Armstrong, et al v. Newsom, et al, No. 4:1994cv02307 - Document 3217 (N.D. Cal. 2021)

Court Description: ORDER GRANTING IN PART MOTION TO MODIFY REMEDIAL ORDERS AND INJUNCTIONS 2948 by Judge Claudia Wilken. (cwlc1S, COURT STAFF) (Filed on 3/11/2021)

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Armstrong, et al v. Newsom, et al Doc. 3217 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN ARMSTRONG, et al., Plaintiffs, 8 United States District Court Northern District of California ORDER GRANTING IN PART MOTION TO MODIFY REMEDIAL ORDERS AND INJUNCTIONS v. 9 10 Case No. 94-cv-02307 CW (Re: Dkt. No. 2948) GAVIN C. NEWSOM, et al., 11 Defendants. 12 13 In this class action for violations of disabled prisoners’ 14 rights under the Americans with Disabilities Act (ADA) and § 504 15 of the Rehabilitation Act (RA), which is in the remedial phase, 16 Plaintiffs contend that staff at seven state prisons continue to 17 deprive class members of their rights under the Armstrong 18 Remedial Plan (ARP) and the ADA. 19 seek an order modifying the Court’s prior remedial orders and 20 injunctions to require the implementation of new remedial 21 measures to prevent further violations of the ARP and ADA. 22 Defendants oppose the motion. 23 parties’ submissions, and the argument presented at the hearings 24 held on October 6, 2020, and December 8, 2020,1 the Court GRANTS Docket No. 2948. Plaintiffs Having carefully considered the 25 26 27 28 1 Defendants objected to the Court’s consideration of new matters that were raised and attached to Plaintiffs’ reply on the ground that Defendants did not have an opportunity to respond to them. Objections 1-3, Docket No. 3116. These objections are Dockets.Justia.com 1 IN PART Plaintiffs’ motion to modify the Court’s remedial orders 2 and injunctions. FINDINGS OF FACT 3 4 United States District Court Northern District of California 5 I. Procedural history In 1994, Plaintiffs, a class of all present and future 6 California state prison inmates and parolees with certain 7 disabilities, sued defendants, California state officials with 8 responsibility for the operation of the Department of Corrections 9 and Rehabilitation (the CDCR) and the Board of Parole Hearings 10 (BPH), challenging the State’s treatment of disabled prisoners 11 and parolees. 12 separately from the claims against the BPH; only the former 13 claims are relevant to the present motion. The claims against the CDCR were litigated 14 On July 9, 1996, on the eve of trial, Plaintiffs and CDCR 15 Defendants reached an agreement on a Stipulation and Order for 16 Procedures to Determine Liability and Remedy. 17 The Stipulation and Order provides: 18 19 20 21 22 23 Docket No. 148. It is the intent of this Stipulation to require defendants to operate programs, activities, services and facilities of the California Department of Corrections in accordance with the Americans with Disabilities Act and § 504 of the Rehabilitation Act of 1973, if the Court determines that the ADA and § 504 apply to the California Department of Corrections. Stipulation and Order ¶ 12, Docket No. 148. 24 25 26 27 28 moot, as the Court allowed Defendants additional time and an opportunity to respond. Defendants further objected to certain portions of the declarations of Gay Grunfeld and Michael Freedman, upon which the Court has not relied. The Court overrules these objections as moot. 2 United States District Court Northern District of California 1 On September 20, 1996, this Court held that the ADA and RA 2 do apply to state prisoners, Docket No. 157, and that Defendants’ 3 policies and procedures with regard to disabled prisoners were 4 inadequate and violative of the ADA and the RA, Docket No. 159. 5 See also Armstrong v. Wilson, 942 F. Supp. 1252, 1258 (N.D. Cal. 6 1996), aff’d, 124 F.3d 1019 (9th Cir. 1997). 7 On the same date, the Court entered the parties’ stipulated 8 Remedial Order and Injunction, which required CDCR Defendants to 9 develop plans, policies, and procedures, including disability- 10 grievance procedures, to ensure that their facilities and 11 programs were compliant with the ADA and RA. 12 Injunction at 1-4, Docket No. 158. 13 jurisdiction to enforce the terms of the Remedial Order and 14 Injunction, as well as to issue “any order permitted by law, 15 including contempt, necessary to ensure that defendants comply 16 with the guidelines, policies, procedures, plans and evaluations” 17 required by the Remedial Order and Injunction. Remedial Order and The Court retained Id. at 5. 18 In accordance with the Remedial Order and Injunction, 19 Defendants produced the ARP in 1998, Docket No. 337, amended in 20 January 2001, Docket No. 681. 21 the ADA’s anti-discrimination and access provisions, 42 U.S.C. 22 § 12132, by providing as follows: 23 24 25 26 27 The ARP, Section I, incorporates No qualified inmate or parolee with a disability as defined in Title 42 of the United States Code, Section 12102 shall, because of that disability, be excluded from participation in or denied the benefits of services, programs, or activities of the Department or be subjected to discrimination. 28 3 United States District Court Northern District of California 1 ARP at 1, Docket No. 681. Section II.F. of the ARP requires CDCR 2 to “provide reasonable accommodations or modifications for known 3 physical or mental disabilities of qualified inmates/parolees.” 4 Id. at 7. 5 accommodations that CDCR must provide, such as “staff 6 assistance,” sign language interpreters, alternative methods for 7 restraining inmates who cannot be restrained with traditional 8 restraint equipment in the ordinary prescribed manner, and 9 accessible vehicles for transporting inmates. The remainder of the ARP describes various types of Id. at 22-34. The 10 ARP requires each institution to take steps to ensure that staff 11 are aware, at all times, of which inmates have disabilities that 12 require accommodations. 13 institution to issue an identifying vest to each inmate who has 14 vision or hearing disabilities, which the inmates must wear over 15 their clothing when outside of their cell or bed area. 16 Defendants used the ARP as a model to craft remedial plans that 17 were specifically tailored to each CDCR institution. 18 Individual Remedial Plans, Docket Nos. 782, 783, 784. 19 approved the remedial plans for each institution on February 6, 20 2002. 21 Id. For example, the ARP requires each Id. See The Court Docket No. 781. In November 2006, Plaintiffs filed a motion for a further 22 remedial order, in which they argued that Defendants were in 23 violation of the ARP and the Court’s orders. 24 a result of this motion, the Court issued another injunction in 25 2007 (2007 injunction), which required Defendants, in relevant 26 part, to comply with the ARP, including Section I, and to develop 27 accountability procedures to ensure their compliance with the ARP 28 and the Court’s orders. Docket No. 950. As 2007 Injunction at 7, 9, Docket No. 1045. 4 1 Since then, in response to enforcement motions brought by 2 Plaintiffs, the Court has modified the 2007 injunction several 3 times to clarify Defendants’ accountability obligations. 4 Armstrong v. Schwarzenegger, 622 F.3d 1058, 1073 (9th Cir. 2010); 5 Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014); see also 6 Order Modifying Permanent Injunction of August 2, 2012, Docket No. 7 2180; Order Modifying 2007 Injunction of December 29, 2014, Docket 8 No. 2479. United States District Court Northern District of California 9 See In February and June 2020, respectively, Plaintiffs filed 10 two enforcement motions, in which they argue that Defendants’ 11 employees have engaged and continue to engage in conduct that 12 violates disabled inmates’ rights under the ARP and ADA contrary 13 to this Court’s prior orders and injunctions. 14 2948. 15 inmates, who are vulnerable to abuse and less able than others to 16 defend themselves in light of their disabilities, as well as acts 17 that have served to discourage disabled inmates from requesting 18 reasonable accommodations for their disabilities, either through 19 the formal grievance process or otherwise. 20 Docket Nos. 2922, The acts alleged involve misconduct directed at disabled The first enforcement motion sought a modification of the 21 Court’s prior orders and injunctions to require the 22 implementation of new remedial measures at Richard J. Donovan 23 Correctional Facility (RJD) to end ongoing violations of the ARP 24 and ADA at that prison. 25 the Court granted the RJD enforcement motion in part, Order, 26 Docket No. 3059, and it ordered Defendants to draft a plan for 27 achieving compliance with the ARP and ADA at that prison that Docket No. 2922. 28 5 On September 8, 2020, 1 includes certain remedial measures, Order for Additional Remedial 2 Measures, Docket No. 3060. The second enforcement motion is the one presently before United States District Court Northern District of California 3 4 the Court. It seeks a modification of the Court’s prior orders 5 and injunctions to require the implementation of new remedial 6 measures at seven prisons, namely California State Prison, Los 7 Angeles County (LAC); California Correctional Institution (CCI); 8 Kern Valley State Prison (KVSP); California State Prison, 9 Corcoran (COR); Substance Abuse Treatment Facility (SATF); 10 California Institute for Women (CIW); and Salinas Valley State 11 Prison (SVSP) (collectively, the prisons at issue). 12 13 14 II. Staff at LAC, COR, SATF, CIW, and KVSP violated the ARP, the ADA, and the Court’s prior orders and injunctions2 A. Staff denied qualified inmates with disabilities reasonable accommodations for their disabilities 15 As will be discussed in the Conclusions of Law, below, a 16 violation of the ADA’s anti-discrimination and access provisions, 17 42 U.S.C. § 12132, which are incorporated into Section I of the 18 ARP, occurs where a disabled inmate is discriminated against by a 19 public entity or is otherwise denied the benefits of a public 20 entity’s services, programs, or activities by reason of his or 21 her disability. 22 a reasonable accommodation can occur where a correctional officer 23 could have used less force or no force during the performance of 24 his or her penological duties with respect to a disabled person. 25 A failure to provide a reasonable accommodation, or ARP at 1, Docket No. 681. A failure to provide 26 27 28 2 Plaintiffs have not shown that staff violated the rights under the ARP or ADA of qualified inmates with disabilities at SVSP or CCI. 6 1 discrimination by reason of disability, constitutes a violation 2 of the ADA, as well as the ARP. United States District Court Northern District of California 3 Plaintiffs have submitted declarations3 from current or 4 former inmates at LAC, COR, SATF, CIW, and KVSP.4 5 declarations describe dozens of incidents in which staff at LAC, 6 COR, SATF, CIW, and KVSP denied disabled inmates at these prisons 7 reasonable accommodations for their physical or mental 8 disabilities. 9 against mentally or physically disabled inmates even though the 10 disabled inmates appear to have posed no imminent threat to the 11 safety of staff or other inmates. 12 described below have Defendants submitted evidence to show that 13 the denial of reasonable accommodations, or the use of 14 unnecessary force, which itself can be a denial of a reasonable These Some of the incidents involve the use of force For none of the incidents 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Defendants object to certain portions of these declarations on the grounds that: (1) they contain evidence the probative value of which is substantially outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403; (2) they contain hearsay; or (3) the declarants lack personal knowledge. The Court overrules these objections. The Court declines to exclude any portions of the inmate declarations on the basis of Federal Rule of Evidence 403, because there is no danger of unfair prejudice as the Court, not a jury, is making factual determinations. The Court finds that the rest of Defendants’ objections lack merit. The statements in the inmate declarations at issue are not subject to exclusion because they (1) are not hearsay, as they are not made for the truth of the matter asserted or fall within one of the hearsay exceptions under Federal Rule of Evidence 803; and (2) are based on the declarants’ personal knowledge and perceptions. 4 Defendants move to strike the declarations of three inmatedeclarants on the ground that they refused to answer certain questions during their depositions by invoking the Fifth Amendment. The Court denies the motion because the questions the inmate-declarants refused to answer are collateral to the matters at issue in the present motion. Further, the Court has not relied on the declarations of these three inmate-declarants, or on the transcripts of their depositions, for the purpose of deciding the present motion. 7 1 accommodation, was necessary for the performance of legitimate 2 penological duties.5 United States District Court Northern District of California 3 The following are illustrative examples. An inmate at LAC who uses a wheelchair is frequently denied 4 ADA assistance, to take a shower, by a particular officer.6 5 Freedman Decl., Ex. 35 ¶¶ 1-12, Docket No. 2947-5. 6 longer asks for ADA showers when that officer is on her shift. 7 An inmate at LAC who has mobility, vision, and mental The inmate no 8 disabilities was not provided with a vehicle with a lift so that 9 he could be transported to his medical appointment in August 10 2020, and the inmate missed his appointment as a result.7 11 Grunfeld Reply Decl., Ex. 8 ¶¶ 32-33, Docket No. 3108-1. 12 inmate believes that staff prevented him from going to his 13 medical appointment in retaliation for reporting staff misconduct 14 at LAC. 15 The Id. An inmate at LAC who suffers from bipolar disorder and is 16 assigned to an EOP unit experienced a manic episode in December 17 2019, after which several officers brought the inmate to the 18 ground. Freedman Decl., Ex. 29 ¶¶ 17-18. Once the inmate was 19 20 21 22 23 24 25 26 27 28 5 Defendants submitted declarations by prison staff disputing some, but not all, of the incidents that some of the inmatedeclarants describe. The incidents described in this order are examples of alleged incidents for which Defendants have not pointed to any evidence that contradicts the inmate-declarants’ version of the events. 6 Defendants submitted evidence that they argue contradicts the declaration of this inmate. See Docket No. 3080-4. But that evidence does not speak to the incidents described in this order in which a specific officer identified by name allegedly denied the inmate access to ADA assistance to take a shower. 7 Defendants filed declarations by officers at LAC that address other unrelated incidents involving this inmate that took place in April 2020. Defendants filed no evidence to dispute that the inmate missed an appointment for lack of an accessible vehicle in August 2020. 8 1 under the control of the officers, one of the officers unloaded 2 an entire can of pepper spray on the inmate, and then beat the 3 inmate. 4 officers beat him again. 5 asking for help. United States District Court Northern District of California 6 Id. Then, after the inmate was in handcuffs, the Id. ¶ 19. The inmate now refrains from Id. ¶ 36. An inmate at LAC who has mobility disabilities and suffers 7 from bipolar disorder and is assigned to an EOP unit experienced 8 hallucinations and sought mental health treatment in June 2019. 9 Freedman Decl., Ex. 49 ¶¶ 1-10, Docket No. 2947-5. After a 10 mental health evaluation, he was being returned to his cell, 11 while handcuffed, by two officers when the officers and the 12 inmate had a verbal altercation; once they reached his cell, the 13 officers slammed him to the ground face first and punched him in 14 the head. 15 help for his disabilities. 16 Id. ¶¶ 10-17. The inmate now is afraid of asking for Id. ¶ 32. An inmate at LAC who suffers from schizoaffective disorder 17 and is housed in an EOP unit reported that he was suicidal in 18 March 2018 and was ignored for hours, after which he tried to 19 hang himself. 