Pursuant to an order of this court filed April 14, 2010, on September 27, 2010, the special master filed a report and recommendations on defendants' review of their suicide prevention policies, practices and procedures. The report contains five recommendations for orders by this court. By order filed October 5, 2010, the parties were granted a period of thirty days in which to file and serve responses to the special master's report and recommendations and fifteen days thereafter in which to reply to any responses filed. On November 4, 2010, defendants filed an objection to one of the special master's recommendations. Plaintiffs interposed no objections to any of the recommendations. On November 18, 2010, plaintiffs filed a reply to defendants' objections. On the same day, this court issued an order adopting in full the recommendations to which no objections had been interposed. The special master's remaining recommendation is addressed in this order.
The special master's fourth recommendation is that defendants be directed to "submit a plan to furnish suicide-resistant beds in their mental health crisis bed (MHCB) units for any at-risk inmates who would otherwise not be provided with a bed while in an MHCB unit." Special Master's Report on Defendants' Review of Suicide Prevention Policies, Practices, and Procedures, filed September 27, 2010 (hereafter Report), at 38. The special master's recommendation is based on the following findings in his report:
Plaintiffs request that suicide-resistant beds be furnished for MHCB units, and that those units at San Quentin State Prison and California Medical Facility which have such beds should make use of them. [Citation omitted.] This is an important concern that plaintiffs have raised previously with defendants, but which remains unresolved. There have been informal reports that in the absence of suicide-resistant beds in some MHCB units, suicidal patients are not provided with any beds at all. It is my understanding that CDCR's decision thus far not to provide suicide-resistant beds is based solely on cost, which I also understand is not prohibitively expensive.
My experts advise me that the failure to provide suicide-resistant beds, and the practice of requiring suicidal MHCB patients to sleep on the floor, creates a needlessly harsh environment that does not serve therapeutic purposes. This practice, along with other punitive-type practices, may even contribute to an inmate's decision not to report thoughts of self-harm to staff. I have been advised that the default practice in an MHCB unit should be to provide a suicide-resistant bed unless clinically contraindicated.
Defendants object to this recommendation on two grounds. First, they contend providing only mattresses in MHCB units does not violate the Eighth Amendment. Second, defendants contend that an order to furnish a plan for providing suicide-resistant beds to at-risk inmates who would not otherwise be provided a bed contravenes the requirements of 18 U.S.C. § 3626(a)(1)(A) because it is "not narrowly drawn, extends further than necessary to correct the constitutional violation, and is not the least intrusive means necessary to correct the violation were one to exist." Id. at 3.
In their objection, defendants define the question before the court as "whether the Eighth Amendment has been violated, or is being violated, by the failure to provide suicide resistant beds for what the Program Guide contemplates as short, at most ten-day stays in the MHCBs." Objection, at 5.*fn1 Defendants misperceive the constitutional duty at issue.
The question at bar is whether defendants are in compliance with their obligations under the Eighth Amendment concerning suicide prevention in their prison system. The Eighth Amendment requires "a basic program to identify, treat, and supervise inmates at risk for suicide." Coleman v. Wilson, 912 F.Supp. 1282, 1298 n. 10 (E.D.Cal. 1995) (citing Balla v. Idaho State Board of Corrections, 595 F.Supp. 1558, 1577 (D.Idaho 1984). The longstanding problem of inmate suicides in the California Department of Corrections and Rehabilitation (CDCR) is well-documented in the record. See Brown v. Plata, 131 S.Ct. 1910, 1924 (2011) ("[i]n 2006, the suicide rate in California's prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved 'some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.'") The recommendation currently before the court, and the report on which it is based, are made pursuant to an April 14, 2010 order in which the court surveyed years of recommendations from the special master concerning deficiencies in defendants' suicide prevention system. In the same order, the court noted as "deeply troubling" "[t]he increase in both the inmate suicide rate and the percentage of suicide cases with 'at least some degree of inadequacy in assessment, treatment, or intervention'" and found that "'[t]he fundamental task at hand is for defendants to take all steps necessary to reduce both the inmate suicide rate and the inadequacies in assessment, treatment and intervention found in an unacceptably high percentage of completed suicides." Order filed April 14, 2010 at 6-7.*fn2
The special master has identified the provision of suicide resistant beds in MHCB units as one of the necessary steps. His recommendation is grounded in the constitutional requirement to provide a system for identification and treatment of inmates at risk for suicide. Specifically, as noted above he reports that his experts have advised that the absence of beds, and the practice of requiring suicidal inmates to sleep on the floor "creates a needlessly harsh environment that does not serve therapeutic purposes." Report at 33. He further reports that the absence of beds may hinder identification of suicidal inmates in that it "may even contribute to an inmate's decision not to report thoughts of self-harm to staff." Id. Given these considerations, he reports, "the default practice in an MHCB should be to provide a suicide-resistant bed unless clinically contraindicated." Id.
