Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 1 of 12
CLOSED,MEDTERM,PRVADR,REFSET−NC
U.S. District Court California Northern District (San Jose) CIVIL DOCKET FOR CASE #: 5:16−cv−06594−LHK

David Cole et al v. County of Santa Clara et al Assigned to: Hon. Lucy H. Koh Referred to: Magistrate Judge Nathanael M. Cousins Cause: 42:12101 Americans w/ Disabilities Act (ADA)
Plaintiff

Date Filed: 11/14/2016 Date Terminated: 03/21/2019 Jury Demand: Both Nature of Suit: 446 American with Disabilities − Other Jurisdiction: Federal Question

David Cole

represented by Mary−Lee Kimber Smith Disability RIghts Advocates 2001 Center Street Fourth Floor Berkeley, CA 94704 510−665−8644 x 114 Fax: 510−665−8511 Email: mkimber@dralegal.org TERMINATED: 05/14/2018 LEAD ATTORNEY

Gay Crosthwait Grunfeld Rosen Bien Galvan and Grunfeld LLP 101 Mission Street Sixth Floor San Francisco, CA 94105−1738 415−433−6830 Fax: 415−433−7104 Email: ggrunfeld@rbgg.com ATTORNEY TO BE NOTICED

Kara Jane Janssen Rosen Bien Galvan & Grunfeld 101 Mission Street Sixth Floor San Francisco, CA 94105−1738 United Sta (415) 433−6830 Fax: (415) 433−7104 Email: KJanssen@rbgg.com ATTORNEY TO BE NOTICED

Lisa Adrienne Ells Rosen Bien Galvan & Grunfeld LLP 101 Mission Street, 6th Floor San Francisco, CA 94105−1738 415−433−6830 Fax: 415−433−7104 Email: lells@rbgg.com ATTORNEY TO BE NOTICED

Marc J. Shinn−Krantz Rosen Bien Galvan & Grunfeld, LLP Sixth Floor 101 Mission Street Sixth Floor San Francisco, CA 94105−1738 (415) 433−6830 Fax: (415) 433−7104 Email: MShinn−Krantz@rbgg.com

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 2 of 12

ATTORNEY TO BE NOTICED

Michelle Brooke Iorio Disability Rights Advocates 2001 Center Street Fourth Floor Berkeley, CA 94704 United Sta 510−665−8644 Email: miorio@dralegal.org ATTORNEY TO BE NOTICED

Plaintiff Leroy Benjamin

represented by Mary−Lee Kimber Smith (See above for address) TERMINATED: 05/14/2018 LEAD ATTORNEY

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Kara Jane Janssen (See above for address) ATTORNEY TO BE NOTICED

Lisa Adrienne Ells (See above for address) ATTORNEY TO BE NOTICED

Marc J. Shinn−Krantz (See above for address) ATTORNEY TO BE NOTICED

Michelle Brooke Iorio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Erasmo Flores , Jr.

represented by Mary−Lee Kimber Smith (See above for address) TERMINATED: 05/14/2018 LEAD ATTORNEY

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Kara Jane Janssen (See above for address) ATTORNEY TO BE NOTICED

Lisa Adrienne Ells (See above for address) ATTORNEY TO BE NOTICED

Marc J. Shinn−Krantz (See above for address) ATTORNEY TO BE NOTICED

Michelle Brooke Iorio (See above for address) ATTORNEY TO BE NOTICED

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 3 of 12

Plaintiff Robert Phillips
Plaintiff Brandon Williams

represented by Mary−Lee Kimber Smith (See above for address) TERMINATED: 05/14/2018 LEAD ATTORNEY
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kara Jane Janssen (See above for address) ATTORNEY TO BE NOTICED
Lisa Adrienne Ells (See above for address) ATTORNEY TO BE NOTICED
Marc J. Shinn−Krantz (See above for address) ATTORNEY TO BE NOTICED
Michelle Brooke Iorio (See above for address) ATTORNEY TO BE NOTICED
represented by Mary−Lee Kimber Smith (See above for address) TERMINATED: 05/14/2018 LEAD ATTORNEY
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Kara Jane Janssen (See above for address) ATTORNEY TO BE NOTICED
Lisa Adrienne Ells (See above for address) ATTORNEY TO BE NOTICED
Marc J. Shinn−Krantz (See above for address) ATTORNEY TO BE NOTICED
Michelle Brooke Iorio (See above for address) ATTORNEY TO BE NOTICED

V. Defendant County of Santa Clara

represented by Aryn Paige Harris Office of County Cousel, Santa Clara 70 West Hedding Street 9th Floor San Jose, CA 95112 408− 299−5900 Fax: 408−292−7240

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 4 of 12
Email: aryn.harris@cco.sccgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Douglas Michael Press Office of the County Counsel 70 W. Hedding Street, East Wing, 9th Floor San Jose, CA 95110 (408) 299−5900 Fax: (408) 292−7240 Email: douglas.press@cco.sccgov.org ATTORNEY TO BE NOTICED
Emily L Fedman Office of the County Counsel 70 W. Hedding Street, East Wing, 9th Floor San Jose, CA 95110 408−299−5987 Fax: 408−292−7240 Email: emily.fedman@cco.sccgov.org ATTORNEY TO BE NOTICED
Defendant
County of Santa Clara Department of Correction
Defendant
County of Santa Clara Office of the Sheriff

Date Filed 11/14/2016 11/14/2016 11/14/2016
11/14/2016 11/18/2016 11/18/2016

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400, receipt number 0971−10929485.). Filed byErasmo Flores, Jr, Leroy Benjamin, David Cole, Robert Phillips, Brandon Williams. (Attachments: # 1 Civil Cover Sheet)(Smith, Mary−Lee) (Filed on 11/14/2016) (Entered: 11/14/2016)
2 Proposed Summons. (Smith, Mary−Lee) (Filed on 11/14/2016) (Entered: 11/14/2016)
3 Case assigned to Magistrate Judge Howard R. Lloyd.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 11/28/2016. (bwS, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/15/2016)
7 Initial Case Management Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act. (cv, COURT STAFF) (Filed on 11/14/2016) (Entered: 11/25/2016)
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by David Cole.. (Janssen, Kara) (Filed on 11/18/2016) (Entered: 11/18/2016)
5 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 5 of 12

11/21/2016
11/25/2016 12/02/2016 12/05/2016 12/21/2016 12/21/2016 12/21/2016
12/28/2016 01/05/2017 01/05/2017 01/20/2017 01/23/2017 02/10/2017

District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE−NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (pmc, COURT STAFF) (Filed on 11/18/2016) (Entered: 11/18/2016)
6 ORDER REASSIGNING CASE. Case reassigned to Hon. Lucy H. Koh for all further proceedings. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Magistrate Judge Howard R. Lloyd remains as referral judge assigned to the case. Reassignment Order signed by Executive Committee on 11/21/2016. (Attachments: # 1 Notice of Eligibility for Video Recording)(bwS, COURT STAFF) (Filed on 11/21/2016) (Entered: 11/21/2016)
8 Summons Issued as to County of Santa Clara, County of Santa Clara Department of Correction, County of Santa Clara Office of the Sheriff. (cv, COURT STAFF) (Filed on 11/25/2016) (Entered: 11/25/2016)
9 SUMMONS Returned Executed by David Cole. All Defendants. (Janssen, Kara) (Filed on 12/2/2016) (Entered: 12/02/2016)
10 Certificate of Interested Entities by David Cole (Janssen, Kara) (Filed on 12/5/2016) (Entered: 12/05/2016)
11 STIPULATION TO EXTEND TIME TO RESPOND TO THE COMPLAINT filed by County of Santa Clara. (Harris, Aryn) (Filed on 12/21/2016) (Entered: 12/21/2016)
12 STIPULATION WITH PROPOSED ORDER FOR DISCLOSURE OF CONFIDENTIAL INMATE MEDICAL RECORDS SUBJECT TO PROTECTIVE ORDER filed by County of Santa Clara. (Harris, Aryn) (Filed on 12/21/2016) (Entered: 12/21/2016)
13 ***POSTED IN ERROR*** STIPULATION − STIPULATED PROTECTIVE ORDER filed by County of Santa Clara. (Harris, Aryn) (Filed on 12/21/2016) Modified text on 12/28/2016 (dhmS, COURT STAFF). SEE DOCUMENT NUMBER 14 FOR CORRECTION. Modified on 12/29/2016 (srnS, COURT STAFF). (Entered: 12/21/2016)
14 STIPULATION WITH PROPOSED ORDER CORRECTION OF DOCKET # 13 filed by County of Santa Clara. (Harris, Aryn) (Filed on 12/28/2016) (Entered: 12/28/2016)
15 STIPULATION AND ORDER re 12 for Disclosure of Confidential Inmate Medical Records Subject to Protective Order. Signed by Magistrate Judge Howard R. Lloyd. (hrllc2, COURT STAFF) (Filed on 1/5/2017) (Entered: 01/05/2017)
16 STIPULATED PROTECTIVE ORDER re 14 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd. (hrllc2, COURT STAFF) (Filed on 1/5/2017) (Entered: 01/05/2017)
17 ORDER REASSIGNING CASE. Case reassigned to Magistrate Judge Susan van Keulen for all further discovery proceedings. Magistrate Judge Howard R. Lloyd no longer assigned to the case. Signed by Executive Committee on 1/20/2017. (ofr, COURT STAFF) (Filed on 1/20/2017) (Entered: 01/20/2017)
18 ANSWER to Complaint with JURY DEMAND byCounty of Santa Clara. (Harris, Aryn) (Filed on 1/23/2017) (Entered: 01/23/2017)
19 ORDER OF RECUSAL. Signed by Magistrate Judge Susan van Keulen on 2/10/2017. (svklc1, COURT STAFF) (Filed on 2/10/2017) (Entered: 02/10/2017)

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 6 of 12

02/13/2017 04/10/2017 04/13/2017 04/24/2017 04/25/2017 05/04/2017 06/16/2017
08/04/2017 08/17/2017
09/21/2017 09/25/2017
11/06/2017

20 CLERK'S NOTICE: Pursuant to Order of Recusal Magistrate Judge Nathanael M. Cousins randomly assigned to case as referral judge. Magistrate Judge Susan Van Keulen no longer assigned to case. (Please note this is a text−only entry generated by the court. There is no document associated with this entry.) (bwS, COURT STAFF) (Filed on 2/13/2017) (Entered: 02/13/2017)
21 Notice of Need for Mediation by Mary−Lee Kimber Smith (Smith, Mary−Lee) (Filed on 4/10/2017) (Entered: 04/10/2017)
CASE REFERRED to Mediation 21 . The deadline to complete the mediation is July 10, 2017. (af, COURT STAFF) (Filed on 4/13/2017) (Entered: 04/13/2017)
22 STIPULATION WITH PROPOSED ORDER Regarding Assignment to Magistrate for Settlement Purposes filed by David Cole. (Janssen, Kara) (Filed on 4/24/2017) (Entered: 04/24/2017)
23 ORDER by Judge Lucy H. Koh Granting 22 Stipulation. (lhklc1, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
24 NOTICE AND ORDER SETTING Settlement Conference for 8/17/2017 09:30 AM in Courtroom 7, 4th Floor, San Jose. Signed by Judge Nathanael Cousins on 5/4/2017. (Attachments: # 1 Standing Order)(lmh, COURT STAFF) (Filed on 5/4/2017) (Entered: 05/04/2017)
25 REMARK: The Court will be visiting Santa Clara County main jail and Elmwood on June 23, 9:00 AM; If counsel for the parties (limited to two attoneys per side) would like to join for the portion of tour of facilities relevant to the trial in this case, they must alert Courtroom Deputy via email at lili_harrell@cand.uscourts.gov by noon June 20; Counsel must also alert Litigation Coordinator at SVSP and return forms by that same deadline. (lmh, COURT STAFF) (Filed on 6/16/2017). (Entered: 06/16/2017)
26 ORDER GRANTING REQUEST FOR NAMED PLAINTIFFS TO BE EXCUSED FROM PERSONALLY APPEARING AT SETTLEMENT CONFERENCE. Signed by Judge Nathanael Cousins on 8/4/2017. (lmh, COURT STAFF) (Filed on 8/4/2017) (Entered: 08/04/2017)
27 Minute Entry for proceedings held before Magistrate Judge Nathanael M. Cousins. Settlement Conference held on 8/17/2017: discussions continue; Further Settlement Conference set for 9/25/2017 09:30 AM in Courtroom 7, 4th Floor; Parties to jointly submit proposed agenda by 9/22 noon. Plaintiffs' Attorneys: Mary−Lee Kimber Smith, Kara Janssen, Lisa Ellis. Defendants' Attorney: Aryn Harris. (FTR Time Not reported.) This is a text−only Minute Entry. (lmh, COURT STAFF) (Date Filed: 8/17/2017) (Entered: 08/17/2017)
28 CLERK'S NOTICE RESETTING Settlement Conference to 10:30 AM on 9/25/2017 before Magistrate Judge Cousins in Courtroom 7, 4th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Filed on 9/21/2017) (Entered: 09/21/2017)
29 Minute Entry for proceedings held before Magistrate Judge Nathanael M. Cousins. Further Settlement Conference held on 9/25/2017; discussion continue; Further Conference set for 11/6/2017 10:00 AM, with agenda to be submitted by 11/3. Plaintiffs' Attorneys: Mary−Lee Kimber Smith, Kara Janssen, Lisa Ellis. Defendants' Attorney: Aryn Harris. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 9/25/2017) (Entered: 09/26/2017)
30 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Settlement Conference held on 11/6/2017: discussions continue; Further Settlement Conference set for 11/27/2017 10:00 AM in Courtroom 7, 4th Floor.

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 7 of 12

11/27/2017
12/11/2017
01/04/2018 01/23/2018 01/23/2018 01/26/2018
02/06/2018 02/06/2018 02/08/2018

Plaintiffs' Attorneys: Mary−Lee Kimber Smith, Kara Janssen, Lisa Ellis. Defendants' Attorney: Aryn Harris. FTR Time: Not recorded. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 11/6/2017) (Entered: 11/06/2017)
31 Minute Entry for proceedings held before Magistrate Judge Nathanael M. Cousins: Settlement Conference held on 11/27/2017. Discussions continue. Further Settlement Conference set for 12/11/2017 at 10:00 AM in Courtroom 7, 4th Floor, San Jose before Magistrate Judge Nathanael Cousins. Court Reporter: Not Recorded. For Plaintiff(s): Kara Janssen. Also present: Lisa Ells. For Defendant(s): Aryn Harris. Also present: Troy Beliveau. (This is a text−only entry generated by the court. There is no document associated with this entry.) (ofr, COURT STAFF) (Date Filed: 11/27/2017) (Entered: 11/27/2017)
32 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 12/11/2017: Discussions continue; Further conference planned for 1/30/2018 10:00 AM; Joint settlement status report and agenda due to be submitted (not filed) 1/26. Plaintiffs' Attorneys: Kara Janssen, Lisa Ells, Michelle Lorio. Defendants' Attorney: Aryn Harris. (FTR Time: Not recorded.) (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 12/11/2017). (Entered: 12/11/2017)
33 CLERK'S NOTICE RESCHEDULING Further Settlement Conference for 1/26/2018 10:00 AM. Parties shall check in at Courtroom 7, 4th Floor, San Jose. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Filed on 1/4/2018) (Entered: 01/04/2018)
34 ADMINISTRATIVE MOTION Relief From General Order 56 to file Parties Joint Motion for Class Certification filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. Responses due by 1/29/2018. (Janssen, Kara) (Filed on 1/23/2018) (Entered: 01/23/2018)
35 Joint MOTION to Certify Class filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. Motion Hearing set for 5/10/2018 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 2/6/2018. Replies due by 2/13/2018. (Attachments: # 1 Joint Stipulation of Facts, # 2 Declaration of Lisa Ells, # 3 Proposed Order)(Janssen, Kara) (Filed on 1/23/2018) (Entered: 01/23/2018)
36 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 1/26/2018: Discussions continue; Further Conference set for 3/5/2018 10:00 AM in San Jose, Courtroom 7, 4th Floor. Plaintiffs' Attorneys: Kara Janssen, Lisa Ells. Defendants' Attorney: Aryn Harris. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 1/26/2018) (Entered: 01/29/2018)
37 Order by Judge Lucy H. Koh Granting 34 Administrative Motion for Relief from GO 56 to File Joint Motion for Class Certification.(lhklc1, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)
38 Order by Judge Lucy H. Koh Granting 35 Motion to Certify Class.(lhklc1, COURT STAFF) (Filed on 2/6/2018) (Entered: 02/06/2018)
39 **CLERK'S NOTICE SETTING INTIAL CASE MANAGEMENT CONFERENCE** Pursuant to this notice, an Initial CMC is set for 4/18/2018 at 2:00 PM in Courtroom 8, 4th Floor, San Jose. A Joint Case Management Conference

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 8 of 12

02/09/2018 02/28/2018 03/29/2018
04/10/2018 04/16/2018 04/27/2018
05/07/2018
05/14/2018 05/31/2018

Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). (This is a text−only entry generated by the court. There is no document associated with this entry.) (iym, COURT STAFF) (Filed on 2/8/2018) (Entered: 02/08/2018)
40 NOTICE of Appearance by Marc J Shinn−Krantz (Shinn−Krantz, Marc) (Filed on 2/9/2018) (Entered: 02/09/2018)
41 CLERK'S NOTICE CONTINUING Further Settlement Conference set for 3/29/2018 10:00 AM before Judge Cousins in San Jose, Courtroom 7, 4th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)
42 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 3/29/2018: Discussions continue; Further Conference scheduled for 4/27/2018 10:00 AM in San Jose, Courtroom 7, 4th Floor. Plaintiffs' Attorneys: Lisa Ells, Michele Lorio, Marc Shinn−Krantz. Defendants' Attorney: Aryn Harris. FTR Time: Not recorded. (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 3/29/2018) (Entered: 03/29/2018)
43 CASE MANAGEMENT STATEMENT Joint filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Shinn−Krantz, Marc) (Filed on 4/10/2018) (Entered: 04/10/2018)
44 **CLERK'S NOTICE REGARDING THE NEXT CASE MANAGEMENT CONFERENCE** Pursuant to this notice, the 4/18/2018 Initial CMC is HEREBY CONTINUED to 6/20/2018 at 2:00 PM in Courtroom 8, 4th Floor, San Jose. A Joint Case Management Conference Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). (This is a text−only entry generated by the court. There is no document associated with this entry.) (iym, COURT STAFF) (Filed on 4/16/2018) (Entered: 04/16/2018)
45 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 4/27/2018: Discussions continue; Further Conference set for 5/7/2018 10:00 AM in San Jose, Courtroom 5, 4th Floor. Plaintiffs' Attorneys: Lisa Ells, Michele Lorio, Marc Shinn−Krantz. Defendants' Attorney: Aryn Harris. (FTR Time: Not recorded.) (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 4/27/2018) (Entered: 04/27/2018)
46 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 5/7/2018: Discussion continue; Further Settlement Conference set for 5/31/2018 10:00 AM in San Jose, Courtroom 5, 4th Floor. Plaintiffs' Attorneys: Lisa Ells, Michele Lorio, Marc Shinn−Krantz. Defendants' Attorney: Aryn Harris. (FTR Time: Not recorded.) (This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 5/7/2018) (Entered: 05/08/2018)
47 NOTICE of Substitution of Counsel by Michelle Brooke Iorio (Iorio, Michelle) (Filed on 5/14/2018) (Entered: 05/14/2018)
48 Minute Entry for proceedings held before Judge Nathanael M. Cousins. Further Settlement Conference held on 5/31/2018: Further Settlement Conference set for 6/12/2018 10:00 AM in San Jose, Courtroom 5, 4th Floor. Plaintiffs' Attorneys: Lisa Ells, Michele Lorio, Marc Shinn−Krantz. Defendants' Attorney: Aryn Harris. (FTR: Not recorded)

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 9 of 12

06/01/2018 06/13/2018 06/20/2018 06/20/2018
06/20/2018 06/20/2018 06/20/2018 06/27/2018 07/11/2018 07/17/2018 07/17/2018
08/22/2018 08/23/2018 09/10/2018

(This is a text−only entry generated by the court. There is no document associated with this entry.) (lmh, COURT STAFF) (Date Filed: 5/31/2018) (Entered: 05/31/2018)
49 NOTICE of Appearance by Douglas Michael Press (Press, Douglas) (Filed on 6/1/2018) (Entered: 06/01/2018)
50 CASE MANAGEMENT STATEMENT Joint filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Shinn−Krantz, Marc) (Filed on 6/13/2018) (Entered: 06/13/2018)
51 NOTICE of Appearance by Emily L Fedman (Fedman, Emily) (Filed on 6/20/2018) (Entered: 06/20/2018)
52 Minute Entry for proceedings held before Hon. Lucy H. Koh: Initial Case Management Conference held on 6/20/2018 from 2:41 − 2:58 PM (17 minutes). A forthcoming Case Management Order will memorialize all relevant information, deadlines, and rulings from the Conference. A further Case Management Conference is set for 7/18/2018 at 2:00 PM in Courtroom 8, 4th Floor, San Jose. 7−days prior to the next CMC date, the parties shall file an updated Joint Case Management Statement, pursuant to Civil Local Rules 16−10(d). Court Reporter: Lee−Anne Shortridge. Courtroom Deputy: Irene Mason. For Plaintiff(s): Kara Jane Janssen and Michelle Brooke Iorio. For Defendant(s): Douglas Michael Press.
For transcript requests please see: http://www.cand.uscourts.gov/transcripts#ORDERING
(This is a text only Minute Entry; there is no document associated with this entry) (iym, COURT STAFF) (Date Filed: 6/20/2018) (Entered: 06/20/2018)
53 CASE MANAGEMENT ORDER. Signed by Judge Lucy H. Koh on 6/20/18. (lhklc1, COURT STAFF) (Filed on 6/20/2018) (Entered: 06/20/2018)
CASE REFERRED to Private Mediation for the attorney's fees issue with a deadline of 8/15/18. (iym, COURT STAFF) (Filed on 6/20/2018) (Entered: 06/21/2018)
Set/Reset Hearing pursuant to ECF No. 53 . Further Case Management Conference set for 7/18/2018 02:00 PM in San Jose, Courtroom 8, 4th Floor. (iym, COURT STAFF) (Filed on 6/20/2018) (Entered: 06/21/2018)
54 STATUS REPORT Joint Mediation Statement by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Janssen, Kara) (Filed on 6/27/2018) (Entered: 06/27/2018)
55 JOINT CASE MANAGEMENT STATEMENT filed by County of Santa Clara. (Press, Douglas) (Filed on 7/11/2018) (Entered: 07/11/2018)
56 STATUS REPORT by County of Santa Clara. (Press, Douglas) (Filed on 7/17/2018) (Entered: 07/17/2018)
57 **CLERK'S NOTICE REGARDING THE NEXT CASE MANAGEMENT CONFERENCE** Pursuant to this notice, the 7/18/2018 Further CMC is HEREBY CONTINUED to 9/26/2018 at 2:00 PM in Courtroom 8, 4th Floor, San Jose. A Joint Case Management Conference Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). (This is a text−only entry generated by the court. There is no document associated with this entry.) (iym, COURT STAFF) (Filed on 7/17/2018) (Entered: 07/17/2018)
58 STATUS REPORT Joint Mediation Status Report by County of Santa Clara. (Fedman, Emily) (Filed on 8/22/2018) (Entered: 08/22/2018)
59 ORDER GRANTING REQUEST TO CONTINUE DEADLINES 58 . Signed by Judge Lucy H. Koh on 8/23/18. (lhklc1, COURT STAFF) (Filed on 8/23/2018) (Entered: 08/23/2018)
60 STATUS REPORT Joint Status Report by County of Santa Clara. (Fedman, Emily) (Filed on 9/10/2018) (Entered: 09/10/2018)

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 10 of 12

09/19/2018 09/21/2018
10/22/2018 10/29/2018 10/29/2018 11/02/2018 11/13/2018
11/14/2018 11/15/2018
11/29/2018 12/06/2018

61 CASE MANAGEMENT STATEMENT Joint Statement filed by County of Santa Clara. (Fedman, Emily) (Filed on 9/19/2018) (Entered: 09/19/2018)
62 **CLERK'S NOTICE REGARDING THE NEXT CASE MANAGEMENT CONFERENCE** Pursuant to this notice, the 9/26/2018 Further CMC is HEREBY CONTINUED to 10/31/2018 at 2:00 PM in Courtroom 8, 4th Floor, San Jose. A Joint Case Management Conference Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 09/21/2018)
63 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Janssen, Kara) (Filed on 10/22/2018) (Entered: 10/22/2018)
64 ORDER GRANTING REQUEST TO CONTINUE DEADLINES AND CONTINUING CASE MANAGEMENT CONFERENCE. Signed by Judge Lucy H. Koh on 10/29/18. (lhklc1, COURT STAFF) (Filed on 10/29/2018) (Entered: 10/29/2018)
Set/Reset Hearing pursuant to ECF No. 64 . Further Case Management Conference set for 11/21/2018 02:00 PM in San Jose, Courtroom 8, 4th Floor. (iym, COURT STAFF) (Filed on 10/29/2018) (Entered: 10/29/2018)
65 NOTICE of Change of Address by Kara Jane Janssen Notice of Change of Address (Janssen, Kara) (Filed on 11/2/2018) (Entered: 11/02/2018)
66 Joint MOTION for Settlement for Preliminary Approval of Class Settlement filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. Motion Hearing set for 12/6/2018 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 11/27/2018. Replies due by 12/4/2018. (Attachments: # 1 Declaration Declaration of Lisa Ells in Support of Preliminary Approval, # 2 Proposed Order Granting Motion for Preliminary Approval of Class Settlement and Notice to the Class)(Ells, Lisa) (Filed on 11/13/2018) (Entered: 11/13/2018)
67 CASE MANAGEMENT STATEMENT Joint Case Management Statement filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Janssen, Kara) (Filed on 11/14/2018) (Entered: 11/14/2018)
68 **CLERK'S NOTICE REGARDING THE NEXT CASE MANAGEMENT CONFERENCE** Pursuant to this notice, the 11/21/2018 Further Case Management Conference is HEREBY CONTINUED to 12/6/2018 at 1:30 PM in Courtroom 8, 4th Floor, San Jose. A Joint Case Management Conference Statement is due 7−days before the scheduled conference date. See Civil L.R. 16−9 and Civil L.R. 16−10(a). (This is a text−only entry generated by the court. There is no document associated with this entry.) (iym, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
69 CASE MANAGEMENT STATEMENT filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Janssen, Kara) (Filed on 11/29/2018) (Entered: 11/29/2018)
70 Minute Entry for proceedings held before Hon. Lucy H. Koh: Motion for Settlement 66 held on 12/6/2018 from 1:42 − 2:18 PM (36 minutes). A forthcoming Order will memorialize all relevant information, deadlines, and rulings from the hearing. A Final Approval Hearing is set for March 21, 2019 at 1:30 PM in Courtroom 8, 4th Floor, San Jose. Court Reporter: Lee−Anne Shortridge. Courtroom Deputy: Irene Mason. For Plaintiff(s): Lisa Adrienne Ells and Michelle Brooke Iorio. For Defendant(s): Aryn Paige Harris and Douglas Michael Press.

For transcript requests please see: http://www.cand.uscourts.gov/transcripts#ORDERING

12/06/2018

(This is a text only Minute Entry; there is no document associated with this entry) (iymS, COURT STAFF) (Date Filed: 12/6/2018) (Entered: 12/06/2018)
71 Declaration of ARYN PAIGE HARRIS IN SUPPORT OF DEFENDANT COUNTY OF SANTA CLARA'S CLASS ACTION FAIRNESS ACT (CAFA) NOTICE filed

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 11 of 12

12/07/2018 12/07/2018 12/07/2018 01/14/2019
01/14/2019
01/29/2019 01/29/2019 01/29/2019 01/30/2019
03/14/2019 03/18/2019 03/19/2019 03/19/2019

byCounty of Santa Clara. (Harris, Aryn) (Filed on 12/6/2018) (Entered: 12/06/2018)
72 Declaration of Lisa Ells in Support of 66 Joint MOTION for Settlement for Preliminary Approval of Class Settlement filed byLeroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Related document(s) 66 ) (Ells, Lisa) (Filed on 12/7/2018) (Entered: 12/07/2018)
73 Order by Judge Lucy H. Koh Granting 66 Motion for Preliminary Approval of Class Settlement and Notice to the Class.(lhklc1, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
***Setting hearing: Final Approval Hearing set for 3/21/2019 at 1:30 PM in Courtroom 8, 4th Floor, San Jose before Hon. Lucy H. Koh. Pursuant to ECF No. 73 . (ofr, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/10/2018)
74 Joint MOTION for Settlement Final Approval of Class Settlement filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. Motion Hearing set for 3/21/2019 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 1/28/2019. Replies due by 3/14/2019. (Attachments: # 1 Declaration of Lisa Ells, # 2 Proposed Order)(Ells, Lisa) (Filed on 1/14/2019) (Entered: 01/14/2019)
75 MOTION for Attorney Fees filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. Motion Hearing set for 3/21/2019 01:30 PM in San Jose, Courtroom 8, 4th Floor before Judge Lucy H. Koh. Responses due by 1/28/2019. Replies due by 3/14/2019. (Attachments: # 1 Declaration of Lisa Ells, # 2 Declaration of Stuart Seaborn, # 3 Declaration of Richard Pearl, # 4 Proposed Order)(Ells, Lisa) (Filed on 1/14/2019) (Entered: 01/14/2019)
76 Statement re 73 Order on Motion for Settlement − Joint Update on Court's December 7, 2018 Order Re Class Action Notice by County of Santa Clara. (Harris, Aryn) (Filed on 1/29/2019) (Entered: 01/29/2019)
77 Declaration of Captain Amy Le Regarding Class Action Settlement Notice by County of Santa Clara. (Harris, Aryn) (Filed on 1/29/2019) Modified on 1/30/2019 incorrect event selected when posting document (dhmS, COURT STAFF). (Entered: 01/29/2019)
78 Declaration of Lieutenant Mark Padget Regarding Class Action Settlement Notice by County of Santa Clara. (Harris, Aryn) (Filed on 1/29/2019) Modified on 1/30/2019 incorrect event selected when posting document (dhmS, COURT STAFF). (Entered: 01/29/2019)
79 ORDER EXTENDING OBJECTION DEADLINE. Accordingly, the Court CONTINUES the deadline to file objections from February 28, 2019 to March 7, 2019. The parties have until February 8, 2019 to update all postings of the revised Notice to reflect this new March 7, 2019 objection deadline. Signed by Judge Lucy H. Koh on 1/30/19. (lhklc1, COURT STAFF) (Filed on 1/30/2019) Modified on 1/31/2019 (ecgS, COURT STAFF). (Entered: 01/30/2019)
80 REPLY (re 75 MOTION for Attorney Fees , 74 Joint MOTION for Settlement Final Approval of Class Settlement ) filed byLeroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Attachments: # 1 Declaration)(Iorio, Michelle) (Filed on 3/14/2019) (Entered: 03/14/2019)
81 ORDER TO FILE SUPPLEMENTAL INFORMATION IN SUPPORT OF MOTION FOR ATTORNEYS FEES. Signed by Judge Lucy H. Koh on 3/18/19. (lhklc1S, COURT STAFF) (Filed on 3/18/2019) (Entered: 03/18/2019)
82 ORDER TO FILE ADDITIONAL INFORMATION IN SUPPORT OF MOTION FOR ATTORNEYS FEES. Signed by Judge Lucy H. Koh on 3/19/19. (lhklc1S, COURT STAFF) (Filed on 3/19/2019) (Entered: 03/19/2019)
83 Supplemental Declaration of Lisa Ells in Support of 75 MOTION for Attorney Fees , 74 Joint MOTION for Settlement Final Approval of Class Settlement Supplemental Declaration of Lisa Ells in Support of Joint Motion for Final Approval of Class Settlement and Unopposed Motion for Award of Attorneys' Fees and Costs filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams.

