Coleman, et al v. Schwarzenegger, et al

Filing 7635

ORDER signed by Chief District Judge Kimberly J. Mueller on 10/20/22 ORDERING that the evidentiary dispute concerning Dr. Stewart's testimony is MOOTED by this order. Defendants' 6932 objections to plaintiff's request to admit evid ence after hearing, are sustained without prejudice to plaintiffs' right to seek, as appropriate, admission of some or all of that evidence should it become relevant in future proceedings. Defendants' 6945 motion to strike the declarati on of Amy Xu is GRANTED. The declaration of Amy Xu 6944 is STRICKEN, without prejudice. Plaintiffs' 6982 motion to strike declarations is GRANTED. The five declarations filed at ECF Nos. [6976-1] through 5 are STRICKEN, without prejudice. (Kastilahn, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RALPH COLEMAN, et al.,

12

Plaintiffs,

13
14
15

v.

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

ORDER

GAVIN NEWSOM, et al.,
Defendants.

16
17
18

The court held a focused evidentiary hearing on October 23, 2020, to address class

19

member access to Department of State Hospitals (DSH) inpatient mental health programs. The

20

parties filed final exhibit lists on October 30, 2020. ECF Nos. 6931, 6933. Defendants filed

21

objections to plaintiffs’ request to admit evidence after the close of witness testimony. ECF No.

22

6932. Plaintiffs filed a response to the objections accompanied by two declarations. ECF Nos.

23

6939, 6943, 6944. On November 8, 2020, defendants moved to strike one of plaintiffs’

24

declarations, ECF No. 6945; plaintiffs opposed the motion, ECF No. 6947. In late 2020, the

25

parties filed several briefs related to issues raised at hearing. See ECF Nos. 6948, 6949, 6960,

26

6975, 6976. On December 11, 2020, plaintiffs moved to strike evidence filed by defendants with

27

their supplemental brief, ECF No. 6982; defendants opposed the motion, ECF No. 6997. As

28

required by the court, ECF No. 7029, on January 28, 2021 defendants filed an update on the status
1

1

of admissions to DSH programs, ECF No. 7041. Also as required by the court, ECF No. 7107,

2

the parties have filed briefing on whether the court should find the matters raised at the

3

evidentiary hearing moot. ECF Nos. 7117, 7119.

4
5
6
7
8
9

Before the evidentiary hearing, in an order filed May 7, 2020, the court identified three
issues for consideration at the hearing:
(1) as required by the April 24, 2020 order, have DSH and CDCR
been complying with the Program Guide requirements, as modified
by the temporary addition of COVID-19 screening, for transfer of
class members to inpatient hospital beds; (2) if they are not
complying with those requirements, in what way or ways are they
deviating from those requirements; and (3) what is the rationale for
any deviation.

10

May 7, 2020 Order, ECF No. 6660, at 2. Following the hearing, as noted in the March 26, 2021

11

order to show cause, ECF No. 7107, during the week of March 8, 2021, the Special Master

12

informed the court (1) there was at that time no wait list for class member access to DSH

13

inpatient beds; (2) DSH was following appropriate quarantine and isolation policies as required

14

by the COVID-19 pandemic, which allowed facilitation of class member transfer to DSH

15

inpatient programs; (3) DSH and the California Department of Corrections and Rehabilitation

16

(CDCR) had recently resumed working collaboratively with the Special Master to review all class

17

members’ referrals to inpatient hospital beds; and (4) that collaboration was appropriately

18

informed by public health considerations and had, since its resumption at least until the week of

19

March 8, 2021, resulted in compliance with the requirements of the April 24, 2020 order. March

20

26, 2021 Order to Show Cause, ECF No. 7107, at 2. Based on this information, the court issued

21

the order directing the parties to show cause in writing why the court should not find moot the

22

matters raised at the October 23, 2020 evidentiary hearing.

