Plata et al v. Schwarzenegger et al

Filing 3366

ORDER TO SHOW CAUSE RE: BASELINE STAFF TESTING FOR COVID-19. Objections, if any, due by 6/30/2020 at 5:00 p.m. Signed by Judge Jon S. Tigar on June 28, 2020. (jstlc3, COURT STAFF) (Filed on 6/28/2020)

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Case 4:01-cv-01351-JST Document 3366 Filed 06/28/20 Page 1 of 4 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 MARCIANO PLATA, et al., 7 Plaintiffs, 8 v. 9 GAVIN NEWSOM, et al., 10 ORDER TO SHOW CAUSE RE: BASELINE STAFF TESTING FOR COVID-19 Defendants. 11 United States District Court Northern District of California Case No. 01-cv-01351-JST 12 The Court issues this order in its continuing effort to address the COVID-19 pandemic as it 13 14 relates to the California state prison system. As the parties noted in their June 8, 2020 joint case management statement, “[t]he Receiver 15 16 has identified prison staff as the main vector for spreading COVID-19 in the state prisons and has 17 recommended that all staff at all institutions be tested for COVID-19.” ECF No. 3345 at 3. At the 18 June 9, 2020 case management conference, the Court and the parties discussed staff testing at San 19 Quentin and California State Prison, Corcoran. Without objection, the Court entered an oral order, 20 subsequently memorialized in writing, for Defendants to test all staff at San Quentin and 21 CSP-Corcoran within four business days.1 ECF No. 3353 at 2. The state substantially complied 22 with that order at both prisons. ECF No. 3356 at 7 & n.2 (reporting that 94.9% of San Quentin 23 staff and 92.6% of CSP-Corcoran staff were tested, and explaining that not all staff were tested 24 “for a number of reasons, including employees out on sick leave, disability leave, parental leave, 25 vacation, and remote assignment”). 26 27 28 1 The Court ordered that staff who had contact with any incarcerated person who transferred from the California Institution for Men into San Quentin or CSP-Corcoran between May 28 and May 30, 2020, be tested within two business days. ECF No. 3353 at 2. Case 4:01-cv-01351-JST Document 3366 Filed 06/28/20 Page 2 of 4 The Court also ordered Defendants to “produce a comprehensive plan for testing staff at all 1 prisons in the California Department of Corrections and Rehabilitation to Plaintiffs by June 16, 3 2020.” Id. The parties reported in their June 18, 2020 joint case management statement that 4 Defendants complied with this deadline, and Defendants’ plan was attached as an exhibit to the 5 parties’ joint statement. ECF 3356 at 5; ECF No. 3356-1. In accordance with California 6 Department of Public Health recommendations for skilled nursing facilities, the plan provides for 7 “universal baseline testing of all staff” at three institutions: California Health Care Facility 8 (“CHCF”), California Medical Facility (“CMF”), and Central California Women’s Facility 9 (“CCWF”). ECF No. 3356 at 5. However, Defendants’ plan does not contemplate baseline 10 testing at any other institution. See ECF No. 3356-1. Instead, the plan proposes surveillance 11 United States District Court Northern District of California 2 testing at “institutions that currently do not have any newly diagnosed COVID-19 cases among 12 inmates or staff within the last 14 days.” Id. at 2. At institutions where at least one COVID-19 13 positive inmate or staff is identified, the plan proposes “serial retesting of all staff . . . every 14 14 days until no new cases are identified in two sequential rounds of testing,” and that such 15 “retesting” be done “[a]s soon as possible.”2 Id. at 5. The use of the word “retesting” assumes 16 that baseline testing has been done, but Defendants’ plan does not appear to provide for baseline 17 testing and the Court is not aware that any such testing has occurred except at San Quentin and 18 CSP-Corcoran. Defendants reported on June 18 that the California Department of Corrections and 19 20 Rehabilitation (“CDCR”) had “already entered into a contract with a lab to provide the staff 21 testing for” CHCF, CMF, and CCWF, and that testing at those institutions was to “commence this 22 week.” ECF No. 3356 at 7. Defendants further reported that the process of completing “expedited 23 24 25 26 27 28 2 The plan proposes that staff retesting be limited to yards where positive inmates are housed or positive staff are assigned “as long as staff are not moving among buildings to provide services.” ECF No. 3356 1 at 5. As far as the Court is aware, although the Receiver has recommended consideration of staff cohorting so that staff interact only with limited groups of inmates, no such cohorting has been implemented. To the contrary, Defendants have stated that, “CDCR is making efforts to ensure that primary-post positions are permanently filled, which should limit the number of different staff who are working in various housing units. But in such a large and complex system, it is impossible to completely and permanently limit the staff who work in various locations throughout the prisons.” ECF No. 3332 at 15. Thus, the Court anticipates that all staff will be serially retested under Defendants’ plan, without limitation to particular yards. 