Armstrong, et al v. Davis, et al

Filing 2479

ORDER re 2463 MODIFYING JANUARY 18, 2007 INJUNCTION. Signed by Judge Claudia Wilken on 12/29/2014. (ndr, COURT STAFF) (Filed on 12/29/2014) Modified on 12/29/2014 (cpS, COURT STAFF).

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PRISON LAW OFFICE
DONALD SPECTER – 83925
REBEKAH EVENSON – 207825
CORENE KENDRICK – 226642
PENNY GODBOLD – 226925
1917 Fifth Street
Berkeley, California 94710
Telephone: [phone]
Email: [e-mail]
DISABILITY RIGHTS EDUCATION &
DEFENSE FUND, INC.
LINDA KILB – 136101
2212 Sixth Street
Berkeley, California 94710
Telephone: [phone]

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ROSEN, BIEN & GALVAN, LLP
MICHAEL W. BIEN – 96891
GAY C. GRUNFELD – 121944
315 Montgomery Street, Tenth Floor
San Francisco, California 94104-1823
Telephone: [phone]

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Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JOHN ARMSTRONG, et al.,

Case No. C94 2307 CW

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Plaintiffs,

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v.

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EDMUND G. BROWN JR. et al.,

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Defendants.

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[PROPOSED] ORDER MODIFYING
JANUARY 18, 2007 INJUNCTION

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For the reasons set forth in this Court’s Orders of August 22, 2012 (ECF No. 2180) and

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December 5, 2014 (ECF No. 2462), IT IS HEREBY ORDERED that the following shall be substituted

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in place of page seven, lines five through twelve of the January 18, 2007 Injunction (ECF No. 1045):

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Defendants, their agents and employees shall promptly take all reasonable steps to comply with
each provision set forth below:

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A. Tracking of All Allegations of Staff Member Non-Compliance

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1. Defendants, their agents and employees (Defendants) shall track any allegation that any

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employee of the Department of Corrections and Rehabilitation was responsible for any member of the

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Plaintiff class not receiving access to services, programs, activities, accommodations or assistive

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devices required by any of the following: the Armstrong Remedial Plan, the Americans with

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Disabilities Act or this Court’s prior orders. Allegations to be tracked include, but are not limited to,

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those received from CDCR staff, prisoners, Plaintiffs’ counsel, administrative appeals and third parties.

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All such allegations shall be tracked, even if the non-compliance was unintentional, unavoidable, done

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without malice, done by an unidentified actor or subsequently remedied.

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2. The allegations shall be tracked in an electronic spreadsheet that can be searched and sorted.

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The spreadsheet shall contain at least the following information: the prison at which the incident

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occurred, the name and CDCR number of the prisoner, the date of the allegation, the name of the

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employee(s), the date the investigation was initiated, the name and title of the investigator, the date the

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investigation was completed, the result of the investigation, the number of prior allegations of non-

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compliance against the employee(s), and the action taken, if any, as a result of the investigation,

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including whether the incident was referred to the Office of Internal Affairs.

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3. The spreadsheet shall be produced to Plaintiffs’ counsel in electronic format monthly. When

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the spreadsheet is produced to Plaintiffs’ counsel, the employees’ names shall be removed and shall be

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replaced with a unique identifier. When redacting employees’ names in records produced to Plaintiffs

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in accordance with this Order, Defendants shall consistently identify an individual employee by the

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same unique identifier.

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Order Modifying January 18, 2007 Injunction - CASE NO. C94 2307 CW

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B. Investigations

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1. Defendants shall investigate all allegations of employee non-compliance, regardless of

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whether the allegation includes the name of the employee(s). Investigations shall be initiated within ten

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business days of receiving notice of such allegations and shall be completed as promptly as possible.

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Investigations must include a review of all information necessary to determine whether or not the

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allegation is true and shall include an interview with the affected prisoner(s). The investigation must

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result in a written report that shall list all sources of information relied upon in deciding whether

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employee non-compliance occurred and whether any other finding(s) of non-compliance against the

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employee(s) has been sustained.