Case: 5:16-cv-6594 As of: 04/09/2019 01:25 PM PDT 12 of 12

03/19/2019 03/21/2019
03/21/2019 03/21/2019

(Related document(s) 75 , 74 ) (Ells, Lisa) (Filed on 3/19/2019) Modified text on 3/20/2019 (dhmS, COURT STAFF). (Entered: 03/19/2019)
84 Supplemental Declaration of Stuart Seaborn in Support of 75 MOTION for Attorney Fees , 74 Joint MOTION for Settlement Final Approval of Class Settlement Supplemental Declaration of Stuart Seaborn in Support of Joint Motion for Final Approval of Class Settlement and Unopposed Motion for Attorneys' Fees and Costs filed by Leroy Benjamin, David Cole, Erasmo Flores, Jr, Robert Phillips, Brandon Williams. (Related document(s) 75 , 74 ) (Ells, Lisa) (Filed on 3/19/2019) Modified text on 3/20/2019 (dhmS, COURT STAFF). (Entered: 03/19/2019)
85 Minute Entry for proceedings held before Judge Lucy H. Koh: Final Approval Hearing and Motion for Attorney Fees re 73 , 74 , 75 held on March 21, 2019 from 1:32 − 1:55 PM (23 minutes). A forthcoming Order will memorialize all relevant information, deadlines, and rulings from the hearing.
Courtroom Deputy: Kassandra Dibble. Court Reporter: Irene Rodriguez.
Plaintiff Attorney: Lisa Ells, Michelle Brooke Iorio, and Stuart Seaborn. Defendant Attorney: Aryn Harris. Assistant Sheriff Eric Taylor appeared with Defense. (This is a text−only entry generated by the court. There is no document associated with this entry.) (kedS, COURT STAFF) (Date Filed: 3/21/2019). (Entered: 03/21/2019)
86 Order by Judge Lucy H. Koh Granting 74 Motion for Settlement; Granting 75 Motion for Attorneys' Fees. (lhklc1S, COURT STAFF) (Filed on 3/21/2019) (Entered: 03/21/2019)
87 JUDGMENT. Signed by Judge Lucy H. Koh on 3/21/19. (lhklc1S, COURT STAFF) (Filed on 3/21/2019) (Entered: 03/21/2019)

 
 Case 5:16-cv-06594-LHK Document 38 Filed 02/06/18 Page 1 of 2

[3210968.2]

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN JOSE DIVISION

11

12 DAVID COLE, LEROY BENJAMIN, ERASMO FLORES, JR., ROBERT
13 PHILLIPS and BRANDON WILLIAMS, on behalf of themselves and all others
14 similarly situated,

15

Plaintiffs,

Case No. 5:16-CV-06594-LHK
ORDER GRANTING JOINT MOTION FOR CLASS CERTIFICATION
Re: Dkt. No. 35

16

v.

17 COUNTY OF SANTA CLARA, a public entity, COUNTY OF SANTA CLARA
18 DEPARTMENT OF CORRECTION, a public entity under the control of the
19 County of Santa Clara, the COUNTY OF SANTA CLARA OFFICE OF THE
20 SHERIFF, a public entity under the control of the County of Santa Clara, and DOES 1
21 to 20, inclusive,

22

Defendants.

23

24

25

26

27

28

ORDER GRANTING JOINT MOTION FOR CLASS CERTIFICATION Case No. 16-CV-06594-LHK

Case 5:16-cv-06594-LHK Document 38 Filed 02/06/18 Page 2 of 2

[3210968.2]

1

ORDER

2

Having reviewed the parties’ Joint Motion for Class Certification under Rules 23(a)

3 and 23(b)(2) of the Federal Rules of Civil Procedure, ECF No. 35, the Court hereby

4 GRANTS the Joint Motion. Accordingly, IT IS HEREBY ORDERED as follows:

5

1. The numerosity, commonality, typicality, and adequacy requirements of

6

Rule 23(a) are satisfied.

7

2. The requirements under Rule 23(b)(2) are satisfied.

8

3. The action is hereby certified as a class action as to all claims and defenses at

9

issue in the Complaint pursuant to Rules 23(a) and 23(b)(2) of the Federal

10

Rules of Civil Procedure.

11

4. The Class is defined as: All individuals with mobility disabilities who are

12

now, or will be in the future, incarcerated in the Santa Clara County Jails,

13

which consist of three facilities: (1) the Santa Clara County Main Jail

14

Complex (“Main Jail”), consisting of Main Jail North and Main Jail South, in

15

San Jose, California; (2) facilities for male inmates at the Elmwood

16

Correctional Complex in Milpitas, California (“Elmwood”); and (3) the

17

Elmwood Complex Women’s Facility in Milpitas, California.

18

5. Plaintiffs Cole, Benjamin, Flores, Phillips, and Williams shall serve as

19

representatives of the Class.

20

6. Rosen Bien Galvan & Grunfeld LLP and Disability Rights Advocates are

21

appointed as class counsel to represent the interests of the plaintiff class.

22 IT IS SO ORDERED.

23

24 DATED: February 6, 2018 25 26

Hon. Lucy H. Koh United States District Judge

27

28

ORDER GRANTING JOINT MOTION FOR CLASS CERTIFICATION Case No. 16-CV-06594-LHK

 
 Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 4 of 64

1 MICHELLE IORIO – 298262

DISABILITY RIGHTS ADVOCATES

2 2001 Center Street, Fourth Floor

Berkeley, California 94704

3 Telephone: (510) 665-8644

Facsimile: (510) 665-8511

4 TTY:

(510) 665-8716

Email:

miorio@dralegal.org

5

GAY CROSTHWAIT GRUNFELD – 121944

6 LISA ELLS – 243657

KARA J. JANSSEN – 274762

7 MARC J. SHINN-KRANTZ – 312968

ROSEN BIEN

8 GALVAN & GRUNFELD LLP

101 Mission Street, Sixth Floor

9 San Francisco, California 94105-1738

Telephone: (415) 433-6830

10 Facsimile: (415) 433-7104

Email:

lells@rbgg.com

11

Attorneys for Plaintiffs

12

JAMES R. WILLIAMS – 271253 County Counsel
DOUGLAS M. PRESS – 168740 Assistant County Counsel
ARYN PAIGE HARRIS – 208590 Deputy County Counsel
EMILY L. FELDMAN – 271200 Deputy County Counsel
OFFICE OF THE COUNTY COUNSEL 70 West Hedding Street East Wing, Ninth Floor San Jose, California 95110-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240
Attorneys for Defendants

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION

15

16 DAVID COLE, LEROY BENJAMIN, ERASMO FLORES, JR., ROBERT
17 PHILLIPS and BRANDON WILLIAMS, on behalf of themselves and all others
18 similarly situated,

Case No. 5:16-cv-06594-LHK CLASS ACTION [PROPOSED] CONSENT DECREE

19

Plaintiffs,

Judge: Hon. Lucy H. Koh

20

v.

21 COUNTY OF SANTA CLARA, a public entity, COUNTY OF SANTA CLARA
22 DEPARTMENT OF CORRECTION, a public entity under the control of the
23 County of Santa Clara, the COUNTY OF SANTA CLARA OFFICE OF THE
24 SHERIFF, a public entity under the control of the County of Santa Clara, and DOES 1
25 to 20, inclusive,

26

Defendants.

27

28

[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 5 of 64

1

This Consent Decree is made and entered into by and through Plaintiffs David Cole,

2 Leroy Benjamin, Brandon Williams, Robert Phillips, and Erasmo Flores, Jr., individually

3 and on behalf of the Plaintiff Class (as defined below) (collectively, “Plaintiffs”); and 4 Defendant County of Santa Clara.1 Hereinafter, Plaintiffs and Defendant are referred to

5 collectively as “the Parties.” This Consent Decree operates in conjunction with the related

6 Mobility Disability Remedial Plan (“Remedial Plan”), attached hereto as Exhibit A, that is

7 hereby fully incorporated into this Consent Decree by reference herein.

8 I. Recitals

9

A. WHEREAS, after a series of arms-length settlement discussions, including

10

significant exchanges of information and multiple proposals and

11

counterproposals, as well as consideration of the risks, possible delays, and

12

expense likely to result from prolonged litigation, the Parties have reached

13

agreement on the terms of a proposed class settlement.

14

B. WHEREAS, this Consent Decree resolves the lawsuit filed on November 14,

15

2016, entitled, Cole v. County of Santa Clara, United States District Court,

16

Northern District of California, Case Number 3:16-cv-06594 LHK

17

(hereinafter, “Action”) alleging that Defendant has discriminated against

18

individuals with mobility disabilities incarcerated in Santa Clara County's

19

(“the County”) Main Jail North, Main Jail South, and Elmwood Correctional

20

Facility (collectively, “the Jails”) in violation of the Americans with

21

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; Section 504 of the

22

Rehabilitation Act (“Rehabilitation Act”); 29 U.S.C. § 794; and California

23

Government Code Section 11135 (“Section 11135”) (collectively, “State and

24

Federal Disability Laws”). Defendant denies all of the allegations against it.

25

26

27

1 Defendant here was erroneously sued as Defendant County of Santa Clara, the Santa Clara County Department of Correction, and the Santa Clara County Sheriff’s Office.

28

1
[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

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C. WHEREAS, Defendant reports that since the Parties began negotiations

2

related to this lawsuit in January 2015, Defendant has already taken

3

significant steps towards remediation, including but not limited to:

4

1. Budgetary allocation of over $100 million dollars to ADA jail

5

improvements (not including the planned New Jail facility, which the

6

County plans to build on the current Main Jail South location);

7

2. The completion of a number of other ADA improvements, including:

8

a. Construction of a number of ADA-accessible cells, housing

9

units, restrooms, showers, and countertops, among other

10

improvements;

11

b. Modification of the booking area and process to better

12

accommodate ADA inmates;

13

c. The use of a screening tool to identify and assess inmates’

14

Mobility Disabilities upon intake;

15

3. The County’s ongoing review and revision, as needed, of all Jail

16

policies, procedures, Post Orders, and forms to address ADA

17

compliance issues;

18

4. Establishment of an ADA Coordinator and ADA Unit at an ongoing

19

annual cost of $1,083,000;

20

5. Procurement of an ADA electronic tracking system costing $283,000;

21

6. Establishment of an electronic ADA Grievance System.

22

Plaintiffs have not confirmed these representations and maintain that

23

Defendant is not currently in compliance with the relevant disability access

24

laws.

25

D. WHEREAS, through this Consent Decree, Defendant agrees to implement

26

the measures set forth in the Remedial Plan (Exhibit A), subject to

27

monitoring and, if necessary, enforcement by this Court as set forth in this

28

Consent Decree.

2
[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

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1

E. WHEREAS, by entry into this Consent Decree, the Parties intend to, and

2

hereby do, resolve all claims that were actually, or could have been, raised in

3

the Action by Plaintiffs and the Plaintiff Class. The Parties believe this

4

Consent Decree is fair, reasonable, and adequate to protect the interests of all

5

Parties.

6

F. WHEREAS, the Parties stipulate that this Consent Decree complies in all

7

respects with the provisions of 18 U.S.C. § 3626(a). The Parties further

8

stipulate and agree, and the Court finds, that the prospective relief in this

9

Consent Decree is narrowly drawn, extends no further than necessary to

10

correct the violations of federal rights agreed to by the parties, is the least

11

intrusive means necessary to correct those violations, and will not have an

12

adverse impact on public safety or the operation of a criminal justice system.

13 II. Definitions

14

The following definitions will apply to the terms of this Consent Decree and the

15 Remedial Plan (Exhibit A). The following definitions are intended to be interpreted

16 consistent with State and Federal Disability Laws. Unless explicitly stated to the contrary,

17 any term not expressly defined in this Section or elsewhere in this Consent Decree or

18 Remedial Plan that has an expressly defined meaning under State and Federal Disability

19 Laws, shall have the meaning ascribed to it by current statute.

20

This Remedial Plan uses the phrase, “Reasonable Modifications,” pursuant to 28

21 C.F.R. § 35.130(b)(7), the Department of Justice regulations implementing Title II of the

22 ADA; while the phrase, “reasonable accommodation,” is primarily in Title I of the ADA,

23 see 42 U.S.C § 12111. The terms are frequently used interchangeably by the courts.

24

All other terms shall be interpreted according to their plain and ordinary meaning:

25

A. “ADA Accessible” means and refers to a facility, or any portion thereof,

26

which meets the following standards: the current edition, as of the

27

commencement of physical construction or alterations, of the California

28

Building Code, Title 24, Part 3 of the California Code of Regulations; or, the

3
[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 8 of 64

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2010 Americans with Disabilities Act Standards for Accessible Design

2

(“2010 ADA Standards”), which consist of the Title II regulations at 28

3

C.F.R. part 35.151 and the 2004 ADA Accessibility Guidelines (“ADAAG”)

4

at 36 C.F.R. part 1191, appendices B and D (hereinafter collectively,

5

“Accessibility Standards”). In the event of conflict between the standards,

6

Defendant will use the standard which provides the greater level of access.

7

B. “ADA Tracking System” means a computerized, networked, real-time

8

tracking system to enable Defendant to document and internally share

9

information regarding inmates with a Mobility Disability.

10

C. “Jails or Jail” means the jails operated by the Santa Clara County

11

Department of Correction/Sheriff’s Office Custody Division during the Term

12

of the Consent Decree; and shall include the Main Jail Facility (consisting of

13

Main Jail North and Main Jail South, collectively, “Main Jail”); and the

14

Elmwood Correctional Facility, which includes the Correctional Center for

15

Women or CCW (collectively, “Elmwood”); and the proposed New Jail.

16

D. “The County” means Santa Clara County, the Santa Clara County

17

Department of Correction, and the Santa Clara County Sheriff’s Office, and

18

the agents and employees of the Department of Correction, the Sheriff’s

19

Office, and the County agents and employees who provide health care to

20

inmates.

21

E. The following terms govern monitoring:

22

1. “Substantial Compliance” shall be interpreted to be consistent with

23

Ninth Circuit law defining “substantial compliance” in the context of

24

implementing consent decrees and similar court-supervised

25

settlements; as such, substantial compliance will mean compliance

26

with the essential requirements of the Remedial Plan that satisfies the

27

Remedial Plan’s overall purposes and objectives and adherence to the

28

provisions of the Remedial Plan in all material respects, recognizing

4
[PROPOSED] CONSENT DECREE

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1

that perfection is not required. Under Ninth Circuit law, non-systemic

2

or unintentional deviations that are so minor or trivial as to not

3

substantially defeat the object of the Remedial Plan shall not prevent a

4

finding of substantial compliance.

5

2. “Unratable-In Progress” shall mean that Defendant has identified, and

6

the applicable monitor agrees, that remediation efforts concerning

7

certain material provisions of the Remedial Plan are not yet complete.

8

3. “Non-Compliance” shall mean that Defendant has not met most of the

9

material components of the relevant provision of the Remedial Plan.

10

F. “Adult Custody Health Services Staff” includes all County employees who

11

work in the Jails for Adult Custody Health Services and who have more than

12

incidental contact with inmates.

13

G. “Custody Staff” includes all County employees who work in the Jails for the

14

Custody Bureau, including correctional officers/deputies, who have more

15

than incidental contact with inmates. This does not include County

16

employees whose duties relate solely to facility maintenance (i.e.,

17

electricians, janitors, food service staff).

18

H. “Days” refers to calendar days unless otherwise specified.

19

I. “Describe” means to provide a clear and detailed description of something

20

done, experienced, seen, or heard.

21

J. “Document,” when used in this Consent Decree as a verb, means completing

22

a record of information either in hard copy or electronic format.

23

K. “Effective Date” means the date the Court grants approval of this Consent

24

Decree.

25

L. “Execution Date” means the date the Parties execute this Consent Decree.

26

M. To “implement” a policy means that the policy has been drafted and

27

distributed to all staff responsible for following or applying the policy; and,

28

if expressly required under this Consent Decree, all relevant staff have been

5
[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 10 of 64

1

trained on the policy; compliance with the policy is monitored and tracked, if

2

practical, to assure the policy is consistently applied; and the County will

3

adopt corrective action measures to address any lapses in application of the

4

policy.

5

N. “Include” or “including” means “include, but not limited to” or “including,

6

but not limited to.”

7

O. “Levels” means an inmate’s classification level. The County assigns inmates

8

security levels 1-4. Level 1 is the lowest level of security and Level 4 is the

9

highest. The County may adopt a high, medium, minimum security

10

classification model. In the event this occurs, the Parties agree that Level 4

11

is high; Level 3 and Level 2 are medium, and Level 1 is minimum.

12

P. “Medical Provider” means a County medical doctor, doctor of osteopathy,

13

physician assistant, or nurse practitioner.

14

Q. “Mobility Device” means any non-motorized device designed for use by

15

inmates with Mobility Disabilities such as wheelchairs, crutches, walkers,

16

canes, braces, or other similar devices. The limited circumstances for

17

issuance of a motorized wheelchair are addressed in Section IV(B)(2),

18

below. There are three types of Mobility Devices referenced throughout the

19

Remedial Plan: (a) “Standard,” which refers to wheelchairs, walkers,

20

crutches, and canes that are owned and maintained by the County;

21

(b) “Generic,” which refers to Mobility Devices, excluding the devices listed

22

in subsection (a), that the County may have readily available or that can be

23

easily procured as an off-the-shelf generic durable medical good (including,

24

but not limited to, a splint, boot, brace, sling, and/or wedge support); and (c)

25

“Customized,” which refers to a Mobility Device that requires custom

26

specifications to meet the needs of an inmate (including, but not limited to,

27

prosthetics, certain orthotics, and some wheelchairs). “Personal” Mobility

28

6
[PROPOSED] CONSENT DECREE

Case No. 5:16-cv-06594-LHK

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1

Devices refers to a Mobility Device brought into the Jails by an inmate. All

2

other devices referred to herein are owned and issued by the County.

3

R. “Mobility Disability” and “Mobility Disabilities” means an impairment that

4

affects an inmate’s ability to move physically and which substantially limits

5

the inmate’s ability to perform one or more major life activities, including

6

but not limited to standing, lifting, stooping, and/or ambulating.

7

S. “Plaintiffs” and “Plaintiff Class” mean all individuals with a Mobility

8

Disability who are now, or will be in the future, for the Term of this Consent

9

Decree incarcerated in the County Jails.

10

T. “Plaintiffs’ Counsel” means Disability Right Advocates (“DRA”) and Rosen

11

Bien Galvan & Grunfeld, LLP (“RBGG”).

12

U. “Inmate(s)” shall be construed broadly to refer to one or more individuals

13

incarcerated at, detained at, or otherwise housed, held, in the custody of, or

14

confined at the Jails, including transportation.

15

V. “Safety-Security Assessment” means an individualized safety-security

16

assessment that shall be based on reasonable judgment that relies on the best

17

available objective evidence, to ascertain (1) the nature, duration, and

18

severity of any risk, (2) the probability of potential injury, and (3) whether

19

providing an alternative Mobility Device and/or reasonable modification

20

would mitigate the risk. In no case shall a Mobility Device be removed

21

based solely on the nature of the inmate’s criminal charges or convictions.

22

W. “Staff” includes all full-time, coded employees who are employed by the

23

County of Santa Clara and work in the Jails.

24

X. “Train” means to instruct in the skills addressed to a level at which the

25

trainee has the demonstrated competency to implement those skills as, and

26

when called for, in the training. “Trained” means a demonstration of staff

27

competency.

28

NOW, THEREFORE, FOR AND IN CONSIDERATION OF the mutual covenants

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1 and conditions set forth herein, the Parties hereto agree as follows:

2 III. Injunctive Relief

3

The Parties’ Remedial Plan outlining the injunctive provisions is attached hereto as

4 Exhibit A and fully incorporated by reference herein.

5 IV. Settlement Approval Process

6

A. The Parties will agree on a joint motion and will jointly move the Court, by

7

November 13, 2018, for an Order granting Preliminary Approval of this

8

Consent Decree and setting a hearing for Final Approval of this Consent

9

Decree.

10

B. The Parties will negotiate and draft a proposed notice to the Class, which

11

shall include the terms of this Consent Decree and their right to object

12

thereto. The Parties will make any edits or modifications to the draft notice

13

should such edits or modifications be directed by the Court. The proposed

14

notice shall be attached to and incorporated into this Consent Decree as

15

Exhibit B.

16

C. The Parties shall develop a plan for posting the notice. At a minimum, the

17

notice plan shall include the following: (1) posting notice in all intake,

18

housing, and programming units of the Jails; (2) posting notice on Plaintiffs’

19

Counsels’ websites; and (3) posting notice on the television-notification

20

system inside the Jails. All postings will be in accessible formats. The

21

Parties will provide alternate format copies of the notice upon request.

22

Notice will be posted/distributed by the Parties within twenty-one (21) days

23

of the date of the Court’s Order granting preliminary approval, and shall

24

remain posted for no less than thirty (30) days. The Parties will submit

25

declarations to the Court as part of the motion for final approval confirming

26

that notice has been issued according to this paragraph.

27

D. Defendant shall provide notice as required by the Class Action Fairness Act

28

(28 U.S.C. §§ 1711-1715) to appropriate officials as required by that Act.

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1 2 3 4 5 6 7 8 9 10 V. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

E. The Parties will take all procedural steps regarding the fairness hearings as

may be requested by the Court and will otherwise use their respective best

efforts to consummate the agreement set forth in this Consent Decree, and to

obtain final Court approval of this Consent Decree and entry of Judgment.

F. If, for any reason, the Court does not approve this Consent Decree, the

executed Consent Decree shall be null and void.

G. Upon final approval by the Court, this Consent Decree will be binding upon

the Defendant, Plaintiffs, and all Class members and will constitute the final

and complete resolution of all issues addressed herein.

Roles of Monitor and Plaintiffs’ Counsel

A. Role of Plaintiffs’ Counsel

1. Jail Facility Tours

a. Defendant shall permit Plaintiffs’ Counsel reasonable access to

tour the jail facilities, interview staff and inmates, and observe

practices related to Defendant’s compliance with the provisions

of this Consent Decree. Plaintiffs’ Counsel shall have

reasonable access to interviews of staff and inmates to ensure a

full evaluation. Interviews with inmates shall be conducted

confidentially. Interviews with staff shall be conducted outside

the presence of other jail staff or supervisors. However,

County Counsel shall be present during staff interviews and

staff may decline to participate in any interview conducted by

Plaintiffs’ Counsel.

b. Plaintiffs’ Counsel’s tours will not exceed more than three (3)

tours annually.

c. Each tour shall last no more than two (2) days and be

conducted by no more than one (1) Plaintiffs’ attorney or,

alternatively, one (1) staff member. Plaintiffs’ representative

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1

shall debrief with County Counsel at the end of each tour.

2

Plaintiffs’ Counsel shall also write a report after each tour, to

3

which Defendant may respond within 21 days. Plaintiffs’

4

Counsel will provide Defendant’s counsel with 7 days advance

5

notice of tour.

6

2. Requests for Documents and Individual Advocacy

7

a. Defendant shall provide Plaintiffs’ Counsel with access to

8

records, reports, and documents that the Parties agree and

9

identify are necessary to evaluate Defendant’s ongoing

10

compliance with the Remedial Plan. If the Parties cannot agree

11

on the necessary documents, the Parties will meet and confer to

12

address any disagreements. The Parties shall cooperate so that

13

such access is provided without unduly burdening Defendant.

14

Defendant shall provide Plaintiffs’ Counsel with such

15

information within 14 days of the request, unless a longer

16

period of time is necessary.

17

b. Where Plaintiffs’ Counsel has a good faith basis for doing so,

18

Plaintiffs’ Counsel may bring individual inmates’ disability

19

accommodation concerns to the attention of the County in

20

writing, who shall respond in writing within 14 days. This

21

process is not meant to replace or circumvent the existing

22

processes for submitting grievances or ADA requests to jail

23

staff. Plaintiffs’ Counsel will encourage inmates to make use

24

of those existing processes except where exigent circumstances

25

or failures of those processes have occurred.

26

3. Periodic Reporting

27

a. Defendant will provide Plaintiffs’ Counsel with the following

28

reports: (a) a monthly report from the ADA Tracking System,

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1

identifying all inmates with Mobility Disabilities and the

2

accommodations received, where the inmates are housed, and

3

to which programs the inmates are assigned; (b) on a triannual

4

basis, copies of all ADA-related inmate grievances and the

5

written responses to the inmate grievances; and (c) on a

6

triannual basis, copies of all ADA-related Inmate Request

7

Forms and the written responses to these requests.

8

b. Production of the reports identified in subpart (a) of this

9

provision is derived from the current ADA Tracking System,

10

and the Parties acknowledge that the current ADA Tracking

11

System is not integrated with the electronic medical record or

12

other custody-based electronic systems and, thus, there are

13

information sharing challenges that will not be cured until

14

Defendant implements the planned electronic jail management

15

software.

16

c. Within 30 days of the Effective Date of the Consent Decree,

17

the Parties shall meet and confer to determine a list of any

18

additional documents necessary for Plaintiffs’ Counsel to

19

evaluate Defendant’s compliance with the Remedial Plan that

20

will be produced on a periodic basis as well as the frequency

21

for such productions.

22

B. Monitoring by Operational Monitor

23

1. Within three months of the execution date, the Parties shall jointly

24

agree upon a Monitor (“Operational Monitor”) who will monitor

25

Defendant’s compliance with the operational aspects of the Remedial

26

Plan for the Term of this Consent Decree.

27

2. If, for any reason, the Operational Monitor can no longer serve or the

28

Parties jointly wish to engage a different monitor, the Parties shall

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1

attempt to agree on who shall be appointed to serve as the

2

replacement monitor.

3

3. If the Parties are unable to agree on the replacement monitor, the

4

Parties shall each submit a list of two (2) proposed new Operational

5

Monitor candidates, all of whom will have already agreed to be

6

subject to, and comply with, the Defendant’s contracting

7

requirements, to the Honorable Magistrate Judge Nathaneal Cousins.

8

Prior to submitting their respective lists to Judge Cousins, the Parties

9

agree to meet and confer to ensure that each proffered candidate is

10

eligible to be considered. If a proposed candidate is found to be

11

ineligible due to his or her inability or unwillingness to comply with

12

the County’s contractual requirements or due to a conflict of interest,

13

the Party who proposed that candidate will be given an opportunity to

14

propose an alternative candidate for consideration. The Parties will

15

submit written suggestions to Judge Cousins as to who to select from

16

the lists. Judge Cousins shall then select the new Operational Monitor

17

from the lists.

18

4. Once the Operational Monitor is selected, the Operational Monitor

19

will conduct two tours within the first year of the Execution Date of

20

the Consent Decree and thereafter conduct biannual tours and

21

program reviews. Plaintiffs’ Counsel shall have the right to attend the

22

tours. The Parties may jointly agree in writing to conduct operational

23

monitoring on a less frequent basis if the Parties agree such reduction

24

is appropriate based on the current circumstances.

25

5. Prior to the Operational Monitor’s visit, Defendant shall advise the

26

Operational Monitor which subjects are Unratable-In Progress and

27

provide a brief reason why the subject(s) is not ready for evaluation of

28

Substantial Compliance/Non-Compliance. The Operational Monitor

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1

shall still have the right to review the status of subjects Defendant has

2

declared to be Unratable-In Progress.

3

6. The Operational Monitor will prepare a written report within 45 days

4

after monitoring that will evaluate the extent to which Defendant has

5

successfully implemented substantive provisions of the Remedial Plan

6

and any plans to effectuate its terms, and recommend specific actions

7

the Operational Monitor believes Defendant must make to achieve

8

Substantial Compliance with the Remedial Plan. The Operational

9

Monitor shall report on whether, as to each material provision, the

10

County is in Substantial Compliance, Unratable-In Progress, or Non-

11

Compliance as those terms are defined herein.

12

7. The Parties will have twenty-one (21) days to make written comments

13

or objections to the Operational Monitor report. The Operational

14

Monitor shall have twenty-one (21) days to respond to the Parties’

15

comments or objections by issuing a final report.

16

8. The Operational Monitor will conduct three tours of the New Jail

17

unless the Parties agree that a third tour is unnecessary. The

18

Operational Monitor will conduct the first tour of the New Jail within

19

thirty (30) days after the County begins occupancy of the New Jail.

20

The Operational Monitor will conduct the second tour of the New Jail

21

as soon as he or she determines that there are sufficient numbers of

22

inmates housed at the Jail to allow a meaningful evaluation of the

23

New Jail’s compliance with this Consent Decree, to the extent that has

24

not occurred at the time of the first tour. The Operational Monitor

25

will conduct a third tour unless the Parties agree that a third tour is

26

unnecessary. The Operational Monitor will prepare a written report

27

within thirty (30) days after each tour that will evaluate the extent to

28

which Defendant has successfully implemented substantive provisions

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1

of the Remedial Plan in the New Jail and any plans to effectuate its

2

terms, and recommend specific actions that the Operational Monitor

3

believes Defendant may need to make, if any, to achieve Substantial

4

Compliance with the Remedial Plan. The Operational Monitor shall

5

report on whether, as to each material provision, the County is in

6

Substantial Compliance, Unratable-In Progress, or Non-Compliance,

7

as those terms are defined herein. The Parties will have fourteen (14)

8

days to make written comments or objections to this report. The

9

Operational Monitor shall have fourteen (14) days to respond to the

10

Parties’ comments or objections by issuing a final report.

11

C. Monitoring of Physical Alterations to Current Jails

12

1. Within three months of the Execution Date, the Parties shall jointly

13

agree upon a Monitor with architectural accessibility expertise

14

(“Architectural Monitor”) who will monitor Defendant’s compliance

15

with the physical access portion of the Remedial Plan in the context of

16

construction and/or alterations to the Jails for the duration of the Term

17

of this Consent Decree.

18

2. If, for any reason, the Architectural Monitor can no longer serve or

19

the Parties jointly wish to engage a different monitor, the Parties shall

20

attempt to agree on who shall be appointed to serve as the

21

replacement monitor.

22

3. If the Parties are unable to agree on the replacement monitor, the

23

Parties shall each submit a list of two (2) proposed new Architectural

24

Monitor candidates, all of whom will have already agreed to be

25

subject to, and comply with, the Defendant’s contracting

26

requirements, to the Honorable Magistrate Judge Nathaneal Cousins.

27

Prior to submitting their respective lists to Judge Cousins, the Parties

28

agree to meet and confer to ensure that each proffered candidate is

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1

eligible to be considered. If a proposed candidate is found to be

2

ineligible due to his or her inability or unwillingness to comply with

3

the County’s contractual requirements or due to a conflict of interest,

4

the Party who proposed that candidate will be given an opportunity to

5

propose an alternative candidate for consideration. The Parties will

6

submit written suggestions to Judge Cousins as to who to select from

7

the lists. Judge Cousins shall then select the new Architectural

8

Monitor from the lists.

9

4. Defendant has provided and continues to provide the Architectural

10

Monitor with copies of architectural drawings (“plans”) for

11

construction and/or physical alterations within the Jails covered by the

12

Remedial Plan.

13

5. Defendant may consult directly with the Architectural Monitor

14

regarding the plans and/or alterations for the Jails. If Defendant and

15

the Architectural Monitor have a dispute regarding the plans and/or

16

alterations for the Jails, or reach a determination that technical

17

infeasibility exists, Defendant shall advise Plaintiffs of these

18

communications.

19

6. The Parties may agree to exclude specific projects from the plan

20

review requirements.

21

7. Defendant anticipates that the planned construction will be completed

22

in January 2022 at the earliest. The planned construction is highly

23

dependent on third-party contractors, and this time estimate is not

24

binding.

25

8. Defendant will request that the Architectural Monitor conduct

26

periodic site visits to review completed work as major projects or

27

groups of projects are completed. Plaintiffs’ Counsel may accompany

28

the Architectural Monitor on these visits. The Architectural Monitor

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1

shall confirm in a written report, provided to the Parties within 45

2

days, whether each part of the completed work is ADA Accessible.

3

9. The Parties will have twenty-one (21) days to provide written

4

comments or objections to the Architectural Monitor’s report. The

5

Architectural Monitor shall have twenty-one (21) days to respond to

6

the Parties’ comments or objections by issuing a final report.

7

10. Once the physical alteration projects are complete, the Architectural

8

Monitor determines compliance, and the Dispute Resolution Process,

9

if applicable, is complete, Defendant is no longer subject to

10

monitoring for physical alterations.

11

D. Monitoring of Construction of the New Jail

12

1. Defendant anticipates that the New Jail will be completed in 2023.

13

Construction of the New Jail is highly dependent on third-party

14

contractors, and this time estimate is not binding.

15

2. After construction of the New Jail, the Architectural Monitor will

16

conduct a site visit within thirty (30) days of completion of

17

construction on the New Jail, and prepare a written report provided to

18

the Parties within forty-five (45) days, evaluating whether each part of

19

the completed work is ADA Accessible as required under the

20

Remedial Plan. Plaintiffs’ Counsel may accompany the Architectural

21

Monitor on this site visit.

22

3. The Parties will have twenty-one (21) days to provide written

23

comments or objections to the Architectural Monitor reports. The

24

Architectural Monitor shall have twenty-one (21) days to respond to

25

the Parties’ comments or objections by issuing a final report.

26 VI. Attorney’s Fees and Costs

27

A. No later than ninety (90) days after the Effective Date, the County agrees to

28

pay Plaintiffs’ Counsel the fixed sum of $1 million to cover and fully resolve

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1

any and all of Plaintiffs’ and Plaintiffs’ Counsels’ claims against the County

2

for attorney’s fees and costs incurred or attributable to any and all work from

3

any time prior to the filing of this Action (including any claims from the

4

structured negotiations phase), up through and including the Effective Date

5

of this Consent Decree (hereinafter, “past fees”).