23

In their brief responding to the order to show cause, defendants contend the specific issues

24

identified in the court’s May 7, 2020 order are moot, see ECF No. 7117 at 4-5, but that another

25

question concerning the scope of defendant Clendenin’s authority to act in a public health

26

emergency remains, id. at 5-7. Plaintiffs contend the issues are not moot because class members

27

have continued to experience extended delays in access to necessary inpatient care and defendants

28

are over-relying on the COVID-19 exception to the Program Guide transfer timelines, see April
2

1

24, 2020 Order, ECF No. 6639, at 11. ECF No. 7119 at, e.g., 3. For the reasons explained below,

2

the court declines to make retrospective factual findings based on the evidence adduced at the

3

October 2020 hearing or to make further remedial orders at this time on the issues raised at that

4

hearing.

5

The relief ordered in this action is injunctive relief, which equitable and operates

6

prospectively. At this stage, as this court has reviewed in numerous prior orders, these

7

proceedings are governed by longstanding court directives ordering that injunctive relief and

8

remedial plans prepared in accordance with those orders. After more than twenty-five years of

9

remedial effort, the court expects and understands that the need for new forms of relief should be

10

exceedingly rare. At the same time, it is possible that discreet needs for modification of existing

11

injunctions may arise until this court finds, or all stakeholders agree, that a durable remedy has

12

been fully implemented. As set out above, the issues presented at the October 2020 hearing

13

related to the efficacy of the April 24, 2020 modification to existing injunctive relief governing

14

transfers of class members to Department of State Hospital (DSH) programs for necessary

15

inpatient care entered after the onset of the COVID-19 pandemic; they also relate to defendants’

16

application of that modification and whether further modifications to the existing relief are

17

required. See ECF No. 6639 at 10.

18
19

Courts retain the authority to modify injunctions based on new or changed circumstances.
See United States v. Swift & Co., 286 U.S. 106, 114 (1932).

20

The source of the power to modify is of course the fact that an
injunction often requires continuing supervision by the issuing court
and always a continuing willingness to apply its powers and
processes on behalf of the party who obtained that equitable relief.

21
22

Firmness and stability must no doubt be attributed to
continuing injunctive relief based on adjudicated facts and law, and
neither the plaintiff nor the court should be subjected to the
unnecessary burden of re-establishing what has once been
decided. Nevertheless the court cannot be required to disregard
significant changes in law or facts if it is ‘satisfied that what it [h]as
been doing has been turned through changing circumstances into an
instrument of wrong.’ United States v. Swift & Co., supra, 286 U.S.
at pages 114—115, 52 S.Ct. at page 462. A balance must thus be

23
24
25
26
27
28

/////
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

struck between the policies of res judicata and the right of the court
to apply modified measures to changed circumstances.
Sys. Fed'n No. 91, Ry. Emp. Dep't, AFL-CIO v. Wright, 364 U.S. 642, 647–48 (1961).
An injunction is an exercise of a court’s equitable authority, to be
ordered only after taking into account all of the circumstances that
bear on the need for prospective relief. See United States v. Swift &
Co., 286 U.S. 106, 114, 52 S.Ct. 460, 76 L.Ed. 999 (1932). See
also Weinberger v. Romero–Barcelo, 456 U.S. 305, 312, 102 S.Ct.
1798, 72 L.Ed.2d 91 (1982); Hecht Co. v. Bowles, 321 U.S. 321, 329,
64 S.Ct. 587, 88 L.Ed. 754 (1944); 11A C. Wright, A. Miller, & M.
Kane, Federal Practice and Procedure § 2942, pp. 39–42 (2d
ed.1995) (hereinafter Wright & Miller). Equitable relief is not
granted as a matter of course, see Weinberger, 456 U.S., at 311–312,
102 S.Ct. 1798, and a court should be particularly cautious when
contemplating relief that implicates public interests, see id., at 312,
102 S.Ct. 1798 (“In exercising their sound discretion, courts of equity
should pay particular regard for the public consequences in
employing the extraordinary remedy of injunction”); Harrisonville
v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 338, 53 S.Ct. 602, 77
L.Ed. 1208 (1933) (“Where an important public interest would be
prejudiced, the reasons for denying the injunction may be
compelling”).
Salazar v. Buono, 559 U.S. 700, 714–15 (2010).
Fundamentally, the issues addressed by the October 2020 hearing included the Eighth

