in county jails, including 25 an average of 480 parolees a day in the San Mateo County Jail, an 26 average of 1,000 parolees a day in the Sacramento County Jail, and 27 770 individuals in In-Custody Drug Treatment Program (ICDTP) 28 placements in county jails. Order Granting Plaintiffs Motion to Require Id. at 4-5. 2 Although the Court did not rely on the substantial amount of hearsay evidence submitted 2 by Plaintiffs, the Court held that Plaintiffs nonetheless had 3 submitted sufficient evidence that class members being housed in 4 county jails were not receiving accommodations to which they were 5 entitled. 6 requiring that Defendants, within thirty days, submit a plan for 7 ensuring timely and appropriate accommodations for Armstrong class 8 members in county jails[.] 9 provided Defendants with flexibility to devise the specifics of 10 United States District Court For the Northern District of California 1 the plan, but required that the plan contain certain elements. 11 Id. at 11-14. 12 the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), that 13 the relief it ordered was narrowly drawn, extend[ed] no further 14 than necessary to correct the violation of federal rights, and 15 [was] the least intrusive means necessary to correct the violation 16 of the federal rights[.] 17 Id. at 9-10. Accordingly, the Court entered an order Id. at 11. The September 16 Order The Court also found, pursuant to requirements of Id. at 11. Defendants appealed this Court s September 16 Order. 18 Nonetheless, on October 15, 2009, as required by the September 16 19 Order, Defendants provided written notification to all county 20 jail facilities of the counties duty to comply with the Americans 21 with Disabilities Act (ADA) in housing inmates with disabilities 22 and that CDCR will enforce this duty. 23 Docket No. 1915, Ex. B. 24 Grunfeld Decl. ¶ 5, On April 1, 2010, after negotiations between the parties, 25 Defendants issued their first county jail plan, entitled the 26 County Jail Accommodation Process, in a further effort to comply 27 with the September 16 Order. 28 3 1 On September 7, 2010, the Ninth Circuit affirmed in part and 2 vacated in part the September 16 Order, and remanded the case to 3 this Court for further proceedings. 4 this Court s holdings that defendants are responsible for 5 providing reasonable accommodations to the disabled prisoners and 6 parolees that they house in county jails. 7 Schwarzenegger, 622 F.3d 1058, 1063 (9th Cir. 2010). 8 Circuit held that: (1) the validly enacted ADA Title II 9 regulations provide that a public entity, in providing any aid, The Ninth Circuit affirmed Armstrong v. The Ninth United States District Court For the Northern District of California 10 benefit, or service, may not, directly or through contractual, 11 licensing, or other arrangements, discriminate against individuals 12 with disabilities, id. at 1065 (quoting 28 C.F.R. 13 § 35.130(b)(1)); (2) the ADA requires that when Defendants house 14 state prisoners and parolees in county jails, the state is 15 responsible to ensure that the state prisoners and parolees with 16 disabilities can access the county jails benefits and services 17 to the same extent that they are provided to all other detainees 18 and prisoners, id. at 1068; and (3) neither principles of 19 federalism nor deference to correctional authorities nor the 20 Prison Litigation Reform Act prohibited this Court s order 21 requiring that when Defendants become aware of a class member 22 housed in a county jail who is not being accommodated, they either 23 see to it that that jail accommodates the class member, or they 24 move the class member to a facility . . . which can accommodate 25 his needs, id. at 1069, or that when Defendants become aware of 26 a pattern of ADA noncompliance, they are to notify county jail 27 officials and take steps to remedy the pattern of 28 noncompliance[.] Id. at 1069-1070. 4 1 Although the Ninth Circuit affirmed this Court s rulings on 2 the requirements of the ADA, it determined that, although it was a 3 close question, Plaintiffs had not presented sufficient evidence 4 to justify the system-wide scope of relief ordered. 5 1073-1074. 6 additional evidence as may be necessary concerning the nature and 7 extent of the violations of class members rights taking place in 8 the county jails, and noted that not much more evidence than 9 that already provided may be required to approve the current United States District Court For the Northern District of California 10 11 order. Id. at The court remanded to allow the development of Id. at 1073-1074. On August 8, 2011, Plaintiffs filed a renewed Motion to 12 Require Defendants to Track and Accommodate Needs of Armstrong 13 Class Members Housed in County Jails and Ensure Access to a 14 Workable Grievance Procedure. 15 Plaintiffs submitted additional evidence of violations in county 16 jails and asked the Court to issue an injunction nearly identical 17 to that in the September 16, 2009 Order. 18 Docket No. 1912. With that motion, On October 1, 2011, state legislation commonly known as the 19 prison realignment law went into effect. 20 realignment has transferred responsibility for post-release 21 supervision of former state inmates from Defendants to the 22 counties. 23 state parole prior to October 1, 2011 remain under the parole 24 supervision of Defendants. 