6

B. No later than ninety (90) days after the Effective Date, the County shall pay

7

the fixed sum of $2.2 million to cover and fully resolve any and all of

8

Plaintiffs’ and Plaintiffs’ Counsels’ claims against the County for attorney’s

9

fees and costs incurred or attributable to any and all work performed by

10

anyone from the Effective Date of this Consent Decree up through and

11

including the end of the Term, as Term is defined in Section VIII

12

(hereinafter, “future fees”). These future fees shall be paid, using wire

13

instructions stated at Section VI.B.1, into the Cole Jail Monitoring Qualified

14

Settlement Fund (“QSF”), established by or on behalf of Plaintiffs’ Counsel.

15

Plaintiffs’ Counsel warrants and represents to the County that the QSF is a

16

duly constructed and authorized Internal Revenue Code Section 468B

17

Qualified Settlement Fund, as defined by Internal Revenue Code Section

18

468-B and the associated Treasury Reg. 1.468B-1 of the Internal Revenue

19

Code, and is qualified to receive this settlement payment for future fees.

20

Plaintiffs’ Counsel shall defend and indemnify the County, and hold the

21

County harmless, with respect to any claims, demands, causes of action,

22

suits, debts, liabilities, fees, taxes, charges, losses, or costs, of any nature

23

whatsoever, relating to or arising from the formation, administration, or

24

existence of the QSF or the payment by the County into the QSF.

25

1. The following, in combination with the complete account number

26

which shall be provided by Plaintiffs’ Counsel to the County,

27

constitute the wire instructions for the QSF:

28

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1

 Account Name: EPTC Custodial Trust Settlement Trust

2

Contribution Account

3

 Account Number: X8544

4

 Bank: Union First Market Bank

5

 Routing Number: 051403164

6

 Further Credit Instructions: EPTC FBO – Cole Jail Monitoring

7

Qualified Settlement Fund

8

2. The only exceptions to this fixed sum for future fees that are not

9

included in the $2.2 million sum, above, are comprised of the

10

following two scenarios; and these are the only situations in which

11

Plaintiffs’ Counsel or anyone else may file a motion with the court

12

seeking an award of additional reasonable attorney’s fees and costs:

13

a. The County brings an unsuccessful motion under the Consent

14

Decree against Plaintiffs or Plaintiffs’ Counsel (“County’s

15

Motion”) (Scenario 1); or

16

b. The Court has found the County to be in violation of provisions

17

of the Consent Decree, and based on that violation, has ordered

18

to County to comply with the Consent Decree (“order to

19

comply”); and then, the County refuses to follow that order to

20

comply (Scenario 2).

21

c. Under Scenario 1, Plaintiffs’ Counsel may only be awarded

22

those reasonable attorney’s fees and costs for work performed

23

that both a) arises after the filing of the County’s Motion and

24

b) directly pertains to Plaintiffs’ Counsel preparing their filed

25

response and attending the hearing, if any, on the County’s

26

Motion.

27

d. Under Scenario 2, if the County refuses to follow the order to

28

comply, Plaintiffs’ Counsel may file a motion to find the

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1

County in contempt of court. If Plaintiffs’ motion is

2

successful, Plaintiffs’ Counsel may then only be awarded those

3

reasonable attorney’s fees and costs for their work drafting and

4

arguing the successful new contempt motion that is performed

5

after both a) the Court enters the order to comply, and then b)

6

the County fails to abide by that order to comply.

7

C. With the exception of the scenarios set forth in Section VI.B.2, no other

8

attorney’s fees or costs award or payment of any sort is permitted to anyone

9

under this Consent Decree.

10 VII. Dispute Resolution

11

A. If either Party seeks to engage in the Dispute Resolution Process, as defined

12

herein, that Party shall give notice to the other Party of the grounds for the

13

dispute. The Party receiving the demand to engage in the Dispute Resolution

14

Process will provide a written response within fourteen (14) days. The

15

Parties shall then engage in good-faith negotiations to attempt to resolve the

16

dispute for a minimum of thirty (30) days from the date of the response.

17

Plaintiffs shall be permitted to bring their own expert into the Jails, at a time,

18

scope, and for a duration mutually agreed upon by the Parties, as part of this

19

thirty (30) day negotiation period in order to assist in resolving the dispute.

20

The County agrees to not unduly delay Plaintiffs’ expert’s access to the Jails

21

under these circumstances.

22

B. If after meeting and conferring for at least thirty (30) days, the dispute has

23

not been resolved, either Party may request that the Parties bring the dispute

24

before Judge Cousins, or another mutually agreed upon neutral, for purposes

25

of mediation. If Judge Cousins is not available within forty-five days (45),

26

the Parties will utilize the services of the Northern District of California’s

27

Alternative Dispute Resolution program or request that the Court appoint

28

another Magistrate Judge. If this mediation is unsuccessful, either Party may

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apply to the Court for relief that is bounded by and subject to the limitations

2

and terms of this Consent Decree. The Parties agree to work in good faith to

3

avoid such applications wherever possible. Any disputes that cannot be

4

resolved through the Dispute Resolution Process outlined above may be

5

submitted to Judge Cousins, in his capacity as a Magistrate Judge rather than

6

as a mediator as delineated in Section IX.B. below, for a resolution that is

7

bounded by and subject to the limitations and terms of this Consent Decree.

8

C. During the last nine (9) months of the Term of this Consent Decree, either

9

Party may choose to immediately submit any disputes to Judge Cousins

10

following completion of the thirty-day meet and confer process, in his

11

capacity as a Magistrate Judge, for a resolution that is bounded by and

12

subject to the limitations and terms of this Consent Decree.

13

In the case of an emergency that poses an immediate and significant threat to

14

the health and safety of inmates, and as such, the nature of the emergency

15

makes completion of the Dispute Resolution Process impracticable, a Party

16

may seek relief from the Court that is bounded by and subject to the

17

limitations and terms of this Consent Decree, with the exception of not

18

having to complete the Dispute Resolution Process, provided that the moving

19

Party has notified the nonmoving party of the issue at least seventy-two (72)

20

hours before seeking such relief from the Court.

21 VIII. Duration of the Consent Decree

22

A. The Parties agree that this Consent Decree, and all of its terms, will expire,

23

and will no longer be enforced or enforceable in any court, twelve (12)

24

months after the certificate of occupancy for the New Jail has been issued

25

and the County has begun placement of inmates in the New Jail (the

26

“Term”). This Term is among the most material terms of this Consent

27

Decree, such that absent this Term, the Parties would not have executed this

28

Consent Decree. To effectuate this Term, the Parties further agree to waive

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their rights under 18 U.S.C. §§ 3626 (b), (e), and (f), including as set forth in

2

paragraphs VIII.B and C, below.

3

B. Defendant agrees not to seek, support, or assent to termination of the

4

Consent Decree before the completion of the Term, under any circumstances,

5

except as set forth in paragraph VIII.C, below; and Plaintiffs agree not to

6

seek, support, or assent to any extension of the Term, under any

7

circumstances, except as set forth in paragraph VIII.C, below.

8

C. The only circumstance by which the Term of this Consent Decree may be

9

extended is that the Parties jointly agree that the Term should be extended

10

because they perceive that ongoing violations remain at the end of the Term

11

and the Parties jointly agree that extension of the Term is the most efficient

12

means to address such violations. In that circumstance, the Parties will

13

jointly move, and can only jointly move, the Court to extend the Term. If

14

Plaintiffs contend, and Defendant disputes, that ongoing violations exist at

15

the end of the Term, and/or if Defendants do not agree that the Term should

16

be extended, Plaintiffs’ sole remedy shall be to file a new lawsuit after the

17

end of the Term of this Consent Decree.

18 IX. Reservation of Jurisdiction and Enforcement

19

A. The District Court of the Northern District of California shall retain

20

jurisdiction to enforce, but under no circumstances expand or alter, the terms

21

of this Consent Decree and shall retain jurisdiction to resolve any dispute

22

regarding compliance with this Consent Decree and that such resolution is

23

bounded by and subject to the limitations and terms of this Consent Decree,

24

including that in Section VIII, above, regarding the Term of this Consent

25

Decree. The Court shall have the power to enforce the Consent Decree

26

through specific performance and all other remedies permitted by law and

27

equity throughout the Term of this Consent Decree and that such

28

enforcement is bounded by and subject to the limitations and terms of this

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Consent Decree, including that in Section VIII, above, regarding the Term of

2

this Consent Decree.

3

B. The Parties consent to having all disputes between the Parties arising out of

4

this Consent Decree, including those regarding compliance with this Consent

5

Decree, heard and decided by Judge Nathanael Cousins, subject to the

6

provisions of Federal Rule of Civil Procedure 72, and that any relief from

7

such disputes is bounded by and subject to the limitations and terms of this

8

Consent Decree. Should Judge Cousins no longer be available to serve in

9

this capacity for any reason, only this provision, IX.B, will be deemed to be

10

severable from the remainder of this Consent Decree, unless the Parties

11

jointly agree on a new decision-maker.

12 X. Release

13

Subject to the entry of Judgment by the Court and in consideration of the relief set

14 forth herein, Plaintiffs, for themselves, the Class, and their successors and assigns, hereby

15 fully and finally release and discharge Defendant and its successors, assigns, officers,

16 directors, and past and present agents and employees (“Released Parties”) from any and all

17 claims for declaratory or injunctive relief raised in the Action, or that could have been

18 raised in the Action, relating to inmates with Mobility Disabilities (“Released Claims”).

19 The Released Claims do not include any claims to enforce the terms of this Consent

20 Decree. Nothing in this Consent Decree releases any damages claims to which Plaintiffs

21 or other individual members of the Plaintiff Class may be entitled.

22 XI. Miscellaneous

23

A. This Consent Decree, which incorporates by reference the Remedial Plan

24

(Exhibit A) and the draft Notice to the Class (Exhibit B), contains the entire

25

agreement between the Parties. This Consent Decree expresses the complete

26

and final understanding with respect to the subject matter of this Consent

27

Decree. The Parties hereto understand and agree that the terms of this

28

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[PROPOSED] CONSENT DECREE

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1

Consent Decree supersede any prior discussions, understandings, or

2

agreements between them related to the subject matter hereof.

3

B. The Parties each acknowledge that they are entering into this Consent Decree

4

freely, knowingly, voluntarily, and with a full understanding of its terms.

5

The Parties acknowledge that they have consulted with counsel of their own

6

choosing concerning this Consent Decree and that they were given

7

reasonable time to review and consider the terms of this Consent Decree.

8

C. This Consent Decree shall be binding on all successors, assignees,

9

employees, agents, and all others working for or on behalf of Defendant and

10

Plaintiffs.

11

D. The language of this Consent Decree shall be construed as a whole according

12

to its fair meaning, and not strictly for or against any of the Parties. The

13

terms of this Consent Decree are the product of joint negotiations and shall

14

not be construed as having been authored by one party rather than another.

15

Any ambiguity shall not be construed against any Party. Where required by

16

context, the plural includes the singular and the singular includes the plural.

17

The headings in this Consent Decree are solely for convenience and will not

18

be considered in its interpretation.

19

E. If any provision or provisions of this Consent Decree, other than the Term,

20

shall be held invalid, illegal, or unenforceable, the validity, legality, and/or

21

enforceability of the remaining provisions shall not in any way be affected or

22

impaired thereby.

23

F. This Consent Decree may be executed in counterparts, each of which will be

24

considered an original, but all of which, when taken together, will constitute

25

one and the same instrument.

26

G. This Consent Decree shall be governed by and construed in accordance with

27

the laws of the State of California.

28

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[PROPOSED] CONSENT DECREE

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1

H.

2

3

4

5

I.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

To the extent any documents are required to be executed by any of the
Parties to effectuate this Consent Decree, each party hereto agrees to execute
and deliver such and further documents as may be required to carry out the
terms of this Consent Decree.
Each signatory to this Consent Decree certifies that it, he, or she is fully
authorized by the party it, he, or she represents to enter into the Consent
Decree, to execute it on behalf of the party represented, and to legally bind
that party thereto.
Unless otherwise indicated in the Consent Decree, all notices or
communications required by this Consent Decree shall be in writing by email
addressed as stated below. Should any Party’s contact information change
from what is listed below, that Party shall promptly provide written notice of
the updated contact information to the other Parties.
To Named Plaintiffs, Plaintiffs’ Counsel, or the Settlement Class:
Lisa Ells Rosen Bien Galvan & Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 lells@rbgg.com
Michelle Iorio Disability Rights Advocates 2001 Center Street, Fourth Floor Berkeley, CA 94704 miorio@dralegal.org

24
[PROPOSED] CONSENT DECREE

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1

To Defendant:

2

Douglas M. Press, Assistant County Counsel

Aryn Harris, Deputy County Counsel

3

Emily Fedman, Deputy County Counsel

70 West Hedding St., 9th Floor, East Wing

4

San Jose, CA 95110

douglas.press@cco.sccgov.org

5

aryn.harris@cco.sccgov.org

emily.fedman@cco.sccgov.org

6

7 IT IS AGREED AND SO STIPULATED.

8 DATED: November 12, 2018

ROSEN BIEN GALVAN & GRUNFELD LLP

9

By: /s/ Lisa Ells

Lisa Ells

10

11 DATED: November 12, 2018 12
13

DISABILITY RIGHTS ADVOCATES
By: /s/ Michelle Iorio Michelle Iorio

14 15
DATED: November 13, 2018 16 17 18 19 20

Attorneys for Plaintiffs and the Plaintiff Class
JAMES R. WILLIAMS County Counsel
By: /s/ Aryn Paige Harris Aryn Paige Harris Deputy County Counsel
Attorneys for Defendant

