By order filed January 17, 2013, the court directed the Special Master to file forthwith the Twenty-Fifth Round Monitoring Report that he had circulated to the parties on December 28, 2012.*fn1 Pursuant to that order, any objections to the Twenty-Fifth Round Monitoring Report were to be filed with this court on or before thirty days from December 28, 2012. On January 18, 2013, the Special Master filed the Twenty-Fifth Round Monitoring Report (hereafter Report). Defendants have filed objections and a motion to strike or modify portions of the Report (hereafter objections)*fn2 and plaintiffs have responded to defendants' objections.*fn3 Defendants' objections and motion to strike or modify the Report are resolved herein.*fn4
Defendants' main contention, which pervades their objections, is that the Special Master "has not even attempted to assess" defendants' mental health care delivery system against a constitutional standard. See, e.g., Objections at 1, 3. As will appear, infra, this objection betrays a fundamental misunderstanding of the history of this action and its remedial process. In fact, the Special Master is not tasked with "assessing whether the State's prison mental health care system satisfies constitutional standards." (See Objections at 1.) That assessment is for this court. It is true that in working with the defendants to create a remedial plan, the Special Master gave "due regard for the constitutional deficiencies" in the prison's mental health care system. Order of Reference, filed December 11, 1995 (Doc. No. 640), at 2. However, with respect to the Report, the Special Master's task is to measure the State's compliance with "any remedial plan that this court may order." See Order of Reference at ¶¶4-5. At this time, the Revised Program Guide is the primary remedial plan in this action, see infra, and therefore properly the focus of the Special Master's monitoring and compliance reporting.*fn5
As discussed below, the Revised Program Guide represents defendants' considered assessment, made in consultation with the Special Master and his experts, and approved by this court, of what is required to remedy the Eighth Amendment violations identified in this action and meet their constitutional obligation to deliver adequate mental health care to seriously mentally ill inmates. Because the Revised Program Guide is grounded in the requirements of the Eighth Amendment as they have been developed in the context of this action, see Coleman v. Wilson, 912 F. Supp. 1282, 1301 (E.D. Cal. 1995), the Special Master's Report to the court on defendants' compliance with the provisions of the Revised Program Guide is also grounded in the requirements of the Eighth Amendment and is precisely in accordance with his duties.
The Eighth Amendment violations in this case predate 1994, when they were found by the magistrate judge after a lengthy trial. The magistrate judge made a series of findings concerning the extensive violations, and recommendations to remedy them. "The majority of these recommendations [were designed to] require defendants to develop and implement a series of forms, protocols, and plans in consultation with court-appointed experts." Coleman v. Wilson, 912 F. Supp. 1282, 1297 (E.D. Cal. 1995). The magistrate judge also recommended appointment of a Special Master "to (1) consult with the court concerning the appointment of experts; (2) monitor compliance with court-ordered injunctive relief; (3) report to the court in twelve months on the adequacy of suicide prevention; and (4) perform such additional tasks as the court may deem necessary." Id.
Defendants interposed a series of objections to the magistrate judge's findings and recommendations. Of particular relevance here, defendants objected that the magistrate judge had "failed to specify the minimum for each, or any, of the elements of a constitutionally adequate mental health care delivery system." Id. at 1301. The court rejected this objection on the ground that "in cases challenging conditions of prison confinement, courts must strike a careful balance between identification of constitutional deficiencies and deference to the exercise of the wide discretion of prison administrators in the discharge of their duties" and that "[t]he need to strike that balance, common sense, and the clinical nature of the problem, all suggest that standards to insure compliance with the Eighth Amendment can only be developed contextually." Id. at 1301. This court therefore found "wholly appropriate" the magistrate judge's recommendation to leave development of the "protocols, standards, procedures and forms" necessary to remediate the Eighth Amendment violation "to defendants . . . in consultation with court appointed medical experts." Id. at 1302.
On December 11, 1995, the court appointed a Special Master. See Order filed December 11, 1995 (Doc. No. 639). The Order of Reference that accompanied the order appointing the Special Master provides in relevant part that the "principal responsibilities of the special master . . . are to provide expert advice to defendants to ensure that their decisions regarding the provision of mental health care to class members conforms to the requirements of the federal constitution and to advise the court regarding assessment of defendants' compliance with their constitutional obligations. Thus, the main work of the special master in developing a remedial plan will be with the defendants to this litigation, with due regard for both the constitutional deficiencies identified by the court and the deference owed to the discretion of prison administrators in the discharge of their duties." Order of Reference at 2 (emphasis added). The duties of the Special Master include working "with defendants and experts to be selected by the special master . . . to develop a remedial plan that effectively addresses the constitutional violations set forth in this court's September 13, 1995 order." Id. at 3. In addition, the Special Master is tasked with monitoring "defendants' implementation of and compliance with any remedial plan that this court may order", preparing and filing "with the court periodic reports assessing defendants' compliance with such remedial plan as the court may order", and advising the court "concerning any modification to the remedial plan that is requested by a party or that appears necessary to effectuate the purposes of the remedial plan." Id. at 4-5.
