LAWRENCE K. KARLTON, Senior District Judge.
In ongoing sequelae to defendants' January 7, 2013 motion to terminate this action (hereafter "termination motion") (ECF No. 4275), two additional motions brought by plaintiffs for enforcement of court orders and affirmative relief are before the court.
The matters at bar were also tendered as grounds for denying defendants' termination motion. See Corr. Pls. Opp. To Defs. Motion to Terminate, filed Mar. 19, 2013 (ECF No. 4422) at 58-65; 87-91.
Because the plaintiffs relied in part on the matters considered in this order, the court holds that this order is a further demonstration that the order denying the motion to terminate was properly denied.
Plaintiffs' motions present two questions: First, have defendants sufficiently remedied Eighth Amendment violations in use of force, disciplinary measures, and segregated housing relative to class members, which were identified in the court's 1995 decision on the merits of plaintiffs' Eighth Amendment claims? Second, if the answer to the first question is no, what additional remedial measures are required to end ongoing Eighth Amendment violations in these areas?
At the outset, the court wishes to recognize the overall significant progress the defendants have made relative to providing constitutionally required care to the plaintiffs' class. Indeed, though defendants' motion to terminate was clearly premature, recognition of the progress made is important. Nonetheless, for the reasons discussed below, the answer to the first question is no. The answer to the second question is determined by what the Eighth Amendment requires when seriously mentally ill individuals are incarcerated.
The very difficult questions presented by the motions at bar are a consequence of the fact that California incarcerates tens of thousands of seriously mentally individuals in its state prison system.
All members of the plaintiff class suffer from serious mental disorders. The Correctional Clinical Case Management System (CCCMS) provides mental health services to seriously mentally ill inmates with "stable functioning in the general population, Administrative Segregation Unit (ASU) or Security Housing Unit (SHU)" whose mental health symptoms are under control or in "partial remission as a result of treatment." Pls. Ex. 1200, MHSDS Program Guide, 2009 Revision, at 12-1-7. In September 2013, 28,360 mentally ill inmates were at the Correctional Clinical
The remaining three levels of mental health care are for seriously mentally ill inmates who, due to their mental illness, are unable to function in the general prison population. The Enhanced Outpatient Program (EOP) is for inmates with "acute onset or significant decompensation of a serious mental disorder." Pls. Ex. 1200 at 12-1-7, 12-1-8. EOP programs are located in designated living units at "hub institution[s]." Id. at 12-1-8. In September 2013, 4,538 mentally ill inmates were at the Enhanced Outpatient Program (EOP) level of care. Pls. Ex. 2303.
Mental Health Crisis Beds (MHCBs) are for mentally ill inmates in psychiatric crisis or in need of stabilization pending transfer either to an inpatient hospital setting or a lower level of care. Pls. Ex. 1200, Program Guide at 12-1-8. MHCBs are generally licensed inpatient units in correctional treatment centers or other licensed facilities. Id. at 12-1-9. Stays in MHCBs are limited to not more than ten days. Id. at 12-5-1.
In addition to the foregoing, resolution of the motions at bar turns on understanding the nature of the inquiry before the court. In relevant part, in 1995 this court found that "seriously mentally ill inmates [are] being treated with punitive measures by the custody staff to control the inmates' behavior without regard to the cause of the behavior, the efficacy of such measures, or the impact of those measures on the inmates' mental illnesses." Coleman v. Wilson, 912 F.Supp. 1282, 1320 (E.D.Cal. 1995). The court also found that "mentally ill inmates are placed in administrative segregation and segregated housing without any evaluation of their mental status, because such placement will cause further decompensation, and because inmates are denied access to necessary mental health care while they are housed in administrative segregation and/or segregated housing." Id. at 1320. Finally, the court found that "weapons are used on inmates with serious mental disorders without regard to the impact of those weapons on their psychiatric condition, and without penological justification." Id. at 1323.
In analyzing the merits of plaintiffs' claims, the court applied the well-settled principle that "[a]n Eighth Amendment violation is comprised of both an objective component and a subjective component." Id. at 1298 (citing Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The objective component turns on whether the alleged
The subjective component of an Eighth Amendment violation requires a finding that the defendants have a "sufficiently culpable state of mind". Wilson, 501 U.S. at 298, 111 S.Ct. 2321 (citing Rhodes). This requires the court "to assess whether the conduct at issue is `wanton.'" Coleman v. Wilson, 912 F.Supp. at 1321 (quoting Jordan v. Gardner, 986 F.2d 1521, 1527 (9th Cir.1993))
Coleman v. Wilson, 912 F.Supp. at 1321-22 (quoting Jordan, 986 F.2d at 1527-28). The Eighth Amendment violations at bar were all predicated on findings that defendants' policies and practices governing the use of force, punitive measures, administrative segregation and segregated housing constituted deliberate indifference to class members' serious mental illnesses and the serious and substantial harms to members of the plaintiff class caused by use of such measures. See Coleman v. Wilson, 912 F.Supp. at 1319-1323.
Defendants now oppose plaintiffs' motion concerning use of force and disciplinary measures on the ground that there is no pattern and practice of malicious and sadistic use of force against mentally ill inmates. See Defs.' Opp'n to Motion Related to Use of Force and Disciplinary Measures, filed July 24, 2103 (ECF No. 4704) at 8. To some extent, this aspect of defendants' opposition may have been invited by some of the arguments advanced by plaintiffs in their motion.
First, application of that standard to the claims at bar was rejected by the court in 1995. While a different claim or changed circumstance might justify application of that standard, that appears not to be the case here. Accordingly, the law of the case doctrine applies to the instant motion. See, e.g. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983).
Second, as the court discussed in its order denying defendants' motion to terminate this action, 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. To the extent the subjective component of an Eighth Amendment violation remains a relevant inquiry, it is coextensive with proof of ongoing objectively unconstitutional conditions. Id. at 989.
Defendants also argue that an assessment of whether defendants are subjectively deliberate indifferent should include examination of whether the conduct or regulations at issue are "without penological justification" and that the factors outlined in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) "may be instructive in evaluating whether regulations challenged under the Eighth Amendment have a legitimate penological purpose." Defendants' Post-Evidentiary Hearing Brief, filed January 21, 2014 (ECF No. 4988) at 7. This argument misses the mark.
Violations of the Eighth Amendment are not excused by an asserted "reasonable relationship" to a legitimate penological goal. See Johnson v. California, 543 U.S. 499, 511, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005); see also Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (en banc). Turner applies where the constitutional right at issue is "one which is enjoyed by all persons, but the exercise of which may necessarily be limited due to the unique circumstances of imprisonment.... Eight Amendment rights do not conflict with incarceration; rather, they limit the hardships which may be inflicted upon the incarcerated as `punishment.'" Jordan, 986 F.2d at 1530 (citing Spain v. Procunier, 600 F.2d 189, 193-94 (9th Cir.1979)). "[T]he integrity of the criminal justice system depends on full compliance with the Eighth Amendment." Johnson, 543 U.S. at 511, 125 S.Ct. 1141.
Spain v. Procunier, 600 F.2d at 193-94 (emphasis added).