21

22

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24

25

26

27

28

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[PROPOSED] CONSENT DECREE

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Exhibit A

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Santa Clara County Mobility Disability Remedial Plan
I. TERMINOLOGY AND DEFINITIONS
The terms and definitions set forth in the Consent Decree, to which this Remedial Plan is attached and into which this Remedial Plan is incorporated by reference, also control the terms and definitions set forth in this Remedial Plan.
II. INTAKE PROCESS
A. In a reasonably confidential setting, the County shall inquire during intake whether an inmate has a Mobility Disability using an agreed-upon screening tool.
B. The intake screening shall be conducted by a licensed registered nurse or, at the County’s discretion, a Medical Provider.
C. During the intake screening, the County shall begin the verification process of whether an inmate has a Mobility Disability, as outlined in Section III, if:
1. The inmate self-reports a Mobility Disability;
2. The inmate’s Healthlink or ADA Tracking System record contains documentation of a Mobility Disability; or
3. The screening tool indicates that the inmate might have a Mobility Disability.
D. If the intake process outlined in Section II.C, above, indicates that an inmate might have a Mobility Disability, the County shall utilize the agreed-upon screening tool to determine what type of reasonable modifications are necessary and available (e.g., changes to housing, lower bunk/lower tier) and shall provide such reasonable modifications while the inmate awaits verification pursuant to Section III.
E. Issuance and Retention of Mobility Devices at Intake
1. The County will issue a Standard Mobility Device promptly, but in any case no later than the timelines contained in Section IV, to any inmate who is determined to possibly need a Mobility Device pursuant to Section II.D, subject to later verification pursuant to Section III, unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that an inmate’s possession of a Mobility Device constitutes an immediate risk of
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bodily harm to inmates or staff, or threatens the security of the facility. If providing an alternative Mobility Device would mitigate the risk, the Captain or Watch Commander shall direct that the inmate be provided with the designated alternative.
2. The County acknowledges its obligations to comply with California Penal Code section 2656 pertaining to retention of orthopedic and prosthetic appliances.
3. Subject to Sections II.E.1 & II.E.2, inmates will be permitted to keep their Personal Mobility Device(s) during the intake process until the County issues a Standard or Generic (if available) Mobility Device, unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that the Mobility Device constitutes an immediate risk of bodily harm to inmates or staff, or threatens the security of the facility. If providing an alternative Mobility Device would mitigate the risk, the Captain or Watch Commander shall direct that the inmate be provided with the designated alternative.
F. If an inmate arrives at the Jail with a Personal Mobility Device that is exchanged for a County-owned Mobility Device, the County shall store the Personal Mobility Device at the Jail at no cost to the inmate for return upon release and/or transfer from the Jail to another facility. Alternatively, the inmate may arrange for pick-up of the Mobility Device. The County will not store a Personal Mobility Device for more than ninety (90) days after an inmate has been released or transferred.
G. The County shall advise inmates of the results of the intake screening and notify the inmate of the right to request a physical examination by a Medical Provider to the extent the inmate disagrees with the results and/or reasonable modifications provided. The County shall further notify inmates of the right to request use of a Personal Mobility Device consistent with Section IV below.
H. The results of the intake screening shall be documented and promptly inputted into the County’s ADA Tracking System.
I. As part of the intake process, all inmates shall be informed of the process by which they can request a reasonable modification while in custody, including the types of issues that can be reviewed by the County Jails’ ADA Unit on an expedited basis.
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III. VERIFICATION OF AN INMATE’S MOBILITY DISABILITY AND NEED FOR REASONABLE MODIFICATIONS
A. The County’s policy is to issue County owned Mobility Devices in all instances unless: (a) an inmate’s Personal Mobility Device is the only reasonable modification for the inmate’s Mobility Disability; or (b) the nature of the inmate’s Personal Mobility Device would pose particular difficulty and/or harm to the inmate to remove, and/or removal is otherwise unnecessary due to the origin or nature of the device (i.e., a hospital-issued sling or brace).
B. An inmate may make a request to the ADA Unit to be able to continue to use his/her Personal Mobility Device. The ADA Unit and/or Medical Provider (where necessary) will evaluate the request based on an individualized assessment as outlined in Sections III.D and III.E.
C. An inmate’s Personal Mobility Device may be retained by the County for a short period of time sufficient to inspect the device for contraband. In most cases the inspection should occur promptly, but in rare cases the inspection may take longer, in which case it shall be completed within 14 days.
D. ADA Unit’s Responsibilities
1. The County’s ADA Unit shall review whether an inmate has a Mobility Disability and/or what reasonable modification(s) are necessary for the inmate within 7 calendar days under the following circumstances:
a. An inmate is designated during the intake screening as possibly having a Mobility Disability and/or the need for a reasonable modification;
b. An inmate makes a request to the ADA Unit, including through an ADA Request or ADA-related grievance as outlined in Section XIII, for evaluation of a Mobility Disability and/or the need for a reasonable modification; or
c. The inmate is referred by staff to the ADA Unit for evaluation of a Mobility Disability and/or the need for a reasonable modification.
2. The ADA Unit shall document a Mobility Disability and/or what reasonable modification(s) are necessary in the ADA Tracking System.
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a. If the ADA Unit determines that an inmate requires a Mobility Device, the County shall issue it consistent with Section IV.D.1, and the ADA Unit will issue to the inmate appropriate documentation authorizing possession of a Mobility Device.
b. If the ADA Unit determines that an inmate requires a reasonable modification related to their housing assignment (e.g., ADA Accessible cell, grab bars, dining areas, showers, path of travel, lower bunk, lower tier and/or a housing reassignment in order to access work, educational or other programs), the inmate shall receive the reasonable modification within 24 hours.
3. If the ADA Unit determines that an inmate’s Mobility Disability requires evaluation from a Medical Provider, the ADA Unit shall offer an inmate a reasonable modification on a temporary basis pending a medical appointment, which shall occur within 30 days.
4. The Parties agree that not all Mobility Disabilities and/or reasonable modifications will require an appointment with a Medical Provider to verify the Mobility Disability and/or the need for a reasonable modification. Further, an inmate’s Mobility Disability and/or need for a reasonable modification could change over time and will be addressed based on an inmate’s current status.
E. Medical Provider’s Responsibilities
1. If the ADA Unit refers an inmate for evaluation pursuant to Section III.D.3, or if an inmate or Medical Provider first identifies a Mobility Disability at a medical encounter where the Medical Provider is able to assess the Mobility Disability, the Medical Provider shall verify whether the inmate has a Mobility Disability and/or determine what reasonable modification(s) are necessary for the inmate unless such a determination requires a specialist-medical appointment.
a. If the Medical Provider determines that an inmate requires a Mobility Device, the County shall issue it consistent with Section IV.D.1, and the County will issue to the inmate appropriate documentation authorizing possession of a Mobility Device
b. If the Medical Provider determines that an inmate requires a reasonable modification related to their housing assignment
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(e.g., ADA Accessible cell, grab bars, dining areas, showers, path of travel, lower bunk, lower tier and/or a housing reassignment in order to access work, educational or other programs), the inmate shall receive the reasonable modification within 24 hours.
c. The County shall document the Medical Provider’s determination in the ADA Tracking system and refer the inmate to the ADA Unit for follow-up.
d. If the Medical Provider determines that an inmate requires a specialist-medical appointment, the Medical Provider shall promptly request that appointment, and shall consult with the ADA Unit in order to provide a reasonable modification, such as a Mobility Device and/or a housing change in accordance with Sections III.E.1.a and III.E.1.b on a temporary basis pending the outcome of the specialist-medical appointment.
2. If an inmate or Medical Provider first identifies a Mobility Disability at a medical or mental health appointment where the Medical Provider cannot assess the Mobility Disability (e.g., because the appointment is not conducted by the appropriate Medical Provider and/or is scheduled for a different purpose), the Medical Provider shall refer the inmate to the ADA Unit, and the County shall document the referral in the ADA Tracking System. The ADA Unit shall then conduct a review consistent with Section III.
3. Medical Providers evaluating an inmate’s Mobility Disability and/or the need for a reasonable modification(s) may determine at an inperson evaluation that the inmate does not have a Mobility Disability and/or the inmate does not require a reasonable modification. If such a determination is made, the County shall document the rationale for the Medical Provider’s finding in the ADA Tracking system.
IV. ISSUANCE, RETENTION, MAINTENANCE, AND DENIAL OF MOBILITY DEVICE(S)
A. The County’s policies and procedures for the ordering, retention, maintenance, and denial/confiscation of Mobility Devices shall be reviewed and amended or drafted, as necessary to be consistent with this Remedial Plan.
B. Supply and Maintenance of Standard Mobility Devices
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1. The County shall maintain a reasonable supply of Standard wheelchairs, walkers, canes, and crutches.
2. The County shall inspect its supply of Standard Mobility Devices on a quarterly basis to ensure sufficient operational quantities are available.
C. Motorized Mobility Devices
1. Motorized Mobility Devices are generally not permitted in the Jails.
2. The ADA Unit and Medical Provider(s), in coordination with the Assistant Sheriff, shall determine the most appropriate manner to accommodate an inmate who requires a motorized Mobility Device in the exceptional circumstance where a Medical Provider or the ADA Unit have determined, as outlined in Section III, that a motorized Mobility Device is the only reasonable modification that would meet the needs of the inmate with a Mobility Disability.
3. The County shall consult with Plaintiffs’ Counsel if the County determines that it will accommodate the inmate in need of motorized Mobility Device in some other manner than permitting the inmate to utilize the motorized Mobility Device in the Jail.
D. Timing for Issuance of Mobility Devices
1. An inmate with a Mobility Disability in need of a Standard Mobility Device shall be issued a Standard Mobility Device within four (4) hours, absent extenuating circumstances, following the ADA Unit or the Medical Provider’s determination that an inmate needs a Mobility Device.
2. Generic or Customized Mobility Devices may take time to order or design. If the required Generic Mobility Device is available on site, it shall be issued within four (4) hours, absent extenuating circumstances, following the ADA Unit or the Medical Provider’s determination that an inmate needs a Mobility Device. For Customized Mobility Devices and Generic Mobility Devices not kept on site, Adult Custody Health Services shall either obtain the device or, if the device requires a special order, place the order for said device within three (3) business days of identification of need. The County shall inform the inmate of an estimated time that the Generic and/or Customized Mobility Device shall be provided. The County shall check on the status of the Generic or Customized
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Mobility Devices every 30 days and shall provide the inmate with a temporary reasonable modification to the extent necessary.
E. Maintenance of Mobility Devices
1. If an inmate’s Mobility Device is operable but in need of maintenance or repair, and the inmate notifies the ADA Unit, the ADA Unit shall assess and address the maintenance or repair need within seven (7) days.
2. If an inmate’s Standard Mobility Device becomes inoperable and the inmate reports the problem to custody staff, the County shall provide a replacement within twenty-four (24) hours.
3. If an inmate advises the ADA Unit and/or a Medical Provider that a Generic or Customized Mobility Device is in need of maintenance, repair, or replacement, the County shall coordinate maintenance, repair, or replacement as necessary. In the interim, the ADA Unit shall replace the Generic Mobility Device if such device is kept in stock on site or provide the inmate with a Standard Mobility Device on a temporary basis and evaluate the provision of other interim reasonable modification(s).
F. Safety-Security Assessments After Intake
1. The County shall permit an inmate to keep a Mobility Device unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that a Mobility Device constitutes an immediate risk of bodily harm to inmates or staff, or threatens the security of the facility.
2. If the Captain or Watch Commander makes such a determination, they shall document the decision, and reasons for it, as well as the date of decision, in writing, and shall promptly consult with a Medical Provider and the ADA Coordinator to determine if an appropriate alternative reasonable modification can be provided, in which case an alternative reasonable modification shall be provided. The Captain, Watch Commander, Medical Provider, or ADA Coordinator shall document the nature of any alternative reasonable modification(s) provided in the ADA Tracking System.
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3. If the County removes an inmate’s Mobility Device following a Safety-Security Assessment, the County shall reevaluate the SafetySecurity Assessment as follows:
a. The inmate must be reevaluated by the ADA Unit to determine if he or she can safely possess the Mobility Device a minimum of every seven (7) days if the device is removed during the intake process.
b. The inmate must be reevaluated by the ADA Unit to determine if he or she can safely possess the Mobility Device a minimum of every fourteen (14) days if the device is removed at any other time.
c. For each evaluation pursuant to Section IV.F.3.a and IV.F.3.b, the ADA Unit shall make a recommendation to the Captain of the facility or his or her superiors regarding whether the Mobility Device should continue to be removed from the inmate and shall document the rationale in the ADA Tracking System.
4. Notwithstanding the provisions above, the County acknowledges its obligations to comply with California Penal Code section 2656 pertaining to retention of orthopedic and prosthetic appliances.
V. CLASSIFICATION AND HOUSING OF INMATES WITH MOBILITYDISABILITIES
A. The County shall review its Classification Policies and Procedures and revise, as necessary, to be consistent with this Remedial Plan.
B. An inmate’s need for a Mobility Device in a housing unit shall not be a basis for assignment to the infirmary, a medical unit, or a mental health housing unit.
C. That an inmate has a Mobility Disability and/or requires reasonable modifications for that disability (including the provision of Mobility Devices) shall not be a factor in determining an inmate’s security classification.
D. Inmates identified as having a Mobility Disability shall be placed in housing that is consistent with their security classification and their accessibility needs. Not all inmates with a Mobility Disability require an ADA Accessible cell or unit, but may require reasonable modifications
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related to housing such as, but not limited to, a lower bunk/lower tier assignment, or access to ADA Accessible shower facilities.
E. This Remedial Plan recognizes that, while additional ADA Accessible housing is constructed pursuant to the Construction Remedial Plan (Section XI), ADA Accessible housing may not be immediately available for every inmate needing such housing consistent with their classification. As ADA Accessible housing is completed and brought online under the Construction Remedial Plan, inmates in need of ADA Accessible housing shall be housed consistent with their needs. In the interim, the Parties agree that inmates with Mobility Disabilities who require ADA Accessible housing shall be housed as follows:
1. Male Inmates
a. Inmates determined to be a Level 1 classification shall be housed in Barracks 3 at the Elmwood Minimum Camp unless Barracks 3 is closed for repairs, construction, or other extenuating circumstances, in which case these inmates shall be housed in Special Housing.
b. Inmates who use wheelchairs, and who are determined to be Level 2, 3, or 4 security level inmates, shall be housed in Main Jail Unit 2B and/or Elmwood Unit M3.
c. Inmates who use Mobility Devices other than wheelchairs and who are determined to be Level 2, 3, or 4 security level inmates, shall be assessed on an individualized basis and housed as appropriate.
2. Female Inmates
a. Inmates who can be appropriately housed in a dorm setting based on their security level shall be housed in W2. The ADA Unit will promptly conduct an individualized assessment to determine if additional reasonable modification(s) are necessary and develop a plan to address those needs.
b. Inmates who require cell-style housing based on their security level shall be housed in W4. The ADA Unit shall promptly conduct an individualized assessment to determine if additional reasonable modification(s) are necessary and develop a plan to address those needs. The County shall
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promptly consult with Plaintiffs’ Counsel regarding the County’s planned reasonable modifications for an inmate requiring cell-style housing who, the County has determined as outlined in Section III, requires full-time use of a wheelchair.
F. If the housing units listed in Sections V.E.1 and/or V.E.2 are closed for repairs, construction, or other extenuating circumstances, the County shall promptly (1) notify Plaintiffs’ Counsel of the closure(s), and (2) provide Plaintiffs’ Counsel with a list of where inmates with Mobility Disabilities will be housed for the duration of the closure(s). During such closure(s), the ADA Unit shall promptly conduct an individualized assessment to determine if additional reasonable modifications are necessary for the affected inmates with Mobility Disabilities and develop a plan to address those needs.
VI. TRACKING INMATES WITH MOBILITY DISABILITIES (“ADA TRACKING SYSTEM”)
A. The County shall use an ADA Tracking System to document and share internally information regarding inmates with Mobility Disabilities.
B. The ADA Tracking System shall identify and track all inmates with a Mobility Disability.
C. The ADA Tracking System shall have the following functional capabilities:
1. Code the type of Mobility Disability and the reasonable modifications an inmate requires for the Mobility Disability (e.g., Mobility Devices, lower bunks, ground floor housing).
2. Track all programs, services, and reasonable modifications offered to an inmate with a Mobility Disability throughout his/her incarceration.
D. The County shall designate staff that shall be responsible for using the ADA Tracking System. Designated Staff shall include Classification Staff, the ADA Coordinator and his or her staff, the Facility Watch Commander, Division Commander, Administrative Sergeant, Program Managers, and staff from Adult Custody Health Services (“Designated Staff”).
E. Designated Staff, both during the intake and booking process and during clinical encounters, shall be responsible for adding or modifying
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information regarding the nature of an inmate’s Mobility Disability and necessary reasonable modifications for that Mobility Disability.
F. Designated Staff shall be able and expected to view information in the system to ensure that the County provides reasonable modifications to inmates with Mobility Disabilities.
G. Designated Staff shall also be responsible for updating the system with information regarding the reasonable modifications provided during the inmate’s incarceration and any subsequent returns to custody.
H. Housing unit, education, and program office staff shall be provided with a report listing all inmates with a Mobility Disability in the relevant unit or program, as well as those inmates’ needing reasonable modifications for a Mobility Disability. The report shall be updated and provided in written form to such staff at least once per week. Additionally, information from the report shall be communicated in writing to staff whenever an inmate with a Mobility Disability is assigned to the unit or program.
I. All Designated Staff shall be trained to properly use the ADA Tracking System. The training shall occur on site over the course of six months after implementation begins.
J. The County shall develop and maintain appropriate policies outlining who can access and modify information in the ADA Tracking System.
VII. PROGRAMS AND SERVICES
A. The County’s policies and procedures pertaining to programs and services shall be reviewed and amended or drafted, as necessary, to be consistent with this Remedial Plan.
B. The County shall ensure that an inmate with a Mobility Disability has equal access to all inmate programs and services for which an inmate would be eligible but for that Mobility Disability—including, but not limited to educational, vocational, work, recreational, visiting, medical, mental health, substance abuse, self-improvement, and religious programs, as well as early release programs such as the Custody Alternative Supervision Program (CASP)—on a space available basis, consistent with the inmate’s security classification.
C. If an inmate’s Mobility Disability interferes with his or her ability to participate in a program or service for which he or she is otherwise eligible, the ADA Coordinator shall first determine whether the individual inmate
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can participate in the program or service if the County provided a reasonable modification. If a non-structural reasonable modification will allow an inmate with a Mobility Disability to participate in a program, the County shall provide the non-structural reasonable modification and shall allow the inmate to participate in the program.
D. If a non-structural reasonable modification would result in a fundamental alteration of the program, the County must take actions that would not result in such an alteration but would nevertheless ensure that the inmate with a Mobility Disability receives the benefits or services offered by the County’s program.
E. The County can refuse to provide a reasonable modification to an inmate with a Mobility Disability who is otherwise qualified for a program or service if: (1) the inmate’s participation in the program would pose a direct threat to the health or safety of others, or (2) there is a reason for doing so that is reasonably related to a legitimate penological interest(s), as determined by the ADA Unit in coordination with the Assistant Sheriff. Refusal to provide a reasonable modification pursuant to either of the preceding exceptions shall be based on a Safety-Security Assessment. If providing an alternative Mobility Device would mitigate the risk, the County shall provide the inmate with the designated alternative as expeditiously as possible.
F. If the County relies upon any of the above exceptions to deny an inmate with a Mobility Disability the opportunity to participate in a program or service, the ADA Unit must document the basis for the determination in the ADA Tracking System.
G. Location of Programs and Services
1. The Parties have designated structural changes in the Construction Remedial Plan outlined in Section XI in order to provide program accessibility to inmates with Mobility Disabilities.
2. In order to address program accessibility, the County agrees to provide programming and services in the areas designated in the Construction Plan (Section XI) as the portions of the Construction Plan providing accessibility to programs and services are completed.
3. As an alternative to providing programming and services in areas designated in the Construction Plan, the County may continue to utilize nonstructural methods to provide accessibility to programs and services, including but not limited to acquisition or redesign of
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equipment, assignment of aides to inmates with Mobility Disabilities or, at the County’s election, the provision of services at alternate accessible sites.
4. While the County is undertaking the construction described in Section XI of this Remedial Plan, the Parties agree that the County shall take the following interim measures to provide accessibility to programs and service for inmates with Mobility Disabilities:
a. The County may use inmates or Custody Staff to push inmates in wheelchairs to a program or service along paths of travel agreed upon by the Parties. Pending completion of physical modifications to the paths of travel, wheelchair pushers may be used as an interim measure. Wheelchair pushers used on an interim basis are subject to the training requirements and other provisions outlined in Section VII.G.7.
b. Assignment of aides to inmates with Mobility Disabilities.
5. Where the County cannot provide programs or services at the locations designated in the Construction Plan and cannot find nonstructural measures to provide accessibility to programs and services, the County may refuse to provide the program or service to an inmate with a Mobility Disability only upon a showing that doing so would result in a fundamental alteration in the nature of the program, service, or activity, or would result in undue financial and administrative burdens.
6. The County shall maintain ADA Accessible facilities in operable working condition. Isolated or temporary interruptions in access to these facilities due to maintenance or repairs are not prohibited if the County is exercising reasonable diligence in addressing the maintenance or repairs.
7. Once paths of travel are made compliant with this Remedial Plan, wheelchair pushers may continue to be used for inmates who need assistance traveling long distances, unless otherwise requested by the inmates. Appropriately screened inmates and/or Custody Staff chosen to assist inmates who use wheelchairs shall receive initial and periodic training as to their job duties and performance criteria. The training shall cover how to safely and properly assist inmates with Mobility Disabilities. The ADA Unit shall evaluate wheelchair
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pushers which shall include feedback from the inmates with Mobility Disabilities. Inmates with Mobility Disabilities have the right to refuse a wheelchair pusher, and in that circumstance, the ADA Unit shall determine an appropriate alternative reasonable modification.
H. If an inmate with a Mobility Disability requires transportation in a vehicle—e.g., to court or to a medical appointment at an outside facility— the vehicle used to transport the inmate must be ADA Accessible. Specifically, inmates who use wheelchairs on permanent bases and/or inmates who have difficulty navigating steps without assistance must be transported in vehicles equipped with a wheelchair lift and other safety equipment mandated by the Department of Motor Vehicles and the Department of Transportation. If the Department of Motor Vehicles and Department of Transportation standards conflict, the applicable standard that provides greater protections to individuals with a Mobility Disability shall govern.
VIII. POLICY REVIEW AND REVISION
A. The County is reviewing and revising, as needed, all policies, procedures, Post Orders, and forms, including those for Adult Custody Health Services, and the Inmate Orientation book, to be consistent with the provisions in this Remedial Plan. Plaintiffs’ Counsel shall be provided the opportunity to comment on these documents.
B. Policy Revision Process
1. Within 30 days of the execution of the Consent Decree, the Parties shall meet and confer to designate the policies that require revision to address key portions of this Remedial Plan
2. The County shall provide Plaintiffs’ Counsel with draft proposed revisions to the agreed upon policies within 120 days of the execution of the Consent Decree unless a longer timeframe is mutually agreed upon by the Parties.
3. The designated policies shall be finalized with one year of the execution of the Consent Decree unless the Parties agree to a longer time frame.
C. The County shall train relevant Staff on new or revised policies and procedures as detailed in Section X.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 45 of 64
IX. ADA COORDINATOR
A. The County has appointed a full-time ADA Coordinator, a lieutenant who reports directly to the Assistant Sheriff. The ADA Coordinator shall oversee all issues related to inmates with Mobility Disabilities, including, but not limited to, classification; housing; inspection, maintenance, provision, and removal of Mobility Devices; and responding to Mobility Disability-related requests and inmate grievances pursuant to County policy.
B. The County shall not modify the job description of the ADA Coordinator without consultation with Plaintiffs’ Counsel.
C. As soon as practical, but under no circumstances more than ninety (90) days after an inmate has been identified as having a Mobility Disability, the ADA Coordinator and/or her or his staff shall personally meet with each new inmate housed in the Jail who is identified as having a Mobility Disability. The meeting with the ADA Coordinator shall be for the purpose of ensuring that the inmate is housed in a cell and unit that accommodates his or her Mobility Disability; has the appropriate Mobility Device(s) and/or other reasonable modifications; ensuring the inmate has equal access to Jail programs for which she or he is eligible but for his or her Mobility Disability; ensuring the inmate has access to grievance forms to raise disability-related issues; and to advise the inmate of personnel who can assist her or him with reasonable modification needs. For an inmate identified as having a Mobility Disability who remains in the Jails for more than six (6) months, the ADA Coordinator and/or her/his staff shall meet with the inmate at least once every six (6) months until the inmate is released from the Jail.
D. The ADA Coordinator is charged with facilitating ADA Mobility-Disability related training to Custody Staff and Adult Custody Health Services Staff, and with monitoring programs and work assignments to ensure meaningful access for all inmates with Mobility Disabilities. The ADA Coordinator shall have sufficient staffing (the “ADA Unit”) to assist him or her regarding Mobility-Disability issues.
E. During any period where the ADA Coordinator is unavailable for more than thirty (30) days, a sergeant or higher-ranked individual shall fulfill the duties of the ADA Coordinator position until the ADA Coordinator becomes available or a replacement is appointed to the position.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 46 of 64
F. The ADA Coordinator shall attend and complete a certificate-course designed for ADA coordinators and obtain a certification and maintain said certification with updates and continuing education courses. Any replacement ADA Coordinator or interim ADA Coordinator shall obtain his or her ADA certification within twelve (12) months of starting in the position.
X. TRAINING
A. The County provided eight (8) hours of mutually agreed upon ADA training to all DOC Academy Cadets, Custody Staff, and Adult Custody Health Services Staff members in 2015 and 2016.
B. Training on New Policies and Procedures
1. Within six (6) months of the finalization of the revised policies and procedures (see Section VIII), the Parties shall select a mutually agreed upon trainer to train on the revised policies and procedures. Within the same six (6) month period, the selected trainer shall develop a curriculum for training Custody and Adult Custody Health Services Staff on the revised policies and procedures. The trainer shall then train Custody and Adult Custody Health Services Staff as outlined in Sections X.C.2 and X.D.2.
2. Within nine (9) months of the trainer’s preparedness to conduct the training, the trainer shall train 90 percent of Custody and Adult Custody Health Services Staff, and make reasonable efforts to train all Custody and Adult Custody Health Services Staff, on new policies and procedures or revised policies and procedures adopted pursuant to relevant topics in this Agreement. Critical Staff, such as the ADA Coordinator, ADA Unit, Intake Staff, and Medical Providers shall be prioritized for training during the first three months.
C. On-Going Training to Custody and Adult Custody Health Services Staff
1. The County shall provide eight hours of ADA training to all DOC Academy classes.
2. After completion of the training in Section X.B, the County shall provide a biennial training by a mutually agreed upon trainer to train Custody and Adult Custody Health Services Staff.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 47 of 64
D. The County may engage a consultant to provide one 24-hour Train the Trainer (T4T) ADA training to prepare the County to take over the responsibility of providing ongoing ADA training and the responsibility of providing biennial refresher training.
E. The appropriate length, format, and method of the training for Staff, including different types of Staff, will be developed in consultation with Plaintiffs’ counsel. Plaintiffs’ Counsel shall have the right to comment on all of the above-listed training modules in advance of their roll-out and to observe any of the aforementioned trainings upon request.
XI. FACILITY MODIFICATIONS AND ADJUSTMENTS
A. Facilities
1. The County currently has two jail facilities:
a. Main Jail (presently, Main Jail North and South).
b. Elmwood (presently, Elmwood Correctional Center for Men and Correctional Center for Women).
2. The County intends to build a new jail (“New Jail”). However, if the County determines it will not build the New Jail, the parties will meet and confer within thirty (30) days of such determination to discuss any additional construction that may be necessary at the Jails to meet the needs of inmates with Mobility Disabilities.
3. The County shall not house inmates with Mobility Disabilities at Main Jail South or Elmwood W1.
4. The County shall maintain ADA Accessible features required by this Agreement in operable working condition. This requirement does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.
B. New Jail
1. The New Jail shall be constructed in accordance with all applicable construction requirements under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and California Government Code Section 11135 (“Section 11135”).
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2. The New Jail shall include at least three percent ADA Accessible cells or 20 ADA Accessible cells, whichever is greater. The New Jail will provide housing for Level 2 and 3 inmates at a minimum.
C. Main Jail North 1. Booking Area (Basement Level): The County shall make the following ADA Accessible: a. One transaction counter for men; b. One transaction counter for women; c. One single occupancy holding cell for men; d. One multiple occupancy holding cell for men; e. One dress out area, including shower; f. One television shelf in the general occupancy classification holding cell; g. One mirror for inmate use; and h. One pay telephone for inmate use. i. The Parties agree that in lieu of making one holding cell for women ADA Accessible, the County shall use the dress out area in the bathroom/shower for women with Mobility Disabilities. 2. Property Release Area: The County shall make the following ADA Accessible: a. One transaction counter; and b. One bench in holding room. c. The Parties agree that in lieu of making the property release area restroom ADA Accessible, the County shall provide access, immediately upon request, to a restroom located in the lobby.
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3. Second Floor: a. General Use Area and Medical Unit (2A): The County shall make the following ADA Accessible: i. One dental examination room; ii. Remove access barriers and install a high-low table in one examination room on the unit; iii. One medical waiting area cell with accessible restroom; iv. The counter in one visiting cell; and v. One telephone in the pro per interview room. b. Special Housing (2B): The County shall make the following ADA Accessible: i. Eight cells; ii. One shower (excluding a fixed bench) and one bathtub; iii. One table in the dayroom and one table in the multipurpose room; and iv. One piece of exercise equipment. v. The Parties agree that in lieu of providing fixed benches in ADA Accessible showers, the County shall adopt a policy of providing a safe and secure shower chair which shall be readily accessible and provided immediately upon request to an inmate with a Mobility Disability. c. Infirmary (2C): The County shall make the following ADA Accessible: i. Two dorms with a combined minimum of 8 beds; ii. Eight cells;
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 50 of 64
iii. One shower (excluding a fixed bench) and one bathtub;
iv. One table in the dayroom and one table in the multipurpose room;
v. Call buttons; and
vi. One piece of exercise equipment.
vii. The Parties agree that in lieu of providing fixed benches in ADA Accessible showers, the County shall adopt a policy of providing a safe and secure shower chair which shall be readily accessible and provided immediately upon request.
4. Fourth and Fifth Floor Housing Units: The County shall make the following ADA Accessible: a. Five cells on the 4th floor; b. Five cells on the 5th floor; c. The counter in one visiting room on the 4th floor; d. The counter in one visiting room on the 5th floor;
e. One shower serving each of the designated housing units on the 4th floor;
f. One shower serving each of the designated housing units on the 5th floors;
g. One table in the dayroom serving each of the designated housing units on the 4th and 5th floors;
h. One table in the multipurpose room serving each of the designated housing units on the 4th and 5th floors;
i. One payphone and one mirror in the dayrooms serving each of the designated housing units on the 4th and 5th floors; and
j. One piece of exercise equipment.
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5. Eighth Floor (Mental Health/Special Management Housing): The County shall make the following ADA Accessible:
a. The door threshold of the Seclusion/Safety cell;
b. Four cells in 8A and one cell in 8B;
c. One shower with flip-down shower bench serving each of the designated housing units;
d. One table in the dayroom serving each of the designated housing units;
e. One table in the multipurpose room serving each of the designated housing units;
f. One payphone and one mirror in the dayrooms serving each of the designated housing units; and
g. One piece of exercise equipment.
h. The Parties agree that in lieu of providing additional ADA Accessible cells on 8A, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on 8A, be transferred to the County hospital if there is not appropriately accessible housing for the inmate’s needs on 8A.
i. The Parties also agree that in lieu of providing additional ADA Accessible cells on 8B, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on 8B, shall be housed in another appropriate accessible housing unit at the Jail and shall be provided with services equivalent to what the inmate would have received in 8B in that housing unit.
D. Elmwood Facility
1. General:
a. The County shall install ADA Accessible water fountains in housing areas, program areas, and along paths of travel utilized by inmates with Mobility Disabilities.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 52 of 64
b. Paths of Travel: The County agrees to make the Paths of Travel used by inmates with Mobility Disabilities affixed as Attachment 1 ADA Accessible.
c. Processing Area: The County shall make the following ADA Accessible:
i. One restroom; and
ii. Dress out area for male and female inmates.
iii. The Parties agree that in lieu of making the holding cells ADA Accessible, the County shall adopt a policy of placing an inmate with a Mobility Disability outside of the holding cells either on or next to the seating area and shall ensure that the inmate with a Mobility Disability is moved directly to housing, limiting the amount of time in the processing area.
iv. The Parties agree that in lieu of making the showers ADA Accessible, the County shall not use the showers unless needed for decontamination or biohazard cleanup in the rare circumstance where contamination or biohazard incident occurs in the immediate area, in which case the inmate shall be offered appropriate assistance. An inmate with a Mobility Disability has the right to refuse assistance, in which case the inmate shall be transported to an alternative ADA shower for decontamination.
d. Information Center: The County shall make the following ADA Accessible:
i. The counter; and
ii. One restroom.
iii. The Parties agree that the room for attorney visits located in the Information Center shall have a small table to allow sufficient clearance space for an inmate with a Mobility Disability. The County agrees to provide a small table and maintain sufficient clearance space at all times.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 53 of 64
e. M1 – (Upper Floor): The County shall make eight cells ADA Accessible to house men and/or women.
f. Medical Facility: The County shall make the following ADA Accessible:
i. The restroom serving the waiting area.
ii. The Parties agree that in lieu of installing a bench in the X-ray changing room, the County shall adopt a policy of providing a chair for an inmate with a Mobility Disability. The County further commits to ensuring all movable furniture shall not be placed in paths of travel.
2. Elmwood Men’s
a. Operations Facilities: The County shall make the following ADA Accessible:
i. The counter located in the library;
ii. One restroom in the workshop area;
iii. One restroom near the classrooms;
iv. The threshold to classroom doors except that the County is not required to modify the cross-slope of the walkway that abuts the classrooms; and
v. Table or work bench where used by Mobility Impaired inmates.
b. Men’s Minimum Security Housing (Level 1 Dorm-Style Housing): The County shall make the following ADA Accessible:
i. Twenty-five beds spread across at least two different housing units;
ii. The entryway/ramps to the housing units;
iii. One shower and restroom serving the designated housing units; and
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 54 of 64
iv. One table in the designated housing units.
c. Men’s Dining Hall for Minimum Security (Level 1) Inmates: The County shall make the following ADA Accessible:
i. Five percent of the seating capacity; and
ii. One ADA-designated portable toilet that meets California Building Code 11B-603 outside the dining hall.
d. Men’s Recreation Yard for Minimum Security (Level 1) Inmates: The County shall make the following ADA Accessible:
i. Handrails on the path to the volleyball court;
ii. Paved route from ADA housing unit(s) to the handball courts and basketball courts, or paved route from ADA housing unit(s) to and around the perimeter of the field; and
iii. One piece of exercise equipment.
e. Men’s Medium Housing (Level II and III Inmates): The County shall make the following ADA Accessible:
i. Cell-Style Housing at M4 and/or M5:
(1) Four cells in a minimum of two different cellstyle housing units;
(2) One shower serving each of the designated housing units;
(3) One dayroom table serving each of the designated housing units;
(4) Cane detectable railing serving each of the designated housing units;
(5) Remove access barriers and install a high-low table in one examination room on the housing unit; and
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 55 of 64
(6) One piece of exercise equipment.
(7) The Parties agree that in lieu of providing additional ADA Accessible cells in M4 and/or M5, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on M4 and/or M5, shall be housed in ADA Accessible dorm-style housing at the same security level or lower.
ii. Dorm-Style Housing Units in M3 and/or M8
(1) Twenty-five beds spread across at least two different housing units;
(2) One restroom serving each of the designated housing units;
(3) One shower serving each of the designated housing units;
(4) One dayroom table serving each of the designated housing units;
(5) Cane detectable railing serving each of the designated housing units;
(6) Remove access barriers and install a high-low table in one examination room on the unit;
(7) One piece of exercise equipment; and
(8) One holding cell in M8.
3. Elmwood – Women’s
a. W-2 Dorm Style Housing for Minimum and Medium (Level 1 and 2 Inmates): The County shall make the following ADA Accessible:
i. Eight beds in a minimum of two different housing units;
ii. One restroom serving the housing units;
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 56 of 64
iii. One shower serving the designated housing unit; iv. One table serving the designated housing unit; v. Cane detectable railings in designated housing unit;
and vi. One piece of exercise equipment. b. W-4 Cell-Style Housing Medium and Maximum Security Inmates (Level II, III, and IV Inmates): The County shall make the following ADA Accessible: i. Four cells in two different housing units; ii. One restroom serving the designated housing units; iii. One shower serving the designated units; iv. One table serving the designated units; v. Cane detectable railings in designated units; vi. Walkway and thresholds to the yards on the designated
units; vii. Restroom in court holding cell; viii. Bench in visiting area; and ix. One piece of exercise equipment. c. Level IV inmates shall not be housed in the W-1 dorm setting. d. Modular Classrooms: The County shall make ADA Accessible any classrooms serving Elmwood Women’s ADA Accessible housing, including the associated paths of travel. XII. MONITORING PLAN A. The County shall develop a Monitoring Plan to ensure effective internal oversight and accountability procedures to comply with the nonconstruction related portions of this Agreement. Plaintiffs’ Counsel shall be provided the opportunity to comment on the Monitoring Plan.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 57 of 64
B. The County shall develop a construction schedule for the Construction Plan. Plaintiffs’ Counsel shall be provided with an opportunity to comment on the plan.
XIII. GRIEVANCE AND ADA REQUEST SYSTEM
A. ADA Requests
1. The County will provide and maintain a readily available mechanism for inmates to make a request for reasonable modifications independent of the grievance system (“ADA Request”).
2. The ADA Coordinator or a member of the ADA Unit shall review the ADA Request within seven (7) days of receipt of such a request and, where appropriate, provide the requested reasonable modification and/or begin the verification process as set forth in Section III.
B. Grievance System
1. The County shall provide and maintain an inmate grievance system that provides for prompt and equitable resolution of complaints by inmates with Mobility Disabilities who allege disability-related violations.
2. The County grievance form shall continue to include a checkbox or similar means to identify that the request and/or grievance is ADArelated. The County shall train grievance staff to route “ADA” grievances appropriately even if the inmate who filed the grievance did not check the “ADA” checkbox.
3. The ADA Coordinator or a member of the ADA Unit shall review all ADA-related complaints, assign an ADA-trained staff person to investigate the complaints, and/or interview the inmate to the extent his or her complaint or requested reasonable modification is unclear, and provide a substantive written response to the inmate. The total response time for all ADA-related grievances (but not appeals) shall be no more than 30 days from receipt.
4. All ADA-related grievances and responses, including provision of interim reasonable modifications, shall be documented and tracked in the ADA Tracking System.
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Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 58 of 64
C. Expedited ADA Unit Review of Urgent ADA Requests and Grievances 1. The ADA Unit shall screen ADA Requests and ADA-related grievances for ADA-related issues that, if true, would subject the inmate to a substantial risk of injury or other harm, which include: (a) unauthorized removal of an inmate’s Mobility Device by Custody Staff; and (b) failures to provide housing-related reasonable modifications following a determination that the inmate requires such reasonable modification. 2. If the ADA Unit finds that the issue can be addressed through an interim modification, the ADA Unit shall provide such interim modification promptly, but in any case no later than seven (7) days from receipt of the ADA Request or Grievance. If the risk to health or safety cannot be addressed through an interim accommodation, within seven days from receipt of the ADA Request or Grievance, the ADA Unit shall, as appropriate: (1) confer with the Captain or his or her superior; and/or (2) arrange for a medical consultation with a Medical Provider for resolution of the ADA Request or Grievance. The ADA Unit shall also provide written notification to the inmate of the action(s) taken within the same seven-day period.
Santa Clara County ADA Remedial Plan Page 28

Case 5:16-cv-06594-LHK Document 72 Filed 12/07/18 Page 59 of 64
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 Case 5:16-cv-06594-LHK Document 1 Filed 11/14/16 Page 1 of 58

DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 MARY-LEE SMITH (CA BAR NO. 239086)

MICHELLE IORIO (CA BAR NO. 298262) 2 Disability Rights Advocates

2001 Center Street, Fourth Floor 3 Berkeley, California 94704

4

Telephone: Facsimile:

(510) 665-8644 (510) 665-8511

5 TTY: Email:

(510) 665-8716 msmith@dralegal.org

6

GAY GRUNFELD (CA BAR NO. 121944) 7 LISA ELLS (CA BAR NO. 243657)

KARA JANSSEN (CA BAR NO. 274762)

8 Rosen Bien Galvan & Grunfeld LLP

9

50 Freemont Street, 19th Floor San Francisco, California 94105

10 Telephone: (415) 433-6830 Facsimile: (415) 433-7104

11 Email:

LElls@rbgg.com

12 Attorneys for Plaintiffs

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15 DAVID COLE, LEROY BENJAMIN, 16 ERASMO FLORES, JR., ROBERT
PHILLIPS and BRANDON WILLIAMS, on
17 behalf of themselves and all others similarly situated,
18
Plaintiffs, 19

CLASS ACTION
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

v. 20

COUNTY OF SANTA CLARA, a public 21 entity, COUNTY OF SANTA CLARA

22

DEPARTMENT OF CORRECTION, a public entity under the control of the County of Santa

23 Clara, the COUNTY OF SANTA CLARA OFFICE OF THE SHERIFF, a public entity

24 under the control of the County of Santa Clara,

and DOES 1 to 20, inclusive,

25

Defendants. 26

27

28

Case 5:16-cv-06594-LHK Document 1 Filed 11/14/16 Page 2 of 58

DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1

Plaintiffs DAVID COLE, LEROY BENJAMIN, ERASMO FLORES, JR., ROBERT

2 PHILLIPS and BRANDON WILLIAMS (collectively, “Plaintiffs”), by and through their

3 counsel, Disability Rights Advocates and Rosen Bien Galvan & Grunfeld LLP, bring this

4 Complaint against Defendants COUNTY OF SANTA CLARA (“COUNTY”), COUNTY OF

5 SANTA CLARA DEPARTMENT OF CORRECTION (“CORRECTION DEPARTMENT”) and

6 the COUNTY OF SANTA CLARA OFFICE OF THE SHERIFF (“SHERIFF’S OFFICE”)

7 (collectively, “Defendants”).

8

INTRODUCTION

9

1. Plaintiffs bring this case to remedy the inaccessibility of the Santa Clara County

10 Jail system (“County Jails,” “Jails,” or “Jail”) for inmates with mobility disabilities. The Jail

11 system is the fifth largest jail system in the State of California. Due to the lack of accessible

12 cells, showers, and living units in the County Jails, many individuals with mobility disabilities

13 are segregated in restrictive medical units despite the fact they do not require ongoing medical

14 care, and/or are held in higher security and more restrictive settings than they otherwise would be

15 but for their disabilities. They are further denied access to educational, religious, and

16 rehabilitative programs due to physical and programmatic barriers, and cannot even use the toilet

17 and shower safely due to a lack of accessible features. Inmates are not informed of their rights,

18 are not provided with a method for requesting reasonable modifications to policies and practices,

19 and are denied access to a functioning and meaningful grievance system.

20

2. There are approximately 4,000 people incarcerated in the Jails at any given time

21 and over 65,000 individuals are booked into the Jails every year. The Jails include facilities at

22 the Santa Clara County Main Jail Complex (“Main Jail”), consisting of Main Jail North and

23 Main Jail South, in San Jose, California; facilities for male inmates at the Elmwood Correctional

24 Complex in Milpitas, California (“Elmwood”); and the Elmwood Complex Women’s Facility in

25 Milpitas, California (“Elmwood Women’s Facility”).

26

3. In the entire County Jail system, there is not a single housing unit that is fully

27 accessible in compliance with state and federal disability laws. As a result, inmates with

28 mobility disabilities cannot use the toilet safely and independently, take a shower safely and

3041703-29

CIVIL CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

1

Case 5:16-cv-06594-LHK Document 1 Filed 11/14/16 Page 3 of 58

DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 independently, or otherwise have equal or meaningful access to programs and services offered at

2 the Jails. Further, this lack of accessible housing puts the physical safety of inmates with

3 mobility disabilities at risk.

4

4. Additionally, there is no functioning system of screening inmates upon intake to

5 ensure inmates with mobility disabilities are identified and accommodated. To the extent

6 Defendants are able to identify individuals with mobility disabilities, the County Jails lack a

7 system to track the location and needs of inmates identified as having a mobility disability,

8 causing Jail staff to fail to accommodate the inmates’ disability needs..

9

5. Inmates with mobility disabilities regularly are housed in a medical setting and/or

10 a higher custody level than warranted based solely on their disability. Inmates in the Main Jail

11 with mobility disabilities who need a wheelchair are required to be housed in “special housing

12 units” including the Main Jail Infirmary, Unit 2C (“Main Jail Infirmary”) and Main Jail Special

13 Housing, Unit 2B (“Main Jail Special Housing”). Additionally, medium security inmates with

14 mobility disabilities who need a wheelchair and who would otherwise be eligible for housing at

15 the less restrictive Elmwood facility are housed at in these special housing units at the Main Jail

16 instead.

17

6. The Main Jail Infirmary and Main Jail Special Housing units are each 30-bed

18 facilities that are, on information and belief, the only housing at the Main Jail that offer any

19 accessible features, such as grab bars, although these units are still not fully accessible.

20 Individuals housed in these units are generally held in their cells for 23 or more hours per day

21 and are sometimes not let out at all. These units do not provide access to programs, activities,

22 and services, including educational, vocational, and rehabilitative programs available in other

23 areas of the Main Jail or at Elmwood. Similarly, minimum security level inmates with mobility

24 disabilities who use a wheelchair are required to be housed in the Elmwood Minimum Security

25 Camp Special Housing Unit (“Elmwood Special Housing”), which also is not fully accessible.

26

7. Plaintiffs seek declaratory and injunctive relief against Defendants as a remedy

27 for their systemic discrimination against inmates with mobility disabilities. Defendants

28 discriminate in two predominant ways. First, Defendants deny inmates with disabilities access to

3041703-29

CIVIL CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

2

Case 5:16-cv-06594-LHK Document 1 Filed 11/14/16 Page 4 of 58

DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 the County Jails’ programs, services and activities. They do so at the Main Jail by segregating

2 inmates who use wheelchairs, including inmates who would otherwise be eligible to be housed at

3 the lower-security Elmwood, in the highly restrictive special housing units and by maintaining a

4 physically inaccessible facility, the combination of which prevents inmates with mobility

5 disabilities from participating in programs, services and activities at the Main Jail. At Elmwood,

6 the denial of access to the programs, services and activities offered is due mostly to the

7 physically inaccessible campus, which is particularly troubling given the far greater amount of

8 programming available at Elmwood.

9

8. Second, Defendants discriminate by failing to modify their policies and

10 procedures. Defendants fail to identify and/or track inmates with mobility disabilities, making it

11 virtually impossible to properly accommodate them. Defendants have assistive device policies

12 and procedures that result in inmates with mobility disabilities rarely, and certainly not in a

13 timely manner, receiving the assistive devices that they need. Jail staff also lack the adequate

14 disability-accommodation training, which only exacerbates Defendants’ failure to provide legally

15 required accommodations. Defendants also lack clear grievance policies and procedures for

16 disability-related grievances, rendering the grievance system almost useless in achieving any sort

17 of remedy. As a result of these actions and omissions, inmates with mobility disabilities are

18 denied equal and meaningful access to Defendants’ programs, services, and activities, including

19 educational programs, vocational programs, health care services, mental health services,

20 exercise, showers, recreational programs and religious services.

21

9. Moreover, Defendants’ failure to modify its policies and procedures makes

22 inmates with disabilities susceptible to exploitation and violence by other non-disabled inmates

23 and increases the risk of serious injury or even death for inmates with disabilities.

24

10. Defendants’ acts and omissions have resulted in the unequal treatment of, and

25 severe harm to, individuals with mobility disabilities housed at the County Jails. Such

26 discrimination violates Title II of the Americans with Disabilities Act (“ADA”), Section 504 of

27 the Rehabilitation Act (“Rehabilitation Act” or “Section 504”), and California Government

28 Code § 11153, et seq.

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1

JURISDICTION

2

11. This Court has jurisdiction over Plaintiffs’ federal claims arising under Title II of

3 the ADA, and Section 504 of the Rehabilitation Act and the regulations promulgated thereunder,

4 pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over the claims brought

5 under California law pursuant to 28 U.S.C. § 1367.

6

12. This Court has jurisdiction over Plaintiffs’ claims for declaratory and injunctive

7 relief pursuant to 28 U.S.C. §§ 2201 and 2202. This Court also has authority under the ADA

8 pursuant to 42 U.S.C. § 12205 and under Section 504 pursuant to 29 U.S.C. § 794a(b) to award

9 Plaintiffs’ reasonable attorneys’ fees and costs.

10

VENUE

11

13. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(b)

12 because Defendants are located in this District and all of the acts and/or omissions complained of

13 herein have occurred, are occurring, or will occur in the District.

14

INTRADISTRICT ASSIGNMENT

15

14. Pursuant to the Northern District of California’s Civil Local Rule 3-2(c)-(e),

16 because a substantial part of the events giving rise to Plaintiffs’ claims occurred in Santa Clara

17 County, the intradistrict assignment should be to the San Jose Division.

18

PARTIES

19

A. PLAINTIFF DAVID COLE

20

15. Plaintiff DAVID COLE has diabetes and Charcot neuropathy, or “Charcot foot,”

21 a permanent condition caused by nerve damage related to diabetes. As a result, Plaintiff COLE

22 does not have sensation in his feet, and something as minor as a blister can lead to a serious

23 infection in a matter of days. It is extremely difficult for Plaintiff COLE to bear any weight on

24 his feet as this can accelerate and exacerbate damage to his foot. As a result of these conditions,

25 which substantially limit Plaintiff COLE’s ability to walk and stand, Plaintiff COLE uses a

26 wheelchair to move about. Plaintiff COLE is a person with a disability as defined in 42 U.S.C. §

27 12102, 29 U.S.C. § 705(9)(B), and California Government Code § 12926(1).

28

16. Plaintiff COLE has been detained at the County Jails since November 14, 2012.

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1 During this time he was housed at the Main Jail Infirmary, Main Jail Special Housing, and

2 Elmwood Special Housing. Since approximately July 6, 2016, he has been housed in an early

3 release residential treatment center.

4

17. During his time in the County Jails, Plaintiff COLE has required reasonable

5 modifications to policies and procedures necessary to ensure disability-related accommodations,

6 including but not limited to a wheelchair, wheelchair-accessible facilities, wheelchair-accessible

7 transportation, a shower chair, diabetic socks, Epsom salt foot soaks, insulin shots four times

8 daily, and a diabetic diet. As a result of Defendants’ failure to make reasonable modifications to

9 policies and procedures, Plaintiff COLE has experienced substantial delays and other problems

10 obtaining each of these required accommodations, and in some cases, as a result of Defendants’

11 failure to make reasonable modifications to policies and procedures, he has been denied

12 necessary accommodations.

