Armstrong, et al v. Davis, et al

Filing 3218

ORDER FOR ADDITIONAL REMEDIAL MEASURES AT LAC, COR, SATF, CIW, AND KVSP 2948 . Signed by Judge Claudia Wilken on 3/11/21. (cwlc1S, COURT STAFF) (Filed on 3/11/2021)

Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 1 of 7

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IN THE UNITED STATES DISTRICT COURT

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United States District Court
Northern District of California

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN ARMSTRONG, et al.,
Plaintiffs,

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v.
GAVIN C. NEWSOM, et al.,

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Case No. 94-cv-02307 CW
ORDER FOR ADDITIONAL REMEDIAL
MEASURES AT LAC, COR, SATF,
CIW, AND KVSP
Re: Dkt. No. 2948

Defendants.

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For the reasons set forth in the Court’s order granting in

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part Plaintiffs’ motion to modify its prior remedial orders and

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injunctions to require the implementation of new remedial measures

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to prevent further violations of the ARP and ADA at California

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State Prison, Los Angeles County (LAC); California State Prison,

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Corcoran (COR); Substance Abuse Treatment Facility (SATF);

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California Institute for Women (CIW); and Kern Valley State Prison

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(KVSP) (collectively, the five prisons), the Court hereby orders

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as follows:

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1.

No later than twenty-one days of the date this Order is

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filed, Defendants must draft and present to Plaintiffs for their

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review a plan for achieving compliance with the Armstrong

Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 2 of 7

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Remedial Plan (ARP) and the Americans with Disabilities Act (ADA)

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that includes the components described below (the Five Prisons

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Remedial Plan).

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to Plaintiffs drafts of the components that must be included in

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the Five Prisons Remedial Plan on a rolling basis prior to

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twenty-one days of the date this Order is filed.

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United States District Court
Northern District of California

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2.

To the extent possible, Defendants shall provide

Plaintiffs shall provide comments to Defendants as to

the drafts within seven days of receiving them.1
3.

The parties shall meet and confer promptly to resolve

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any disagreements as to the adequacy of the Five Prisons Remedial

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Plan or any of its components.

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staff with sufficient authority to amend and approve any plans,

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policies, and procedures in the Five Prisons Remedial Plan attend

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all meet-and-confer sessions.

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4.

Defendants shall ensure that

In the event that a disagreement is not resolved within

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forty-two days of the date this Order is filed, Plaintiffs shall

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file objections with the Court no later than forty-nine days of

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the date this Order is filed in a brief of no more than ten

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pages; Defendants may respond to the objections within seven days

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thereafter in a brief of no more than fifteen pages; and

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Plaintiffs may file a reply of no more than five pages within

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four days thereafter.

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issue any necessary order, consistent with its rulings in its

The Court will rule on the objections and

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Each side shall, respectively, provide copies of any drafts
and comments to the same to counsel for the parties in Coleman v.
Newsom, Case No. 90-cv-00529 (E.D. Cal.), and Plata v. Newsom,
Case No. 01-cv-01351 (N.D. Cal.), as well as to the special
master and receiver in those actions.
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Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 3 of 7

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Order granting in part Plaintiffs’ motion to modify its prior

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remedial orders and injunctions.

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5.

Within fourteen days of reaching agreement with

Plaintiffs, or receiving this Court’s order resolving any

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disagreements, Defendants shall issue the Five Prisons Remedial

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Plan in final form and implement its provisions pursuant to the

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terms described below, unless the Five Prisons Remedial Plan sets

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a different date for the implementation of a component of the

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United States District Court
Northern District of California

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Five Prisons Remedial Plan.

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a.

Cameras.

Within ninety days of the finalization

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of the Five Prisons Remedial Plan, CDCR shall install operational

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surveillance cameras that cover all areas of LAC, COR, SATF, CIW,

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and KVSP to which disabled inmates have access, including, but

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not limited to, all exercise yards, housing units, sally-ports,

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dining halls, program areas, and gyms.

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finalization of the Five Prisons Remedial Plan, CDCR must begin

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using body-worn cameras for all correctional officers at LAC,

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COR, SATF, CIW, and KVSP who may have any interactions with

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disabled inmates.

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the steps that Defendants will take to achieve these deadlines.

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b.

Within sixty days of the

The Five Prisons Remedial Plan shall describe

The Five Prisons Remedial Plan must contain

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policies and procedures regarding the use of body-worn cameras

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and the use of camera footage at LAC, COR, SATF, CIW, and KVSP

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from any type of camera, including requirements that all footage

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be retained for a minimum of ninety days, that footage of use of

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force and other triggering events involving disabled inmates at

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LAC, COR, SATF, CIW, and KVSP be retained indefinitely, and that

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footage, when available, be reviewed and considered as part of
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Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 4 of 7

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the investigation of any incident.

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Plan also must contain policies and procedures for training staff

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at LAC, COR, SATF, CIW, and KVSP regarding how and when to use a

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body-worn camera and how to ensure that footage is retained and

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reviewed.
c.

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The Five Prisons Remedial

Reforms to Staff Misconduct Complaint,

Investigation, and Discipline Process at LAC, COR, SATF, CIW, and

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KVSP.

