United States District Court, E.D. California
ORDER
As set
by court order, the court held a focused evidentiary hearing
on October 15 and 16, 2019, to address unresolved issues the
court identified after reviewing Dr. Golding's
whistleblower report and the court's neutral expert's
investigation into Dr. Golding's allegations.
See ECF Nos. 6242, 6288. The court heard closing
arguments from the parties on October 22, 2019. In addition,
as authorized by the court, Dr. Golding filed a written
closing argument. ECF No. 6362. On October 23, 2019, the
court provided an oral pronouncement of its findings and
conclusions in open court. Reporter's Transcript of
Proceedings (10/23/19 RT), ECF No. 6380. Those findings and
conclusions, with record support, are memorialized in this
order.
I.
INTRODUCTION
In
1995, the court found “the California Department of
Corrections . . . significantly and chronically understaffed
in the area of mental health care services. . . . [It] does
not have sufficient staff to treat large numbers of mentally
ill inmates in its custody.” Coleman v.
Wilson, 912 F.Supp. 1282, 1307 (E.D. Cal. 1995). In
2011, the United States Supreme Court observed that the
record before that Court supported the conclusion “that
the prison system remained chronically understaffed through
trial [before a three-judge court] ¶ 2008.”
Brown v. Plata, 563 U.S. 493, 528
(2011).[1] In October 2017, after more than two
decades of remedial effort, this court issued an order
requiring defendants to come into complete compliance with
the staffing ratios in their 2009 Staffing Plan, ECF No.
3693, and the maximum ten percent staffing vacancy rate
required by the court's June 13, 2002 order, ECF No.
1383, with compliance to be achieved by October 2018. ECF No.
5711 at 30.[2]
In its
October 2017 order, the court included a lengthy discussion
of defendants' request, made in a March 30, 2017 filing,
see ECF No. 5591 at 4, for the court “to
revisit the existing staffing ratios for
psychiatrists.” Id. at 12-20.[3] The court made
clear defendants faced a “heavy burden” in
attempting to persuade the court those ratios should be
revisited. Id. at 14, 18-19. The court noted
defendants' request could “only be construed as a
request to increase the existing caseload of prison
psychiatrists” and that there was “scant evidence
in the record to suggest this change would advance
remediation of the Eighth Amendment violation in this case;
rather there is strong evidence that such a change would slow
progress toward the end of federal court oversight.”
Id. at 19. Nonetheless, the court granted defendants
limited leave to explore its request, deciding “not to
preclude defendants from raising with the Special Master the
issue of whether full implementation of the PMA [psychiatric
medical assistant] program supports a change in the staffing
ratios for psychiatrists.” Id. The court
limited its permission because the record did not support a
more extensive revisiting of the 2009 Staffing Plan and the
time for defendants' compliance with the Plan was past
due. As of this writing, the record still does not support a
more extensive review, and the time for compliance is even
more seriously past due.
For the
year following the court's October 2017 order, the
parties, supervised by the Special Master, engaged in
extensive negotiations over issues related to staffing
compliance. Ultimately, defendants presented to plaintiffs
and the Special Master a staffing proposal that would have
cut by approximately twenty percent the total number of line
psychiatry staff positions allocated throughout the prison
system. See Reporter's Transcript of
Proceedings, October 15, 2019 (10/15/19 RT), ECF No. 6377, at
52:9-18.[4] Plaintiffs were poised to accept the
proposal. Before they did, however, on October 3, 2018, Dr.
Michael Golding, Chief Psychiatrist for the California
Department of Corrections and Rehabilitation (CDCR), sent a
whistleblower report to the Plata[5] Receiver. Id.
at 54:23-55:6. The parties brought the report to this
court's attention on October 5, 2018, and it is that
report that has led to the proceedings culminating in this
order. As the findings in this order make clear, and contrary
to defendants' initial position --maintained through the
evidentiary hearing -- that no independent investigation of
Dr. Golding's allegations was necessary, those
allegations in significant part justified the independent
investigation and factfinding the court has undertaken.