25 Further, persons paroled from state prison on or after October 1, 26 2011, who fall into certain categories, including having been 27 convicted of certain serious or violent felonies, continue to be 28 placed on state parole under the jurisdiction and supervision of In some cases, Under realignment, parolees who were already placed on Cal. Penal Code § 3000.09(b). 5 1 Defendants. 2 lower-level offenders who are released from state prison on or 3 after October 1, 2011 and do not fall into the above-mentioned 4 categories are instead supervised on release by counties under the 5 newly created Post-Release Community Supervision (PRCS) program. 6 Cal. Penal Code §§ 3000.08(a), 3451. 7 Cal. Penal Code § 3000.08(a), (c). However, In addition to changing in some cases whether counties or Defendants were responsible for supervision of individuals after 9 release from state prison, realignment also mandated that state 10 United States District Court For the Northern District of California 8 parolees with pending revocation charges or serving revocation 11 terms could not be returned to state prison, with certain 12 exceptions. 13 read as follows, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Specifically, Penal Code section 3056 was amended to Prisoners on parole shall remain under the supervision of the department but shall not be returned to prison except as provided in subdivision (b) [which allows the return to prison of certain individuals serving life parole terms] or as provided by subdivision (c) of Section 3000.09 [which allows the return to prison of parolees who were pending final adjudication of a parole revocation charge prior to October 1, 2011]. Except as provided by subdivision (c) of Section 3000.09, upon revocation of parole, a parolee may be housed in a county jail for a maximum of 180 days. When housed in county facilities, parolees shall be under the legal custody and jurisdiction of local county facilities. When released from custody, parolees shall be returned to the parole supervision of the department for the duration of parole. Cal. Penal Code § 3056(a). Thus, although individuals who were serving life parole terms or those already facing a revocation charge before October 1, 2011 could be returned to state prison for parole violations, other state parolees no longer could be and instead were required by state law to serve such terms in county jails. Realignment did not alter Defendants ability to house 6 1 state prison inmates temporarily in county jails during the 2 pendency of state court proceedings, which they refer to as 3 sending inmates out-to-court. 4 In opposition to Plaintiffs renewed motion, Defendants 5 argued primarily that, under the realignment statute, state 6 parolees were no longer members of the Armstrong class when they 7 were housed in county jails. 8 related to federalism and abstention. 9 their prior claims that Plaintiffs could not prove that disabled United States District Court For the Northern District of California 10 11 Defendants also made arguments Defendants did not pursue parolees were not being accommodated in county jails. On January 13, 2012, the Court granted Plaintiffs renewed 12 motion, Docket No. 1974, and issued an Amended Order granting the 13 motion on April 11, 2012, Docket No. 2034. 14 Court also denied Defendants motion to stay. 15 In so ruling, the Court rejected Defendants argument that section 16 3056, as then phrased, relieved them of responsibility toward 17 parolees housed in county jails, and held that state parolees are 18 jointly in the custody and control of Defendants and the relevant 19 county during that time. 20 read the words sole or exclusive into the text of California 21 Penal Code section 3056 before the words legal custody and 22 jurisdiction of local county facilities. 23 rejecting Defendants argument that the language of section 3056 24 stating that parolees would be returned to the parole supervision 25 of the department after being released from a county jail meant 26 that parolees had left Defendants custody and jurisdiction when 27 they entered the county jail, the Court stated in part, On April 11, 2012, the Docket No. 2035. The Court explained that it declines to 28 7 Id. at 2. In 1 2 3 4 5 6 7 8 9 Contrary to Defendants characterization, the word supervision does not have the same meaning as jurisdiction. The clear meaning of the statutory text stating that parolees shall be returned to the parole supervision of the state is simply that parolees are not terminated from parole when they violate the terms of their supervision and serve a revocation term in county jail, but instead must continue on parole supervision afterwards. Id. at 2. Further, the Court noted, Defendants point to no part of state law that restricts their discretion in determining in which county jail they may house that parolee. State law does not appear to require Defendants to choose to house parolees with disabilities in county jails that do not provide adequate accommodations to them. United States District Court For the Northern District of California 10 Id. at 3. 