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United States District Court
Northern District of California

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complaint, investigation, and discipline process (Investigation

CDCR must develop measures to reform the staff misconduct

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and Discipline Section of the Five Prisons Remedial Plan), which

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shall be included in the Five Prisons Remedial Plan, to ensure

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(1) that CDCR completes unbiased, comprehensive investigations

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into all allegations of staff misconduct violative of the rights

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of any qualified inmate with a disability under the ARP or the

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ADA; (2) that CDCR imposes appropriate and consistent discipline

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against employees who engage in violations of the ARP or ADA with

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respect to disabled inmates at LAC, COR, SATF, CIW, and KVSP; and

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(3) that employees who engage in criminal misconduct against

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disabled inmates at LAC, COR, SATF, CIW, and KVSP in violation of

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the ARP or ADA are appropriately investigated and, if warranted,

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referred for prosecution or reassignment.

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Discipline Section of the Five Prisons Remedial Plan also shall

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ensure that officers accused of serial violations of the ARP or

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ADA with respect to disabled inmates at LAC, COR, SATF, CIW, and

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KVSP are reassigned.

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the Five Prisons Remedial Plan also shall provide for effective

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mechanisms for oversight over all staff misconduct complaints,

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use-of-force reviews, and related staff disciplinary proceedings

The Investigation and

The Investigation and Discipline Section of

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at LAC, COR, SATF, CIW, and KVSP that involve alleged violations

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of disabled inmates’ rights under the ARP or ADA.

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Investigation and Discipline Section of the Five Prisons Remedial

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Plan shall require quarterly interviews of randomly-selected

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disabled inmates at LAC, COR, SATF, CIW, and KVSP using the

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methodology and interview questionnaire utilized by the December

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2018 investigators in connection with the Bishop Report at

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Richard J. Donovan Correctional Facility.
d.

United States District Court
Northern District of California

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The

Third-Party Expert Monitoring of Defendants’

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Investigation and Discipline Section of the Five Prisons Remedial

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Plan.

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pursuant to Federal Rule of Evidence 706, the additional duties

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of monitoring Defendants’ implementation of their Investigation

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and Discipline Section of the Five Prisons Remedial Plan.

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Swanson shall have access to all documents reasonably necessary

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for monitoring Defendants’ implementation of their Investigation

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and Discipline Section of the Five Prisons Remedial Plan.

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Swanson shall issue quarterly reports regarding Defendants’

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implementation of the Investigation and Discipline Section of the

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Five Prisons Remedial Plan.

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quarterly report, the parties and Mr. Swanson shall meet and

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confer regarding his findings for the quarter.

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The Court delegates to Edward Swanson, its expert,

e.

Mr.

Mr.

Prior to the issuance of each

Early-Warning System.

CDCR shall develop an

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electronic system for tracking all staff misconduct incidents

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involving disabled inmates at LAC, COR, SATF, CIW, and KVSP by

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date, time, location, staff involved, and disabled inmates

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involved, that includes information about the nature of the

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Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 6 of 7

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disabled inmates’ disabilities, any injuries they suffered, and

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related medical records.

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f.

Information Sharing with Plaintiffs’ counsel and

the Court’s expert.

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the Court’s expert, Mr. Swanson, on a quarterly basis, all

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documents related to LAC, COR, SATF, CIW, and KVSP staff

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misconduct complaints in which the alleged victim is a qualified

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inmate with a disability and alleges violations of his or her

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United States District Court
Northern District of California

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CDCR must produce to Plaintiffs’ counsel and

rights under the ARP or ADA, including, but not limited to,

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grievances, incident reports, documents from staff misconduct

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inquiries, documents from Institutional Executive Review

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Committee inquiries in which the qualified inmate with a

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disability alleges excessive use of force or other staff

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misconduct in violation of his or her rights under the ARP or

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ADA, 989 forms and all supporting documents, responses of the

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Central Intake Unit of OIA to 989 forms, investigation reports

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produced by the OIA, and 402 and 403 forms issued by the hiring

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authority.

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monthly, written updates regarding progress on the implementation

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of the Five Prisons Remedial Plan at LAC, COR, SATF, CIW, and

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KVSP, including data regarding staff misconduct complaints and

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use of force involving a qualified inmate with a disability where

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there is a possible violation of the disabled inmate’s rights

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under the ARP or ADA.

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g.

CDCR must also provide Plaintiffs’ counsel with

Staffing.

CDCR must significantly increase

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supervisory staff by posting additional sergeants on all watches

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on all yards at LAC, COR, SATF, CIW, and KVSP.

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Case 4:94-cv-02307-CW Document 3218 Filed 03/11/21 Page 7 of 7

h.

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Training.

CDCR must develop and implement

training intended to eliminate violations of the ARP and ADA at

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LAC, COR, SATF, CIW, and KVSP, such as human rights, de-

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escalation, and cultural training, for all custody, mental

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health, and medical staff at LAC, COR, SATF, CIW, and KVSP who

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interact with disabled inmates.

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discussion of reporting requirements, whistleblowing, non-

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retaliation, and treatment of incarcerated people with

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United States District Court
Northern District of California

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disabilities.
i.

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The training must include

Anti-Retaliation.

CDCR shall develop mechanisms

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to end and prevent any retaliation against disabled inmates who

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report violations of their rights under the ARP or ADA and to

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ensure their safety.

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Five Prisons Remedial Plan.
j.

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These mechanisms shall be described in the

Other Remedies.

CDCR shall develop a plan to

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modify its policies to more effectively monitor and control the

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use of pepper spray by staff at LAC, COR, SATF, CIW, and KVSP

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with respect to disabled inmates.

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in the Five Prisons Remedial Plan.

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6.

This plan shall be described

The Court finds that these additional remedial measures

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are consistent with the Prison Litigation Reform Act (PLRA),

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18 U.S.C. § 3626(a).

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IT IS SO ORDERED.
Dated: March 11, 2021

CLAUDIA WILKEN
United States District Judge

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