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Coleman v. Newsom

United States District Court, E.D. California

July 3, 2019

GAVIN NEWSOM, et al., Defendants.



         In 1995, the court found defendants in violation of their Eighth Amendment duty to provide California's seriously mentally ill prison inmates with access to adequate mental health care. Coleman v. Wilson, 912 F.Supp. 1282 (E.D. Cal. 1995). The court also found Eighth Amendment violations in certain custodial practices as applied to these inmates, including use of force, segregated housing and mechanical restraints. See id. Over more than two decades, the court has been overseeing defendants' development and implementation of remedies for these Eighth Amendment violations with the assistance of a Special Master.

         The defendants' remedial plan for the identified violations in the delivery of mental health care to California's prisoners is the California Department of Corrections and Rehabilitation (CDCR) Mental Health Services Delivery System (MHSDS) Program Guide (Program Guide). See ECF No. 4361 at 2-6[1] (discussing history of development of Program Guide as remedial plan for identified constitutional violations). Defendants' proposed remedies for the Eighth Amendment violations in custodial practices are primarily found in state regulations and provisions of the CDCR Department Operations Manual (D.O.M.). See, e.g., ECF No. 5190 (defendants' revised policies and plans for use of force and segregated housing involving class members, required by court order, ECF No. 5131 at 72-74). Other remedial measures include a court-ordered mental health staffing plan, see ECF Nos. 3613 at 2 (court order), 3693 (staffing plan), regular mental health bed projections, see ECF No. 3629, and concomitant planning for and building of necessary mental health beds and clinical treatment space, see, e.g., ECF No. 3556.

         As required by court order, on June 29, 2018 the Special Master filed a report on the CDCR MHSDS Program Guide Update, accompanied by two appendices to the 2009 Revised Program Guide and an index (hereafter Program Guide Update Report). ECF No. 5844. On July 30, 2018, as the court required by minute order, ECF No. 5860, the Special Master filed with the court for review and approval the complete 2018 Revision to the Program Guide, referred to throughout this order as the 2018 Program Guide Revision. ECF No. 5864-1. The 2018 Program Guide Revision consists of: Chapters 1 through 10 of the Program Guide 2009 Revision; Appendix A, a glossary of terms; Appendix B, [2] a list of 68 policies that the Special Master and the parties agree should be included in the current consolidated Program Guide, see ECF No. 5844 at 8; ECF No. 5864 at 1; Appendix C, [3] an index to the same policies listed in Appendix B and a complete copy of each policy, see ECF No. 5864 at 1-2; Appendix D, [4] a memo clarifying “several changes to Chapter 6 of the Program Guide (2009 Revision) concerning inpatient care, ” ECF No. 5864-1 at 599; and Appendix E, [5] which contains “policies that are currently in flux and by agreement will be reviewed by the parties and the Special Master at a later time to determine whether they are appropriate for inclusion in the Program Guide.” ECF No. 5864 at 2.

         The June 29, 2018 Program Guide Update Report contains four recommendations:

1. That, the Court formally adopt the policies attached to th[e] report as Appendix A and the clarification memo attached as Appendix B, as addenda to the MHSDS Program Guide 2009 Revision.
2. That, the Court enter an order directing the parties, under the guidance and supervision of the Special Master, to work on the development of an improved method for modifying the Program Guide utilizing the workgroup process already in place.
3. That, the Court enter an order directing the Special Master to report back to the Court on the new proposed Program Guide modification process within 60 days of entry of the order.
4. That, any proposed Program Guide-related regulations be provided to plaintiffs and the Special Master 90 days in advance of the public comment period, and/or any Program Guide-related policies currently incorporated into regulations that substantively change in the future.

ECF No. 5844 at 10. On July 20, 2018, defendants filed a response to the Program Guide Update Report, ECF No. 5861, and on July 23, 2018, they filed a corrected updated response, ECF No. 5862. On August 3, 2018, plaintiffs filed a response to defendants' corrected response. ECF No. 5875.[6] The only area the parties dispute concerns the Special Master's fourth recommendation: defendants object to it on several grounds, while plaintiffs support the recommendation. As part of its overall effort to move this case toward a conclusion, the court now makes the following findings and orders concerning the 2018 Program Guide Revision and the recommendations contained in the Program Guide Update Report.