13

18. For example, at Elmwood, in order to get his insulin shots, Plaintiff COLE had to

14 travel to Elmwood’s pill call area at least four times daily over an inaccessible path of travel. In

15 order to get there he had to rely on other inmates to assist him in opening heavy doors and

16 pushing his wheelchair up steep curb ramps. The Jail subsequently began assigning inmates to a

17 “wheelchair pusher” position to assist individuals such as Plaintiff COLE, but the wheelchair

18 pusher program does not provide the independence that other inmates enjoy. Additionally, there

19 are not always enough wheelchair pushers available to serve the need for such pushers,

20 particularly during busy times such as pill call, and they have often been late to bring Plaintiff

21 COLE to get his medication. Contributing to the problem is that the wheelchair pushers have

22 other jobs and, thus other obligations that prevent them from being available when needed. As

23 such, when no designated wheelchair pusher is available, Plaintiff COLE has had to rely on other

24 inmates in Elmwood Special Housing, many of whom also had disabilities, to assist him, which

25 put those inmates at risk of physical injury as well.

26

19. Plaintiff COLE also requires wheelchair-accessible vans when he is being

27 transported to court, medical appointments, or other services outside of the Jail, but has not been

28 consistently provided with accessible transportation. For example, Jail staff failed to provide

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1 him with a wheelchair accessible van to transport him to a medical appointment. Instead, Jail

2 staff suggested that he use a non-accessible van that required him to step in and out of the van

3 and go without his wheelchair to stabilize him. He refused this arrangement because he feared

4 for his physical safety and had to miss his medical appointment.

5

20. When Plaintiff COLE was at the Main Jail, even after he had his wheelchair

6 issued to him, Jail staff sometimes took it away from him. As a result, Plaintiff COLE was left

7 with no way to get around and without his wheelchair. Consequently, Plaintiff COLE was

8 excluded from many Jail programs, services, and activities, including Narcotics Anonymous and

9 Alcoholics Anonymous.

10

21. Plaintiff COLE was transferred to an early release program in July of 2016 to

11 complete the rest of his jail sentence. However, at any time, Plaintiff COLE may be removed

12 from the program and returned to Elmwood or to the Main Jail, including for such minor

13 offenses as arguing or violating dress code. He can also be remanded for failing a routine drug

14 test. Plaintiff COLE has been in and out of the County Jails many times since 1989 for drug and

15 theft charges. As such, he is qualified to participate in the programs, services and activities of

16 the County Jails.

17

B. PLAINTIFF LEROY BENJAMIN

18

22. Plaintiff BENJAMIN has pain in his left hip, shoulder, and leg due to bone loss

19 and disc degeneration, as well as paralysis on the left side of his body from the waist down,

20 which substantially limit his ability to walk and stand. As a result of these conditions, Plaintiff

21 BENJAMIN, has, at various times, used a power wheelchair, walker, and cane for mobility

22 assistance. Plaintiff BENJAMIN also has sleep apnea, which substantially limits his ability to

23 breathe and sleep, and so requires the use of a continuous positive airway pressure (“CPAP”)

24 machine, which he used prior to coming to the Jails. Plaintiff BENJAMIN currently uses a

25 wheelchair for mobility and a cane to assist him with moving about in his cell. Plaintiff

26 BENJAMIN is a person with a disability as defined in 42 U.S.C. § 12102, 29 U.S.C. §

27 705(9)(B), and California Government Code § 12926(1).

28

23. Plaintiff BENJAMIN has been detained at the Jails since October 3, 2015. Since

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1 arriving at the Jails, he has been housed in Main Jail South, the Main Jail Infirmary, Main Jail

2 Special Housing, and the mental health unit of the Main Jail, which is located on the eighth floor

3 (“Unit 8A”). Plaintiff BENJAMIN requires reasonable modifications to policies and procedures

4 necessary to ensure disability-related accommodations for his disabilities, including but not

5 limited to a wheelchair, cane, and CPAP machine. He has experienced substantial delays and

6 other problems obtaining each of these reasonable modifications, and in some cases has been

7 denied reasonable modifications.

8

24. Plaintiff BENJAMIN repeatedly has been housed in cells without accessible

9 features, such as grab bars, to allow him to use the toilet safely and independently. For example,

10 when he was housed in Main Jail South, he was placed in a cell with no grab bars to allow him to

11 use the toilet safely. Additionally, his current cell in Main Jail Special Housing only has a grab

12 bar located directly behind the toilet and no side grab bar to allow him to safely lift himself on

13 and off the toilet. As a result, he is at risk of falling and injuring himself every time he uses the

14 toilet and is forced to use his cane to try to stabilize himself.

15

25. He has also, at various times, been denied access to accessible shower facilities,

16 which has forced him to go without showers or to put himself at risk of injury due to the lack of

17 grab bars and other features that would allow him to bathe safely. For example, when Plaintiff

18 BENJAMIN first arrived at the Jails, he was housed in Main Jail South for approximately two

19 weeks without access to a shower with accessible features such as grab bars.

20

26. Plaintiff BENJAMIN was denied access to a wheelchair or cane upon arriving at

21 the Jails and when he was housed at Main Jail South. He was not provided with any assistive

22 devices until he was transferred to Main Jail Special Housing. He was again denied access to his

23 wheelchair and cane on multiple occasions when he was housed in Unit 8A in order to receive

24 mental health treatment.

25

27. Furthermore, Plaintiff BENJAMIN did not receive a CPAP machine until

26 approximately seven months after his initial request. Without his CPAP machine, Plaintiff

27 BENJAMIN wakes up feeling as if he is choking and is only able to sleep four to five hours per

28 night. The exhaustion caused by this lack of sleep worsens his pre-existing mobility disabilities.

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1 After he received a CPAP machine, Plaintiff BENJAMIN again suffered a mental health crisis

2 and requested treatment in Unit 8A. Jail staff told him that he could not go to Unit 8A for mental

3 health treatment with his assistive devices.

4

28. By reason of his disabilities, Plaintiff BENJAMIN has been excluded from

5 programs and services at the Jail such as mental health treatment, visitation, shower, and yard

6 time.

7

29. At any time, Plaintiff BENJAMIN may be transferred from the Main Jail to

8 Elmwood or vice versa. As such, he is qualified to participate in the programs, services and

9 activities of the County Jails.

10

C. PLAINTIFF ERASMO FLORES, JR.

11

30. Plaintiff ERASMO FLORES, JR. has multiple disabilities including a vision

12 impairment, diabetes, water in his legs, and arthritis in his knees and shoulder, which

13 substantially limit his ability to walk and stand. As a result of these conditions, Plaintiff

14 FLORES typically uses a cane or a walker for mobility but has used a wheelchair since

15 September 2016 due to a surgery. Plaintiff FLORES is a person with a disability as defined in

16 42 U.S.C. § 12102, 29 U.S.C. § 705(9)(B), and California Government Code § 12926(1).

17

31. Plaintiff FLORES has been detained at the County Jails since April 28, 2015.

18 Since arriving at the County Jails, he has been housed in Elmwood, the Main Jail Infirmary, Unit

19 5B in the Main Jail, and in Main Jail Special Housing. When Plaintiff FLORES was initially

20 brought to the County Jails, he did not have his cane with him. Although he requested a cane

21 shortly after he arrived, Defendants initially rejected his request on the basis that he could not

22 have the cane in Unit 5B, where he was held at the time. Plaintiff FLORES did not receive a

23 cane until approximately three to four months later when he was transferred to the Main Jail

24 Infirmary for other reasons.

25

32. Plaintiff FLORES has repeatedly been housed in cells without grab bars and other

26 accessible features that would allow him to safely and independently use the toilet and navigate

27 his cell. He has also repeatedly been forced to use a shower that is not accessible to him due to a

28 lack of clearance space for him to get into the shower from his wheelchair and a lack of grab

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1 bars, putting him at risk of injury. While housed in Unit 5B, Plaintiff FLORES was not only

2 deprived use of a cane but was held in an inaccessible cell without features such as grab bars and

3 without access to an accessible shower. In Unit 5B, Plaintiff FLORES constantly was afraid of

4 falling and injuring himself and came close to falling multiple times due to the lack of grab bars

5 and his cane. While housed in Elmwood, Plaintiff FLORES was also held in an inaccessible cell

6 and was at risk of injuring himself due to the lack of grab bars in his cell. Plaintiff FLORES’

7 current cell in Main Jail Special Housing is also not accessible because the only grab bar is

8 located directly behind the toilet and there is no side grab bar to allow him to safely lift himself

9 on and off the toilet. As a result, he is at risk of falling and injuring himself every time he uses

10 the toilet.

11

33. Additionally, when Plaintiff FLORES is held in the Main Jail Infirmary and in

12 Main Jail Special Housing, he is denied access to programs and services available to non-

13 disabled inmates due solely to his disabilities, including but not limited to day room, yard time,

14 bible study, and religious services.

15

34. At any time, Plaintiff FLORES may be transferred from the Main Jail to

16 Elmwood or vice versa. As such, he is qualified to participate in the programs, services and

17 activities of the County Jails.

18

D. PLAINTIFF BRANDON WILLIAMS

19

35. Plaintiff BRANDON WILLIAMS is paralyzed from the waist down. As a result

20 of this condition, which substantially limits his ability to walk and stand, Plaintiff WILLIAMS

21 uses a wheelchair for mobility and is a person with a disability as defined in 42 U.S.C. § 12102,

22 29 U.S.C. § 705(9)(B), and California Government Code § 12926(1).

23

36. Plaintiff WILLIAMS has been detained at the County Jails since August 12, 2016

24 and until approximately October 13, 2016 was housed in the Main Jail Infirmary despite the fact

25 he did not require any ongoing medical care. While housed in the Main Jail Infirmary, Plaintiff

26 WILLIAMS was denied access to programs and services available to non-disabled inmates due

27 solely to his disabilities including, but not limited to, day room and yard time, educational

28 programs, and vocational programs. Plaintiff WILLIAMS requested to be moved to Elmwood

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1 multiple times in order to access such programs. Despite having been medically cleared prior to

2 submitting his request for transfer and having been approved for transfer to Elmwood, he was not

3 actually transferred for nearly a month. Plaintiff WILLIAMS filed a grievance on this issue on

4 October 7, 2016 which was denied on October 10, 2016 on the basis that he could not go to

5 Elmwood because he is an un-sentenced felon and because he had not been medically cleared,

6 which was inaccurate because he was medically cleared prior to submitting his grievance.

7 However, despite this response, Plaintiff WILLIAMS was nonetheless moved to Elmwood on

8 approximately October 13, 2016. Plaintiff WILLIAMS is currently housed in the Elmwood

9 Special Housing unit where he continues to face barriers due to lack of clearance space for him

10 to safely navigate his unit, cracked and broken pavement, a lack of accessible exercise

11 equipment, and a lack of accessible yard space.

12

37. Plaintiff WILLIAMS also requires wheelchair-accessible transportation to go to

13 court and to medical appointments. While he has been provided with a wheelchair-accessible

14 van, Jail staff failed to properly secure Plaintiff WILLIAMS’ wheelchair and his wheelchair

15 flipped over with him in it during transport. As a result, Plaintiff WILLIAMS was physically

16 injured and missed his court hearing because he had to go to the hospital.

17

38. At any time, Plaintiff WILLIAMS may be transferred from the Main Jail to

18 Elmwood or vice versa. As such, he is qualified to participate in the programs, services and

19 activities of the County Jails.

20

E. PLAINTIFF ROBERT PHILLIPS

21

39. Plaintiff ROBERT PHILLIPS has slipped discs in his back and suffered multiple

22 injuries in 2015, including nerve damage caused by a surgery on his neck, which cause him to

23 drag his right foot when he walks. He suffered additional physical injuries in 2015 to his legs

24 and back as a result of two separate car accidents. As a result of these conditions, which

25 substantially limit his ability to walk, Plaintiff PHILLIPS uses a cane for mobility and is a person

26 with a disability as defined in 42 U.S.C. § 12102, 29 U.S.C. § 705(9)(B), and California

27 Government Code § 12926(1).

28

40. Plaintiff PHILLIPS has been detained at the Main Jail since July 25, 2016. When

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1 he was arrested, he had his cane with him but the arresting officers did not bring it with him to

2 the Jail. Without his cane it is difficult for Plaintiff PHILLIPS to keep his balance when he

3 walks and he is at risk of falling and injuring himself. When Plaintiff PHILLIPS initially arrived

4 at the Jail, he was housed at the Main Jail in Unit 4C and was not assessed to determine whether

5 he needed a cane. Plaintiff PHILLIPS was initially housed in an inaccessible cell located on the

6 upper tier, which required the use of stairs. Jail staff also shackled Plaintiff PHILLIPS’ legs,

7 which, in combination with his lack of cane and dragging foot, made it dangerous for him to

8 walk and to navigate stairs. As a result, Plaintiff PHILLIPS fell down the stairs and suffered

9 injuries. Despite repeated requests, Plaintiff PHILLIPS was not issued a cane for nearly three

10 months after being booked into the County Jails. Once he was finally issued a cane, it was only

11 on a temporary basis, and he has not been approved to use the cane permanently to date. The Jail

12 has also refused to give him the necessary medical documentation, known as a “chrono,” to

13 ensure he is housed in a lower bunk and on a lower tier.

14

41. After several weeks in Unit 4C, Plaintiff PHILLIPS was transferred to Unit 5A.

15 Plaintiff PHILLIPS has also been held for short periods in the Main Jail Infirmary. In both Units

16 4C and Unit 5A, Plaintiff PHILLIPS has been housed in cells without any grab bars to allow him

17 to use the toilet safely and independently. The only shower he is permitted to use also lacks grab

18 bars and a shower seat to allow him to bathe safely and independently. To make matters worse,

19 when he is out of his cell, Jail staff continue to shackle Plaintiff PHILLIPS’ hands and feet. This

20 makes it incredibly dangerous for him to move about because his right foot drags when he walks

21 which, combined with the shackles on his feet, can cause him to lose his balance. Since July 25,

22 2016, Plaintiff PHILLIPS has fallen multiple times due to the shackles and his lack of a cane for

23 support. He is unable to brace himself for a fall due to the shackles and, each time he has fallen,

24 he was knocked unconscious by the force.

25

42. At any time, Plaintiff PHILLIPS may be transferred from the Main Jail to

26 Elmwood or vice versa. As such, he is qualified to participate in the programs, services and

27 activities of the County Jails.

28

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1

D. Defendants

2

43. Defendant SANTA CLARA COUNTY is a public entity, duly organized and

3 existing under the laws of the State of California. The COUNTY operates and manages the

4 County Jails and is, and was at all relevant times mentioned herein, responsible for the actions

5 and/or inactions and the policies, procedures, practices, and customs of the SHERIFF’S OFFICE

6 and CORRECTION DEPARTMENT, and their respective employees and/or agents. The

7 COUNTY employs 50 or more persons and is ultimately responsible for, and retains ultimate

8 authority over, the operation of the Jails in the COUNTY, including the housing and treatment of

9 Plaintiffs and the class they seek to represent. Upon information and belief, the COUNTY

10 receives state and federal funds for the operation of the County Jails and has received such funds

11 at all times relevant to this complaint.

12

44. Defendant SANTA CLARA COUNTY OFFICE OF THE SHERIFF is a public

13 entity, duly organized and existing under the laws of the State of California and employs 50 or

14 more persons. Sheriff Laurie Smith is the County Sheriff. The annual budget of the SHERIFF’S

15 OFFICE – which is separate from the CORRECTION DEPARTMENT budget – is over

16 $150,000,000. The SHERIFF'S OFFICE oversees the jail system for Santa Clara County and is

17 responsible for day-to-day operation of the County Jails, including promulgating policies and

18 procedures for the operation of the County Jails and the safety and security of approximately

19 4,000 inmates who are held in the County Jails. Upon information and belief, the SHERIFF’S

20 OFFICE receives state and federal funds for the operation of the County Jails and has received

21 such funds at all times relevant to this complaint.

22

45. Defendant CORRECTION DEPARTMENT is a public entity, duly organized and

23 existing under the laws of the State of California and employs more than fifty persons. The

24 CORRECTION DEPARTMENT has an annual budget of over $90,000,000. The Chief of

25 Correction for the CORRECTION DEPARTMENT is Carl Neusel. The Chief of Correction also

26 acts as undersheriff in the SHERIFF’S OFFICE and supervises the Assistant Sheriff of Custody

27 and Services who, in turn, supervises custody managers at each of the facilities as well as

28 custody administrative and support services. The CORRECTION DEPARTMENT is

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1 responsible for the care and custody of incarcerated pretrial and sentenced offenders in the

2 County Jails and a day reporting center, providing approximately 4,000 approved inmate housing

3 beds. The CORRECTION DEPARTMENT also manages detainees in a court holding facility in

4 conjunction with the SHERIFF’S OFFICE. Upon information and belief, the CORRECTION

5 DEPARTMENT receives state and federal funds for the operation of the County Jails and has

6 received such funds at all times relevant to this complaint.

7

46. Plaintiffs are ignorant of the true names and capacities of Defendants sued in this

8 complaint as DOES 1 through 20, inclusive, and therefore sue these Defendants by such

9 fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities

10 when ascertained. Plaintiffs are informed and believe, and thereon allege that each of the

11 fictitiously named Defendants is responsible in some manner for the occurrences alleged in this

12 complaint.

13

47. At all times mentioned in this complaint, each Defendant was the agent of the

14 others and was acting within the course and scope of this agency, and all acts alleged to have

15 been committed by any one of them was committed on behalf of every other Defendant.

16

FACTUAL ALLEGATIONS

17

A. Background

18

48. The Santa Clara County jail system is the fifth largest jail system in California,

19 and among the twenty largest systems in the United States. The County jail system is among the

20 100 systems nationwide with an inmate population of more than 1,000. The average daily

21 population for the County Jails in 2015 was approximately 3,638 inmates.

22

49. The Custody Division of the SHERIFF’S OFFICE in conjunction with the

23 CORRECTIONS DEPARTMENT oversees the County Jails. The County Jails include the Main

24 Jail Complex, in downtown San Jose, which houses both men and women; and the Elmwood

25 Correctional Complex, located in Milpitas, which includes the Elmwood Men’s Facility and the

26 Elmwood Women’s Facility.

27

50. The County Jails’ facilities have undergone construction and/or alterations since

28 January 26, 1992 and since July 26, 1992. In particular, several units at the Elmwood

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1 Correctional Complex were constructed in the 1990’s including building M-8, which was

2 constructed in 1996. Additionally, Barrack 3, which is part of the minimum security housing at

3 Elmwood, was remodeled in 2008.

4

Main Jail

5

51. The Main Jail Complex houses medium security, medium high security, and high

6 security inmates and is located at 150 West Hedding Street in downtown San Jose. All arrestees,

7 both male and female, are booked into custody at the Main Jail. The annual budget for the Main

8 Jail is approximately $37 million. Each year, the Main Jail receives and books approximately

9 65,000 persons. The average length of stay is approximately 110 days. The Main Jail Complex

10 is divided into Main Jail North and Main Jail South. Individuals at the Main Jail are housed in

11 either dorm-style housing units, where many beds are placed in an open area shared by inmates,

12 or in celled housing, where the unit is divided into cells and inmates are housed individually or

13 with a small number of cellmates.

14

52. Main Jail North, which includes general population, Main Jail Special Housing,

15 and Main Jail Infirmary, is designed to house up to 919 inmates and was opened in 1987.

16

53. Main Jail North uses the direct supervision inmate management model where

17 correctional deputies oversee inmates from within locked housing units. Inmate areas include

18 the basement level, which contains intake, booking, and court staging functions; the second

19 floor, which includes the health center, special housing, and infirmary; the fourth floor, which

20 includes maximum and high-maximum housing; general inmate housing on floors five through

21 seven; and mental health services on the eighth floor. Housing units contain up to 48 cells

22 holding one or two inmates each and have a central common area with tables, chairs, television,

23 telephones, and a shower. Each cell contains a toilet, sink, mirror, and bed.

24

54. Correctional deputies in “direct supervision” housing, such as those in Main Jail

25 North, are locked in an inmate housing unit and are responsible for all aspects of inmate care and

26 custody including programming (time out of cell), meals, pill calls, headcounts, and removal

27 from cells for court appearances and seeing visitors. Staffing is such that the majority of housing

28 units have only one correctional deputy on duty which means that a single correctional deputy

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1 may be responsible for the care and custody of up to 96 inmates.

2

55. Main Jail South opened in 1956 and has a rated capacity of 674 inmates. Main

3 Jail South uses the indirect supervision model, which was widely used in the 1950’s, and houses

4 inmates in the linear style with bars and tiers. Individuals in Main Jail South are held in a mix of

5 cells and dorms. Inmates housed in cells have a toilet and lavatory in the cell with common

6 shower facilities nearby. Inmates housed in dorms have a common toilet and shower area with

7 each pair of sleeping areas sharing a common dayroom.

8

Elmwood Correctional Complex

9

56. Elmwood Men’s Facility, opened in the early 1960s, houses approximately 2,350

10 medium- and minimum-security male inmates. Elmwood has buildings that vary in shape and

11 size and uses both the direct and indirect supervision models. The campus is divided into five

12 separately fenced housing compounds with central support facilities including medical, intake,

13 laundry, kitchen, and chapel. The men’s minimum security housing is a compound of nine older

14 barracks-style buildings plus the Special Housing unit, which are all dorm-style housing.

15 Medium security inmates are held in dorm-style housing in buildings designated as M-2, M-3,

16 M-4, and M-5. They may also be held in celled housing in M-8. The facility employs 265

17 correctional officers and 25 administrative support personnel and hosts a large number of

18 volunteers and programs staff. Elmwood has an operating budget of approximately $32 million

19 a year.

20

57. The Elmwood Complex Women’s Facility was established in 1964 and houses

21 approximately 650 female inmates of all security levels and uses both the direct and indirect

22 supervision models. Maximum security female inmates are housed in dorm-style housing in

23 building W-1. Minimum and medium security female inmates are housed in dorm-style housing

24 in building W-2. Female inmates who need medical services are housed in building W-4. The

25 Women’s Facility is staffed by 81 correctional officers, four sergeants, and seven administrative

26 support personnel, and is a base of operations for a number of volunteers and staff. The annual

27 operating budget is about $ 7 million.

28

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1

B. Defendants Discriminate Against Inmates with Mobility Disabilities

2

1. At Main Jail Facilities, Defendants’ Unnecessary Segregation of Inmates

3

with Disabilities Combined with the Facility’s Physical Inaccessibility Denies Inmates with Disabilities Access to Programs, Services and

4

Activities.

5

58. Inmates with mobility disabilities are unnecessarily segregated due to (1)

6 Defendants’ practice of prohibiting the use of wheelchairs at the Main Jail outside of the Main

7 Jail Infirmary and Main Jail Special Housing; and (2) the physical inaccessibility of the Main Jail

8 facilities. Because of this segregation, inmates with mobility disabilities are denied access to

9 Defendants’ programs, services and activities.

10

Defendants’ Limits on Assistive Devices

11

59. Inmates with mobility disabilities who require assistive devices are regularly

12 housed in a medical setting and in a higher level of custody due solely to their disability and need

13 for an assistive device such as a wheelchair.

14

60. The Santa Clara Valley Health and Hospital System Adult Custody Health

15 Services Standards Manual Policy 4130-ASS14, which upon information and belief was last

16 revised in 2009, defines “Special Housing patients” to include individuals who cannot be housed

17 elsewhere in the jails due to “special medical equipment” including assistive devices, such as

18 wheelchairs, walker, crutches, canes, prostheses, slings, cases, splints, immobilizers, braces,

19 supports, or other orthotics, or CPAP machines. Upon information and belief, in practice

20 inmates who rely on certain assistive devices, such walkers, canes, crutches and prostheses, are

21 now being allowed to retain these devices when housed outside of the Special Housing units.

22 However, inmates who rely on wheelchairs continue to be restricted to the Special Housing units.

23

61. Rather, at the Main Jail, inmates who use wheelchairs for mobility are typically

24 housed in either the Main Jail Infirmary or Main Jail Special Housing, both of which are

25 segregated units for inmates with disabilities. Inmates in the Main Jail Infirmary and Main Jail

26 Special Housing units are extremely isolated and often locked in their cells for 23 or more hours

27 per day and sometimes not allowed out at all.

28

62. Medium security inmates who use wheelchairs and who would otherwise be

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1 eligible for housing at Elmwood are instead housed at the Main Jail due solely to their

2 disabilities. As such they are denied access to the additional programs, services, and activities

3 offered at Elmwood, which are not available at Main Jail.

4

63. These special housing units are not the most integrated settings appropriate to the

5 needs of inmates with mobility disabilities. Defendants’ policy of placing inmates who use

6 wheelchairs in these units has resulted in Plaintiffs and many other inmates with mobility

7 disabilities being unnecessarily segregated into highly restrictive special housing units in the

8 Main Jail and places many more such inmates at serious risk of unnecessary segregation.

9

Physical Inaccessibility of Defendants’ Main Jail Facilities

10

64. The County Jails’ facilities were assessed in 2015 by experts at Sabot Consulting

11 to identify barriers at the Jails related to mobility disabilities (“Report”).

12

65. Main Jail North is not physically accessible to inmates with mobility disabilities.

13 According to the Report, typical physical barriers observed in Main Jail North include: (1) doors,

14 including cell doors and doors to visiting areas, that are too narrow for wheelchairs; (2)

15 inaccessible toilets and lavatories due to a lack of grab bars, improper positioning of toilets in a

16 manner that fails to provide adequate clearance for a person with a mobility disability, and grab

17 bars and lavatories which are not provided at the correct height; (3) ramps with excessive slopes;

18 (4) showers that are inaccessible due to curbs or lips, lack of grab bars, lack of shower seats, and

19 lack of spray hose; (5) tables in day rooms and in the chapel that are inaccessible due to a lack of

20 knee space; (6) inaccessible visiting areas that are not usable by wheelchair users due to the

21 presence of a fixed stool; (7) call buttons and telephones that are placed too high for a wheelchair

22 user to reach; (8) lack of clearance in the law library; (9) lack of accessible routes; and (10) lips

23 at thresholds that present a barrier to wheelchair users and a tripping hazard to persons using

24 canes, walkers, or other mobility assistive devices.

25

66. Main Jail South is also not physically accessible. According to the Report, typical

26 physical barriers observed in Main Jail South include: (1) cell doors that are too narrow for

27 wheelchairs; (2) inaccessible toilets and lavatories due to a lack of grab bars and improper

28 positioning of toilets in a manner that fails to provide adequate clearance for a person with a

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1 mobility disability; (3) ramps with excessive slopes; (4) showers that are inaccessible due to

2 curbs or lips, lack of grab bars, lack of shower seats, and lack of spray hose; (5) tables in day

3 rooms and in the chapel that are inaccessible due to a lack of knee space; and (6) inaccessible

4 visiting areas that are not usable by wheelchair users due to the presence of a fixed stool.

5

67. Inmates who are medium security and higher and who require wheelchairs are

6 housed in either the Main Jail Infirmary or Main Jail Special Housing. These are the only

7 housing units in the Main Jail facilities that contain cells and showers with some accessible

8 features, such as grab bars. However, these units still contain physical barriers for inmates with

9 mobility disabilities and are not fully accessible. For example, both Plaintiff BENJAMIN and

10 Plaintiff FLORES are housed Main Jail Special Housing in cells where the toilet is missing a

11 side grab bar to allow them to safely lift themselves on and off the toilet. Instead, the only grab

12 bar is located directly behind the toilet, which is of no practical use. As a result, Plaintiff

13 BENJAMIN and FLORES, who both use wheelchairs, are at risk of falling and injuring

14 themselves every time they use the toilet.

15

68. Individuals at the Main Jail who use assistive devices besides a wheelchair, such

16 as a cane, may be housed outside of the Main Jail Infirmary or Main Jail Special Housing.

17 However, these units are not accessible to inmates with disabilities and lack grab bars in the

18 showers and toilets to allow inmates with mobility disabilities to bathe and go to the bathroom

19 safely. For example, Plaintiff PHILLIPS uses a cane due to his mobility disability and is

20 currently housed in Unit 5A in a cell without grab bars and without an accessible shower.

21 Plaintiff PHILLIPS was previously held in Unit 4C in a cell that also lacked grab bars and where

22 he did not have access to an accessible shower. Another inmate who uses a cane due to a

23 mobility disability has been held in Main Jail South on the seventh floor and in Units 4B and 4C

24 at the Main Jail; in all of these locations, this inmate was housed in cells without an accessible

25 toilet with grab bars and without access to an accessible shower.

26

69. Upon information and belief, Defendants did not conduct a full and

27 comprehensive Self-Evaluation of the Main Jail and/or a Transition Plan for the Main Jail in

28 compliance with Title II of the Americans with Disabilities Act, and/or Section 504 of the

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1 Rehabilitation Act of 1973, and/or California Government Code § 11135.

2

Denial of Programs, Services and Activities Due to Segregation

3

70. Inmates with disabilities segregated in these restrictive units – due either to the

4 policy prohibiting wheelchairs or due to physical inaccessibility – are excluded from the range of

5 programs available to inmates housed in the general population units. Because these inmates are

6 sometimes locked in their cell for the entire day, they are denied access to even basic services

7 and activities, including showers, phone calls, and recreation. At the Main Jail, few programs

8 are made available to inmates with mobility disabilities who are housed in the segregated, highly

9 restrictive units due to their need for wheelchairs.

10

71. In particular, inmates with mobility disabilities housed in the Main Jail Infirmary

11 and Main Jail Special Housing Unit are not provided with equal, and in some cases any, access

12 to: (1) the recreational library or law library; (2) religious programming; (3) commissary; (4)

13 visiting, including attorney visiting; (5) recreational activities, including yard, dayroom,

14 telephones, and recreational reading; and (6) inmate programs and work assignments.

15

72. The only formal programs offered to individuals with disabilities housed in the

16 Main Jail Special Housing or the Main Jail Infirmary are limited to self-study workbooks that do

17 not involve leaving one’s cell.

18

73. For example, Plaintiff BENJAMIN is housed in Main Jail Special Housing and is

19 currently denied access to the full spectrum of rehabilitative and educational programs offered at

20 the Jail that would allow him to earn certificates of completion. Plaintiff BENJAMIN has also

21 not been able to participate in treatment programs offered in other parts of the Jail because of his

22 wheelchair and CPAP machine. Plaintiff WILLIAMS was also denied access to educational and

23 vocational programs when he was housed in the Main Jail Infirmary. When he is housed in Main

24 Jail Special Housing and in the Main Jail Infirmary, Plaintiff FLORES is similarly denied access

25 to programs he would have otherwise been able to access when housed at Elmwood, including

26 bible study programs. Plaintiff COLE was also not allowed to leave his cell in the Main Jail

27 Infirmary and Main Jail Special Housing to participate in any classes or rehabilitative

28 programming. Other inmates have been denied access to such classes, programs, and services,

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1 including the opportunity to work on their GED, while housed in these segregated units.

2

74. Inmates who are housed in the Main Jail Infirmary and in Main Jail Special

3 Housing due to their need for wheelchairs are also denied access to the less formal services

4 offered in the Jails because they are housed in units where they are let out of their cells for an

5 hour or less per day and sometimes not at all.

6

75. For example, because of their disabilities and the physical inaccessibility of the

7 showers, inmates with mobility disabilities often need additional time to shower. Because

8 inmates who use wheelchairs are housed in restrictive, segregated units at the Jails and therefore

9 generally have an hour or less out of their cells, these individuals are frequently forced to choose

10 between calling loved ones or their attorneys, socializing with other inmates and taking care of

11 basic needs such as showering. On days when they are not let out at all from their cells, they are

12 denied access to all of these activities.

13

76. Plaintiffs COLE and BENJAMIN have been locked in their cells in Main Jail

14 Special Housing and in the Main Jail Infirmary for many consecutive days with no way to get to

15 a phone to even call an attorney. This breach of the Plaintiffs’ rights is in direct violation of the

16 Jail’s own rules in the Inmate Orientation and Rulebook, which specifies that lockdowns shall

17 not restrict inmates’ access to legal help.

18

77. Because Plaintiff COLE uses a wheelchair, he has been held in Main Jail Special

19 Housing in a cell by himself for at least 23 hours per day, and some days he was not let out of his

20 cell at all. In the Main Jail Infirmary, Plaintiff COLE has been held in a small cell with three

21 other inmates for over 23.5 hours most days, and some days he was never let out of his cell at all.

22 In both Main Jail Special Housing and Main Jail Infirmary, Jail staff have explicitly refused to

23 allow Plaintiff COLE out of his cell during daytime hours on weekdays to call his attorneys.

24 Instead, Jail staff would only let him out during evening hours (around 9 p.m.) on weekdays, if at

25 all.

26

78. Plaintiff BENJAMIN has been held in Main Jail Special Housing in a cell by

27 himself for at least 23 hours per day. While he occasionally is let out for 1.5 hours, he is far

28 more frequently not let out of his cell at all. In the Main Jail Infirmary, Plaintiff BENJAMIN has

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1 been held for over 23.5 hours on certain days, and some days he was never let out of his cell at

2 all. Recently, Plaintiff BENJAMIN was not allowed out of his cell at all for fourteen days in a

3 row. During this time he was in his cell 24 hours a day and was not provided with any

4 explanation for why he was not being allowed out.

