United States District Court, E.D. California
ORDER
On
November 15, 2019, the Special Master filed a request for
extension of time to comply with the court's July 3, 2019
order, ECF No. 6211, which required submission of proposed
processes for regular updates to the 2018 Program Guide and
to any part of the remedy for this action found in state
regulations and/or provisions of the California Department of
Corrections and Rehabilitation (CDCR) Department Operations
Manual (DOM). ECF No. 6390. The Special Master seeks an
extension of ninety days, to and including February 14, 2020,
to comply with the July 3, 2019 order. Id. at
l.[1]
The Special Master's request is predicated on the fact
that negotiations over the proposed processes, which have
been ongoing in the All-Parties Workgroup, have
“stalled” because “defendants'
intention to include mental health regulations into the HC
[Health Care] DOM administered by California Correctional
Health Care Services (CCHCS) ha[s] only recently become clear
to plaintiffs and the Special Master.” Id. at
3. The court DECLINES to grant the Special Master's
request as presented and DEFERS a decision on whether to
grant the request in part as explained below.
CCHCS
is run by the Receiver in Plata v. Newsom, Case No.
C01-1351 JST (N.D. Cal.). Plata is a class action
lawsuit brought in the United States District Court for the
Northern District of California by prisoners with serious
medical conditions. See Brown v. Plata, 563 U.S.
493, 500 (2011). This separate Coleman action is a
class action lawsuit brought by prisoners with serious mental
disorders. Id. The two actions are brought by two
distinct classes of plaintiffs and are being remedied in
separate federal district courts. Id. In this
action, remediation is supervised by a court-appointed
Special Master, while the Plata court has appointed
a Receiver to implement the remedy in that case. See
id. at 506-07.
In
2006, the Coleman court and the Plata court
recognized the need for both courts to “closely
coordinate activities in both cases.” Reporter's
Transcript, June 8, 2006, ECF No. 1848 (6/8/06 RT), at
1:23-24. To that end, the courts jointly convened a status
conference to address coordination with the parties.
Id.; see also ECF No. 1834. The goals of
the coordination process were express: to be sure that
everyone in both cases was “working on the same
page”; to “head . . . off at the pass” any
“possible divergence of views” in any significant
substantive area; and a “desire for efficiency.”
6/8/06 RT at 2:7-3:6. The courts were both clear:
coordination was intended to avoid any surprises in the
remedial proceedings in either case. See Id. at
4:2-7 (Plata judge explaining Coleman
Special Master and Plata Receiver “will be
meeting regularly and coordinating so that nothing that my
team does is a surprise to anything and vice versa”);
cf. Id. at 10:10-16 (plaintiffs' counsel noting
“important for us to be kept informed”), 11:5-7
(defendants' counsel representing “the State very
much appreciates the coordination and will certainly, of
course, work very, very closely with the Masters and
Receiver”). The courts also were clear that the
Coleman case would not “be forthwith folded
into Plata” and that each court had
“individual obligations” under their respective
decrees. Id. at 2:21-25. The Plata court
underscored “[t]hat there would be transparency here.
Nothing would be done in secret or decided in secret.”
Id. at 12:15-21; id. at 12:22-13:2.
In
early 2007, the coordination process expanded to include
another class action, Perez v. Tilton, Case No.
C05-05241 JSW (N.D. Cal.), a case involving dental care in
California's prisons.[2] The order issued by the three courts
was equally clear: nothing in the coordination process would
“alter or amend” any reporting requirements in
the individual cases or “such rights of the parties in
each action as have been or may be established by court
orders. . . .” ECF No. 2119 at 2. A fourth class
action, Armstrong v. Schwarzenegger, Case No. C
94-2307 (N.D. Cal.), joined the coordination process that
year. See ECF No. 2522. In 2007 and 2008, the
coordinating courts considered and entered orders approving
several agreements, including some governing information
technology (IT) coordination. See ECF Nos. 2247
& 2300 (approving Receiver's assumption of, inter
alia, long-term IT program including medical and mental
health programs, subject to quarterly reporting requirements
of “all tasks and metrics necessary to the contracting
functions”) & 2711 (approving IT coordination
agreement presented by Receiver and Special Master, inter
alia, on condition that Receiver coordinate with
Department of Mental Health (DMH) “to facilitate
technological compatibility and communication regarding
patient care between DMH and CDCR, ” with additional
understandings memorialized in attachment); see also
ECF Nos. 2300, 2696, 2739, 3073. The Plata and
Coleman courts jointly considered additional
agreements in 2008 and 2009. See, e.g., ECF
Nos. 3334, 3498, 3499.
