Coleman, et al v. Schwarzenegger, et al
Filing
4951
ORDER granting in part and denying in part 4543 MOTION to ENFORCE JUDGMENT signed by Judge Lawrence K. Karlton on 12/10/13. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RALPH COLEMAN, et al.,
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No. CIV. S-90-520 LKK/DAD (PC)
Plaintiffs,
v.
ORDER
EDMUND G. BROWN, JR., et al.,
Defendants.
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17
On April 11, 2013, plaintiffs filed a motion for enforcement
18
of court orders and affirmative relief related to inpatient
19
treatment for members of the plaintiff class, including those
20
condemned to death and housed at San Quentin State Prison
21
(hereafter San Quentin or SQSP). (ECF No. 4543).
22
also tendered as grounds for denying defendants’ January 7, 2013
23
motion to terminate the court’s ongoing supervision of the
24
remedial effort (ECF No. 4275). See Pls. Corr. Opp. To Defs. Mot.
25
to Terminate, filed Mar. 19, 2013 (ECF No. 4422) at 82-85. The
26
court denied the defendants’ motion, see Coleman v. Brown, 938 F.
27
Supp. 2d 955 (E.D. Cal. 2013), and, separately, set an
28
evidentiary hearing on plaintiffs’ motion to enforce the court’s
1
The issue was
1
previous judgment.
2
resolving the instant motion, also inevitably addresses the
3
propriety of defendants’ motion to terminate.
4
Nonetheless, this order, in addition to
An evidentiary hearing on plaintiffs’ motion as it relates
5
to inpatient care for seriously mentally ill inmates in
6
California’s condemned population commenced on October 1, 2013
7
and continued over fourteen court days, concluding on November 6,
8
2013.1
9
submitted for decision and is resolved herein.2
10
As this court has explained,
11
[p]laintiffs are a class of prisoners with
serious mental disorders confined in the
California Department of Corrections and
Rehabilitation (“CDCR”). In 1995, this court
found defendants in violation of their Eighth
Amendment obligation to provide class members
with access to adequate mental health care.
Coleman
v.
Wilson,
912
F.Supp.
1282
(E.D.Cal.1995). To remedy the gross systemic
failures in the delivery of mental health
care, the court appointed a Special Master to
work with defendants to develop a plan to
remedy the violations and, thereafter, to
monitor defendants' implementation of that
remedial plan. See Order of Reference, filed
December 11, 1995 (Dkt. No. 640). That
remedial process has been ongoing for over
seventeen years.
12
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17
18
19
20
21
22
Coleman v. Brown, 938 F.Supp.2d at 958.
Over a decade of effort led to development of
the currently operative remedial plan, known
as the Revised Program Guide. The Revised
Program
Guide
“represents
defendants'
considered assessment, made in consultation
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Following filing of closing briefs the matter was
1
Approximately nine of those days were spent on testimony related to
plaintiffs’ motion concerning use of force and disciplinary measures (ECF No.
4543). That motion will be resolved by separate order.
2
The remainder of plaintiffs’ motion concerning inpatient care was resolved
by order filed July 11, 2013 (ECF No. 4688).
2
1
with the Special Master and his experts, and
approved by this court, of what is required
to remedy the Eighth Amendment violations
identified in this action and to meet their
constitutional obligation to deliver adequate
mental health care to seriously mentally ill
inmates.” February 28, 2013 Order (ECF No.
4361) at 3.
[Footnote omitted.] Over seven
years ago, this court ordered defendants to
immediately
implement
all
undisputed
provisions of the Revised Program Guide.
[Footnote omitted.]
2
3
4
5
6
7
8
9
Id. at 972.3
CDCR’s Mental Health Services Delivery System Program Guide
10
11
provides four levels of mental health care services:
12
Correctional Clinical Case Management System (CCCMS); Enhanced
13
Outpatient (EOP); Mental Health Crisis Bed (MHCB) and inpatient
14
hospital care, which is offered in two programs, intermediate
15
care facilities (ICF) and acute psychiatric programs (APP).
16
Mental health crisis beds are inpatient beds to treat acute
17
mental health crises and stays in MHCB units are generally
18
limited to ten days.
19
care “is a short-term, intensive-treatment program with stays
20
usually up to 30 calendar days to 45 days provided.”
21
6-2.
22
term mental health intermediate and non-acute inpatient treatment
23
for inmate-patients who have a serious mental disorder requiring
24
treatment that is not available within CDCR.”
25
3
26
27
28
Program Guide at 12-5-1.4
Acute hospital
Id. at
12-
Intermediate hospital care programs (ICF) “provide longer-
Id. at 12-6-6.
Defendants are currently operating under the Mental Health Services Delivery
System Program Guide, 2009 Revision (hereafter Program Guide). All references
to the Program Guide in this order are to the 2009 Revision, a copy of which
has been entered in the record in these proceedings as Plaintiffs’ Exhibit
1200.
4
Exceptions to the ten day length of stay must be approved by “[t]he Chief
Psychiatrist or designee.” Id.
3
1
Plaintiffs contend that defendants are denying condemned inmates
2
necessary access to inpatient hospital care.5
3
I.
4
5
6
Facts
Pursuant to California Penal Code § 3600, condemned male
inmates are housed at San Quentin.
In relevant part, the statute
provides:
7
A[] [condemned] inmate whose medical or
mental health needs are so critical as to
endanger the inmate or others may, pursuant
to regulations established by the Department
of Corrections, be housed at the California
Medical
Facility
or
other
appropriate
institution for medical or mental health
treatment.
The inmate shall be returned to
the institution from which the inmate was
transferred when the condition has been
adequately treated or is in remission.
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9
10
11
12
13
14
Cal. Penal Code § 3600(b)(4).