At this
critical juncture, several key legal principles, articulated
by the previously-assigned judge in this action, bear
repeating:
‘Whatever rights one may lose at the prison gates,
cf. Jones v. North Carolina Prisoners' Union,
433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (prisoners
have no right to unionize), . . . Eighth amendment
protections are not forfeited by one's prior
acts. Mechanical deference to the findings of state
prison officials in the context of the eighth amendment would
reduce that provision to a nullity in precisely the context
where it is most necessary. The ultimate duty of the
federal court to order that conditions of state confinement
be altered where necessary to eliminate cruel and unusual
punishments is well established.' Spain v.
Procunier, 600 F.2d [189] at 193-94 [(9th Cir. 1979)]
(emphasis added).
Coleman v. Brown, 28 F.Supp.3d 1068, 1077-78
(E.D.Cal. 2014) (emphasis included in 2014 order). The same
judge said not so very long ago, in his 2013 order denying
defendants' motion to terminate this action, “[t]he
Eighth Amendment violation in this action is defendants'
‘severe and unlawful mistreatment' of prisoners
with ‘serious mental disorders,' through
‘grossly inadequate provision of ... mental health
care.'” Coleman v. Brown, 938 F.Supp.2d
955, 969 (E.D.Cal. 2013) (quoting Brown v. Plata,
563 U.S. at 500, 502)). Just two years before that denial of
termination, in its 2011 decision, the United States Supreme
Court had observed that “[f]or years the ... mental
health care provided by California's prisons has fallen
short of minimum constitutional requirements and has failed
to meet prisoners' basic health needs. Needless suffering
and death have been the well-documented result.”
Brown v. Plata, 563 U.S. at 501.
As the
prior presiding judge also noted,
once an Eighth Amendment violation is found and injunctive
relief ordered, the focus shifts to remediation of the
serious deprivations that formed the objective component of
the identified Eighth Amendment violation. See Coleman v.
Brown, 938 F.Supp.2d at 988. Remediation can be
accomplished by compliance with targeted orders for relief or
by establishing that the ‘violation has been remedied
in another way.' Id.
Coleman v. Brown, 28 F.Supp.3d at 1077. Under no
circumstances may remediation be accomplished by end runs and
hiding the ball to create a false picture for the court, as
has happened here.
Given
the constitutional deprivations underlying this case, and the
court's monitoring by way of a Special Master,
defendants' expenditure of so much time and effort to
create records designed to advance litigation as the primary
way to achieve a complete remedy or termination by other
means is confounding. This court's predecessor carefully
constructed a process supervised by a Special Master that was
intended to moderate court intrusion into defendants' own
remedial efforts. Such a process is arguably more respectful
of defendants' knowledge of their operations and their
management prerogatives than a process whereby oversight is
transferred to a receivership; it also is more hopeful that
defendants can best determine how to meet their
constitutional obligations to the seriously mentally ill
inmates in their custody. At the same time, given the
authority that here remains vested in defendants themselves,
the importance of defendants' transparent and accurate
reporting is paramount: the court and the Special Master must
be able to rely fully on defendants' representations. As
explained in this order, the court has concluded the
reliability of those representations at multiple levels of
the Coleman case structure is in serious doubt. If
the approach of monitoring by a Special Master has
contributed to play in the joints allowing for those
misrepresentations, the court may need to revisit that
structure in future proceedings. For now, that is a question
for another day.
Before
detailing its findings and conclusions, the court sets forth
in greater detail the background leading up to the
evidentiary proceedings, which are now concluded.
II.
BACKGROUND
A.
Matters Leading Up to Evidentiary Hearing
As
noted, on October 10, 2017, this court issued its order
requiring defendants, within one year, to come into complete
compliance with the staffing ratios in their 2009 Staffing
Plan, ECF No. 3693, and also with the maximum ten percent
staffing vacancy rate required by the court's June 13,
2002 order, ECF No. 1383. ECF No. 5711 at 30. The court set a
further status conference for October 11, 2018 and directed
the parties to file a joint status report thirty days prior
to the status conference; the status report was to address,
as necessary, issues pertaining to enforcement of the order
and the durability of the staffing remedy. Id. at
31. The court later continued the hearing to October 15,
2018, and expanded it to include an evidentiary hearing on
the use of telepsychiatry to give defendants an opportunity
to “prove that the changes they have effected, moving
from limited use of telepsychiatry as a supplement to on-site
psychiatry in the face of short-term staffing shortages, to
the further expansion they appear to be implementing is
consistent with the requirements of the Eighth
Amendment.” ECF No. 5928 at 12; see also ECF
No. 5933.