20 Instead of providing him with mental health care, an officer 21 pepper sprayed him in the face. 22 Freedman Decl., Ex. 33 ¶¶ 8-10, Docket No. 2947-5. Id. An inmate at LAC who suffers from depression and anxiety and 23 is housed in an EOP unit asked to speak to his mental health 24 clinician because he had learned that his father had cancer, and 25 an officer pepper sprayed him instead. 26 1-11, Docket No. 2947-5. Freedman Decl., Ex. 37 ¶¶ 27 An inmate at COR who is housed in an EOP unit observed 28 officers beat another EOP inmate after he asked for medications. 9 1 Grunfeld Reply Decl., Ex. 23 ¶¶ 1-24, Docket No. 3108-1. 2 inmate now worries that staff will deny him mental healthcare. 3 Id. ¶ 24. United States District Court Northern District of California 4 The An inmate at COR who is housed in an EOP unit was beaten by 5 an officer after a suicide attempt in August 2019. 6 Reply Decl., Ex. 20 ¶¶ 34-42, Docket No. 3108-1. 7 believes that the officer beat him because he suffers from mental 8 health issues and cannot advocate for himself. 9 inmate now refrains from asking for help because he is afraid of 10 11 what would happen to him. The inmate Id. ¶ 47. The Id. ¶ 61. An inmate at COR who is housed in an EOP unit reported that 12 he was suicidal in July 2020 but staff ignored him. 13 Reply Decl., Ex. 20 ¶¶ 56-58, Docket No. 3108-1. 14 Grunfeld Grunfeld An inmate at SATF who has a hearing disability repeatedly 15 asked for a telecommunication device for the deaf in February 16 2020, and staff ignored his request for months, until June 2020.8 17 Grunfeld Reply Decl., Ex. 70 ¶¶ 1-17, Docket No. 3109-1. 18 An inmate at CIW who has a mobility disability requested a 19 handcuffing accommodation in February 2020, and the officer 20 ignored her request. 21 3108-1. Grunfeld Decl., Ex. 41 ¶¶ 1-13, Docket No. The inmate was handcuffed behind her back for two hours 22 23 24 25 26 27 28 8 Defendants argue that the inmate’s declaration is contradicted by evidence that he did receive access to the telecommunications device from June through August of 2020. Docket No. 3162 at 6. Defendants, however, point to no evidence to dispute the inmate’s declaration that he requested the telecommunications device in February 2020 but Defendants failed to provide him access to it until June 2020. 10 United States District Court Northern District of California 1 until another officer confirmed that the inmate requires a 2 handcuffing accommodation and removed the handcuffs.9 Id. ¶ 11. 3 An inmate at KVSP who is designated as EOP and has permanent 4 nerve damage in his wrists, Freedman Decl., Ex. 26 ¶¶ 1-5, Docket 5 No. 2947-5, requested a change of bandages in May 2020 because he 6 had had wrist surgery and, instead of accommodating him, an 7 officer hit him with a mace can, Freedman Decl. ¶ 72 & Ex. 62 ¶¶ 8 1-9, Docket No. 2947-5. 9 are retaliating against him for providing assistance in the The inmate believes that staff at KVSP 10 Coleman and Armstrong litigation. 11 Docket No. 2947-5. 12 Freedman Decl., Ex. 62 ¶ 18, The declarants believe, based on their experiences and 13 observations, that staff target inmates with disabilities for 14 mistreatment because they are vulnerable and unlikely to fight 15 back. 16 No. 3108-1; Freedman Decl., Ex. 29 ¶ 36; Freedman Decl., Ex. 33 ¶ 17 29, Docket No. 2947-5; Grunfeld Reply Decl., Ex. 70 ¶ 45, Docket 18 No. 3109-1; Grunfeld Reply Decl., Ex. 43 ¶ 13, Docket No. 3108-1; 19 Grunfeld Decl., Ex. 41 ¶ 20, Docket No. 3108-1; Freedman Decl., 20 Ex. 35 ¶ 21, Docket No. 2947-5; Freedman Decl., Ex. 49 ¶ 37, 21 Docket No. 2947-5. 22 credible. See, e.g., Grunfeld Reply Decl., Ex. 8 ¶¶ 34-35, Docket The Court finds the inmate declarations to be The descriptions in these declarations of the behavior 23 24 25 26 27 28 9 Defendants argue that this inmate’s description of the incident is contradicted by medical records, which state that “I/P was escorted cuffed in front to TTA exam room[.]” Grunfeld Decl., Ex. 41a, Docket No. 3108-1. These medical records, which state that the inmate was handcuffed in the front while she was being escorted do not contradict the inmate’s declaration that she was handcuffed behind her back for two hours in a holding cell before the handcuffs were removed. 11 1 of staff toward disabled inmates are remarkably consistent. 2 Further, the declarants appear to lack any incentive to fabricate 3 the incidents they describe with such great detail. 4 noted, Defendants have not pointed to declarations or other 5 evidence to dispute the sworn statements of the declarants with 6 respect to the incidents described above.10 7 version of the incidents described above is, therefore, 8 uncontroverted. United States District Court Northern District of California 9 Finally, as The declarants’ Defendants note that some of the inmate declarations that 10 Plaintiffs filed are by members of the class in Coleman v. 11 Newsom, Case No. 90-cv-00529 (E.D. Cal.) and argue that these 12 declarations cannot establish violations of the ARP to the extent 13 that they describe denials of reasonable accommodations as to 14 Coleman class members. 15 with serious mental disorders who are now, or who will in the 16 future, be confined within the California Department of 17 Corrections.” 18 899 n.11 (E.D. Cal. 2009) (citation and internal quotation marks 19 omitted). 20 Coleman class members by virtue of their mental disorders unless 21 the mental disorders are learning disabilities. 22 6, 2020, Hr’g at 25-26, Docket No. 3131. The Coleman class includes “all inmates Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, Defendants contend that the ARP does not apply to See Tr. of Oct. 23 24 25 26 27 28 10 Defendants argue that the “current page limitations” made it “impossible” for them to “make extended discussions” of some of the inmate declarations. Docket No. 3162. Defendants’ failure to cite evidence that contradicts the inmates’ declarations, to the extent that any such evidence exists, is not justified by the page limitations the Court imposed on the parties. Pointing to contrary evidence does not require extended discussions of the evidence. Further, Defendants never moved for additional pages. 12 1 2 Defendants to ensure that their facilities and programs are 3 compliant with the ADA and RA. 4 1-4, Docket No. 158. 5 ADA’s anti-discrimination and access provisions, 42 U.S.C. 6 § 12132, provides that any “qualified inmate or parolee with a 7 disability” is protected from discrimination or exclusion because 8 of that disability: 9 United States District Court Northern District of California As noted, the Court’s Remedial Order and Injunction requires 10 11 12 13 Remedial Order and Injunction at The ARP, Section I, which incorporates the No qualified inmate or parolee with a disability as defined in Title 42 of the United States Code, Section 12102 shall, because of that disability, be excluded from participation in or denied the benefits of services, programs, or activities of the Department or be subjected to discrimination. 14 ARP at 1, Docket No. 681. 15 “qualified inmate or parolee” as “one with a permanent physical 16 or mental impairment which substantially limits the 17 inmate/parolee’s ability to perform a major life activity,” id. 18 at 1, and Section II.B. of the ARP defines a “permanent 19 disability or impairment” as one that is not expected to improve 20 within six months, id. at 2. 21 the conditions that may constitute a covered “mental impairment.” 22 Section II.A of the ARP defines a The ARP does not define or limit In light of the plain language of the ARP, the Court 23 concludes that Coleman class members are “qualified inmates” 24 under the ARP if the record suggests that they suffer from any 25 known physical or mental impairment that substantially limits 26 their ability to perform a major life activity and that is not 27 expected to improve within six months. 28 13 The Court finds no United States District Court Northern District of California 1 support in the ARP for limiting the scope of the term “mental 2 impairment” to learning disabilities, as Defendants propose. 3 During the hearing held on December 8, 2020, Plaintiffs 4 argued that Coleman class members who “have been classified by 5 CDCR as belonging to EOP, Enhanced Outpatient Placement,” are 6 qualified inmates within the meaning of the ARP because “they 7 require special housing, special programming” and “are very ill.” 8 Tr. at 37, Docket No. 3184. 9 supports that argument. The record in the Coleman litigation It shows that Coleman class members 10 designated as EOP suffer from serious mental disorders such as 11 depression, panic attacks, bipolar disorder, and post-traumatic 12 stress disorder, which cause them to suffer from “crisis symptoms 13 which require extensive treatment” or prevent them from 14 functioning in the general prison population. 15 Health Services Delivery System Program Guide, 2018 Revision, at 16 7-8, Docket No. 5864-1, Coleman v. Newsom, Case No. 90-cv-00520 17 (E.D. Cal.); see also Order at 5, Docket No. 5131, Coleman v. 18 Newsom, Case No. 90-cv-00520 (E.D. Cal.) (noting that Coleman 19 class members designated as EOP suffer from serious mental 20 disorders that render them “unable to function in the general 21 prison population”). 22 designated as EOP require special housing apart from the general 23 prison population and special extensive mental-health treatment. 24 See CDCR Mental As a result, Coleman class members As will be discussed in more detail in the Conclusions of 25 Law, below, a mental impairment that prevents an inmate from 26 functioning in the general prison population and that requires 27 the inmate to receive special and extensive mental-health 28 treatment constitutes a disability within the meaning of the ARP 14 United States District Court Northern District of California 1 and ADA, as that impairment substantially limits the inmate’s 2 ability to perform a major life activity. 3 class members who are designated as EOP are “qualified inmates” 4 within the meaning of the ARP and are covered by the ARP and ADA. 5 As such, any failure by Defendants’ employees to provide EOP 6 Coleman class members with reasonable accommodations for their 7 disabilities constitutes a violation of the ARP and ADA. 8 at 7, Section II.F., Docket No. 681 (requiring CDCR to “provide 9 reasonable accommodations or modifications for known physical or Accordingly, Coleman See ARP 10 mental disabilities of qualified inmates/parolees”) (emphasis 11 added). 12 The declarations of Coleman class members are also relevant 13 to the resolution of the present motion to the extent that they 14 contain evidence of violations of Armstrong class members’ rights 15 under the ARP or ADA, and to the extent that they contain 16 evidence that is probative of the conditions that disabled 17 inmates experience in CDCR’s prisons. 18 For the foregoing reasons, the Court considers the 19 declarations of Coleman class members when deciding the present 20 motion. 21 Defendants next argue that certain of the declarants do not 22 explicitly establish a causal link between the violations of the 23 ARP and ADA that they describe and their disabilities. 24 is not persuaded. 25 by each of the declarants. 26 the totality of the allegations in the declarations and the 27 evidence discussed below, which shows that it is part of the 28 staff culture at LAC, COR, SATF, CIW, and KVSP to target inmates The Court This causal link need not be expressly alleged The causal link can be inferred from 15 1 with disabilities for mistreatment, abuse, retaliation, and other 2 improper behavior. 3 4 denied reasonable accommodations to inmates with disabilities on 5 multiple occasions at LAC, COR, CIW, SATF, and KVSP, and that 6 such denials were by reason of the inmates’ disabilities. 7 8 9 United States District Court Northern District of California The Court finds, based on the foregoing, that staff have B. Staff interfered with the ADA rights of qualified inmates with disabilities As will be discussed in the Conclusions of Law below, a 10 violation of the ADA’s anti-interference provisions, 42 U.S.C. 11 § 12203(b), occurs where (1) a person threatens, intimidates, or 12 coerces a person with a disability; (2) the threat, intimidation, 13 or coercion has a nexus to the exercise or enjoyment of an ADA 14 right; and (3) the disabled person suffers distinct and palpable 15 injury as a result, by virtue of giving up his ADA rights or some 16 other injury which resulted from his refusal to give up his 17 rights, or from the threat or intimidation or coercion itself. 18 Plaintiffs have submitted declarations by inmates stating 19 that staff have threatened, intimidated, or coerced them when 20 they requested reasonable accommodations or indicated that they 21 would file ADA-related grievances, and that this has caused them 22 to refrain from requesting accommodations or filing ADA 23 grievances, or to experience severe emotional distress. 24 discussed below, the incidents described in the declarations, 25 which are uncontested, establish that staff have violated 42 26 U.S.C. § 12203(b). 27 Some of these incidents were also discussed in the previous As Below, the Court describes a few examples. 28 16 1 section of this order because they involve denials of reasonable 2 accommodations, as well as violations of § 12203(b). 3 4 denied by a particular officer of ADA assistance to take a 5 shower, no longer asks for ADA showers when that officer is on 6 her shift.11 7 United States District Court Northern District of California The inmate at LAC who uses a wheelchair, who is frequently Freedman Decl., Ex. 35 ¶¶ 1-12, Docket No. 2947-5. An inmate at LAC who suffers from depression and anxiety and 8 is housed in an EOP unit and was assaulted by officers after he 9 asked to speak to his mental health clinician filed a complaint 10 regarding the incident and then experienced retaliation by 11 officers in the form of an unwarranted placement in segregation 12 in November 2019. 13 No. 2947-5. 14 health treatment when he feels suicidal. 15 Freedman Decl., Ex. 37 ¶¶ 1-11, 20-26, Docket The inmate now refrains from asking for mental Id. ¶ 38. An inmate at LAC who has mobility, vision, and mental 16 disabilities was accused by an officer at LAC, while in the 17 presence of other inmates, of reporting staff misconduct and 18 denials of disability accommodations.12 19 8 ¶¶ 18-19, Docket No. 3108-1. 20 safety and refrains from asking for assistance he needs in light 21 of his disabilities. Grunfeld Reply Decl., Ex. The inmate now worries about his Id. ¶¶ 18-19, 34. 22 23 24 25 26 27 28 11 As noted above, Defendants submitted evidence that they argue contradicts the declaration of this inmate. See Docket No. 3080-4. But none of that evidence addresses the incidents described in this order in which a specific officer identified by name allegedly denied the inmate access to ADA assistance to take a shower. 12 Defendants filed declarations by officers at LAC that address other unrelated incidents. Defendants have filed no evidence to dispute that this inmate suffered retaliation in the summer of 2020. 17 United States District Court Northern District of California 1 Described above is an inmate at LAC who has mobility 2 disabilities and suffers from bipolar disorder and is assigned to 3 an EOP unit; this inmate experienced hallucinations and sought 4 mental health treatment in June 2019. 5 1-10, Docket No. 2947-5. 6 was being returned to his cell, while handcuffed, by two officers 7 when the officers and the inmate had a verbal altercation; once 8 they reached his cell, the officers slammed him to the ground 9 face first and punched him in the head. Freedman Decl., Ex. 49 ¶¶ After a mental health evaluation, he Id. ¶¶ 10-17. The 10 inmate is now afraid of asking for help for his disabilities. 11 Id. ¶ 32. 