Armstrong, et al v. Davis, et al

Filing 2345

ORDER by Judge Claudia Wilken GRANTING 2236 MOTION FOR A FURTHER ENFORCEMENT ORDER AND DENYING 2236 MOTION TO HOLD DEFENDANTS IN CONTEMPT OF COURT. (ndr, COURT STAFF) (Filed on 6/4/2013)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5

JOHN ARMSTRONG, et al., on behalf
of themselves and as
representatives of the class,

6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiffs,
v.
EDMUND G. BROWN, JR., Governor of
the State of California;
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND REHABILITATION;
MICHAEL MINOR, Director of the
Division of Juvenile Justice; DR.
JEFFREY A. BEARD, Secretary of
the California Department of
Corrections and Rehabilitation;
JENNIFER SHAFFER, the Executive
Officer of the Board of Parole
Hearings; DIANA TOCHE, Acting
Director of the Division of
Correctional Health Care
Services; CHRIS MEYER, Director
of the Division of Facility
Planning, Construction and
Management; KATHLEEN DICKINSON,
Director of Adult Institutions;
and DAN STONE, Director of
Division of Adult Parole
Operations,

No. C 94-2307 CW
ORDER GRANTING
MOTION FOR A
FURTHER
ENFORCEMENT ORDER
AND DENYING
MOTION TO HOLD
DEFENDANTS IN
CONTEMPT OF COURT
(Docket No. 2236)

Defendants.
________________________________/
Plaintiffs move to enforce, and hold Defendants in contempt
for violating, the Court’s prior orders, on the basis that
Defendants have consistently failed to provide sign language
interpreters (SLIs) during education and vocational programs at
the Substance Abuse Treatment Facility (SATF) and for failing to
provide SLIs during psychiatric technicians’ rounds for patients
housed in administrative segregation housing units.

Defendants

1

oppose Plaintiffs’ motion.

2

Court GRANTS the motion to enforce its prior orders and DENIES the

3

motion to hold Defendants in contempt.

4

BACKGROUND

5

For the reasons set forth below, the

In a series of orders between 1996 and 2002, the Court found

6

that Defendants’ treatment of prisoners with disabilities violated

7

the American with Disabilities Act (ADA) and section 504 of the

8

Rehabilitation Act.

9

On January 3, 2001, Defendants issued the amended Armstrong

United States District Court
For the Northern District of California

10

Remedial Plan (ARP) setting forth their own policies and plans to

11

come into compliance with their obligations under these federal

12

laws.

13

See Kendrick Decl. ¶ 2, Ex. 1 (ARP).
Among other things, the ARP addressed effective communication

14

for deaf inmates.

15

importance of communication involving due process or health care,

16

the standard for equally effective communication is higher when

17

these interests are involved.”

18

§ II.E.2.

19

shall not be the sole source used by staff as a means of effective

20

communication involving due process or medical consultations,

21

unless the inmate has no other means of communication.”

22

§ II.E.2.f.

23

interpreters . . . will be provided for all due process functions

24

and medical consultations that fall within the scope of those

25

described below when sign language is the inmate’s primary or only

26

means of effective communication, unless the inmate waives the

27

assistance of an interpreter, reasonable attempts to obtain one

28

are not successful, and/or delay would pose a safety or security

It recognized, “Because of the critical

Kendrick Decl. ¶ 2, Ex. 1, 4,

The ARP mandates that an “inmate’s ability to lip read

Id. at 6,

The ARP also provides, “Qualified sign language

2

1

risk.”

2

language interpreter is not available, or is waived by the inmate,

3

and communication is attempted,” staff are required to “employ the

4

most effective form of communication available, using written

5

notes; staff interpreters who are able to interpret effectively,

6

accurately and impartially, both receptively and expressively,

7

using any necessary specialized vocabulary; or any other

8

appropriate means.”

9

included, for example, those pertaining to “[e]xplanation of

Id. at 5, § II.E.2.d.

In the event that “a qualified sign

Id. at 5-6.

Covered medical consultations

United States District Court
For the Northern District of California

10

procedures, tests, treatment, treatment options, or surgery,” and

11

“mental health evaluations, group and individual therapy,

12

counseling and other therapeutic activities.”

13

of medical consultations is “neither exhaustive nor mandatory, and

14

shall not imply that there are no other circumstances when it may

15

be appropriate to provide interpreters for effective communication

16

nor that an interpreter must always be provided in these

17

circumstances.”

18

prisoners, providing, “Accommodations shall be made to afford

19

equal access to the court, to legal representation, and to health

20

care services, for inmates/parolees with disabilities; e.g.,

21

vision, speech, hearing, and learning disabled.”

22

§ II.G.1

Id.

Id. at 6.

The list

The ARP also requires equal access for deaf

Id. at 7,

23
24
25
26
27
28

1

The ARP designates as DPH “Inmates/parolees who are
permanently deaf or who have a permanent hearing impairment so
severe that they must rely on written communication, lip reading,
or signing because their residual hearing, with aids, does not
enable them either to communicate effectively or hear an emergency
warning.” Kendrick Decl. ¶ 2, Ex. 1, 3, § II.C.2. The Court uses
the term DPH and deaf interchangeably herein.
3

1

The federal ADA regulations define “qualified interpreter” as
“an interpreter who . . . is able to interpret effectively,

3

accurately, and impartially, both receptively and expressively,

4

using any necessary specialized vocabulary.”

5

The ARP defines “qualified sign language interpreter” to include

6

“a person adept at American Sign Language.”