"The existence of a legitimate penological justification has, however, been used in considering whether adverse treatment is sufficiently gratuitous to constitute punishment for Eighth Amendment purposes." Grenning v. Miller-Stout, 739 F.3d 1235, 1240 (9th Cir.2014) (citing Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)) (in turn quoting Gregg v. Georgia, 428 U.S. 153, 183, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)). Thus, the presence of a legitimate penological justification for conditions of confinement challenged under the Eighth Amendment may be considered in determining whether the challenged condition constitutes punishment prohibited by the Eighth Amendment. See Grenning, 739 F.3d at 1240 (discussing Chappell v. Mandeville, 706 F.3d 1052, 1058 (9th Cir.2013) and Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir.1996)). Nonetheless, in this case such consideration is necessarily delimited by the necessity of consideration of class members' mental status. The interrelationship of these two legitimate considerations is the crux of the problem considered herein.
In sum, failure to properly consider the mental state of class members requires the court to act. If defendants fail to meet their Eighth Amendment obligations, this court must enforce compliance. See Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1928, 179 L.Ed.2d 969 (2011) (citing Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). "Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration." Brown v. Plata, 131 S.Ct. at 1928-29.
Finally, defendants assert that plaintiffs have the burden of proof on this motion. Plaintiffs do not dispute this assertion.
Given all the above, the court now turns to the motions at bar.
The Eighth Amendment violation with respect to use of force (hereafter "use of force" or "UOF") arises from policies and practices that permit use of force against seriously mentally ill prisoners without regard to (1) whether their behavior was caused by mental illness and (2) the substantial and known psychiatric harm and risks thereof caused by such applications of force. See Coleman v. Wilson, 912 F.Supp. at 1322. The record showed then, and still shows, that force can be and is used against seriously mentally ill inmates in circumstances that permit reflection prior to its application. See id., 912 F.Supp. at 1321-23; see also Ex. A to Declaration of Michael D. Stainer, filed March 12, 2014 (ECF No. 5111-1).
In addition to the legal principles set forth supra, two other principles guide the court's consideration of the issues at bar. First, there appears to be general agreement among the appellate courts that have considered the question that "`it is a violation of the Eighth Amendment for prison officials to use mace, tear gas or other chemical agents in quantities greater than necessary....'" Williams v. Benjamin, 77 F.3d 756, 763 (4th Cir.1996) (quoting Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984)). "This is because, even when properly used, such weapons `possess inherently dangerous characteristics capable of causing serious and perhaps irreparable injury to the victim.'" Williams, 77 F.3d at 763 (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985)). Second, at least one appellate court has found that the Eighth Amendment is violated by use of pepper spray on a mentally ill inmate who, because of mental illness, is unable to comply with directives from prison officials and nonetheless is subjected to pepper spray. See Thomas v. Bryant, 614 F.3d 1288, 1310-11 (11th Cir.2010) ("repeated non-spontaneous use of chemical agents" on mentally ill inmate "constituted an extreme deprivation sufficient to satisfy the objective prong" of Eighth Amendment deliberate indifference claim where inmate's "well-documented history of mental illness and psychotic episodes rendered him unable to comply at the times he was sprayed such that the policy was `unnecessary' and `without penological justification in his specific case.'")
Taken together, the foregoing two lines of authority suggest that the Eighth Amendment requires clear and adequate constraints on the amount, if any, of pepper spray that may be used on mentally ill inmates generally and more particularly when such inmates are confined in a space such as a cell or a holding cage, as well as significant constraints, if not a total ban, on the use of pepper spray on mentally ill inmates who because of their mental illness are unable to comply with official directives.
The court now turns to the merits of plaintiffs' motion with respect to use of force.
Defendants' written UOF policy is found in Title 15 of the California Code of Regulations at §§ 3268-3268.3 and CDCR's Department Operations Manual Chapter 5, Article 2-Use of Force (DOM). Defs. Ex.
DOM provisions governing UOF have been revised twice since the conclusion of the evidentiary hearing.
The court accepts Mr. Stainer's testimony that none of the force depicted on the six videotapes was excessive under then-existing guidelines in CDCR policy. In combination with the events depicted on the videotapes, that testimony is perhaps the best evidence that the constitutional violation with respect to use of force on seriously mentally ill inmates has not yet been remedied.
The court cannot credit Mr. Stainer's testimony that what was depicted on the six videos shown at the hearing depicted acceptable "tactics." Most of the videos were horrific; each was illustrative of one or more of the objective components of the underlying constitutional violation found in the court's 1995 order. Defendants' expert, Steve Martin, testified that the fact that the events depicted on the videotapes "occurred is bad enough, and, hopefully, they're as few in number, as I believe them to be, ... But what is so bothersome and disturbing is that no — this sophisticated IERC (Institutional Executive Review Committee) with all these ranking administrators experienced as Director Stainer is, could read these reports and not at least question the amount of spray or the
Even if the incidents on the videotapes were, as Mr. Martin testified, "isolated aberrations, anomalies, outliers" that "do not ... represent the vast majority of incidents" he reviewed, RT at 1795:3-8, Mr. Stainer's testimony establishes that all of the incidents fell within the purview of defendants' UOF policy. Furthermore, both Mr. Martin and Mr. Stainer testified that none resulted in further review beyond the IERC or, except for some "trainings", corrective action independent of these proceedings. RT at 954:6-17 (Stainer); RT at 1901:16-1903:12 (Martin). This, in itself, demonstrates the constitutional inadequacy of either the regulations or the review process.
In addition, plaintiffs' evidence suggests that force is used against mentally ill inmates at a rate greatly disproportionate to their presence in the overall inmate population. Plaintiffs' expert, Eldon Vail, reported that twelve of California's prisons reported use of force incidents against mentally ill inmates at a rate more than double their representation in the prison population, three prisons reported use of force incidents against mentally ill inmates at a rate triple their representation in the prison population, and in several, 87 to 94% of the use of force incidents were against mentally ill inmates. Expert Declaration of Eldon Vail, filed May 29, 2013 (ECF No. 4638-1) at ¶¶ 9-11. As Mr. Vail opined, this is evidence, at least, of a systemic failure to understand "what a mentally ill person might be experiencing before or during a use of force incident, or of how mental illness may make it difficult for an inmate to immediately conform his or her behavior in response to an order." Id. at ¶ 12.
Mr. Stainer also testified to the need for revisions to the policy to guide staff in making "appropriate" UOF decisions and that the UOF guidelines would be "tighten[ed] down ... quite a bit." RT at 826:16-25. The policy revisions are a critical step forward and, if fully implemented and enforced, will bring the state closer to remediation of the identified Eighth Amendment violation. Without more, however, seriously mentally ill inmates in California's prisons will remain subject to uses of force by custody staff armed with OC pepper spray and expandable batons "without regard to the impact of those weapons on their psychiatric condition." Coleman v. Wilson, 912 F.Supp. at 1323.