5

79. Plaintiff WILLIAMS has similarly been held in the Main Jail Infirmary for over

6 two months in a cell by himself for approximately 23 hours per day, and some days was not let

7 out at all. Plaintiff FLORES is currently housed in Main Jail Special Housing and typically kept

8 in his cell for 23 hours a day and sometimes not let out at all.

9

80. Upon information and belief, other inmates with mobility disabilities are likewise

10 denied the opportunity to participate in the Jails’ programs, services, and activities because of

11 these inmates’ placement in the special housing units because of their mobility disabilities.

12

2. Due to the Physical Inaccessibility of the Elmwood Facilities, Inmates

with Disabilities Are Denied Access to Defendants’ Programs, Services

13

and Activities.

14

81. As with the Main Jail facilities, the Elmwood Correctional Complex is not

15 physically accessible to inmates with mobility disabilities. According to the Report, typical

16 barriers found at Elmwood include: (1) doors, including cell doors and doors to visiting areas,

17 that are too narrow for wheelchairs; (2) inaccessible toilets and lavatories due to a lack of grab

18 bars, improper positioning of toilets in a manner that fails to provide adequate clearance for a

19 person with a mobility disability, and grab bars and lavatories which are not provided at the

20 correct height; (3) ramps with excessive slopes; (4) showers that are inaccessible due to curbs or

21 lips, lack of grab bars, lack of shower seats, and lack of a spray hose; (5) tables in day rooms,

22 inmate work and program areas, and the chapel that are inaccessible due to a lack of knee space;

23 (6) lack of accessible routes that present a barrier to wheelchair users and a tripping hazard to

24 persons using canes, walkers, or other mobility assistive devices; (7) a lack of high/low drinking

25 fountains to accommodate wheelchair users and individuals who have difficulty bending or

26 stooping and which are not located outside the path of travel; and (8) inaccessible classroom

27 buildings due to presence of stairs, curbs, excessive slopes, and narrow doorways.

28

82. In particular, all of the visiting areas at Elmwood are inaccessible due to the lack

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1 of clear floor space due to fixed stools, all of the group holding cells in the medical unit lack

2 compliant toilet grab bars and knee space, all of the holding cell doors are too narrow and none

3 of the minimum housing barracks provide fully accessible toilet and shower facilities.

4

83. Individuals who use wheelchairs and are medium security, and who would

5 otherwise be eligible to be housed at Elmwood, are instead held above their custody level at

6 Main Jail in the highly restrictive special housing units discussed above due solely to their

7 disability. As such these medium-security inmates with disabilities are denied access to the many

8 additional programs, services, and activities offered at Elmwood.

9

84. Minimum security inmates who use wheelchairs, however, are housed at

10 Elmwood, but are restricted to Elmwood Special Housing. Elmwood Special Housing is not

11 fully accessible and contains physical barriers for inmates with mobility disabilities. Elmwood

12 Special Housing consists of 16 beds and shared restroom facilities. The bunks are arranged so

13 close together that there is insufficient space for a wheelchair to turn around in the aisle space

14 between bunks, let alone for two wheelchair users to pass each other. This makes it consistently

15 difficult for individuals who use wheelchairs to access their bunks, and impossible to access their

16 bunks if two wheelchair users are assigned adjacent bunks. Additionally, the sink in the unit’s

17 restroom is too high for individuals who use wheelchairs to comfortably use, and the shower

18 lacks grab bars.

19

85. For example, Plaintiff COLE experienced barriers when housed in Elmwood

20 Special Housing because the bunks are arranged too close together, thus limiting or even

21 precluding physical access to the bunks for people who use wheelchairs, walkers, or other

22 mobility aids. Plaintiff WILLIAMS has also experienced barriers related to the lack of sufficient

23 clearance for wheelchair users.

24

86. Individuals at Elmwood who do not need wheelchairs are typically held in the

25 minimum security camp barracks and medium security units, but these units and barracks are not

26 fully accessible to inmates with mobility disabilities, including lacking grab bars in showers and

27 toilets as described above. Nonetheless, inmates who have mobility disabilities requiring

28 accessible features have been housed in these inaccessible units and barracks.

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1

87. Elmwood’s recreational facilities are also inaccessible for inmates with mobility

2 disabilities. For example, Plaintiff COLE could not wheel himself to Elmwood’s large yard

3 because the path of travel was too uneven and the pavement was broken in places, requiring him

4 to ask a fellow inmate to push him. The yard itself was not accessible to him because it is one

5 big grassy area with bumpy and uneven dirt paths. Additionally, a curb leading to the yard and

6 the absence of ramps prevented safe access to the yard. The inmate helping him tried to back

7 Plaintiff COLE’s wheelchair over the curb into the grass and dirt, causing Plaintiff COLE to

8 nearly fall out of his wheelchair. Ultimately, Plaintiff COLE had to stay in his wheelchair on the

9 grass. Plaintiff WILLIAMS has experienced similar barriers. Plaintiff WILLIAMS has also

10 experienced barriers accessing the special housing unit yard due to lack of an accessible path of

11 travel and lack of accessible exercise equipment.

12

88. Multiple programs are offered at Elmwood, including all prison industries

13 programs, job readiness and exit planning, the literacy program, the domestic violence workshop,

14 codependency education, computer skills, art, and classes on parenting skills. Inmates must

15 travel at least 100 yards to get to the classroom areas in Elmwood. However, inmates with

16 mobility disabilities cannot safely and independently get to the classrooms where programs are

17 offered because of physical barriers. Such barriers include broken pavement, steep curb cuts,

18 heavy doors, and long routes outdoors to the classrooms where these programs are held. These

19 same physical barriers also impede the ability of inmates with mobility disabilities to access

20 necessary medical treatment. Traveling to the classroom areas or medical facilities is even more

21 inaccessible in the rain, as pushing a wheelchair with wet wheels on an already barrier-ridden

22 path can become dangerous and impossible. Also, when Elmwood does not clean up debris –

23 such as tree limbs – after a storm, it makes it even more difficult for inmates with mobility

24 disabilities to travel.

25

89. Due to the fact that these programs are not offered in a location or manner that is

26 accessible to inmates who need assistive devices, inmates with disabilities are unable to work to

27 reduce their sentences in the same manner as their nondisabled peers and may also be unable to

28 comply with court-ordered requirements to participate in certain programs. For example,

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1 Plaintiffs COLE and WILLIAMS have both been housed in Elmwood Special Housing due to

2 their need for a wheelchair. Both Plaintiffs COLE and WILLIAMS have been forced to travel

3 along an inaccessible path in order to get to pill call to get necessary medications, or to get to

4 classrooms to participate in other programs. As a result, Plaintiff COLE had to use all his energy

5 to wheel himself to pill call and did not have energy remaining to wheel himself to classes. After

6 repeated requests to access programs, Jail staff recently arranged for an inmate to push Plaintiff

7 COLE’s wheelchair to classes for the Regimented Correctional Program (“RCP Program”) and

8 to pill call. Plaintiff WILLIAMS has recently also been provided with a wheelchair pusher to get

9 him to medical appointments, pill call, and classes. This proposed solution of a wheelchair

10 pusher does not allow for Plaintiffs COLE and WILLIAMS to independently access classrooms

11 and services; instead, they must rely on other inmates, thereby increasing their risk of being

12 exploited by those inmates. Wheelchair pushers are not always available to assist inmates who

13 use wheelchairs and the wheelchair pusher program does nothing to obviate the obstacles

14 presented to a person who uses a cane, walker, or other assistive device for mobility.

15 Additionally, the wheelchair pusher program does not prevent damage to an inmate’s wheelchair

16 due to the cracked and uneven pavement. For example, the front wheel of Plaintiff WILLIAMS’

17 wheelchair was damaged while he was being pushed to a medical appointment when he was

18 pushed into an area with cracked pavement and his wheel was bent from colliding with the

19 uneven section.

20

90. The Elmwood Women’s Facility is also not accessible. According to the Report,

21 typical barriers found at the Elmwood Women’s Facility include: (1) showers that are

22 inaccessible due to curbs, lack of grab bars, lack of shower seats, and lack of spray hose; (2)

23 inaccessible toilets and lavatories due to lack of grab bars, the improper positioning of toilets in a

24 manner that fails to provide adequate clearance for a person with a mobility disability, and

25 toilets and lavatories which are not provided at the correct height; (3) inaccessible faucets at

26 lavatories; and (4) lack of knee space at tables in the day room to allow for a wheelchair user.

27

91. In the Elmwood Women’s Facility, female inmates with mobility disabilities are

28 typically housed in building W-4, which is the medical unit. This unit is not accessible.

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1 According to the Report, typical barriers found in building W-4 include: (1) inaccessible toilets

2 due to lack of grab bars and improper positioning of grab bars; (2) lack of knee space at tables in

3 dayrooms, (3) stairs that lack a cane-detectable railing; (4) phones that are placed too high for

4 wheelchair users; and (5) excessive slopes without handrails in various paths of travel. In

5 particular, there are no accessible showers in building W-4. All showers in W-4 have a one inch

6 high curb and/or lack folding seat, spray house and grab bars. Further, all isolation cells and

7 court holding cells in W-4 lack grab bars at the toilet.

8

92. Upon information and belief, Defendants did not conduct a full and

9 comprehensive Self-Evaluation of the Elmwood Correctional Complex and/or a Transition Plan

10 for the Elmwood Correctional Complex in compliance with Title II of the Americans with

11 Disabilities Act, and/or Section 504 of the Rehabilitation Act of 1973, and/or California

12 Government Code § 11135.

13

3. Defendants Fail to Make Reasonable Modifications to Their Policies,

Practices and Procedures to Avoid Discrimination Against Inmates with

14

Disabilities.

15

93. Compounding the denial of access to programs, services and activities offered at

16 the County Jails, Defendants fail to modify to their policies, practices and procedures in ways

17 that could provide such access.

18

a. Defendants Lack Adequate Policies and Practices to Identify and

Track Inmates with Disabilities and to Ensure They Are Provided

19

with Reasonable Modifications.

20

94. Defendants have no comprehensive system for identifying and tracking

21 individuals with mobility disabilities and the accommodations and modifications they require.

22 As such, Defendants fail to provide the assistive devices needed and/or take away such assistive

23 devices without warning, and fail to provide appropriate housing for inmates with mobility

24 disabilities.

25

95. During the intake process, staff are supposed to identify inmates with disabilities

26 using the Medical Authorization Form. However, the form does not allow staff to identify all

27 potential needed accommodations. Additionally, Jail staff have not been properly trained on

28 how to identify people with disabilities, or how to use these forms, and therefore frequently fail

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1 to identify inmates with disabilities and/or the reasonable modifications they need to access Jail

2 programs and services. The current screening process is also not confidential and deters inmates

3 with mobility disabilities from self-reporting disabilities. For instance, Jail staff have, upon

4 information and belief, persistently failed to identify several older individuals who have great

5 difficulty walking as needing a cane or other mobility aid, despite the fact at least one of them

6 had been allowed to use a cane for six years while in state prison. Finally, the screening area

7 itself is physically inaccessible.

8

96. There is also no centralized electronic repository for approved Medical

9 Authorization Forms, which document disability information. Instead, only the inmate and the

10 housing unit deputy/officer have copies of these forms. To the extent that Defendants maintain

11 information about an inmate’s disabilities in any form, custody, medical, and clerical staff are

12 not provided with access to the information in a manner that would timely and effectively inform

13 them of an inmate’s disabilities and required reasonable modifications. Defendants also do not

14 maintain adequate information about inmates’ disabilities and related disability-related

15 accommodations in the inmates’ custody and/or medical files. Without a central depository,

16 approved Medical Authorization Forms may end up being lost, confiscated, or destroyed. For

17 example, deputies in his housing unit recently confiscated from his cell all of Plaintiff

18 PHILLIPS’ documents, and now has no record of his medical and disability-related needs.

19

97. Additionally, the classification unit has the improper authority to override a

20 physician’s authorization to provide a mobility-disabled inmate with the appropriate reasonable

21 accommodation, including assignment to accessible housing and allowance of an assistive

22 device.

23

b. Defendants’ Policies Relating to Assistive Devices Must Be

Modified In Order to Avoid Discriminating Against Persons with

24

Mobility Disabilities.

25

98. Defendants have failed to modify their practice of prohibiting the use of

26 wheelchairs at the Main Jail outside of the highly restrictive Main Jail Infirmary and Main Jail

27 Special Housing units. Defendants have also failed to modify their policy requiring medium

28 security inmates who use wheelchairs to be housed at the Main Jail even where such inmates

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1 would otherwise be eligible for housing at Elmwood.

2

99. Additionally, Defendants have failed to consistently provide inmates with needed

3 assistive devices, even after Defendants have identified the person as having a disability and as

4 needing a particular assistive device.

5

100. Multiple inmates with mobility disabilities housed at the Main Jail have been

6 denied access to needed assistive devices, including canes and walkers. As detailed in the

7 Report, an inmate with partially amputated feet has had his cane taken from him at booking and

8 was not promptly issued a replacement. Another inmate at Main Jail South with Myasthenia

9 Gravis, a muscular disease, had his cane taken away from him at booking and was not promptly

10 issued a replacement. Another inmate was denied access to a cane for nearly a year and a half

11 while housed in Main Jail South and on the fourth and seventh floors of the Main Jail despite the

12 fact that he lacks muscle in his legs due to injuries that left him partially paralyzed. Plaintiff

13 PHILLIPS was denied access to his cane for nearly three months despite repeated requests while

14 housed in the Main Jail in Unit 5C. Plaintiff FLORES was also denied access to his cane when

15 he was initially brought to the County Jails and was not allowed to have a cane or other assistive

16 device for the approximately five months he was housed in Unit 5B at the Main Jail.

17

101. Another inmate, who has a prosthetic leg, was not able to get stump socks (fabric

18 socks worn over the stump of an amputated limb) for his prosthetic leg for his first four to five

19 months in Main Jail Special Housing despite the fact that he asked for them. Stump socks are

20 critical to ensuring that the prosthetic limb does not damage the skin of the edge of the body

21 which attaches to the prosthetic limb. If a person with a prosthetic leg does not have stump

22 socks, the prosthetic limb can wear on the remaining skin, causing ulcers and infections that can

23 become serious enough so as to require amputation. For his first four months in Main Jail

24 Special Housing, this inmate had to ask family members to mail him stump socks because Jail

25 staff would not provide them to him.

26

102. Upon information and belief, Defendants did not initially identify an individual

27 with an amputated foot as needing reasonable modifications to policies and procedures necessary

28 to ensure disability-related accommodations. Jail staff took away his prosthetic leg and the

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1 special shoe for his prosthetic when he entered the Jail, making it extremely difficult for this

2 individual to walk. While he eventually got his prosthesis back, his leg had become infected and

3 too inflamed for him to use it. As a result, he was not able to ambulate to the library to attend

4 classes.

5

103. Where the Jails do provide an inmate with an assistive device, Defendants often

6 unjustifiably and abruptly take these devices away from inmates. For example, staff in the Main

7 Jail Infirmary suddenly took away Plaintiff COLE’s wheelchair, thus leaving him no means of

8 getting around. Jail staff returned it to him only when a family member called the Jail to

9 advocate on his behalf.

10

104. Upon entering the Main Jail, Defendants identified Plaintiff BENJAMIN as an

11 inmate with a disability and as needing a wheelchair. However, he was initially housed in Main

12 Jail South and was not provided with a wheelchair or other assistive device when he was there

13 except for when he had to go to court or other appointments outside of Main Jail South. Plaintiff

14 BENJAMIN was unable to meet with his attorney because he could not ambulate to the visiting

15 room without a wheelchair. Plaintiff BENJAMIN was also unable to shower, as he could not

16 ambulate to the shower without a wheelchair. Plaintiff BENJAMIN was eventually moved to the

17 Main Jail Infirmary and provided with a wheelchair but staff then confiscated it and left him

18 confined to his hospital bed. Further, staff confiscated Plaintiff BENJAMIN’s wheelchair when

19 he was housed in the Main Jail Special Housing unit, and he injured himself trying to maneuver

20 without one. Lastly, staff confiscated Plaintiff BENJAMIN’s wheelchair when he was housed in

21 the mental health unit, Unit 8A, on two separate occasions, forcing him to crawl on the ground to

22 transport himself.

23

105. Staff in Main Jail Special Housing suddenly took away another prisoner’s cane

24 for periods of up to several weeks, despite knowing that he could barely move without it and

25 despite the fact that Defendants had previously approved his use of the cane. Jail staff also took

26 away a different inmate’s wheelchair. Jail staff then rehoused both of the men in the Main Jail,

27 where both men were effectively bedridden without their assistive devices and consequently

28 were denied access to showers, phones, programs and recreation time.

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1

106. Similarly, Defendants have on multiple occasions taken away another inmate’s

2 brace and sling and moved him out of his lower bunk into an upper bunk, despite being aware

3 that he needed these reasonable modifications to policies and procedures necessary to ensure

4 disability-related accommodations. Staff in Main Jail Special Housing suddenly, and without

5 explanation, ripped off that inmate’ velcro arm brace and sent him to the Main Jail general

6 population, where he suffered increased pain and decreased strength in his broken arm with no

7 brace or support for it. That inmate was also given a top tier bunk, meaning that he frequently

8 had to climb a set of stairs to reach his bunk – a dangerous situation given his epilepsy and

9 inability to hold on to the rail due to his injured arm. Both while in the Main Jail and at

10 Elmwood, he was denied a bottom bunk. In both places, due to his disabilities, he fell from his

11 top bunk onto the hard floor below.

12

107. Another individual, who was approved for corrective shoes due to the fact that his

13 legs are not the same length, was only briefly allowed to use the shoes before Defendants took

14 them away without explanation. Without his shoes, his condition rapidly deteriorated to the

15 point where he required a wheelchair. However, even after the Jail issued this individual a

16 wheelchair, Jail staff proceeded to take it away on at least three occasions with no explanation,

17 even though his inability to walk had not changed. At one point, Main Jail staff withheld this

18 individual’s wheelchair for three months. Without his wheelchair, the individual was effectively

19 bedridden and unable to shower, make phone calls, go outside, or participate in any classes or

20 programs.

21

108. Defendants have also taken away the specialized shoe of an individual with a

22 prosthetic leg even though he required this shoe to keep the foot of his prosthesis in working

23 order. Defendants withheld the shoe for two weeks, and during that time, the individual

24 struggled to walk, and the foot of his prosthesis developed deep scrapes and tears. Eventually

25 the Jail staff returned his shoe, but by then, his prosthetic foot was destroyed to the point that he

26 had to replace his expensive prosthesis.

27

109. Defendants fail to consider inmates’ specific needs and abilities in assigning

28 assistive devices, to the detriment of those inmates’ overall health and safety. For example,

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1 when Plaintiff COLE entered Elmwood, he was given a boot for Charcot foot, even though he

2 asked for and needed a wheelchair. As a result, he had to walk on his affected foot, which

3 rapidly deteriorated until Plaintiff COLE needed a wheelchair and additional medical attention

4 soon thereafter. When another inmate with a mobility disability first arrived at Main Jail Special

5 Housing, he was allowed to use his wheelchair, until Jail staff took it away from him after

6 approximately five months and gave him a cane to use instead. Jail staff told him his ankle

7 would gain strength if he walked on it, but walking with a cane exacerbated this individual’s

8 ankle injury and caused it to swell. Although he could walk short distances with the cane, he

9 needed a wheelchair to travel long distances, which the Jail refused to provide. Another inmate

10 was provided with a cane after nearly a year and a half at the Jail but was then told he could only

11 use it to travel long distances and was not allowed to use it on his unit. Without his cane he is at

12 risk of losing balance due to a lack of muscle in his legs as a result of injuries that partially

13 paralyzed him.

14

110. Defendants also fail to provide properly operational assistive devices to inmates.

15 For example, at Elmwood and the Main Jail, Plaintiff COLE was forced for approximately one

16 year to use a wheelchair with nonfunctioning wheel locks, a broken footrest, and a front wheel

17 that was so wobbly even a Jail deputy could not properly steer him in the wheelchair. His

18 wheelchair often got caught in cracks and thresholds, making it even more difficult for him to

19 move around. Plaintiff COLE was eventually given a functioning wheelchair, though it was too

20 small for his size and weight and was, therefore, physically uncomfortable.

21

111. Additionally, for two weeks while housed in Main Jail South, Plaintiff

22 BENJAMIN was being denied access to a wheelchair or any other assistive device on his

23 housing unit. Instead he was provided with a hospital wheelchair intended to be pushed by a

24 caregiver or a person that aids the user in order to go to and from court and other medical

25 appointments. This type of wheelchair has only four tiny wheels, which made it nearly

26 impossible for Plaintiff BENJAMIN to propel himself on his own. In order to move without

27 assistance, therefore, Plaintiff BENJAMIN had to use his feet to scuttle forward and back on his

28

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1 own, which was very painful. In comparison, a wheelchair with two large back wheels is

2 designed to allow the user to propel himself with his arms without assistance.

3

112. Another individual at the Main Jail who relied on the use of a wheelchair was

4 given one that lacked a footrest, which he needed, and that was generally in very poor condition.

5 The lack of a footrest made it difficult for him to use the wheelchair to move about and keep his

6 feet safe.

7

113. The Jail has also failed to consistently provide accessible transportation to

8 inmates with mobility disabilities. Plaintiff COLE requires a wheelchair-accessible van with a

9 ramp or lift and proper securement for his wheelchair, but the Jail failed to provide him with one

10 to transport him to a medical appointment. As a result, Plaintiff COLE had to miss his medical

11 appointment or else face potential physical injury. Plaintiff WILLIAMS was physically injured

12 while being transported to court due to the failure of Jail staff to properly secure his wheelchair.

13 Because he was improperly secured inside the van, his wheelchair flipped over during transport

14 with him in it and he missed his court hearing because he had to go to the hospital instead.

15

114. Because of Defendants’ failure to modify its policies and procedures to ensure

16 equal access, inmates with disabilities are susceptible to exploitation by other inmates. In

17 exchange for help getting to the toilet, shower, or meals, or communicating with prison staff,

18 inmates with disabilities have been, for instance, required to pay other inmates.

19

115. To the extent the Jail has disability-related policies and procedures in place, the

20 County fails to adequately train Jail staff regarding such policies and procedures. The lack of

21 proper training is evident in the failure of staff to provide legally required accommodations. For

22 example, staff at the Main Jail do not consistently allow assistive devices outside of the Main Jail

23 Infirmary and Main Jail Special Housing. One inmate with a mobility disability housed in the

24 Main Jail on the fourth floor was not allowed to have his cane for over a year. When he was

25 finally provided with his cane, Jail staff would not permit him to use it in his housing unit it. He

26 is still only allowed to use it when he leaves his housing unit, and he is required to check it in

27 and out with custody officers when he returns to and leaves his unit to go elsewhere in the

28 facility. Upon information and belief, an inmate who uses a wheelchair was recently moved to

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1 the fourth floor and instead of allowing him to keep his wheelchair; Jail staff put him on top of a

2 mattress and dragged him into his cell where he was left without access to his wheelchair or any

3 other assistive device. Jail staff are also not adequately trained regarding how to properly secure

4 a wheelchair user for transportation, as discussed above.

5

c. Defendants Lack an Effective Grievance Procedure for Inmates

6

to Request Reasonable Modification.

7

116. Defendants do not provide an effective or functional grievance system for inmates

8 with disabilities and do not have a disability-specific grievance process or any way for an inmate

9 to mark their grievance as disability-related. There is no expedited process for disability-related

10 grievances that are emergent in nature and there is no process for provision of interim

11 accommodations for inmates during the time that the disability-related grievance is being

12 processed and considered.

13

117. Upon information and belief, the only formal notice inmates receive regarding

14 any Jail grievance procedure comes from the Inmate Orientation and Rulebook (“Rulebook”),

15 which is not consistently provided to inmates when booked into the Jail. For example, while

16 Plaintiff BENJAMIN received a copy of the Rulebook, Plaintiffs PHILLIPS and FLORES did

17 not. Plaintiff WILLIAMS was not provided with a Rulebook when he was booked into the Main

18 Jail and only received a copy nearly a month later when he was transferred to Elmwood. The

19 version of the Inmate Orientation and Rulebook currently provided to inmates states only that

20 grievances should be submitted by individuals, not groups, and may pertain to any condition of

21 confinement over which the Department of Correction has control. Inmates are directed to

22 request grievance forms from the Housing Unit Officer and to deliver completed grievances to

23 any officer on their unit. If the grievance is denied, inmates are told they may appeal the

24 decision by “writing a letter to the Facility Captain.” The Rulebook does not specify what

25 should be in this letter or provide an address for the Facility Captain, and inmates are not

26 provided with envelopes or stamps to allow them to mail their appeals. Jail staff are not

27 adequately trained or informed about this procedure and so are unable to assist inmates with the

28 logistics of any appeals. As a result of these deficiencies the appeals process is functionally

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1 unavailable to inmates.

2

118. The Inmate Orientation and Rulebook does not contain any information regarding

3 what process inmates with mobility disabilities should use to request disability-related

4 accommodations except for a statement that inmates with hearing impairments may request

5 accommodations such as assistive listening devices and interpreters. No other information

6 regarding inmates’ rights under the ADA is provided. Because inmates are not made aware of

7 the process, they make requests for accommodations using whatever means are available to

8 them, including verbally, through medical request forms known as white cards, and through the

9 grievance process detailed above. Until recently, inmates were charged three dollars to obtain

10 and submit a “white card” and it is not clear if the County Jails intend to reinstitute such an

11 illegal charge.

12

119. For example, Plaintiff PHILLIPS was not provided with any information at

13 orientation regarding how to request assistive devices. In order to obtain his cane, Plaintiff

14 PHILLIPS filed multiple requests using medical request forms and grievances. He also made

15 verbal requests to Jail staff and medical staff. These requests were ineffective and he did not

16 receive his cane until after he was visited by his attorney who advocated on his behalf.

17

120. Plaintiff FLORES was also not provided with any information regarding how to

18 request assistive devices and so attempted to request accommodations using white cards and by

19 verbally asking nurses. Another inmate requested an ADA Accommodations Form so that he

20 could get his cane back and in response a nurse told him that the Jail did not have any such form,

21 leaving him without a means to officially make his request. Without a consistent and effective

22 method to request reasonable accommodations or modifications, these inmates are denied timely,

23 equal, and meaningful access to Defendants’ programs, services, and activities.

24

121. In addition, Defendants routinely deny inmates with mobility disabilities access to

25 grievance forms that these inmates need to request reasonable modifications to policies and

26 procedures. Such modifications are necessary to ensure that the inmates receive the disability-

27 related accommodations to which they are entitled. In order to obtain grievance forms at the

28 County Jails, inmates either have to ask a custody officer in their unit for one, or hope that the

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1 forms will be available in the common areas of their housing unit, which is rare. This sporadic

2 availability means inmates cannot reliably access grievance forms, particularly during times

3 when they are not let out of their cells into the common areas. For example, one inmate went

4 days without being let out of his cell, and when he has asked Jail staff for grievance forms, they

5 did not provide them.

6

122. Even when inmates are able to submit grievances with regard to disability

7 discrimination, Defendants frequently do not provide any response or the response is so delayed

8 that it is not meaningful. For instance an inmate who uses a specialized shoe that fits his

9 prosthetic leg filed a grievance after his specialized shoe was taken away. While he waited for a

10 response to this grievance, his prosthetic leg was damaged to the point of having to be

11 completely replaced. Plaintiff BENJAMIN submitted grievances only to have responses to those

12 grievances returned to a different inmate on his unit.

13

123. Even when inmates are able to submit a grievance and Defendants provide a

14 response, the responses are not adequate or comprehensive, and are in some cases arbitrary and

15 counterproductive. For example, an inmate who uses a wheelchair filed a grievance asking why

16 he was not getting physical therapy for his mobility impairment, and the Jail responded that it

17 was because the inmate was in Jail.

18

124. Furthermore, many inmates with mobility disabilities are afraid to file grievances

19 due to concerns that County Jail staff will retaliate against them. This is a real concern because

20 guards control access to the grievance forms and completed forms must be turned in to custody

21 staff, even if it is the same staff member about whom the inmate is filing a grievance.

22 Grievances are in no way kept confidential and may be read by any staff member on the unit.

23 Female inmates with mobility disabilities have had guards take their belongings or ransack their

24 rooms in response to receiving grievances. Other inmates with mobility disabilities are afraid

25 they will lose the little access to programs they have if they file grievances.

26

125. Plaintiff PHILLIPS suffered retaliation after filing a grievance related to

27 accessibility issues. After Plaintiff PHILLIPS turned in his grievance to the deputy on his unit,

28 the deputy slammed his cell door on him while he was standing in the door way, which caused

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1 Plaintiff PHILLIPS to fall and injure his back. A few days later, a deputy grabbed Plaintiff

2 PHILLIPS from behind while he was cutting his own hair with hair clippers and his head was

3 down, which caused him to cut himself. When Plaintiff PHILLIPS asked to see a doctor and to

4 report the use of force, the deputy refused to let him do so and then locked down the unit, which

5 requires all inmates to return to their cells and stops all programming. The deputies then

6 announced to the other inmates that the lockdown was caused by Plaintiff PHILLIPS and

7 proceeded to allow Plaintiff PHILLIPS and approximately half of the other inmates out of their

8 cells. Due to the deputies’ announcement, the other inmates were angry at Plaintiff PHILLIPS

9 and he felt his safety was at serious risk. Following the filing of his grievance, County Jail staff

10 also confiscated all of Plaintiff PHILLPS’ personal property and documents from his cell,

11 including his legal documents, past grievances, and medical records including documentation of

12 his disability and disability-related needs. The County Jail has refused to return these items to

13 him, claiming they have been lost.

14

126. For individuals with mobility disabilities, particularly wheelchair users, the

15 grievance process is futile because many of the barriers they face are architectural in nature and

16 there are no facilities at either the Main Jail or at the Elmwood Correctional Complex that are

17 fully accessible in compliance with legal requirements.

18

127. Additionally, the Report found that Defendants’ grievance policy is not in

19 compliance with legal requirements established in Armstrong v. Brown, 857 F.Supp. 2d 919, 939

20 (N.D. Cal. 2012), which applies to correctional facilities, like the County Jail, that house inmates

21 who are also under the jurisdiction of the California Department of Corrections and

22 Rehabilitation.

23

CLASS ACTION ALLEGATIONS

24

128. All Plaintiffs bring this action on their own behalf and, pursuant to Rule 23(a),

25 (b)(1), and (b)(2) of the Federal Rules of Civil Procedure, on behalf of a class of all individuals

26 with mobility disabilities who are substantially limited in the major life activities of walking,

27 standing, lifting, and/or ambulating who are now, or will be in the future, incarcerated in the

28 County Jails (the “Class”).

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1

Numerosity: Fed. R. Civ. P. 23(a)(1)

2

129. The proposed Class as defined is sufficiently numerous that joinder of all

3 members of the Class is impracticable and unfeasible. The exact number of members of the

4 Class is unknown. However, according to data from the United States Census conducted in

5 2010, more than 3.7 million Californians and more than 155,000 Santa Clara County residents

6 identify as having a physical disability. According to the 2010 Census, approximately 10% of

7 Americans have some mobility impairment. Based on available census data, approximately 10%

8 of the inmates in the Jail, which averages 4,000 inmates per day, are qualified individuals with

9 mobility disabilities as that term is defined in 42 U.S.C. § 12102, 29 U.S.C. § 705(20), and

10 California Government Code § 12926(j) and (m).

11

130. Class members are easily ascertainable and identifiable using commonly used

12 methods of assessment and/or records maintained in the ordinary course of business by

13 Defendants.

14

Commonality: Fed. R. Civ. P. 23(a)(2)

15

131. There are questions of law and fact common to the class, including but not limited

16 to: whether Defendants’ failure to reasonably accommodate prisoners with disabilities violates

17 the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and California

18 Government Code § 11135.

19

132. Defendants are expected to raise common defenses to these claims, including

20 denying that their actions violate the law.

21

Typicality: Fed. R. Civ. P. 23(a)(3)

22

133. The claims of the named Plaintiffs are typical of the claims of the members of the

23 proposed class. Plaintiffs and all other members of the class have sustained similar injuries

24 arising out of and caused by Defendants’ common course of conduct and policies in violation of

25 the law as alleged herein. All of the proposed class members are at risk of being discriminated

26 against or denied access to programs, services, and activities offered at the Jail as a result of the

27 policies and practices of Defendants. Therefore, all class members will suffer the same or

28

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1 similar injuries for the purposes of the injunctive and declaratory relief sought. Plaintiffs’ claims

2 are thereby representative of and co-extensive with the claims of the class.