7

Ex. 1, 6, § II.E.3.

8

interpreter, an individual must pass a test and qualify in one of

9

the five categories established by the National Association for

10
United States District Court
For the Northern District of California

2

the Deaf (NAD), one of the three categories established by the

11

Registry of Interpreters for the Deaf (RID), or as a Support

12

Services Assistant Interpreter from the California Department of

13

Rehabilitation.”

14

required “to establish a contract or service agreement with a

15

local signing interpreter service organization in order to provide

16

interpretive services for hearing impaired inmates during due

17

process functions and medical consultations.”

18

28 C.F.R. § 35.104.

Kendrick Decl. ¶ 2,

Under the ARP, to “qualify as an ASL

Id. at 6-7.2

Under the ARP, each institution is

Id.

The ARP further states, “It is the policy of CDC to ensure

19

that all inmates, regardless of any type of disability,

20

participate in educational/vocational, and work programs.”

21

29, § IV.I.14.a.

22

modifications/accommodations shall be provided to ensure access

23

when appropriate for qualified inmates with disabilities to

24

participate in all programs, services, or activities including

25

vocational assignments,” and “Reasonable

Id. at

Thus, it provided, “Reasonable

26
27
28

2

Plaintiffs state that NAD and RID merged their tests into a
single examination called the NIC after the issuance of the ARP.
Pls.’ Reply at 5 n.6.
4

1

modifications/accommodations shall be provided to ensure access to

2

academic programs.”

3

§ II.F (“The Department shall provide reasonable accommodations or

4

modifications for known physical or mental disabilities of

5

qualified inmates/parolees.”).

6

accommodations include special equipment (such as readers, sound

7

amplification devices, or Braille materials), inmate or staff

8

assistance, [and] bilingual or qualified sign language

9

interpreters.”

United States District Court
For the Northern District of California

10

Id. at 30, § IV.I.16-17; see also id. at 7,

“Examples of reasonable

Id. at 7, § II.F.

On January 18, 2007, the Court found that Defendants had not

11

met their obligations to comply with federal law and the Court’s

12

orders and continued to violate the rights of prisoners with

13

disabilities in four significant areas.

14

relevant here, the Court found,

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Docket No. 1045, 2.

As

Contrary to law and the Armstrong Remedial Plan,
defendants consistently and systemically deny sign
language interpreters to deaf prisoners. Within
designated prisons, the violations occur most frequently
at deaf [prisoners’] medical and mental health
appointments. Plaintiffs have also presented pervasive
evidence of violations with regard to suicidal
prisoners; in education, work, and other programming;
and during classification hearings, harming deaf signers
by forcing them to rely on ineffective and inadequate
forms of communication such as lip reading and written
notes. As such, deaf signers are unable to understand
or comprehend significant due process proceedings and
medical care provided to them.
Id. at 3.

The Court ordered Defendants to “establish as permanent

civil service positions qualified sign language interpreters for
each prison designated to house prisoners whose hearing
disabilities impact their placement (DPH)” and to “employ, through
whatever salary is necessary, sufficient qualified interpreters to
serve the needs of the DPH prisoners housed at each institution.”
5

1

Id. at 8.

2

policies and procedures contained in the ARP related to these

3

issues, specifically including those regarding effective

4

communication for deaf prisoners contained in Section II.E.

5

at 9.

6

The Court also required Defendants to comply with the

Id.

On October 20, 2009, the Court found that “Plaintiffs have

7

demonstrated that Defendants have violated the rights of prisoners

8

with disabilities under the ADA and Section 504 by . . . denying

9

sign language interpreters to prisoners who need them in

United States District Court
For the Northern District of California

10

educational and substance abuse programs.”

11

The Court found specifically that “Defendants continue to deny

12

deaf inmates access to adequate sign language interpretation in

13

educational programs” and that “sign language interpretation may

14

not be adequate in Defendants’ substance abuse programs.”

15

No. 1700, 5.

16

when an inmate complained that “her inmate interpreter cannot keep

17

up with the course instructor,” in response, “Defendants provided

18

her with written notes and lip reading,” which the Court already

19

found to be inadequate in the 2007 order.

20

Docket No. 1661, 2.

Docket

The Court noted, for example, that in one instance,

Id.

To remedy these violations, the Court ordered Defendants to

21

“develop a Plan that includes funding, staffing, training,

22

resources and an implementation schedule.”

23

The Court directed Defendants to file the plan within sixty days

24

and ordered that the plan “must provide for rapid implementation

25

and funding,” with “no implementation date in the Plan . . . later

26

than August 14, 2010.”

27

Defendants include a “plan to provide sufficient certified sign

28

language interpreters at, or remove deaf inmates from, prisons

Id. at 2-3.

6

Docket No. 1661, 2.

The Court required that

1

that do not have interpreters in education and substance abuse

2

programs,” or “alternatively, a plan for providing sign language

3

interpretation through the Receiver’s videoconferencing capacity

4

including explanation of how any problems or delays in

5

implementing such plan will be resolved.”

6

also ordered that “CDCR staff shall comply with the policies and

7

procedures contained in their Armstrong Remedial Plan relevant to

8

the issues outlined above,” specifically including all of the

9

provisions quoted above, such as Sections II.E, II.F, IV.I.14,

United States District Court
For the Northern District of California

10
11
12
13
14

IV.I.16 and IV.I.17.

Id. at 4.3

The Court

Id. at 4-5.