11 challenge the portion of the Court s order that addressed state 12 parolees and prisoners that are held in county jails for reasons 13 other than section 3056, that they do not dispute that there are 14 currently class members still housed in county jails or that 15 Defendants system-wide policies and practices have caused, and 16 continue to cause, substantial injury to class members, and that, 17 even if Defendants were to prevail on appeal, they will 18 nevertheless be required to formulate a plan to carry out the 19 prescribed injunctive relief for the remaining individuals for 20 whom they are indisputably responsible. 21 The Court also pointed out that Defendants do not Id. at 5. The Amended Order required, among other things, that 22 Defendants develop a revised plan for ensuring timely and 23 appropriate accommodations for Armstrong class members in county 24 jails within thirty days and disseminate it in final form to the 25 counties and Defendants personnel within forty-five days. 26 No. 2034, 37, 41. 27 shall retain jurisdiction to enforce the terms of this 28 Injunction. Docket The Amended Order further provided, The Court Id. at 43. 8 1 2 On April 30, 2012, Defendants filed a notice of appeal from the Court s April 11, 2012 Orders. 3 Docket No. 2039. On May 2, 2012, Defendants filed in the Ninth Circuit an 4 urgent motion to stay the April 11 Amended Order pending appeal. 5 Docket No. 3-1, CA9 Case No. 12-16018. 6 before that court, Defendants stated that they do not request a 7 stay of the injunction for state prison inmates temporarily housed 8 in county jails (i.e. out-to-court inmates) or parolees 9 sentenced to life terms, because CDCR has the legal authority to United States District Court For the Northern District of California 10 In the motion to stay return these individuals to a state prison. 11 Id. at 2. On May 23, 2012, the Ninth Circuit denied Defendants motion 12 to stay and sua sponte expedited the appeal, although it did not 13 change the briefing schedule previously set. 14 Case No. 12-16018. 15 Docket No. 6, CA9 No hearing date had been set at that time. The parties engaged in a number of meet and confer sessions, 16 many of which were mediated by the Court s expert, to develop a 17 revised county jail plan to comply with the Court s orders. 18 Grunfeld Decl. ¶¶ 2-34. 19 in substance on a revised plan that was ready to be distributed to 20 Defendants employees and the counties. 21 I. 22 By June 26, 2012, the parties had agreed Id. at ¶¶ 11-13, Exs. H, Under the agreed revised plan, among other things, CDCR would 23 send daily electronic notifications to the counties regarding any 24 newly booked parolees who are Armstrong class members, providing 25 information about their disability status and the accommodations 26 previously provided. 27 Agents employed by Defendants, who already meet with parolees as 28 part of a notice of rights process, would ask class members to Id. at ¶¶ 11-12, Ex. H, 2. 9 Parole/Notice 1 self-identify any disability needs related to housing and 2 programming, would provide class members with a Reasonable 3 Modification or Accommodation Request CDCR form 1824 and a self- 4 addressed, postage-paid envelope, and inform class members that 5 they could use the form to file a grievance if they are not 6 receiving a housing or programming accommodation in the county 7 jail. 8 the form 1824 if those inmates were unable to do so on their own 9 due to a disability. Id. at 3. They would assist class members in completing Id. Parole/Notice Agents would also inform United States District Court For the Northern District of California 10 class members of and encourage them to use the county jail s 11 grievance process as well if they needed disability 12 accommodations. 13 four business days after a disabled inmate s arrival at the county 14 jail, of his or her need for an accommodation or a medical or 15 mental health examination and document this communication. 16 4. 17 inmates. 18 they would enter it into a tracking system and respond to it 19 within a certain timeframe, depending on whether or not the issue 20 was deemed to be an emergency. 21 the involved county of the grievance as soon as possible and no 22 later than three business days after receipt. 23 would also review all grievances to identify patterns of denials 24 of disability accommodations, would notify the involved county s 25 legal counsel within five days of discovery of such a pattern, 26 would investigate the situation to the extent possible, and would 27 determine what steps, if any, could be taken to remedy the 28 situation. Id. They would tell county jail staff, within Id. at A similar process would be implemented for out-to-court Id. at 4-5. When Defendants received a CDCR form 1824, Id. at 4. Id. at 7. 10 Defendants would notify Id. Defendants 1 By late June 2012, Defendants had also developed a schedule 2 to begin implementing the plan by September 1, 2012. 3 Decl. ¶¶ 19-20, Ex. O. 4 the final plan to the counties. 5 emailed a draft of a proposed joint letter, to be signed by both 6 sides, that would accompany the revised plan when it was 7 disseminated to the counties. 8 asked for a conference call with the Court s expert and Defendants 9 to discuss the letter. Grunfeld The parties discussed how to disseminate Id. On June 28, 2012, Plaintiffs Id. at ¶ 26, Ex. O. Plaintiffs Plaintiffs wrote follow up emails to United States District Court For the Northern District of California 10 Defendants on July 2 and 4, 2012 but received no response. 