15
3600, the Program Guide contains a separate section governing EOP
16
treatment for condemned inmates.
17
12-4-21.
18
“[c]ondemned male inmate-patients who experience decompensation
19
in the form of a crisis shall be referred to the DMH Inpatient
20
Program at CMF for a MHCB level of care or DMH inpatient level of
21
care.”
22
limiting the DMH inpatient level of care for condemned inmate-
23
patients to that provided in the APP, i.e., the Acute Psychiatric
24
Program.6
Citing California Penal Code §
See Program Guide at 12-4-17 to
In relevant part, that section provides that
Id. at 12-4-20, 21.
Defendants interpret § 3600(b)(4) as
25
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27
28
In their post-trial brief, and at the hearing, plaintiffs raised additional
issues concerning the adequacy of mental health care provided to condemned
inmates at the EOP and CCCMS level of care at San Quentin. For the reasons
explained infra, the court will not make any specific orders concerning those
issues at this time.
6
MHCB care is available to condemned inmate-patients at San Quentin.
4
1
It is undisputed that defendants have not historically “had
2
a viable option” for condemned inmate-patients in need of an
3
intermediate level of hospital care.
4
Eric Monthei, the Chief of Mental Health at San Quentin,
5
testified that when he assumed his position six or seven years
6
ago he began a “gradual transition” of identifying condemned
7
inmate-patients in need of a higher level of services.
8
1199:2-10.
9
more formalized and mental health staff at San Quentin were
Pls. Ex. 1043 at 1.
Dr.
RT at
Approximately three years ago, the process became
10
“tasked with researching and developing a specialized care
11
regimen tailored to the subcategory of Condemned inmates who may
12
have met criteria” for referral to an intermediate level of
13
hospital care.
14
8, 2010, the mental health staff implemented “a Specialized
15
Treatment plan for the condemned inmates at San Quentin.”
16
The Specialized Treatment plan “is based on a model of assertive
17
community treatment” and reflects defendants’ asserted belief
18
that “[d]ue to the unique nature of the condemned inmate
19
population, . . . providing services near the inmate’s home and
20
within their community is clinically indicated.”
Monthei Decl.(ECF No. 4593) at ¶ 4.
On November
Id.
Id. at ¶¶ 5-6.7
21
In early 2011, Dr. Monthei “prepared a written version of
22
the Specialized Treatment plan” which identified the following
23
treatment “indicators”:
24
Significant difficulties with hygiene.
25
26
27
28
Reporter’s Transcript re: Evidentiary Hearing (RT) at 1180:7-1181:4.
7
While the court has reservations about whether the condemned regard E block
in San Quentin as their home, acceptance or rejection of that clinical
indication is not material to resolution of the motion and will not be further
considered.
5
1
Non-compliance with voluntary medication to a
degree that it impaired functioning.
2
Rarely leaves cell.
3
Other behaviors or events that are indicative
that additional treatment and clinical time
may be beneficial to the inmate, including
but not limited to:
4
5
6
Disruptive to the treatment milieu.
7
Repeated rules violation reports.
8
Difficulties
in
maintaining
eating,
clothing, or housing to a degree less
than requires inpatient care or 24-hour
nursing.
9
10
11
Bizarre
behaviors
or
actions
that
warrant increased number and modalities
of treatment.
12
13
Ex. 1 to Confidential Vorous Decl. (ECF No. 4622-1) at 6-78;
14
Monthei Decl. (ECF No. 4593) at ¶ 7.
The written document also
15
identified services and treatment available under the plan,
16
including:
17
(1) several contacts per day by mental health
providers; (2) groups and daily therapy
sessions; (3) daily recreational time; (4)
assistance
with
cleaning;
(5)
in-cell
structured
therapeutic
activity;
(6)
psychiatric technician rounds; (7) daily
encouragement to complete activities of daily
living; (8) objective monitoring of multiple
areas of functioning; and (9) weekly formal
team coordination of care meetings.
18
19
20
21
22
23
24
25
Monthei Decl. (ECF No. 4593) at ¶ 9 (citing Ex. 1 to Confid.
Vorous Decl.).
In February 2011, the then Chief Deputy Secretary for the
26
27
28
8
This document is filed under seal with several other documents attached to
the Confidential Declaration of Debbie Vorous filed May 20, 2013 (ECF No.
4622).
6
1
Division of Correctional Health Care Services of the CDCR
2
circulated a budget change proposal (BCP) seeking funding for the
3
program, referred to in that document and today as the
4
Specialized Care Program for the Condemned (SCCP).
5
1043.
6
follows:
7
Pls. Ex.
The BCP describes a “high risk need” for the SCCP, as
On or about 2006 through 2011, up to 31
Condemned inmate-patients were identified as
those who would benefit from an ICF level of
care with another 13 being monitored for
possible inclusion. Approximately 20% (6 of
31) inmate-patients who would have benefitted
from an ICF level of care have effected
suicide.
Data available from March 2008 to
December
2009
show
approximately
120
admissions to higher levels of care such as
Out Patient Housing Units (OHU), Mental
Health Crisis Beds (MHCB), and DMH Acute
Programs.
SQSP is currently compiling the
2010 data but they expect that the overall
referral patterns are unlikely to have
changed significantly.
8
9
10
11
12
13
14
15
16
17
Id.
18
population in six years.
19
committed suicide in the last two years.
20
BCP also reflects defendants’ acknowledgement of a need for an
21
adequate treatment program to meet this need.10
The BCP described six inmate suicides in the condemned
Id.