On December 21, 2009, Defendants filed their plan to comply
with the October 20, 2009 order.

Docket No. 1686.

On January 11, 2010, Plaintiffs filed their objections to
this plan.

Docket No. 1690.

15

On February 3, 2010, the Court noted that it “has not ordered

16

Defendants to implement their plan” to comply with the October 20,

17

2009 order “or any other,” and that “Plaintiffs indicate that they

18

intend to move for implementation of Defendants’ plan, with

19

modifications.”

20

would entertain Plaintiffs’ motion.

21

No such motion was filed.

Docket No. 1700, 6. The Court stated that it
Id.

In subsequent joint case status

22

statements, the parties represented that Defendants modified their

23

plan after Plaintiffs filed their objections, provided Plaintiffs

24
25
3

26
27
28

In the 2009 order, the Court did not intend the word
“certified” to carry a different meaning than the word “qualified”
that was used in the ARP and the 2007 order. Accordingly, as
discussed at the hearing without opposition from the parties, the
Court substitutes the word “qualified” for “certified” in the 2009
order.
7

1

with their updated plan on May 3, 2010 and began providing

2

in-person sign language interpretation in educational and

3

substance abuse programs in August 2010.

4

9-10; Docket No. 1720, 9-12; Docket No. 1729, 8; Docket No. 1799,

5

8.

6

Defendants’ compliance with the modified plan.

See Docket No. 1706,

The parties also indicated that Plaintiffs were monitoring

7

LEGAL STANDARD

8

A district court has the authority to make an enforcement

9

order to secure compliance with its earlier orders and governing

United States District Court
For the Northern District of California

10

law.

11

694, 4-5; Sept. 20, 1996 Remedial Order, Docket 158, 5.

12

See, e.g., March 21, 2006 Permanent Injunction, Docket No.

A district court also has the inherent authority to enforce

13

compliance with its orders through a civil contempt proceeding.

14

International Union, UMWA v. Bagwell, 512 U.S. 821, 827–28 (1994).

15

A contempt sanction is considered civil if it “is remedial, and

16

for the benefit of the complainant.”

17

considered civil and remedial if it either “coerce[s] the

18

defendant into compliance with the court’s order, [or] . . .

19

compensate[s] the complainant for losses sustained.”

20

States v. United Mine Workers, 330 U.S. 258, 303–304 (1947).

Id.

A contempt fine is

United

21

“The standard for finding a party in civil contempt is well

22

settled: The moving party has the burden of showing by clear and

23

convincing evidence that the [non-moving party] violated a

24

specific and definite order of the court.”

25

Media, LLC, 179 F.3d 1228, 1239 (9th Cir. 1999) (quoting Stone v.

26

City & Cnty. of San Francisco, 968 F.2d 850, 856 n.9 (9th Cir.

27

1992)).

28

faith exception to the requirement of obedience to a court order.”

FTC v. Affordable

The contempt “need not be willful, and there is no good

8

1

In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d

2

693, 695 (9th Cir. 1993).

3

contempt if his action appears to be based on a good faith and

4

reasonable interpretation of the court’s order.”

5

formatting and quotation marks omitted).

6

compliance’ with the court order is a defense to civil contempt,

7

and is not vitiated by ‘a few technical violations’ where every

8

reasonable effort has been made to comply.”

9

Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891

United States District Court
For the Northern District of California

10
11

“But a person should not be held in

Id. (internal

“‘Substantial

Id. (citing Vertex

(9th Cir. 1982)).
Thus, the Court may grant a motion for an order of contempt

12

if it finds that Defendants (1) violated a court order, (2) beyond

13

substantial compliance, (3) not based on a good faith and

14

reasonable interpretation of the order, (4) by clear and

15

convincing evidence.

16

burden, the burden “shifts to the contemnors to demonstrate why

17

they were unable to comply” with the court order.

18

at 856 n.9 (citing Donovan v. Mazzola, 716 F.2d 1226, 1240 (9th

19

Cir. 1983)).

20

comply.”

21

(9th Cir. 1976)).

22

Id.

Once the moving party has met its

Stone, 968 F.2d

“They must show they took every reasonable step to

Id. (citing Sekaquaptewa v. MacDonald, 544 F.2d 396, 406

Civil sanctions are appropriate, at the court’s discretion,

23

to encourage Defendants to comply with its order.

24

v. United Mine Workers, 330 U.S. 258, 303-04 (1947).

25

whether to impose a civil contempt sanction, the Court should

26

consider: the harm from non-compliance; the probable effectiveness

27

of the sanction; the contemnor’s financial resources; and the

28

burden the sanctions may impose.

Id. at 303-304.
9

United States
In deciding

1

DISCUSSION

2

As noted, Plaintiffs move for an enforcement order and to

3

hold Defendants in contempt for setting a policy that SLIs would

4

not be provided during psychiatric technicians’ rounds for

5

patients housed in administrative segregation housing units, and

6

for consistently failing to provide qualified SLIs during

7

educations programs at SATF, a facility that houses a large number

8

of deaf inmates.

9

I.

United States District Court
For the Northern District of California

10

Mental health encounters in segregated housing units
Plaintiffs contend that Defendants are violating the ARP by

11

failing to provide an SLI for hearing-impaired inmates during the

12

rounds that psychiatric technicians conduct for prisoners housed

13

in the segregation units.

14

both parties, the ARP provides that, when sign language is the

15

inmate’s primary or only means of effective communication,

16

qualified sign language interpreters must be provided for medical

17

consultations that fall within the scope of a list of examples,

18

including mental health evaluations and other therapeutic

19

activities.

