Coleman, et al v. Schwarzenegger, et al

Filing 8147

BENCH ORDER signed by Chief District Judge Kimberly J. Mueller. [The Court read this Order into the Record at the 8146 Status Conference. No Signature] (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RALPH COLEMAN, et al.,

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No. 90-cv-0520 KJM DB

Plaintiffs,

BENCH ORDER*

v.
GAVIN NEWSOM, et al.,
Defendants.

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Plaintiffs are a class of approximately 33,763 California state prisoners with serious

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mental disorders. This class – which is growing in numbers -- has been waiting for decades for

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the state to meet its constitutional obligations to them when it comes to delivery of mental health

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care. Defendants are officials at the highest levels of California’s executive branch: California

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Governor Gavin Newsom, California Department of Corrections and Rehabilitation (CDCR)

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Secretary Jeff Macomber, Undersecretary for Health Care Services for CDCR Diana Toche,

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D.D.S., Deputy Director of the Statewide Mental Health Program for CDCR Amar Mehta, M.D.,

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Director of California Department of State Hospitals (DSH) Stephanie Clendenin, and Director of

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the California Department of Finance Joe Stephenshaw.

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_____________________

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* The court read this order into the record at the proceedings in this matter on March 8, 2024.
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Today, the court is letting defendants know it intends to hold some or all of them in

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contempt and impose civil fines as sanctions until defendants achieve compliance in delivering

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critically necessary, long overdue staffing relief for members of the plaintiff class. As of today,

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the amount of fines owing is $94,912,929.00, based on the defendants’ own reporting.

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This is a tentative ruling. The court is fully prepared to make it a final formal order, but it

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will provide defendants one last opportunity to demonstrate the ability, the will and the leadership

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to take decisive action to address the festering problem this case represents.

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The plaintiff class has been waiting on the state for more than 28 years. In 1995, the court

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first found overwhelming evidence of significant and chronic understaffing among mental health

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care service provider positions in California’s prisons. In 1999, the court ordered defendants to

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comply with designated staffing ratios. In 2002, with the violation continuing, the court ordered

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defendants to maintain staffing levels without exceeding a 10 percent vacancy rate. In 2009, with

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the violation still continuing, the court ordered defendants to develop a formal Staffing Plan. In

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2017, the court ordered full compliance with the required staffing levels.

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On February 28, 2023, the court issued its order setting out a framework for staffing

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enforcement, including a system of fines to begin accumulating, on paper, on March 31, 2023. If

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fines accumulated for more than three consecutive months the court said it would set the matter

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for hearing on findings of contempt and actual payment of fines. On June 12, 2023, the court

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found fines had accumulated for three consecutive months. In other words, faced with the threat

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of fines, defendants still had not complied with their constitutional obligations to the plaintiff

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class. The court set enforcement proceedings for September 29, 2023, and took evidence over

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several days.

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Defendants acknowledge they are required to comply with their constitutional obligations

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to the plaintiff class. Defendants do not dispute the October 10, 2017 order is sufficiently specific

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and definite as to its terms so as to support enforcement. They do not, and cannot, contend they

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have actually complied in full with the October 10, 2017 order. They instead contend they have

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achieved “actual and substantial compliance” with the 90 percent fill rate requirement across

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some classifications in some periods of time, and assert the defenses of substantial compliance
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and impossibility. They have not submitted sufficient evidence to meet their burden of

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supporting those defenses.

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One metric is important to clarify up front. The parties dispute whether the October 2017

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order itself allows for substantial compliance through defendants’ filling of allocated mental

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health staff positions “to something less than the 90% threshold,” as defendants contend it does.

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The October 10, 2017 order requires “complete compliance with the staffing ratios in the[ ] 2009

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Staffing Plan and the maximum ten percent vacancy rate required by the court’s June 13, 2002

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order.” These requirements mean defendants must allocate 100 percent of the positions required

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by the staffing ratios in the 2009 Staffing Plan and have no more than a ten percent vacancy rate

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systemwide in any of the five classifications at issue. In other words, anything greater than a ten

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percent vacancy rate cannot be considered substantial compliance.

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Substantial Compliance

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Defendants do say they’ve “actually complied” in a limited way: they contend that filling

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some classifications to 90 percent for some periods of time precludes a finding of contempt as to

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classifications that were filled to 90 percent or above during any part of the relevant period from

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October 2018 to now. The periods defendants cite are, at best, periods of partial compliance. The

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question is whether monetary sanctions for contempt should extend to those periods of partial

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compliance. The answer is no. The fine structure the court has set up does not include sanctions

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for vacancy rates below the ten percent cap.

