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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH COLEMAN, et al., 12 13 14 15 No. CIV. S-90-520 LKK/DAD (PC) Plaintiffs, v. ORDER EDMUND G. BROWN, JR., et al., Defendants. 16 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 13 14 15 16 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 23 24 25 26 27 28 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. 8 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 5 26 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 23 24 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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