11 ¶ 27, Ex. R. 12 Id. at Meanwhile, on June 27, 2012, the Defendant Governor approved 13 Senate Bill 1023, which further amended Penal Code section 3056 to 14 read as follows, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Prisoners on parole shall remain under the supervision of the department but shall not be returned to prison except as provided in subdivision (b) or as provided by subdivision (c) of Section 3000.09. A parolee awaiting a parole revocation hearing may be housed in a county jail while awaiting revocation proceedings. If a parolee is housed in a county jail, he or she shall be housed in the county in which he or she was arrested or the county in which a petition to revoke parole has been filed or, if there is no county jail in that county, in the housing facility with which that county has contracted to house jail inmates. Additionally, except as provided by subdivision (c) of Section 3000.09, upon revocation of parole, a parolee may be housed in a county jail for a maximum of 180 days per revocation. When housed in county facilities, parolees shall be under the sole legal custody and jurisdiction of local county facilities. A parolee shall remain under the sole legal custody and jurisdiction of the local county or local correctional administrator, even if placed in an alternative custody program in lieu of incarceration, including, but not limited to, work furlough and electronic home detention. When a parolee is under the legal custody and jurisdiction of a county facility awaiting parole revocation proceedings or upon revocation, he or she shall not be under the parole supervision or jurisdiction of the department. When 11 3 released from the county facility or county alternative custody program following a period of custody for revocation of parole or because no violation of parole is found, the parolee shall be returned to the parole supervision of the department for the duration of parole. 4 Cal. Penal Code § 3056(a) (substantive additions to prior version 5 underlined). 1 2 6 On July 6, 2012, Defendants filed a motion before the Ninth 7 Circuit seeking reconsideration of its denial of their motion to 8 stay and arguing that the June 27, 2012 amendment to Penal Code 9 section 3056 had unequivocally established that parolees in United States District Court For the Northern District of California 10 county jails are no longer Armstrong class members. 11 CA9 Case No. 12-16018. Docket No. 7, 12 On July 9, 2012, Defendants sent Plaintiffs and the Court s 13 expert a letter stating that they have no discretion to ignore 14 amended section 3056 or to monitor county jail inmates over whom 15 they have no custody, control, or jurisdiction, and that they 16 believe that the courts would not want the parties to undertake a 17 plan regarding county jail inmates before the Ninth Circuit has 18 the opportunity to review the new law. 19 V. 20 plan concerning out-to-court state prison inmates and the 21 life-term parolees who can be returned to state prison. 22 Grunfeld Decl. ¶ 30, Ex. Defendants also stated that they would shortly complete a new Id. On July 10, 2012, the parties conducted their regularly 23 scheduled meet and confer session. 24 meeting, Defendants stated that they would not be issuing the 25 revised county jail plan to the counties or to CDCR staff in light 26 of revised Penal Code section 3056. 27 28 Grunfeld Decl. ¶ 31. At that Id. On July 12, 2012, Defendants sent an email to all fifty-eight California counties, attaching the revised plan, labeled on each 12 1 page with the word draft, and summarizing the status of the 2 appeal. 3 stated in part, 4 Grunfeld Decl. ¶ 32, Ex. X. While I send you the draft plan, it will not be implemented at this time until we hear whether the renewed request for a stay is granted. If it is granted, we will send out a revised plan which addresses only the population over whom CDCR has continuing authority. CDCR is currently working to develop such a plan. 5 6 7 8 Id. 9 were denied, as soon happened. 10 United States District Court For the Northern District of California In the email, Defendants Defendants did not explain what they would do if the stay On July 16, 2012, Plaintiffs filed the instant motion, asking 11 this Court to issue an order enforcing the April 11, 2012 Amended 12 Order by requiring Defendants to disseminate to the counties and 13 Defendants employees the agreed revised plan without a draft 14 label, to train their employees in accordance therewith, to 15 implement the plan by September 15, 2012 according to the parties 16 agreed schedule with minor modifications, and to hire and train 17 sufficient staff to do so. Docket No. 2161. 18 On July 19, 2012, the Ninth Circuit denied Defendants motion 19 for reconsideration of the denial of their motion to stay, without 20 prejudice to Defendants raising in their merits briefs any issue 21 raised in the motion for reconsideration. 22 No. 12-16018. 23 schedule and set a hearing for September 5, 2012. 24 Docket No. 8, CA9 Case The Ninth Circuit also shortened the briefing On July 30, 2012, Defendants responded in this Court to 25 Plaintiffs motion to enforce. 26 opposition, Defendants did not argue that they were in compliance 27 with the Amended Order or indicate that they intended to comply 28 with it. Docket No. 2170. In their Instead, as noted above, they asked the Court to find 13 1 that the change in section 3056 had rendered the Amended Order 2 unenforceable. 3 Amended Order. 