On
October 5, 2018, ten days before the scheduled hearing, the
court received requests from both parties; plaintiffs
requested a status conference, ECF No. 5936, and defendants
requested a stay of proceedings, ECF No. 5938. The requests
were based on the whistleblower report from Dr. Golding
(hereafter Golding Report). Following a special status
conference on October 10, 2018, the court vacated the
original status conference set to consider enforcement of the
October 10, 2017 order and the evidentiary hearing on the use
of telepsychiatry. ECF No. 5949 at 5; ECF No. 5980. After
hearing from the parties and Dr. Golding's counsel both
orally and in writing, ECF Nos. 5967, 5969, 5976-5978, on
October 25, 2018, the court ordered the Golding Report filed
on the public docket in redacted form.[6] ECF Nos.
5986-5988. A complete unredacted copy of the Golding Report
is filed under seal. ECF No. 5990.
B.
Appointment of Neutral Expert
The
court held a series of hearings, ECF Nos. 5964, 5980, 5995,
issued an order to show cause why the court could not appoint
its own neutral expert, ECF No. 6002, and considered the
parties' responses, ECF Nos. 6009-6012, 6015. On December
14, 2018, the court appointed Charles J. Stevens, Esq. of
Gibson Dunn & Crutcher LLP as the court's neutral
expert under Federal Rule of Evidence 706, “to assist
the court in investigating allegations raised in [the
verified Golding Report) to determine whether defendants have
committed any fraud on the court or the Special Master, or
have intentionally provided false or misleading information
to the court or the Special Master.” ECF No. 6033 at
1-2. The court filed an amended appointment order on January
8, 2019. ECF No. 6064. The amended order modified paragraphs
A(2) and B(4) of the original appointment order, as requested
by the neutral expert, and modified the first paragraph of
that order to reflect events since the December 14, 2018
order was filed. Id. at 1 n.1.
The
court tasked the neutral expert with conducting an
independent investigation to identify facts, if any, that
raised a question whether defendants committed fraud on the
court or intentionally misled the court or Special Master
regarding seven issues the court specifically identified in
its appointment order, as follows:
a. Lengthening the intervals between psychiatric appointments
beyond court-mandated timelines for inmate-patients at the
Correctional Clinical Case Management System (CCCMS) and
Enhanced Outpatient Program (EOP) levels of care who are
transferred to new institutions by resetting the clock for
such appointments from the time of transfer rather than from
the last completed appointment, rescheduling such
appointments at the maximum time allowed in the Program
Guide, and reporting compliance with Program Guide
requirements using the reset timelines. See Golding
Report, ECF No. 5988-1 at 1, 14-23.
b. Lengthening the interval between psychiatrist appointments
for EOP inmate-patients and reporting compliance based on the
extended intervals. See id. at 2, 23-26.
c. Combining CCCMS and EOP appointment compliance numbers
into one reporting category. See id. at 26-27.
d. Inflating compliance numbers by counting every encounter
between a psychiatrist and an inmate-patient as an
appointment for purposes of measuring Program Guide timeline
compliance, without regard to whether the encounter was a
psychiatry appointment or, e.g., a wellness check or a
cell-front attempt to communicate with an inmate patient.
See id. at 5-6, 54-57.
e. The manner of reporting of scheduled appointments and
missed appointments. See id. at 7-8, 35-47, 62-63.
f. Failing to report that psychiatric supervisors were also
performing some or all the functions of staff psychiatrists.
See id. at 5, 56-57.
g. The way in which medication non-compliance is measured.
See id. at 8, 58-62.
