Plata et al v. Schwarzenegger et al

Filing 3373

ORDER SETTING JULY 6, 2020 CASE MANAGEMENT CONFERENCE. Case management conference set for 07/06/2020 at 3:00 PM. Signed by Judge Jon S. Tigar on July 5, 2020. (jstlc3, COURT STAFF) (Filed on 7/5/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARCIANO PLATA, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 01-cv-01351-JST
ORDER SETTING JULY 6, 2020
CASE MANAGEMENT CONFERENCE

v.
GAVIN NEWSOM, et al.,
Defendants.

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California’s state prison system continues to be in the grip of the COVID-19 pandemic.

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According to the most recently available data, there are 5,335 confirmed inmate COVID-19 cases

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in the state prison system, of which 2,444 are active, and 949 reported cases of staff infection as of

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July 3, 2020. Twenty-five inmates and two staff members are known to have died from the

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disease. Although our knowledge of COVID-19 is still developing, we know that it has caused

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and will continue to cause a significant number of deaths, and that it disproportionately kills the

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elderly and the medically vulnerable. We also know that the virus has affected every one of

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California’s 35 adult prison facilities, although there has not yet been a positive inmate test result

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at each institution.

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Three days ago, at the July 2, 2020 case management conference, the Court expressed its

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view that Defendants must urgently release a significant number of elderly or otherwise medically

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vulnerable inmates to avoid the unnecessary spread of, and deaths from, COVID-19 among both

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inmates and staff alike. Without such releases, it appears that prisons will not have the empty cells

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and empty beds necessary to quarantine and isolate inmates. Also, when the number of infections

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within a single institution grows too high, medical staff can become overwhelmed and unable to

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provide adequate care. Large outbreaks also threaten surrounding communities.

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The Court also provided several composite examples of inmates for whom COVID-19

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poses particularly high risks of severe disease and death, who have had exemplary records while in

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prison, and who in many cases had already spent decades in confinement. These examples were

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drawn from the population at California Medical Facility (“CMF”), which the Court visited on

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June 29 and which, at the time, had no positive inmate test results. The Court expressed particular

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concerns about CMF because it houses some of the most medically vulnerable people in

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Defendants’ custody. But CMF is not the only facility at risk, and the Court expressed its view

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that the virus would inevitably invade every institution.
Less than one day after the case management conference, CMF reported its first positive

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test result among its inmate population. Fortunately, for now that has been the institution’s only

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United States District Court
Northern District of California

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positive inmate test result. In addition, it appears that staff are doing everything they can to

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control the spread of the disease. The Court is pleased, for example, that leadership has restricted

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custody and healthcare staff who work in the affected unit from working in other areas of CMF or

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at any other prison. But the situation is not static, and if staff are unable to control the spread of

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COVID-19 at CMF, multiple deaths are a certainty – a fact made obvious by the recent outbreak at

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San Quentin, which the Court describes in more detail below.

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To address the increasing urgency of this matter, the Court now sets an emergency case

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management conference on July 6, 2020, at 3:00 p.m. Zoom access credentials will be provided

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separately.

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At that conference, the parties shall be prepared to discuss what next steps they believe this

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Court should take. The Court anticipates that the discussion will include whether the parties

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believe that referring this matter to a three-judge court to consider whether to enter a prisoner

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release order is appropriate and, if so, what predicate steps, if any, are necessary before doing so.

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For example, does the Court first need to make a finding that Defendants are now being

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deliberately indifferent in violation of the Eighth Amendment and, if so, what proceedings, if any,

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are required before the Court can determine whether to make that finding? In addition, the Court

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might ask the Receiver to report on whether he believes that any more can be done to help prevent

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the spread of disease, or to adequately quarantine, isolate, and treat inmates who test positive,
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particularly at CMF, and whether those measures can be accomplished without a further

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significant reduction in population density.