12 An inmate at COR who has mobility disabilities filed a staff 13 complaint against an officer who allegedly kicked him on the 14 inside of his legs in September 2019 during a body search, 15 causing him excruciating pain and worsening his mobility 16 disability.13 17 3108-1. 18 told him to drop his complaints against the officer who kicked 19 him.14 20 Grunfeld Reply Decl., Ex. 33 ¶¶ 1-18, Docket No. Since then, two other officers have threatened him and Id. ¶¶ 25-34. An inmate at COR who was being housed in an EOP unit in June 21 2020 observed officers extract another EOP inmate from his cell 22 while he was wearing handcuffs and leg restraints; while that 23 24 25 26 27 28 13 The officer who allegedly kicked the inmate filed a declaration, in which he does not deny having kicked the inmate. See Docket No. 3160-19. 14 One of the officers who allegedly threatened the inmate filed a declaration. Docket No. 3160-17. This officer does not deny threatening or telling the inmate to drop his complaints against the officer who allegedly kicked the inmate. Id. The other officer who allegedly threatened and told the inmate to drop the complaints did not file a declaration. 18 1 inmate was on the floor, a female officer kicked the inmate in 2 the head. 3 3108-1. 4 asking for treatment for his mental illness. 5 The inmate who observed the incident now refrains from Id. ¶ 32. An inmate at CIW asked for a handcuffing accommodation and 6 was ignored, and she now refrains from asking for accommodations 7 for her hearing disability as a result of the incident. 8 Reply Decl., Ex. 43 ¶¶ 9-12, Docket No. 3108-1. 9 United States District Court Northern District of California Grunfeld Reply Decl., Ex. 22 ¶¶ 1-226, Docket No. Grunfeld The inmate at KVSP who is designated as EOP and has 10 permanent nerve damage in his wrists, Freedman Decl., Ex. 26 ¶¶ 11 1-5, Docket No. 2947-5, requested a change of bandages in May 12 2020 because he had had wrist surgery and, instead of 13 accommodating him, an officer hit him with a mace can, Freedman 14 Decl. ¶ 72 & Ex. 62 ¶¶ 1-9, Docket No. 2947-5. 15 believes that staff at KVSP are retaliating against him for his 16 assistance in the Coleman and Armstrong litigation. 17 Decl., Ex. 62 ¶ 18, Docket No. 2947-5. 18 The inmate Freedman For each of the examples just described, Defendants have not 19 submitted any evidence, such as declarations by the officers who 20 allegedly engaged in intimidation, threats, or coercion, to 21 dispute the occurrence of these incidents. 22 The Court finds the inmate declarants to be credible for the 23 same reasons discussed in the prior section, and because of the 24 absence of any evidence that contradicts the version of the 25 events described in these declarations. 26 27 28 19 United States District Court Northern District of California 1 Defendants argue that they have not violated § 12203(b) 2 because their experts, Matthew Cate15, Bernard Warner16, and John 3 Baldwin17, opine that disabled inmates have access to, and 4 regularly utilize, systems for requesting accommodations and for 5 reporting officer misconduct. 6 3083-5. 7 inmates with disabilities are systemically being denied or 8 discouraged from requesting accommodations; and whether they are 9 targeted for abuse, retaliation, and harassment for doing so, or Cate Decl. ¶¶ 21-39, Docket No. Defendants retained these experts to determine whether 10 on the basis of their disabilities. Warner examined these issues 11 with respect to SATF, SVSP, KVSP; Baldwin with respect to COR, 12 CIW, and CCI; and Cate with respect to LAC. 13 The Court gives little weight to these experts’ opinions 14 because they do not consider or take into account the possibility 15 that, despite the existence of systems for requesting 16 accommodations and reporting staff misconduct, and the fact that 17 some inmates employ such systems, some disabled inmates refrain 18 from filing ADA requests or staff misconduct grievances that they 19 would have filed but for the threats, intimidation, or coercion 20 by staff. The data upon which Defendants’ experts rely, which 21 22 23 24 25 26 27 28 15 Cate previously served as the Inspector General of California, and as the Secretary of CDCR. Cate Decl. ¶¶ 1-6, Docket No. 3083-5. 16 Bernard Warner has forty years of experience in the field of corrections and served as CDCR’s Chief Deputy Secretary for the Department of Juvenile Justice and as the Secretary of the Washington Department of Corrections. Warner Decl. ¶ 3, Docket No. 3083-6. 17 John Baldwin has more than forty-two years of experience in the field of corrections and served as the Director of the Iowa Department of Corrections. Baldwin Decl. ¶ 3, Docket No. 3083-4. 20 United States District Court Northern District of California 1 show that disabled inmates are filing some ADA requests and 2 grievances, does not take into account requests or grievances 3 that disabled inmates did not make or submit, nor do they take 4 into account requests and grievances that disabled inmates 5 withdrew, because of threats, coercion, or intimidation. 6 Accordingly, the Court finds that the opinions of Defendants’ 7 experts do not impact its finding that Defendants violated 8 disabled inmates’ rights under § 12203(b).18 9 III. 10 11 Defendants have failed to comply with their Court-ordered accountability obligations In 2007, more than ten years after the Court entered its 12 first Remedial Order and Injunction requiring Defendants to 13 develop plans, policies, and procedures to ensure that their 14 facilities and programs comply with the ADA and RA, the Court 15 found that Defendants were not yet in compliance with the ADA, 16 the ARP, or the Court’s Remedial Order and Injunction. 17 Order, Docket No. 1045. 18 injunction, which required Defendants to develop and implement a 19 system for holding wardens and other staff accountable for 20 compliance with the ARP and the Court’s orders (accountability 21 obligations). 22 Court has clarified Defendants’ accountability obligations to 23 specify the actions that Defendants must take to ensure that they 24 comply with the ARP and ADA, such as tracking allegations of See Accordingly, the Court entered the 2007 Order at 7, Docket No. 1045. Since that time, the 25 26 27 28 18 For the same reasons, the Court’s conclusion is not altered by data showing that disabled inmates submitted ADArelated appeals and grievances in the last several years. See Olgin Decl., Ex. A–G, Docket No. 3083-7. 21 1 violations of the ARP, the ADA, and the Court’s orders; 2 conducting prompt investigations of any such alleged violations; 3 and ensuring that any staff who violate the ARP, ADA, or the 4 Court’s orders receive the appropriate discipline. 5 Order, Docket No. 2180; 2014 Order Modifying 2007 Injunction at 6 1, Docket No. 2479; 2020 Order, Docket No. 3059. United States District Court Northern District of California 7 See 2012 As noted above, Defendants have repeatedly failed to comply 8 with their accountability obligations. 9 4-6, Docket No. 2180; 2020 Order at 31-35, Docket No. 3059. 10 See, e.g., 2012 Order at In their present motion, Plaintiffs have shown that 11 Defendants continue to violate multiple aspects of their Court- 12 ordered accountability obligations. 13 A. 14 15 Defendants’ system for investigating and holding staff accountable for violations of the ARP and ADA is ineffective In 2007, the Court ordered Defendants to develop and 16 implement a system for holding wardens and other staff 17 accountable for compliance with the ARP, the ADA, and the Court’s 18 orders. 19 clarified that this requires, among other things, that Defendants 20 “investigate promptly and appropriately all allegations of 21 violations, regardless of the source[.]” 22 2180. 23 Order at 7, Docket No. 1045. In 2012, the Court Order at 16, Docket No. Plaintiffs have shown that Defendants’ system for 24 investigating alleged violations of the ARP and the ADA is flawed 25 and that the results of investigations conducted pursuant to that 26 system are unreliable. 27 Plaintiffs’ expert, Eldon Vail, is a former correctional 28 administrator with thirty-five years of experience working in and 22 United States District Court Northern District of California 1 administering adult correctional institutions. Vail Decl. ¶ 3, 2 Docket No. 2020-5. 3 correctional institutions, and he served as the Secretary of the 4 Department of Corrections of Washington for four years. 5 He is familiar with CDCR prisons, as he was an expert in several 6 actions involving CDCR prisons, including the Coleman litigation. 7 Vail Decl. ¶¶ 1-8, Docket No. 3106-7. 8 Vail reviewed, among other things, 170 declarations by inmate- 9 declarants that describe incidents of abuse directed at disabled He has served as the Warden of three adult Id. ¶ 4. As part of his assignment, 10 inmates at eight prisons, including incidents that constitute 11 violations of the ARP and ADA. Id. ¶ 8. Vail opines that Defendants’ investigations of the 12 13 allegations made by the inmate-declarants were systematically 14 inadequate, as investigators “overlooked or intentionally 15 ignored” evidence that supports the inmate-declarants’ version of 16 the events and that undermines officer statements and incident 17 reports generated by prison staff. Id. ¶ 28. For example, Vail analyzed the investigation of allegations 18 19 of abuse by an inmate at LAC who has mobility disabilities and 20 uses a wheelchair, and he concluded that this investigation, like 21 many others, was flawed. 22 This inmate stated in his declaration that, on August 7, 2019, he 23 requested multiple accommodations, including an ADA shower and 24 extra supplies to clean up after an incontinence accident, but 25 instead of accommodating him, an officer threw him out of his 26 wheelchair and then put his knee on his back before handcuffing 27 him. Vail Decl. ¶¶ 72-79, Docket No. 3106-7. Freedman Decl., Ex. 27, Docket No. 2947-5. 28 23 To dispute this inmate’s allegations, Defendants filed the United States District Court Northern District of California 1 2 declaration of the officer who allegedly threw the inmate out of 3 his wheelchair. 4 incident report that he wrote after the incident, which states 5 that the inmate stood up from his wheelchair, yelled profanities 6 at the officer, and then threw a plastic bag containing 7 disposable diapers at his chest and face. 8 A. 9 the inmate to get on the floor, the inmate refused, and the The officer attached to his declaration an Docket No. 3083-2, Ex. According to the incident report, when the officer ordered 10 officer then pushed the inmate to the floor and handcuffed him. 11 Id. 12 but no inmate witnesses. 13 declarations by any of the three officers listed as witnesses. 14 Vail reviewed the incident report and medical report just The incident report lists three other officers as witnesses, Id. Defendants did not file any 15 described, as well as other documents that Defendants did not 16 file, including a second report that was written in 2020 17 summarizing the results of Defendants’ inquiry into the incident. 18 See Vail Decl. ¶¶ 72-79 & Ex. GGG, Docket No. 3106-7. 19 second report summarizes an interview with an inmate who 20 witnessed the incident and corroborated the subject inmate’s 21 description of it; the witness stated that he saw the officer 22 lift the inmate’s wheelchair from the back, forcing the inmate to 23 fall out of the chair. 24 find the subject inmate’s or the witness’s accounts to be 25 credible because (1) the inmate and the witness did not mention 26 that the inmate threw a bag of dirty diapers at the officer as 27 the officer wrote in the incident report; (2) the witness failed 28 to mention that the inmate “stood up from his wheelchair” as the This The investigator wrote that he did not 24 United States District Court Northern District of California 1 officer had written in the incident report; (3) the witness “is 2 friends with” the inmate and therefore colluded with the inmate 3 to tell the same story; and (4) the witness and the inmate 4 differed in their accounts as to whether the inmate received an 5 ADA shower prior to the incident. 6 Docket No. 3106-7. 7 allegations of excessive force and staff misconduct “have no 8 merit and should be closed . . . based on the lack of 9 corroborating witnesses and supporting evidence which 10 11 Vail Decl., Ex. GGG at 2-4, The investigator concluded that the inmate’s contradict[s]” the inmate’s allegations. Id. at 8. Vail opines that the investigator improperly assumed that 12 the officer’s version of the incident was true, and that he 13 improperly discounted the subject inmate’s and the witness’s 14 statements on the ground that such statements did not match the 15 officer’s version of the incident. 16 further opines that the investigator erred in assuming, without 17 proof, that the similarities between the inmate’s and the 18 witness’s version of the events was the result of collusion or 19 fabrication, as opposed to being the truth. 20 Vail opines that the investigator erred in discounting the 21 inmate’s and the witness’s statements on the basis that their 22 stories conflicted as to whether the inmate took an ADA shower 23 before the officer threw him out of his wheelchair, because 24 whether or not the inmate took an ADA shower was not material to 25 whether he was thrown out of the wheelchair. 26 Vail Decl. ¶¶ 75-77. Id. ¶ 75. Vail Finally, Id. ¶ 76. Neither Defendants nor their experts dispute Vail’s analysis 27 and conclusions with respect to the investigation of this 28 inmate’s allegations. 25 1 Plaintiffs’ other expert, Jeffrey Schwartz, who has assisted 2 prisons and jails over the last twenty years in applying national 3 correctional standards to their operations, concurs with Vail’s 4 opinions and further opines that the problems and failures of 5 Defendants’ process for investigating and disciplining 6 allegations of staff misconduct directed at disabled inmates are 7 systemic. 8 ¶ 6, Docket No. 3106-5. United States District Court Northern District of California 9 Schwartz Decl. ¶ 2, Docket No. 2947-9; Schwartz Decl. The Court finds Vail’s and Schwartz’s opinions about the 10 systemic inadequacies of Defendants’ investigation of allegations 11 of staff misconduct directed at disabled inmates to be credible 12 and reliable. 13 Office of the Inspector General (OIG)19, which shows that a They are consistent with the data published by the 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 Pursuant to California Penal Code § 6133(a), the OIG is “responsible for contemporaneous public oversight of the Department of Corrections and Rehabilitation investigations and staff grievance inquiries conducted by the Department of Corrections and Rehabilitation’s Office of Internal Affairs . . . . The Office of the Inspector General shall have discretion to provide public oversight of other Department of Corrections and Rehabilitation personnel investigations as needed.” The OIG’s records, reports, statements, and data compilations are presumptively admissible under the public records hearsay exception, Federal Rule of Evidence 803(8). See Johnson v. City of Pleasanton, 982 F.2d 350, 352 (9th Cir. 1992) (“A trial court may presume that public records are authentic and trustworthy. The burden of establishing otherwise falls on the opponent of the evidence, who must come ‘forward with enough negative factors to persuade a court that a report should not be admitted.’”); Estate of Gonzales v. Hickman, No. 05-660 MMM (RCX), 2007 WL 3237727, at *2 n.3 (C.D. Cal. May 30, 2007) (holding that OIG report was admissible under Rule 803(8) because the report contained factual findings and conclusions resulting from an investigation made by the OIG pursuant to its authority granted by law, and because the opponents did not meet their burden to show that the report was unreliable or untrustworthy); Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 551 (D. Md. 2007) (holding that “official publications posted on government agency websites should be admitted into evidence easily” based on Federal Rules of Evidence 26 United States District Court Northern District of California 1 significant percentage of Defendants’ investigations of 2 allegations of staff misconduct involving inmates are inadequate. 