20

As quoted above, and acknowledged by

On January 3, 2013, Defendants promulgated a new policy

21

detailing sign-language interpretation requirements for medical

22

and mental health encounters.

23

Decl. ¶ 4, Ex. A; see also Defs.’ Opp. at 6.

24

in relevant part,

25
26
27
28

Kendrick Decl., Ex. 31; Eargle
This policy provides

Licensed Psychiatric Technician (PT) rounds are required
for all inmates housed in an Administrative Segregation
Unit (ASU) and Security Housing Units (SHU). These
rounds are conducted in ASU’s daily seven days a week
and weekly for Mental Health Services Delivery System
(MHSDS) inmates or biweekly for non-MHSDS inmates in
SHU’s. The interaction between an inmate and the PT on
10

1
2
3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

these rounds does not typically require gathering or the
exchange of medical information or making a mental
health evaluation or assessment. Instead, the PT
observes the inmate and notes what he/she sees. If the
inmate indicates a problem by using “hand gestures” (see
below) or other means of communication, or if a psych
tech has a concern as a result of his/her observation,
the PT should contact the physician or other clinician
on duty for a clinical evaluation/assessment with the
assistance of the SLI on duty (or a contractor if need
be). In such a situation staff shall maintain one-onone observation of the inmate until appropriate clinical
intervention is obtained. Although the Coleman MHSDS
Program Guide notes that the PT is to attend to the
mental health needs of the inmates in ASU, that does not
mean that every encounter between a PT and an inmate is
an evaluation covered by the Armstrong Remedial Plan
(ARP) or that observations of the inmate on rounds are
equivalent to evaluation.
CDCR realizes that mental health clinician encounters
require effective communication. Initial placement in
ASU can occur on any day of the week, at any time of the
day. At the pre-placement screen an SLI will be
provided. At that time the PT and the I/P (with the
assistance of the SLI) will establish additional hand
signals to indicate levels of stress (low, medium, and
high) for the inmate to use during PT rounds at which an
SLI is not present or available. . . .
Eargle Decl. ¶ 4, Ex. A.
Dr. Amy Eargle, the Chief Psychologist of the Headquarters
Clinical Support Unit for CDCR’s Mental Health Program, states
that no SLI assistance is needed during the psychiatric
technicians’ rounds, because they “observe inmates’ appearance and
behavior and note their observations,” and “the exchange of
important medical information takes place” instead during the
“first interaction with the Primary care Provider . . ., which
happens at the initial placement meeting for ASI or SHU Housing
where an SLI is present.

Eargle Decl. ¶ 6.

Dr. Timothy Belavich,

the Acting Director of the Division of Health Care Services of
CDCR, states that the “daily or weekly rounds are brief,
unstructured, interpersonal interactions, typically occurring at
11

1

cell front,” which “are conducted to ensure an inmate-patient’s

2

general well-being and/or determine the potential need for

3

services.”

4

“during rounds does not require the [licensed psychiatric

5

technician (LPT)] to gather or exchange medical information.”

6

“Rather, during rounds, the LPT observes the inmate-patient and

7

notes what he or she sees.”

8
9

Belavich Decl. ¶ 8.

He states that the interaction

Id.

Id.

As acknowledged in the January 2013 policy, CDCR’s MHSDS
Program Guide states that these rounds are to be conducted daily

United States District Court
For the Northern District of California

10

in administrative segregation units and weekly or bi-weekly in

11

security housing units “to attend to the mental health needs” of

12

inmates.

13

It provides that the interactions in these clinical rounds “shall

14

be sufficient to ascertain the inmate’s mental condition

15

particularly during the first ten days” that they are in

16

administrative segregation.

17

the psychiatric technician is expected to identify “inmates who

18

have not been previously identified as having mental health

19

treatment needs but exhibit possible signs and symptoms of a

20

serious mental disorder” and refer to them for a clinical

21

evaluation, and to document any “unusual findings that may require

22

closer observation.”

23

apparently expect to talk to the inmates; the Program Guide

Pls.’ Request for Judicial Notice (RJN), Ex. 1, 12-8-7.4

Id. at 12-7-5.

Id. at 12-8-7.

During the rounds,

The psychiatric technicians

24
25
26
4

27
28

Plaintiffs request, and Defendants do not oppose, that the
Court take judicial notice of excerpts of Defendants’ MHSDS
Program Guide, which was filed in Coleman v. Brown, Case No.
90-520.
12

1

states, “If an inmate refuses to talk to the LPTs, the LPT will

2

discuss the inmate’s functioning with custody staff.”

3

Id.

Defendants argue that the psychiatric technician rounds are

4

not clinical assessments or evaluations and thus that there is no

5

Court order that they have violated by failing to provide a sign

6

language interpreter at these interactions.

7

descriptions of these interactions provided by Defendants’

8

witnesses and their own materials show that these are interactions

9

in which the inmates’ mental health status is evaluated or

However, the

United States District Court
For the Northern District of California

10

assessed in some manner.

11

Court has ordered Defendants to comply, they are required to

12

provide a qualified sign language interpreter at these encounters.

13

Defendants argue that they have complied with the Court’s

Thus, under the ARP, with which this

14

orders, the ARP and the ADA because it is sufficient to meet the

15

needs of these prisoners to provide qualified sign language

16

interpreters during other mental health encounters or to use the

17

predetermined hand signals to communicate.