Five condemned inmates have
RT at 318:16-23.9
The
22
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25
26
27
28
9
The court heard a substantial amount of testimony concerning the annual
suicide rate among California’s condemned inmates, including whether the
length of time inmates spend on California’s death row should be “factored
into th[e] consideration of annual suicide rates so that something more
instructive could come out of it.” RT at 1579:8-10. The court is satisfied
that the clear weight of the evidence, including testimony from defendants’
clinicians, demonstrates that the number of suicides in California’s condemned
population is an area of grave concern.
10
The BCP states that “[a]bsent this program, CDCR will not be able to testify
in court that the needs of the condemned inmate-patients are being met at
SQSP” and that “it is likely that CDCR would ultimately be ordered to transfer
inmates” to ICF beds at Salinas Valley State Prison. Pls. Ex. 1043 at 2.
7
1
In his Twenty-Fifth Round Monitoring Report, filed in
2
January 2013, the Special Master reported on the SCCP.
3
1031.11
4
Master’s experts found, inter alia, that
5
Pls. Ex.
At a visit to San Quentin in August 2012, the Special
[b]asic
clinical
requirements
such
as
admission and discharge criteria were not
articulated,
although
program
clinicians
could
discuss
the
various
treatment
modalities
and
demonstrated
that
consideration had gone into determining the
appropriate
treatment
for
each
inmate.
However, there were space limitations and
challenges
with
escorts
which
created
problems with access to care. . . .
6
7
8
9
10
11
The medical records of each of the
participants in the specialized care program
were reviewed. Most of these inmates clearly
needed inpatient care and were not receiving
it or its equivalent. . . .
12
13
14
IDTT12 meetings for the condemned care
program were reportedly scheduled twice per
month. Treatment plans did not focus on the
primary symptoms for many inmates, and some
interventions appeared to reinforce these
symptoms.
Some inmates did not even have
treatment plans or current treatment plans. .
. .
15
16
17
18
19
20
Id. at 177-178.
21
staff, together with CDCR and DSH representatives and plaintiffs’
22
counsel, revisited San Quentin “to further examine the condemned
23
care program.”
24
work with the special master’s expert to draft a written addendum
25
to the draft LOP13 that would describe [the Specialized Care for
26
11
27
28
In December 2012, the Special Master and his
Id. at 179.
At that time, defendants “agreed to
The Twenty-Fifth Round Monitoring Report is in the record at ECF No. 4298.
All citations to pages in Pls. Ex. 1031 are to the ECF page number at the top
of the exhibit.
12
IDTT stands for Interdisciplinary Treatment Team.
13
LOP stands for Local Operating Procedure.
8
1
the Condemned] program, including an outline of the criteria for
2
admission to it and the services that it offers.”
3
The specific “[t]riggers for consideration for admission to the
4
program were defined as those used in the sustainable process for
5
identification and referral of inmates” to inpatient care.
6
see also, e.g., Order filed July 13, 2012 (ECF No. 4214).
7
Enhanced staffing, additional necessary services, and “a
8
dedicated housing unit for inmates in the [SCCP]” were to be
9
included.
10
Id. at 184.
Id.;
Pls. Ex. 1031 at 184-185.
There have been “multiple revisions” to the original
11
“working document” for the Specialized Treatment plan (SCCP)
12
since the January 2011 iteration.
13
latest, generated in early 2013, sets forth the following
14
criteria for “consideration” of treatment in the SCCP:
15
16
17
18
19
20
21
22
23
24
25
26
27
RT at 1212:20-1213:3.
1. Acute onset of symptoms or significant
decompensation due to a serious mental
disorder characterized by symptoms such as
increased
delusional
thinking,
hallucinatory experiences, marked changes
in affect, agitated or vegetative signs,
definitive impairment in reality testing
and/or judgment.
2. Inability to function in the
population
based
upon
any
following:
condemned
of
the
a. A demonstrated inability to program in
and/or benefit from the Condemned EOP
Treatment Program for two consecutive
months.
b. A demonstrated inability to program in
condemned correctional activities such
as education, religious services, selfhelp programs, canteen, recreational
activities,
or
visiting,
as
a
28
9
The
1
consequence
disorder.
of
a
serious
mental
2
3
4
5
6
7
8
9
10
c. The
presence
of
dysfunctional
or
disruptive social interaction including
withdrawal, bizarre behavior, extreme
argumentativeness, inability to respond
to
staff
directions,
provocative
behavior,
or
inappropriate
sexual
behavior, as a consequence of a serious
mental disorder.
d. An impairment in the activities of daily
living including eating, grooming and
personal hygiene, maintenance of housing
area, and ambulation, as a consequence
of a serious mental disorder.
11
Pls. Ex. 1014 at Monthei 03.
12
not identical, to several of the Program Guide criteria for
13
admission to the intermediate level of hospital care, including:
14
15
16
17
18
19
20
21
22
23
These criteria are similar, though
1. An Axis I major (serious) mental disorder
with active symptoms and any one of the
following:
• As a result of the major mental disorder,
the inmate-patient is unable to adequately
function within the structure of the CDCR EOP
level of care.
•
The
inmate-patient
requires
highly
structured inpatient psychiatric care with
24-hour nursing supervision due to a major
mental disorder, serious to major impairment
of
functioning
in
most
life
areas,
stabilization or elimination of ritualistic
or
repetitive
self-injurious/suicidal
behavior, or stabilization of refractory
psychiatric symptoms.
24
. . . .
25
26
27
• The inmate-patient would benefit from a
comprehensive
treatment
program
with
an
emphasis on skill (i.e., coping, daily
living, medication compliance) development
28
10
1
with increased programming
treatment environment.
and
structured
2
. . . .
3
• The inmate-patient’s Global Assessment of
Functioning
indicates
behavior
that
is
considerably
influenced
by
psychotic
symptoms;
OR
serious
impairment
in
communication or judgment; OR inability to
function in almost all areas.