         The court ordered preparation and submission of the 2018 Program Guide Revision as part of its ongoing effort to consolidate the court's past decisions and clarify the record of the case, which the court deems essential to an orderly conclusion of the case once the durability of the remedy is demonstrated. For the reasons explained below, in addition to giving final approval to the 2018 Program Guide Revision and addressing the recommendations in the Program Guide Update Report, the court also clarifies for the record that remedial planning for this action is substantially complete. To memorialize the additional remedial planning not reflected in the Program Guide itself, the court will require the parties to submit a companion document to the 2018 Program Guide Revision that lists any regulations, provisions of the D.O.M., and any other provisions that control the remedy for the already identified constitutionally deficient custodial practices and that are not included in the 2018 Program Guide Revision. With this additional document, except for specific disputes identified in this order, the content of the completed remedial plan will be made fully transparent and serve as a reference point for the court and the parties going forward. The court's finding that remedial planning is substantially complete is, of course, separate and apart from a finding regarding implementation of the remedy. The record makes clear that a number of implementation tasks remain.

         To review again, in 1995 the court found defendants in violation of their Eighth Amendment duty to provide California's seriously mentally ill prison inmates with access to adequate mental health care. Coleman v. Wilson, 912 F.Supp. 1282. Specifically, the court found (1) defendants lacked “a systematic program for screening and evaluating inmates for mental illness, ” id. at 1305; (2) California's prison system was “significantly and chronically understaffed in the area of mental health care services ”and defendants did “not have sufficient staff to treat large numbers of mentally ill inmates” in prison, id. at 1307; (3) defendants had no quality assurance program to ensure competence of staff, id. at 1308; (4) there were significant delays in access to mental health care throughout the system that “result[ed] in exacerbation of illness and patient suffering, ” id. at 1309; (5) “‘defendants' supervision of the use of medication [was] completely inadequate; prescriptions [were] not timely refilled, there [was] no adequate system to prevent hoarding of medication, there [was] no adequate system to ensure continuity of medication, inmates on psychotropic medication [were] not adequately monitored, and . . . some very useful medications [were] not available because there is not enough staff to do necessary post-medication monitoring, '” id. (quoting June 6, 1994 Findings and Recommendations at 50); (6) several deficiencies in the availability and utilization of involuntary medication, id. at 1311-13; (7) the absence of any adequate systemwide procedures for use of mechanical restraints on seriously mentally disordered inmates, id. at 1313-14; (8) an “‘extremely deficient'” medical records system, id. at 1314 (quoting Findings and Recommendations at 61); (9) inadequate implementation of defendants' suicide prevention program, id. at 1315; (10) inadequate training of custodial staff “in the identification of signs and symptoms of mental illness, ” id. at 1320; (11) placement of seriously mentally ill inmates in administrative segregation and segregated housing units “without any evaluation of their mental status” and without access to necessary mental health care while housed in such units, id.; and (12) use of tasers and 37mm guns against class members without considering whether the behavior leading to use of the weapon was caused by mental illness, or the impact of such weapon's use on that illness, id. at 1321.

         To remedy these violations, the court “directed defendants to work with the Special Master and his staff to develop and implement” remedial plans. Coleman v. Brown, 938 F.Supp.2d 955, 972 (E.D.Cal. 2013). The Program Guide represents the bulk of the operative remedy. See ECF No. 4361 at 2-3 (“At this time, the Revised Program Guide is the primary remedial plan in this action. . .”). The Guide contains the structure and requirements for delivery of mental health care in California's prisons as challenged in this case, and “‘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.'” Coleman v. Brown, 938 F.Supp.2d at 972 (quoting ECF No. 4361 at 3). The United States Court of Appeals for the Ninth Circuit has determined it is “established that the Program Guide sets out the objective standards that the Constitution requires in this context. . . .” Coleman v. Brown, 756 Fed.Appx. 677, 679 (9th Cir. 2018).

         As noted above, the remedies for the identified Eighth Amendment violations in the custodial management of seriously mentally ill inmates are generally found in state regulations or provisions of CDCR's D.O.M, while other remedial measures include defendants' staffing plan, see ECF No. 3693, regular mental health bed projections, see ECF No. 3629, and concomitant planning for and building of necessary mental health beds and clinical treatment space, see, e.g., ECF No. 3556. In addition, the remedy also requires targeted provisions to address inmate suicides: since 2015 defendants have been under court order to adopt specific recommendations made by the Special Master's expert on suicide prevention, Lindsey Hayes. See ECF No. 5993 at 2 (citing ECF Nos. 5259, 5271).

         The remedial phase of this action has been shaped by the court's early recognition that in a case of this magnitude and complexity “the standards for compliance with the Eighth Amendment must and indeed ‘can only be developed contextually.'” Coleman v. Brown, 938 F.Supp.2d at 971 (quoting Coleman v. Wilson, 912 F.Supp. at 1301). Thus, the complete remedy for the Eighth Amendment violations identified by the court has continued to evolve over the past two decades while implementation of court-approved and court-ordered components of the remedy has been ongoing.