18

according to their policy, if the psychiatric technician has any

19

concerns about the inmate based on his or her observations during

20

rounds, he or she is required to contact a clinician to conduct an

21

assessment, which would be conducted with the assistance of an

22

SLI.

23

encounters for some or all of the deaf inmates in administrative

24

segregation and they occur much more frequently than other such

25

encounters.

26

harm deaf prisoners by forcing them to rely on inadequate and

27

ineffective forms of communication, such as reading lips and

28

written notes.

They state that,

However, these rounds may be the only mental health

The Court also has previously found that Defendants

Docket No. 1045, 3.
13

The limited hand signals that

1

Defendants use here--in essence, thumbs up or thumbs down--are not

2

adequate “to ascertain the inmate’s mental condition” as the

3

technicians are supposed to do here.

4

inmate cannot communicate effectively during rounds, the

5

technician does not have a comparable opportunity to evaluate a

6

deaf inmate for concerns that would lead him or her to contact a

7

clinician for a full assessment, as for an inmate without a

8

disability.

9

demonstrate that they felt that they could not communicate their

If the technician and a deaf

The declarations submitted by class members further

United States District Court
For the Northern District of California

10

feelings adequately with the technicians.

11

Reply Dec., Ex. 4.5

See, e.g., Kendrick

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

5

Defendants object to portions of Plaintiffs’ reply and
supplemental evidence on the basis that it is untimely and should
have been submitted with their moving papers. Defendants move to
file evidence regarding additional SLI positions created at SATF,
which took place after they filed their opposition brief. In the
interest of considering a full evidentiary record, the Court
GRANTS Defendants’ motion to submit additional evidence, OVERRULES
Defendants’ objections to Plaintiffs’ reply and supplemental
evidence and DENIES Defendants’ motion to strike. Both sides had
an opportunity to address the additional evidence at the hearing
on this motion. Further, the evidence submitted by Plaintiffs
with their reply properly responds to issues raised by Defendants
in their opposition.
Defendants also object that the inmate declarations submitted
with Plaintiffs’ reply brief are inadmissible because they were
written with the assistance of sign language interpreters, who did
not submit declarations addressing their qualifications and the
accuracy of their translations. Even if authentication by the
interpreters who assisted the inmates with the preparation of
these declarations were required, Plaintiffs have since provided
such declarations, see Docket Nos. 2284-6, and Defendants have not
argued that they suffered any prejudice as a result of the
interpreter declarations being filed subsequently. To the extent
that Defendants argue that the inmate declarations are hearsay,
this is unavailing. The inmates themselves signed the
declarations and attested to the truthfulness of their contents
under penalty of perjury, regardless of who prepared the documents
themselves.

28
14

1

Plaintiffs have offered clear and convincing evidence that

2

Defendants have adopted a policy not to provide these interpreters

3

and have not substantially complied with the Court’s orders.

4

ensure compliance with the Court’s past orders, the Court issues

5

an enforcement order requiring Defendants, for all deaf prisoners

6

whose primary means of communication is sign language, to provide

7

a qualified sign language interpreter during all regularly-

8

scheduled mental health rounds and all other encounters within the

9

definition of the ARP.

To

Because there appears to have been a good

United States District Court
For the Northern District of California

10

faith misunderstanding about whether these mental health

11

encounters fell within the terms of the ARP and the Court’s prior

12

orders, which have now been clarified in this order, the Court

13

declines to impose sanctions at this time.

14

Defendants do not argue that they were unable to comply with

15

the Court’s orders or that it would be impossible to do so in the

16

future.

17

sanctions--“$1,000 for each failure to provide an interpreter for

18

mental health professionals’ rounds when deaf prisoners are housed

19

in segregated housing units,” Pls.’ Proposed Order, Docket No.

20

2240, 5--are not warranted because Plaintiffs have not shown that

21

any inmates have been harmed or that the policy to use

22

pre-arranged hand signals does not work to evaluate the mental

23

health of a deaf inmate.

24

Instead, they argue that Plaintiffs’ requested monetary

Although monetary sanctions will not be imposed at this time,

25

the Court notes that Plaintiffs have shown that Defendants’ lack

26

of compliance on this issue has created a substantial and

27

unnecessary risk to class members.

28

substantial evidence that inmates who are in administrative
15

Plaintiffs have offered

1

segregation are at a substantially increased risk of having mental

2

health needs, self-harm and suicide.

3

suicides in CDCR were in segregated housing.

4

Master found that “the likelihood of a CDCR inmate committing

5

suicide in segregated housing units in CDCR prisons is 33.09 times

6

greater than it is in non-segregated housing units, based on total

7

suicides in 2011.”

8

also RJN, Ex. 2 (Coleman Special Master’s report showing that

9

thirty-four percent of the inmates who committed suicide in 2010

Thirty-four percent of all
The Coleman Special

Stewart Reply Decl. ¶ 25, Ex. C, 16-17;6 see

United States District Court
For the Northern District of California

10

were housed in ASU at the time of their deaths).

11

object that these statistics are irrelevant because they are not

12

specific to deaf prisoners in segregated housing units.

13

these statistics include those prisoners; they show an increased

14

risk to all inmates in segregated housing units, not only to those

15

who are not deaf.7

16

deaf prisoners who have been in administrative segregation, who

17

felt depressed and who wanted or attempted to hurt themselves.

18

Kendrick Reply Decl., Exs. 4, 5.