4
5
6
7
Program Guide at 12-6-7, 8.
Program Guide criteria concerning
8
suicidality, below, are not specifically included in the criteria
9
for admission to SCCP:
10
2. In addition to a primary Axis I disorder,
admission to VPP and SVPP shall be considered
when:
11
12
• The patient engages in ritualistic or
repetitive self-injurious/suicidal behavior
that has not responded to treatment in a CDCR
facility. Without inpatient mental health
treatment, the inmate-patient is likely to
develop serious medical complications or
present a threat to his life.
13
14
15
16
17
• The patient is chronically suicidal and has
had repeated admissions to a Mental Health
Crisis Bed (MHCB).
18
19
Program Guide at 12-6-8.14
20
14
21
22
Other Program Guide criteria for ICF care not reflected in the criteria
for SCCP include:
•
The
inmate-patient
requires
neurological/neuropsychological consultation.
a
23
24
25
• The inmate-patient requires an inpatient diagnostic
evaluation.
• The inmate-patient’s psychiatric medication history
indicates that a clozapine trial might be useful.
26
27
28
• Inmate-patients, who are deemed a significant
assault risk, have a history of victimizing other
inmate-patients (including inciting others to act in a
dangerous manner) or present a high escape risk,
11
1
As discussed above, during evaluation of the SCCP, the
2
Special Master’s experts identified the need for a separate
3
housing unit for this program.
4
184.
See, e.g., Pls. Ex. 1031 at 183-
5
San Quentin has a Central Health Services Building (CHSB),
6
built under the auspices of the Receiver in Plata v. Brown, No.
7
01-1351 TEH.
8
Correctional Treatment Center (CTC) containing fifty beds.
9
Ex. 1012 at 3.
The fourth floor of the CHSB is a licensed
Pls.
Seventeen of the beds are licensed mental health
10
crisis beds.
11
used by inmate-patients from prisons all over California who are
12
in need of a crisis bed level of care.
13
license for the remaining thirty-three beds is suspended and
14
those beds are operated as an Outpatient Housing Unit.
15
1291:9-20; see Chappell Decl. (ECF No. 4601) at ¶ 4.
16
Monthei Decl. at ¶ 16.
The 17 licensed MHCBs are
RT at 1180:7-1181:4.
The
RT at
In December 2012, the Plata Receiver “agreed to designate up
17
to 10 beds in the Outpatient Housing Unit [(OHU)] for use by
18
inmates receiving services under the Specialized Treatment plan.”
19
Belavich Decl. at ¶ 11.
The ten OHU beds are designated as
20
21
22
23
24
25
26
27
28
shall be referred to the SVPP Intermediate Program.
CDCR refers to these inmate-patients as high custody
inmate-patients.
. . . .
• For SVPP only, the inmate-patient is medically
appropriate as determined by the receiving prison
medical staff. The program psychiatrist will determine
mental health suitability. If agreement is not reached
refer to the Coordinated Clinical Assessment Team
(CCAT) process in Section VI. Any denial for medical
reasons will be immediately referred to the, Assistant
Deputy Director, CDCR, Division of Correctional Health
Care Services (DCHCS).
12
1
“flexible beds” for inmate-patients in the SCCP.
2
at ¶ 16.
3
beds from mental health care to physical medical care15 and has
4
discussed with his “management team alone” what might be done if
5
the beds are no longer available for mental health care.
6
1379:10-25.
7
experts to Plata court regarding OHU beds).
8
9
Monthei Decl.
Dr. Monthei is aware of “pressures” to return the ten
RT at
See also Pls Ex. 1011 at 31-32 (Report of court
Over the past two years, “[t]he census for inmates-patients
receiving specialized treatment has ranged from a low of 6 to a
10
high of 45.”
11
admitting inmate-patients into the OHU beds approximately six
12
months before Monthei’s testimony.
13
time of the hearing, twenty-three inmate-patients were
14
participating in the SCCP.
15
housed in the OHU, twelve were housed in the East Block condemned
16
housing unit, and one was in a mental health crisis bed.
17
1211:23-1212:7.
18
Monthei Decl. at ¶ 10.
San Quentin staff began
RT at 1221:21-25.
RT at 1211:22.
At the
Of those, ten were
RT at
Dr. Monthei testified that within the group of patients
19
identified as requiring an SCCP level of services, “clinicians
20
would . . . prioritize by clinical severity those individuals
21
that were most ill.
22
would be the ones we would first refer to the specialized care
23
beds that are within the OHU.”
24
that “the average length of stay for somebody that we admit into
25
[the OHU] beds will be somewhere between six months and two
And those individuals that are most ill
RT at 1206:21-25.
He testified
26
15
27
28
In March 2013, court experts in Plata reported to that court that the
dedication of ten OHU beds to mental health care and the corresponding
reduction in the number of medical OHU beds was “inappropriate” “given the
medical mission of the facility.” Pls. Ex. 1011 at 31.
13
1
years,” and longer if necessary but “probably not” shorter.
2
at 1208:12-14; 1209:22-1209:1.
3
full, Dr. Monthei envisions a “continuous rotation of
4
individuals, in and out of the OHU in order to provide the
5
enhanced services.”
6
senior psychiatrist supervisor at San Quentin, testified that
7
while San Quentin does not “use the term ‘wait list’” there was
8
one inmate-patient waiting for admission to the OHU unit.
9
1470:15-20.
10
RT
Because the ten OHU beds are
RT at 1303:17-1304:1. Dr. Paul Burton, the
Dr. Monthei testified similarly.
