(PC) Coleman v. Newsom ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH COLEMAN, et al., No. 2:90-cv-0520 KJM DB P 12 Plaintiff, 13 v. ORDER 14 GAVIN NEWSOM, et al., 15 Defendants. 16 17 This order addresses the status of implementation of specific recommendations for suicide 18 prevention, which the court ordered almost eight years ago. The court does not here consider 19 ultimate questions concerning the adequacy and durability of defendants’ remediation of 20 constitutional violations in suicide prevention practices. Nonetheless, with each order it issues 21 relating in any way to suicide prevention, the court bears in mind the extremely troubling 22 backdrop. For most of the past two decades, California’s annual inmate suicide rate has equaled 23 or exceeded the national average for inmate suicides in the nation’s prisons. Total inmate 24 suicides in California have ranged from a low of 15 in 2000 and 2021 to a high of 43 in 2005 and 25 2006; the total reached 38 as recently as 2019.1 In 2019 and the two preceding years, California’s 26 1 The total number of inmate suicides in California’s prisons from 1999 through 2021 as 27 well as the completed suicide rate per 100,000 inmates in California can be found in several reports filed in this action. See, e.g., ECF No. 4110 at 4-5, ECF No. 5325 at 6-7, ECF No. 5399 28 at 3; see also Mortality in State and Federal Prisons, 2000-2019 – Statistical Tables (NCJ 1 inmate suicide rate was the fourth highest out of the ten largest correctional systems in the United 2 States. See ECF No. 7239 at 12. 2 As the Special Master’s suicide prevention expert Lindsay 3 Hayes, M.S.3 explains: 4 Suicide rates are most meaningful when viewed over a sustained period of time and, as stated in all of this reviewer’s reports, although the total number of inmate 5 suicides and the corresponding suicide rate in any prison system can be important 6 indicators, they are not the sole barometer by which adequacy of suicide prevention practices should be measured. The best methodology for determining 7 whether a correctional system has fully implemented its suicide prevention program continues to be: (1) the assessment of suicide prevention practices within 8 each prison, and (2) a review of each inmate suicide in relation to practices in the prison and determining its degree of preventability. 9 10 ECF No. 7636-1 (Hayes Report) at 66-67. As the court previously has observed, “[w]here, as 11 here, defendants know they house prison inmates at risk for suicide, they are required to take all 12 reasonable steps to prevent the harm of suicide.” Coleman v. Brown, 938 F.Supp.2d at 975. This 13 order addresses the status of compliance with the required steps based solely on the Special 14 Master’s expert’s most recent review. 15 255970, Bureau of Justice Statistics, October 2021), cited in ECF No. 7615, at 46 n.4. The 16 Special Master’s Expert’s annual suicide reports also compare California’s inmate suicide rate to 17 those in the ten largest correctional systems in the United States. See, e.g., ECF No. 7239 at 12. The suicide rate is calculated based on the number of inmate suicide deaths per 100,000 inmates, 18 see Coleman v. Brown, 938 F.Supp.2d 955, 974 n.34 (E.D. Cal. 2013); the court relies on suicide rate as “the proper method for assessment of suicide trends.” Id. at 975 n.36. 19 2 In this order, citations to page numbers in documents filed in the court’s Electronic Case 20 Filing System (ECF) are to the page number assigned by the ECF System and located in the upper right hand corner of the page. 21 22 3 Mr. Hayes joined the Special Master’s team in 2013. See Oct. 2, 2013 Order, ECF No. 4857. Prior to that, in 2010, defendants entered into a three-year contract with Mr. Hayes 23 “as a consultant for the express purpose of addressing numerous deficiencies in CDCR’s suicide prevention efforts . . . CDCR contracted with Lindsay Hayes so that his ‘experience (more than 24 25 years) with correctional suicide prevention programs will allow the CDCR to make immediate, short-term, and long-term changes in its suicide prevention program to begin to decrease the 25 overall rate of suicide over the long term . . . [and] to implement a more effective suicide 26 prevention policy.’” Coleman v. Brown, 938 F. Supp. 2d at 978 n.39. In August 2011, Mr. Hayes delivered one report under that contract; thereafter, CDCR did not contact him again 27 “except to redact his report in order for certain parts to be provided to the Special Master and plaintiffs’ counsel.” Id. 28 1 On October 24, 2022, the Special Master filed the pending Report on His Expert’s Fifth 2 Re-Audit and Update of Suicide Prevention Practices in the Prisons of the California Department 3 of Corrections and Rehabilitation (CDCR) and Baseline Audit of Suicide Prevention Practices in 4 the Psychiatric Inpatient Programs (PIPs) (hereafter Report). ECF No. 7636. With his Report, 5 the Special Master filed Mr. Hayes’ report itself. ECF No. 7636-1. On November 3, 2022, 6 defendants filed objections to the Report and the Hayes Report. ECF No. 7654. On 7 November 23, 2022, with leave of court, ECF No. 7656, plaintiffs filed a response to defendants’ 8 objections. ECF No. 7672. 9 The Special Master makes two requests in connection with the fifth re-audit of CDCR 10 suicide prevention practices, and one with respect to the baseline audit of suicide prevention 11 practices in the PIPs. There are no objections concerning the baseline audit of suicide prevention 12 practices in the PIPs. The findings will be adopted in full and the Special Master’s request for a 13 court order regarding Mr. Hayes’ recommendations for the PIPs will be granted. The court turns 14 to the findings and requests based on Mr. Hayes’ fifth re-audit of suicide prevention practices in 15 CDCR’s prisons. 16 I. BACKGROUND 17 While the pending reports arise from Mr. Hayes’ fifth re-audit of CDCR’s suicide 18 prevention practices and policies, this is the sixth such report and recommendations the Special 19 Master and Mr. Hayes have filed with the court. The first set of reports was filed January 14, 20 2015. ECF Nos. 5258, 5259. They contained a “comprehensive” set of thirty-two 21 recommendations by Mr. Hayes for action defendants should take to enhance their suicide 22 prevention policies and practices and a recommendation from the Special Master “that defendants 23 be ordered to adopt those recommendations and work with [the Special Master] in the Suicide 24 Prevention Management Workgroup, ‘and otherwise as may be necessary, on the development of 25 strategies and the implementation of the changes and practices described in the 26 recommendations.’” Feb. 3, 2015 Order, ECF No. 5271, at 2 (quoting ECF No. 5258 at 5). 