Title 15 and the DOM divide use of force incidents into two categories: immediate and controlled. "Immediate use of force" is "[t]he force used to respond without delay to a situation or circumstance that constitutes an imminent threat to the security or the safety of persons." 15 C.C.R. § 3268(a)(4); see also DOM § 51020.4. "Controlled use of force" is defined as "[t]he force used in an institution/facility setting when an inmate's presence or conduct poses a threat to safety or security and the inmate is located in an area that can be controlled or isolated." 15 C.C.R. § 3268(a)(5); see also DOM § 51020.4. The DOM provisions expand on the regulations by providing that immediate uses of force may be used by employees without prior authorization, while controlled uses of force require authorization and presence of specific personnel. See DOM § 51020.4.
The differences between these two categories are significant to the remedy in this case. "Immediate" uses of force are applied without the reflection and intervention that can avoid or prevent the serious
Plaintiffs' expert, Eldon Vail, testified that the appropriate criteria for immediate use of force is already in California's use of force policy, which on its face requires an "imminent threat" to justify an immediate use of force. RT at 436:7-8, 436:24-473:3; see also RT at 1935:11-14 (testimony of defense expert Steven Martin that "immediate use of force is supposed to be used only if there's some imminent harm that needs to be stopped.") Mr. Vail's principal critique of the written policy was a then-existing exception in § 51020.11.2 of the DOM which allowed immediate use of force against inmates who refused to relinquish their food ports. See Ex. A to Stainer Decl. (ECF No. 4708-1) at 5. Mr. Vail testified that was a "really huge flaw" in defendants' use of force policy. RT at 553:5-554:4. Newly amended § 51020.11.2 has removed that exception and no longer authorizes immediate use of force when an inmate refuses to relinquish a food port. Instead, "[i]n the event the inmate does not relinquish control of the food port, the officer shall back away from the cell and contact and advise the custody supervisor of the situation. Controlled force will be initiated while custody staff continue to monitor the inmate." Ex. A to Stainer Decl. (ECF No. 5111-1) at 9.
Mr. Stainer averred that the revisions to the DOM concerning the food ports were made "to emphasize CDCR's policy that the immediate use of pepper spray is only authorized in response to an emergent or imminent threat." Stainer Decl. (ECF No. 5111-1) at ¶ 3. As revised, defendants' current written policy concerning immediate use of force appears to be adequate on its face. However, testimony at the hearing and the nature of the revisions to the DOM highlight both the importance of adequate training in the revisions to the policy and the necessity of monitoring immediate uses of force to ensure that they are limited to "imminent threats."
The record before the court suggests that for an extended period of time CDCR staff have been working with a broad definition of "imminent threat." In addition to the food/security port exception, there was evidence at the hearing that immediate use of force was authorized by policy when, even without an imminent threat, inmates kicked their cell doors. RT at 436:5-9. Defendants' expert Steve Martin testified that "[t]here are substantially more use of force incidents [in CDCR] that are immediate and not controlled." RT at 1966:9-13. He testified concerning a high percentage of immediate use of force incidents at Pelican Bay in the period from January to October 2012. RT at 1935:18-1937:3. He reviewed 180 incidents of use of force, 174 of which had been characterized as "`immediate applications of force.'" RT at 1935:15-1936:9. In reviewing those incidents, he "identified fairly quickly a number of incidents" categorized as "immediate" uses of force that evidence showed "could have been managed through `controlled force.' RT at 1936:17-19. Those incidents evidenced unnecessary uses of force. See RT at 1967:17-1968:4 ("immediate" use of force where "controlled use of force" was possible demonstrates unnecessary use of force "because if you could have waited and taken time, distance and
The foregoing suggests that heretofore immediate use of force has been used with far greater frequency than authorized by the written policy testified to by Mr. Stainer. It will be necessary going forward for defendants to provide adequate staff training and to closely monitor all UOF incidents, particularly those classified as "immediate" uses of force, to ensure that these policy revisions are actually effected.
The issues with respect to controlled use of force are different. They concern (1) whether defendants obtain the relevant information concerning an inmate's mental illness prior to application of force; and (2) what is done with the information that is obtained.
Section 51020.4 of the DOM defines controlled use of force as
Ex. A to Stainer Decl. (ECF No. 5111-1) at 6. In addition to the definitional provision, several other DOM provisions are relevant to the issues before the court.
The use of force options available to CDCR officers are set forth in DOM § 51020.5. That section provides:
DOM section 51020.12 sets forth the general requirements for controlled use of force. Ex. A to Stainer Decl. (ECF No. 5111-1) at 9-10. It requires that mental health concerns "be taken into account prior to any controlled use of force." Id. at 10. It also requires that all controlled uses of force
Id. at 10.
Controlled uses of force must be video recorded. See id., DOM § 51020.12.1. DOM § 51020.12.1 vests the Incident Commander with the responsibility for "determining what force options shall be used and the order in which they will be applied." Ex. A to Stainer Decl. (ECF No. 5111-1) at 11. The Incident Commander is required to "consider", inter alia, the inmate's "apparent mental state" when determining those force options. Id. The First or Second Level Manager/AOD must "identify themselves on camera and confirm they are authorizing the controlled use of force, including the force options as stated by the Incident Commander." Id. The attempted clinical intervention, which is described as "efforts made to verbally counsel the inmate and persuade the inmate to voluntarily come out of the area without force" is to be recounted on camera by the licensed health care practitioner who attempted the intervention; the actual intervention is not recorded. Id.
DOM § 51020.12.2 contains specific provisions for controlled uses of force involving seriously mentally inmates, as follows:
Id. at 12. Former DOM § 51020.12.2 was substantially similar; the amendment adds language extending its provisions to "any inmate who is acting in a bizarre, unusual, uncharacteristic manner." See Ex. A to Stainer Decl. (ECF No. 5078-1) at 8. The provisions of DOM § 51020.12.2 are "additional safeguards and requirements" to be followed for controlled UOF on mentally ill inmates; the other provisions of the UOF policy also continue to apply. RT at 806:17-807:24.
The amendments to the DOM change in significant ways the amount of pepper spray authorized in controlled UOF incidents. Amended DOM § 51020.15 lists the specific types of pepper spray authorized for use, the number of applications, and the duration of each application. Ex. A to Stainer Decl. (ECF No. 5111-1) at 14-15. Staff must wait a minimum of three minutes after an application of pepper spray before applying another application, and the Incident Commander and Response Supervisor must assess the effectiveness of each application. Id. at 15. No more than four applications of pepper spray are permitted, except that "[i]n exigent or unusual circumstances it may be necessary to exceed the 4 allowed applications." Id. Additional applications must be specifically authorized by the First or Second Level Manager/AOD, and each must be explained on the video recording. Id. The Incident Commander and the Response Supervisor are required to consult with each other and "consider the totality of circumstances to determine the best course of action." Id. Additional consultation is required for mentally ill inmates:
Id.
Amended DOM § 51020.15.1 limits the OC products that can be used in "one/two person celled housing, single person expanded metal holding cells, showers, or any other small space." Ex. A to Stainer Decl. (ECF No. 5111-1) at 16. In addition, this section contains specific language governing use of pepper spray in controlled use of force incidents involving mentally ill inmates at the EOP level of care or higher:
Id. at 16. Unlike amended DOM § 51020.12.2, the provisions of this section do not extend to "any inmate who is acting in a bizarre, unusual, uncharacteristic manner." See id.