3 The OIG monitored 116 cases involving allegations of harm or 4 negligence against incarcerated people dated January 1, 2019, to 5 June 30, 2020, and it concluded that, in twenty-eight out of the 6 116 cases (or twenty-four percent), CDCR’s overall performance in 7 investigating the allegations was “poor”, and that in forty-five 8 out of the 116 cases (or thirty-eight percent), CDCR performed 9 poorly in determining its findings for alleged misconduct and 10 processing the case. See Grunfeld Reply Decl. ¶¶ 227-231 & Ex. 11 127, Docket No. 3108-1.20 12 “superior” rating for any of the 116 cases.21 The OIG did not issue an overall Id. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 803(8) and 902(5)). Here, Defendants have not rebutted the presumption that the OIG data and OIG reports discussed in this order are admissible under Rule 803(8) because Defendants have not shown that such data and reports are unreliable or untrustworthy. 20 These calculations are based on data that Plaintiffs obtained from the OIG’s website based on criteria described in detail in the declaration of Gay Grunfeld. Defendants object to the Court’s consideration of the calculations on the ground that the calculations are hearsay. The Court overrules this objection because Defendants do not dispute that the underlying data came from the OIG’s website and is therefore admissible under Federal Rules of Evidence 803(8) and 902(5). Further, Defendants have not shown that the calculations at issue, which are based on the OIG’s data, are inaccurate. To the contrary, during the hearing held on December 8, 2020, Defendants stated that they do not argue that “the calculations were done incorrectly.” See Tr. at 8, Docket No. 3187. 21 Defendants’ expert, Matthew Cate, states in his report that the OIG concluded that CDCR’s performance in the first six months of 2019 in terms of “the internal investigation and employee disciplinary process” was satisfactory overall and excellent based on certain specific metrics. Cate Decl. ¶¶ 8688, Docket No. 3083-5. The OIG data that Cate summarizes in his report, however, does not appear to speak specifically to CDCR’s performance in investigating or disciplining staff misconduct of the type that is at issue in the present motion, namely staff misconduct directed at inmates. For that reason, the Court gives little weight to Cate’s opinions based on this data. 27 United States District Court Northern District of California 1 Vail’s and Schwartz’s opinions also are consistent with the 2 OIG’s findings that the statewide system for investigating 3 allegations of staff misconduct is flawed and ineffective. 4 report dated January 2019, the OIG reviewed 188 staff misconduct 5 inquiries at SVSP to determine whether the statewide staff 6 misconduct complaint process had functioned as intended. 7 Grunfeld Decl., Ex. GG, Docket No. 2922-1. 8 misconduct complaint inquiries the OIG reviewed, the OIG found 9 that the hiring authority determined in ninety-seven percent of For a Out of the 188 staff 10 them that the staff accused of misconduct had not violated 11 policy. 12 “dependability of the staff complaint inquiries” upon which the 13 hiring authority’s determinations were based was “significantly 14 marred by inadequate investigative skills” that staff misconduct 15 complaint reviewers had demonstrated. 16 that staff misconduct complaint reviewers “displayed signs of 17 bias in favor of their fellow staff when conducting their staff 18 complaint inquiries; they sometimes ignored corroborating 19 evidence offered by inmate witnesses and often compromised the 20 confidentiality of the process.” 21 that the staff misconduct complaint reviewers’ “ability to remain 22 impartial” could have been affected by the fact that the 23 reviewers were “frequently peers or coworkers of the staff 24 members they were investigating” and “must always rely on fellow 25 staff for their physical safety.” 26 Id. at 1. However, according to the OIG, the Id. at 3. Id. at 2. The OIG found The OIG concluded Id. at 5. The OIG recommended that CDCR “consider a complete overhaul 27 of the staff complaint inquiry process” across the entire state 28 on the ground that the problems the OIG found at SVSP—namely, 28 United States District Court Northern District of California 1 that staff complaint reviewers “did not follow sound practices 2 with respect to interviewing, collecting evidence, and writing 3 reports” and “lack[ed] of independence”—“may also be found to 4 some extent at other institutions” because the same staff 5 misconduct complaint inquiry process “is in place statewide.” 6 Id. at 89-90. 7 reassign the responsibility of conducting staff complaint 8 inquiries to employees who work outside of the prison’s command 9 structure[.]” The OIG specifically “urge[d] the department to Id. at 89. After this OIG report was published, CDCR implemented the 10 11 Allegation Inquiry Management Section (AIMS) in certain prisons 12 in January 2020, and statewide in April 2020. 13 57, Docket No. 3006-1. 14 provide reviews of staff complaints that are more independent 15 than the reviews performed at the institutions themselves.” 16 ¶ 53. 17 for most allegations against staff submitted through the 18 grievance process which, if true, meet the definition of staff 19 misconduct, but for which the reviewing authority does not have 20 the reasonable belief the alleged misconduct occurred.” 21 53. 22 determines that the allegations, if true, would more likely than 23 not result in adverse disciplinary action, but there is no 24 reasonable belief that the misconduct occurred, the grievance 25 will be directed to AIMS for an allegation inquiry.” 26 Once a grievance is sent to AIMS for an allegation inquiry, AIMS 27 conducts interviews and reviews documents, and it then provides a 28 report to the warden so that the warden can decide whether (1) no Amy Miller Decl. ¶ According to Defendants, AIMS “is able to Id. “AIMS is responsible for completing allegation inquiries Id. ¶ In other words, “[w]hen the warden or chief deputy warden 29 Id. ¶ 55. 1 action should be taken against staff because there was no 2 evidence to substantiate the allegations, or (2) the matter 3 should be forwarded to the Office of Internal Affairs for formal 4 investigation or for direct adverse action. United States District Court Northern District of California 5 Id. ¶ 56. On February 16, 2021, the OIG issued a new report in which 6 it analyzed whether the implementation of AIMS has solved the 7 structural problems it identified in its January 2019 report as 8 to the statewide system for investigating and disciplining staff 9 misconduct.22 OIG Report, Docket No. 3205. The OIG concluded 10 that the “lack of independence” it found in its report of January 11 2019 “still persists” notwithstanding the implementation of AIMS. 12 Id. at 1. 13 AIMS process by “largely avoid[ing] referring staff misconduct 14 grievances” to AIMS and by retaining such grievances at the 15 prison for internal investigation. 16 that the wardens were able to retain grievances for investigation 17 within the prison instead of sending them to AIMS because, under 18 the current statewide system, the determination of whether a 19 grievance should be sent to AIMS is within the wardens’ The OIG found that wardens had mostly circumvented the Id. at 1. The OIG concluded 20 21 22 23 24 25 26 27 28 22 Defendants object to the Court’s consideration of this report on the grounds that (1) Plaintiffs filed it after the December 8, 2020, hearing on the present motion, and (2) the report is inadmissible. See Docket No. 3207. The Court will consider the report because it is relevant to the Court’s determination of the present motion, and because the Court provided Defendants with an opportunity to respond to the report. The Court overrules Defendants’ admissibility objections on the ground that Defendants have not rebutted the presumption that the report is admissible as a public record under Federal Rule of Evidence 803(8), as they have not shown that the report is unreliable or untrustworthy. 30 1 discretion, and the exercise of that discretion is not subject to 2 any oversight. United States District Court Northern District of California 3 Id. The OIG also found that, out of the grievances that wardens 4 did refer to AIMS, AIMS did not conduct investigations into 5 various categories of grievances, including staff misconduct 6 related to the ADA reasonable accommodations process and staff 7 misconduct involving the reported use of excessive force that did 8 not result in serious bodily injury. 9 grievances that AIMS did investigate, the OIG found that AIMS Id. at 3. For the 10 terminated the investigations before completing them as soon as 11 an AIMS investigator formed a reasonable belief that any 12 misconduct occurred; at that point, AIMS sent a report to the 13 warden even though the investigators may not have gathered all 14 relevant evidence. 15 problematic because, once a warden receives a report from AIMS, 16 the warden has the discretion to decide, based on AIMS’ 17 incomplete investigation, that no action should be taken against 18 staff because there was no evidence to substantiate the 19 allegations. 20 Id. at 3-4. The OIG found this to be Id. The OIG expressed a “deep concern[] about the low rate at 21 which wardens determined their staff violated policy (regardless 22 of the entity that prepared the inquiry), which raises serious 23 issues about the overall fairness of the process.” 24 Specifically, “of the 1,293 allegations that wardens resolved 25 between June 1, 2020, and August 31, 2020, wardens found that 26 their staff violated policy in only 22 (1.7 percent).” 27 28 Id. at 2. Id. Finally, the OIG found that CDCR’s mechanisms for tracking and collecting staff misconduct data are inadequate and preclude 31 1 any meaningful analysis or assessment of CDCR’s effectiveness in 2 investigating staff misconduct grievances. 3 inadequacy of the tracking system has resulted in CDCR “severely 4 undercount[ing]” the number of allegations of staff misconduct, 5 “possibly by the thousands.” United States District Court Northern District of California 6 Id. Notably, the Id. The Secretary for CDCR, Kathleen Allison, sent a letter to 7 the OIG responding to the OIG’s new report. See id. at 69-70. 8 In that letter, the Secretary states that the OIG’s conclusions 9 as to the effect of AIMS are “premature” because AIMS was 10 implemented statewide in April 2020 and CDCR is still in the 11 process of implementing the new procedures and training staff. 12 Id. at 69-70. 13 noting that the problems it identified in its February 2021 14 report “are structural and are not dependent on when [CDCR] 15 activated AIMS. 16 report was to highlight structural problems in the department’s 17 regulations and to point out that those problems will remain 18 until the department changes the regulations (and its process), 19 again.” 20 The OIG responded to the Secretary’s letter, The primary reason we published this progress Id. at 71. Defendants do not dispute any of the OIG’s findings with 21 respect to the structural flaws in the statewide system for 22 investigating and disciplining staff misconduct. 23 3211. 24 and is in the process of considering the report’s recommendations 25 for the development of further policies. 26 also note that, on March 1, 2021, the Secretary for CDCR 27 testified before the California Assembly’s Budget Subcommittee 28 about “proactive measures CDCR is prepared to take” in light of See Docket No. Defendants state only that CDCR acknowledges the report 32 Id. at 1-2. Defendants United States District Court Northern District of California 1 the OIG’s report, namely centralizing the complaint screening 2 process outside the institutions; expanding the scope of AIMS to 3 cover all allegations of excessive or unnecessary force when 4 there is any injury; and requiring AIMS investigators to state a 5 conclusion about whether a complete inquiry has been conducted 6 and whether or not it has established a reasonable belief that 7 misconduct occurred. 8 No. 3212-1. 9 so, when, any of these “proactive measures CDCR is prepared to 10 11 See Kathleen Allison Decl. ¶¶ 3-4, Docket Defendants provide no indication of whether, and if take” will become CDCR policy. The Court finds, based on the foregoing, that Defendants’ 12 system for investigating staff misconduct is deficient and 13 ineffective, and that the results of any investigations conducted 14 pursuant to that system cannot be relied upon to hold wardens and 15 staff accountable for violations of the ARP and ADA. 16 Defendants’ experts, Matthew Cate, Bernard Warner, and John 17 Baldwin, admit that the investigations of at least some of the 18 incidents described in the inmates’ declarations were deficient. 19 See, e.g., Cate Decl. ¶ 5, Docket No. 3160-6 (opining that “most” 20 investigations were conducted “in a professional manner” and that 21 the findings of the hiring authorities were “typically reasonable 22 under the circumstances”); Baldwin Decl. ¶ 35, Docket No. 3083-4 23 (admitting that at least one of the incident reports he reviewed 24 “should have been more thorough, which makes it difficult to 25 determine what actually happened in that incident”). 26 Defendants nevertheless argue, based on Cate’s opinions, 27 that the statewide system for investigating allegations of staff 28 misconduct has worked properly with respect to the allegations of 33 United States District Court Northern District of California 1 misconduct made by the inmate-declarants. Cate opines that, 2 “[w]hile not perfect, the investigations generally produced a 3 result that, based on [his] expertise, was reasonable and 4 appropriate,” Cate Decl. ¶¶ 75-78, 84, Docket No. 3160-7, and 5 that “a few poor investigations” cannot be used as a means to 6 conclude that the system is broken, id. ¶ 20. 7 opines that AIMS will “improve the system” by allowing for 8 investigations of certain categories of allegations outside of 9 the prisons. Cate further Id. ¶ 90. 10 Cate’s opinions do not impact the Court’s determinations, 11 because his opinions are inconsistent with the OIG’s findings, 12 discussed in more detail above. 13 opinions with the OIG’s findings from January 2019 that the 14 statewide system is prone to generating unreliable investigation 15 results because of the reviewers’ lack of independence and poor 16 investigative skills.23 17 improve the system also is contradicted by the OIG’s findings of 18 February 2021 that AIMS has not, and will not, solve any of the 19 structural problems the OIG identified in its January 2019 20 report. 21 Cate does not square his Further, Cate’s opinion that AIMS will In light of the foregoing, the Court finds that Plaintiffs 22 have shown that Defendants have failed to implement an effective 23 system for investigating and disciplining violations of the ARP 24 25 26 27 28 23 The OIG’s report of February 2021 was published after Cate wrote his declarations in connection with the present motion, but the OIG’s January 2019 report was available on the OIG’s website at the time that Cate wrote his declarations. Indeed, Cate states in his second declaration that he reviewed this report. See Cate Decl., List of Documents Reviewed at 4, Docket No. 316060. 34 1 and ADA. 2 orders. 3 B. 4 5 6 7 8 United States District Court Northern District of California 9 10 This constitutes a violation of the Court’s prior Defendants failed to log alleged violations of the ARP and ADA In 2012, the Court ordered Defendants to track and investigate all allegations of violations of the ARP and ADA. Order, Docket No. 2180. In December 2014, the Court clarified Defendants’ obligations to track allegations of violations of the ARP, the ADA, and the Court’s prior orders and injunctions as follows: Defendants, their agents and employees (Defendants) shall track any allegation that any employee of the Department of Corrections and Rehabilitation was responsible for any member of the Plaintiff class not receiving access to services, programs, activities, accommodations or assistive devices required by any of the following: the Armstrong Remedial Plan, the Americans with Disabilities Act or this Court’s prior orders. Allegations to be tracked include, but are not limited to, those received from CDCR staff, prisoners, Plaintiffs’ counsel, administrative appeals and third parties. All such allegations shall be tracked, even if the non-compliance was unintentional, unavoidable, done without malice, done by an unidentified actor or subsequently remedied. 