27 Neither party objected to the 2015 reports or their recommendations. Id. On February 3, 2015, 28 the court ordered defendants to adopt the Hayes recommendations and the Special Master’s 1 recommendation for work “on the development of strategies and the implementation of the 2 changes and practices contained in those recommendations.” Id. at 3. 3 The second set of reports, filed January 13, 2016, concerned Mr. Hayes’ first re-audit of 4 CDCR suicide prevention practices. See ECF No. 5395, 5396. Neither party filed objections, and 5 on April 5, 2016, the court adopted the first re-audit report, ECF No. 5396, in full. Apr. 5, 2016 6 Order, ECF No. 5429. The third set of reports, filed September 7, 2017, concerned Mr. Hayes’ 7 second re-audit of CDCR suicide prevention practices. ECF Nos. 5671, 5671-1. No party 8 objected to these reports or the recommendations they contained, which included that three of the 9 initial thirty-two recommendations should be withdrawn. See Jan. 25, 2018 Order, ECF No. 10 5762, at 1, 3. On January 25, 2018, the court adopted the reports in full, as well as their 11 recommendations, leaving twenty-nine recommendations to be implemented and a further re- 12 audit report to follow. Id. at 3-4. 13 On November 5, 2018, the court received the fourth set of reports: the Special Master’s 14 report on Mr. Hayes’ third re-audit of CDCR suicide prevention practices, together with 15 Mr. Hayes’ third re-audit report. ECF Nos. 5993, 5993-1. Defendants interposed two objections, 16 both of which the court rejected in a July 3, 2019 order adopting the reports and their 17 recommendations in full. See July 3, 2019 Order, ECF No. 6212, at, e.g., 14. The court found 18 that “[w]hile some progress is being made in implementation of the court-ordered suicide 19 prevention measures, a substantial amount of work remains, and implementation is dragging out 20 and taking too long.” Id. The court held that “[i]f Mr. Hayes is unable to report full compliance 21 with his recommendations at the end of the fourth re-audit, the court anticipates reviewing with 22 defendants at a future status conference the specific steps necessary to enable Mr. Hayes to report 23 no later than after his fifth re-audit that all recommendations have by then been implemented.” 24 Id. In an order after a status conference held on December 3, 2019, the court required that if 25 Mr. Hayes was unable to report full compliance in his fourth re-audit report he and the Special 26 Master should “include in their reporting on Mr. Hayes’ fourth re-audit specific 27 recommendations for each step defendants must take to implement any items that remain 28 1 incomplete, as well as a date certain on which the fifth re-audit round will commence.” 2 Jan. 7, 2020 Order, ECF No. 6441, at 8. 3 On September 3, 2020, the court issued a comprehensive order confirming the overall 4 remedial framework “for the requirements defendants must satisfy to achieve compliance with the 5 Constitution and against which their progress toward constitutional compliance is being 6 measured.” Sept. 3, 2020 Order, ECF No. 6846, at 2. In that order, the court confirmed its 7 findings regarding suicide prevention articulated in the July 3, 2019 order that compliance with 8 the court-ordered suicide prevention recommendations was “long overdue” and that “defendants 9 must complete any outstanding work on those recommendations” before Mr. Hayes’ fifth auditing 10 round began so that “Mr. Hayes can report full compliance in his fifth re-audit report.” Id. at 22. 11 The court specifically ordered that “[t]he twenty-nine recommendations must be completely and 12 durably implemented to allow comprehensive assessment of their efficacy in reducing the 13 ongoing number of foreseeable and/or preventable inmate suicides in California’s prison system.” 14 Id.4 15 On September 23, 2020, the Special Master filed a report on Mr. Hayes’ fourth re-audit of 16 CDCR suicide prevention practices, together with Mr. Hayes’ report. ECF Nos. 6879, 6879-1. 17 The Special Master recommended 18 (1) [t]hat the Court find defendants in compliance with the implementation of Recommendations 2, 4, 5, 11, 19, 22, 23, 24, 25, 19 27, 30, and parts of 32; and 20 (2) [t]hat the Court order defendants to complete the implementation of Recommendations 1, 3, 6, 7, 8, 9, 10, 12, 13, 17, 18, 20, 21, 26, 21 28, 29, 31, and the remaining parts of 32 as outlined in the report. 22 ECF No. 6879 at 27. 23 Dec. 3, 2020 Order, ECF No. 6973 at 3. In response to the court’s direction in the 24 January 7, 2020 order, the Special Master included “a list of the outstanding recommendations 25 26 4 The parties have recently agreed, and the court has provisionally approved, a change in the use of the “‘foreseeable’ and/or ‘preventable’” standards to assess inmate suicides in CDCR 27 prisons to an analysis that focuses “on the efficacy of CDCR’s quality improvement plans (QIP) resulting from” case review of those suicides. Dec. 15, 2022 Order, ECF No. 7681, at 2. 28 1 and the actions required to complete their implementation.” ECF No. 6879 at 5. This list 2 included specific compliance rates to be achieved in order for Mr. Hayes to report “full 3 implementation” of each outstanding recommendation. Id. at 16-25. Defendants objected to the 4 proposed compliance standards. ECF No. 6898 at 2-3. On December 3, 2020, the court adopted 5 both reports in full. ECF No. 6973 at 12. The court confirmed Mr. Hayes was “unable to report 6 full compliance with his recommendations following his fourth re-audit.” Id. at 2. The court 7 overruled defendants’ objections to the proposed compliance standards in a detailed discussion, as 8 follows: 9 As required by the January 7, 2020 order, the Special Master’s report includes “specific recommendations for each step defendants must 10 take to implement any item that remains incomplete. . . .” ECF No. 6441 at 8. For several of the incomplete items, the recommendations 11 include a percentage compliance that must be achieved for defendants to be considered in compliance. These include: 12 (1) at least 90 percent of custody and health care staff receive both 13 pre-service and annual suicide prevention training (Recommendation 3); 14 (2) “ensure that at least 90 percent of