RT at
See RT at 1326:8-
15.16
11
Services are offered to inmate-patients in the OHU beds
12
“[s]even days a week, two shifts, second watch and third watch,
13
weekends and holidays.”
14
that it is “a full spectrum of mental health services analogous
15
to what you would find in an ICF-type program.”
16
Twenty-four hour nursing care is also available to the inmates in
17
the ten OHU beds through the two nursing stations that serve the
18
seventeen MHCBs and the thirty-three OHU beds in the Central
19
Health Services Building.
20
RT at 1214:16-20. Dr. Monthei testified
RT at 1217:6-8.
RT at 1221:4-20.
The ten OHU beds used for the SCCP are, by definition,
21
outpatient beds.
22
limited to the MHCB units at San Quentin and CMF and the Acute
23
Psychiatric Program (APP) at California Medical Facility (CMF).
24
Evidence tendered at the hearing established that condemned
25
inmates transferred to the APP are subject to substantial
26
custodial restrictions which severely limit treatment options.
Inpatient care for male condemned inmates is
27
16
28
You can call a cat a dog, but that doesn’t change the cat. Likewise denying
the cat is on the bed does not change the cat being on the bed.
14
1
Other testimony suggested that clinicians at San Quentin are
2
reluctant to transfer condemned inmates to the APP and do so only
3
in very limited circumstances.
4
Pursuant to a policy implemented on August 15, 2012,
5
condemned inmates transferred to the APP are housed in a
6
specified housing unit, Q3, and subject to the following
7
restrictions:
8
be between two grill gates; (2) No condemned inmate-patient shall
9
come into contact with any other inmate-patient; “[h]e shall be
10
separated from other patients by a locked door or grill gate at
11
all times;”
12
his cell, all other inmate-patients “must be locked in their
13
cells or separated from the condemned patient by a locked grill
14
gate or door;” (5) condemned inmate-patients must eat in their
15
cells; (6) all condemned inmate-patients receive individual
16
therapy only and are not permitted to participate in group
17
therapy or activities; (7) a minimum of two correctional officers
18
or one correctional officer and one “academy trained” medical
19
technical assistant (MTA) must be present whenever a condemned
20
inmate-patient’s cell door is opened, and the condemned inmate-
21
patient must be escorted in waist restraints and belly chains;
22
escort must be provided by at least one
23
one MTA.
24
25
(1) A condemned inmate-patient’s housing cell must
(3) Any time a condemned inmate-patient is out of
correctional officer and
Pls. Ex. 1140.17
Dr. Bennie Carter, a staff psychiatrist working in the APP
testified that when condemned inmate-patients leave their cells,
26
17
27
28
Condemned inmates are “entitled to appropriate nursing care, medications,
and clinical services provided by the attending physician, and may be
involuntarily medicated under the guidelines of the [Penal Code] 2602
process.” Id.
15
1
at least three correctional officers accompany them and grill
2
gates are opened and closed around them to “contain” them within
3
a specific area and away from other inmates.
4
1001:14.
5
inmate-patients and non-condemned inmate patients housed in the
6
Q3 unit.18
7
Psychiatric Program, averred that
8
RT at 1000:23-
These security restrictions impact both condemned
Ellen Bachman, the Executive Director of the Vacaville
treating even one condemned patient on the
acute unit has a significant impact on the
provision of care to the other 29 patients on
the unit. Because the unit has one day room
that is used for groups, individual sessions,
and treatment team meetings, it is very
difficult to provide treatment to a condemned
patient within the specifications described
above without reducing group or individual
treatment
for
the
other
patients.
In
addition, when the condemned inmate is out of
his cell or his cell door is open, the other
patients must be locked in their cells or
separated from the condemned inmate by a
locked grill gate or door.
9
10
11
12
13
14
15
16
17
Bachman Decl. (ECF No. 4598) at ¶ 24. See also Duffy Decl. (ECF
18
No. 4599), passim.
19
Treatment options for condemned inmates transferred to the
20
APP are extremely limited.
Non-condemned inmates in the APP
21
progress through a series of steps in a treatment program,
22
starting with individual programming “which means they come out
23
using – they’re handcuffed when they come out to watch TV in the
24
dayroom.”
25
assessed and “after, on average, two to three periods of watching
26
TV or watching a video, then they come out without handcuffs for
RT at 1003:18-20.
Their behavior while out of cell is
27
18
28
The Q3 unit houses both condemned and non-condemned inmate-patients.
RT at 1001:17-22.
16
See
1
another two to three times.”
2
“[i]f that is successful” non-condemned inmates progress to small
3
group programs and then to large group programs.
4
1004:18.
5
into the dayroom handcuffed.
6
the showers, they go handcuffed.
7
physically restrained with handcuffs.”
8
9
RT at 1003:21-24.”
Thereafter,
RT at 1003:25-
Condemned inmates “stay on the first level.
They come
Every place they go, if they go to
If they go to an EKG, they are
RT at 1004:15-18.19
Since the start of the SCCP, admissions of condemned inmates
to the APP “have substantially decreased.”
Bachman Decl. at ¶
10
22; see also RT at 1236:17-25 (Testimony of Monthei).
11
testified that the six condemned inmates treated at APP in the
12
preceding year had “psychiatric conditions that . . . would be
13
considered more mild and not the chronically debilitated
14
individuals that one would typically see in a long-standing
15
mental health system.”
16
since the SCCP opened San Quentin sends condemned inmate-patients
17
“who have more the behavioral acting out situations.”
18
1010:3-4.
19
to the APP early in 2013 “were for patients who had very little
20
or no mental illness” but were referred “in part because of the
21
drug-induced psychosis” caused by a “bad batch of meth” on the
22
condemned unit at San Quentin and “the homicidal and suicidality
23
that they exhibited during the course of intoxication.”