In addition, the amended provisions stand in contradistinction to DOM § 51020.14.1, which prohibits the use of less lethal weapons on seriously mentally ill inmates "housed in departmental hospitals, infirmaries, or other CDCR medical facilities, or who have an EOP level of care designation" in controlled use of force incidents unless authorized by the Institution Head, Chief Deputy Warden, or AOD and "[c]ircumstances [are] serious in nature calling for extreme measures to protect staff or inmates, i.e., the inmate may be armed with a deadly weapon." Ex. A to Stainer Decl. (ECF No. 4708-1) at 6.
Once again, the DOM revisions concerning controlled use of force evidence an effort to heighten consideration of the impact of UOF measures on mentally ill inmates. Nonetheless, it appears to the court that the measures do not meet Eighth Amendment standards.
First, defendants' policy concerning controlled use of force on the seriously mentally ill inmate fails to require consideration of the inmate's ability to conform his or her conduct to the order or directive giving rise to the use of force. Defendants' expert, Steve Martin, testified that "without qualification" the inmate's ability to comply with orders must be considered if policy permits use of force for disobedience with an order, and that it is not appropriate to use of pepper spray to obtain compliance with orders a seriously mentally ill inmate cannot and does not understand. RT at 1871:14-25, 1872:6-24. This factor must be considered. Cf. Thomas v. Bryant, 614 F.3d at 1311.
Second, the policy revisions do not vest mental health clinicians with sufficient authority in decisions concerning use of force. In every instance, final decisionmaking responsibility and authority for all uses of force rest with custodial staff. While consultation with mental health staff is required, custody staff is authorized to override clinical judgments without sufficient guidance about which clinical judgments, if any, may be overridden and under what circumstances. Cf. Gates v.
Mr. Stainer is to be commended for the steps he has taken to "tighten down" the use of force guidelines for use of force against members of the plaintiff class. The fact that additional work remains does not take away from the court's recognition that Mr. Stainer appears to have taken his responsibility in this area seriously. The court anticipates that with continued diligence, full remediation can be achieved.
Defendants must complete the work begun by Mr. Stainer so that their policies and practices relative to use of force on seriously mentally ill inmates include (1) consideration of the role of mental illness in an inmate's ability to comply with staff directives; (2) adequate guidance concerning the role of mental health clinical judgments in use of force on class members and when, if ever, those judgments may be overridden by custody staff; and (3) alternatives to use of force on seriously mentally ill inmates where there is no imminent threat to life and force is contraindicated by the inmate-patient's mental health.
Plaintiffs also challenge the use of the expandable baton on class members. Both plaintiffs' expert, Mr. Vail, and defendants' expert, Mr. Martin, agreed that the expandable baton is an impact weapon whose primary function is self-defense. See Vail Decl. (ECF No. 4638-1) at ¶¶ 31-32; Ex. 1 to Declaration of Lori E. Rifkin (ECF No. 4638-8) at 8. At the time of the hearing, the court heard testimony that the expandable baton is worn by California correctional officers as "standard issue" on their duty belts. RT at 88:18-23 (Vail); RT at 1811:5-9. Defendants' expert testified that there is not "sufficient guidance in either the regs or training materials" concerning the use of these batons. RT at 1812:17-19.
Although it is not clear, it appears that defendants' revised use of force policy may have changed the practice of standard issuance of expandable batons. See Ex. A to Stainer Decl. (ECF No. 5111-1) at 12 (DOM § 51020.12.3 including expandable baton in list of extraction equipment to "be issued" if extraction is necessary). Defendants will be directed to clarify this.
Defendants shall work under the guidance of the Special Master to make the additional revisions to the use of force policy and the clarifications and guidance concerning the use of the expandable baton required by this order. The Special Master, shall provide expertise where necessary, and shall ensure that plaintiffs are provided notice and an opportunity for input as appropriate. The revisions shall be completed within sixty days.
Plaintiffs also contend that further remedial orders are required to remedy the identified constitutional violation in defendants' use of disciplinary measures against mentally ill inmates. The constitutional violation was based in a finding that seriously mentally ill inmates "`who act out are typically treated with punitive measure without regard to their mental status.'" Coleman v. Wilson, 912 F.Supp. at 1320. The court found "substantial evidence in the record of seriously mentally ill inmates being treated with punitive measure by the custody staff to control the inmates' behavior without regard to the cause of the
In 1995, the violation was attributed in substantial part to inadequate training of custody staff in the signs and symptoms of mental illness. Id. During the remedial phase of this action, defendants have developed a mental health assessment process for prison disciplinary proceedings involving most seriously mentally ill inmates. By September 2001, defendants had completed a final draft of a policy that required a mental health assessment of all EOP and MHCB inmates charged with rules violations "to determine if the behavior of the inmate resulting in the rule violation was influenced by a mental disorder." Ex. 3 to Declaration of Jane E. Kahn, filed May 29, 2013 (ECF No. 4640) at 34.
Formulation of policy for mental health assessment of CCCMS inmates charged with rules violations has proceeded more slowly. See Seventeenth Monitoring Report of the Special Master, Part B, filed April 2, 2007 (ECF No. 2180-1) at 44-47; Twenty-Third Round Monitoring Report of the Special Master, filed December 1, 2011 (ECF No. 4124) at 31-39. The relevant history is set forth in the Special Master's Twenty-Third Round Monitoring Report. See Twenty-Third Round Monitoring Report (ECF No. 4124) at 31-39; see also Kahn Decl.(ECF No. 4640) at ¶¶ 19-20 (citing Twenty-Third Round Monitoring Report).
In August 2007, defendants were ordered to develop and plan "for identifying and developing changes necessary to broaden the impact of the then-existing mental health assessment process in CDCR prison disciplinary matters for 3CMS inmates." Twenty-Third Round Monitoring Report (ECF No. 4124) at 31-32. Initially defendants submitted a revised plan to the Special Master on May 1, 2008, with several representations, including completion of a pilot by August 5, 2008, and a representation that by November 1, 2008 they would "develop an implementation plan that includes a procedure for effective monitoring of the RVR process." Id. at 34. However, defendants submitted nothing further to the Special Master for over three years after the May 2008 report. Id.
In June 2011, after repeated requests from the Special Master, defendants produced a report on the pilot which showed that key elements had never been implemented or piloted. Id. at 35-36. Moreover, the June 2011 report "concluded with a list of five actions for statewide application that bore very little resemblance to" the May 2008 plan and "signalled too much of a retreat for the original assessment process of 1998, when a mental health evaluation was required for every Coleman caseload inmate who received an RVR." Id. The Special Master reported that
Id. at 38.
