Plata et al v. Schwarzenegger et al

Filing 2699

CORRECTION OF DOCKET # 2698 .ORDER granting 2696 Joint Request for Order Authorizing Refeeding Under Specified Conditions of Hunger Striking Inmate-Patients. Signed by Judge Thelton E. Henderson on 08/19/2013. (tmi, COURT STAFF) (Filed on 8/19/2013)

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1 2 3 4 5 FUTTERMAN DUPREE DODD CROLEY MAIER LLP MARTIN H. DODD (104363) 180 Sansome Street, 17th Floor San Francisco, California 94104 Telephone: (415) 399-3840 Facsimile: (415) 399-3838 mdodd@fddcm.com Attorneys for Receiver J. Clark Kelso 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 MARCIANO PLATA, et al., Plaintiffs, 12 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING UNDER SPECIFIED CONDITIONS OF HUNGER STRIKING INMATE-PATIENTS AND ORDER THEREON v. 13 14 Case No. C01-1351 TEH EDMUND G. BROWN, JR., et al., Defendants. 15 16 17 Plaintiffs, Defendants, and Receiver J. Clark Kelso (“Receiver”) (collectively, the 18 “Parties” and individually, a “Party”)), by and through their respective attorneys, hereby submit 19 this Joint Request for an order substantially in the form set forth below which authorizes the 20 refeeding under specified conditions of inmate-patients who are participating in a current hunger 21 strike. 22 1. On or around July 8, 2013, a very large number of inmates throughout the California 23 prison system began refusing meals in connection with a hunger strike. Since that time, 24 the number of inmates refusing meals has dropped dramatically. As of August 19, 2013, 25 a core of approximately 129 inmates, of whom 69 have participated in the strike since the 26 beginning, are currently refusing meals. The hunger strikers are spread across six prisons 27 (Centinela State Prison (“CEN”), California Men’s Colony (“CMC”), California Medical 28 Facility (CMF), Corcoran State Prison (“COR”), Pelican Bay State Prison (“PBSP”) and, FUTTERMAN DUPREE DODD CROLEY MAIER LLP 1 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING OF HUNGER STRIKING AND ORDER THEREON CASE NO. C01-1351 TEH 1 Sacramento State Prison (“SAC”). 2 2. A widespread, orchestrated hunger strike poses significant challenges in the prison setting 3 and presents difficult, sometimes conflicting, policy questions concerning institutional 4 safety and security, inmate-patient autonomy over their person and the receipt of medical 5 treatment, the ability of medical staff to monitor and provide adequate care to striking 6 inmates and medical ethical requirements pertaining to the protection of patients from 7 harm while respecting patient autonomy. See generally Cruzan v. Director, Missouri 8 Dep’t of Health, 497 U.S. 261(1990); Thor v. Superior Court, 5 Cal. 4th 725 (1990). 9 3. California Correctional Health Care Services (“CCHCS”) has adopted Policy 4.22.2 (the 10 “Mass Hunger Strike Policy”) which was intended to address at what point, and under 11 what conditions, from a medical ethical standpoint, medical staff may attempt refeeding 12 of hunger striking inmates. The Mass Hunger Strike Policy is attached hereto as Exhibit 13 A. 14 4. Experience has shown, however, that the Mass Hunger Strike Policy in its current form 15 may be insufficiently flexible or detailed to address a number of issues posed by the 16 hunger strike. Among other things, CDCR is concerned that it does not account for 17 security and safety concerns. Medical staff are concerned that it does not provide 18 sufficient guidance with respect to when clinicians may refeed in the face of possible, but 19 uncertain, coerced participation in the strike or coerced execution of “do not resuscitate” 20 directives. Plaintiffs’ counsel is concerned that it may not provide adequate guidance 21 regarding respecting inmate-patient autonomy. 22 5. The Parties have met and conferred and agree that the interests of the Parties, including 23 medical and custodial staff, will be best advanced and protected during the current strike 24 if the Court establishes appropriate conditions for when refeeding may occur and further 25 agree that, as discussed in Paragraph 6 of this Joint Request, the Court may enter an order 26 substantially in the form set forth below. 