mental health clinicians at each 15 audited CDCR facility are compliant with the requirements of both the seven-hour SRE [Suicide Risk Evaluation] training and SRE 16 mentoring program,” ECF No. 6879 at 19 (Recommendation 9); 17 (3) 100 percent compliance with the requirement that each facility’s SPRFIT [Suicide Prevention and Response Focused Improvement 18 Teams] audit the quality of completed SREs on a monthly basis (Recommendation 10); 19 (4) at least 90 percent compliance with requirements for suicide- 20 resistant housing of inmates newly admitted to administrative segregation “during their first 72 hours of placement” 21 (Recommendation 13); 22 (5) make sure that adequate treatment (safety) plans are maintained in at least 90 percent of cases reviewed at each audited facility 23 (Recommendation 17); 24 (6) make sure at least 90 percent of mental health clinicians at each audited CDCR facility comply with safety planning training 25 requirements (Recommendation 18); 26 (7) at least 90 percent compliance with adequate psych tech practices and auditing thereof (Recommendation 20); 27 (8) 100 percent compliance with suicide precaution and suicide 28 [watch] observation requirements (Recommendation 21); 1 (9) at least 90 percent compliance with requirement that any inmate in an outpatient housing unit for more than twenty-four hours be 2 provided with a suicide-resistant bed (Recommendation 26); 3 (10) adequate completion of second page of “Discharge Custody Check Sheet” in at least 90 percent of reviewed cases 4 (Recommendations 28 and 29); 5 (11) at least 90 percent compliance with adequate SPRFIT practices that are consistent with the SPRFIT policy (Recommendation 31); 6 and 7 (12) at least 90 percent compliance with policies regarding possessions and privileges for mental health crisis bed patients 8 (Recommendation 32). 9 ECF No. 6879 at 16-24. Defendants object that these proposed compliance standards exceed the requirements of the Eighth 10 Amendment and that adoption of them would violate the Prison Litigation Reform Act’s “needs-narrowness-intrusiveness 11 requirements by replacing the applicable ‘substantial compliance’ standard with one that is inconsistent with the Eighth Amendment.” 12 ECF No. 6898 at 5.6 [Footnote 6: Defendants also contend “[t]he Special Master and Mr. Hayes’s monitoring and reporting should 13 express the levels of compliance connected to the Coleman remedy. But it is not for them to pronounce the degree to which Defendants 14 must substantially comply with the remedy to satisfy their obligations to the Coleman class.” ECF No. 6898 at 6. The report 15 and recommendations before the court in no way usurp the court’s role; they are in fact submitted as ordered by the court.] Defendants’ 16 objection betrays a fundamental misunderstanding of the nature of these recommendations. 17 It is settled in this action that defendants’ constitutional obligation 18 with respect to suicide prevention is “to take and adequately implement all reasonable steps to remedy” the “pattern of identifiable 19 and describable inadequacies in suicide prevention in the CDCR” that has been repeatedly identified and described for almost two 20 decades. See Coleman v. Brown, 938 F. Supp. 2d 955, 979 (E.D. Cal. 2013). As the record of this case amply reflects, the pattern of 21 inadequacies exists in both clinical judgment and administrative action or inaction. Implementation of the twenty-nine 22 recommendations is a central part of remedying this pattern. 23 Defendants are already required by court order to fully adopt the twenty-nine recommendations. The Special Master’s 24 recommendations, if adopted, provide guidance for defendants regarding when he will report to the court that, in his view, they have 25 sufficiently implemented a particular suicide prevention measure recommended by Mr. Hayes as required by this court; they give 26 defendants a clear target to meet by the time Mr. Hayes’ fifth round audit begins. This guidance is necessary and appropriate and will 27 therefore be adopted. 28 1 The court’s adoption of the Special Master’s recommendations concerning particular percentage compliance standards with respect 2 to individual provisions of the remedy does not violate the requirements of 18 U.S.C. § 3626(A)(1)(a) by moving away from the 3 requirements of the Eighth Amendment. As noted above, it is settled in this action that defendants’ Eighth Amendment obligation is to 4 adequately implement all reasonable steps that have been identified to reduce the pattern of foreseeable or preventable inadequacies in 5 clinical judgment and administrative action or inaction involved in inmate suicides. Section 3626(A)(1)(a) prevents a federal court from 6 granting prospective relief in prison conditions cases “unless the court finds that such relief is narrowly drawn, extends no further than 7 necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal 8 right.” 18 U.S.C. § 3626(A)(1)(a). To satisfy this requirement in complex cases such as this one, the court must find “that the set of 9 reforms being ordered – the ‘relief’ – corrects the violations of prisoner’s rights with the minimal impact possible on defendants’ 10 discretion over their policies and procedures.” Armstrong v. Schwarzenegger, 622 F.3d 1058, 1071 (9th Cir. 2010). 11 The twenty-nine recommendations are interim steps that, when fully 12 implemented, are designed to bring defendants significantly closer to meeting their Eighth Amendment obligations in the area of suicide 13 prevention.7 [Footnote 7: Eighth Amendment compliance in this area of the action will require both adequate implementation of the 14 twenty-nine recommendations as well as remediation of the pattern of identifiable and describable inadequacies in the annual reports on 15 inmate suicides.] Ultimately, it will be for the court to decide whether defendants have “take[n] and adequately implement[ed] all 16 reasonable steps to remedy” the “pattern of identifiable and describable inadequacies in suicide prevention in the CDCR.” 17 Defendants do not dispute they must fully implement these recommendations, as they were ordered to do five years ago. Their 18 objection to the Special Master’s recommendations regarding when he will report to the court that each has been adequately implemented 19 is overruled. 