3

Adequacy: Fed. R. Civ. P. 23(a)(4)

4

134. Plaintiffs are members of the Class and will fairly and adequately represent and

5 protect the interests of the putative class members because they have no conflict(s) of interest

6 that would be antagonistic to those of the other class members. Plaintiffs, as well as class

7 members, seek to enjoin the unlawful acts and omissions of Defendants.

8

135. The attorneys representing the Plaintiffs and the Class are competent and

9 experienced in complex class action litigation, disability law, and prisoners’ rights litigation.

10 Counsel representing the Plaintiff class is qualified to fully prosecute this litigation and possesses

11 adequate resources to see this matter through to resolution. Counsel will fairly and adequately

12 represent and protect the interests of the class.

13

Fed. R. Civ. P. 23(b)(1)(A) and (B)

14

136. Because the class consists of approximately 10% of the inmate population in the

15 Jails, separate actions by individuals could result in inconsistent and varying decisions, which in

16 turn would result in conflicting and incompatible standards of conduct for Defendants.

17

Fed. R. Civ. P. 23(b)(2)

18

137. This action is also maintainable as a class action pursuant to Fed. R. Civ. P.

19 23(b)(2) because Defendants have acted and refused to act on grounds that apply generally to the

20 class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting

21 the class and will apply to all members of the class.

22

FIRST CAUSE OF ACTION

23

Violation of Americans with Disabilities Act

24

42 U.S.C. § 12101, et seq.

25

138. Plaintiffs incorporate by reference each and every allegation contained in the

26 foregoing paragraphs as if specifically alleged herein.

27

139. Title II of the ADA states, in pertinent part:

28

[N]o qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the

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benefits of the services, programs, or activities of a public entity,

or subjected to discrimination by any such entity. 42 U.S.C. §

2

12132.

3

140. The term “disability” includes physical and mental impairments that substantially

4 limit one or more major life activities. 42 U.S.C. § 12102(2). The named Plaintiffs and the

5 Plaintiff Class represent people who have mobility disabilities that substantially limit the major

6 life activities of walking, standing, lifting, and/or ambulating. Additionally, Plaintiffs and the

7 Plaintiff Class, as inmates in the County Jails, are all qualified – with or without reasonable

8 modifications – to participate in the programs, services, and activities that the County Jails

9 offered. Thus, members of the Plaintiff Class are, and Plaintiffs represent, qualified individuals

10 with disabilities within the meaning of 42 U.S.C. § 12102, 42 U.S.C. § 12131, and 28 C.F.R. §

11 35.104.

12

141. A “public entity” includes state and local governments, their agencies, and their

13 instrumentalities. 42 U.S.C. § 12131(1). Defendants qualify as public entities within the

14 meaning of 42 U.S.C. § 12131(1) and 28 C.F.R. § 35.104 and provide “program(s), service(s), or

15 activit(ies)” to individuals housed in the County Jails including, but not limited to, (1) physical

16 facilities where such programs, services or activities are held, including medical, mental health

17 related, dining, housing, and recreational facilities, (2) administrative processes including

18 classification, and grievance processes, and (3) other formal and informal programs including

19 telephone services, entertainment, bathing and toileting, library, socialization, and educational

20 and rehabilitative programs.

21

142. Congress directed the United States Department of Justice (“DOJ”) to write

22 regulations implementing Title II’s prohibition against discrimination. 42 U.S.C. § 12134.

23 Pursuant to this mandate, the DOJ has issued regulations defining the forms of discrimination

24 prohibited by Title II of the ADA. 28 C.F.R. § 35.101 et seq. These regulations include

25 regulations specific to adult detention and correctional facilities. 28 C.F.R. § 35.152.

26

143. Defendants have violated the rights of Plaintiffs and members of the Plaintiff

27 Class secured by Title II of the ADA and its implementing regulations.

28

144. The discrimination prohibited by the regulations discussed below stems from (1)

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1 Defendants’ policy and practice of prohibiting wheelchairs units at the Main Jail outside of the

2 Main Jail Infirmary and Main Jail Special Housing, thereby requiring the segregation of inmates

3 housed at the Main Jail with mobility disabilities into separate, more restrictive housing units

4 where inmates spend up to 23 hours or more per day in their cells and where inmates are denied

5 access to Defendants’ programs, services or activities.; (2) the physical inaccessibility of

6 Defendants’ County Jail facilities that ultimately exclude such inmates from participation in, and

7 deny such inmates the benefits of, the services, programs, and/or activities of the County Jails;

8 and (3) Defendants’ failure to make reasonable modifications to the County Jails’ policies and

9 practices in order to avoid discriminating against inmates with disabilities, including

10 inadequately identifying and tracking inmates with disabilities, adopting discriminatory policies

11 and practices relating to assistive devices and/or failing to adopt policies sufficient to avoid

12 discrimination relating to assistive devices, insufficiently training staff to identify and address

13 disability-related needs of such inmates, and offering a deficient grievance system.

14

145. A public entity must “administer services, programs, and activities in the most

15 integrated setting appropriate to” an individual’s needs and is therefore prohibited from

16 unnecessarily segregating or isolating the individual. 28 U.S.C. § 35.130(d).

17

146. Additionally, public entities responsible for the operation or management of adult

18 detention and correctional facilities “shall ensure that inmates or detainees with disabilities are

19 housed in the most integrated setting appropriate to the needs of the individuals. Unless it is

20 appropriate to make an exception, a public entity – (i) Shall not place inmates or detainees with

21 disabilities in inappropriate security classifications because no accessible cells or beds are

22 available; (ii) Shall not place inmates or detainees with disabilities in designated medical areas

23 unless they are actually receiving medical care or treatment; (iii) Shall not place inmates or

24 detainees with disabilities in facilities that do not offer the same programs as the facilities where

25 they would otherwise be housed; and (iv) Shall not deprive inmates or detainees with disabilities

26 of visitation with family members by placing them in distant facilities where they would not

27 otherwise be housed.” 28 C.F.R § 35.152(b)(2).

28

147. Furthermore, a public entity may not “deny a qualified individual with a disability

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1 the opportunity to participate in services, programs, or activities that are not separate or different,

2 despite the existence of permissibly separate or different programs or activities.” 28 C.F.R. §

3 35.130(b)(2).

4

148. When Plaintiffs and members of the Plaintiff Class are segregated in Main Jail

5 Special Housing, and the Main Jail Infirmary Defendants deny Plaintiffs and the Plaintiff Class

6 the opportunity to participate in services, programs, or activities that are in the most integrated

7 setting appropriate to their needs and that are not separate and different from those offered to

8 their nondisabled peers.

9

149. Inmates with mobility disabilities who use wheelchairs are housed in the Main

10 Jail Infirmary, Main Jail Special Housing, and Elmwood Special Housing and are not integrated

11 into the general population most obviously because they are housed in separate units. These

12 separate units are only “appropriate” for their needs because the rest of the Jail is inaccessible to

13 them and/or because their disability-related needs are not accommodated in the Jail.

14

150. Moreover, in segregating individuals who use wheelchairs,, the Main Jail

15 provides an opportunity to participate only in programs, services, and activities that are both

16 separate and inferior to those offered to their nondisabled peers, to the extent they are provided at

17 all. The only programs offered to individuals who use wheelchairs housed in the Main Jail

18 Infirmary and in Main Jail Special Housing are in-cell programs that involve completing

19 workbooks inside the individual’s cell, such as the Roadmap to Recovery program.

20 Additionally, inmates who use wheelchairs and are classified as medium security are not able to

21 be housed at Elmwood even if they would otherwise be eligible. Instead, these inmates are

22 housed in the more restrictive Main Jail Infirmary and Main Jail Special Housing units. As such

23 they are denied access to the more expansive programs offered at Elmwood.

24

151. A public entity may not (1) “impose or apply eligibility criteria that screen out or

25 tend to screen out an individual with a disability or any class of individuals with disabilities from

26 fully and equally enjoying any service, program, or activity, unless such criteria can be shown to

27 be necessary[,]” 28 C.F.R.§ 35.130(b)(8); or (2) “utilize criteria or methods of administration . . .

28 that have the effect of subjecting qualified individuals with disabilities to discrimination on the

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1 basis of disability . . . or the purpose or effect of defeating or substantially impairing

2 accomplishment of the objectives of the public entity’s program with respect to individuals with

3 disabilities[.]” 28 C.F.R. § 35.130(b)(3)(i)(ii).

4

152. By requiring that inmates at the Main Jail must reside outside of the Main Jail

5 Infirmary and Main Jail Special Housing to be allowed to fully and equally enjoy the educational

6 and rehabilitative programs and basic services offered, Defendants have imposed eligibility

7 criteria that screens out individuals with disabilities. Similarly, in Elmwood, Defendants have

8 screened out individuals with disabilities by placing physical barriers and safety risks that result

9 in a denial of full and equal enjoyment of the programs, services, and activities offered at

10 Elmwood.

11

153. Furthermore, Plaintiffs and members of the Plaintiff Class are subjected to

12 discrimination on the basis of their disability because Defendants utilize criteria and methods of

13 administration that (1) segregate individuals with disabilities in separate units because of their

14 need for assistive devices and in so doing deny them access to Defendants’ programs, services

15 and activities; and (2) deny individuals with disabilities access to programs, services or activities

16 due to physical inaccessibility of the County Jails. These methods of administration also have

17 the purpose and effect of defeating or substantially impairing accomplishment of the objectives

18 of Defendants’ educational and rehabilitative programs, services, and activities with respect to

19 Plaintiffs and members of the Plaintiff Class, as Plaintiffs and members of the Plaintiff Class

20 cannot participate in or benefit from these programs, services and activities.

21

154. In providing any aid, benefit, or service, a public entity “may not . . . [d]eny a

22 qualified individual with a disability the opportunity to participate in or benefit from the aid,

23 benefit or service,” “[a]fford a qualified individual with a disability an opportunity to participate

24 in or benefit from the aid, benefit, or service that is not equal to that afforded others,” “[p]rovide

25 a qualified individual with a disability with an aid, benefit, or service that is not as effective in

26 affording equal opportunity . . . as that provided to others,” “[o]therwise limit a qualified

27 individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity

28 enjoyed by others,” or “provide different or separate aids, benefits, or services to individuals

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1 with disabilities or to any class of individuals with disabilities than is provided to others unless

2 such action is necessary to provide qualified individuals with disabilities with aids, benefits, or

3 services that are as effective as those provided to others.” 28 C.F.R. § 35.130(b)(1)(i)-(iv).

4

155. Here the County Jails offer the aids, benefits and services available in a way that

5 violates the regulation above. Defendants’ policies and practices do not permit access to

6 individuals with disabilities who reside in the Main Jail Infirmary or Main Jail Special Housing

7 to educational and rehabilitative programs that are available to persons without disabilities

8 housed in other units of the Main Jail. These programs included but are not limited to the GED

9 program and substance abuse programs, including Alcoholics Anonymous and Narcotics

10 Anonymous, and sentence-reduction programs. Inmates who are segregated in Main Jail Special

11 Housing or the Main Jail Infirmary because of their disabilities are only offered one unequal,

12 limited and separate benefit in their segregated housing units: a substance abuse program called

13 Roadmap to Recovery, which is completed in-cell using workbooks and has no actual classes.

14

156. Moreover, because individuals with disabilities segregated in the Main Jail

15 Infirmary and Main Jail Special Housing are routinely locked in their cells for at least 23 hours

16 daily, they do not have sufficient time to participate in all the activities and services offered by

17 the Jail, including showers, large muscle activity and television, in which their nondisabled peers

18 can participate. Additionally, inmates who use wheelchairs and are classified as medium

19 security are not able to be housed at Elmwood even if they would otherwise be eligible. Instead,

20 these inmates are housed in the more restrictive Main Jail Infirmary and Main Jail Special

21 Housing units.

22

157. Similarly in Elmwood, inmates with disabilities face physical inaccessibility that

23 otherwise limits their ability to enjoy the programs, services and activities that are enjoyed by

24 others. Moreover, Defendants “solution” to the inaccessibility at Elmwood – the wheelchair

25 pushers – also violates the law since it provides an aid, benefit, or service that is not as effective

26 in affording equal opportunity as that provided to others because inmates with mobility

27 disabilities must rely on wheelchair pushers. Such reliance deprives them of independence that

28 other non-disabled inmates have. Traversing the physically inaccessible features at Elmwood

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1 also endangers their safety, a risk that non-disabled inmates do not have to bear to access

2 Defendants’ programs, services and activities. Additionally, upon information and belief,

3 multiple educational and vocational programs offered at Elmwood are not accessible to inmates

4 with mobility disabilities due to physical barriers at the program facilities such as stairs or

5 inadequate clearance space.

6

158. In addition, public entities responsible for the operation or management of adult

7 detention and correctional facilities “shall ensure that qualified inmates or detainees with

8 disabilities shall not, because a facility is inaccessible to or unusable by individuals with

9 disabilities, be excluded from participation in, or be denied the benefits of, the services,

10 programs, or activities of a public entity, or be subjected to discrimination by any public entity.”

11 28 C.F.R. § 35.152(b)(1).

12

159. Because of the inaccessibility of the Main Jail, inmates with mobility disabilities

13 are denied the benefits of Defendants’ programs, services and activities in two ways. First,

14 inmates who use wheelchairs are segregated in more restrictive units where there is little access

15 to any of Defendants’ formal programs, services or activities, such as classes or treatment

16 programs. Second, inmates with mobility disabilities face inaccessibility within their more

17 restrictive units, as inmates with mobility disabilities cannot access basic services such as

18 showers or even toilets without risk of injury. Additionally, to the extent inmates with mobility

19 disabilities are housed outside of the Main Jail Infirmary and Main Jail Special Housing they are

20 housed in inaccessible cells and without access to accessible showers.

21

160. Similarly, in Elmwood Special Housing, educational or rehabilitative programs

22 are denied because of the presence of physical barriers. In order to access such programs, which

23 are available to their nondisabled peers, inmates with disabilities at Elmwood must travel

24 outdoors for at least 100 yards to the classroom area of Elmwood. The path of travel to the

25 classroom area is not accessible due to barriers such as broken pavement, steep curb cuts and

26 heavy doors. This path of travel is even more inaccessible in the rain, as pushing a wheelchair

27 with wet wheels on an already barrier-ridden path can become dangerous and impossible. Also,

28 when Elmwood does not clean up debris – such as tree limbs – after a storm, it makes it even

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1 more difficult for inmates with mobility disabilities to travel. While Defendants have recently

2 provided wheelchair pushers, wheelchair pushers are not always available such that inmates

3 traveling along the path to the classroom may become stranded due to heavy doors that they are

4 unable to open due to their disability. In addition, there is no guarantee that a wheelchair pusher

5 will be able to safely traverse the inaccessible pathway and thus, the dangers of an inaccessible

6 path remain. The denial of physical access to the educational and rehabilitative programs at

7 Elmwood is by reason of disability because these architectural barriers affect only inmates with

8 disabilities.

9

161. A public entity “shall make reasonable modifications in policies, practices, or

10 procedures when the modifications are necessary to avoid discrimination on the basis of

11 disability[.]” 28 C.F.R. § 35.130(b)(7).

12

162. Defendants fail to make reasonable modifications to their policies, practices, and

13 procedures even though such modifications are necessary to avoid discriminating against

14 Plaintiffs and members of the Plaintiff Class by, inter alia, not identifying and tracking Plaintiffs

15 and members of the Plaintiff Class who require disability-related accommodations and not

16 modifying Defendants’ policies, practices, and procedures to allow individuals with disabilities

17 who need assistive devices and other such disability-related modifications (1) to be housed with

18 their nondisabled peers or, (2) at the very least, to receive the same access to the programs,

19 services or activities offered at the County Jails as their nondisabled peers.

20

163. Reasonable modifications would include but are not limited to: (1) modifying

21 policies and practices that do not allow inmates who use wheelchairs and housed in segregated

22 units to participate in rehabilitative and educational programs; (2) modifying housing policies

23 and practices so that assistive devices, including wheelchairs, are allowed in all units, (3)

24 modifying assistive device policies and practices to allow the use of wheelchairs in all units such

25 that the use of wheelchairs would not limit housing options; (4) implementing an

26 identification/tracking system for reasonable modifications in the County Jails; (5) modifying

27 assistive devices policies so that such devices will be provided and not removed when deemed

28 needed in all areas of the Jail; (6) providing staff training to ensure that reasonable modifications

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1 for individuals are implemented; and (7) making the grievance system effective for inmates with

2 disabilities including by adding a method for grievances to be marked as disability-related.

3

164. Defendants’ failure to modify Defendants’ policies and practices

4 disproportionately burdens Plaintiffs and the Plaintiff Class by reason of their disabilities. But

5 for the fact that Plaintiffs and the Plaintiff Class have disabilities, they would not require these

6 reasonable modifications which they are being denied.

7

165. The regulations implementing Title II of the ADA also require public entities to

8 prepare and implement a Self-Evaluation and Transition Plan to evaluate and improve the

9 accessibility of their facilities. A Self-Evaluation must “evaluate current services, policies and

10 practices, and the effects thereof, that do not or may not meet the requirement of this part and, to

11 the extent modification of any such services, policies, and practices is required, the public entity

12 shall proceed to make the necessary modifications.” 23 C.F.R. § 35.105(a). Further, “a public

13 entity shall provide an opportunity to interested persons . . . to participate in the self-evaluation

14 process by submitting comments.” 28 C.F.R. § 35.105(b). A Transition Plan must “(i) identify

15 physical obstacles in the public entity's facilities that limit accessibility of its programs or

16 activities to individuals with disabilities; (ii) describe in detail the methods that will be used to

17 make the facilities accessible; (iii) specify the schedule for taking the steps necessary to achieve

18 compliance with this section and, if the time period of the transition plan is longer than one year,

19 identify steps that will be taken during each year of the transition period; and (iv) indicate the

20 official responsible for implementation of the plan.” 28 C.F.R. § 35.150(d)(3).

21

166. Upon information and belief, Defendants have failed to conduct a full and

22 comprehensive Self Evaluation and Transition Plan with a complete and up-to-date schedule for

23 providing physical and program access in the County Jails. Upon information and belief,

24 Defendants have also failed to make a copy of their Transition Plan available for public

25 inspection, in violation of 28 C.F.R. § 35.150(d)(1).

26

167. Pursuant to 28 C.F.R. § 35.149 “[n]o qualified individual with a disability shall,

27 because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities,

28 be excluded from participation in, or be denied the benefits of the services, programs, or

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1 activities of a public entity, or be subjected to discrimination by any public entity.” Additionally,

2 pursuant to 28 C.F.R. § 35.150(a), Defendants must “operate each service, program, or activity

3 so that the service, program, or activity, when viewed in its entirety, is readily accessible to and

4 usable by individuals with disabilities.”

5

168. Pursuant to 28 U.S.C. § 35.151(b)(1), “[e]ach facility or part of a facility altered

6 by, on behalf of, or for the use of a public entity in a manner that affects or could affect the

7 usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in

8 such a manner that the altered portion of the facility is readily accessible to and usable by

9 individuals with disabilities, if the alteration was commenced after January 26, 1992.”

10

169. Upon information and belief, the County Jails have been altered in a manner that

11 affects the usability of the County Jails since January 26, 1992, and the altered portions of the

12 facilities are not readily accessible to and usable by individuals with disabilities in violation of

13 28 U.S.C. § 35.151(b)(1).

14

170. Pursuant to 28 U.S.C. § 3.151(c)(1) physical alterations that commence after July

15 26, 1992 must comply with the DOJ’s Standards for Accessible Design published on July 26,

16 1991 and republished as Appendix D to 28 CFR Part 36 (“1991 Standards”) or with the Uniform

17 Federal Accessibility Standards (“UFAS”).

18

171. Upon information and belief, areas of the County Jails have been constructed after

19 July 26, 1992 and are not in compliance with the 1991 Standards or UFAS.

20

172. Pursuant to 28 U.S.C. § 35.151(4) an “alteration that affects the usability of or

21 access to an area of a facility that contains a primary function shall be made accessible so as to

22 ensure that, to the maximum extent feasible, the path of travel to the altered area and the

23 restrooms, telephones, and drinking fountains serving the altered area are readily accessible to

24 and usable by individuals with disabilities, including individuals who use wheelchairs . . . .” A

25 “primary function” is a major activity for which the facility is intended. 28 U.S.C. §

26 35.151(b)(4)(i).

27

173. Upon information and belief, Defendants have altered the usability of areas that

28 contain primary functions but have failed to make the path of travel to such areas readily

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1 accessible to individuals with disabilities, including individuals who use wheelchairs, in

2 violation of 28 U.S.C. § 35.151(4).

3

174. The regulations implementing Title II of the ADA also require that alterations that

4 commence on or after September 15, 2010 to jails, prisons, and other detention and correctional

5 facilities may comply with the DOJ’s 2010 Standards. 28 C.F.R. § 35.151(c)(2). Alterations

6 that commence on or after March 15, 2012 must comply with the DOJ’s 2010 standards. 28

7 CFR § 35.151(c)(3). The 2010 Standards are defined to include the requirements set forth in

8 appendices B and D to 36 CFR part 1191 (2009) (known as the “2004 ADAAG”) and the

9 requirements contained in 28 CFR § 35.151. 28 CFR § 35.104. Specifically, pursuant to 28

10 U.S.C. § 35.151(k)(2), altered cells with mobility features shall be provided in each classification

11 level, although public entities may satisfy this obligation by providing the required mobility

12 features in cells other than those where alterations were originally planned. Such cells must:

13

• be “located within the same prison site;”

14

• be “integrated with other cells to the maximum extent feasible;”

15

• provide, “at a minimum, equal physical access as the altered cells to areas used by

16

inmates or detainees for visitation, dining, recreation, educational programs, medical

17

services, work programs, religious services, and participation in other programs that

18

the facility offers to inmates or detainees;” and

19

• provide “a substitute cell” at another prison site within the corrections system “if it is

20

technically infeasible to locate a substitute cell within the same prison site.”

21 28 U.S.C. § 35.151(k)(2)(i)-(iv).

22

175. Upon information and belief, the County Jails have altered cells after the

23 applicable dates without installing the required mobility features in compliance with 28 U.S.C. §

24 35.151(k).

25

176. With respect to medical and long-term care facilities in jails, prisons, and other

26 detention and correctional facilities, public entities are required to apply the 2010 Standards

27 technical and scoping requirements for those facilities, irrespective of whether those facilities are

28 licensed, for alterations and construction occurring after the applicable dates. 28 U.S.C. §

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1 35.151(k)(3). Upon information and belief, Defendants fail to apply these standards here.

2

177. Because Defendants’ discriminatory and wrongful conduct is ongoing,

3 declaratory and injunctive relief are appropriate remedies. Further, as a direct result of

4 Defendants’ actions, Plaintiffs and members of the Plaintiff Class are suffering irreparable harm,

5 including lost opportunities to participate in rehabilitative programs and/or classes that could

6 reduce the rate of recidivism upon their release and/or reduce the length of their sentence.

7 Therefore, speedy and immediate relief is appropriate.

8

178. Pursuant to 42 U.S.C. § 12133, Plaintiffs are entitled to declaratory and injunctive

9 relief as well as reasonable attorneys’ fees and costs incurred in bringing this action under 42

10 U.S.C. § 12205.

11

SECOND CAUSE OF ACTION

12

Violation of Section 504 of the Rehabilitation Act

13

29 U.S.C. § 794

14

179. Plaintiffs incorporate by reference each and every allegation contained in the

15 foregoing paragraphs as if specifically alleged herein.

16

180. Section 504 provides, in pertinent part:

17

No otherwise qualified individual with a disability in the United

States . . . shall, solely by reason of his or her disability, be

18

excluded from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity receiving

19

federal financial assistance[.] 29 U.S.C. § 794(a).

20

181. Each Defendant was, at all times relevant to this action, and is currently a

21 recipient of federal financial assistance within the meaning of Section 504 and provides a

22 “program or activity,” including “all the operations of” the recipient which includes the

23 educational and rehabilitative programs and activities offered in the County Jails. 29 U.S.C. §

24 794(b).

25

182. An “individual with a disability” is defined under the statute, in pertinent part, as

26 “an individual who has a physical or mental impairment that substantially limits one or more

27 major life activities of such individual.” 29 U.S.C. § 705(20)(B) (referencing 42 U.S.C.

28 § 12102). “Qualified” means, with respect to services, a person who meets the essential

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1 eligibility requirements for the receipt of such services. 28 C.F.R. § 41.32.

2

183. Plaintiffs and the Plaintiff Class were, at all times relevant to this action, and are

3 currently “otherwise qualified individuals with disabilities” within the meaning of Section 504,

4 as they all have impairments that substantially limit a major life activity, and they were and/or

5 are all residents of the County Jails qualified – with or without reasonable accommodation – to

6 participate in the programs, services, and activities offered by Defendants in the County Jails.

7

184. Defendants have violated the rights of Plaintiffs and members of the Plaintiff

8 Class secured by Section 504 and its implementing regulations.

9

185. The DOJ is charged under Executive Order 12250 with coordinating the

10 implementation of Section 504 of the Rehabilitation Act of 1973. 28 C.F.R. § 41.1.

11

186. In providing any aid, benefit, or service, a recipient of federal financial assistance

12 “may not . . . [d]eny a qualified handicapped person the opportunity to participate in or benefit

13 from the aid, benefit or service,” “[a]fford a qualified handicapped person an opportunity to

14 participate in or benefit from the aid, benefit, or service that is not equal to that afforded others,”

15 “[p]rovide a qualified handicapped person with an aid, benefit, or service that is not as effective

16 in affording equal opportunity . . . as that provided to others,” “[o]therwise limit a qualified

17 handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed

18 by others or “provide different or separate aids, benefits, or services to individuals with

19 disabilities or to any class of individuals with disabilities than is provided to others unless such

20 action is necessary to provide qualified individuals with disabilities with aids, benefits, or

21 services that are as effective as those provided to other.” 45 C.F.R. § 84.4(b)(i)-(iv), (vii).

22

187. A public entity may not “deny a qualified individual with a disability the

23 opportunity to participate in services, programs, or activities that are not separate or different,

24 despite the existence of permissibly separate or different programs or activities.” 45 C.F.R. §

25 84.4(b)(3).

26

188. When Plaintiffs and members of the Plaintiff Class are placed in the Main Jail

27 Infirmary, Main Jail Special Housing, and/or Elmwood Special Housing, Defendants exclude

28 them from participating in and deny them the benefits of Defendants’ educational and

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1 rehabilitative programs, services, and activities solely by reason of their disabilities. Inmates who

2 use wheelchairs segregated in the Main Jail Infirmary and Main Jail Special Housing are housed

3 in highly restrictive units, where they are routinely locked in their cells for 23 hours per day, due

4 solely to their disability. Additionally, inmates who use wheelchairs and are classified as

5 medium security are not able to be housed at Elmwood even if they would otherwise be eligible

6 and are thus denied access to the additional programs and activities available at Elmwood.

7 Defendants’ actions and omissions deny Plaintiffs and the Plaintiff Class the opportunity to

8 participate in services, programs or activities that are not separate and different from those

9 offered to their nondisabled peers.

10

189. Defendants also deny inmates with mobility disabilities access to programs and

11 activities due to the physical inaccessibility of the Main Jail and Elmwood. Due to physical

12 barriers at the Main Jail inmates with mobility disabilities are frequently housed in inaccessible

13 cells and without access to accessible showers. Inmates with mobility disabilities at Elmwood

14 are denied access to programs and activities due to barriers in the path of travel throughout

15 Elmwood and due to physical barriers including steps and insufficient clearance space in some

16 classrooms and other facilities where programs are offered.

17

190. A recipient of federal financial assistance may not “utilize criteria or methods of

18 administration (i) that have the effect of subjecting qualified handicapped persons to

19 discrimination on the basis of handicap and/or (ii) that have the purpose or effect of defeating or

20 substantially impairing accomplishment of the objectives of the recipient’s program or activity

21 with respect to handicapped persons . . . .” 45 C.F.R. § 84.4(b)(4)(i), (ii).

22

191. By denying individuals with disabilities access to wheelchairs and other needed

23 modifications to Defendants’ policies and procedures outside of the Main Jail Infirmary and

24 Main Jail Special Housing units, Defendants deny inmates with mobility disabilities who require

25 wheelchairs access to programs and services and lock them in a cell for 23 or more hours per

26 day. As such, Defendants utilize methods of administration that have the effect of subjecting

27 Plaintiffs and members of the Plaintiff Class to discrimination by reason of their disabilities.

28 These methods of administration also have the purpose and effect of defeating or substantially

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1 impairing accomplishment of the objectives of Defendants’ educational and rehabilitative

2 programs, services, and activities with respect to Plaintiffs and members of the Plaintiff Class.

3

192. Defendants fail to make reasonable modifications to their policies, practices, and

4 procedures even though such modifications are necessary to avoid discriminating against

5 Plaintiffs and members of the Plaintiff Class by, inter alia, not identifying and tracking Plaintiffs

6 and members of the Plaintiff Class who require reasonable accommodations and not modifying

7 Defendants’ assistive devices and housing policies to allow individuals with disabilities who

8 need use wheelchairs to be housed in the least restrictive setting appropriate to their needs and

9 with their nondisabled peers. Reasonable modifications would include but are not limited to: (1)

10 modifying policies and practices that do not allow inmates who use wheelchairs and housed in

11 segregated units to participate in rehabilitative and educational programs; (2) modifying housing

12 policies and practices so that assistive devices, including wheelchairs, are allowed in all units, (3)

13 modifying assistive device policies and practices to allow the use of wheelchairs in all units such

14 that the use of wheelchairs would not limit housing options; (4) implementing an

15 identification/tracking system for reasonable modifications in the County Jails; (5) modifying

16 assistive devices policies so that such devices will be provided and not removed when deemed

17 needed in all areas of the Jail; (6) providing staff training to ensure that reasonable modifications

18 for individuals are identified and implemented properly; and (7) making the grievance system

19 effective for inmates with disabilities including by adding a method for grievances to be marked

20 as disability-related.

21

193. Defendants’ failure to modify Defendants’ policies and practices

22 disproportionately burdens Plaintiffs and the Plaintiff Class by reason of their disabilities.

23

194. Because Defendants’ discriminatory conduct is ongoing, declaratory relief and

24 injunctive relief are appropriate remedies. Further, as a direct result of Defendants’ actions,

25 Plaintiffs and members of the Plaintiff Class are suffering irreparable harm, including lost

26 educational and rehabilitative opportunities. Therefore, speedy and immediate relief is

27 appropriate.

28

195. Pursuant to 29 U.S.C. § 794a, Plaintiffs are entitled to declaratory and injunctive

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 relief and to recover from Defendants the reasonable attorneys’ fees and costs incurred in

2 bringing this action.

3

THIRD CAUSE OF ACTION

4

Violation of California Government Code § 11135

5

Cal. Gov’t Code § 11135 et seq.

6

196. Plaintiffs incorporate by reference each and every allegation contained in the

7 foregoing paragraphs as if specifically alleged herein.

8

197. California Government Code section 11135 sets forth a nondiscrimination policy

9 for state programs. It provides, in pertinent part, that:

10

[n]o person in the State of California shall, on the basis of race,

national origin, ethnic group identification, religion, age, sex,

11

sexual orientation, color, genetic information or disability, be

unlawfully denied full and equal access to the benefits of, or be

12

unlawfully subjected to discrimination under, any program or

13

activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any

14

financial assistance from the state. Cal. Gov’t Code § 11135(a).

15

198. Upon information and belief, each Defendant was, at all times relevant to this

16 action, and is currently operating or administering a program or activity that receives state

17 financial assistance within the meaning of section 11135, including educational and rehabilitative

18 programs and activities in the County Jails.

19

199. Plaintiffs and the Plaintiff Class were, at all times relevant to this action, and are

20 currently “persons in the State of California” within the meaning of California Government Code

21 section 11135. Plaintiffs and the Plaintiff Class all have disabilities as defined by California

22 Government Code section 12926, and they were and/or are all residents of the County Jails

23 qualified to participate in the programs, services and activities of the County Jails.

24

200. Defendants have violated the rights of Plaintiffs and members of the Plaintiff

25 Class secured by Section 11135 et seq. and the regulations promulgated thereunder, 22 Cal. Code

26 Regs. § 98100, et seq.

27

201. It is a “discriminatory practice” for a recipient of state financial assistance, “in

28 carrying out any program or activity,” on the basis of disability, “(a) to deny a person the

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 opportunity to participate in, or benefit from an aid, benefit or service; (b) to afford a person the

2 opportunity to participate in or benefit from an aid, benefit or service that is not equal to that

3 afforded others; (c) to provide a person with an aid, benefit or service that is not as effective in

4 affording an equal opportunity to obtain the same result, to gain the same benefit, or to reach the

5 same level of achievement as that provided to others . . . [or] (g) to otherwise limit a person in

6 the enjoyment of any right, privilege, advantage or opportunity enjoyed by others receiving any

7 aid, benefit or service resulting from the program or activity.” 22 Cal. Code Regs. § 98101 (a),

8 (b), (c), (g).