In support of their objection, defendants rely on three circuit court decisions, including one from the United States Court of Appeals for the Ninth Circuit, all of which affirm decisions to place suicidal inmates in cells without bedding. All of the cases cited by defendants stand for the proposition that the federal constitution is not violated by reasonable decisions made and actions taken to protect the health and safety of inmates. In Anderson v. County of Kern, 45 F.3d 1310 (9th Cir. 1995), the United States Court of Appeals for the Ninth Circuit affirmed a district court decision not to enjoin county the County of Kern from ever using a padded cell, called a safety cell, to temporarily confine violent or suicidal prisoners so they could not hurt themselves. The court's decision was based on findings of "ample testimony that some prisoners become so violent and such a danger to themselves that temporary placement in a safety cell was needed in order to deprive the prisoners of all means of harming themselves" and "sufficient evidence to support the district court's factual finding that the safety cell was used to control violent inmates, and that the inmates were confined to the safety cell only for short periods of time." Id. See also Williams v. Delo, 49 F.3d 442, 446 (8th Cir. 1995) (prison officials were entitled to qualified immunity from liability on an Eighth Amendment claim brought by an individual prisoner who had been placed in a strip cell without clothing or bedding for four days; there is "no absolute Eighth Amendment right not to be put in a cell without clothes or bedding" and no evidence that the plaintiff in that case had suffered any injuries or that his health had been impaired); McMahon v. Beard, 583 F.2d 172 (5th Cir. 1978) (no constitutional violation in a case brought by a pretrial detainee who, after attempting suicide by hanging himself with strips made from sheets, was confined for up to three months in a cell without a mattress, sheets, or blankets; evidence showed that the decision to house the plaintiff under these conditions was made to protect the plaintiff, not to punish him, and that the housing properly continued as long as plaintiff remained suicidal).
The special master's recommendation incorporates the principle for which these cases stand: that a suicidal inmate may be removed to a cell without a bed or bedding if such placement is necessary to secure the inmate's health or safety. However, none of the cases supports defendants' position that under the circumstances of this case failing, as a matter of policy and practice, to have beds available in MHCB units for suicidal inmates satisfies the Eighth Amendment.*fn3
Defendants also contend that the recommended order does not meet the need-narrowness-intrusiveness requirements of the Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A) because it is not the "least intrusive" means to correct the Eighth Amendment violation at issue. In their objection, defendants state that "mandating suicide resistant beds is not necessary because the clinician is currently managing the treatment of individual patients." Objection at 7. Apparently defendants' view is that clinical management of suicidal inmates is the least intrusive remedy and nothing further is required. This argument misses the mark. Currently, it appears that clinicians managing the treatment of suicidal inmates in all MHCB units except those at San Quentin and CMF do not have the option of placing those inmates in any bed at all, let alone a suicide resistant bed. More to the point, the special master has recommended development of a plan to provide suicide resistant beds in MHCB units. In developing that plan, defendants can and should rely on the clinical judgment of those who are involved in the difficult and delicate task of managing suicidal inmates in crisis beds. Nothing in the special master's recommendation precludes or discourages such reliance.
Finally, defendants contend that requiring them to develop a plan to provide suicide resistant beds for at-risk inmates in MHCB units would "effectively declare portions" of a state regulation unconstitutional. Objection at 6. Defendants make no cogent argument as to how or why adopting the special master's recommendation would work this result. *fn4
As the United States Court of Appeals for the Ninth Circuit has recently noted [i]n many cases it would not be possible for a district court to produce meaningful need-narrowness-intrusiveness findings concerning each isolated provision of a remedial order. Prospective relief for institutions as complex as prisons is a necessarily aggregate endeavor, composed of multiple elements that work together to redress violations of the law. This is all the more true when relief must be narrow and minimally intrusive: courts often must order defendants to make changes in several different areas of policy and procedure in order to avoid interjecting themselves too far into any one particular area of prison administration. In such circumstances, the necessity of any individual provision cannot be evaluated in isolation. What is important, and what the ...