Defendants

However,

Plaintiffs also have offered declarations from

They said that they wanted to

19
20
21
22
23
24
25
26
27
28

6

Defendants object to Dr. Stewart’s declaration as improper
expert witness testimony because “he is not qualified as an expert
on effective communication with hearing-impaired individuals.”
Docket No. 2279, 1. However, he has shown that he is an expert on
mental health treatment and suicide prevention in prisons,
including in segregated housing units. See, e.g., Stewart Reply
Decl. ¶¶ 1-14. Thus, he is qualified to testify on the standards
of mental health practices in such settings, which is the subject
on which he opines.
7

Plaintiffs request that the Court take judicial notice of
the Special Master’s first report, which was filed in the Coleman
case. Defendants object on the basis that the subject matter of
the report is not limited to hearing-impaired prisoners. Because
the Court has overruled Defendants’ only basis for objection, the
Court grants Plaintiffs’ request for judicial notice of the
report.
16

1

tell the mental health staff about their feelings but could not

2

communicate with them.

3

that deaf prisoners were not harmed because none have actually

4

succeeded at committing suicide since this policy was implemented,

5

the Court need not wait until a death to require compliance with

6

its orders.

7

Defendants had consistently and systematically denied sign

8

language interpreters to deaf prisoners, including to suicidal

9

prisoners, causing them significant harm.

Id.

To the extent that Defendants argue

The Court already found in the 2007 order that

Docket No. 1045, 2-3.

United States District Court
For the Northern District of California

10

Accordingly, the Court GRANTS Plaintiffs’ motion for an

11

enforcement order and directs Defendants to provide qualified sign

12

language interpreters during psychiatric technician rounds, and

13

DENIES the motion for contempt.

14

II.

15

Education and vocational programs at SATF
As of March 22, 2013, there were forty-one deaf inmates at

16

SATF who require SLIs.

17

currently enrolled in vocational or educational classes.

18

¶ 6.

19

full-time SLI, who provided interpretation services primarily for

20

due process encounters.

21

educational classes, SATF utilized three companies under contracts

22

with CDCR.

23

Ramirez Decl. ¶ 5.

Of these, twelve are
Id. at

At the time that this motion was briefed, SATF employed one

For SLI services for vocational or

Id. at 7.

Plaintiffs contend that Defendants have consistently failed

24

to provide SLIs at many educational and vocational classes

25

attended by deaf prisoners at SATF.

26

contention, they offer evidence of the SLI logs that were prepared

27

by the SLI scheduler at SATF.

In support of this

See Kendrick Decl. ¶¶ 5-13, 15,

28
17

1

Exs. 2-10, 12; Kendrick Reply Decl. ¶¶ 4-5, Ex. 1;8 see also

2

Sweeny Decl. ¶¶ 6-7, 11-17 & Exs. B, C.

3

that these logs “reflect every session of a course where a DPH

4

inmate is enrolled” and “whether or not a certified SLI was

5

present for a class.”

6

at 11.

7

present at more than a quarter of the classes in which a deaf

8

inmate was enrolled between August 14, 2010 and February 15,

9

2013.9

United States District Court
For the Northern District of California

10

Defendants acknowledge

Sweeny Decl. ¶¶ 6-9, 11-17; see also Opp.

There is no dispute that the logs show that an SLI was not

Further, there is no dispute that, between November 1,

2012 and February 15, 2013, the time period covered by the most

11
12
13
8

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

Defendants object to the statement in the Kendrick
declarations that SLIs were “needed” but not provided in various
class sessions but do not appear to object to the admissibility of
the logs, which are attached as exhibits to these declarations and
which Defendants have independently offered as evidence and
authenticated. The Court overrules their objection. The Court
understands the statements in the Kendrick declaration to mean
that these were class sessions in which a DPH inmate was enrolled
and no SLI was provided. To the extent that the parties dispute
whether the SLIs were “needed” or not in these instances, the
Court addresses the substance of their dispute later in this
order.
9

Defendants submit the declaration of Aniah Sweeny, who
prepared the SLI scheduling logs. Ms. Sweeny attests that, in
addition to tracking education and vocational classes, the logs
also track the “medical and due process encounters at SATF where
an SLI was scheduled to attend.” Sweeny Decl. ¶ 9. She states
that, of the 5,805 total encounters tracked on the logs between
August 14, 2010 and February 15, 2013, “SLIs were not present for
553 of the encounters (or 9.5%).” Id. She also states that 4,055
of these encounters “were medical, mental health, dental or due
process (disciplinary) appointments,” and of these 4,055
encounters, “an SLI was not present for 57 of the encounters
(1.4%).” Id. at ¶ 10. Subtracting the latter numbers from the
total numbers reveals that, of the remaining approximately 1,750
encounters, which were the educational and vocational classes, an
SLI was not present in about 496 instances, or about 28% of the
time. Cf. Pls.’ Reply, 4 & n.5 (calculating “a 28% error rate”
for this time period).
18

1

recent log produced by Defendants,10 the entries show that there

2

was no SLI present for at least twenty-five percent of the classes

3

that included deaf inmates.11

4

Plaintiffs also submit evidence that deaf prisoners at SATF

5

have filed grievances about the lack of SLIs in their educational

6

and vocational classes.

7

15.

8

that he had not had an interpreter for over a month in his class

9

and that this was disruptive to him.

United States District Court
For the Northern District of California

10

See Kendrick Decl. ¶¶ 17-18, Exs. 14 &

In one of these, dated June 20, 2012, a deaf prisoner wrote

Id. at ¶ 17, Ex. 14.