Id. at 2-3. The court did not delegate any ultimate
fact-finding authority to the neutral expert, but reserved
that critical role to itself. See ECF No. 6187 at 2.
C.
The Neutral Expert Report
The
neutral expert conducted a four-month investigation, and on
April 22, 2019, submitted a report to the court. See
ECF No. 6135 at 1. Without objection, on May 3, 2019, the
court filed the unredacted Neutral Expert Report on the
public docket. ECF Nos. 6146, 6147.
The
Neutral Expert Report points to substantial indications of
defendants' presenting misleading information to the
court and/or the Special Master, including:
1. Defendants' making the December 2016 business rule
change to redefine “monthly” to lengthen the
intervals between Enhanced Outpatient (EOP) appointments from
30 days to up to 45 days. While in effect, this business rule
generated misleading data about defendants' compliance
with Program Guide requirements for routine EOP evaluations.
ECF No. 6147 at 42, 48.
2. Defendants' reporting of “Timely Psychiatry
Contacts, ” overstating compliance with Program Guide
timeline requirements. Id. at 67. Specifically,
California Department of Corrections and Rehabilitation
(CDCR) data presented to the court and Special Master was
inconsistent with Program Guide requirements and made
defendants' reports in this area appear more compliant
with Program Guide timeline requirements than defendants
actually were. Id.
3. Defendants' reporting of psychiatric evaluations,
erroneously skewed toward confidential evaluations.
Id. at 68. “EHRS [Electronic Health Records
System] data on compliance with Program Guide timelines for
compliance with psychiatric evaluations is potentially
misleading because it includes non-confidential encounters. .
. .” Id.
4. Between 2016 and October 2018, defendants' use of an
incorrect and potentially misleading definition of the
Appointments Seen as Scheduled performance indicator,
resulting in data being provided to the court in June 2018
and to the Special Master as part of the Continuous Quality
Improvement (CQI) evaluations in a “misleading
manner.” Id. at 75-76.
5. Defendants' submitting misleading data on
“Timely Psychiatric Contacts” in support of their
2018 Staffing Proposal in that the data did not accurately
reflect the extent to which appointments were seen by
supervisors rather than line psychiatrists. Id. at
82.
6. Defendants' submitting misleading data on the
timeliness of mental health referrals, “because for
medication noncompliant patients it only counted those
patients for whom a psychiatrist ordered a medication
noncompliance counseling appointment as a matter of
discretion, ” not all patients who require medication
noncompliance appointments. Id. at 84. As a result,
the performance indicator overstated compliance. Id.
at 91.
7. Due to a bug in software, defendants counting cancelled
noncompliance appointments as completed; however, “this
inaccurate data was less favorable to CDCR than the corrected
data.” Id.
The
court provided the parties an opportunity to file substantive
responses to the Neutral Expert Report and then set the
matter for a special status conference on June 10, 2019 to
discuss issues raised in the briefing. ECF No. 6135 at 2.
D.
Review of Materials Defendants Claimed as Privileged
During
the course of the neutral expert's investigation,
defendants filed a motion for protective order, seeking to
avoid producing to the neutral expert documents he requested
but for which defendants asserted claims of attorney-client
privilege and/or work product protection. ECF No. 6086. The
court denied the motion for protective order, specifically
noting the court had already provided those claims would not
be waived by disclosure of “potentially privileged
material . . . to the court's neutral expert during the
investigation and then to the court subject to the claims of
privilege.” ECF No. 6096 at 6. Despite the court's
order, defendants still did not produce the documents to the
neutral expert. See ECF No. 6147 at 14. The neutral
expert declined to litigate the issues, concluding he
“could make the findings requested by the Court
without” doing so. Id. His findings were,
therefore, “subject to the qualification that [he] did
not review information claimed by Defendants to be protected
by attorney-client or work product privileges.”
Id.
At the
June 10, 2019 status conference, the court signaled it would
require defendants to produce the privileged documents to the
court for in camera review, and the court confirmed
its tentative ruling by minute order the same day. ECF No.