On May 10, 2011, defendants circulated a new field memorandum directing completion of mental health assessments for 3CMS inmates charged with the most serious disciplinary infractions. Id. Thereafter, the Special Master and the parties had a "handful of meetings in September and October 2011" which resulted in an agreement between the parties and approved by the Special Master for a newly
At the hearing, plaintiff's expert Eldon Vail testified that CDCR's prison disciplinary process does not "systematically take[ ] into account the mental illness of inmates in their system, and the result is that inmates are often punished for their mental illness." RT at 464:21-465:2. Mr. Vail's opinion in this regard is based on, inter alia, review of "more than 268 RVR reports," all of defendants' expert's file for the termination proceedings, and CDCR's RVR policies and procedures. Expert Declaration of Eldon Vail in Support of Reply Brief, filed August 23, 2013 (ECF No. 4766-2) at ¶ 2. Mr. Vail also testified that although defendants have policies and procedures designed to account for the role of mental illness in rules violations, defendants do not capture sufficient "aggregate data" to assess whether these policies and procedures are in fact working. RT at 465:3-12. He testified that during his review he "looked at lots of examples, individual examples, granular examples" where they were not working. RT at 465:13-15.
The testimony of defendant's expert Steve Martin in this regard was similar. Mr. Martin testified that he reviewed over 400 rules violation reports issued to inmates who refused orders to cuff up and were subsequently charged with obstructing or disobeying a peace officer and, where they were completed, the mental health assessment forms completed as part of the RVR process. RT at 1943:1-1944:19. He found that sometimes clinicians did a good job of explaining whether the inmate's mental illness caused or contributed to the incident and sometimes they did not. RT at 1944:20-1945:4. He also found "varying levels of communication between the clinical staff and custody as to how that mental health assessment process was working," with R.J. Donovan standing alone in the quality of communication between clinical and custodial staff in the rules violation process. RT at 1947:6-20. He testified that it was difficult to monitor what, if any, role the mental health assessment plays in the rules violation process. RT at 1948:2-16. He also testified that he rarely, if ever, found diversion of mentally ill inmates from sanctions even though in his opinion that "should happen" at least sometimes if the information on the form is properly gathered and used. RT at 1951:14-1952:8.
Based on the foregoing, the issue relative to the disciplinary process turns on the adequacy of defendants' implementation of the plan agreed to by the parties and approved by the Special Master in
At the hearing, the court also received evidence of a practice referred to as "Management Status." Director Stainer testified that "management status" was then part of local operating procedures at a majority of, but not all, prison institutions. RT at 887:7-12. He testified that it differed from the rule violation process because it was not imposed as part of the disciplinary process but is an alternative sanction imposed as an "indirect response to a set of threatening behaviors to stop those behaviors from continuing." RT at 889:15-21. He also testified that his office had received local operational procedures for management status from every prison that "has this process in their local operating procedure" and was "in the process of reviewing it for consistencies." RT at 888:6-14. His office was "going to come out with a formatted operational procedure for each institution to, again, fill in only site specific issues so we have a consistent application of those processes, making sure that appropriate due processes are in place for the inmates, and checks and balances for the application for these precautions in the management cell status" and to avoid "arbitrary placement of an individual on these type of sanctions." RT at 888:13-20, 891:2-3.
Defendants will be directed to work with the Special Master on a timeline for completion of the review process testified to by Mr. Stainer so that defendants' use of management status can be reviewed by the Special Master as part of his review of the implementation of defendants' RVR policies and procedures.
By their May 6, 2013 motion, plaintiffs seek additional remedial orders related to housing of seriously mentally ill inmates in administrative segregation and segregated housing units. Serious issues concerning placement of class members in administrative segregation and segregated housing units have plagued this litigation since its inception.
In 1995, the court found that defendants were violating the Eighth Amendment in housing mentally ill inmates in "`administrative segregation and segregated housing at Pelican Bay SHU and statewide ... because mentally ill inmates are placed in administrative segregation and segregated housing without any evaluation of their mental status, because such placement will cause further decompensation, and because inmates are denied access to necessary mental health care while they are housed in administrative segregation and/or segregated housing.'" Coleman v. Wilson, 912 F.Supp. at 1320 (internal citation omitted).
As recently as last year, it was evident that the constitutional violation had not been remedied. In the April 2013 order denying defendants' termination motion, the court specifically identified the need to address "ongoing issues related to placement of EOP (Enhanced Outpatient) inmates in administrative segregation, particularly those housed in such units for over 90 days" as a "`critically important' goal[ ] ... necessary to remedy the Eighth
Id. at 979-980.
Defendants oppose plaintiffs' motion in part by contesting the evidence and opinions of plaintiffs' expert, Dr. Craig Haney, concerning the harmful effects of segregated housing on certain mentally ill inmates. Defendants contend that "Dr. Haney's opinions are derived from studies that do not stand up to modern scientific scrutiny." Defs. Opp. to Pls.' Mot. Related to Housing and Treatment of Mentally Ill Inmates in Segregation, filed July 24, 2013 (ECF No. 4712), at 12. Defendants tendered their own expert, Dr. Charles Scott, who summarized "various longitudinal studies" and avers that those studies "indicate that segregation does not cause the type and severity of psychological harm previously described in descriptive studies." Declaration of Charles Scott, M.D., filed July 24, 2013 (ECF No. 4715) at ¶ 28. At the hearing, Dr. Scott testified concerning two of those studies, the only two studies he relied on, the so-called Zinger study published in the Canadian Journal of Criminology in January 2001 and the so-called O'Keefe study published in 2013 in the Journal of the American Academy of Psychiatry Law. See Exs. 1 and 2 to Defs. Ex. WWW.
The court is not persuaded by the conclusions Dr. Scott draws from those studies. First, both studies expressly reject extrapolation of their findings to other jurisdictions. See Ex. 2 to Defs. Ex. WWW at 32-33 (Zinger study cautions that "it would be ill advised to attempt to extrapolate the findings of this study (a) beyond
Ex. 1 to Defs. Ex. WWW at 12.
Despite Dr. Scott's testimony, the court concludes that confinement in California's administrative segregation units presents significant risks for seriously mentally ill individuals. As recently as last year, defendants' own experts reported on the harsh, "generally non-therapeutic" environment of California's administrative segregation units and recommended that the lengths of stay in such units be minimized for seriously mentally ill inmates. Coleman v. Brown, 938 F.Supp.2d at 979 (citing Clinical Exp. Rpt. (ECF No. 4275-5) at 20, 25). In addition, a disproportionately high rate of inmate suicides occur in these units. See Coleman v. Brown, 938 F.Supp.2d at 955. At the hearing, both parties introduced evidence of the number of inmate suicides in 2012 and 2013. Pls. Ex. 2781;
The findings concerning disproportion in inmate suicides in California's administrative segregation units are based on the suicide rate in ASUs, PSUs, and SHUs,
Defendants acknowledge disproportion in the number of inmate suicides in administrative segregation. See Annual Report of Suicides in the CDCR During 2012, Ex. 2 to Declaration of Margot Mendelsohn filed February 5, 2014 (ECF No. 5051-1) at 18-19. The disproportion is evidence of the high risk environment in California's administrative segregation units, a risk faced by all inmates housed in those units and particularly those with a serious mental illness, a risk defendants have acknowledged.