In

response, the warden admitted that

11

the State has a contract with three companies that
provide Sign Language Interpreters (SLI). The SLI are
freelance and the institution has no control over when
they choose to work. It is noted there are not enough
SLIs for one to be assigned to all classes within the
Education and Vocational classes. Moreover, the
institution does not have back up interpreters.

12
13
14
15

Id.

16

when they “are scheduled to lecture, . . . the SLIs are not

17

available.”

18

in his electronics vocational course.

The warden stated that, although teachers inform the SLIs

Id.

In another grievance, an inmate requested an SLI
Id. at ¶ 18, Ex. 15.

In

19
20
21
22
23
24
25
26
27
28

10

Defendants argue that Plaintiffs did not provide with their
moving papers any logs covering a period more recent than October
2012. However, Defendants did not turn over the more recent logs
from November 2012 through February 2013 until March 7, 2013, a
week after Plaintiffs filed their motion on February 28, 2013.
See Kendrick Reply Decl. ¶ 4; Docket No. 2236. In addition,
Defendants submitted the updated logs with their opposition brief
and Plaintiffs also offered them with their reply brief, to which
Defendants did not object.
11

Defendants’ evidence indicates that the “log entries . . .
show a certified SLI was present for 74.4% of the classes during
this time period.” Sweeny Decl. ¶ 7. Plaintiffs calculate from
the logs that there were ninety-one classes without an SLI, out of
a total of 334 classes during this time period, resulting in
twenty-seven percent of classes being without an SLI. Kendrick
Reply Decl. ¶ 5.
19

1

response, on September 25, 2012, the associate warden wrote,

2

“Continuous efforts have been made to provide SLI services;

3

however there are not enough SLI interpreters to facilitate the

4

need.”

5

diligent efforts to provide SLI services on a rotational basis

6

depending upon availability of the SLI’s.”

7

Id.

He added that the institution would “continue

Id.

Defendants further argue that the logs do not show those

8

instances where they use the services of an inmate sign language

9

aide (SLA) instead of a qualified SLI to interpret for a deaf

United States District Court
For the Northern District of California

10

prisoner in a class.

11

Defendants did not show how often these SLAs were in classes or

12

that these individuals were qualified as required by the Court’s

13

order.

14

continuing to deny deaf inmates access to adequate sign language

15

interpretation in education and vocational programs and that the

16

unqualified inmate interpreters were not sufficient for this

17

purpose.

18

(recognizing that “using unqualified interpreters may hinder

19

communication”).

20

SLAs are qualified under the ARP or the ADA.12

21

that, because of the failure to provide adequate interpretation,

22

it has already ordered Defendants to establish permanent civil

Id. at 11-12.

Plaintiffs respond that

The Court has previously found that Defendants were

Docket No. 1700, 4-5; see also Docket No. 523, 11

Defendants have not offered evidence that the
The Court notes

23
24
25
26
27
28

12

Defendants have provided evidence that the “inmate job
description” for SLAs includes as a requirement that the inmate be
“Able to communicate using American Sign Language” as “determined
by Mr. Shaewitz, the certified sign language interpreter on
permanent staff at SATF.” Ramirez Decl. ¶¶ 9-10 & Ex. F, 3. No
evidence is provided to show, among other things, that the SLAs
are adept at American Sign Language, are able to interpret
effectively, accurately, and impartially, or have passed any of
the required tests or qualifications.
20

1

service positions for qualified sign language interpreters at each

2

prison designated to house prisoners with hearing disabilities.

3

Defendants also contend that their logs are insufficient to

4

show that they failed to comply with any requirement that they

5

provide qualified interpreters in that the logs do not track

6

instances where the class did not require an interpreter “because

7

the lesson plan did not require verbal communication for that

8

session,” where the deaf student refused the SLI’s services, where

9

a class was cancelled or where the deaf student was absent from

United States District Court
For the Northern District of California

10

the class in which he was enrolled.

11

the logs do identify at least some instances in which the deaf

12

prisoner was absent, the class was cancelled or the deaf prisoner

13

refused the services of an SLI.

14

(indicating “Inmate Refused”); Aniah Decl., Ex. C, 24 (indicating

15

“CLASS CANCELLED”); Aniah Decl., Ex. C, 37 (indicating “INMATE NOT

16

IN CLASS”).

17

classes listed on their logs had lesson plans that did not require

18

verbal communication.

19

information is or is not logged and Defendants, but not

20

Plaintiffs, could have chosen to document these reasons.

21

Defendants failed to log consistently the information that might

22

show that an SLI was not required for a particular class meeting,

23

and in light of the written acknowledgments from the wardens about

24

the reasons that SLIs were not always provided as needed, the

25

Court declines to infer that Defendants’ claimed vitiating

26

circumstances existed regularly.

27

arguments do not undermine Plaintiffs’ prima facie showing that

28

Defendants did not provide SLIs in many education and vocational

Defs.’ Opp. at 11.

However,

See, e.g., Aniah Decl., Ex. B, 48

Defendants have not offered evidence of how many

Defendants, not Plaintiffs, control what

Because

Thus, the Court finds that these

21

1
2

classes in which deaf inmates were enrolled.
Defendants also represent that they have made an effort to

3

schedule a qualified SLI at each class in which a deaf student was

4

enrolled since the middle of 2010 by utilizing contractors, but

5

that the contractors they use are sometimes unable to provide SLIs

6

and that the facility “cannot obtain SLI coverage through other

7

contractors because [it is] required to use the three state-

8

approved contractors.”