11 12 13 14 15 16 17 18 19 20 21 Order Modifying 2007 Injunction at 1, Docket No. 2479 (emphasis 22 added). 23 In its order of September 8, 2020, the Court modified its 24 prior orders and injunctions to require Defendants to also track 25 allegations of violations of the ADA’s anti-retaliation and anti- 26 interference provisions, on the ground that the Court’s intent at 27 the outset of the remedial phase of this litigation was to 28 require Defendants to operate their facilities and programs in 35 1 accordance with the ADA and RA. 2 34-35, Docket No. 3059. United States District Court Northern District of California 3 Order of September 8, 2020, at Plaintiffs have shown, and Defendants do not dispute, that 4 Defendants failed to log many of the allegations of violations of 5 the ARP that Plaintiffs’ counsel raised in their advocacy 6 letters, including (1) allegations that staff denied disabled 7 inmates reasonable accommodations for their disabilities24; and 8 (2) allegations that disabled inmates suffered physical abuse by 9 staff after requesting reasonable accommodations25. 10 Reply Decl. ¶¶ 239-49, Docket No. 3108-1. 11 violation of the Court’s prior orders. 12 C. 13 14 See Grunfeld This constitutes a Defendants do not timely initiate or complete investigations of alleged violations of the ARP and ADA In 2012, the Court required Defendants to initiate an 15 investigation of any violation of the ARP, the ADA, or the orders 16 of this Court “within ten business days of receiving notice of 17 such allegation” and to complete any such investigation “as 18 promptly as possible.” 19 Order at 17, 21, Docket No. 2180. Plaintiffs have shown, and Defendants do not dispute, that 20 Defendants often fail to initiate, or delay in initiating, 21 investigations of alleged violations of the ARP and ADA. 22 23 24 25 26 27 28 24 These allegations include that, during a body search, an officer at COR kicked and then slammed to the ground an inmate who requested an accommodation for his mobility disability during the search. Grunfeld Reply Decl., Ex. 33 ¶¶ 12-17, Docket No. 3108-1. 25 These allegations include that an inmate with mobility impairments who was undergoing chemotherapy was thrown out of his wheelchair by an officer after he requested to be housed closer to the medication window because he could not walk long distances. Freedman Decl., Ex. 53 ¶¶ 15-23, Docket No. 2947-5. 36 United States District Court Northern District of California 1 In January 2020, the OIG concluded that CDCR had been 2 untimely in responding to, and in initiating investigations of, 3 allegations of staff misconduct directed at disabled and other 4 vulnerable inmates. 5 1. 6 Plaintiffs’ counsel to CDCR in 2019 and concluded that each 7 described “serious” misconduct that, “if true, would result in 8 disciplinary action for the subject employees.” 9 allegations included that an officer assaulted an elderly Grunfeld Decl., Ex. J at 1, Docket No. 2922- The OIG reviewed CDCR’s responses to advocacy letters sent by Id. The 10 disabled inmate; that a disabled inmate requested, but was 11 denied, an ADA shower and an officer threatened to have the 12 inmate attacked if he filed a complaint; and that an inmate with 13 a mobility disability requested, but was denied, a handcuffing 14 accommodation and was then thrown to the ground by an officer. 15 Id. at 3-23. 16 through,” including that CDCR “ignored” many allegations, failed 17 to investigate dozens of allegations, and failed to refer 18 pertinent information to the Office of Internal Affairs when 19 appropriate. 20 Court’s prior orders. 21 D. The OIG found a “pervasive lack of timely follow Id. at 1. This constitutes a violation of the 22 Defendants do not timely provide to Plaintiffs’ counsel information about investigations of alleged violations of the ARP and ADA 23 In 2012, the Court ordered Defendants to provide Plaintiffs’ 24 counsel with access to the results of investigations of alleged 25 violations of the ARP or the Court’s orders, including all 26 sources of information relied on to substantiate or refute the 27 allegations. Order at 18, Docket No. 2180. 28 37 Plaintiffs have shown, and Defendants do not dispute, that 1 2 Defendants have failed to provide, or have delayed in providing, 3 them with information regarding the status or results of 4 investigations of alleged violations of the ARP. For example, on September 25, 2020, Defendants agreed to United States District Court Northern District of California 5 6 provide in a spreadsheet information about investigations, 7 findings of misconduct, and discipline imposed in connection with 8 168 alleged incidents of staff misconduct against disabled 9 inmates at LAC, COR, KVSP, and CCI that were described in inmate 10 declarations. 11 November 13, 2020, Defendants produced information with respect 12 to only ninety-eight of the 198 allegations of misconduct and did 13 not provide information as to seventy of the allegations. 14 7. 15 the requested information for the seventy incidents. 16 4 to Grunfeld Sur-Reply Decl., Docket No. 3169-4. 17 the ninety-eight allegations for which Defendants provided 18 information, Defendants’ responses show that that they failed to 19 investigate seven of the allegations (or seven percent). 20 Grunfeld Decl. ¶ 4, Docket No. 3169-4. On Id. at Defendants did not provide a date by which they would produce See Ex. 1, Notably, of As another example, Defendants agreed to provide information 21 about investigations, findings of misconduct, and discipline 22 imposed in connection with each distinct allegation of misconduct 23 contained in Plaintiffs’ tour reports from 2018 to 2020 for LAC, 24 COR, KVSP, and CCI. 25 information for forty-four of the fifty-three allegations, or a 26 date by which they would do so. 27 Decl., Docket No. 3169-4. Id. ¶ 5. Defendants did not provide any See Ex. 2 to Grunfeld Sur-Reply 28 38 These failures by Defendants violate the Court’s prior 1 2 orders. 3 E. 4 In 2007, the Court required Defendants to “refer individuals 5 United States District Court Northern District of California Defendants’ tracking systems do not enable them to identify staff who repeatedly violate the ARP or other information critical to monitoring their compliance 6 with repeated instances of non-compliance to the Office of 7 Internal Affairs for investigation and discipline, if 8 appropriate.” 9 process, the Court ordered Defendants in 2012 to track Order at 7, Docket No. 1045. To facilitate this 10 allegations of violations of the ARP and the Court’s orders, 11 including “the number of prior allegations of non-compliance 12 against the involved employees or employees.” 13 Docket No. 2180. Order at 16-17, In its report of February 16, 2021, the OIG stated that, 14 15 “[d]espite having numerous information systems that contain data 16 related to the staff misconduct process, [CDCR] lacks the ability 17 to produce reports that are capable of identifying the names of 18 all staff accused of misconduct or the names of all staff who 19 were found to have violated policy as well as several other types 20 of critical information.” Defendants’ tracking systems are, therefore, in violation of 21 22 23 Docket No. 3205 at 1. the Court’s prior orders. IV. 24 Defendants’ failure to comply with their accountability obligations is resulting in ongoing violations of disabled inmates’ rights under the ARP and ADA 25 As discussed in the preceding sections, Plaintiffs have 26 shown that Defendants have violated the ARP and ADA by failing to 27 provide reasonable accommodations to, or by interfering with the 28 ADA rights of, qualified inmates with disabilities at LAC, COR, 39 1 SATF, CIW, and KVSP. 2 have violated their accountability obligations by failing to 3 track alleged violations of the ARP and ADA; failing to promptly 4 and properly investigate alleged violations of the ARP and ADA; 5 failing to provide Plaintiffs’ counsel with information about the 6 status and results of their investigations; and failing to 7 implement an effective system for holding wardens and other staff 8 accountable for non-compliance with the ARP and ADA. United States District Court Northern District of California 9 Plaintiffs have also shown that Defendants Plaintiffs’ expert, Eldon Vail, opines that CDCR’s 10 ineffective system for holding staff accountable for misconduct 11 leads to and perpetuates a staff culture in which staff target 12 inmates with disabilities for abuse, mistreatment, retaliation. 13 See, e.g., Vail Decl. ¶ 9, Docket No. 3106-7. 14 if inmates and staff know that nothing will happen to staff who 15 abuse inmates, then incarcerated people become reluctant to 16 report misconduct and staff become less likely to stop the 17 pattern of abuse. 18 Vail opines that, Id. The Court finds Vail’s opinions to be credible and 19 consistent with other evidence in the record. They are 20 consistent with the OIG’s finding that “an inadequately 21 functioning staff complaint process that lacks independence 22 fosters distrust among inmates[.]” 23 Docket No. 2922-1. 24 describe a staff culture at LAC, COR, SATF, CIW, and KVSP of 25 staff targeting inmates with disabilities and other vulnerable 26 inmates for mistreatment, abuse, retaliation, and other improper 27 behavior that, among other things, violates the ARP and ADA. 28 See, e.g., Grunfeld Reply Decl., Ex. 8 ¶¶ 34-35, Docket No. 3108- Grunfeld Decl., Ex. GG at 2, Further, as noted above, many declarants 40 United States District Court Northern District of California 1 1; Freedman Decl., Ex. 29 ¶ 36; Freedman Decl., Ex. 33 ¶ 29, 2 Docket No. 2947-5; Grunfeld Reply Decl., Ex. 70 ¶ 45, Docket No. 3 3109-1; Grunfeld Reply Decl., Ex. 43 ¶ 13, Docket No. 3108-1; 4 Grunfeld Decl., Ex. 41 ¶ 20, Docket No. 3108-1; Freedman Decl., 5 Ex. 61 ¶¶ 33-36, Docket No. 2947-5; Freedman Decl., Ex. 35 ¶ 21, 6 Docket No. 2947-5. 7 these declarations are remarkably consistent even though the 8 declarants reside at different prisons and in different locations 9 within each prison. 10 The descriptions of the staff culture in The Court finds that this lends credibility to the declarations and to Vail’s opinions. 11 The data produced by Defendants also support the notion that 12 a staff culture exists in which staff target disabled inmates for 13 abuse. 14 abuse by inmates, only a relatively small number of the incidents 15 have resulted in discipline, and that out of the incidents that 16 have resulted in discipline, disabled inmates are 17 overrepresented. 18 dozens of allegations of abuse at LAC, there were six staff 19 misconduct incidents at LAC involving incarcerated people that 20 resulted in discipline, and three of the six incidents (or fifty 21 percent) involved misconduct directed at an Armstrong or Coleman 22 class member.26 The data show that, despite the dozens of allegations of For example, from 2017 to 2020, despite the Grunfeld Decl. ¶ 14, Docket No. 3169-4. At COR, 23 24 25 26 27 28 26 These figures are based on data that Defendants produced to Plaintiffs in their interrogatory responses. The criteria that Plaintiffs used to calculate these figures is described in detail in the declaration of Gay Grunfeld. Defendants object to the Court’s consideration of the figures on the grounds that the criteria used to generate the figures is “nebulous” and that Plaintiffs’ counsel lack expertise in data analysis. The Court overrules this objection because Defendants do not dispute that the underlying data came from their interrogatory responses. 41 1 from 2017 to 2020, there were eighteen staff misconduct incidents 2 involving incarcerated people that resulted in discipline, and 3 all of them (one hundred percent) involved misconduct directed at 4 an Armstrong or Coleman class member. 5 2017 to 2020, there were twenty-four staff misconduct incidents 6 involving incarcerated people that resulted in discipline, and 7 sixteen of them (or sixty-six percent) involved misconduct 8 directed at an Armstrong or Coleman class member. United States District Court Northern District of California 9 Id. ¶ 15. At KVSP, from Id. ¶ 17. Defendants’ experts, Cate, Baldwin, and Warner, opine that 10 “disabled inmates” are not being targeted by prison staff for 11 conduct that is violative of the ARP and ADA because of their 12 disabilities. 13 not persuaded by these experts’ opinions on this issue for the 14 following reasons. 15 inmate” is under-inclusive, as it excludes inmates such as 16 Coleman class members who have been designated as EOP by virtue 17 of the severity of their mental impairments. 18 definitional limitation, these experts appear to have excluded 19 from their analysis the experiences of inmates who suffer from 20 mental impairments that are covered under the ARP. 21 experts do not explain how their opinions can be reconciled with 22 the data discussed in more detail above, which shows that Cate Decl. ¶ 11, Docket No. 3083-5. The Court is First, the experts’ definition of “disabled As a result of this Second, the 23 24 25 26 27 28 Further, the calculations from which the figures were derived do not require any expertise; the calculations involve parsing data from Defendants’ interrogatory responses and performing basic arithmetic, as described in detail in the Grunfeld Declaration. Finally, Defendants have not shown that the figures in question are inaccurate or are inconsistent with the data contained in their interrogatory responses. 42 1 disabled inmates are overrepresented in incidents of staff 2 misconduct that resulted in discipline. 3 V. United States District Court Northern District of California 4 Additional remedial measures are necessary to end the ongoing violations of the ARP and ADA 5 For the reasons discussed in the preceding section, the 6 policies, procedures, and monitoring mechanisms currently in 7 place, despite recent modifications made by Defendants (including 8 the implementation of AIMS), have proven to be ineffective at 9 bringing Defendants into compliance with the ARP and ADA. 10 Accordingly, the Court finds that the implementation of 11 additional remedial measures at LAC, COR, SATF, CIW, and KVSP is 12 necessary to improve the effectiveness of the system for 13 investigating and disciplining violations of the ARP and ADA and 14 to end the ongoing violations of the ARP and ADA. 15 Defendants contend that further remedial measures are 16 premature at this juncture because investigations of some 17 disabled inmates’ allegations have not yet been completed. 18 Court is not convinced that the pendency of the investigations 19 warrants a delay in implementing additional remedial measures. 20 Defendants have provided no timeline for when the Court could 21 expect the investigations to be completed; based on the record, 22 it seems reasonable to expect that investigations could take many 23 months, if not years. 24 CDCR’s response to disabled inmates’ allegations of staff 25 misconduct, noted that CDCR’s investigations of such allegations 26 had been inordinately delayed or abandoned. 27 reluctant to allow further violations of disabled inmates’ rights The As discussed above, the OIG, in reviewing 28 43 The Court is 1 under the ARP and ADA to occur while the investigations are 2 pending. United States District Court Northern District of California 3 Defendants’ expert, Matthew Cate, opines that no additional 4 remedial measures are necessary because “disabled inmates can 5 request accommodations in a variety of ways” and “[e]ven if class 6 members were afraid to request accommodations from officers due 7 to officer wrongdoing, they still have all of the other ways 8 . . . to request accommodations that do not involve the 9 officers.” Cate Decl. ¶ 94, Docket No. 3083-5. The Court is not 10 persuaded by this argument, because it misses the point. 