4 5 6 7 8 9 They alternatively asked that the Court stay the On August 22, 2012, the parties filed a joint case status statement. In the joint statement, Defendants indicated in part, Defendants plan to conduct employee training in August 2012, and Plaintiffs counsel have agreed to attend an August 30, 2012 training session. Defendants also plan to implement an e-mail notification system to the counties by September 1, 2012 of disability related information pertaining to purported class members as of the date they were released from prison. United States District Court For the Northern District of California 10 Docket No. 2181, 21. 11 to comply in part with the Court s Amended Order. 12 This indicated that Defendants were prepared On August 23, 2012, the Court held a hearing on the instant 13 motion. 14 comply in part with the Amended Order and to carry out the agreed 15 revised plan in part. 16 2012, they would begin providing email notices to county jails 17 setting forth the disability status and previously provided 18 accommodations for all of the individuals covered in the Amended 19 Order, including parolees subject to section 3056, with copies to 20 Plaintiffs counsel. 21 date, they would implement the remaining provisions of the plan, 22 but as to the out-to-court prisoners and life parolees only. 23 Thus, they would give only the out-to-court prisoners and life 24 parolees a grievance form and means to return it and they would 25 act upon such forms that they received. 26 that they would go forward with training their Notice Agents 27 regarding all of the provisions of the revised plan, using 28 training material agreed upon with Plaintiffs on June 13, 2012. At the hearing, Defendants affirmed that they intended to Defendants stated that, as of September 1, They further represented that, as of that 14 Defendants also stated 1 Defendants clarified that this training would cover all provisions 2 that pertained to the parolees subject to section 3056 and would 3 not be limited to out-to-court prisoners and life parolees. 4 5 DISCUSSION Defendants must obey the Amended Order unless and until this 6 or another court has relieved them of that responsibility, through 7 a stay, reversal or modification of the order. 8 doctrine is that persons subject to an injunctive order issued 9 by a court with jurisdiction are expected to obey that decree The established United States District Court For the Northern District of California 10 until it is modified or reversed, even if they have proper grounds 11 to object to the order. 12 United States, 445 U.S. 375, 386 (1980); see also Wedbush, Noble, 13 Cooke, Inc. v. SEC, 714 F.2d 923, 924 (9th Cir. 1983) ( the mere 14 pendency of the appeal does not, in itself, disturb the finality 15 of the judgment ). 16 Gte Sylvania v. Consumers Union of This Court does not have jurisdiction to decide whether the 17 amendment to section 3056 has rendered the Amended Order 18 unenforceable. 19 court is divested of jurisdiction over the matters being 20 appealed. 21 242 F.3d 1163, 1166 (9th Cir. 2001) (citing Griggs v. Provident 22 Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam); 23 McClatchy Newspapers v. Central Valley Typographical Union No. 46, 24 686 F.2d 731, 734 (9th Cir. 1982)). 25 to promote judicial economy and avoid the confusion that would 26 ensue from having the same issues before two courts 27 simultaneously. 28 718 F.2d 955, 956 (9th Cir. 1983); Moore s Federal Practice, Once a notice of appeal is filed, the district Natural Res. Def. Council v. Southwest Marine, Inc., The purpose of this rule is Id. (citing Masalosalo v. Stonewall Ins. Co., 15 1 § 303.32[1] (3d ed. 2000)). 2 prudence, however, and is not absolute. 3 956. 4 This rule is a creature of judicial Masalosalo, 718 F.2d at This Court does retain jurisdiction during the pendency of 5 an appeal to act to preserve the status quo. 6 Council, 242 F.3d at 1166. 7 Co., 258 U.S. 165, 177 (1922) ( Undoubtedly, after appeal the 8 trial court may, if the purposes of justice require, preserve the 9 status quo until decision by the appellate court ). Natural Res. Def. See also Newton v. Consolidated Gas This United States District Court For the Northern District of California 10 exception has been codified in Rule 62(c) of the Federal Rules of 11 Civil Procedure, which allows a district court to suspend, 12 modify, restore, or grant an injunction during the pendency of the 13 appeal upon such terms as to bond or otherwise as it considers 14 proper for the security of the rights of the adverse party. 15 Natural Res. Def. Council, 242 F.3d at 1166 (quoting Federal Rule 16 of Civil Procedure 62(c)). 17 the Rule does not restore jurisdiction to the district court to 18 adjudicate anew the merits of the case and that any action taken 19 pursuant to it may not materially alter the status of the case on 20 appeal. 21 McClatchy, 686 F.2d at 735 (after appeal is filed, the district 22 court may not finally adjudicate substantial rights directly 23 involved in the appeal ) (quotations omitted). The Ninth Circuit has cautioned that Id. (citations and quotation marks omitted). See also 24 Further, although the Court does not have jurisdiction to 25 decide the merits of the issue that is currently on appeal, a 26 district court has continuing jurisdiction in support of its 27 judgment, and until the judgment has been properly stayed or 28 superseded, the district court may enforce it . . . 