6180. On June 14, 2019, defendants filed both a motion for
reconsideration by this court, ECF No. 6188, and an emergency
petition for writ of mandamus in the United States Court of
Appeals for the Ninth Circuit. See Newsom v.
USDC-SAC, CAD # 19-71493 (9th Cir. filed Jun. 14, 2019).
On June 18, 2019, this court denied the request for
reconsideration, ECF No. 6200, and the appellate court denied
the mandamus request the next day. ECF No. 6202. Thereafter,
defendants produced the documents, which the court itself
reviewed in camera; during its review, the court
discussed certain documents in camera on a few
occasions with defendants. See, e.g., ECF Nos. 6270,
6323.[7]
As the
procedural history reflects, defendants have resisted at
every turn any reliance by the court on any portion of any
document for which they have asserted a claim of privilege.
The court's general impression from its review of these
documents is that defendants have overreached in a number of
their privilege claims, although some claims of privilege
would be sustained if not waived by reason of defense
positions taken previously in these proceedings. Nonetheless,
the court has determined that to venture further into the
thicket of these privilege claims would waste valuable court
time and resources and distract from the important, indeed
imperative, tasks that remain to achieve delivery of
constitutionally adequate mental health care to the plaintiff
class. The court therefore has not prolonged these
proceedings by issuing further orders defendants are likely
to appeal. Ultimately on the merits, after careful
consideration, the court has determined it need not rely on
any of the privileged documents.[8]
For
purposes of these proceedings, it is enough to say that
nothing in the privileged documents reviewed by the court
supports a different conclusion than reached below. That is
to say, nothing before the court indicates, directly or by
way of inference, that anyone involved in presenting
misleading information to the court committed intentional
fraud. Rather, the picture that emerges from the documents
reviewed in camera is consistent with the picture
that emerges from the public record created over the course
of the proceedings prompted by the Golding Report. It is this
public record on which the court relies in making its
findings and conclusions.
III.
EVIDENTIARY HEARING
A.
Orders Narrowing Issues for Hearing
In its
June 14, 2019 order following the June 10, 2019 status
conference, the court found that in five of the seven areas
referred to the neutral expert for investigation, he had
identified evidence that, “if confirmed through further
proceedings and accepted by the court, could establish that
misleading data has been presented to the court and/or the
Special Master.” ECF No. 6187 at 2. These areas
included Issues B, D, E, F and G as described in the
court's appointment orders. Id. The court set an
evidentiary hearing to probe those five issues, “to
take evidence, as necessary, to determine (a) whether
misleading data was presented to the court and/or the Special
Master; (b) if misleading data was presented, how and why
that happened; and (c) what action is required to correct the
record and avoid future submission of misleading data.”
Id. The court also directed the parties to meet and
confer in an effort to determine whether they could
“stipulate to one or more of the underlying facts
suggested by the results of the neutral expert's
investigation.” Id.
On
August 8, 2019, the court held a telephonic prehearing
conference. ECF No. 6236. The court then filed an order on
August 14, 2019, confirming and clarifying several matters
covered at that conference. ECF No. 6242. In particular, the
court found the parties had stipulated to several key facts
suggested by the Neutral Expert Report and defendants had
admitted that misleading information was provided to the
court. See id. at 5-11; see also 10/23/19
RT at 444:67. As a result, the court narrowed the scope of
the evidentiary hearing, identifying the issues remaining for
hearing as follows:
• Why neither Dr. Leidner nor Dr. Ceballos consulted
with Dr. Golding in connection with the decision to change
the definition of “monthly” in the relevant
business rule, and why no one from CDCR informed the Special
Master or any member of his team about this change;
• How the Appointments Seen as Scheduled indicator was
developed incorrectly and in the absence of consultation with
Dr. Golding or other quality control measures, and what steps
defendants plan to take to ensure indicators and definitions
are developed with appropriate consultation and quality
control in the future; and
• Why defendants did not disclose in their 2018 Staffing
Proposal whether, and to what extent, the reporting of data
related to average frequency of patient contacts did not
disclose the use of supervisory psychiatrists to complete
caseload contacts with patients; and to what extent
defendants knowingly relied on active participation of
supervisory psychiatrists in performing the duties of line
psychiatrists both in defendants' 2018 Staffing Proposal
and in supporting their representation that, if adopted, the
2018 Staffing Proposal would bring defendants into compliance
with the October 2017 staffing order.[9]
ECF No. 6242 at 5, 9-10; see also ECF No. 6288 at 2.