11 Plaintiffs have shown that the ongoing violations of the ARP and 12 ADA are the consequence of the ineffectiveness of the system for 13 investigating and disciplining violations of the ARP and ADA and 14 the resulting staff culture of targeting inmates with 15 disabilities. 16 the ongoing violations are the result of a lack of access to 17 methods for requesting accommodations. 18 cannot conclude that providing additional methods to disabled 19 inmates for requesting accommodations, as Defendants propose, 20 would end the ongoing violations of the ARP and ADA. 21 Defendants have presented no evidence to show that Accordingly, the Court Plaintiffs request that the Court require Defendants to 22 develop a plan within thirty days to implement the additional 23 remedial measures described in more detail below. 24 be implemented within forty-five days after the parties meet and 25 confer. 26 The plan would See Proposed Order at 17-21, Docket No. 2948-6. The Court finds that requiring Defendants to design, and 27 ultimately implement, a plan that requires them to adopt a 28 combination of certain of the remedial measures that Plaintiffs 44 United States District Court Northern District of California 1 propose, with modifications, as discussed below, is necessary to 2 prevent further violations of the ARP and disabled inmates’ ADA 3 rights. 4 tailored to improve policies and procedures for supervising 5 staff’s interactions with inmates, investigating staff 6 misconduct, and disciplining staff by enhancing the process for 7 gathering and reviewing evidence that can be used to hold staff 8 accountable for any violations of the ARP and disabled inmates’ 9 ADA rights. These additional remedial measures are intended and These additional measures, when considered as a 10 whole, constitute an incremental expansion of processes and 11 systems that are already in place pursuant to the Court’s prior 12 orders and injunctions. 13 14 1. Surveillance cameras Plaintiffs request that (1) Defendants install surveillance 15 cameras in all areas at the prisons at issue to which 16 incarcerated people have access, including, but not limited to, 17 all exercise yards, housing units, sally-ports, dining halls, 18 program areas, and gyms, within ninety days; (2) CDCR adopt 19 policies and procedures regarding the use of camera footage, 20 including requirements that all footage be retained for a minimum 21 of ninety days, that footage of use of force and other triggering 22 events be retained indefinitely, and that footage, when 23 available, be reviewed and considered as part of the 24 investigation of the incident; and (3) CDCR train staff regarding 25 how and when to request that footage be retained and reviewed. 26 Both sides and their experts agree that the installation of 27 additional surveillance cameras would help reduce misconduct and 28 would facilitate the investigation of any misconduct that does 45 1 occur. 2 (“[I]nstalling cameras would be beneficial to every institution 3 in the CDCR system. 4 part of inmates and officers alike. 5 to investigate misconduct should it occur.”). United States District Court Northern District of California 6 See, e.g., Cate Decl. ¶ 97, Docket No. 3083-5. It would serve to deter misconduct on the It would also make it easier Defendants nevertheless oppose Plaintiffs’ request to require 7 them to install surveillance cameras based on the following 8 grounds: (1) certain facilities already have camera coverage, and 9 Defendants are moving forward to procure and deploy cameras at 10 RJD and at two facilities in LAC; (2) the installation of cameras 11 is not necessary to correct the violations of the ARP and ADA 12 shown; and (3) even if additional fixed cameras were necessary, 13 they should not be installed anywhere other than yards that house 14 the most vulnerable inmates. 15 The Court is not persuaded. Defendants’ arguments fail to 16 acknowledge that violations of disabled inmates’ rights under the 17 ARP and ADA are likely to continue to take place throughout LAC, 18 COR, SATF, CIW, and KVSP in the absence of surveillance cameras, 19 and that this is unacceptable. 20 to comply with the ADA and ARP after the Court ordered them to 21 implement lesser measures, the Court finds that the installation 22 of surveillance cameras at LAC, COR, SATF, CIW, and KVSP is 23 necessary and that it must be done as soon as possible. 24 Defendants already have a contract in place with a vendor for the 25 installation of surveillance cameras at CDCR institutions through 26 June 2023. 27 contract should facilitate the installation and deployment 28 process. In light of Defendants’ failure Diaz Decl. ¶ 42; Macomber Decl. ¶ 12. 46 Further, This existing 1 Defendants have not raised an objection in their briefs to 2 Plaintiffs’ request that their plan include policies and 3 procedures regarding the use of camera footage and training for 4 staff regarding the same, as discussed in more detail above. 5 the absence of a showing to the contrary, the Court finds that 6 policies, procedures, and training on the use of camera footage 7 are necessary and should be a part of Defendants’ plan. 2. 8 United States District Court Northern District of California 9 Body cameras Plaintiffs request that CDCR purchase and begin using body- 10 worn cameras for all correctional officers at the prisons at 11 issue within sixty days. 12 In Defendants oppose the request on the ground that their 13 expert, Matthew Cate, opines that (1) body cameras are not 14 necessary to redress the ARP and ADA violations shown; (2) they 15 are expensive; and (3) fixed cameras are superior to body 16 cameras. 17 Docket No. 3083-5. Br. at 18-19, Docket No. 3082-0; Cate Decl. ¶ 99, 18 The Court finds that body cameras are likely to improve 19 investigations of misconduct by staff and to reduce the incidence 20 of violations of disabled inmates’ rights under the ARP and ADA. 21 They are, therefore, necessary and should be deployed at LAC, 22 COR, SATF, CIW, and KVSP as soon as possible. 23 the opinions of Plaintiffs’ expert, which Defendants have not 24 meaningfully rebutted, to be persuasive. 25 based on research and studies on the topic, that the use of body 26 cameras in correctional facilities has resulted in “increased 27 officer and inmate safety, fewer uses of force,” and improved 28 investigations of internal misconduct by officers, particularly 47 The Court finds Eldon Vail opines, 1 when used in conjunction with surveillance cameras. 2 ¶¶ 64-66, Docket No. 3023-9. 3 when cameras should be turned on or off, and privacy concerns, 4 can be addressed through policymaking and training. 5 68. United States District Court Northern District of California 6 Vail Decl. He further opines that issues about Id. ¶¶ 67- Defendants’ expert, Matthew Cate, does not provide any basis 7 for his opinion that the cost of body cameras would be 8 “prohibitive.” 9 this opinion no weight. Cate Decl. ¶ 99. Accordingly, the Court gives Defendants also have not shown that 10 procuring the body-worn cameras in the time frame that Plaintiffs 11 have proposed would not be feasible. 12 In light of the foregoing, the Court finds that it would be 13 appropriate to require Defendants to procure and deploy body-worn 14 cameras at LAC, COR, SATF, CIW, and KVSP in the time frame that 15 Plaintiffs have proposed. 16 17 18 3. Processes for complaints, investigations, discipline, and oversight Plaintiffs request that Defendants be required to develop a 19 plan to reform the staff misconduct complaint, investigation, and 20 discipline process to ensure (1) that CDCR completes unbiased, 21 comprehensive investigations into all allegations of staff 22 misconduct in which the victim was a disabled inmate; (2) that 23 CDCR imposes appropriate and consistent discipline against 24 employees who engage in misconduct against disabled inmates; and 25 (3) that employees who engage in criminal misconduct against 26 disabled inmates are appropriately investigated and, if 27 warranted, referred for prosecution or reassigned. 28 also request that CDCR headquarters be required to exercise 48 Plaintiffs United States District Court Northern District of California 1 oversight over all staff misconduct complaints, use of force 2 reviews, and related staff disciplinary proceedings at the 3 prisons at issue in which an employee is accused of engaging in 4 misconduct against an incarcerated person, and to conduct 5 quarterly interviews of randomly-selected incarcerated people at 6 the prisons at issue using the methodology and interview 7 questionnaire utilized by the December 2018 investigators who 8 interviewed inmates at RJD for the Bishop Report. 9 Defendants oppose these requests, arguing that CDCR already 10 has existing processes, policies, and oversight systems in place 11 to investigate misconduct and discipline employees who commit it, 12 which they contend, based on the opinions of their expert, 13 Matthew Cate, are effective mechanisms. 14 Cate Decl. ¶¶ 79–96, 98. As discussed above, the Court gives little weight to Cate’s 15 opinions that the current systems for investigating and 16 disciplining violations of the ARP and ADA are effective, because 17 such opinions do not take into account the OIG’s findings that 18 the statewide system (with AIMS included) is prone to generating 19 unreliable investigation results with respect to staff misconduct 20 allegations because of the reviewers’ lack of independence and 21 the poor quality of the investigations. 22 The Court has found that it is necessary to stop ongoing 23 violations of the ARP and disabled inmates’ ADA rights at LAC, 24 COR, SATF, CIW, and KVSP, and that the current policies and 25 procedures are incapable of achieving that. 26 Court finds that requiring Defendants to craft a plan to modify 27 the current policies, procedures, and oversight of staff 28 49 Accordingly, the 1 complaints to achieve compliance with the ARP and ADA at LAC, 2 COR, SATF, CIW, and KVSP is necessary and appropriate. 3 United States District Court Northern District of California 4 4. Third-party monitoring Plaintiffs request that the additional remedial measures 5 include the appointment of an expert pursuant to Federal Rule of 6 Evidence 706 to monitor Defendants’ implementation of their plan 7 to reform the staff misconduct complaint, investigation, and 8 discipline policies and procedures, and that the expert have 9 access to documents necessary to conduct its monitoring. 10 Defendants oppose this request because their expert, Matthew 11 Cate, opines that the OIG already has oversight of staff 12 misconduct investigations and that the modification of the 13 current system is unnecessary and would be burdensome. 14 Decl. ¶¶ 104-05. 15 The Court is not persuaded by Cate’s opinions. Cate As discussed 16 above, the current system, although subject to OIG oversight, has 17 been ineffective in ending the ongoing violations of the ARP and 18 ADA at LAC, COR, SATF, CIW, and KVSP, and for that reason, 19 modifying it with the goal of improving its effectiveness is 20 necessary. 21 an expert is necessary and appropriate. 22 23 24 5. Accordingly, the Court finds that the appointment of Information-sharing with Plaintiffs’ counsel and the Court Expert Plaintiffs request that Defendants share with Plaintiffs’ 25 counsel and the Court’s expert all documents related to staff 26 misconduct complaints at the prisons at issue in which the 27 alleged victim is a disabled inmate, as well as monthly written 28 50 1 updates regarding the implementation of any additional remedial 2 measures. 3 Defendants have not raised an objection in their briefs to 4 this request. 5 Court finds that requiring the sharing of documents as described 6 above is necessary for the effective monitoring of Defendants’ 7 implementation of the additional remedial measures at LAC, COR, 8 SATF, CIW, and KVSP and is appropriate. 6. United States District Court Northern District of California 9 10 In the absence of a showing to the contrary, the Supervisory staffing Plaintiffs request that CDCR significantly increase 11 supervisory staff on all watches on all yards at the prisons at 12 issue and create non-uniformed supervisory positions in each 13 housing unit. 14 Defendants oppose this request on the grounds that (1) it is 15 unnecessary, as some housing units do not house disabled inmates, 16 and (2) existing staff could provide additional supervision in 17 areas where disabled inmates are housed. 18 The current level of staffing has not been effective at 19 stopping the ongoing violations of the ARP and ADA at LAC, COR, 20 SATF, CIW, and KVSP. 21 CDCR to increase managerial presence at LAC, COR, SATF, CIW, and 22 KVSP in the form of additional sergeants is necessary. 23 Accordingly, the Court finds that requiring The Court declines at this time to require CDCR to create 24 non-uniformed supervisory positions at LAC, COR, SATF, CIW, and 25 KVSP. 26 such non-uniformed positions, and the Court finds that there is 27 insufficient evidence in the record outside of the experts’ The parties’ experts disagree about the effectiveness of 28 51 1 conflicting declarations to make a determination as to whether 2 non-uniformed supervisory positions are needed. 7. United States District Court Northern District of California 3 Training 4 Plaintiffs request that CDCR develop and implement human 5 rights, de-escalation, and cultural training for all custody, 6 mental health, and medical staff at the prisons at issue to 7 include discussion of reporting requirements, whistleblowing, 8 non-retaliation, and treatment of incarcerated people as 9 patients. 10 Defendants object to requiring them to provide staff with 11 additional training beyond what they already provide on the 12 ground that doing so would be unnecessary and intrusive. 13 In light of the evidence discussed above showing that the 14 measures that CDCR has implemented to date, including the 15 training that CDCR current provides to its staff, have proven to 16 be ineffective at stopping violations of the ARP and disabled 17 inmates’ ADA rights, the Court finds that it is necessary to 18 require Defendants to develop additional training programs for 19 staff and supervisors at LAC, COR, SATF, CIW, and KVSP that are 20 tailored to achieving staff compliance with the ARP and ADA. 21 22 8. Data collection and early-warning system Plaintiffs request that CDCR develop an electronic system 23 for tracking all incidents at the prisons at issue by date, time, 24 location, staff involved, and incarcerated people involved, that 25 includes information about whether inmates are disabled, any 26 injuries they suffered, and related medical records. 27 28 Defendants oppose this request, on the grounds that their current systems are capable of serving as an early-warning 52 United States District Court Northern District of California 1 system. During the hearing on December 8, 2020, the Court asked 2 Defendants to identify and describe the current processes that 3 could be used as an early-warning system, and Defendants failed 4 to do so. 5 above, the OIG has found, and Defendants do not dispute, that 6 Defendants’ tracking systems are deficient and incapable of 7 generating reports that could help Defendants identify critical 8 information necessary to track past staff misconduct incidents 9 and prevent future ones. Tr. at 35-36, Docket No. 3184. Further, as discussed See OIG Report at 1, Docket No. 3205. Accordingly, the Court finds that requiring Defendants to 10 11 develop the electronic tracking system that Plaintiffs propose is 12 necessary. 9. 13 Pepper spray Plaintiffs request a policy requiring that all pepper spray 14 15 canisters at the prisons at issue be weighed before and after 16 use. 17 Defendants oppose this request because their expert opines 18 that it would be unnecessarily burdensome and would not help 19 Defendants determine whether pepper spray was overused, as 20 cannisters are not reused and the amount of pepper spray required 21 varies depending on the weather and the distance from the target. 