16 Resolution 1 Trust Corp. v. Smith, 53 F.3d 72, 76 (5th Cir. 1995) (quoting 2 Farmhand, Inc. v. Anel Engineering Industries, Inc., 693 F.2d 3 1140, 1146 (5th Cir. 1982)). 4 Interior, 820 F.2d 1535, 1543 (9th Cir. 1987) ( The district court 5 may issue orders pending appeal to enforce its judgment. ); 6 Hoffman v. Beer Drivers & Salesmen s Local No. 888, 536 F.2d 1268 7 (9th Cir. 1976) ( Where the court supervises a continuing course 8 of conduct and where as new facts develop additional supervisory 9 action by the court is required, an appeal from the supervisory See also Lara v. Secretary of United States District Court For the Northern District of California 10 order does not divest the district court of jurisdiction to 11 continue its supervision, even though in the course of that 12 supervision the court acts upon or modifies the order from which 13 the appeal is taken. ). 14 As Plaintiffs point out, the cases that Defendants cite to 15 urge the Court to reexamine the validity of the Amended Order do 16 not compel a contrary conclusion. 17 general rule that an appellate court must apply the law in 18 effect at the time it renders its decision, including in 19 situations when the relevant law changed after the trial court 20 rendered its judgment. 21 U.S. 268, 281-282 (1969). 22 943, 973 (9th Cir. 2004) ( it is well established . . . that if 23 the law changes while the case is on appeal the appellate court 24 applies the new rule ). 25 court held that, when a higher court issued new controlling 26 authority while a motion was pending but after briefing was 27 completed, when rendering a decision, the court was required to 28 apply the law as it existed at the time of decision, including the Two of the cases address the Thorpe v. Housing Auth. of Durham, 393 See also Lambert v. Blodgett, 393 F.3d In the other two cases, the district 17 1 new appellate authority. 2 Dist. LEXIS 34531, at *12-13 (E.D. Cal.); DeVries v. Cate, 2011 3 U.S. Dist. LEXIS 76409, at *8-9 (E.D. Cal.). 4 stands for the proposition that a trial court may revisit the 5 legal reasoning underlying an order that is currently on appeal in 6 order to apply new law to it. 7 Kwiatkowski v. Dickinson, 2012 U.S. None of these cases Although the Court lacks the jurisdiction to reconsider the 8 Amended Order, the Federal Rules of Appellate Procedure provide a 9 procedure under which a district court could do so. Specifically, United States District Court For the Northern District of California 10 Rule 12.1 provides, If a timely motion is made in the district 11 court for relief that it lacks authority to grant because of an 12 appeal that has been docketed and is pending, the district court 13 may state either that it would grant the motion or that the 14 motion raises a substantial issue, in which case the court of 15 appeals may remand for further proceedings. 16 Appellate Procedure 12.1(a),(b). 17 for an indicative ruling from this Court or seek such relief. 18 Federal Rule of Defendants did not make a motion Finally, however, in considering a request for a stay, the 19 Court can consider the effect of a change in the law when 20 evaluating the likelihood of success on the merits of an appeal. 21 The Court does not find that revised section 3056 renders it 22 likely that Defendants will succeed on appeal. 23 section 3056 did not affect several of the bases for the Amended 24 Order. 25 of their status as state parolees and they do not cease to be 26 state parolees when they are in county jails. 27 Defendants continue to exercise control and authority over the 28 parole revocation process, including investigation and charging The changes in Class members are still placed into county jails by virtue 18 Among other things, 1 parolees with violations, placing parole holds on them, arresting 2 and detaining them, determining how long their revocation term 3 will last and deciding whether they should be sent to a county 4 jail or subjected to an alternative sanction, such as placement in 5 a community-based program. 6 occasion to consider whether the amendments to section 3056 were 7 passed in order to evade the state s responsibility for compliance 8 with the ADA and, if so, whether such amendments would be void due 9 to the Supremacy Clause of the Constitution. The Court notes that it has not had U.S. Const. art. United States District Court For the Northern District of California 10 VI., § 2. 11 may make this decision in the course of the pending appeal. This issue has been briefed in the Ninth Circuit, which 12 Accordingly, the Court will not find its order unenforceable 13 or stay it but will exercise its retained jurisdiction to enforce 14 its injunction, as Plaintiffs request. 15 The Court notes that, in this motion, Plaintiffs do not seek 16 to enforce the Amended Order in full but rather only those 17 provisions contained in the agreed revised plan. 18 do not seek enforcement of many of the provisions of which 19 Defendants complain. 20 enforce the provision that, if Defendants become aware that a 21 class member is not receiving accommodations that he or she 22 requires, they immediately take steps with county jail staff to 23 ensure that such accommodations are promptly provided or transfer 24 the class member to a facility that is able to provide 25 accommodations. 