No
court orders have modified the letter or intent of the
courts' initial coordination determination in 2006. The
coordination process remains an ongoing, important element of
the proceedings in this case. Against this backdrop,
defendants' failure to timely and clearly disclose to the
Special Master and to plaintiffs their apparent intention to
work under the auspices of the Plata Receiver to
incorporate mental health regulations into the HC DOM appears
at odds with the coordination process, not to mention tone
deaf in light of the recent proceedings before this court
occasioned by the Golding Report. See, e.g.,
Reporter's Transcript of Proceedings, Oct. 23, 2019, ECF
No. 6380 (10/23/19 RT), at 458:25-459:12. Defendants have
made other recent representations suggesting the possibility
there are additional substantive areas in which defendants
have, to one degree or another, embarked on remedial efforts
under the auspices of the Plata Receiver without
fully informing this court, the Special Master or plaintiffs.
These representations include statements by defense counsel
at the September 13, 2019 second quarterly status conference
in this action, see ECF No. 6312 at 6 n.4, as well
as in a document the court required defendants to file after
the October 2019 evidentiary hearing, ECF No. 6370.
As the
court reminded defendants in its October 8, 2019 order, their
“remedial responsibilities in this action are to this
court and its Special Master. Any remedial work on matters
within the jurisdiction of this court must, at a minimum, be
fully disclosed in the first instance to the Special Master
and ultimately to this court to ensure the needs of the
plaintiff class here will be met and any necessary
coordination can be achieved.” ECF No. 6312 at 6 n.4.
Disclosure is essential given the Special Master's
obligations, which include working with defendants on the
remedy in this case and, as necessary, to consult with
counsel for all parties in order to fulfill his duties under
the Order of Reference. See ECF No. 640 at 2-3.
For the
second time in less than a month, the court is required to
remind defendants that their transparency with the court, the
Special Master and the plaintiffs is essential to a fair
assessment of their progress toward compliance with the
approved remedy in this case. See, e.g., 10/23/19 RT
at 463:13-20. That this court saw fit to appoint a Special
Master, as a means more respectful of defendants' own
management of their correctional institutions and less
intrusive than could have been imposed by the appointment of
a Receiver, elevates the fundamental requirement of full
transparency in this case to a non-negotiable gold standard.
Id. The court has renewed serious doubts that
defendants are meeting that standard.
For all
of the foregoing reasons, IT IS HEREBY ORDERED that:
1. The
Special Master's November 15, 2019 request for
enlargement of time, ECF No. 6390, is DENIED pending a full
discussion with the parties at the quarterly status
conference set for December 13, 2019, at which the court will
consider a new shorter deadline for compliance with the
court's July 3, 2019 order.
2.
While the court will issue a full agenda for the December 13,
2019 status conference in the near future, it advises the
parties that the first agenda item will be a discussion of
whether, and to what extent, defendants are unilaterally
coordinating remedial efforts with the Plata
Receiver, advising the court and Special Master only after
significant effort has been expended; whether, and to what
extent, any such efforts have been properly and timely
disclosed to the Special Master and/or the plaintiffs; and
whether plaintiffs should be granted a period of discovery
designed to identify answers to these questions. Once the
full agenda for the status conference is set, the parties
will be directed to file separate statements addressing the
issues identified in this paragraph 2.
3. The
discussion on December 13th described above also
will review the reporting channels and committee/subcommittee
structures relevant to mental health data collection and
reporting, whether currently in place or put on hold during
the Golding proceedings. Defendants are directed to file
within seven (7) days a separate statement identifying any
and all such reporting channels, committees and
subcommittees.
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Notes:
[1] With the exceptions of citations to
page numbers in Reporter's Transcripts of Proceedings,
references to page numbers in documents filed in the
Court's Electronic Case Filing (ECF) system are to the
page number assigned by the ECF system and ...