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Defendants also contend they are in substantial compliance with the 90 percent fill rate

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required by the court’s orders. They say (1) they have achieved at, above, or near a 90 percent fill

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rate among the five classifications individually for various and significant periods of time; (2)

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they “have taken all reasonable measures to improve fill rates” where they have fallen short; and

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(3) their “failure to reach required staffing thresholds, . . . , was the inadvertent result of the

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COVID-19 pandemic and its lasting changes on the labor economy. The first and third arguments

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are unavailing: the first because it mistakenly assumes something “near” a 90 percent fill rate can

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count as substantially compliant, and the third because substantial compliance is a prerequisite to

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being let off the hook for only technical or inadvertent violations.
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The real question is whether defendants have taken “all reasonable measures” to achieve

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required staffing levels – and it is “all” such measures that are required. Defendants say yes, they

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have:

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 through twice yearly review of staffing allocations – which is commendable but not
sufficient;
 expansion of telework opportunities for mental health clinicians – a recent initiative

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that will take at least two years to make a dent and even if fully successful will not

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achieve compliance;

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 “salary and financial incentives” – while sticking with a policy of offering new hires
the lowest salary in classification range regardless of experience or prior pay;
 streamlining processes for hiring – with the goal, among others, of reducing time to
hire from 108 to 65 days – still a noncompetitive very long time;

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 expansion of marketing and advertising efforts;

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 contracting with the leading national recruiter for clinicians;

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 and contracting with registry providers, who arrange for expensive privately

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contracted clinicians, many from out of state, and who have been unable to fill all of

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defendants’ requests.

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Regarding salaries, defendants have offered no evidence they have even attempted to

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analyze what wages and benefits they would have to offer mental health clinicians to fill staffing

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vacancies. They do not argue or show it would be impossible to raise wages and benefits, or

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other components of employment packages such as retention bonuses or pension contributions.

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Regarding telemental health, in which defendants put much stock, they intend to use the

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planned expansion of telemental health to help fill existing staffing vacancies in psychologist and

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social worker positions. At the time of hearing, they planned to start to hire telepsychology line

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staff early this year and said it “will probably take a couple years” for the program to “reach[ ] its

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full potential.” Rather than adding positions, defendants plan to redirect existing psychologist

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and clinical social worker positions – on-site positions -- to serve in this new program, filling a

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maximum of 100 vacancies among psychologists and social workers. CDCR has no policy to
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prevent on-site psychologists and social workers from taking redirected telemental health

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positions, nor has it created a pay differential for on-site psychologists and social workers similar

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to the one it has for psychiatrists to incentivize on-site clinical services. Bottom line, the number

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of telemental health positions currently planned will not come close to filling the current

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vacancies among psychologists and social workers and could further weaken the in-person

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infrastructure within prisons that is so essential to the required quality of care.

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The court finds by clear and convincing evidence defendants have not taken all reasonable

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steps available to them and so in this respect as well have not substantially complied with the

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court’s October 10, 2017 order.

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Impossibility

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During his opening statement, counsel for defendants acknowledged impossibility is not a

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defense to defendants’ Eighth Amendment obligations in this case. Impossibility is a defense to

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civil contempt, if established. Specifically, defendants contend that statewide and nationwide

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shortages of mental health care providers make it impossible for them to comply across all

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categories of providers with the 90 percent minimum fill rate required by the October 10, 2017

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order. Defendants have the burden of producing evidence that it is impossible for them to comply

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with the court’s order. To meet this burden, defendants’ evidence must show “categorically and

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in detail” why it is impossible for them to comply. This “burden is difficult to meet” and may be

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“particularly strict” in cases where, as here, the needs of a plaintiff class “are urgent.” Defendants

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have not met their burden.

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Defendants rely principally on the testimony of their expert witness, Dr. Greulich,

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concerning present shortages among mental health professionals. Dr. Greulich did testify to labor

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shortages among mental health professionals across California and the United States. She also

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testified, however, that she does not opine it is impossible for defendants to hire psychologists,

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medical assistants or social workers in the current labor market.

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Fundamentally, the record before the court shows it may be more difficult or expensive

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for defendants to fill existing mental health vacancies sufficient to comply with the 90 percent fill

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rate required by the court’s order. But none of the evidence establishes defendants’ compliance

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with the October 10, 2017 order is impossible.

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Defendants have not met their burden of showing that compliance with the October 10,
2017 order is impossible so as to avoid a finding of contempt.