26 also do not seek to enforce the provisions that would require 27 Defendants to permit them to conduct monitoring tours of county 28 jail facilities and interview county jail staff members. Thus, Plaintiffs For example, Plaintiffs do not seek to Amended Order, 40. 19 In this motion, Plaintiffs 1 Accordingly, Defendants arguments regarding these provisions are 2 irrelevant to the present motion. 3 Instead, Plaintiffs seek to require Defendants to carry out 4 the revised plan to which Defendants had previously agreed. 5 Court has found that such measures were narrowly drawn and were 6 the least intrusive means necessary to correct the ongoing 7 violations of federal rights, substantial evidence of which 8 Plaintiffs previously proffered in support of their earlier 9 motion. The The Court further notes that, in conjunction with the United States District Court For the Northern District of California 10 instant motion to enforce, Plaintiffs have submitted additional 11 evidence of ongoing harm to class members in county jails.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendants object to Exhibits F through M, Q, R, T and V to the Freedman declaration on the basis that these declarations and letters were written by state parolees and parolees are not Armstrong class members when they are in county jail. Opp. at 16. The Court has already held that state parolees continue to be class members during the time they are held in county jail for parole revocation proceedings or terms. Accordingly, the Court OVERRULES this objection. Defendants also object to Exhibits E and L through P to the Freedman declaration on the basis that these declarants are county jail inmates who have not established that they are parolees or class members or were not diagnosed with a disability by CDCR and the declarations are therefore not relevant. Opp. at 16. However, even if these specific examples do not involve class members, they support the inference that county jails do not provide reasonable accommodations for prisoners with disabilities who are class members. Order Granting Plaintiffs Motion to Require Defendants to Track and Accommodate Needs of Armstrong Class Members Housed in County Jails and Ensure Access to a Workable Grievance Procedure, Docket No. 1587, at 10 (citing Federal Rule of Evidence 401). Accordingly, the Court OVERRULES these objections. 20 1 Although Defendants may not have had a full opportunity to 2 investigate and respond to these declarations, they are 3 nonetheless prima facie evidence that class members continue to 4 suffer harm as Defendants delay their compliance with the Court s 5 order. 6 To the extent that, in their opposition, Defendants ask that 7 the Court stay the Amended Order pending the Ninth Circuit s 8 resolution of their appeal, the Court continues in its view that a 9 stay is not warranted considering the merits of the appeal and the United States District Court For the Northern District of California 10 balance of hardship. 11 members will continue to suffer substantial harm for each day that 12 their disabilities are not accommodated, and this outweighs the 13 speculative administrative and monetary arguments and evidence 14 that was previously presented by Defendants. 15 In the instant briefing, Defendants have not raised claims of 16 irreparable harm that they would suffer in the absence of relief. 17 As the Court previously determined, class Docket No. 2035, 6. Defendants do not dispute that they have not disseminated a 18 plan as required by the Amended Order and that they do not intend 19 to implement a plan with all of the elements contained therein. 20 Instead, although they will provide counties with initial 21 notifications of the disability accommodation needs of all of the 22 class members, including those whose status they dispute, they 23 24 25 26 27 28 Defendants further object to specific statements within Exhibits F, G, I, J, K, L, N, O and Q, as well as the letters submitted as Exhibits R, T and V, as inadmissible hearsay or without foundation. Because the Court would reach the same determination, that the evidence submitted constitutes prima facie evidence of ongoing harm to class members in county jails, regardless of these particular statements, the Court SUSTAINS Defendants objections. 21 intend to carry out the remainder of their agreed revised plan 2 with respect only to the life parole and out-to-court subsets of 3 the class members covered in the Amended Order. 4 notes that the deadlines contained in the Amended Order for 5 dissemination and implementation of a revised plan have long since 6 passed. 7 enforcement order is necessary to ensure compliance with the terms 8 of the Amended Order and GRANTS Plaintiffs motion to enforce it. 9 The Court further finds that the relief ordered herein is narrowly 10 United States District Court For the Northern District of California 1 drawn, extends no further than necessary to correct the violations 11 of federal rights, and is the least intrusive means necessary to 12 correct the violations of the federal rights found in the Amended 13 Order. Accordingly, the Court concludes that a further 14 15 The Court also CONCLUSION For the reasons set forth above, the Court GRANTS Plaintiffs 16 motion to enforce the Amended Order (Docket No. 2161). 