16

Amendment right of class members to timely access to inpatient mental health care and the public

17

interest in management of the COVID-19 pandemic in congregate living facilities, here state

18

prisons and hospitals. Management of the COVID-19 pandemic has not followed a straight line

19

given the initial emergency occasioned by its detection and the continual changes in the public

20

health landscape as the COVID-19 virus took hold and then mutated repeatedly. These

21

circumstances only serve to heighten the imperative that this court proceed with caution when

22

considering additional relief. The Special Master’s March 2021 report to the court showed that

23

between October 2020, when the hearing was held, and March 2021, defendants had made

24

substantial progress in incorporating COVID-19 protocols into the inpatient care transfer process

25

and implementing a collaborative process for transferring class members to DSH for necessary

26

inpatient care under the circumstances of the pandemic. The report supports the conclusion that

27

findings predating those accomplishments would serve no useful purpose. Plaintiffs’ response to

28

the order to show cause also supports the conclusion that relevant facts on the ground continue to
4

1

evolve. See ECF No. 7119 at, e.g., 2-4. See also Ahlman v. Barnes, 2020 WL 3547960, slip op.

2

at 5 (9th Cir. 2020) (recognizing “circumstances surrounding the COVID-19 pandemic are

3

evolving rapidly”). Finally, defendants’ monthly reports on transfers to inpatient care show that

4

for at least the past seven reporting months (March 2022 through September 2022), no class

5

members have been waiting beyond Program Guide timelines for transfer to inpatient care at

6

DSH programs, as those timelines were modified by the April 24, 2020 order. See ECF Nos.

7

7628 at 4, 7612 at 4, 7604 at 4, 7590 at 4, 7572 at 4, 7552 at 4, and 7529 at 4.

8
9

Here, the extended nature of defendants’ effort to complete remediation in this action and
the need for public officials to respond rapidly, nimbly, and flexibly to the demands of the

10

COVID-19 pandemic both counsel restraint. The record shows the remedial framework

11

concerning timely transfers to inpatient care took approximately two decades to develop and

12

implement; it also shows the onset of the COVID-19 pandemic interrupted progress toward full

13

implementation of this part of the remedy. The court’s April 24, 2020 order represents a specific

14

and necessary modification to account for the COVID-19 pandemic. The information the Special

15

Master provided to the court in March 2021 indicated the modification had been incorporated into

16

an updated and collaborative transfer process. Since March 2022, defendants’ reports on waitlists

17

for access to inpatient care at DSH show only four inmates for whom the COVID-19 exception

18

was invoked when those inmates were referred to inpatient care; all three were transferred when

19

the exception was cleared. See ECF Nos. 7628 at 4, 7590 at 5, 7572 at 4. There is no basis in the

20

current record for further modification to the court’s orders concerning timely access to inpatient

21

mental health care; concomitantly, this information confirms there is no need for this court to

22

make retrospective factual findings from the October 2020 evidentiary hearing.

23

In their response to the order to show cause defendants suggested an ongoing issue with

24

respect to the court’s determination in its April 24, 2020 that DSH Director Stephanie Clendenin

25

was required to seek modification of this court’s orders before relying exclusively on state law to

26

suspend class members’ admission to DSH inpatient programs. As this court has previously

27

noted, the April 24, 2020 order and the subsequent May 7, 2020 order “stand for the basic and

28

unremarkable proposition that any party bound by a court order may not act unilaterally in
5

1

violation of that order but, instead, must seek relief from the court that issued the order.” June 17,

2

2020 Order, ECF No. 6730, at 6. Nothing in the case on which defendants rely, Jacobson v.

3

Commonwealth of Massachusetts, 197 U.S. 11 (1905), alters that proposition. Jacobson

4

determined that the state may, in the exercise of its police power and without running afoul of the

5

United States Constitution, enact reasonable regulations to protect the public health and safety,

6

including by delegating specific public health decision-making to local governing bodies.