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Absence of Key Testimony

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The court makes an additional observation. Defendants called only one named defendant

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as a witness, Dr. Mehta, CDCR’s Deputy Director for Mental Health Services. The court has no

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doubt Dr. Mehta is a highly qualified, dedicated public servant. At hearing, Dr. Mehta testified

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he could not think of anything else he could do “at [his] level” and “pursuant to the rules that

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apply” to him, to fill staffing vacancies to court-ordered levels. Dr. Mehta also testified on cross-

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examination that he did not know if it was impossible to fill the vacancies. All the other

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defendants in this action are at higher levels of authority within CDCR or the State of California,

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with more authority than Dr. Mehta and significantly more resources available to them. The

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absence of any testimony from any of the other named defendants – those of you here today at the

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highest level of California’s state government -- leaves a gaping hole in the record regarding what

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all available reasonable steps actually are and what is possible.

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Summary Regarding Contempt

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In sum, the court finds by clear and convincing evidence that defendants have violated and

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continue to violate the court’s October 10, 2017 order as modified, that the ongoing violation is

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not “based on a good faith and reasonable interpretation of the order” and the violation far

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exceeds what would be necessary for the court to find substantial compliance with the order.

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Defendants are in contempt of court and the court is prepared if it must to issue a formal finding

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to this effect.

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Remedies

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Given defendants’ contumacy, it is for the court to effect compliance. Because these are

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civil contempt proceedings, traditional equitable principles call for the imposition of coercive

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sanctions.

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If it makes this order final, the court intends to impose monetary sanctions and require

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defendants to deposit funds in the Court’s Registry to establish a fund for those sanctions. The

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fund would be used exclusively for steps necessary to come into compliance with the court’s

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staffing orders.

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Through the end of September 2023, when the hearing began, a total of $58,224,504.00 in

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fines had accumulated, and the monthly accumulations had risen steadily. By the end of January

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2024, the last report available prior to this order, a total of $94,912,929.00 has accumulated. See

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ECF No. 8142 at 23. This amount directly reflects defendants’ failure to comply with the court’s

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orders to remedy constitutionally inadequate mental health staffing levels.

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Given the length of defendants’ noncompliance and their marked lack of urgency in

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implementing remedial steps required to achieve compliance, the court currently intends to

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impose an initial sanction in the amount of the accumulated fines, as of today $94,912,929.00.

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Upon issuance of the court’s order, defendants would be directed to deposit the amount of the

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initial sanctions into the Court’s Registry immediately. Thereafter, the court would order

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disbursement of funds directed to achieving compliance, subject to procedures to be reviewed

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with the parties in advance.

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Going forward, unless otherwise ordered by the court, defendants shall continue to

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calculate and report a monthly and accumulating total of additional fines, preparing the amount of

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fines in accordance with the court’s January 23, 2024 Order, ECF No. 8116. Further deposits into

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the fund would be made as ordered by the court based on these future reports made by

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defendants.

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In Closing

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The court recognizes there are many CDCR employees – even if not sufficient numbers of

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those employees -- working diligently every day to try to provide adequate mental health services

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to class members. Some of these employees on the front lines testified at hearing: Dr. Alexandra

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David, Chief of Mental Health at the California Medical Facility; Dr. Kelley Franceschi, Chief of

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Mental Health at the California Health Care Correctional Facility (CHCF) between April 2021

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and September 2023; Dr. Shelly Minor, Chief Psychologist for the Intermediate Program at
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CHCF; and Angela Reinhold, a Supervising Licensed Clinical Social Worker at California

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Correctional Institution in Tehachapi. These witnesses testified to vacancy rates at their

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respective institutions, delays in hiring, working conditions at their respective institutions, and the

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impact of staffing shortages on patient care at their respective institutions. Their testimony is

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required reading for every named defendant. Regarding working conditions in particular, some of

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the accounts are very concerning: multiple clinicians sharing office space in small windowless

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closets, and a lack of basic supplies professional staff is entitled to, among other untenable

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conditions.

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There is no reason the dedication of these employees and their colleagues cannot be

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matched – now -- by a commitment on behalf of the administration to effect the policy and

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operational changes needed to achieve full compliance. This is court-ordered work. It is

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important, hard work that California’s top public servants can no longer afford to put off or

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ignore.

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I have said this is a tentative order, to be made final only after the defendants have one

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more chance to demonstrate the will and determination to comply with the court’s prior orders.

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While the court intends to impose fines as described above, it is first referring the question of

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staffing to a Ninth Circuit Mediator who is available to the court. The referral is for 60 days

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initially, until May 8th. The same people here today are ordered to appear in this courtroom on

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the dates I’ve already instructed you to calendar. I will take your appearances and then remain

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available to the mediator as needed. At the end of each session, the Mediator will let me know if

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the parties and he agree to continue meeting. I am asking the Mediator to report to me on or

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before May 8th regarding any agreements the parties may have reached, or not.

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In the meantime, I am adding compliance with the court-ordered suicide prevention

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measures to the agenda for the April 26, 2024 status conference, and the parties should be

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prepared for that matter to be set for enforcement hearing in June of this year. The same people

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here today are ordered to attend that hearing.

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