17 ORDERS as follows: 18 1. The Court Within three (3) business days of the issuance of this 19 Order, Defendants shall disseminate the plan to which the parties 20 agreed on June 26, 2012 (the County Jail Plan ), a draft copy of 21 which is attached as Appendix A, to all of Defendants personnel 22 who have responsibility for implementing any provisions of the 23 County Jail Plan. 24 shall not indicate that the County Jail Plan is a draft or 25 non-final. 26 responsibility for tasks described in the County Jail Plan that 27 they will receive training on the elements of the County Jail Plan 28 for which they will be responsible. The County Jail Plan disseminated by Defendants Defendants must also inform their personnel with 22 1 2. Within three (3) business days of the issuance of this 2 Order, Defendants shall disseminate the County Jail Plan, without 3 any indication that it is a draft or non-final, to the Sheriffs, 4 County Jail Administrators and County Counsel of each of the 5 fifty-eight counties. 6 and Enforcing the Amended County Jail Order and Plan, filed today, 7 shall be disseminated along with the County Jail Plan. 8 3. A copy of this Court s Order Distributing Training of all Parole/Notice Agents and interim ADA coordinator(s) or designee(s), using the June 13, 2012 PowerPoint 10 United States District Court For the Northern District of California 9 presentation, shall be completed no later than September 15, 2012. 11 Plaintiffs counsel may attend the training session. 12 4. On or before September 1, 2012, Defendants shall send an 13 email notification to each county s legal counsel or designee 14 identifying each parolee with a disability, including those 15 subject to California Penal Code section 3056, being held in that 16 county s jail facilities on that date. 17 2012, Defendants shall send email notifications once per day to 18 each county s legal counsel or designee identifying each parolee 19 with a disability booked in that county s jail facilities over the 20 past 24 hours. 21 name, CDCR identification number, and last release date from 22 prison. 23 description of each parolee s last-known disabilities and the 24 accommodations in housing or programming the parolee received as 25 of the date he or she was released from prison. 26 5. Beginning on September 1, The notifications must include each parolee s The notification must also include a plain-language On or before September 15, 2012, Defendants shall send 27 an email notification to each county s legal counsel or designee 28 identifying each CDCR out-to-court prisoner with a disability 23 1 being held in that county s facilities on that date. 2 September 15, 2012, Defendants shall send email notifications once 3 per day to each county s legal counsel or designee identifying 4 each CDCR out-to-court prisoner with a disability sent to that 5 county s facilities in the past 24 hours. 6 include each CDCR out-to-court prisoner s name and CDCR 7 identification number. 8 plain-language description of the out-to-court prisoner s 9 last-known disabilities and the accommodations in housing or Beginning on The notification will The notification will also include a United States District Court For the Northern District of California 10 programming the prisoner received as of the date he or she was 11 transferred from a prison. 12 6. Beginning on September 15, 2012, Defendants shall 13 provide CDCR grievance forms and stamped envelopes addressed to 14 CDCR to all parolees and out-to-court prisoners with disabilities 15 housed in county jails. 16 and out-to-court prisoners also to use the county jail s grievance 17 process to request disability accommodations. 18 receive a completed grievance form from a parolee or out-to-court 19 prisoner in county jail, they shall forward the grievance form to 20 the county s legal counsel or designee as soon as possible and no 21 later than three business days after receipt. 22 respond to the grievances within the timeframes set forth in the 23 County Jail Plan. 24 7. CDCR personnel shall encourage parolees Whenever Defendants Defendants shall Beginning no later than September 15, 2012, if CDCR 25 personnel become aware that an out-to-court prisoner or parolee 26 with a disability faces an urgent or emergency situation (for 27 example, if there is an allegation of a condition that is a threat 28 to the individual s health or safety or that would prevent his or 24 1 her participation or effective communication in a parole 2 revocation proceeding), Defendants shall notify the county s 3 designee or legal counsel immediately. 4 8. Defendants must implement all remaining provisions of 5 the County Jail Plan by September 15, 2012. 6 not limited to, the requirements that they must review and respond 7 to grievances they receive from disabled parolees, promptly share 8 grievances with county officials, review grievances to identify 9 patterns of denials of disability accommodations, and investigate United States District Court For the Northern District of California 10 11 This includes, but is any such patterns identified. 9. Defendants shall train sufficient staff and implement 12 all necessary procedures such that all provisions of the County 13 Jail Plan are operational by September 15, 2012. 14 IT IS SO ORDERED. 15 16 17 Dated: 8/28/2012 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 25

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