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On the Eighth Amendment question, the Court previously found that Defendants’ actions,

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as of two-and-a-half months ago, were not deliberately indifferent: “Although it is undisputed that

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the risks of COVID-19 are substantial, and the Court believes that Defendants have the ability to

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take additional steps to decrease the risk of spreading the disease, Plaintiffs have not demonstrated

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that Defendants’ response at this time is constitutionally deficient.” Plata v. Newsom, No. 01-cv-

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01351-JST, ___ F. Supp. 3d ___, 2020 WL 1908776, at *11 (N.D. Cal. Apr. 17, 2020). But the

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Court also explained that “this does not preclude a finding of deliberate indifference at a later

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United States District Court
Northern District of California

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time.” Id. at *9.
That time may now have arrived. The Court notes, for example, that it previously

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commended the state for “produc[ing] a comprehensive, manipulable spreadsheet containing

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detailed information” on thousands of inmates “who have medical classifications as High Risk 1,

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High Risk 2, or Pregnant,” among other conditions; for taking a variety of steps within its

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institutions to sanitize its physical spaces and promote physical distancing; and for releasing a

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certain number of inmates. Id. at *7 (internal quotation marks omitted); see also id. at *4-5. It

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was reasonable to conclude then that those measures, along with others that Defendants had taken,

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were not inadequate. But since then, the disease has spread out of control at more than one

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institution, and the risks to elderly and medically vulnerable inmates are markedly more clear. On

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April 17, 2020, the day the Court’s prior order issued, there had not been a single COVID-19

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fatality in the state prison system. The first one occurred two days later, and as of today, there

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have been 25.

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San Quentin provides a signal example of what can happen when an outbreak overwhelms

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an institution. Over 1,400 San Quentin inmates, and over 150 staff members, have now tested

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positive for COVID-19. The number of inmate infections is undoubtedly even higher because

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hundreds of inmates have refused to be tested. Three COVID-19 deaths have been confirmed, a

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number that will surely rise given the number of inmates who continue to be transferred to outside

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hospitals for treatment and placed in intensive care units for treatment. San Quentin appears to
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have lacked sufficient facilities to quarantine and isolate inmates, as well as adequate staff to

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respond to the resulting rapid spread of disease. And the outbreak at San Quentin has also helped

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COVID-19 spread more widely in surrounding communities.

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Defendants must say what they believe is required to protect California’s prisons, their

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staff and inmates, and their surrounding communities during this pandemic. If Defendants believe

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that a significant release of prisoners is unnecessary because, despite their experience at San

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Quentin, they have the ability to adequately respond to outbreaks at every other institution in a

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manner that comports with medical and public health guidance, they should say so – and place that

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guidance on the record. Perhaps Defendants can make such a showing. However, the Court is
currently unaware of any public health expertise that would counsel against further reductions in

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United States District Court
Northern District of California

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population density as a necessary response to the pandemic, even after crediting all the measures

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that Defendants have already taken. If Defendants believe that this is not a relevant consideration

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for the Court, or that the law does not require them to follow what appears to be uncontroverted

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public health guidance, they should explain why not. The Court does not expect answers to these

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questions at tomorrow’s case management conference; instead, it offers them as examples of

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questions that it believes further litigation is likely to raise.

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The Court is prepared to proceed down the litigation path if necessary, and the parties

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should assume that the Court would proceed on the fastest practicable timeline. But even on that

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schedule, it would take at least several weeks to reach the point where this Court or a three-judge

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court, if one were convened, could determine whether Defendants should be required to release

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inmates. During that time, the harm inflicted by COVID-19 will only grow. In addition to

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valuable time lost, litigation would be a significant and costly distraction for operational staff and

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leadership, all of whom now work around the clock to protect their patients and have no time to

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spare. Defendants, on the other hand, have the power to take action now, without waiting for a

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court to decide whether they are legally required to do so.

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Unless and until the matter is litigated, the Court expresses no opinion on whether

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Plaintiffs are entitled to a prisoner release order or any other relief under the law. What is

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undisputed in the record to date, however, is that without significant reductions in population
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density that are tied to the needs of specific institutions to manage potential outbreaks of

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COVID-19, Defendants’ failure to act will cause an inevitable and unnecessary loss of life – not

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just in California’s incarcerated population, but also among CDCR staff and those beyond

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institutional walls who interact with staff or their households on a daily basis.

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Tomorrow, the parties should each present a plan for addressing these issues, after having

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met and conferred in good faith. The Court will then take the matter under submission and

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determine how best to proceed.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: July 5, 2020
______________________________________
JON S. TIGAR
United States District Judge

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