20 Id. at 7-10. The court adopted the Special Master’s report and Mr. Hayes’ fourth re-audit report 21 in full and set a status conference for December 18, 2020 to discuss “the steps required to 22 complete implementation of all twenty-nine recommendations previously adopted by the court 23 and to ensure that implementation is durable.” Id. at 12.5 24 25 26 5 On January 4, 2021, defendants appealed the December 2020 order to the United States Court of Appeals for the Ninth Circuit. See ECF No. 7012. On May 17, 2021, the appeal was 27 dismissed in accordance with the parties’ stipulated motion for voluntary dismissal of the appeal, which included an agreement that defendants would bear the costs of the appeal. ECF No. 7179. 28 1 In a written order after the December 18, 2020 status conference, the court ordered 2 defendants “to complete the implementation of the court-ordered suicide prevention 3 recommendations 1, 3, 6, 7, 8, 9, 10, 12, 13, 17, 18, 20, 21, 26, 28, 29, 31 and the remaining parts 4 of 32 as outlined in” Mr. Hayes’ fourth re-audit report. Dec. 24, 2020 Order, ECF No. 7004, at 2. 5 At the status conference, the court identified four of those recommendations, 12, 13, 17 and 21, as 6 “top priority for action” and also confirmed in its written order that all were to be “fully 7 implemented” by the time of the fifth re-audit. Id. The court directed the preparation of 8 activation schedules for all outstanding recommendations, and requested that CDCR Secretary 9 Kathleen Allison “take all steps within her authority to expedite full implementation of all the 10 court-ordered recommendations.” Id. 11 On January 15, 2021, defendants filed the proposed activation schedules as the court 12 required in its December 24, 2020 order. ECF No. 7024. Subsequently, also as the court 13 required, ECF No. 7150, defendants filed an update to the January 15, 2021 filing, ECF No. 7160. 14 Since then, defendants have filed fifteen additional updated activation schedules for completion 15 of the court-ordered suicide prevention recommendations. See ECF Nos. 7225, 7256, 7281, 7299, 16 7306, 7337, 7362, 7384, 7444, 7480, 7519, 7562, 7578, 7596, 7646. In the most recent activation 17 schedule, as discussed further below, many dates identified in the column for scheduling “planned 18 completion” of certain items have passed without completion, and in some instances the notation 19 “ongoing” appears without any date; in the corresponding column for “actual completion,” many 20 entries include the notation “ongoing” or are blank. See ECF No. 7646, e.g., at 5, 8, 10, 11. 21 II. FINDINGS AND RECOMMENDATIONS, OBJECTIONS, AND RESPONSE 22 A. Findings and Recommendations 23 As the reports currently before the court show, Mr. Hayes has been able to report 24 defendants’ compliance with only three of the remaining recommendations -- 1, 6, and 26 -- 25 leaving fifteen recommendations still outstanding. ECF No. 7636 at 32. Defendants have not 26 complied with any of the recommendations identified as “top priority for action” in the court’s 27 December 24, 2020 order. Based on these findings, the Special Master requests that: 28 1 (1) the Court find defendants in compliance with the implementation of recommendations 1, 6, and 26; and 2 . . . . 3 (3) the Court order the Special Master to provide an update report to 4 the Court on the status of defendants’ continued implementation of the remaining 15 outstanding recommendations and the development 5 of corrective action plans to address the deficiencies found in PIP suicide prevention practices. 6 7 Id.6 8 B. Defendants’ Objections 9 1. Failure to Achieve Full Implementation as to Two Recommendations 10 Defendants acknowledge their failure to “achieve full implementation” of two of the 11 recommendations, 17 (requiring maintenance of adequate treatment (safety) plans in at least 12 90 percent of cases reviewed at each audited facility, ECF No. 6973 at 7) and 31 (requiring “at 13 least 90 percent compliance with adequate SPRFIT practices that are consistent with the SPRFIT 14 policy,” ECF No. 6973 at 8). ECF No. 7654 at 3. 15 2. General Objections 16 Defendants object to Mr. Hayes’ use of his compliance standards to guide his findings on 17 implementation of the recommendations, contending their “activation schedules decouple 18 implementation from compliance” and that “[i]mplementation should focus on the actual 19 development and application of a policy, plan, or audit that make up CDCR’s durable suicide 20 prevention program.” Id. Pointing to two specific recommendations, 10 and 21, defendants 21 contend that “Mr. Hayes’ concept of implementation creates an unworkable standard for 22 compliance with individual recommendations.” Id. at 4. Pointing to two other specific 23 recommendations, 7 and 8, they contend “institutional noncompliance” should be viewed 24 separately from “systemic noncompliance, and that some of “the Special Master’s findings of 25 26 6 In a footnote, the Special Master suggests that with respect to the 15 outstanding recommendations “defendants should continue their court-ordered efforts towards full 27 implementation without further delays, focusing on ways to accelerate the process wherever possible.” Id. at 32 n.46. 28 1 system-wide noncompliance were predicated on limited incidents of noncompliance that do not 2 indicate a systemic deficiency.” Id. at 7. 3 3. Specific Objections 4 a) Recommendation 10 5 Defendants argue the 100 percent standard required by Mr. Hayes to report compliance 6 with recommendation 10, which requires auditing of completed suicide risk evaluations (SREs) 7 on a monthly basis, is “unworkable.” Id. at 4, 5. Defendants contend Mr. Hayes suggests, 8 incorrectly, that CDCR only reviews “emergent mental health referrals.” Id. at 5. They also 9 contend CDCR has “two oversight mechanisms built into the system to ensure compliance is as 10 close to 100-percent as is reasonably practicable.” Id. These include analysis of “every urgent 11 referral that may indicate the individual is potentially suicidal to determine the clinical reason it 12 was not classified as emergent and what, if any, error occurred during the classification process” 13 and development of “mechanisms for the Electronic Health Record System [EHRS] to prevent 14 staff from erroneously classifying a referral as urgent.” Id. 15 b) Recommendation 21 16 Defendants contend the 100 percent compliance standard for recommendation 21, 17 adherence to suicide precaution and suicide watch requirements, is also unworkable. Id. at 5-6. 18 They state that “CDCR and the California Correctional Health Care System (CCHCS) developed 19 an automated Mental Health Observations Reporting Tool (Reporting Tool) to record 20 compliance” with the required “levels of observation and to assist institutional staff.” Id. at 6. 