Together with the court's original findings and its findings on defendants' termination motion, the foregoing findings and the overwhelming weight of evidence in the record is that placement of seriously mentally ill inmates in California's segregated housing units can and does cause serious psychological harm, including decompensation, exacerbation of mental illness, inducement of psychosis, and increased risk of suicide. The question before the court is whether defendants have made progress since last year sufficient to remediate these serious risks of harm, or whether additional orders are required.
State regulations require administrative segregation of inmates whose safety is jeopardized in the general population as well as inmates who pose threats to the safety of others or "jeopardize[ ] the integrity of an investigation of an alleged serious misconduct or criminal activity." 15 C.C.R. § 3335(a).
Certain reasons for removal of an inmate from the general population are not considered administrative segregation. See 15 C.C.R. § 3340. Two of those exclusions are relevant to the motion at bar:
15 C.C.R. § 3340(a), (b).
Prior to amendments discussed infra, all inmates assigned to administrative segregation were placed in Privilege Group D. See Defs. Ex. OOO, Initial Statement of Reasons at 1. Placement in this highly restrictive group removes all family visits and access to "recreational or entertainment activities" and limits canteen draw, telephone calls, and personal property as follows:
15 C.C.R. § 3044(g)(3).
In late 2013, defendants created and began to implement a new classification identified as non-disciplinary segregation (NDS). RT at 2904:12-2905:17; see also Defs. Ex. OOO. Non-Disciplinary Segregation is "Segregated housing placement for administrative reasons to include, but not limited to: ASU placement for safety concerns, investigations not related to misconduct or criminal activity, and/or being a relative or an associate of a prison staff member." RT at 2908:6-16. The Non-Disciplinary Segregation (NDS) classification is designed to "afford inmates segregated in ASU for non-disciplinary reasons privileges more consistent, but not identical, with their presegregation privilege group." Defs. Ex. OOO, Initial Statement of Reasons at 1. Inmates placed in the NDS category are still "limited to non-contact visits due to safety and security concerns as well as assisting in the prevention of contraband into the ASU." Id. at 2. In addition, yard access for NDS inmates is "limited by local institution/security needs and NDS inmates may be permitted to participate and have access to programs, services, and activities as can reasonably be provided in the unit without endangering the security and safety of persons,...." Id.
At present, a "significant number" of Coleman class members are placed in administrative segregation units for non-disciplinary reasons, including safety concerns and lack of appropriate bed space. See RT at 2222:25-2227:6; RT at 2255:5-2256:20.
Between 2007 and 2012, roughly half of the suicides in California's administrative segregation units were by inmates in administrative segregation for non-disciplinary reasons. RT at 2242:15-23; Pls. Ex. 2048. In January 2013, Dr. Robert Canning, defendants' Suicide Prevention Coordinator, issued a report analyzing CDCR suicides during this period. Pls. Ex. 2049. In his report, he noted that
Id. at 2. Plaintiffs' expert, Dr. Haney, agreed with this opinion. RT at 2244:11-25.
Because of the absence of separate housing units, even with the new NDS classification class members in administrative segregation for non-disciplinary reasons are still subject to several significant restrictions placed on inmates housed in administrative segregation for disciplinary reasons, including no contact visits, significant limits on access to both exercise yards and dayroom, eating all meals in their cells, and being placed in handcuffs and restraints when being moved outside their cells. RT at 3200:1-19. Class members in administrative segregation for non-disciplinary reasons often receive mental health treatment in confined spaces described by plaintiffs' expert as "treatment cages." RT at 2167:20-23 (Haney). They are subjected to strip searches each time they leave their housing unit for mental health treatment and each time they return. RT at 2173:20-2175:14. Dr. Haney testified that in his opinion this practice "serves as a disincentive" for mentally ill inmates to go to treatment because the searches are "humiliating and degrading." RT at 2175:15-2176:6.
Seriously mentally ill inmates in administrative segregation for non-disciplinary reasons have done nothing to transgress the rules of the institution. They are generally in need of protection or placement where they have access to necessary mental health services. The only explanation offered in the record for California's failure to have separate units for disciplinary and non-disciplinary segregation is the overcrowded conditions that have plagued the prison system for at least a decade. See Reply Austin Decl. (ECF No. 4762) at ¶ 39. The only explanations tendered for defendants' failure to expedite transfer of class members in administrative segregation for non-disciplinary reasons, including safety concerns and lack of appropriate bed space, are overcrowded prison conditions, an insufficient number of buses to accomplish timely transfers, and the length of time it takes to complete the administrative processes required for transfer. See id. at ¶¶ 39, 44; see also RT at 2129:13-24; RT:3190:1-3191:24.
Plaintiffs' expert, Dr. James Austin, testified that there is "no reason" to hold class members in non-disciplinary segregation for these period of time, and that in states he works in, inmates who need to be transferred to an appropriate mental health bed placement are transferred within twenty-four hours. RT at 3021:8-3022:11. CDCR's then Acting Statewide Director of Mental Health, Dr. Timothy Belavich,
Mentally ill inmates in administrative segregation for non-disciplinary reasons "are treated, for obvious intents and purposes, as if they are in an administrative segregation prison there for disciplinary reasons even though they're not." RT at 2167:20-2168:4; see also Reply Austin Decl. (ECF No. 4762) at ¶ 45 (even with new NDS classification "`non-disciplinary' prisoners will still be mixed with disciplinary
RT at 2224:21-2225:7. Dr. Haney also testified that although such mixed placements "could be done on an expedient basis" if there is nowhere else to put an inmate with safety concerns, that should be accompanied by a sense of urgency to move the inmate with safety concerns to a non-administrative or lockdown setting. RT at 2254:22-2255:4.
In December 2012, defendants issued an operational plan for disabled inmates covered by the Armstrong class action.
For all of the foregoing reasons, the court finds that placement of seriously mentally ill inmates in the harsh, restrictive and non-therapeutic conditions of California's administrative segregation units for non-disciplinary reasons for more than a minimal period necessary to effect transfer to protective housing or a housing assignment violates the Eighth Amendment.
Plaintiffs raise a number of issues related to placement of at risk class members in administrative segregation, lengths of stay in administrative segregation units, and adequacy of care provided particularly to EOP inmate-patients. At the core, resolution of these issues turns on a common question: what is the proper role of mental health clinicians in the housing decisions presented when seriously mentally ill inmates must be removed from a prison's general population for disciplinary reasons.
The evidence tendered at the hearing demonstrates that the role of the mental health clinician is integral to placement decisions in two separate but related ways. In relevant part, the Eighth Amendment prohibits placements of seriously mentally ill inmates in conditions that pose a substantial risk of exacerbation of mental illness, decompensation, or suicide. These risks may arise from an individual inmate-patient's particular mental state and/or history of mental illness, from the adequacy of care available in the proposed housing placement, or both. Accurate and adequate assessment of these risks requires the exercise of clinical judgment, and where that clinical judgment demonstrates existence of the risk that must be avoided that judgment cannot be overridden by custodial requirements. Instead, in situations where clinical judgment demonstrates an unacceptable level of risk alternative placements must be made.