24
1236:20-1238:8.
25
Quentin shortly after his primary clinician went on vacation led
RT at 1008:22-25.
Dr. Carter
He also testified that
RT at
Dr. Monthei testified that a “spike” in referrals made
RT at
In addition, the suicide of an inmate at San
26
27
19
28
Given these custody provisions, it is hardly surprising that the
psychiatrists at San Quentin are reluctant to refer patients to the APP.
17
1
to a “degree of hypervigiliance” among clinicians at San Quentin.
2
RT at 1237:21-24; 1239:16-1240:10.
3
Dr. Burton testified that there is “no stimulation” in “the
4
DHS acute environment . . . .
5
the condemned.
6
They still get medication and therapy, but there’s a lot of quiet
7
time.”
8
might be helpful for patients “who have not a primary psychiatric
9
disorder, but perhaps a personality disorder. . . .”
There’s not a lot of activity for
There’s not a lot of groups, not a lot of yards.
RT at 1424:16-20.
He suggested that the APP program
RT at
10
1424:22-25.
11
“low stimulation environment” without a lot of group or treatment
12
options influences the referral decisions of clinicians at San
13
Quentin.
14
II. Analysis
15
Among other considerations, the fact that it is a
See, e.g., RT at 1447:16-1448:8.
The motion at bar implicates the adequacy of provisions of
16
the Program Guide governing access to inpatient hospital care
17
seriously mentally ill inmates on California’s death row as well
18
as the adequacy of defendants’ interpretation and implementation
19
of those provisions.20
20
male inmate-patients who experience decompensation in the form of
21
a crisis shall be referred to the DMH Inpatient Program at CMF
22
for a MHCB level of care or DMH inpatient level of care.”
23
Program Guide at 12-4-19, 20.
24
to
Those provisions require that “[c]ondemned
The evidence establishes an identified need in the condemned
25
inmate population for long-term inpatient mental health care
26
equivalent to that provided by the ICF programs described in the
27
20
28
The provisions at issue were approved by this court by order filed March 3,
2006 (ECF No. 1773).
18
1
Program Guide.
2
for condemned male inmate-patients to the acute level of care, a
3
short-term program where treatment options are severely limited
4
due to substantial custodial restrictions.
5
that this limitation is grounded in California Penal Code § 3600
6
which, as discussed above, requires condemned inmates to be
7
housed at San Quentin except in limited circumstances.
At present, defendants limit inpatient referrals
Defendants assert
8
It seems clear that defendants construe the statute too
9
narrowly with respect to access to intermediate hospital care for
10
condemned inmate-patients, at least with respect to providing
11
access to inpatient care that is longer-term than acute care.
12
The statute authorizes transfer of condemned inmate-patients for
13
inpatient mental health care where their mental health needs “are
14
so critical as to endanger the inmate or others.”
15
§ 3600(b)(4).
16
statute limits the time an inmate-patient may be treated in an
17
outside facility; the criteria for return is “adequate treatment
18
of the condition or remission.”
19
patients who meet the statutory criteria could, without running
20
afoul of the statute, be transferred to an ICF facility if
21
“adequate treatment” of their condition required a longer length
22
of stay than available in an acute hospital program.
23
Cal. Pen. Code
Where that criterion is met, nothing in the
Id.
Thus, condemned inmate-
It is also arguable that most, if not all, of the criteria
24
for inpatient hospital care described in the Program Guide could
25
be encompassed under a broad construction of Penal Code §3600.4’s
26
criterion of “mental health needs . . . so critical as to
27
endanger the inmate or others.”
28
Given the substantial evidence before the court of sequelae to
Cal. Pen. Code § 3600(b)(4).
19
1
deteriorating mental illness, the determination that an inmate-
2
patient has decompensated to the point where he needs a higher
3
level of care than available in the Enhanced Outpatient Program
4
would in most instances support a determination that the inmate-
5
patient has “mental health needs . . . so critical as to
6
endanger” himself and possibly others.
7
not, however, so construed the statute.
8
9
As noted, defendants have
While the court finds that transfers to existing ICF units
could be accomplished consistent with California Penal Code
10
§3600(b)(4), the evidence suggests significant impediments to
11
adequate care by such transfers.
12
concerning the severe custodial restrictions placed on condemned
13
inmate-patients in the APP raises grave concerns about the
14
adequacy of treatment available to condemned inmate-patients were
15
defendants to transfer them to existing ICF units under such
16
restrictions.21
17
substantial negative impact on treatment options in the acute
18
hospital setting, which is a short-term placement.
19
impact and the attendant anti-therapeutic consequences would be
20
magnified in the longer placements that are the hallmark of
As discussed above, testimony
The custodial restrictions have a significant and
That negative
21
22
23
24
25
26
27
28
21
This concern extends to non-condemned inmate-patients as well. According to
the Executive Director of the Vacaville Psychiatric Program, applying these
security protocols to the ICF programs at Vacaville “would reduce access to
care for the other patients living on the designed treatment unit. Given that
intermediate treatment is long term, with lengths of stay 180 to 240 days or
more, inclusion of even one or more condemned inmates in the intermediate care
facility milieu would have a profound impact. In our 64-bed high custody
Intermediate Treatment Center, providing individual treatment for a condemned
inmate would require having all 63 other patients behind a locked door or gate
(in a cell, group room, or yard) before escorting the condemned patient out to
a treatment area. This process would need to be repeated to return the
condemned inmate to his cell. The overall treatment milieu would slow down
significantly during these escort periods.” Bachman Decl. (ECF No. 4598) at ¶
25.
20
1
intermediate hospital care.