2 Case 4:01-cv-01351-JST Document 3366 Filed 06/28/20 Page 3 of 4 1 emergency contracts that will cover the remainder of the testing called for by the testing plan” was 2 “nearly complete,” and they expected testing under the contract to begin “next week” – i.e., the 3 week of June 22. Id. Thus, at least some level of staff testing should have already begun. 4 The Court anticipates that Defendants intend to provide updates on the level of staff testing 5 performed to date in the joint case management statement due on July 1, 2020. The Court also 6 anticipates that the parties intend to report on the results of their further meeting and conferring 7 about Defendants’ comprehensive testing plan at that time. However, upon consultation with the 8 Receiver, it appears imperative that baseline staff testing occur immediately, and the Court has 9 concluded that waiting until the July 2 case management conference to discuss this issue with the parties would result in unnecessary delay. Given how quickly the disease can be transmitted, 11 United States District Court Northern District of California 10 every day counts. 12 As of today, CDCR is reporting that, within the last 14 days, 828 new COVID-19 cases 13 have been confirmed among the inmate population at San Quentin; 212 new cases have been 14 confirmed at California Correctional Center (“CCC”); and 106 new cases have been confirmed at 15 California Correctional Institution (“CCI”). CDCR, Population COVID-19 Tracking, 16 (last visited June 28, 2020). Other 17 prisons have also reported new cases during that time period, but these three institutions have had 18 the largest recent outbreaks. Id. Baseline staff testing at CCC and CCI, as well as staff retesting 19 at San Quentin, therefore appear to be of the highest priority. 20 The Court is aware of no authority that would counsel against baseline staff testing to help 21 control the spread of disease and to protect CDCR’s inmate and staff populations, as well as 22 surrounding communities, or against retesting of all staff at San Quentin now that it has been 23 approximately 14 days since baseline testing was completed there. Accordingly, good cause 24 appearing, Defendants are ordered to show cause as to why they should not do all of the 25 following: 26 1. Test all staff at San Quentin by July 2, 2020; 27 2. Test all staff at CCC and CCI by July 3, 2020; and 28 3 Case 4:01-cv-01351-JST Document 3366 Filed 06/28/20 Page 4 of 4 1 2 3 3. Test all staff at all remaining CDCR institutions, including California City, by July 6, 2020. For purposes of this order, “staff’ shall have the same definition as the one contained in 4 Defendants’ current comprehensive testing plan: “any individual whose work assignment is to a 5 particular institutional facility, including but not limited to, CDCR and California Correctional 6 Health Care Services staff, registry, contract, Division Adult Parole Operations, Prison Industry 7 Authority and Board of Parole Staff who interact with inmates.” ECF No. 3356-1 at 6. These 8 actions shall be in addition to any comprehensive plan Defendants ultimately adopt for ongoing 9 testing. The Court looks forward to discussing Defendants’ comprehensive testing plan with the 10 United States District Court Northern District of California 11 parties at the July 2 case management conference. Any objections to this order must be filed by June 30, 2020, at 5:00 p.m., and must be 12 supported by a memorandum of points and authorities not longer than ten pages. If any party files 13 a timely objection, the Court will take the matter under submission without a hearing unless 14 otherwise ordered. If no timely objection is filed, the above will become an order of the Court 15 without further action. 16 17 18 19 IT IS SO ORDERED. Dated: June 28, 2020 ______________________________________ JON S. TIGAR United States District Judge 20 21 22 23 24 25 26 27 28 4

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