22 See Cate Decl. ¶¶ 31-32. 23 The Court is persuaded by Defendants’ argument that the 24 weighing of pepper spray cans would not be conducive to reducing 25 its overuse. 26 which shows that pepper spray was used against disabled inmates 27 where there was no evidence that the inmates posed an imminent 28 threat to staff or other inmates, or that the use of pepper spray However, in light of the evidence discussed above, 53 1 served a legitimate penological interest, the Court finds that it 2 is necessary to require CDCR to craft a plan to modify its 3 policies to more effectively monitor and control the use of 4 pepper spray by staff with respect to disabled inmates at LAC, 5 COR, SATF, CIW, and KVSP. 6 United States District Court Northern District of California 7 10. Anti-retaliation Plaintiffs request that CDCR be required to put an end to 8 retaliation against disabled inmates at the prisons at issue who 9 report staff misconduct and to ensure complainants’ safety. 10 Defendants did not object to this request in their briefs. 11 The Court finds that requiring CDCR to take steps to stop 12 retaliation in violation of the ADA at LAC, COR, SATF, CIW, and 13 KVSP is necessary. 14 LEGAL STANDARD 15 “It is well established that the district court has the 16 inherent authority to enforce compliance with a consent decree 17 that it has entered in an order, to hold parties in contempt for 18 violating the terms therein, and to modify a decree.” 19 U.S. Dep’t of Veterans Affairs, 494 F.3d 846, 860 (9th Cir. 20 2007); Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 441 (2004) 21 (“Federal courts are not reduced to approving consent decrees and 22 hoping for compliance. 23 enforced.”). 24 modify its own injunctions “if the circumstances, whether of law 25 or fact, obtaining at the time of its issuance have changed, or 26 new ones have since arisen.” 27 AFL-CIO v. Wright, 364 U.S. 642, 647 (1961); see also United 28 States v. Swift & Co., 286 U.S. 206, 114 (1932) (“A continuing Nehmer v. Once entered, a consent decree may be Further, a district court has “wide discretion” to Sys. Fed’n No. 91, Ry. Emp. Dep’t, 54 1 decree of injunction directed to events to come is subject always 2 to adaptation as events may shape the need”). United States District Court Northern District of California 3 The interpretation of a consent decree is for the court, and 4 not the parties subject to the decree. Nehmer, 494 F.3d at 860 5 (“Although a party may ask the district court to issue an order 6 clarifying, enforcing, or modifying a decree and suggest a 7 favored interpretation, a party—whether a private or public 8 entity—cannot dictate the meaning of the decree to the court or 9 relieve itself of its obligations under the decree without the 10 district court’s approval.”). 11 interpreting a consent decree is particularly wide where the 12 court has been overseeing a remedial decree for many years. 13 Armstrong v. Schwarzenegger, 622 F.3d at 1073 (holding that a 14 court that has been “overseeing complex institutional reform 15 litigation for a long period of time” is entitled to “heightened 16 deference”). 17 The court’s discretion in Id.; Any prospective injunctive relief granted or approved by the 18 Court affecting prison conditions must comply with the Prison 19 Litigation Reform Act (PLRA). 20 (providing that courts “shall not grant or approve any 21 prospective relief [with respect to prison conditions] unless the 22 court finds that such relief is narrowly drawn, extends no 23 further than necessary to correct the violation of the Federal 24 right, and is the least intrusive means necessary to correct the 25 violation of the Federal right”). 18 U.S.C. § 3626(a)(1)(A) 26 27 28 55 CONCLUSIONS OF LAW 1 2 3 4 United States District Court Northern District of California 5 I. Plaintiffs have shown that Defendants violated the ARP, the ADA, and the Court’s prior orders and injunctions A. Coleman class members designated as EOP are qualified inmates with a disability under the ARP and ADA Section I of the ARP requires Defendants to comply with the 6 ADA’s anti-discrimination and access provisions, 42 U.S.C. § 7 1213227, with respect to any “qualified inmate or parolee with a 8 disability as defined in Title 42 of the United States Code, 9 Section 12102[.]” As discussed above, Section II.A of the ARP 10 defines a “qualified inmate or parolee” as “one with a permanent 11 physical or mental impairment which substantially limits the 12 inmate/parolee’s ability to perform a major life activity,” ARP 13 at 1, Docket No. 681, and Section II.B. of the ARP defines a 14 “permanent disability or impairment” as one that is not expected 15 to improve within six months, id. at 2. 16 or limit the conditions that may constitute a covered “mental 17 impairment.” 18 impairment” based on the ADA’s provisions, which are incorporated 19 by reference into the ARP. 20 The ARP does not define Accordingly, the Court interprets the term “mental Under the ADA, a disability is a “physical or mental 21 impairment that substantially limits one or more major life 22 activities of such individual[.]” 23 ADA provides that the term disability “shall be construed in 42 U.S.C § 12012(1)(A). The 24 25 26 27 28 27 The language in Section 1 of the ARP mirrors the language of Title II of the ADA, 42 U.S.C. § 12132, which provides, “No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 56 1 favor of broad coverage of individuals[.]” 2 12012(4)(A). United States District Court Northern District of California 3 42 U.S.C § The mental disorders from which EOP Coleman class members 4 suffer include depression, anxiety and panic attacks, bipolar 5 disorder, and post-traumatic stress disorder. 6 more detail in the Findings of Fact, above, these disorders cause 7 EOP Coleman class members to suffer from acute symptoms that 8 prevent them from functioning in the general prison population 9 and to require special extensive mental-health treatment. As discussed in See 10 CDCR Mental Health Services Delivery System Program Guide, 2018 11 Revision, at 7-8, Docket No. 5864-1, Coleman v. Newsom, Case No. 12 90-cv-00520 (E.D. Cal.); see also Order at 5, Docket No. 5131, 13 Coleman v. Newsom, Case No. 90-cv-00520 (E.D. Cal.) (noting that 14 Coleman class members designated as EOP suffer from serious 15 mental disorders that render them “unable to function in the 16 general prison population”). 17 which EOP Coleman class members suffer substantially limit one or 18 more of their major life activities and, therefore, fall within 19 the scope of “disability” under the ADA. 20 Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1088 (9th Cir. 2001) 21 (noting that “stress and depression can be considered mental 22 impairments” under the ADA); Mustafa v. Clark County Sch. Dist., 23 157 F.3d 1169, 1174–75 (9th Cir. 1998) (per curiam) (holding that 24 plaintiff could be substantially limited in a major life activity 25 because he suffered from depression, post-traumatic stress 26 disorder, and panic attacks); Mattice v. Mem’l Hosp. of S. Bend, 27 Inc., 249 F.3d 682, 684 (7th Cir. 2001) (holding that plaintiff 28 stated a claim under the ADA based on allegations that major life As such, the mental disorders from 57 See, e.g., Snead v. 1 activities were significantly impaired by “the existence of and 2 care and treatment for panic disorder, severe depression and 3 suicidal ideation”). 4 as EOP suffer from symptoms that are episodic does not preclude a 5 finding that they suffer from a disability within the meaning of 6 the ADA. 7 episodic or in remission is a disability if it would 8 substantially limit a major life activity when active.”). United States District Court Northern District of California 9 10 11 12 13 That some Coleman class members designated See 42 U.S.C § 12012(4)(D) (“An impairment that is Accordingly, Coleman class members who are designated as EOP are qualified inmates with disabilities under the ARP and ADA. B. Staff denied qualified inmates with disabilities reasonable accommodations As discussed above, the Court retained jurisdiction to 14 enforce Defendants’ compliance with the ARP. 15 Injunction at 5, Docket No. 158. 16 Defendants to comply with the ADA’s anti-discrimination and 17 access provisions, 42 U.S.C. § 12132. 18 Remedial Order and Section I of the ARP requires To prove that a public program or service violated § 12132, 19 a plaintiff must show: (1) that he or she is a “qualified 20 individual with a disability”; (2) that he or she was either 21 excluded from participation in or denied the benefits of a public 22 entity’s services, programs, or activities, or was otherwise 23 discriminated against by the public entity; and (3) that such 24 exclusion, denial of benefits, or discrimination was by reason of 25 the disability. 26 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 2001). 27 The Ninth Circuit has held that the second element of this 28 Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 test can be satisfied where a law enforcement officer could have 58 United States District Court Northern District of California 1 used less force or no force during the performance of his law- 2 enforcement duties with respect to a disabled person. 3 Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 1232-33 4 (9th Cir. 2014), rev’d on other grounds sub nom., City & Cty. of 5 San Francisco, Calif. v. Sheehan, 575 U.S. 600 (2015) (holding 6 that a failure to reasonably accommodate a person’s disability in 7 the course of an investigation or arrest by using unnecessary 8 force, causing the person to suffer “greater injury or indignity 9 in that process than other arrestees,” gives rise to a claim See 10 under § 12132, and that a reasonable jury could conclude that a 11 police officer’s failure to use less force or no force during an 12 arrest of a person with mental illness could constitute a failure 13 to provide a reasonable accommodation in violation of § 12132); 14 Vos v. City of Newport Beach, 892 F.3d 1024, 1037 (9th Cir. 15 2018), cert. denied sub nom. City of Newport Beach, Cal. v. Vos, 16 139 S. Ct. 2613 (2019) (same). 17 context, it follows that the second element of a § 12132 claim 18 can be satisfied where a correctional officer could have used 19 less force or no force during the performance of his or her 20 penological duties with respect to a disabled person.28 When applied in the prison 21 22 23 24 25 26 27 28 28 The OIG’s interpretation of CDCR’s use-of-force policy is consistent with the notion that correctional officers have an obligation under the ADA to reasonably accommodate an inmate’s disabilities when considering the use of force in the performance of their penological duties. See OIG Report, Monitoring the Useof-Force Review Process of the California Department of Corrections and Rehabilitation (July 13, 2020) at 5, Grunfeld Decl., Ex. VV (“According to departmental policy, when determining the best course of action to resolve a particular situation, staff must evaluate the totality of the circumstances, including an inmate’s demeanor, mental health status and medical concerns (if known), and the inmate’s ability to understand and 59 1 2 briefs, nor did they dispute that the second element of a § 12132 3 claim can be satisfied in the manner just described. 4 United States District Court Northern District of California Defendants did not distinguish these authorities in their Here, the first element is met with respect to members of 5 the Armstrong class and members of the Coleman class who are 6 designated as EOP, as these inmates are qualified individuals 7 with a disability within the meaning of the ARP and ADA by virtue 8 of having a physical or mental impairment that substantially 9 limits their ability to perform a major life activity and that is 10 not expected to improve within six months. 11 Plaintiffs have shown, as required by the second and third 12 elements of a claim under § 12132, that staff denied disabled 13 inmates the benefits of their prison’s services, programs, or 14 activities, or otherwise discriminated against them, by reason of 15 their disabilities. 16 At issue is whether As discussed in more detail in the Findings of Fact, the 17 Court has found that staff failed on numerous occasions to 18 reasonably accommodate the disabilities of disabled inmates. 19 example, staff refused disabled inmates’ requests for alternative 20 methods for communication (in the case of deaf inmates); for ADA 21 showers (for inmates with incontinence problems); for 22 accommodations in light of manifestations or symptoms of a severe 23 mental disorder (for Coleman class members designated as EOP); 24 and for adequate transportation methods (for mobility-impaired For 25 26 27 28 comply with orders. Policy further states that staff should attempt to verbally persuade, whenever possible, to mitigate the need for force.”). 60 1 inmates). 2 incidents. United States District Court Northern District of California 3 Accordingly, the second element is met as to these The Court also has found that staff failed to provide 4 reasonable accommodations for disabled inmates’ disabilities when 5 staff failed to use less force or no force when performing their 6 penological duties, such as throwing disabled inmates out of 7 wheelchairs, punching them, kicking them, or using pepper spray 8 where the undisputed evidence shows that the disabled inmates 9 posed no threat to staff that would warrant the use of such 10 11 force. The second element also is met as to these incidents. As to the third element, whether these failures to provide 12 reasonable accommodations were due to the disabled inmates’ 13 disabilities, the Court found that this element is met based on 14 the totality of the evidence. 15 declarations that they believe, based on their own experiences 16 and observations, that staff target inmates with disabilities and 17 other vulnerable inmates for mistreatment. 18 consistent with the other evidence discussed in more detail 19 above, including the opinions of Plaintiffs’ experts. 20 have not proffered any evidence from which the Court could infer 21 an alternative cause for the incidents in question, such as a 22 legitimate penological interest or the lack of a reasonable 23 accommodation that staff could have provided to disabled inmates. 24 Inmates state in their These beliefs are Defendants Accordingly, the Court finds that Defendants have violated 25 Section I of the ARP and the Court’s prior orders by violating 26 § 12132. 27 28 61 C. 1 2 Plaintiffs contend that staff have interfered with disabled 3 inmates’ exercise of their rights under the ARP and ADA in 4 violation of the ADA’s anti-interference provision, 42 U.S.C. 5 § 12203(b), which provides: 6 It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. 7 8 9 United States District Court Northern District of California Staff interfered with the ADA rights of qualified inmates with disabilities 10 11 Section 12203(b) was not expressly incorporated into the 12 ARP. 13 required to comply with § 12203(b), which is a part of the ADA. 14 The stipulated order that the Court entered at the outset of the 15 remedial phase of this litigation makes clear that “the intent” 16 of the parties was “to require defendants to operate programs, 17 activities, services and facilities of the California Department 18 of Corrections in accordance with the Americans with Disabilities 19 Act and § 504 of the Rehabilitation Act of 1973[.]” 20 and Order ¶ 12, Docket No. 148. 21 set forth specific actions that Defendants would take to bring 22 their programs, activities, services, and facilities into 23 compliance with the ADA and the RA. 24 up a system to facilitate disabled inmates’ requests for 25 reasonable accommodations and ADA-related grievances. 