B.
Evidentiary Hearing Schedule
The
court convened the evidentiary hearing commencing on October
15, 2019. ECF No. 6345. The court heard testimony from eight
witnesses over two days, asking its questions first and then
allowing the parties to ask questions; the court admitted
several exhibits into evidence as moved by the parties. ECF
Nos. 6345, 6350. In addition, the court received deposition
testimony from Dr. Kevin Kuich, a psychiatrist, in lieu of
his live testimony. See Annotated Deposition
Transcript of Kevin Kuich, dated 9/19/2019 (Kuich Dep.), ECF
No. 6406; see also ECF No. 6357 (resolving
objections to parts of Kuich Testimony).[10] Additionally,
in accordance with the parties' stipulation, the court
accepted declarations from defendants' attorneys Rae
Onishi, Esq., Nicholas Weber, Esq. and Melissa Bentz, Esq. in
lieu of their live testimony. See ECF No. 6337;
see also 10/23/19 RT at 444:2-7.
Following
hearing, on October 22, 2019, the court heard closing
argument from plaintiffs and defendants. ECF No. 6364;
see also Reporter's Transcript of Proceedings
(10/22/19 RT), ECF No. 6379. The court also received a
written statement regarding the evidence presented at hearing
from Dr. Golding's counsel. ECF No. 6362. On October 23,
2019, the court pronounced oral findings and conclusions in
open court. ECF No. 6365. It is those findings and
conclusions that are memorialized in this order.
C.
Witnesses
As
discussed above, the court heard live testimony from eight
witnesses and received the deposition testimony of a ninth
witness. The record memorializes the testimony of all the
witnesses and ultimately their testimony speaks for itself.
The court has considered all of the testimony and exhibits.
The court's assessment of certain witnesses in
particular, including their credibility and the substance of
their testimony, is central to the court's findings and
conclusions, and to the clarification, cleansing and purging
necessary to move this case forward. The court therefore
reviews its assessments of these selected witnesses below.
1.
Dr. Michael Golding
The
court first heard from Dr. Golding. Based on the substance of
his testimony and his demeanor on the witness stand, the
court finds Dr. Golding credible. His observations and
conclusions overall are well-founded. When he learned that
the psychiatrist compliance indicator for timeliness of EOP
appointments on the Mental Health Dashboard[11] “had
turned green, ” he asked a Senior Psychiatrist
Specialist member of his headquarters team, Dr. Melanie
Gonzalez, [12] to “look at the data to see what
was going on.” 10/15/19 RT at 45:2-7; 76:6-11. Working
with Dr. Kuich, [13] see Kuich Dep. at 89:25-94:11,
Dr. Gonzalez performed the requested analysis, and that
analysis informs the conclusions in Dr. Golding's Report
as well as in her report. The defendants' contentions
articulated in their closing, that Dr. Golding “just
about disagrees with everyone, ” 10/22/09 RT at 426:4,
and that he has a pro-psychiatry bias, are not well-founded
and even if they contain a grain of truth do not undermine
the doctor's credibility. Whether or not Dr. Golding has
a disagreeable side, which was not evident during his
testimony, is irrelevant to whether he testified credibly and
knowledgeably. And it would be understandable if he has a
pro-psychiatry bias. He is, after all, a chief psychiatrist
with CDCR, and it is hard to see how advocating for his
professional counterparts and the integrity of the mental
health care delivery system in CDCR displays a bias that
undermines his credibility.
Finally,
contrary to defendants' attempt to paint Dr. Golding as a
solo outlier, his testimony and his report on the serious
matters at issue here do not stand alone. Both Dr.
Gonzalez's report and Dr. Kuich's deposition
testimony corroborate Dr. Golding's position in
substantial and significant ways. Dr. Kuich's deposition,
in particular, provides a very helpful narrative, placing
essential pieces of evidence into context in a way that
brings the considerable bureaucratic dysfunction within
defendants' operations into clearer focus.