21 According to defendants, the Reporting Tool “shows every single observation conducted at 15- 22 minute intervals of suicidal patients housed in the Mental Health Crisis Bed (MHCB) units, and 23 indicates whether the observation was compliant or not” and “was developed in order to assist 24 institutions with identifying staff who need to improve performance, which further demonstrates 25 CDCR’s robust self-monitoring system and durable suicide prevention program.” Id. at 6. 26 c) Recommendation 7 27 With respect to the finding of noncompliance with recommendation 7 (requiring nurses’ 28 offices to “be of sufficient size to conduct adequate intake screening, and the door to the office 1 (which should contain a large viewing window) should remain closed during the screening 2 process,” ECF No. 6846 at 31), defendants seem to suggest that Mr. Hayes’ finding of 3 noncompliance with this recommendation was based on an observation of one nurse at one 4 institution. Id. at 7. 5 d) Recommendation 8 6 Defendants make a similar argument with respect to recommendation 8 (which requires 7 that nurse and officer safety “remain the top priority during the intake screening process” and that 8 “[i]f an inmate’s security classification or unknown security status creates a safety concern, the 9 screening should be conducted in the least restrictive setting that ensures both staff safety and 10 inmate confidentiality,” ECF No. 6846 at 31). Id. They contend Mr. Hayes’ finding that “‘there 11 continue to be a few audited facilities in which intake nurses did not feel comfortable conducting 12 screening without the presence of custody personnel’” is insufficient to support a finding of 13 systemic noncompliance with recommendation 8. Id. (quoting Hayes Report at 5). 14 e) Suicide Case Review Process 15 Finally, defendants object to Mr. Hayes’ finding of “a weakness” in defendants’ 16 otherwise robust suicide case review process, namely “the repetitive nature of deficiencies” 17 identified during the process. Id. at 7-8. Defendants contend that Mr. Hayes is conflating the 18 suicide case review process with defendants’ adherence to suicide prevention policies and 19 practices and that the repetitive nature of identified deficiencies is not a weakness in the suicide 20 case review process itself. Id. at 8. 21 C. Plaintiffs’ Response 22 1. General Objections 23 In response, plaintiffs point out the standards for compliance with Mr. Hayes’ 24 recommendations have been settled by this court, and the Ninth Circuit Court of Appeals has 25 confirmed this court is entitled as a general rule to rely on its prior orders as the law of the case. 26 ECF No. 7672 at 3 (citing Coleman v. Brown, 756 F. App’x 677, 679 (9th Cir. 2018)). Plaintiffs 27 also contend the court has clearly stated the role that meeting the compliance standards set for full 28 implementation of the suicide prevention recommendations will play in assessing defendants’ 1 compliance with Eighth Amendment requirements for adequate suicide prevention. Id. They 2 argue the court has already rejected the general objection that systemic non-compliance is not 3 shown through non-compliance at individual institutions. Id. at 8. 4 2. Specific Objections 5 a) Recommendation 10 6 Plaintiffs disagree that 100 percent compliance with recommendations 10 is unattainable. 7 They argue that achieving 100 percent compliance with the SRE audits required by this 8 recommendation is necessary because “SREs are a key tool for identifying suicidal ideation and 9 ‘failure to complete such an assessment can result in death by suicide within CDCR facilities.’” 10 Id. at 4 (quoting Hayes Report at 39). Importantly, plaintiffs’ contend defendants’ objection to 11 the 100 percent compliance standard for recommendation 10 is “largely academic” because the 12 compliance rate reported by Mr. Hayes for that recommendation is so poor. Id. at 4-5 (noting the 13 Hayes Report finds “only 61% of audited institutions (14 of 23) achieved even ninety-percent 14 compliance and that Defendants’ compliance with Recommendation 10 actually decreased since 15 the Fourth Re-Audit.”) (emphasis in original). Finally, plaintiffs point to the fact that Mr. Hayes 16 found San Quentin State Prison (San Quentin) had achieved 100 percent compliance with 17 recommendation 10, suggesting full compliance is achievable. Id. at 5. 18 b) Recommendation 21 19 Plaintiffs also disagree that 100 percent compliance with recommendation 21 is 20 unattainable. Plaintiffs contend defendants mischaracterize recommendation 21 by arguing that it 21 “directs CDCR merely to ‘authorize’ only the two levels of observation that may be provided for 22 suicidal inmates.’ Defendants’ Objections at 6.” Id. (emphasis in original). Plaintiffs argue the 23 recommendation actually requires enforcement of Program Guide requirements “‘authorizing 24 only the two levels of observation which may be provided for suicidal [i]nmates.’” Id. (internal 25 citations omitted). Thus, they argue, defendants’ reliance on implementation of their Reporting 26 Tool is insufficient to show the required implementation of recommendation 21. Moreover, they 27 note that Mr. Hayes identified other deficiencies in implementing this recommendation, including 28 that six MHCB units “appear to have established practices of placing suicidal patients on thirty- 1 minute observation rounds” rather than fifteen minutes as required. Id. at 6 (citing Hayes Report 2 at 25). They point out that Mr. Hayes reports substantial deficiencies with implementation of 3 recommendation 21, including “that seventeen out of twenty MHCBs (85%) had problematic 4 practices, including ‘multiple violations per patient by multiple nursing personnel assigned to the 5 MHCB units” as well as the thirty-minute rounding in six MHCB units. Id. (citing Hayes Report 6 at 21-25). 7 c) Recommendations 7 and 8 8 Plaintiffs contend defendants’ objection to Mr. Hayes’ findings as to recommendation 7 9 are “inaccurate, misleading and flawed.” Id. at 7. They contend the Hayes Report does not say 10 only one nursing intake encounter was observed and, even if it were, that it is not improper for 11 Mr. Hayes to report non-compliance based on his observations. Id. Plaintiffs also contend the 12 deficiencies described in the Hayes Report as to recommendation 8 are “the result of choices, not 13 random errors” and that the fact “[t]hat other institutions have managed to comply with 14 Recommendation 8 also undercuts Defendants’ argument.” Id. at 8. 