Coleman, et al v. Schwarzenegger, et al

Filing 6580

ORDER signed by Chief District Judge Kimberly J. Mueller on 04/06/2020. The parties shall file briefing by noon on 4/8/2020 addressing the court's concerns. Defendant shall provide the Special Master and Plaintiff with expedited discovery by 4/7/2020, 5:00 p.m. The parties shall file a joint report with the court no later than noon on 4/9/2020. (Andrews, P)

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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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Plaintiffs,

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v.

No. 2:90-cv-0520 KJM DB P

ORDER

GAVIN NEWSOM, et al.,
Defendants.

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On Saturday, April 4, 2020, the Three Judge Court, convened in this action and in

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Plata v. Newsom, Case No. 01-cv-1351 JST (N.D. Cal.), denied an emergency motion bought by

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plaintiffs in both cases to modify the prison population reduction order previously issued by that

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court, in response to the current coronavirus pandemic. ECF No. 6574. The Three Judge Court’s

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order was without prejudice to the right of each plaintiff class to seek “relief in a procedurally

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appropriate forum, including the individual Coleman and/or Plata courts.” ECF No. 6574 at 2.

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In a concurring opinion as a member of that court, the undersigned noted that “expedited

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proceedings” to “immediately exhaust the possibility of inmate transfers and relocations to secure

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facilities to achieve constitutionally acceptable conditions for the Plaintiff classes” remained

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available before the individual district courts. ECF No. 6574 at 15 (Mueller, Chief District Judge,

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concurring). In this court, a third status on the impact of the coronavirus pandemic on the

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Coleman class is set for this Friday. See ECF No. 6571.
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Since the Three Judge Court issued its order, four more inmates have tested

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positive for COVID-19, for a total of seventeen. See id. at 2; see also Cal. Dep’t of Corr. &

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Rehab., Population COVID-19 Tracking1(last visited Apr. 6, 2020). This number has more than

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doubled since late last week. The Special Master has informed the court that at least one of the

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persons infected is a Coleman class member. Moreover, a total of fifty-three correctional staff

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have self-reported as positive for the virus. Cal. Dep’t of Corr. & Rehab., Population COVID-19

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Tracking2 (last visited Apr. 6, 2020). Again the Special Master has informed this court that at

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least one such staff member conducted a group session for Coleman class members in March

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2020.

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In light of the growing numbers of infected CDCR inmates and staff members, the

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exigent circumstances of which this court is aware appear to require immediate steps to safeguard

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the constitutional rights of the plaintiff class. At this point, this court has no indication that

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defendants are taking the immediate steps called for at this time. So that the court may by the

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time of the upcoming status conference make a reasoned assessment of the current circumstances

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in light of the applicable law, the parties shall by 12 noon on April 8, 2020, file simultaneous

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briefing, limited to ten pages each, addressing the following:

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1. In light of the coronavirus pandemic, what are the constitutional minima

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required for physical safety for Coleman class members? Is six feet of physical distancing

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required by the Constitution? If not, why not and what is required?

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2. Assuming some level of physical distancing is required by the Constitution,

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what additional steps, if any, must be taken to ensure that defendants continue to deliver to

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Coleman class members at a minimum the level of mental health care that has thus far been

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achieved in the ongoing remedial process in this case, focused on achieving the delivery of

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constitutionally adequate mental health care to the plaintiff class?

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See https://www.cdcr.ca.gov/covid19/population-status-tracking/.

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See https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/.
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Additionally, defendants shall provide the following information to the Special

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Master and the plaintiffs immediately, and in any event not later than 5:00 p.m. on April 7, 2020,

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in the form of expedited discovery, subject to existing protective orders:

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1. The number of Coleman class members by institution and mental health level

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of care (CCCMS, EOP, MHCB, and inpatient care); a description of the housing space for each

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level of care at each institution (i.e., double cell, single cell, dormitory), with sufficient

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information to allow calculation of the physical distancing currently possible for each set of class

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members at each institution and level of care, along with information on the physical distancing

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currently being achieved; and a list identifying by name and housing location all Coleman class

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members with at least one COVID-19 risk factor.

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2. Defendants’ specific plan to achieve by the end of this week a defined level of

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physical distancing for any Coleman class member currently residing in housing space that does

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not allow six feet of physical distancing between inmates, including but not limited to concrete

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information on any plans to temporarily relocate such class members to off-site secure facilities.

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The parties shall meet and confer by 5:00 p.m. on April 8, 2020 regarding the

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information provided by defendants and file a joint report with the court no later than 12:00 noon

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on April 9, 2020 concerning the adequacy of defendants’ plan to achieve greater physical

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distancing for members of the plaintiff class.

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IT IS SO ORDERED.
DATED: April 6, 2020.

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