         Since the time this action was reassigned to this court in 2014, see ECF No. 5213, the court has articulated its understanding that most of the remedial planning in this case was complete; the court also has stated its intention to keep the case “on a path toward resolution in our lifetimes, sooner rather than later.” Reporter's Transcript of Proceedings (RT), Aug. 19, 2015, ECF No. 5342, at 3. In 2017, the court turned its efforts to enforcement of aspects of the remedy long complete but never fully implemented, including compliance with timelines for transfer to inpatient care, see ECF No. 5610, and full implementation of defendants' mental health staffing plan accompanied by compliance with a June 2002 order requiring a maximum ten percent vacancy rate in psychiatrists and case managers. ECF No. 5711; see also ECF No. 1383 at 4. The court's efforts to enforce these prior orders has been delayed by intervening events, including the court-ordered independent investigation prompted by whistleblower reports the court received in October 2018 and defendants' pending appeal concerning a proposed final telepsychiatry policy. An additional speed bump has presented itself in the form of defendants' continued use of unlicensed mental health crisis bed (MHCB) units that were intended only for temporary use, see, e.g., ECF No. 3516, and defendants' proposed temporary use of additional unlicensed MHCBs pending the long drawn-out completion of planned additional permanent MHCB units, see, e.g., ECF No. 5993-1 at 32-33.

         In its efforts to enforce prior orders, the court has made clear its need for an updated comprehensive Program Guide. Before addressing the Special Master's one recommendation the parties dispute, the court considers whether in fact the 2018 Program Guide Revision now presented represents a substantially developed remedial plan for delivering constitutionally adequate mental health care to class members. If it does, the court, the Special Master and the parties can bring full focus and effort to the tasks that remain in implementing and ensuring the durability of that remedy.


         A. June 1997 Remedial Plans

         On June 6, 1997, the Special Master submitted the first set of remedial plans to the court together with a report on those plans. Dkt. No. 850.[7] The Special Master reported to the court 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. at 2. The remedial plans were framed around the twelve “broad areas of concern” “consistently identified” by the court. Id. These twelve areas corresponded to the twelve areas identified in the court's 1995 order, as set forth on page 4 of this order above. By order filed June 27, 1997, the court gave provisional approval to the initial set of remedial plans, with some modifications, and “directed the Special Master to begin monitoring defendants' implementation of and compliance with those plans, and to file quarterly monitoring reports.” ECF No. 4361 at 5; see also Dkt. No. 858.

         The Special Master also reported that the parties had “agreed to a process for future modifications of the plans” submitted to the court. ECF No. 850 at 21. That three-step process required (1) defendants to “submit, with a copy to plaintiffs, ” any modification “to the special master fourteen days prior to its effective date, ” or on a shorter time frame in the event of an emergency; (2) the Special Master to determine whether the modification conflicted with any court order(s) and, if so, to “work with the defendants to reconcile the conflict, ” and (3) if reconciliation proved impossible, the Special Master would file a report with the court setting forth findings explaining why the modification violated court orders and recommending action to be taken on the modification. Id.

         The process contemplated by the court in 1997 never took hold. In 2006, the Special Master reported that between 1997 and 2005, many aspects of the original set of remedial plans were “revisited and amended by the court, while other provisions were modified and upgraded by the defendants on their own initiative.” ECF No. 1749 at 3. During the same period, the scope of this action expanded to include all of California's adult prison institutions, and the mentally ill prison population more than doubled, “growing from 14, 293 inmate/patients in July 1997 to 30, 272 in October 2005.” Id. In 2002, “after more than five years of experience with the provisionally approved program guides, [8] the special master and the parties agreed that the time was ripe to revise and update the program guides and seek their final approval.” Id. As the Special Master reported, that 2002 agreement was followed by three years of “meetings among parties, counsel, and the special master and his experts and monitors” and, finally, production of a proposed final set of remedial plans. Id. When presented to the court in early February 2006, those plans were identified as the January 2006 Revised Program Guide.

         B. 2006 Revised Program Guide

On February 3, 2006, defendants filed the January 2006 Revised Program Guide, Chapters 1 Through 10 and Glossary. ECF No. 1753. On the same day, the Special Master filed a Report and Recommendations on Defendants' Revised Program Guide. ECF No. 1749. He reported that the January 2006 Revised Program Guide had taken over three years to finalize and represented a “semantic identity ...

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