15 d) Suicide Case Review Process 16 Finally, plaintiffs contend the facts underlying Mr. Hayes’ critique of the suicide case 17 review process are undisputed, and that defendants’ response is at odds with their representations 18 to the court in seeking to assume responsibility for annual suicide reporting and to change the 19 long-standing standard that has applied to review of annual inmate suicides in CDCR. Id. at 9-10. 20 III. DISCUSSION 21 A. General Observations 22 As noted above, Mr. Hayes first made his suicide prevention recommendations in January 23 2015, almost eight years ago. Defendants did not object to those recommendations and the court 24 ordered defendants to implement them in February 2015. To date, defendants have fully 25 implemented a total of fourteen of the twenty-nine recommendations. See ECF No. 6973 at 3 26 (quoting ECF No. 6879 at 27), 12 (adopting ECF Nos. 6879 and 6879-1 in full); ECF No. 7636 at 27 32. The court, the Special Master and Mr. Hayes have spent significant time setting out what is 28 necessary to achieve full implementation of the outstanding recommendations. 1 In its December 3, 2020 order, the court made clear the Hayes recommendations “are 2 interim steps that, when fully implemented, are designed to bring defendants significantly closer 3 to meeting their Eighth Amendment obligations in the area of suicide prevention.” ECF No. 6973 4 at 9. Eighth Amendment compliance in suicide prevention “will require both adequate 5 implementation of the twenty-nine recommendations and remediation of the pattern of 6 identifiable and describable inadequacies in the annual reports on inmate suicides.” Id. at 9 n.7. 7 The compliance standards Mr. Hayes used to report to the court on defendants’ implementation of 8 outstanding suicide prevention recommendations provide “necessary and appropriate guidance” 9 to defendants regarding when Mr. Hayes will “report to the court that, in his view, they have 10 sufficiently implemented a particular suicide prevention measure” and the court’s confirmation of 11 the standards as proper guidance gave “defendants a clear target to meet by the time Mr. Hayes’ 12 fifth round audit begins.” Id. at 9. As noted, defendants have fully implemented fourteen of the 13 twenty-nine court-ordered suicide prevention recommendations. As discussed above, eleven of 14 the court-ordered recommendations were fully implemented by the time of the fourth round re- 15 audit and three more have now been fully implemented. This means defendants have not met the 16 court-approved guidance standards for reporting on defendants’ implementation of fifteen of the 17 eighteen recommendations that remained outstanding after the court’s December 3, 2020 order, 18 and they do not contend they have. Instead, they rehash settled arguments over the role and 19 propriety of these standards in the overall process of remediating the ongoing constitutional 20 violations in suicide prevention. 21 In addition, as noted, defendants now state that their court-ordered suicide prevention 22 activation schedules “decouple implementation from compliance” because, in their view, 23 “implementation should focus on the actual development and application of a policy, plan, or 24 audit that make up CDCR’s durable suicide prevention program.” ECF No. 7654 at 3. There is 25 no basis in the record for defendants’ unilateral decision to “decouple implementation” of the 26 Hayes’ recommendations from “compliance” with those recommendations; the compliance 27 guidance provided in the court’s December 3, 2020 order signals when Mr. Hayes will report that 28 1 a recommendation has been fully implemented.7 Defendants’ contention disregards the court’s 2 directive. On December 24, 2020, the court ordered defendants to “complete and file proposed 3 activation schedules” for the outstanding suicide prevention recommendations, “to include, as 4 defendants deem necessary, interim deadlines toward complete implementation of all 5 recommendations. . . .” ECF No. 7004, at 2.8 That order followed the court’s discussion with the 6 parties at the December 18, 2020 status conference, which made clear the purpose of the 7 activation schedules was to focus minds on completion of each recommendation. See Reporter’s 8 Transcript of Proceedings (12/18/20 RT), ECF No. 7002, at 71, 72. Altogether, the court’s orders 9 make clear the following: (1) defendants are required to fully implement the outstanding court- 10 ordered suicide prevention recommendations; (2) compliance is assessed with reference to the 11 compliance percentage standards the court adopted in its December 3, 2020 order and that 12 Mr. Hayes used to report on whether “full implementation” has been achieved; and (3) 13 defendants’ activation schedules are to be focused on achievement of full implementation of those 14 recommendations. Defendants’ late stage sleight of hand to change the standards by ignoring 15 clear orders of this court cannot stand. 16 As noted above, defendants acknowledge their non-compliance in their failure to fully 17 implement recommendations 17 and 31. In addition to those two recommendations, defendants’ 18 most recent activation schedule, filed October 31, 2022, ECF No. 7646, shows actual completion 19 of parts of recommendations 3, 18, 269, 28 and 29 is ongoing; actual completion of all of 20 21 7 This is not the first time that defendants have unilaterally adjusted settled monitoring 22 standards in this action. See July 12, 2018 Order, ECF No. 5852, at 2 (discussing “defendants’ decision to unilaterally adjust the compliance monitoring standard” for the continuous quality 23 improvement tool (CQIT) “to 85 percent from the 90 percent standard that has been used consistently throughout the remedial phase of this litigation.”) 24 8 The court also requested “CDCR Secretary Kathleen Allison to take all steps within her 25 authority to expedite full implementation of all of the court-ordered recommendations.” Id. 26 9 The Hayes Report finds compliance with recommendation 26. Defendants describe the 27 ongoing work with respect to recommendation 26 as consistently providing patients in alternative housing at California Health Care Facility (CHCF) with “stack-a-bunk beds.” ECF No. 7646 at 8. 