Dr.
Golding's explanation for why he was not able to
satisfactorily resolve the issues he raised internally and
for why he provided his report to the Plata Receiver
rather than the Coleman Special Master also are both
credible and evidence of the dysfunction illuminated by these
proceedings.
In one
respect, the court does not find other evidence in the record
to support Dr. Golding's strong belief that the
Governor's Office expressly directed the provision of
misleading data to the court. Additionally, the court cannot
on the present record and does not resolve whether
then-Deputy Director Tebrock told Dr. Golding that by telling
her about fraud he had “unburdened [him]self, ”
10/15/19 RT at 26:19-27:1, because she is an officer of the
court, a statement Ms. Tebrock denies making, see
id. at 98:8-18.
2.
Katherine Tebrock
At
times relevant to the events that gave rise to the Golding
Report, Ms. Tebrock was Deputy Director of CDCR's
Statewide Mental Health Program. 10/15/19 RT at 82:13-20. She
left that position voluntarily on July 12, 2019. Id.
at 82:18-22. She is still employed by the State of
California, though she does not work for CDCR and is not a
gubernatorial appointee. Id. at 105:1-9. Ms. Tebrock
is a person of obvious intelligence and significant
abilities. While the court found her testimony credible, that
testimony was also disappointing given the overall message it
sent. Ms. Tebrock failed to fully accept responsibility for
her own failures, including failures in the leadership she
was required to exercise given her role as Deputy Director.
Perhaps she too was a victim of the bureaucratic dysfunction
so plainly evidenced by the record here, and not provided
adequate leadership training and support to manage the
demands of the complex environment in which she was working.
That said, Ms. Tebrock signed at least one key declaration in
this case during the relevant time frame and that
declaration, which contained misleading information, was
filed with the court. See 10/15/19 RT at
103:19-104:6 (discussing ECF No. 5591-2, March 30, 2017
declaration of Ms. Tebrock containing data based on changed
business rule that extended timelines between EOP
appointments from 30 to 45 days). And she did not ask anyone
to correct the data in that declaration even after she became
aware of Dr. Golding's report. 10/15/19 RT at
103:19-104:26.[14] She also signed at least five EOP
Administrative Segregation Unit (ASU) Hub certification
letters[15] tendered to the Special Master between
January 2017 and May 2017, which contained data created with
the changed business rule. See 10/15/19 RT at
105:20-25 (Tebrock testimony that she signed EOP ASU Hub
certification letters monthly); see also ECF No.
6330 at 4 (correcting EOP ASU Hub certification letters
submitted to the Special Master between January 2017 and May
2017). Although defendants initially took the position they
did not have to correct these letters, see ECF No.
6257 at 26-27, on October 10, 2019, defendants did send a
letter to the Special Master containing corrected data for
these letters.[16] See ECF No. 6330. Although Ms.
Tebrock testified at hearing that she would, if given the
chance, correct any pleadings containing erroneous data,
10/15/19 RT at 123:22-124:2, this offer comes too late and
rings hollow. Defendants have been given many months since
Dr. Golding filed his report to correct the record, including
during the time Ms. Tebrock remained at CDCR. For reasons
that are unclear to the court, Ms. Tebrock never availed
herself of those opportunities.
Ms.
Tebrock's handling of the defendants' misguided 2018
staffing proposal was also inexplicably constrained, as if
carefully curated to preclude meaningful input from
psychiatry. Her explanation for her failure to give Dr.
Golding a written draft of the staffing proposal before it
was finalized - that the proposal was a court document to be
wordsmithed by lawyers and therefore its substantive content
tightly controlled by lawyers - is wholly unsatisfactory,
given lawyers' unbending obligation to ensure information
submitted to the court is, among other requirements,
“not being presented for any improper purpose”
and “factual contentions have evidentiary
support.” See 10/15/19 RT at 99:25-100:22;
Fed.R.Civ.P. 11(b). When Dr. Toche later was asked ...