2
that called into question whether all of these restrictions are
3
necessary, whether custodial restrictions can be considered on an
4
individual basis, and whether creation of a separate unit housing
5
only condemned inmate-patients might obviate the need for some or
6
all of the restrictions.
7
considered by defendants moving forward, under the guidance of
8
the Special Master.
The court received credible evidence
All of those matters can and should be
9
The court also heard substantial testimony about factors
10
unique to the condemned population in California which suggest
11
that providing necessary care at San Quentin is not only
12
consistent with California Penal Code § 3600 but in fact a sound
13
policy decision for providing adequate mental health care to this
14
population.
15
The SCCP is defendants’ response to the identified need for
16
ICF care in the condemned inmate population.
17
see also RT at 1214:5-15 (Testimony of Monthei describing
18
spectrum of mental health services available within “the
19
overarching treatment program we refer to as the condemned
20
treatment program”, starting with inmates in the general
21
population and including correctional clinical case management
22
system (CCCMS), enhanced outpatient program (EOP), Specialized
23
Care for the Condemned Program (SCCP), mental health crisis beds
24
(MHCB), and DHS acute hospital care (APP)).
25
provide long-term care for condemned inmate-patients in need of a
26
higher level of care than EOP care.
27
licensed inpatient hospital program.
28
arguendo that defendants might be able to meet this identified
21
See Pls. Ex. 1043;
It is intended to
It is not, however, a
Furthermore, even assuming
1
need in an outpatient housing unit, rather than a licensed
2
inpatient facility, defendants do not presently have sufficient
3
beds to meet the identified need.
4
The SCCP is in some respects a program that brings
5
defendants closer to meeting their Eighth Amendment obligations
6
to these members of the plaintiff class than does the acute
7
psychiatric program at CMF.
8
legitimate penological purpose for all of the custodial
9
restrictions imposed on condemned inmate-patients transferred to
As discussed above, even assuming a
10
the APP, the restrictions are so severe that they preclude all
11
but the most basic mental health treatment.
12
themselves the restrictions appear significantly anti-
13
therapeutic.22
14
Moreover, in and of
In addition, the planned length of stay for the OHU beds is
15
six to twenty-four months, well beyond the duration of an acute
16
hospital stay. The SCCP is a real step forward, in that the APP
17
is simply not an adequate alternative for condemned inmate-
18
patients in need of long-term hospital care.
19
dedication and qualifications of the clinical staff at San
20
Quentin who testified before this court is impressive, as is the
21
apparent evolution of a working and appropriate balanced
22
partnership between clinical and custodial staff at that
23
institution.
24
25
Moreover, the
Notwithstanding the foregoing, as currently designed and
implemented, the SCCP is also insufficient in a number of
26
22
27
28
As discussed above, the evidence shows that once the SCCP became available,
referrals to APP declined significantly. While there may be several reasons
for the decline, it is plain to this court that the restrictive and limited
therapeutic environment of the APP is one of those reasons.
22
1
important respects to meet the identified need in the condemned
2
inmate-population and defendants’ Eighth Amendment obligation to
3
provide these inmates with access to adequate mental health care.
4
Most importantly, there are not enough beds available for
5
the need that has been identified.
6
evidentiary hearing defendants had identified twenty-three
7
inmates as needing an SCCP level of care.
8
criteria, all twenty-three of these inmates have active symptoms
9
of serious mental illness that make them unable to function in
At the time of the
By defendants’
10
the condemned population and in need of a higher level of mental
11
health care than the Enhanced Outpatient Program.
12
of these inmates was in an actual hospital bed, an MHCB, ten were
13
in the OHU, and twelve remained housed in East Block.
14
evidence before this court demonstrates that the conditions of
15
confinement in East Block are inadequate for seriously mentally
16
ill inmates in need of inpatient hospital care or its equivalent.
17
Defendants plan to “rotate” SCCP inmate-patients through the ten
18
available OHU beds, with those identified as most critically ill
19
being given priority to those beds and others waiting six to
20
twenty-four months until a bed becomes available.
21
identified need for more than the ten OHU beds presently
22
available and defendants are not presently providing sufficient
23
adequate beds to meet their constitutional obligations to these
24
members of the plaintiff class.23
25
23
26
27
28
Yet only one
The
There is an
While the new Stockton facility would provide additional beds, the court has
not received any information as to what custodial standards would apply to
condemned inmates. Moreover, the court has been informed that transfers to
that facility have been stayed because of staffing difficulties.
In addition, space may be available at CMF for an inpatient unit for condemned
inmates only, but similar questions are presented concerning, at least, what
custodial restrictions would apply in such a unit and how such restrictions
23
1
Second, it is far from clear that the ten OHU beds are
2
permanently available for mental health care for condemned
3
inmate-patients.
4
medical care and the transfer of those beds to mental health care
5
has, in the opinion of court experts in the Plata action,
6
jeopardized the sufficiency of medical beds for the condemned
7
inmate population at San Quentin.
8
Dr. Monthei acknowledged uncertainty as to whether the ten OHU
9
beds will remain available for mental health care, and there is
The beds are in a unit originally intended for
See Pls. Ex. 1011 at 31-32.
10
no evidence that any CDCR officials except Dr. Monthei and his
11
local team have even begun to discuss alternatives should the OHU
12
beds be returned to medical care.
13
Third, the ten OHU beds in use as part of the SCCP are
14
outpatient beds.
15
treatment center beds but for reasons not explained at the
16
hearing the license for those beds is not presently active.
17
Thus, while some inpatient services such as twenty-four hour
18
nursing services are apparently available if prescribed, the ten
19
OHU beds are not inpatient hospital beds.