26 frustrate the effectiveness of that system by threatening, 27 coercing, or intimidating disabled inmates into foregoing their 28 rights to request reasonable accommodations or file ADA-related Nevertheless, the Court concludes that Defendants are Stipulation The purpose of the ARP was to 62 One such action was to set When staff 1 grievances, that constitutes a violation of the ARP and the 2 Court’s prior orders and injunctions regarding the same. United States District Court Northern District of California 3 The Ninth Circuit has not specifically described the 4 elements required to establish a violation of § 12203(b), nor has 5 it defined what “intimidation” or “coercion” mean in the context 6 of § 12203(b). 7 instructive. 8 Ninth Circuit held that the plaintiff had stated a claim for a 9 violation of § 12203(b) by alleging facts showing that (1) her 10 employer threatened her with an adverse action; (2) the threat 11 had a nexus to her exercise or enjoyment of an ADA right; and (3) 12 she suffered “distinct and palpable” injury as a result of the 13 threat. 14 “could consist of either the giving up of her ADA rights, or some 15 other injury which resulted from her refusal to give up her 16 rights, or from the threat itself.” 17 Id. The Court finds Brown v. City of Tucson to be 336 F.3d 1181, 1191-93 (9th Cir. 2003). There, the The Ninth Circuit held that the requisite injury Id. As discussed in more detail in the Findings of Fact, the 18 Court has found that staff members have interfered with certain 19 disabled inmates’ enjoyment of their rights under the ADA and ARP 20 in violation of § 12203(b) by intimidating, threatening, or 21 coercing them into abstaining from making requests for reasonable 22 accommodations or filing ADA grievances. 23 intimidation, threats, and coercion, these disabled inmates 24 suffered injury in the form of giving up their rights to make 25 requests for reasonable accommodations or to file ADA grievances, 26 or in the form of severe emotional distress. 27 at 1193 (holding that the plaintiff alleged an injury within the 28 meaning of § 12203(b) by alleging that she “suffered short-term 63 As a result of the See Brown, 336 F.3d 1 memory problems and felt extremely stressed, harassed, and 2 pressured” by her employer’s threats). These violations of § 12203(b) constitute violations of the 3 4 ARP and the Court’s prior orders and injunctions regarding the 5 same. 6 D. 7 As discussed above, Plaintiffs have also shown that 8 United States District Court Northern District of California 9 Defendants failed to comply with their Court-ordered accountability obligations Defendants have violated their Court-ordered accountability 10 obligations by failing to track alleged violations of the ARP and 11 ADA; failing to promptly and properly investigate alleged 12 violations of the ARP and ADA; failing to provide Plaintiffs’ 13 counsel with information about the status and results of their 14 investigations; and failing to implement an effective system for 15 holding wardens and other staff accountable for non-compliance 16 with the ARP and ADA. 17 Defendants’ failure to comply with their accountability 18 obligations has led to the violations of disabled inmates’ rights 19 under the ARP and ADA by perpetuating a staff culture that 20 condones staff abuse against disabled inmates. 21 22 23 II. Plaintiffs also have shown that The implementation of additional remedial measures at LAC, COR, SATF, CIW, and KVSP is necessary to ensure Defendants’ compliance with the ARP and ADA The Court retained jurisdiction to enforce the terms of the 24 Remedial Order and Injunction, as well as to issue “any order 25 permitted by law, including contempt, necessary to ensure that 26 defendants comply with the guidelines, policies, procedures, 27 plans and evaluations” required by the Remedial Order and 28 Injunction. Remedial Order and Injunction at 5, Docket No. 158. 64 United States District Court Northern District of California 1 The Court has found that the additional remedial measures 2 discussed above are necessary to ensure that Defendants comply 3 with their obligation under the ARP and ADA to provide reasonable 4 accommodations for qualified inmates with disabilities and to 5 otherwise refrain from discriminating against qualified inmates 6 with disabilities by reason of their disabilities. 7 necessary to effectuate the parties’ and the Court’s intent “to 8 require defendants to operate programs, activities, services and 9 facilities of the California Department of Corrections in They also are 10 accordance with the Americans with Disabilities Act and § 504 of 11 the Rehabilitation Act of 1973[.]” 12 Docket No. 148. 13 orders and injunctions to require Defendants to develop a plan to 14 implement the additional remedial measures that the Court has 15 found to be necessary to bring Defendants into compliance with 16 the ARP and ADA. 17 III. 18 19 Stipulation and Order ¶ 12, Accordingly, the Court will modify its prior The additional remedial measures ordered herein are consistent with the PLRA As noted, the PLRA provides that courts “shall not grant or 20 approve any prospective relief [with respect to prison 21 conditions] unless the court finds that such relief is narrowly 22 drawn, extends no further than necessary to correct the violation 23 of the Federal right, and is the least intrusive means necessary 24 to correct the violation of the Federal right.” 25 3626(a)(1)(A). 26 to “any adverse impact on public safety or the operation of a 27 criminal justice system caused by” the prospective relief. 28 Whether prospective relief is appropriate in light of the PLRA 18 U.S.C. § The Court is required to give substantial weight 65 Id. United States District Court Northern District of California 1 depends on whether the Court finds, in light of the “order as a 2 whole,” “that the set of reforms being ordered—the ‘relief’— 3 corrects the violations of prisoners’ rights with the minimal 4 impact possible on defendants’ discretion over their policies and 5 procedures.”29 Armstrong v. Schwarzenegger, 622 F.3d at 1071. 6 A. Narrowly tailored 7 The Court concludes that the additional remedial measures 8 discussed above meet the requirements of the PLRA. They are 9 narrowly tailored because they require action only with respect 10 to the prisons at which Plaintiffs have shown that Defendants 11 have violated disabled inmates’ rights under the ARP and ADA, 12 namely LAC, COR, SATF, CIW, and KVSP, and because they are the 13 least that can be done to protect disabled inmates from further 14 violations of their rights under the ARP and ADA. 15 (holding that the scope of permissible injunctive relief “is 16 dictated by the extent of the violation established”) (citation 17 and internal quotation marks omitted). 18 substantial evidence that Plaintiffs have presented shows that 19 the violations of disabled inmates’ rights are not limited to 20 isolated incidents. 21 inmates’ declarations were widespread in every sense of the word; 22 they affected inmates who suffer from a wide range of Id. at 1072 As discussed above, the The ARP and ADA violations described in the 23 24 25 26 27 28 29 The PLRA, 18 U.S.C. § 3626(a)(1)(B), also requires that the Court make certain findings to the extent that any prospective relief requires a government official to exceed his or her authority under state or local law. Defendants have not identified any state or local law that they must violate to implement the additional remedial measures ordered herein. Accordingly, the Court need not make any findings under 18 U.S.C. § 3626(a)(1)(B). 66 1 disabilities; they were caused or observed by many identified 2 staff members; and they took place at a variety of locations at a 3 variety of prisons. United States District Court Northern District of California 4 As discussed, the incidents appear to be the result of the 5 ineffectiveness of Defendants’ system for investigating and 6 disciplining violations of the ARP and ADA. 7 under the current policies and procedures, for staff members to 8 continue to violate disabled inmates’ ARP and ADA rights while 9 potentially avoiding accountability for their actions. It remains possible, The 10 additional remedial measures in question are specifically 11 designed to remedy this, and they are therefore necessary to 12 prevent further violations of disabled inmates’ rights under the 13 ARP and ADA. 14 (affirming order requiring CDCR Defendants to implement remedial 15 measures intended to enhance CDCR’s accountability); Armstrong v. 16 Schwarzenegger, 622 F.3d at 1073-74 (noting the importance of 17 accountability measures in ensuring ADA compliance); Morales 18 Feliciano v. Rullan, 378 F.3d 42, 55–56 (1st Cir. 2004) (noting 19 the importance of accountability in ensuring the long-term 20 success of the health care system in Puerto Rico’s prisons). 21 See, e.g., Armstrong v. Brown, 768 F.3d at 984 Defendants rely on Lewis v. Casey, 518 U.S. 343, 357 (1996), 22 for the proposition that the relief that Plaintiffs seek is 23 unjustified in light of number of violations of the ARP and ADA 24 that they have shown. 25 injunction that granted systemwide relief across all of Arizona’s 26 correctional facilities on the ground that the only evidence in 27 the record that supported such relief was evidence that two 28 inmates at two different prisons were unable to receive In Lewis, the Supreme Court reversed an 67 United States District Court Northern District of California 1 assistance they needed to litigate a claim in court. 2 Court held that the “two instances were a patently inadequate 3 basis for a conclusion of systemwide violation and imposition of 4 systemwide relief.” 5 because, here, the Court has not ordered systemwide relief; 6 instead, the Court has found that, commensurate with the 7 violations of the ARP and ADA that Plaintiffs have shown at LAC, 8 COR, SATF, CIW, and KVSP, the implementation of additional 9 remedial measures at these prisons is warranted. Id. at 359. The Supreme Lewis is distinguishable Thus, the scope 10 of the additional remedies is tailored to the scope of the ARP 11 and ADA violations shown. 12 B. Least Intrusive 13 The additional remedial measures ordered herein are not 14 impermissibly intrusive because they do not micromanage 15 Defendants’ operations. 16 policies and procedures to implement the additional remedial 17 measures. 18 (“Intrusiveness is a particularly difficult issue for defendants 19 to argue, as by ordering them to draft and promulgate a plan, the 20 district court left to defendants’ discretion as many of the 21 particulars regarding how to deliver the relief as it deemed 22 possible. 23 to meet the ADA’s requirements is precisely the type of process 24 that the Supreme Court has indicated is appropriate for devising 25 a suitable remedial plan in a prison litigation case.”). 26 the Court describes the additional remedial measures with some 27 specificity does not change this conclusion. 28 Brown, 768 F.3d at 986 (holding that “[a] court may, as the Defendants have the discretion to craft Armstrong v. Schwarzenegger, 622 F.3d at 1071 Allowing defendants to develop policies and procedures 68 That See Armstrong v. 1 district court did here, provide specific instructions to the 2 State without running afoul of the PLRA”). United States District Court Northern District of California 3 Defendants’ expert, Matthew Cate, opines that a less 4 intrusive means of ending the ongoing violations exists, namely 5 “ensur[ing] that inmates have better access to accommodation 6 requests, by, for example placing the request forms in a location 7 available to all inmates, and having ADA and Grievance 8 Coordinators walk the buildings to ensure disabled inmates can 9 make requests.” 10 Cate Decl. ¶ 6, Docket No. 3160-60. The Court finds that such a proposal is not a viable 11 alternative to the additional remedial measures ordered herein, 12 because the record shows that the root cause of the ongoing 13 violations of the ARP and ADA is not the lack of access to forms 14 or other methods for requesting accommodations, but rather the 15 ineffectiveness of the current system for investigating and 16 disciplining violations of the ARP and ADA and the resulting 17 staff culture that condones abuse and retaliation against 18 disabled inmates. 19 The goal and intent of the parties and the Court’s Remedial 20 Order and Injunction at the outset of the remedial phase of this 21 litigation was to bring all of CDCR’s prisons into compliance 22 with the ADA and the RA. 23 issuance of that order and injunction, Defendants are not yet in 24 compliance. 25 have attempted various iterations of remedial measures that are 26 narrower and less intrusive than the ones now ordered. 27 has found, as discussed in more detail above, that the policies 28 and system currently in place, which are the product of the Almost twenty-four years after the This is so even though the parties and the Court 69 The Court United States District Court Northern District of California 1 parties’ and the Court’s prior efforts to bring Defendants into 2 full compliance, are insufficient to end the ongoing violations 3 of disabled inmates’ rights. 4 implementation of additional and broader remedial measures is 5 warranted. 6 where “the district court has attempted narrower, less intrusive 7 alternatives—and those alternatives have failed,” the court has 8 discretion to order relief that might have raised concerns about 9 breadth and intrusiveness under the PLRA in the first instance) 10 11 Accordingly, the Court’s Armstrong v. Brown, 768 F.3d at 986 (noting that, (citation and internal quotation marks omitted). The Court has carefully considered and weighed the arguments 12 and evidence presented by Defendants, and it has found that 13 Defendants have not shown that the additional remedial measures 14 would have any adverse impact on public safety or the operation 15 of a criminal justice system. 16 additional remedial measures on the ground that they are 17 unnecessary. 18 based on the evidence discussed at length above. 19 object to the additional measures on the ground that they would 20 be burdensome to implement in the time frame that Plaintiffs have 21 proposed. 22 additional remedial measures in the time frame that Plaintiffs 23 have proposed would be burdensome for Defendants, “[a] 24 demonstration that an order is burdensome does nothing to prove 25 that it was overly intrusive” or otherwise inconsistent with the 26 requirements of the PLRA. 27 at 1071. 28 remedial measures are necessary to ensure Defendants’ compliance Defendants object to the The Court disagrees with Defendants on this point Defendants also Even if it were the case that implementing the Armstrong v. Schwarzenegger, 622 F.3d Where, as here, the Court has found that the additional 70 United States District Court Northern District of California 1 with the ARP and ADA, and that no viable less restrictive 2 alternative exists, the question of whether the additional 3 remedial measures require some expenditure of resources by 4 Defendants is not determinative. 5 made the decision to recognize the rights of disabled persons, 6 the question is not whether the relief the court ordered to 7 vindicate those rights is expensive, or difficult to achieve, but 8 whether the same vindication of federal rights could have been 9 achieved with less involvement by the court in directing the 10 11 See id. (“With Congress having details of defendants’ operations.”). In light of the foregoing, the Court finds that the 12 additional remedial measures ordered here are necessary and 13 consistent with the PLRA. CONCLUSION 14 15 The Court GRANTS IN PART Plaintiffs’ motion to modify its 16 prior orders and injunctions to require Defendants to design, and 17 then implement, a plan that requires additional remedial measures 18 at LAC, COR, SATF, CIW, and KVSP. 19 separate order describing the additional remedial measures that 20 Defendants’ plan must include. 21 22 The Court will issue a IT IS SO ORDERED. Dated: March 11, 2021 CLAUDIA WILKEN United States District Judge 23 24 25 26 27 28 71

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