On June 6, 1997, the Special Master submitted to the court for approval six volumes of materials consisting of "program guides, policies, plans, policy and procedural manuals, forms, training materials, and memoranda." Special Master's Report on Plans, filed June 6, 1997, at 1. The submitted materials are comprised of plans and policies proposed by defendants, id. at 2, and have collectively been referred to as the Program Guides or the remedial plans. See id.; see also Order filed June 27, 1997. The Special Master reported that "[w]ith few exceptions, the parties agree that the blueprint for the defendants' mental health care delivery system contained in these documents describes a system that comports with the requirements of the court in this case." Id. (emphasis added). On June 27, 1997, the court provisionally approved the remedial plans with some modifications, directed the Special Master to begin monitoring defendants' implementation of and compliance with those plans, and to file quarterly monitoring reports. Order filed June 27, 1997, at 1, 2,4. By order filed December 24, 1997, this reporting requirement was changed from quarterly to semi-annual. See Order filed December 24, 1997 (Doc. No. 905). The Twenty-Fifth Round Monitoring Report is his latest such report.
The Program Guides provide the "framework" for remediation of the Eighth Amendment violations identified in the court's 1995 order. Opinion and Order of Three-Judge Court, filed August 4, 2009, at 27. Currently, the operative remedial plan is the Revised Program Guide, which was substantially approved by this court in 2006. The Revised Program Guide, the product of work started in 2002, was submitted "directly to the court by defendants" with the Special Master's representation that it had been "endorsed by the parties and the special master." Special Master's Report and Recommendations on Defendants' Revised Program Guide, filed February 3, 2006 (ECF 1749), at 4. As the Special Master explained in his report and recommendations filed concurrently with defendants' submission, in 1997 the original program guides had been a "work in progress" with "many of the programmatic components of the defendant's [sic] mental health system ... still embryonic" and "their implementation [in] need [of] close scrutiny and analysis over the next several years." Id. at 2. Since their provisional approval, many parts of the Program Guides had been "revisited and amended by the court, while some other provisions were modified and upgraded by the defendants on their own initiative." Id.*fn6 The Special Master reported that the Revised Program Guide was, in substantial part, "adequate and acceptable." Id.*fn7 By order filed March 3, 2006, the court approved all undisputed provisions of the Revised Program Guide and ordered their immediate implementation.
The foregoing demonstrates the fallacy in defendants' pervasive objection that the Special Master is not monitoring with reference to a constitutional standard. To this point in the remedial phase of this action, defendants' Program Guides have been defendants' plan, approved by this court, to remedy the Eighth Amendment violations identified in this court's 1995 order.
To the extent defendants' individual objections are based on this pervasive one they are without merit and are overruled.*fn8
Defendants interpose a series of objections centered on statements in the Report concerning suicide prevention. Defendants object that the Special Master has "mistakenly" focused on the number of suicides by CDCR inmates, rather than recognizing "the robust suicide prevention program that CDCR has established." Objections at 4. Defendants' apparent assertion that the number of inmate suicides is not relevant to the quality of their suicide prevention efforts is without merit. See Brown v. Plata, 131 S. Ct. 1910, 1924-25 & n.2 (2011) (suicide rate compared to national average and percentage of suicides that involved "some measure of inadequate assessment, treatment or intervention" cited as evidence that "[p]risoners in California with serious mental illness do not receive minimal, adequate care.")
Defendants also challenge the methodology underlying the Special Master's report that "'it does not appear that the rate of suicide deaths in CDCR prisons is declining, . . . suicide rates [the number of suicides per 100,000 inmates] in CDCR prisons continue to substantially exceed the national average among U.S. state prisons, despite the efforts that are being made," and "performance in the areas of suicide prevention remains concerning.'" Objections at 4, quoting Report at 17. The methodology used by the Special Master is the same methodology his expert has used for over a decade in reporting to this court on CDCR inmate suicides. See, e.g., 2003 Suicide Report (ECF 1658); 2008/2009 Suicide Report (ECF 4009). It is neither erroneous nor misleading. Certainly no dispute over methodology can disguise the Special Master's statement that in 2012, as of the time of the writing of the Report, a CDCR inmate was dying by suicide on average nearly every 11 days. See Report at 17. That is of concern to the Special Master, and it is of concern to this court. It should be a primary concern to defendants.
In essence, defendants ask this court to reject the methodology used by the Special Master and the conclusion that he draws from his findings that defendants' suicide prevention measures have not been fully implemented. That request is denied.*fn9 After over seventeen years working with defendants on the remedial phase of this action, including increasing focus on the problem of inmate suicides in CDCR prisons, the Special Master is well-qualified to opine on these matters and the court finds no basis for striking his findings or his conclusions. The court reserves for hearing on ...