20
The beds were licensed as correctional
For all of the foregoing reasons, defendants are not yet in
21
compliance with their Eighth Amendment obligation to provide
22
condemned inmate-patients with access to necessary inpatient
23
hospital care.
24
record before the court.
25
each remedy in its present form is insufficient and that it is
26
defendants in the first instance who must make the decisions
27
necessary to a complete remedy.
28
would affect the adequacy of care.
The solution is not, however, clear from the
Instead, the record demonstrates that
For that reason, defendants will
24
1
be directed to resume working with the Special Master to
2
establish a durable remedy that provides access to necessary
3
inpatient mental health care for seriously mentally ill inmates
4
on California’s death row.24
5
Plaintiffs also request a “sweep” of the condemned
6
population at San Quentin to conduct an assessment of need for
7
inpatient care.
8
insufficient number of necessary hospital beds is directly
9
correlated with underidentification of need.
The record in this action establishes that an
See, e.g., Order
10
filed March 31, 2010 (ECF No. 3831) at 2-3 (discussing two
11
separate unidentified needs assessments conducted in this action
12
to identify unmet need for inpatient care).
13
the evidence before the court demonstrates that there are not
14
presently a sufficient number of beds to meet the identified need
15
for access to an ICF level of mental health care in the condemned
16
inmate population.
17
“sweeps” that they have conducted periodically at San Quentin is
18
insufficient to outweigh the countervailing concerns presented by
19
the demonstrated shortfall in the number of available beds.
20
Accordingly, defendants will be directed to conduct an assessment
21
of need for inpatient care under the guidance and supervision of
22
the Special Master.
As discussed above,
Defendants’ evidence concerning the general
23
24
24
25
26
27
28
The record before the court shows that cooperative efforts by the parties,
under the supervision of the Special Master, to resolve this issue were
interrupted by the filing of defendants’ termination motion and the litigation
that has ensued. The present contours of the SCCP suggest that defendants
have moved forward with this alternative incorporating at least some of the
guidance provided by the Special Master and his experts following their
December 2012 visit. The court is hopeful that process can resume and be
completed expeditiously.
25
1
Finally, at the hearing plaintiffs raised a number of issues
2
concerning adequacy of care provided to condemned inmates at the
3
EOP and CCCMS levels of care.
4
orders requiring defendants to “regularly screen all individuals
5
on death row for mental health needs and assess suicide risk
6
using formal, validated screening tools,” and to develop
7
“adequate reporting mechanisms regarding mental health care for
8
the condemned, as well as an order directing the Special Master
9
to conduct a full evaluation of the EOP and CCCMS programs for
In particular, plaintiffs seek
10
condemned inmates at San Quentin
11
4935) at 32-36.25
12
Pls. Post-Trial Brf. (ECF No.
The court will not issue any additional orders at this time.
13
First, the Special Master is already tasked with monitoring the
14
delivery of mental health care at San Quentin and no further
15
orders are necessary to direct him to fulfill that obligation.
16
Second, the court anticipates that the assessment required by
17
this order will provide substantial additional information as to
18
whether there are additional unmet mental health needs in the
19
condemned inmate population.
20
court will take such further action as may be required at that
21
time.
22
IV.
23
Should those be demonstrated, the
Standards for Injunctive Relief
The court does, by this order, direct specific action by
24
defendants.
25
are in aid of the remedy required by this court’s 1995 order.
26
the extent that the requirements of 18 U.S.C. § 3626(a)(1) may
27
apply, this court finds that the orders contained herein are
28
25
In this court’s view, the orders contained herein
The page citations are to the ECF page number in this document.
26
To
1
narrowly drawn, extend no further than necessary to correct the
2
Eighth Amendment violation in the delivery of mental health care
3
to members of the plaintiff class, and are the least intrusive
4
means to that end.
See 18 U.S.C. § 3626(a)(1)(A).
5
In accordance with the above, IT IS HEREBY ORDERED that:
6
1. Plaintiffs’ April 11, 2013 motion to enforce judgment and
7
for affirmative relief related to inpatient treatment for
8
class members in California’s condemned inmate population
9
is granted in part.
10
2. Defendants shall forthwith, under the guidance and
11
supervision of the Special Master, conduct an assessment
12
of unmet need for inpatient care in the condemned inmate
13
population at San Quentin.
14
3. Defendants shall forthwith resume working under the
15
guidance of the Special Master to establish a durable
16
remedy that provides adequate access to necessary
17
inpatient mental health care or its equivalent26 for
18
seriously mentally ill inmates on California’s death row.
19
4. In meeting their obligations under paragraph 3 of this
20
order, consideration shall be given to all possible
21
remedies, including, but not limited to, creation of a
22
hospital unit for condemned inmates only at CMF, San
23
24
25
26
27
28
26
The parties disagree as to whether the required care can be provided in an
unlicensed outpatient housing unit or whether an inpatient licensed facility
is required. At the present time no request has been made to waive any
provision of state law governing the delivery of mental health care in a
prison or hospital setting. While this court is precluded from ordering
defendants to comply with state law, see. Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984), a durable remedy to the Eighth Amendment
violations in this action must not include programs whose continued existence
are jeopardized by noncompliance with state law. The dispute over whether the
proper remedy requires a licensed facility should be resolved as part of the
establishment of a durable remedy required by this order.
27
1
Quentin, Stockton or other appropriate facility.
2
5. Within six months the Special Master shall report to the
3
court on the remedy elected and the time frame for its
4
complete implementation.
5
6. Except as expressly granted herein, plaintiffs’ motion to
6
enforce judgment and for additional orders is denied
7
without prejudice.
8
9
7. This order further demonstrates that defendants’ motion
to terminate should not have been granted.
10
IT IS SO ORDERED.
11
DATED:
December 10, 2013.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
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