27 28 FUTTERMAN DUPREE DODD CROLEY MAIER LLP 6. The Parties affirmatively agree to the provisions of paragraphs one and two of the proposed order below. CDCR has requested, and the Receiver does not oppose, inclusion 2 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING OF HUNGER STRIKING AND ORDER THEREON CASE NO. C01-1351 TEH 1 of paragraph three in the order. Plaintiffs do not object to the inclusion of paragraph 2 three, provided that the order applies only to the current hunger strike and that following 3 the strike CCHCS undertakes to revise the Mass Hunger Strike Policy to avoid the 4 necessity of requesting ad hoc revisions from the Court under the pressured and difficult 5 circumstances presented by a hunger strike. Both CDCR and the Receiver agree that the 6 conditions proposed by Plaintiffs are reasonable and may be included in the order. 7 7. The Parties also agree that, in making this joint request for the order set forth below, they 8 are not waiving any arguments they may have made or may make in support of or in 9 opposition to a request to refeed inmates during the current hunger strike or their right to 10 object to any future hunger strike policy or the application thereof to a future hunger 11 strike and are not agreeing to the authorization of refeeding, or to the conditions under 12 which refeeding may be undertaken, during any future hunger strike. 13 14 Dated: August 19, 2013 FUTTERMAN DUPREE DODD CROLEY MAIER LLP 15 By: 16 /s/ Martin H. Dodd Martin H. Dodd Attorneys for Receiver J. Clark Kelso 17 18 Dated: August 19, 2013 KAMALA D. HARRIS Attorney General of the State of California 19 By: 20 /s/ Patrick McKinney Patrick McKinney HANSON BRIDGETT LLP 21 By: 22 23 /s/ Walter R. Schneider Walter R. Schneider Attorneys for Defendants 24 25 Dated: August 19, 2013 PRISON LAW OFFICE By: 26 27 /s/ Donald Specter Donald Specter Attorneys for Plaintiffs 28 FUTTERMAN DUPREE DODD CROLEY MAIER LLP 3 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING OF HUNGER STRIKING AND ORDER THEREON CASE NO. C01-1351 TEH ORDER 1 2 The Court having considered the Parties’ Joint Request for an order authorizing refeeding 3 under specified conditions of hunger striking inmates, and good cause appearing, IT IS HEREBY 4 ORDERED that: 5 1. If the Chief Medical Executive (“CME”) at an affected prison determines, to a reasonable 6 degree of medical certainty, that a hunger striker is at risk of near-term death or great 7 bodily injury in the absence of intervention or has become incompetent to give consent or 8 make medical decisions, refeeding or other lifesaving measures may commence 9 immediately without need of a further court order, provided that the hunger striker has not 10 previously executed a valid “do not resuscitate” directive. 11 2. For purposes of this order, a previously executed “do not resuscitate” directive will not be 12 considered valid if a) the CME, reasonably and in good faith, determines it was the result 13 of coercion or otherwise not the product of the hunger striker’s free will when executed; 14 b) a court has determined the directive is invalid as a matter of law; or c) the hunger 15 striker, or an attorney-in-fact for the hunger striker acting pursuant to a properly executed 16 power of attorney, revokes such directive. 17 3. In addition, in view of the risk that inmates may be or have been coerced into 18 participating in the hunger strike, for purposes of this order a ‘do not resuscitate’ directive 19 executed by a participant in the hunger strike at or near the beginning of or during the 20 strike will be deemed not valid. 21 4. This Order is applicable only to the refeeding of inmate-patients during the hunger strike 22 which commenced on July 8, 2013, as described more fully in the Parties’ joint request, 23 and CCHCS is ordered to review and, if appropriate, revise the Mass Hunger Strike 24 // 25 // 26 // 27 // 28 // FUTTERMAN DUPREE DODD CROLEY MAIER LLP 4 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING OF HUNGER STRIKING AND ORDER THEREON CASE NO. C01-1351 TEH Policy to address the issue of refeeding of hunger striking inmates in any future mass 2 hunger strike. 3 IT IS SO ORDERED. Hon. Thelton E. Henderson United States District Judge 6 . He helton E Judge T RT 7 8 A H ER LI NO nderson FO 5 R NIA By: UNIT ED 08/19 Dated: _____________, 2013 ISTRIC ES D TC AT T RT U O 4 S 1 N F D IS T IC T O R C 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FUTTERMAN DUPREE DODD CROLEY MAIER LLP 5 JOINT REQUEST FOR ORDER AUTHORIZING REFEEDING OF HUNGER STRIKING AND ORDER THEREON CASE NO. C01-1351 TEH

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