Coleman, et al v. Schwarzenegger, et al

Filing 6917

THIRD STIPULATION and ORDER signed by Chief District Judge Kimberly J. Mueller on 10/19/2020 EXTENDING 5605 Order Waiving State Law regarding L-Wing at California Medical Facility. (Huang, H)

1
2
3
4
5
6
7
8
9

XAVIER BECERRA
Attorney General of California
MONICA N. ANDERSON
Senior Assistant Attorney General
ADRIANO HRVATIN
Supervising Deputy Attorney General
KYLE A. LEWIS, State Bar No. 201041
ELISE OWENS THORN, State Bar No. 145931
TYLER V. HEATH, State Bar No. 271478
Deputy Attorneys General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

10
11

PAUL B. MELLO, State Bar No. 179755
LISA M. POOLEY, State Bar No. 168737
SAMANTHA D. WOLFF, State Bar No. 240280
LAUREL E. O’CONNOR, State Bar No. 305478
HANSON BRIDGETT LLP
1676 N. California Boulevard, Suite 620
Walnut Creek, CA 94596
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants
ROMAN M. SILBERFELD, State Bar No. 62783
GLENN A. DANAS, State Bar No. 270317
ROBINS KAPLAN LLP
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Special Counsel for Defendants

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

SACRAMENTO DIVISION

15
16
RALPH COLEMAN, et al.,

Case No. 2:90-cv-00520 KJM-DB (PC)

17
18
v.
19
20
21

Plaintiffs, THIRD STIPULATION AND ORDER TO
EXTEND THE APRIL 14, 2017 ORDER
WAIVING STATE LAW REGARDING
L-WING AT CALIFORNIA MEDICAL
FACILITY

GAVIN NEWSOM, et al.,
Defendants. Judge: The Hon. Kimberly J. Mueller

22
23

On April 14, 2017, the Court approved the parties’ stipulation to waive state licensing

24

requirements so that CDCR could convert 37 cells on the first floor of the L-Wing at the

25

California Medical Facility (L-1) into 70 temporary unlicensed Intermediate Care Facility (ICF)

26

level-of-care beds and two observation and restraint rooms for high-custody inmate-patients

27

referred for ICF care. (ECF No. 5605.) The Court approved the parties’ stipulation on two

28

conditions: (1) “Defendants shall report to the Special Master monthly as to whether there are
[3419376.1]
1
Stip. and Order for 3rd Extension of L-1 Waiver (2:90-cv-00520 KJM-DB (PC))

1

any inmate-patients in L-1 wing who have been custodially approved by CDCR and clinically

2

cleared by the Department of State Hospitals (DSH) for placement in one of the DSH facilities

3

and, if so, why any such inmate-patient is in the L-1 Wing rather than in a DSH facility consistent

4

with the patient’s Least Restrictive Housing designation or other appropriate DSH facility;” and

5

(2) “the parties are directed to work with the Special Master to bring the plans for the L-1 Wing

6

unit into compliance, as necessary and as expeditiously as possible, with the requirements of the

7

October 18, 2007 order [ECF No. 2461].” (Id. at 5.)

8

The period covered under the April 14, 2017 order waiving state law has been extended

9

twice, through October 15, 2020. (ECF Nos. 5950 and 6606.) Consistent with the court’s order,

10

CDCR has provided monthly reports to the Special Master and Plaintiffs with patient-level data

11

showing offered out-of-cell time, offered structured hours, and program cancellations. The

12

second extension continuing the waiver to October 15 recognized CDCR’s continued need for the

13

beds in L-1, Plaintiffs’ need for additional assurances that CDCR consistently offers patients in

14

L-1 twelve hours of daily out-of-cell time, and COVID-19’s impact on Defendants’ ability to

15

provide a workable solution to ensure that CDCR consistently offers patients in L-1 twelve hours

16

of daily out-of-cell time. (ECF No. 6606 at 2-3.) The second extension also provided that the

17

parties would revisit the need for a further extension of the waiver after five months. (Id.)

18

The parties have conferred regarding the need for a third extension of the April 14 order

19

waiving state licensing laws concerning L-1. CDCR continues to need the beds in L-1 to provide

20

additional inpatient beds pending planned construction and activation of new flexible beds.

21

Plaintiffs’ concerns regarding Defendants’ ability to comply with the terms of the order waiving

22

state law requirements, particularly a plan to ensure each patient is offered twelve hours of out-of-

23

cell time daily, persists. In addition, Plaintiffs are concerned with the COVID-19 impacts on the

24

reductions in structured treatment over the past six months for the patients in L-1.

25

Accordingly, the parties jointly request the Court extend the April 14, 2017 order waiving

26

state law for an additional six months. Defendants agree, as a condition for the extension of the

27

waiver, to develop and submit to the Special Master and Plaintiffs within one month from the date

28

///
[3419376.1]

2
Stip. and Order for 3rd Extension of L-1 Waiver (2:90-cv-00520 KJM-DB (PC))

1

of the order approving this stipulation a plan to provide additional structured treatment, subject to

2

monitoring by the Special Master.

3

Good cause presented to the Court and appearing, the parties stipulate that the Court should

4

extend the waivers of the licensing requirements described below for an additional six months

5

from the date of the Court’s order.

6

IT IS STIPULATED AND ORDERED AS FOLLOWS:

7

1.

The following state licensing requirements shall be waived with respect to the 70

8

temporary Intermediate Care Facility beds and two observation and restraint rooms in the L-

9

Wing, L-1, at California Medical Facility:

10

A. California Health and Safety Code section 1250(j); and

11

B. California Code of Regulations, Title 22, sections 79501–79861.

12

2.

The waiver is extended six months to April 15, 2021;

13

3.

Within one month from the date of this order, Defendants shall provide the Special

14

Master and Plaintiffs with a plan for additional structured treatment, subject to monitoring by the

15

Special Master; and

16
17

4.

Within five months from the date of this order, the parties agree to revisit the need for

a further extension of the waiver.

18

The Special Master has reviewed and approves this stipulation.

19

///

20

///

21

///

22
23
24
25
26
27
28
[3419376.1]

3
Stip. and Order for 3rd Extension of L-1 Waiver (2:90-cv-00520 KJM-DB (PC))

1
Dated: October 14, 2020

XAVIER BECERRA
Attorney General of California
ADRIANO HRVATIN
Supervising Deputy Attorney General

2
3
4

/S/ Elise Owens Thorn
ELISE OWENS THORN
Deputy Attorney General
Attorneys for Defendants

5
6
7
8

Dated: October 14, 2020

ROSEN BIEN GALVAN & GRUNFELD LLP

9

/s/ Marc Shinn Krantz

10

Marc Shinn-Krantz
Attorneys for Plaintiffs

11
12
13

IT IS SO ORDERED.
Dated: October 19, 2020.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[3419376.1]

4
Stip. and Order for 3rd Extension of L-1 Waiver (2:90-cv-00520 KJM-DB (PC))