By order filed January 17, 2013, the court directed the Special Master
to file within fourteen days his expert's Report on Suicides Completed
in the California Department of Corrections and Rehabilitation (CDCR)
in Calendar Year 2011 (Report or 2011 Suicide Report).*fn1
Order filed January 17, 2013 (ECF No. 4297) at 2. Pursuant to
that order, any objections to the 2011 Suicide Report were to be filed
within fifteen days of its filing. Id. On January 25, 2013, the
Special Master filed the Report (ECF No. 4308), prepared by his
expert, Dr. Raymond Patterson. On February 11, 2013, defendants filed
objections and a motion to strike or modify portions of the Report
(Objections) (ECF No. 4326). On February 21, 2013, after receiving
leave of court to do so (ECF No. 4337), plaintiffs filed an opposition
to defendants' objections and motion to strike or modify the Report
(Plaintiffs' Opposition) (ECF No. 4350). Defendants' objections and
motion to strike or modify the Report are resolved herein.*fn2
As with their objections to the Special Master's Twenty-Fifth Round Monitoring Report, defendants' principal objection to the Report is that it is not focused on a constitutional standard. See Objections at 1. In this context, defendants assert that "[t]he Constitution requires that the State establish a basic program to identify, treat, and supervise inmates with suicidal tendencies; it does not mandate that the prisons eliminate all suicide risks." Id. Citing to their termination motion, defendants contend that "California's prison system exceeds that standard because the State has fully implemented and staffed a thorough, standardized suicide-prevention and investigation program." Id. The termination motion is not before the court at this time. The court will consider defendants' arguments and evidence in support of the termination motion when that motion is fully briefed and argued.
I. Overall Objections to Statements in Report
Defendants interpose a number of specific objections to the Report. Each is addressed in turn.
A. Total Number of CDCR Inmate Suicides in 2011
Defendants object to the finding that there were 34 inmate suicides in calendar year 2011 and, on that basis, move to strike the finding "the rate of CDCR inmates suicides in 2011 was 21.01 per 100,000, which was essentially unchanged since 2010, when it was 21.1 per 100,000." Objections at 6 (quoting Report at 1.) Defendants contend that the conclusion that the death of inmate HH "was more likely than not to have been a suicide" is "speculative and lacks foundation." Objections at 6. In support of this contention, defendants note that the case was referred to the Solano County District Attorney's Office for criminal investigation, that the CDCR suicide reviewer "could not conclude that the death was a suicide" and that "additional information" in the case review for this inmate's death set forth in Appendix F of the Report "reflects that the death may not represent a suicidal hanging." Id.
The case review for this inmate's death, set forth in Appendix F of the Report, shows that there is sufficient evidence to support the finding. See Report at 282-290. Included in the case review is the fact that the death was processed as a possible homicide and "a CDCR Form 7229-B report of inmate suicide to the suicide response coordinator at DCHCS was filed." Id. at 287. Defendants have tendered no evidence of the outcome of the criminal investigation, nor any evidence that the death has been definitively ruled a homicide, nor any evidence that Inmate HH's cellmate was prosecuted for homicide. Dr. Patterson's finding that inmate HH's death "was more likely than not to have been a suicide" is neither speculative nor without foundation and this objection is therefore overruled.
Defendants' expert, Dr. Joel Dvoskin, states in his report that this death was "declared a homicide by the coroner." Dvoskin Response to 2011 Suicide Report, attached as Ex. 1 to Declaration of Debbie Vorous (hereafter Dvoskin Resp.), filed February 11, 2013 (ECF No. 4326-6), at 26. In the Report's case review for inmate HH, Dr. Patterson noted first that the coroner was to make a "final determination of the manner of death" and thereafter that "the coroner's report did not state a manner of death." Report at 284. Dr. Patterson specifically invited any additional information in this regard. See Report at 290 ("Lastly, it is the Special Master's reviewer's analysis that the assumption by CSP/Solano clinicians that this was a suicide was correct. The pathologist's report of the autopsy as this death possibly being staged left an open question that was never addressed by the pathologist in any of the documents that were presented to bring closure, other than the death was from asphyxiation. If there is additional information based on the investigative services report or other investigations or analysis that would suggest that this death was more likely a homicide or accident, that information should be provided or disclosed for further review.) (Emphasis added.)
The reason for the discrepancies concerning the coroner's report for this inmate's death is not clear on the record before this court. Moreover, those discrepancies must be resolved prior to ruling on defendants' motion to modify the findings concerning the rate of CDCR inmate suicides in 2011. Good cause appearing, defendants will be directed to forthwith file a copy of the final coroner's report for this inmate's death under seal and to provide a hard copy to the Special Master. Ruling on defendants' motion to modify the findings concerning the rate of CDCR inmate suicides in 2011 is deferred pending review of the final coroner's report for inmate HH's death.
B. Language Concerning 2011 Suicide Rate in CDCR Prisons and Comparison to Other Suicide Rates
Defendants move to strike language in the Report comparing the inmate suicide rate in CDCR prisons unfavorably to other U.S. state prison systems and the U.S. federal prison system and describing the suicide rate as "growing" and "worsening." Objections at 6-7. This request essentially tracks objections and a request to strike made by defendants in response to the Special Master's Twenty-Fifth Round Monitoring Report and will be denied for the reasons set forth in this court's February 28, 2013 order. See Order filed February 28, 2013 (ECF No. 4361), at 7-8.*fn3 As set forth in that order, the question of whether defendants' suicide prevention efforts are consistent with the requirements of the Eighth Amendment is reserved for hearing on defendants' termination motion.
C. Language Concerning Total Number and Percentage of CDCR Inmate Suicides with "At Least Some Degree of Inadequacy in Assessment, Treatment, or Intervention" and Total Number of Those that Were Foreseeable and/or Preventable Defendants next move to strike findings that in 25, or 73.5% of 34 inmate suicides in 2012 there was "at least some degree of inadequacy in assessment, treatment or intervention" and that at least 24 of those inmate suicides were "foreseeable" or "preventable."*fn4
Objections at 9. Defendants contend generally that the Report's "resort to this classification system is speculative, misleading, lacks foundation, and is irrelevant to the governing legal standard." Id. at 10. In support of this general contention, defendants argue that (1) causation for suicide should not be inferred from findings that a suicide was foreseeable or preventable; (2) that Dr. Patterson has included suicides "where the foundation for the conclusion is lacking or is speculative or subject to two reasonable clinical decisions"; and (3) that he has included reference to degrees of inadequacy without evidence that the inadequacy caused the suicide.*fn5 Id. The first and third of these contentions raise questions concerning what evidence bears on the question of defendants' compliance with the requirements of the Eighth Amendment. They are not bases for striking the challenged findings. The second contention is addressed infra.
1. Motion to Strike Language that 24 Suicides were Foreseeable or Preventable Defendants contend that linking the two categories of analysis -- suicides involving some degree of inadequacy in assessment, treatment, or intervention, with suicides that were "foreseeable" and/or "preventable" -- "makes it difficult to determine whether and how the alleged failures may have contributed to the suicide" and that use of these "vague terms is inherently misleading." Objections at 10. Defendants also contend that linking the findings concerning inadequacy in assessment, treatment or intervention with findings concerning the number of suicides that were foreseeable or preventable "creates an unfairly negative impression of the State's mental ...