The Program Guide contains a structure for delivery of mental health services in administrative segregation, identified as the Administrative Segregation Unit (ASU) Mental Health Services (MHS) program. Pls. Ex. 1200 at 12-7-1. Responsibility for the ASU MHS program at each institution rests jointly with the Health Care manager and the Warden. Id. Operational oversight for the ASU MHS lies with the Chief of Mental Health for each institution. Id.
Id. The Interdisciplinary Treatment Team must include, at a minimum, the assigned primary clinician (PC), the assigned psychiatrist, the licensed psychiatric technician (LPT) and the assigned correctional counselor. Id. at 12-7-13.
Most of the ASU MHS program objectives appear designed to prevent the identified risks of harm. See id. at 12-7-2. Id. at 12-7-2.
The Program Guide requires a pre-placement mental health screening of "all inmates" prior to placement in administrative segregation. Id. at 12-7-2. This screening is "for possible suicide risk, safety concerns, and mental health problems." Id. An inmate who "screens positive" is "referred for a mental health evaluation on an Emergent, Urgent, or Routine basis." Id. The Program Guide also requires review of "all inmates" placed in ASU for "identification of current MHSDS treatment status," said review to occur within one work day of placement in ASU. Id. at 12-7-3. Mental health staff are required to "ensure the continuity of mental health care, including the delivery of prescribed medications." Id.
From the foregoing, it appears that, if adequately implemented, the ASU MHS screening system is designed to capture most, if not all, of the clinical information necessary to a determination of whether a particular Coleman class member faces a substantial risk of exacerbation of mental illness, decompensation, or suicide from placement in administrative segregation.
Dr. Belavich testified that at present mental health staff are not consulted about whether the mental health of class members facing segregation is sufficiently stable to withstand the mental health consequences of such placement. RT at 3688:21-3689:3. He was of the view that clinicians should be so consulted. RT at 3689:4-9. Dr. Belavich also testified that he and his staff could work with custody staff to develop a plan for additional mental health input into the segregation placement process.
Class members who can be placed in administrative segregation without the foregoing substantial risks of harm must have access to adequate mental health care during the placement. The Program Guide includes mental health services in administrative segregation units. The ASU MHS program is designed to provide mental health services for CCCMS inmate-patients in every administrative segregation unit at a level that equals or exceeds the mental health services provided to CCCMS patients in the general population. See Pls. Ex. 1200, Program Guide at 12-3-8 to 12-3-10; 12-7-7; see also RT at 3467:17-3468:3.
EOP services are only provided in EOP ASU "hubs."
The specific treatment criteria for the EOP level of care requires the presence of either acute onset of symptoms or significant decompensation due to mental illness, an inability to function in the general population, or both. Id. at 12-4-3, 12-4-4.
"Remedial efforts over the past six years have focused on reducing the length of time EOP inmates remain in administrative segregation and providing appropriate clinical care for EOP inmates housed in such units." Coleman v. Brown, 938 F.Supp.2d at 979. As already discussed, defendants' termination experts reported that the environment in CDCR's administrative segregation units "is not therapeutic" and that even where EOP levels of care are provided "segregation is not a particularly therapeutic environment to house inmates with serious mental disorders." Defs. Ex. HHH (ECF No. 4275-5) at 23, 25.
Some evidence presented at the hearing suggested recent improvements in the provision of care in certain EOP Ad Seg hubs. See, e.g., Defs. Ex. DDDD (compiling compliance rate with certain Program Guide requirements for the month of October 2013); Defs., Ex. GGGG. (compiling data on group therapy in EOP ASUs, EOP PSUs, and for CCCMS patients in ASU and two SHUs). Overall review of the record suggests that the adequacy of care in individual EOP ASU hubs varies based on several factors, including the physical plant, available treatment space, and staffing levels. See, e.g., RT at 3495:2-13; Twenty-Fifth Round Monitoring Report (ECF No. 4298) at 37.
As discussed above, the Program Guide contains specific requirements for necessary care in general administrative segregation units and EOP ASU hubs. Dr. Belavich testified that he receives substantial data from his staff that he uses to review quality of care issues in these units, and the court was impressed by his apparent diligence. Plainly, defendants cannot house seriously mentally ill inmates in settings where defendants know those inmates cannot receive the minimally adequate mental health care required by the Program Guide. Whether or not the care provided in each EOP ASU hub meets Program Guide requirements is, again, a clinical judgment and one that must be exercised by Dr. Belavich and his staff. Accordingly, defendants will be required to provide monthly reports on whether each EOP ASU hub meets Program Guide requirements for an EOP ASU level of care and they will be prevented from admitting
Plaintiffs seeks an order prohibiting defendants from continuing their strip search policy in administrative segregation units. Dr. Belavich testified that he was concerned that this policy inhibited treatment and was aware that it needed to be revisited. RT at 3503:18-3505:3. Defendants will be directed to provide a revised policy to the court within sixty days.
Plaintiffs seek a series of orders relative to suicide prevention. See Pls. Post-Trial Brief Re: Enforcement of Court Orders, filed January 21, 2014 (ECF No. 4985) at 30-33. By minute order issued July 26, 2013, the court dropped consideration of issues related to inmate suicide without prejudice to their renewal, if appropriate, following a report from the Suicide Prevention/Management Work Group. That order stands.
In addition to numerous administrative segregation units, California's prison system has three types of "Segregated Program Housing Units." 15 C.C.R. § 3341.5. Protective Housing Units (PHUs) are for the protection of inmates "whose safety would be endangered by general population placement" and who meet specified criteria. 15 C.C.R. § 3341.5(a). Security Housing Units (SHUs) are for inmates "whose conduct endangers the safety of others or the security of the institution." 15 C.C.R. § 3341.5(c). Psychiatric Services Units (PSUs) are for seriously mentally ill inmates in the Enhanced Outpatient Program (EOP) who require the equivalent of SHU placement. 15 C.C.R. § 3341.5(b).
In general, inmates may be placed in a SHU following conviction of certain disciplinary offenses or after validation as a member of a prison gang. See 15 C.C.R. § 3341.5(c)(1), (2)(A)(2). SHU terms may be determinate or indeterminate. 15 C.C.R. § 3341.5(c)(2)(A), (B). An inmate subject to an indeterminate SHU term whose SHU term is suspended "based solely on the need for inpatient medical or mental health treatment" may have the term "reimposed without subsequent misbehavior if the inmate continues to pose a threat to the safety of others or the security of the institution." 15 C.C.R. § 3341.5(c)(A)(3).
With very limited exceptions, almost all seriously mentally ill inmates are excluded from the Pelican Bay SHU. See Pls. Ex. 1200 at 12-8-1 to 12-8-3.
Plaintiffs seek an order extending the Pelican Bay SHU exclusion in the Program Guide to the other four segregated housing units in California's prison system.
First, both parties have tendered expert opinions and other evidence concerning whether or not prolonged placement of seriously mentally ill inmates in segregated housing units causes psychological harm to those individuals. The court has already found that, for seriously mentally ill inmates, placement in California's segregated housing units, including both administrative segregation units and SHUs, can and does cause serious psychological harm, including decompensation, exacerbation of mental illness, inducement of psychosis, and increased risk of suicide. See Coleman v. Wilson, 912 F.Supp. at 1320-1321; see also Findings and Recommendations, filed June 6, 1994 (Dkt. 547) at 51-54. Nothing in the evidence tendered on the current motions requires revisiting those findings.