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2. If Plaintiffs’ counsel has a good faith disagreement with the result of a particular

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investigation, they may request a copy of the written report and it shall be produced. In such instances,

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Plaintiffs’ counsel shall have the right to review all written documents utilized in making the

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determination set forth in the report. Upon a showing of need, Plaintiffs’ counsel shall also have the

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right to interview individuals who provided information utilized in making this determination.

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3. When producing documents to Plaintiffs’ counsel pursuant to this section, Defendants shall
replace employees’ names with unique identifiers as described in paragraph A.3.

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C. Corrective Action and Discipline

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1. Whenever an investigation reveals employee noncompliance, Defendants must comply with

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procedures set forth in Defendants’ November 21, 2008 memorandum, “Expectations for Staff

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Accountability and Non-Compliance of the Disability Placement Program.”

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2. Defendants shall determine whether to initiate disciplinary proceedings or corrective action

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against an employee found in non-compliance, depending upon the number of prior violations, the

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seriousness of the harm to the prisoner, and the culpability of the employee. Defendants shall

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discipline employees in compliance with the Employee Disciplinary Matrix set forth in the CDCR

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Departmental Operations Manual, Chapter 3, Article 22, Personnel, Training, and Employee Relations.

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3. All determinations of whether to initiate disciplinary proceedings or corrective action shall
be produced to Plaintiffs’ counsel upon request. When producing these documents to Plaintiffs’

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counsel, Defendants shall replace employees’ names with unique identifiers as described in paragraph

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A.3.

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D. Dispute Resolution

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1. In the event of a dispute about the production of information, the results of Defendants’

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investigation of alleged non-compliance or their decision about whether to initiate corrective action,

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Plaintiffs’ counsel shall provide notice to Defendants and attempt to resolve the matter through

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negotiation. Defendants must respond to this notice within ten business days.

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2. If the parties are unable to resolve the dispute informally, Plaintiffs’ counsel may request that

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the Court’s expert review and resolve the matter. Depending on the nature of the dispute, the Court’s

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expert shall resolve disputes about the production of information, determine whether non-compliance

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occurred or, if it did, whether corrective action should be initiated. When requesting review by the

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Court’s expert, Plaintiffs’ counsel shall substantiate their contentions with sworn declarations from the

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class member or members involved, signed under penalty of perjury. Defendants shall produce all

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documents requested by the Court’s expert and shall make all employees available for interview, on a

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confidential or nonconfidential basis as determined by the Court’s expert. Administrative

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recommendations made by the Court's expert pursuant to this section shall be reviewable by this Court

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on a motion by any party dissatisfied with the expert's decision. The review shall be conducted

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pursuant to the requirements of 28 U.S.C. § 636(b)(1)(C), the procedure for the review of a report and

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recommendation by a magistrate judge.

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3. The parties dispute whether certain incidents set forth in the pleadings constitute non-

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compliance with the Remedial Order. Plaintiffs’ counsel shall inform Defendants which incidents

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remain in dispute and shall attempt to resolve these disputes through negotiation with Defendants. If

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negotiations fail, the disputes may be referred to the Court’s expert pursuant to paragraph D.2., above.

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E. Protective Order

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The parties shall negotiate an order to protect the state law rights of Defendants’ employees

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from unnecessary disclosure of personnel information. All documents that contain personnel

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information produced to Plaintiffs’ counsel and the Court’s expert pursuant to this Order shall be

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covered by this protective order. If the parties are unable to agree on the terms of a protective order, the

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Court’s expert will recommend one.

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F. Notice

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Defendants shall provide a copy of this Order to the present and future individual employees

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who occupy the following positions within the California Department of Corrections and

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Rehabilitations:

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a. the Undersecretaries of the CDCR,

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b. the Director of the Division of Adult Institutions,

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c. the Deputy Directors of the Division of Adult Institutions,

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d. the Associate Directors of the Division of Adult Institutions,

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e. all Wardens of adult institutions, and

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f. all adult institution ADA coordinators.

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G. Miscellaneous

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The procedures set forth in this order or in the 2007 Injunction shall not apply to staff working

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under the authority of the Receiver appointed by the court in Plata v. Brown.

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IT IS SO ORDERED.
Dated: 12/29/2014
CLAUDIA WILKEN
United States District Judge

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Order Modifying January 18, 2007 Injunction - CASE NO. C94 2307 CW