28 Mr. Hayes reports that during his fifth re-audit visit at CHCF there were no inmates in alternative 1 recommendations 10 and 20 also is ongoing; and estimated actual completion of recommendation 2 9 to be October 31, 2022.10 Even if the court accepted defendants’ decoupling argument, which it 3 does not, defendants’ own activation schedule shows non-compliance with the court-ordered 4 implementation of all or part of several suicide prevention recommendations in addition to the 5 two defendants admit are not fully implemented. 6 Regarding recommendations 12, 13 and 20, the court’s review of the Special Master’s 7 Report and the Hayes Report suggests defendants missed an opportunity to present a good faith 8 request for extension of time to complete full implementation. Mr. Hayes reports 82 percent 9 compliance with recommendations 12 and 13, ECF No. 7636-1 at 17-18, and 86 percent 10 compliance with recommendation 20, id. at 15. The rate of compliance with recommendations 12 11 and 13 is encouraging, as it shows an improvement from 65 percent compliance in the fourth re- 12 audit to 82 percent compliance in the fifth re-audit. Id. at 18. The rate of compliance for 13 recommendation 20 also is an improvement from the 75 percent compliance Mr. Hayes reported 14 in the fourth-reaudit report; it appears focused attention on the three facilities with outstanding 15 deficiencies in this area, California Institution for Men (CIM), California Substance Abuse 16 Treatment Facility (CSATF), and San Quentin, could result in compliance in short order. See id. 17 at 15.11 18 ///// 19 ///// 20 ///// 21 housing but the “stack-a-bunks . . . were appropriately located in storage rooms adjacent to the” 22 alternative housing units. ECF No. 7636-1 at 125. 23 10 Defendants have not filed an updated suicide prevention activation schedule since October 31, 2022. Good cause appearing, defendants will be directed to file within fourteen days 24 a brief report with focused updates on the status of all fifteen outstanding recommendations as of 25 the end of calendar year 2022. 26 11 A similar rate of progress on recommendation 26 led to Mr. Hayes’ recommendation the court find defendants have fully implemented that recommendation. See id. at 19 (in the 27 fourth re-audit, 85% of facilities were compliant with recommendation 26; by the fifth re-audit, a 96% compliance rate was achieved). 28 1 B. Specific Objections 2 1. Recommendation 10 3 As noted above, recommendation 10 is a requirement that each facility’s SPRFIT “audit 4 the quality of completed SREs on a monthly basis.” ECF No. 6846 at 32. A subset of this 5 recommendation is the requirement that SREs12 be completed as required by the Program Guide. 6 See, e.g., ECF No. 5259 at 12 (listing Program Guide requirements for preparation of SREs and 7 initial findings as to whether these requirements were met). Over time, the focus of 8 implementation of recommendation 10 has narrowed from extensive findings of poor quality 9 SREs, see, e.g., id., to assessment of whether inmates who express suicidal ideation and/or engage 10 in self-injurious behavior and therefore need SREs, are adequately identified through the CDCR 11 referral process and the necessary SREs completed. See, e.g., ECF Nos 5993-1 at 17, 6879-1 at 12 21-22, 7636-1 at 35; see also ECF No. 7646 at 5 (describing Recommendation 10 as “SRASHEs 13 and Referrals’). 14 With this narrowed focus, the court observes first that nothing in the Hayes Report 15 suggests defendants only review “emergent” referrals for compliance with this recommendation. 16 Mr. Hayes does report that “while [he] has historically reviewed both emergency mental health 17 referrals, as well as urgent mental health referrals . . . CDCR has historically only reviewed 18 emergency mental health referrals to assess timely compliance with the required completion of 19 Suicide Risk Assessment and Self-Harm Evaluations (SRASHEs).” ECF No. 7636-1 at 34 20 (emphasis in original). He finds currently: 21 continuing problems with the required completion of SRASHEs following either emergent or urgent mental health referral for SI 22 [suicidal ideation] or SIB [self-injurious behavior]. Most of these failures were related to cases involving urgent mental health referrals. 23 There were also cases in which SRASHEs were not completed when SI 24 ///// 25 ///// 26 27 12 SREs and SRASHEs apparently are used interchangeably. 28 1 and/or SIB was identified during routine clinical contacts or following undocumented referrals in which urgent/emergent referrals were not 2 generated. 3 Id. at 35. Nothing in the current findings contradicts defendants’ assertion that they have built in 4 mechanisms in an effort to ensure that referrals are properly classified so that necessary 5 SRASHEs are timely completed. 6 Of greatest significance for purposes of this order, Mr. Hayes reports that only 61 percent 7 of CDCR institutions achieved compliance more than 90 percent of the time -- below the 8 operative 100 percent compliance standard -- with the requirements for timely completion of 9 SRASHEs when inmate suicidal ideation or self-injurious behavior is identified “during routine 10 clinical contacts or following undocumented referrals in which urgent/emergent referrals were not 11 generated.” Id. at 35. Defendants’ objections suggest they are taking some steps necessary to 12 ensuring full compliance with the requirement to complete necessary SREs, namely, auditing 13 their referral process to ensure referrals that include reports of suicidal ideation and/or self- 14 injurious behavior, lead to timely preparation of SREs. The important focus here, however, is on 15 whether necessary suicide risk evaluations are timely completed. That work remains. The court 16 overrules this objection. 17 2. Recommendation 21 18 Defendants’ objections concerning recommendation 21 border on the frivolous, which is 19 particularly troubling given the lengthy and problematic history of observation of suicidal patients 20 in MHCB units. See id. at 20 (previous findings of inadequacies in this area included falsification 21 of observation forms). Recommendation 21 requires defendants to enforce the Program Guide 22 requirements for (1) observation at staggered intervals not exceeding every 15 minutes of inmates 23 on suicide precaution; and (2) continuous observation for inmates on suicide watch. See ECF 24 No. 6846 at 34. Defendants use their Reporting Tool to aid with auditing compliance; Mr. Hayes 25 reports the Reporting Tool is “very accurate.” See ECF No. 7636-1 at 7, 22.13 An auditing tool, 26 27 13 The Reporting Tool was developed in February 2022, substantially more than halfway through the period covered by Mr. Hayes’ fifth re-audit. See id. at 2, 22. 