Third, the fact that only CCCMS inmates are housed in SHU units narrows the question but does not end the inquiry. The Pelican Bay SHU exclusion includes almost all of the treatment categories for the CCCMS level of care.
As discussed above, the conditions of SHU confinement include both the physical conditions of the housing units and the exercise yards, and the restrictions that attach to classification for SHU housing. The restrictions are the same for all SHU inmates; that is part of the classification process. Thus, it is undisputed that the highly restrictive programming in the Pelican Bay SHU is the same in all of California's SHU units. All SHU inmates are confined to their cells for approximately twenty-three hours per day. Haney Decl. (ECF No. 4581) at ¶ 23.
The primary difference between the Pelican Bay SHU and the other SHU units is that the cells in the Pelican Bay SHU "are windowless and do not face other cells across the pod, and the `yards' consist of concrete enclosed spaces rather than cages." Haney Decl. (ECF No. 4581) at ¶ 18; see also Allison Decl. (ECF No. 4713) at ¶ 26.
Only CCCMS care is provided in SHU units. Pls. Ex. 1200 at 12-8-1. Male inmates requiring EOP level of care are referred to a psychiatric services unit (PSU). Id. at 12-8-1, 12-8-10. The Program Guide provides that "[f]emale inmate-patients [who require an EOP level of care] will continue to be treated in SHU... until a PSU for female inmate-patients is established." Id. at 12-8-11, 12-8-12. There is currently a 20 bed PSU for female inmates at California Institution for Women (CIW). See Ex. A to Pls. March 3, 2014 Request for Judicial Notice (ECF No. 5093), at 14.
As discussed above, this question goes to the heart of the tension between legitimate penological goals of prison institutions, including the need for order and discipline, and the requirements of the Eighth Amendment. The record before the court amply demonstrates that there are many seriously mentally ill inmates at the CCCMS level of care who cannot be housed in any SHU in California without running afoul of the Eighth Amendment. It is not clear that this is true for all inmates at the CCCMS level of care. For that reason, the court will not at this time require the blanket exclusion requested by plaintiffs. Instead, defendants will be prohibited from housing any seriously mentally ill inmate at any SHU in California unless that inmate's treating clinician certifies that (1) the inmate's behavior leading to the SHU assignment was not the product of mental illness and the inmate's mental illness did not preclude the inmate from conforming his or her conduct to the relevant institutional requirements; (2) the inmate's mental illness can be safely and adequately managed in the SHU to which the inmate will be assigned for the entire length of the SHU term; and (3) the inmate does not face a substantial risk of exacerbation of his or her mental illness or decompensation as a result of confinement in a SHU. In addition, defendants will be prohibited from returning any seriously mentally ill inmate to any SHU unit if said inmate has, following placement in a SHU, required a higher level of mental health
For all of the foregoing reasons, plaintiffs' motions will be granted in part.
The court does, by this order, direct specific action by defendants. In this court's view, the orders contained herein are in aid of the remedy required by the court's 1995 order. To the extent that the requirements of 18 U.S.C. § 3626(a)(1) may apply, this court finds that the orders contained herein are narrowly drawn, extend no further than necessary to correct the Eighth Amendment violations found at the trial of this matter and still ongoing, and are the least intrusive means to that end. See 18 U.S.C. § 3626(a)(1)(A).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiffs' May 29, 2013 motion for enforcement of court orders and affirmative relief related to use of force and disciplinary measures (ECF No. 4638) is granted in part as follows:
2. Plaintiffs' May 6, 2013 motion for enforcement of judgment and affirmative orders related to segregated housing (ECF No. 4580) is granted in part as follows:
During a telephone call with the court, the Special Master reported that he recommends and the parties agree in principle that certain deadlines set in the court's April 10, 2014 order (ECF No. 5131) be extended. In addition, the Special Master reports that an additional period of time is required to implement the provisions of paragraph 2e at 74:7-21 of said order.
Accordingly, good cause appearing, IT IS HEREBY ORDERED that:
1. The court's April 10, 2014 order (ECF No. 5131) is revised as follows:
Not later than August 1, 2014, defendants shall file a plan to limit or eliminate altogether placement of class members removed from the general population for non-disciplinary reasons in administrative segregation units that house inmates removed from the general population for disciplinary reasons. Defendants shall be prepared to fully implement the plan not later than September 1, 2014. If feasible, defendants shall commence forthwith to reduce the number of Coleman class members housed for non-disciplinary reasons in any administrative segregation unit that houses disciplinary segregation inmates; feasibility shall be determined by the Special Master. Commencing on September 1, 2014, defendants will be prohibited from
Beginning August 1, 2014, defendants shall provide to the court and the Special Master monthly reports on whether each EOP ASU hub meets Program Guide requirements for an EOP ASU level of care. Commencing October 1, 2014, defendants shall not admit any Coleman class member at the EOP level of care to any EOP ASU hub that has failed to meet or exceed Program Guide requirements for a period of more than two consecutive months. Commencing October 1, 2014, defendants shall not place any class member at the EOP level of care in any administrative segregation unit during any period in which there are an insufficient number of EOP Ad Seg Hub beds available unless failure to remove the inmate from the general population presents an imminent threat to life or safety.
2. Except as expressly modified herein, all provisions of the court's April 10, 2014 order (ECF No. 5131) remain in full force and effect.
IT IS SO ORDERED.
1. Treatment and monitoring are provided to any inmate who has current symptoms and/or requires treatment for the current Diagnostic and Statistical Manual diagnosed (may be provisional) Axis I serious mental disorders listed below:
Schizophrenia (all subtypes) Delusional Disorder Schizophreniform Disorder Schizoaffective Disorder Brief Psychotic Disorder Substance-Induced Psychotic Disorder (exclude intoxication and withdrawal) Psychotic Disorder Due To A General Medical Condition Psychotic Disorder Not Otherwise Specified Major Depressive Disorders Bipolar Disorders I and II
2. Medical Necessity Mental health treatment shall be provided as needed. Treatment is continued as needed, after review by an IDTT, for all cases in which:
Mental health intervention is necessary to protect life and/or treat significant disability/dysfunction in an individual diagnosed with or suspected of having a mental disorder. Treatment is continued for these cases only upon reassessment and determination by the IDTT that the significant or life threatening disability/dysfunction continues or regularly recurs.
3. Exhibitionism Treatment is required when an inmate has had at least one episode of indecent exposure in the six-month period prior to the IDTT that considers the need for exhibitionism treatment and the inmate patient is either:
• Diagnosed with Exhibitionism, or
• Meets the alternate criteria. (Alternate Criteria: An inmate who meets all criteria for the diagnosis of Exhibitionism, except that the victim was not an "unsuspecting stranger" but was a staff member or inmate who did not consent to or encourage the behavior.)
(A diagnosis of Exhibitionism is not required for inmates who meet the alternate criteria.)
Pls. Ex. 1200 at 12-1-5, 12-1-6.