9

¶ 6 (noting that the state was required to “accept the lowest-

Sweeny Decl. ¶ 3; see also Ramirez Decl.

United States District Court
For the Northern District of California

10

priced proposal” when contracting for these services).

11

this excuse is unavailing.

12

Defendants to establish permanent civil service positions, at

13

whatever salary necessary, in order to provide adequate services

14

for these purposes.

15

SLIs on staff to provide the needed interpretation services.

16

Although there may be instances in which an SLI is unavailable,

17

for example, if a staff member is unexpectedly ill and no

18

substitute can be located, failing to provide an interpreter in

19

education and vocational classes twenty-five percent of the time,

20

without addressing the problem, for years before Plaintiffs filed

21

a motion for contempt, simply does not constitute making a

22

reasonable effort to comply with the Court’s prior orders.

23

However,

The Court previously required

Defendants are required to have sufficient

Defendants could have sought approval for additional civil

24

service positions or increased contractor services but failed to

25

do so, until after Plaintiffs brought this motion.

26

time, Defendants obtained approval to increase the funding for

27

contract SLIs by the equivalent of one full-time position,

28

bringing its total contract SLIs from 2.5 to 3.5 full-time
22

Since that

1

equivalents.

2

went into effect on April 8, 2013.

3

April 30, 2013, the SLIs did not attend eleven of the one hundred

4

scheduled classes; the logs indicate that the reasons for these

5

absences were that a contract “SLI called in sick” or there was

6

“no SLI available per contractor.”

7

A.14

8

that they have also obtained authorization to increase from one to

9

three the number of full-time qualified SLIs at SATF that they

Sweeny Decl. ¶ 5.

The increased contractor services
Between April 8, 201313 and

Sweeny Suppl. Decl. ¶ 2, Ex.

After this motion was briefed, Defendants submitted evidence

United States District Court
For the Northern District of California

10

employ directly in civil service positions.

11

that this increase will make them less reliant on contract SLI

12

services.

13

Defendants also represented that they planned to begin

14

consistently logging additional information, including if a class

15

was cancelled or if a deaf inmate was absent from a class meeting.

16

Defendants contend

Knowles Suppl. Decl. ¶ 8 & Exs. A-C.

At the hearing,

Because of Defendants’ extended failure to provide SLIs in

17

many education and vocational classes in violation of the Court’s

18

prior orders, the Court GRANTS Plaintiffs’ motion to enforce those

19

orders.

20

presently making substantial efforts to reach compliance with the

21

Court’s orders and the ADA requirements by voluntarily increasing

22

both the contract and civil services positions for qualified SLIs

23

at SATF, the Court finds that no civil contempt sanctions are

Because Defendants have demonstrated that they are

24
25
26

13

It appears that there were no classes scheduled between
April 3 and 8. Sweeny Suppl. Decl. ¶ 2, Ex. A.
14

27
28

The
Defendants
in sick or
provide an

Court notes that the logs do not show whether
made efforts to find a substitute SLI when one called
whether none of the three contractors was able to
SLI.
23

1

needed at the present time to coerce their compliance.

2

Accordingly, Plaintiffs’ motion for contempt for their failure to

3

provide qualified SLIs at educational and vocational classes at

4

the facility is DENIED.

5

renewal if Defendants fail to provide proper services in the

6

future.

This denial is without prejudice to

7
8
9

CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiffs’
motion to enforce and DENIES the motion to hold Defendants in

United States District Court
For the Northern District of California

10

contempt (Docket No. 2236).

11

2297 and 2304.

This order also resolves Docket Nos.

12

The Court hereby orders:

13

1)

For all deaf prisoners whose primary means of

14

communication is sign language, Defendants shall provide a

15

qualified sign language interpreter during all regularly-scheduled

16

mental health rounds, as well as all other encounters within the

17

definition of the Armstrong Remedial Plan.

18

2)

Defendants shall implement their plan regarding sign

19

language interpretation in educational and substance abuse

20

programs, provided to Plaintiffs on May 3, 2010.

21

the Court’s prior orders, Defendants shall establish permanent

22

civil service positions for qualified sign language interpreters

23

for SATF, for as long as it is designated to house DPH prisoners.

24

Defendants shall employ, through whatever salary is necessary,

25

sufficient qualified interpreters to serve the needs of the DPH

26

prisoners housed at SATF, including at all educational and

27

vocational classes in which a DPH inmate is enrolled, barring

28

unforeseen circumstances.

As required in

Defendants may seek relief from this
24

1

provision at SATF if their video conferencing facilities become

2

sufficient to provide all necessary sign language services at that

3

institution.

4

3)

Defendants shall continue to maintain logs on all

5

educational and vocational programs at SATF to document whether

6

deaf prisoners who rely upon sign language as their primary means

7

of communication were provided a qualified sign language

8

interpreter during the program and who the interpreter was.

9

qualified sign language interpreter was not provided, Defendants

If a

United States District Court
For the Northern District of California

10

shall document the reason therefor.

11

previous month’s logs to counsel for Plaintiffs by the fifteenth

12

of each month.

13

Defendants must produce the

The Court finds that the relief ordered herein is narrowly

14

drawn, extends no further than necessary to correct the violation

15

of federal rights, and is the least intrusive means necessary to

16

correct the violation of the federal rights.

17

IT IS SO ORDERED.

18
19
20

Dated: 6/4/2013

CLAUDIA WILKEN
United States District Judge

21
22
23
24
25
26
27
28
25