28 1 however accurate and helpful, is not a substitute for full implementation of these critically 2 important requirements. The findings from six institutions – California Men’s Colony, California 3 State Prison/Los Angeles County, High Desert State Prison, Kern Valley State Prison, Pelican 4 Bay State Prison, and San Quentin -- regarding transitioning MHCB inmates on suicide 5 precaution to 30-minute observation periods after 24 hours, despite ongoing suicidal ideation, is 6 deeply concerning. See id. at 22-25. This is not a situation in which reasonable minds could 7 differ over whether defendants are in compliance with the court’s order to fully implement this 8 recommendation. They are not. The court overrules defendants’ objections regarding 9 recommendation 21. 10 3. Recommendations 7 and 8 11 Defendants’ objections to Mr. Hayes’ findings concerning recommendations 7 and 8 are 12 overruled. Even a cursory reading of relevant sections of the Hayes Report shows that the 13 findings as to recommendations 7 and 8 are based on problems identified at five of the twenty- 14 three facilities Mr. Hayes visited during his fifth round re-audit. See id. at 12-14. His findings do 15 not describe “isolated” incidents at a few institutions and they are more than sufficient to support 16 his conclusion that defendants have not yet fully implemented recommendations 7 and 8. 17 4. Suicide Case Reviews 18 This objection is illustrative of a delay tactic defendants pursue to their own detriment as 19 well as that of the plaintiff class. Defendants naturally do not argue with Mr. Hayes’ 20 characterization of defendants’ suicide case reviews as “very comprehensive” and “[a] 21 considerable strength of the CDCR suicide prevention program.” Id. at 9, 55. Nor do they 22 dispute Mr. Hayes’ finding that the suicide case reviews repeatedly identify the same deficiencies. 23 Instead, they attempt to argue, without evidentiary support, that the repetitive nature of the 24 deficiencies identifies only weaknesses in individual clinical judgments and not systemic issues in 25 suicide prevention. 26 The Program Guide includes as part of the suicide death review process the preparation of 27 quality improvement plans (QIPs), which defendants are to complete before suicide cases are 28 closed. See ECF No. 7333-1 at 192. Defendants recently have acknowledged that the QIP 1 component of the suicide death review process has lagged. See ECF No. 7574 at, e.g., 7-8. 2 Mr. Hayes’ finding is entirely consistent with that acknowledgment and points to the urgent need 3 for defendants to follow through, in a comprehensive and substantive way, on their commitment 4 to enhancing the QIP part of the suicide death review process. See id. at 8. The court overrules 5 this objection. 6 C. Summary 7 In sum, defendants do not dispute they have failed to implement fifteen of the court- 8 ordered recommendations sufficiently for Mr. Hayes to report full implementation. Defendants’ 9 positions are not proper objections to the current findings, which are grounded in well-established 10 clear principles embodied in prior court orders. The court cannot countenance further disregard 11 of the settled law in this action, particularly regarding a component of the remedy for which the 12 stakes are so high. Defendants do not provide any basis for the court to reject either the Special 13 Master’s Report or Mr. Hayes’ Fifth Re-Audit Report. Both will be adopted in full. 14 IV. CONCLUSION 15 For the reasons explained in this order, the findings in the Special Master’s Report on His 16 Expert’s Fifth Re-Audit and Update of Suicide Prevention Practices in the Prisons of the 17 California Department of Corrections and Rehabilitation (CDCR) and Baseline Audit of Suicide 18 Prevention Practices in the Psychiatric Inpatient Programs (PIPs) prepared by the Special 19 Master’s suicide prevention expert Lindsay M. Hayes, M.S. (hereafter Report), ECF No. 7636, 20 and those in Mr. Hayes’ Report, ECF No. 7636-1, are adopted in full. The Special Master’s first 21 and second requests will be granted. The court will defer resolution of the third request pending 22 review of the report from defendants required by this order and discussion at the status conference 23 to be held later in January 2023. 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. The findings in the Special Master’s October 24, 2022 Report on His Expert’s Fifth Re- 26 Audit and Update of Suicide Prevention Practices in the Prisons of the California Department of 27 Corrections and Rehabilitation (CDCR) and Baseline Audit of Suicide Prevention Practices in the 28 Psychiatric Inpatient Programs (PIPs) ECF No. 7636, are ADOPTED in full. ] 2. The findings in Mr. Hayes’ Fifth Re-Audit and Update of Suicide Prevention Practices 2 || 1n the Prisons of the California Department of Corrections and Rehabilitation (CDCR) and 3 || Baseline Audit of Suicide Prevention Practices in the Psychiatric Inpatient Programs (PIPs), ECF 4 | No. 7636-1, are ADOPTED in full. 5 3. The Special Master’s first and second requests are GRANTED. 6 4. The court’s ruling on the Special Master’s third request is DEFERRED pending further 7 || review and discussion with counsel at the status conference set in this order. 8 5. The court finds defendants in compliance with the implementation of 9 | Recommendations 1, 6 and 26. 10 6. Within fourteen days from the date of this order defendants shall file a brief report 11 || with focused updates on the status of all fifteen outstanding court-ordered suicide prevention 12 || recommendations as of the end of calendar year 2022. 13 7. Defendants shall implement the sixteen recommendations for development of 14 || corrective action plans in CDCR’s PIPS set out at pages 29-31 of the Special Master’s Report, 15 || ECF No. 7636, and pages 70-71 of the Hayes Report, ECF No. 7636-1. The parties shall meet 16 || and confer and, within thirty days from the date of this order, file a proposed joint schedule for 17 || compliance with this order. 18 8. A status conference is set for Friday, February 10, 2023 at 10 a.m. The parties shall 19 || be prepared to address further proceedings with respect to the outstanding suicide prevention 20 || recommendations at the status conference. 21 SO ORDERED. 22 | DATED: January 5, 2023. 23 24 l ti / ¢ q_/ 35 CHIEF NT] ED STATES DISTRICT JUDGE 26 27 28 22