7

Jacobson, 197 U.S. at 24-31. Jacobson did not involve the impact of federal court orders on state

8

actors and does not undermine the basis of the court’s April 24, 2020 and May 7, 2020.1

9

In the March 26, 2021 order to show cause, the court also signaled it anticipated resolving

10

outstanding evidentiary disputes from the post-hearing briefing following the October 2020

11

hearing in order to make the record clear. See ECF No. 7107 at 3. After further consideration,

12

the court finds such resolution unnecessary. For the reasons explained in this order, the court

13

makes no retrospective factual findings based on any evidence tendered at the October 2020

14

hearing, nor does it order any modification to existing injunctions. Defendants’ October 30, 2020

15

objections to plaintiffs’ request to admit evidence after hearing, ECF No. 6932, are sustained

16

without prejudice to plaintiffs’ right to seek, as appropriate, admission of some or all of that

17

evidence should it become relevant in future proceedings. The dispute over Dr. Pablo Stewart’s

18

testimony concerning eleven class members, see Reporter’s Transcript of Proceedings (RT

19

10/23/20), ECF No. 6935 at, e.g. 271, is mooted by this order.2 Defendants’ November 8, 2020

20

motion to strike the declaration of Amy Xu will be granted without prejudice to plaintiffs’ right to

21

seek, as appropriate, admission of the declaration and any or all of the exhibits appended thereto

22
23
24
25
26
27
28

1

The court has not imposed sanctions or made any other orders based on its findings concerning
Director Clendenin’s violation of its orders; the only modification ordered by the April 24, 2020
and May 7, 2020 orders permits defendants to conduct COVID-19 screenings prior to transferring
class members to inpatient care. See ECF No. 6730 at 6.
2
The court nevertheless notes with concern the apparent, unexplained contradiction between
defense counsel’s representation at hearing concerning access to the medical records for those
eleven inmate patients, see RT 10/23/20, ECF No. 6935 at 270, and Dr. Mehta’s subsequent
testimony concerning his review of eleven records identified by, presumably, Dr. Stewart, id. at
302.
6

1

should they become relevant in future proceedings. Similarly, plaintiffs’ December 11, 2020

2

motion to strike five declarations submitted by defendants will be granted without prejudice to

3

defendants’ right to seek, as appropriate, admission of any or all of the declarations should they

4

become relevant in future proceedings.

5
6

In accordance with the above, the court declines to make any factual findings or additional
remedial orders based on the matters considered at the October 23, 2020 evidentiary hearing.

7

IT IS HEREBY ORDERED that:

8

1. The evidentiary dispute concerning Dr. Stewart’s testimony is mooted by this order;

9

2. Defendants’ objections to plaintiff’s request to admit evidence after hearing, ECF No.

10

6932, are sustained without prejudice to plaintiffs’ right to seek, as appropriate, admission of

11

some or all of that evidence should it become relevant in future proceedings;

12
13

3. Defendants’ motion to strike the declaration of Amy Xu, ECF No. 6945, is
GRANTED;

14

4. The declaration of Amy Xu, ECF No. 6944, is STRICKEN, without prejudice;

15

5. Plaintiffs’ December 11, 2020 motion to strike declarations, ECF No. 6982, is

16
17

GRANTED; and
6. The five declarations filed at ECF Nos. 6976-1 through 5 are STRICKEN, without

18

prejudice.

19

DATED: October 20, 2022.

20
21
22
23
24
25
26
27
28
7