9

202. When Plaintiffs and members of the Plaintiff Class are placed in Main Jail Special

10 Housing, Main Jail Infirmary, and/or Elmwood Special Housing, Defendants exclude them from

11 participating in and deny them the benefits of Defendants’ educational and rehabilitative

12 programs, services, and activities solely by reason of their disabilities. Inmates who use

13 wheelchairs segregated in the Main Jail Infirmary and Main Jail Special Housing are housed in

14 highly restrictive units, where they are routinely locked in their cells for 23 hours per day, due

15 solely to their disability. Additionally, inmates who use wheelchairs and are classified as

16 medium security are not able to be housed at Elmwood even if they would otherwise be eligible

17 and are thus denied access to the additional programs and activities available at Elmwood.

18 Defendants’ actions and omissions deny Plaintiffs and the Plaintiff Class the opportunity to

19 participate in services, programs or activities that are not separate and different from those

20 offered to their nondisabled peers.

21

203. Defendants also deny inmates with mobility disabilities access to programs and

22 activities due to the physical inaccessibility of the Main Jail and Elmwood. Due to physical

23 barriers at the Main Jail inmates with mobility disabilities are frequently housed in inaccessible

24 cells and without access to accessible showers. Inmates with mobility disabilities at Elmwood

25 are denied access to programs and activities due to barriers in the path of travel throughout

26 Elmwood and due to physical barriers including steps and insufficient clearance space in some

27 classrooms and other facilities where programs are offered.

28

204. It is also a “discriminatory practice” for a recipient of state financial assistance “to

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 utilize criteria or methods of administration that: (1) have the purpose or effect of subjecting a

2 person to discrimination on the basis of disability; (2) have the purpose or effect of defeating or

3 substantially impairing the accomplishment of the objectives of the recipient’s program with

4 respect to a person with a disability.” 22 Cal. Code Regs. § 98101(i).

5

205. By denying individuals with disabilities access to wheelchairs and other needed

6 modifications to Defendants’ policies and procedures outside of the Main Jail Infirmary and

7 Main Jail Special Housing units, Defendants deny inmates with mobility disabilities who require

8 wheelchairs access to programs and services and lock them in a cell for 23 or more hours per

9 day. As such, Defendants utilize methods of administration that have the effect of subjecting

10 Plaintiffs and members of the Plaintiff Class to discrimination by reason of their disabilities. .

11 These methods of administration also have the purpose and effect of defeating or substantially

12 impairing accomplishments of the objectives of Defendants’ educational and rehabilitative

13 programs, services, and activities with respect to Plaintiffs and members of the Plaintiff Class.

14

206. Section 11135 of the California Government Code further requires that the

15 programs and activities that receive financial assistance from the state “shall meet the protections

16 and prohibitions contained in Section 202 of the federal Americans with Disabilities Act . . .

17 except that if the laws of this state prescribe stronger protections and prohibitions, the programs

18 and activities subject to subdivision (a) shall be subject to the stronger protections and

19 prohibitions.” Cal. Gov’t Code § 11135(b). Because Defendants are violating Title II of the

20 ADA, they also are violating section 11135 of the California Government Code.

21

207. Defendants have further violated California Government Code § 11135 by failing

22 to prepare and maintain a compliant Self-Evaluation and a compliant Transition Plan pursuant to

23 the requirements of Cal. Code Regs. Tit. 22 §§ 98251 and 98258.

24

208. Defendants have also discriminated on the basis of disability in violation of

25 Government Code § 11135 by constructing, altering, or repairing parts of the Jail in a manner

26 that violates the accessibility requirements of Title 24 of the California Building Standards Code

27 and California Government Code § 4450.

28

209. Defendants and their agents and employees have violated and continue to violate

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 California Government Code § 11135 by unlawfully denying Plaintiffs and members of the

2 Plaintiff Class the benefits of, and unlawfully subjecting Plaintiffs and members of the Plaintiff

3 Class to discrimination under, the County’s programs and activities and for the reasons set forth

4 above.

5

210. Because Defendants’ discriminatory and wrongful conduct is ongoing,

6 declaratory and injunctive relief are appropriate remedies. Further, as a direct result of

7 Defendants’ actions, Plaintiffs and members of the Plaintiff Class are suffering irreparable harm,

8 including lost education and rehabilitative opportunities. Therefore, speedy and immediate relief

9 is appropriate.

10

211. Pursuant to section 1021.5 of the California Code of Civil Procedure, Plaintiffs

11 are entitled to declaratory and injunctive relief as well as reasonable attorneys’ fees and costs

12 incurred in bringing this action.

13

FOURTH CAUSE OF ACTION

14

Declaratory Relief

15

28 U.S.C. § 2201

16

Cal. Code Civ. Proc. § 1060 et seq.

17

212. Plaintiffs incorporate by reference each and every allegation contained in the

18 foregoing paragraphs as if specifically alleged herein.

19

213. Plaintiffs contend that Defendants have failed and are failing to comply with

20 applicable laws prohibiting discrimination against persons with disabilities in violation of

21 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, et seq., Title II of the ADA, 42 U.S.C. §

22 12131, et seq., and California Government Code § 11135, et seq.

23

214. Defendants dispute Plaintiffs’ contention, therefore, a judicial declaration is

24 necessary and appropriate at this time in order that each of the parties may know their respective

25 rights and duties and act accordingly.

26

215. Pursuant to 28 U.S.C. § 2201 and Cal. Code Civ. Proc. § 1060, et seq., Plaintiffs

27 are entitled to declaratory relief.

28

216. WHEREFORE, Plaintiffs pray for relief as set forth below.

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DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1

REQUEST FOR RELIEF

2 WHEREFORE, Plaintiffs pray for the following relief:

3

217. An order certifying that this action may be maintained as a class action pursuant

4 to Federal Rule of Civil Procedure 23(a) and 23(b)(1)-(2);

5

218. An order and declaration that the Defendants’ conduct as alleged herein has

6 violated, and continues to violate, the ADA, 42 U.S.C. §§ 12101 et seq., and accompanying

7 regulations, Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and accompanying

8 regulations, and California Government Code § 11135, et seq. and accompanying regulations.;

9

219. An order permanently enjoining Defendants from violating the ADA, 42 U.S.C.

10 §§ 12101 et seq., and accompanying regulations, Section 504 of the Rehabilitation Act, 29

11 U.S.C. § 794, and accompanying regulations, and California Government Code § 11135, et seq.

12 and accompanying regulations;

13

220. An order requiring Defendants and their agents, employees, officials, and all

14 persons acting in concert with them under color of state law or otherwise to develop and

15 implement, as soon as practical, a plan to eliminate the substantial risk of harm, discrimination,

16 and statutory violations that Plaintiffs and members of the class they represent suffer due to the

17 unlawful acts, omissions, conditions and practices described in this Complaint;

18

221. An order requiring Defendants to ensure that Plaintiffs and the Plaintiff Class are

19 not denied the benefits of, or participation in, programs, services, and activities at the Jail;

20

222. Retain jurisdiction of this case until Defendants have complied with the orders of

21 this Court, and there is a reasonable assurance that Defendants will continue to comply in the

22 future, absent continuing jurisdiction;

23

223. Award Plaintiffs’ attorneys’ fees and costs, as provided by statute and law; and

24

224. Any such other relief as the Court finds just and proper.

25 //

26 //

27 //

28 //

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Case 5:16-cv-06594-LHK Document 1 Filed 11/14/16 Page 58 of 58

DISABILITY RIGHTS ADVOCATES 2001 CENTER STREET, FOURTH FLOOR BERKELEY, CALIFORNIA 94704-1204
(510) 665-8644

1 DATED: November 14, 2016 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted,
DISABILITY RIGHTS ADVOCATES ROSEN BIEN GALVAN & GRUNFELD LLP
Mary-Lee K. Smith Attorneys for Plaintiffs
/s/ Lisa Ells______________________ Lisa Ells Attorneys for Plaintiffs

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57

 
 Final Consent Decree
This Consent Decree is made and entered into by and through Plaintiffs David Cole, Leroy Benjamin, Brandon Williams, Robert Phillips, and Erasmo Flores, Jr., individually and on behalf of the Plaintiff Class (as defined below) (collectively, “Plaintiffs”); and Defendant County of Santa Clara.1 Hereinafter, Plaintiffs and Defendant are referred to collectively as “the Parties.” This Consent Decree operates in conjunction with the related Mobility Disability Remedial Plan (“Remedial Plan”), attached hereto as Exhibit A, that is hereby fully incorporated into this Consent Decree by reference herein.
I. Recitals
A. WHEREAS, after a series of arms-length settlement discussions, including significant exchanges of information and multiple proposals and counterproposals, as well as consideration of the risks, possible delays, and expense likely to result from prolonged litigation, the Parties have reached agreement on the terms of a proposed class settlement.
B. WHEREAS, this Consent Decree resolves the lawsuit filed on November 14, 2016, entitled, Cole v. County of Santa Clara, United States District Court, Northern District of California, Case Number 3:16-cv-06594 LHK (hereinafter, “Action”) alleging that Defendant has discriminated against individuals with mobility disabilities incarcerated in Santa Clara County's (“the County”) Main Jail North, Main Jail South, and Elmwood Correctional Facility (collectively, “the Jails”) in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act (“Rehabilitation Act”); 29 U.S.C. § 794; and California Government Code Section 11135 (“Section 11135”) (collectively, “State and Federal Disability Laws”). Defendant denies all of the allegations against it.
C. WHEREAS, Defendant reports that since the Parties began negotiations related to this lawsuit in January 2015, Defendant has already taken significant steps towards remediation, including but not limited to:
1. Budgetary allocation of over $100 million dollars to ADA jail improvements (not including the planned New Jail facility, which the County plans to build on the current Main Jail South location);

1 Defendant here was erroneously sued as Defendant County of Santa Clara, the Santa Clara County Department of Correction, and the Santa Clara County Sheriff’s Office.

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Cole v. County of Santa Clara Consent Decree

2. The completion of a number of other ADA improvements, including:
a. Construction of a number of ADA-accessible cells, housing units, restrooms, showers, and countertops, among other improvements;
b. Modification of the booking area and process to better accommodate ADA inmates;
c. The use of a screening tool to identify and assess inmates’ Mobility Disabilities upon intake;
3. The County’s ongoing review and revision, as needed, of all Jail policies, procedures, Post Orders, and forms to address ADA compliance issues;
4. Establishment of an ADA Coordinator and ADA Unit at an ongoing annual cost of $1,083,000;
5. Procurement of an ADA electronic tracking system costing $283,000;
6. Establishment of an electronic ADA Grievance System.
Plaintiffs have not confirmed these representations and maintain that Defendant is not currently in compliance with the relevant disability access laws.
D. WHEREAS, through this Consent Decree, Defendant agrees to implement the measures set forth in the Remedial Plan (Exhibit A), subject to monitoring and, if necessary, enforcement by this Court as set forth in this Consent Decree.
E. WHEREAS, by entry into this Consent Decree, the Parties intend to, and hereby do, resolve all claims that were actually, or could have been, raised in the Action by Plaintiffs and the Plaintiff Class. The Parties believe this Consent Decree is fair, reasonable, and adequate to protect the interests of all Parties.
F. WHEREAS, the Parties stipulate that this Consent Decree complies in all respects with the provisions of 18 U.S.C. § 3626(a). The Parties further stipulate and agree, and the Court finds, that the prospective relief in this Consent Decree is narrowly drawn, extends no further than necessary to correct the violations of federal rights agreed to by the parties, is the least

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Cole v. County of Santa Clara Consent Decree

intrusive means necessary to correct those violations, and will not have an adverse impact on public safety or the operation of a criminal justice system.
II. Definitions
The following definitions will apply to the terms of this Consent Decree and the Remedial Plan (Exhibit A). The following definitions are intended to be interpreted consistent with State and Federal Disability Laws. Unless explicitly stated to the contrary, any term not expressly defined in this Section or elsewhere in this Consent Decree or Remedial Plan that has an expressly defined meaning under State and Federal Disability Laws, shall have the meaning ascribed to it by current statute.
This Remedial Plan uses the phrase, “Reasonable Modifications,” pursuant to 28 C.F.R. § 35.130(b)(7), the Department of Justice regulations implementing Title II of the ADA; while the phrase, “reasonable accommodation,” is primarily in Title I of the ADA, see 42 U.S.C § 12111. The terms are frequently used interchangeably by the courts.
All other terms shall be interpreted according to their plain and ordinary meaning:
A. “ADA Accessible” means and refers to a facility, or any portion thereof, which meets the following standards: the current edition, as of the commencement of physical construction or alterations, of the California Building Code, Title 24, Part 3 of the California Code of Regulations; or, the 2010 Americans with Disabilities Act Standards for Accessible Design (“2010 ADA Standards”), which consist of the Title II regulations at 28 C.F.R. part 35.151 and the 2004 ADA Accessibility Guidelines (“ADAAG”) at 36 C.F.R. part 1191, appendices B and D (hereinafter collectively, “Accessibility Standards”). In the event of conflict between the standards, Defendant will use the standard which provides the greater level of access.
B. “ADA Tracking System” means a computerized, networked, real-time tracking system to enable Defendant to document and internally share information regarding inmates with a Mobility Disability.
C. “Jails or Jail” means the jails operated by the Santa Clara County Department of Correction/Sheriff’s Office Custody Division during the Term of the Consent Decree; and shall include the Main Jail Facility (consisting of Main Jail North and Main Jail South, collectively, “Main Jail”); and the Elmwood Correctional Facility, which includes the Correctional Center for Women or CCW (collectively, “Elmwood”); and the proposed New Jail.

[3269262.19]

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Cole v. County of Santa Clara Consent Decree

D. “The County” means Santa Clara County, the Santa Clara County Department of Correction, and the Santa Clara County Sheriff’s Office, and the agents and employees of the Department of Correction, the Sheriff’s Office, and the County agents and employees who provide health care to inmates.
E. The following terms govern monitoring:
1. “Substantial Compliance” shall be interpreted to be consistent with Ninth Circuit law defining “substantial compliance” in the context of implementing consent decrees and similar court-supervised settlements; as such, substantial compliance will mean compliance with the essential requirements of the Remedial Plan that satisfies the Remedial Plan’s overall purposes and objectives and adherence to the provisions of the Remedial Plan in all material respects, recognizing that perfection is not required. Under Ninth Circuit law, non-systemic or unintentional deviations that are so minor or trivial as to not substantially defeat the object of the Remedial Plan shall not prevent a finding of substantial compliance.
2. “Unratable-In Progress” shall mean that Defendant has identified, and the applicable monitor agrees, that remediation efforts concerning certain material provisions of the Remedial Plan are not yet complete.
3. “Non-Compliance” shall mean that Defendant has not met most of the material components of the relevant provision of the Remedial Plan.
F. “Adult Custody Health Services Staff” includes all County employees who work in the Jails for Adult Custody Health Services and who have more than incidental contact with inmates.
G. “Custody Staff” includes all County employees who work in the Jails for the Custody Bureau, including correctional officers/deputies, who have more than incidental contact with inmates. This does not include County employees whose duties relate solely to facility maintenance (i.e., electricians, janitors, food service staff).
H. “Days” refers to calendar days unless otherwise specified.
I. “Describe” means to provide a clear and detailed description of something done, experienced, seen, or heard.

[3269262.19]

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Cole v. County of Santa Clara Consent Decree

J. “Document,” when used in this Consent Decree as a verb, means completing a record of information either in hard copy or electronic format.
K. “Effective Date” means the date the Court grants approval of this Consent Decree.
L. “Execution Date” means the date the Parties execute this Consent Decree.
M. To “implement” a policy means that the policy has been drafted and distributed to all staff responsible for following or applying the policy; and, if expressly required under this Consent Decree, all relevant staff have been trained on the policy; compliance with the policy is monitored and tracked, if practical, to assure the policy is consistently applied; and the County will adopt corrective action measures to address any lapses in application of the policy.
N. “Include” or “including” means “include, but not limited to” or “including, but not limited to.”
O. “Levels” means an inmate’s classification level. The County assigns inmates security levels 1-4. Level 1 is the lowest level of security and Level 4 is the highest. The County may adopt a high, medium, minimum security classification model. In the event this occurs, the Parties agree that Level 4 is high; Level 3 and Level 2 are medium, and Level 1 is minimum.
P. “Medical Provider” means a County medical doctor, doctor of osteopathy, physician assistant, or nurse practitioner.
Q. “Mobility Device” means any non-motorized device designed for use by inmates with Mobility Disabilities such as wheelchairs, crutches, walkers, canes, braces, or other similar devices. The limited circumstances for issuance of a motorized wheelchair are addressed in Section IV(B)(2), below. There are three types of Mobility Devices referenced throughout the Remedial Plan: (a) “Standard,” which refers to wheelchairs, walkers, crutches, and canes that are owned and maintained by the County; (b) “Generic,” which refers to Mobility Devices, excluding the devices listed in subsection (a), that the County may have readily available or that can be easily procured as an off-the-shelf generic durable medical good (including, but not limited to, a splint, boot, brace, sling, and/or wedge support); and (c) “Customized,” which refers to a Mobility Device that requires custom specifications to meet the needs of an inmate (including, but not limited to, prosthetics, certain orthotics, and some wheelchairs). “Personal” Mobility Devices refers to a Mobility Device brought into the

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Cole v. County of Santa Clara Consent Decree

Jails by an inmate. All other devices referred to herein are owned and issued by the County.
R. “Mobility Disability” and “Mobility Disabilities” means an impairment that affects an inmate’s ability to move physically and which substantially limits the inmate’s ability to perform one or more major life activities, including but not limited to standing, lifting, stooping, and/or ambulating.
S. “Plaintiffs” and “Plaintiff Class” mean all individuals with a Mobility Disability who are now, or will be in the future, for the Term of this Consent Decree incarcerated in the County Jails.
T. “Plaintiffs’ Counsel” means Disability Right Advocates (“DRA”) and Rosen Bien Galvan & Grunfeld, LLP (“RBGG”).
U. “Inmate(s)” shall be construed broadly to refer to one or more individuals incarcerated at, detained at, or otherwise housed, held, in the custody of, or confined at the Jails, including transportation.
V. “Safety-Security Assessment” means an individualized safety-security assessment that shall be based on reasonable judgment that relies on the best available objective evidence, to ascertain (1) the nature, duration, and severity of any risk, (2) the probability of potential injury, and (3) whether providing an alternative Mobility Device and/or reasonable modification would mitigate the risk. In no case shall a Mobility Device be removed based solely on the nature of the inmate’s criminal charges or convictions.
W. “Staff” includes all full-time, coded employees who are employed by the County of Santa Clara and work in the Jails.
X. “Train” means to instruct in the skills addressed to a level at which the trainee has the demonstrated competency to implement those skills as, and when called for, in the training. “Trained” means a demonstration of staff competency.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF the mutual covenants and conditions set forth herein, the Parties hereto agree as follows:
III. Injunctive Relief
The Parties’ Remedial Plan outlining the injunctive provisions is attached hereto as Exhibit A and fully incorporated by reference herein.

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Cole v. County of Santa Clara Consent Decree

IV. Settlement Approval Process
A. The Parties will agree on a joint motion and will jointly move the Court, by November 13, 2018, for an Order granting Preliminary Approval of this Consent Decree and setting a hearing for Final Approval of this Consent Decree.
B. The Parties will negotiate and draft a proposed notice to the Class, which shall include the terms of this Consent Decree and their right to object thereto. The Parties will make any edits or modifications to the draft notice should such edits or modifications be directed by the Court. The proposed notice shall be attached to and incorporated into this Consent Decree as Exhibit B.
C. The Parties shall develop a plan for posting the notice. At a minimum, the notice plan shall include the following: (1) posting notice in all intake, housing, and programming units of the Jails; (2) posting notice on Plaintiffs’ Counsels’ websites; and (3) posting notice on the televisionnotification system inside the Jails. All postings will be in accessible formats. The Parties will provide alternate format copies of the notice upon request. Notice will be posted/distributed by the Parties within twenty-one (21) days of the date of the Court’s Order granting preliminary approval, and shall remain posted for no less than thirty (30) days. The Parties will submit declarations to the Court as part of the motion for final approval confirming that notice has been issued according to this paragraph.
D. Defendant shall provide notice as required by the Class Action Fairness Act (28 U.S.C. §§ 1711-1715) to appropriate officials as required by that Act.
E. The Parties will take all procedural steps regarding the fairness hearings as may be requested by the Court and will otherwise use their respective best efforts to consummate the agreement set forth in this Consent Decree, and to obtain final Court approval of this Consent Decree and entry of Judgment.
F. If, for any reason, the Court does not approve this Consent Decree, the executed Consent Decree shall be null and void.
G. Upon final approval by the Court, this Consent Decree will be binding upon the Defendant, Plaintiffs, and all Class members and will constitute the final and complete resolution of all issues addressed herein.

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Cole v. County of Santa Clara Consent Decree

V. Roles of Monitor and Plaintiffs’ Counsel
A. Role of Plaintiffs’ Counsel
1. Jail Facility Tours
a. Defendant shall permit Plaintiffs’ Counsel reasonable access to tour the jail facilities, interview staff and inmates, and observe practices related to Defendant’s compliance with the provisions of this Consent Decree. Plaintiffs’ Counsel shall have reasonable access to interviews of staff and inmates to ensure a full evaluation. Interviews with inmates shall be conducted confidentially. Interviews with staff shall be conducted outside the presence of other jail staff or supervisors. However, County Counsel shall be present during staff interviews and staff may decline to participate in any interview conducted by Plaintiffs’ Counsel.
b. Plaintiffs’ Counsel’s tours will not exceed more than three (3) tours annually.
c. Each tour shall last no more than two (2) days and be conducted by no more than one (1) Plaintiffs’ attorney or, alternatively, one (1) staff member. Plaintiffs’ representative shall debrief with County Counsel at the end of each tour. Plaintiffs’ Counsel shall also write a report after each tour, to which Defendant may respond within 21 days. Plaintiffs’ Counsel will provide Defendant’s counsel with 7 days advance notice of tour.
2. Requests for Documents and Individual Advocacy
a. Defendant shall provide Plaintiffs’ Counsel with access to records, reports, and documents that the Parties agree and identify are necessary to evaluate Defendant’s ongoing compliance with the Remedial Plan. If the Parties cannot agree on the necessary documents, the Parties will meet and confer to address any disagreements. The Parties shall cooperate so that such access is provided without unduly burdening Defendant. Defendant shall provide Plaintiffs’ Counsel with such information within 14 days of the request, unless a longer period of time is necessary.

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Cole v. County of Santa Clara Consent Decree

b. Where Plaintiffs’ Counsel has a good faith basis for doing so, Plaintiffs’ Counsel may bring individual inmates’ disability accommodation concerns to the attention of the County in writing, who shall respond in writing within 14 days. This process is not meant to replace or circumvent the existing processes for submitting grievances or ADA requests to jail staff. Plaintiffs’ Counsel will encourage inmates to make use of those existing processes except where exigent circumstances or failures of those processes have occurred.
3. Periodic Reporting
a. Defendant will provide Plaintiffs’ Counsel with the following reports: (a) a monthly report from the ADA Tracking System, identifying all inmates with Mobility Disabilities and the accommodations received, where the inmates are housed, and to which programs the inmates are assigned; (b) on a triannual basis, copies of all ADA-related inmate grievances and the written responses to the inmate grievances; and (c) on a triannual basis, copies of all ADA-related Inmate Request Forms and the written responses to these requests.
b. Production of the reports identified in subpart (a) of this provision is derived from the current ADA Tracking System, and the Parties acknowledge that the current ADA Tracking System is not integrated with the electronic medical record or other custody-based electronic systems and, thus, there are information sharing challenges that will not be cured until Defendant implements the planned electronic jail management software.
c. Within 30 days of the Effective Date of the Consent Decree, the Parties shall meet and confer to determine a list of any additional documents necessary for Plaintiffs’ Counsel to evaluate Defendant’s compliance with the Remedial Plan that will be produced on a periodic basis as well as the frequency for such productions.
B. Monitoring by Operational Monitor
1. Within three months of the execution date, the Parties shall jointly agree upon a Monitor (“Operational Monitor”) who will monitor Defendant’s compliance with the operational aspects of the Remedial Plan for the Term of this Consent Decree.

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2. If, for any reason, the Operational Monitor can no longer serve or the Parties jointly wish to engage a different monitor, the Parties shall attempt to agree on who shall be appointed to serve as the replacement monitor.
3. If the Parties are unable to agree on the replacement monitor, the Parties shall each submit a list of two (2) proposed new Operational Monitor candidates, all of whom will have already agreed to be subject to, and comply with, the Defendant’s contracting requirements, to the Honorable Magistrate Judge Nathaneal Cousins. Prior to submitting their respective lists to Judge Cousins, the Parties agree to meet and confer to ensure that each proffered candidate is eligible to be considered. If a proposed candidate is found to be ineligible due to his or her inability or unwillingness to comply with the County’s contractual requirements or due to a conflict of interest, the Party who proposed that candidate will be given an opportunity to propose an alternative candidate for consideration. The Parties will submit written suggestions to Judge Cousins as to who to select from the lists. Judge Cousins shall then select the new Operational Monitor from the lists.
4. Once the Operational Monitor is selected, the Operational Monitor will conduct two tours within the first year of the Execution Date of the Consent Decree and thereafter conduct biannual tours and program reviews. Plaintiffs’ Counsel shall have the right to attend the tours. The Parties may jointly agree in writing to conduct operational monitoring on a less frequent basis if the Parties agree such reduction is appropriate based on the current circumstances.
5. Prior to the Operational Monitor’s visit, Defendant shall advise the Operational Monitor which subjects are Unratable-In Progress and provide a brief reason why the subject(s) is not ready for evaluation of Substantial Compliance/Non-Compliance. The Operational Monitor shall still have the right to review the status of subjects Defendant has declared to be Unratable-In Progress.
6. The Operational Monitor will prepare a written report within 45 days after monitoring that will evaluate the extent to which Defendant has successfully implemented substantive provisions of the Remedial Plan and any plans to effectuate its terms, and recommend specific actions the Operational Monitor believes Defendant must make to achieve Substantial Compliance with the Remedial Plan. The Operational Monitor shall report on whether, as to each material

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provision, the County is in Substantial Compliance, Unratable-In Progress, or Non-Compliance as those terms are defined herein.
7. The Parties will have twenty-one (21) days to make written comments or objections to the Operational Monitor report. The Operational Monitor shall have twenty-one (21) days to respond to the Parties’ comments or objections by issuing a final report.
8. The Operational Monitor will conduct three tours of the New Jail unless the Parties agree that a third tour is unnecessary. The Operational Monitor will conduct the first tour of the New Jail within thirty (30) days after the County begins occupancy of the New Jail. The Operational Monitor will conduct the second tour of the New Jail as soon as he or she determines that there are sufficient numbers of inmates housed at the Jail to allow a meaningful evaluation of the New Jail’s compliance with this Consent Decree, to the extent that has not occurred at the time of the first tour. The Operational Monitor will conduct a third tour unless the Parties agree that a third tour is unnecessary. The Operational Monitor will prepare a written report within thirty (30) days after each tour that will evaluate the extent to which Defendant has successfully implemented substantive provisions of the Remedial Plan in the New Jail and any plans to effectuate its terms, and recommend specific actions that the Operational Monitor believes Defendant may need to make, if any, to achieve Substantial Compliance with the Remedial Plan. The Operational Monitor shall report on whether, as to each material provision, the County is in Substantial Compliance, Unratable-In Progress, or Non-Compliance, as those terms are defined herein. The Parties will have fourteen (14) days to make written comments or objections to this report. The Operational Monitor shall have fourteen (14) days to respond to the Parties’ comments or objections by issuing a final report.
C. Monitoring of Physical Alterations to Current Jails
1. Within three months of the Execution Date, the Parties shall jointly agree upon a Monitor with architectural accessibility expertise (“Architectural Monitor”) who will monitor Defendant’s compliance with the physical access portion of the Remedial Plan in the context of construction and/or alterations to the Jails for the duration of the Term of this Consent Decree.
2. If, for any reason, the Architectural Monitor can no longer serve or the Parties jointly wish to engage a different monitor, the Parties

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[3269262.19]

shall attempt to agree on who shall be appointed to serve as the replacement monitor.
3. If the Parties are unable to agree on the replacement monitor, the Parties shall each submit a list of two (2) proposed new Architectural Monitor candidates, all of whom will have already agreed to be subject to, and comply with, the Defendant’s contracting requirements, to the Honorable Magistrate Judge Nathaneal Cousins. Prior to submitting their respective lists to Judge Cousins, the Parties agree to meet and confer to ensure that each proffered candidate is eligible to be considered. If a proposed candidate is found to be ineligible due to his or her inability or unwillingness to comply with the County’s contractual requirements or due to a conflict of interest, the Party who proposed that candidate will be given an opportunity to propose an alternative candidate for consideration. The Parties will submit written suggestions to Judge Cousins as to who to select from the lists. Judge Cousins shall then select the new Architectural Monitor from the lists.
4. Defendant has provided and continues to provide the Architectural Monitor with copies of architectural drawings (“plans”) for construction and/or physical alterations within the Jails covered by the Remedial Plan.
5. Defendant may consult directly with the Architectural Monitor regarding the plans and/or alterations for the Jails. If Defendant and the Architectural Monitor have a dispute regarding the plans and/or alterations for the Jails, or reach a determination that technical infeasibility exists, Defendant shall advise Plaintiffs of these communications.
6. The Parties may agree to exclude specific projects from the plan review requirements.
7. Defendant anticipates that the planned construction will be completed in January 2022 at the earliest. The planned construction is highly dependent on third-party contractors, and this time estimate is not binding.
8. Defendant will request that the Architectural Monitor conduct periodic site visits to review completed work as major projects or groups of projects are completed. Plaintiffs’ Counsel may accompany the Architectural Monitor on these visits. The Architectural Monitor shall confirm in a written report, provided to

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Cole v. County of Santa Clara Consent Decree

the Parties within 45 days, whether each part of the completed work is ADA Accessible.
9. The Parties will have twenty-one (21) days to provide written comments or objections to the Architectural Monitor’s report. The Architectural Monitor shall have twenty-one (21) days to respond to the Parties’ comments or objections by issuing a final report.
10. Once the physical alteration projects are complete, the Architectural Monitor determines compliance, and the Dispute Resolution Process, if applicable, is complete, Defendant is no longer subject to monitoring for physical alterations.
D. Monitoring of Construction of the New Jail
1. Defendant anticipates that the New Jail will be completed in 2023. Construction of the New Jail is highly dependent on third-party contractors, and this time estimate is not binding.
2. After construction of the New Jail, the Architectural Monitor will conduct a site visit within thirty (30) days of completion of construction on the New Jail, and prepare a written report provided to the Parties within forty-five (45) days, evaluating whether each part of the completed work is ADA Accessible as required under the Remedial Plan. Plaintiffs’ Counsel may accompany the Architectural Monitor on this site visit.
3. The Parties will have twenty-one (21) days to provide written comments or objections to the Architectural Monitor reports. The Architectural Monitor shall have twenty-one (21) days to respond to the Parties’ comments or objections by issuing a final report.
VI. Attorney’s Fees and Costs
A. No later than ninety (90) days after the Effective Date, the County agrees to pay Plaintiffs’ Counsel the fixed sum of $1 million to cover and fully resolve any and all of Plaintiffs’ and Plaintiffs’ Counsels’ claims against the County for attorney’s fees and costs incurred or attributable to any and all work from any time prior to the filing of this Action (including any claims from the structured negotiations phase), up through and including the Effective Date of this Consent Decree (hereinafter, “past fees”).
B. No later than ninety (90) days after the Effective Date, the County shall pay the fixed sum of $2.2 million to cover and fully resolve any and all of Plaintiffs’ and Plaintiffs’ Counsels’ claims against the County for

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attorney’s fees and costs incurred or attributable to any and all work performed by anyone from the Effective Date of this Consent Decree up through and including the end of the Term, as Term is defined in Section VIII (hereinafter, “future fees”). These future fees shall be paid, using wire instructions stated at Section VI.B.1, into the Cole Jail Monitoring Qualified Settlement Fund (“QSF”), established by or on behalf of Plaintiffs’ Counsel. Plaintiffs’ Counsel warrants and represents to the County that the QSF is a duly constructed and authorized Internal Revenue Code Section 468B Qualified Settlement Fund, as defined by Internal Revenue Code Section 468-B and the associated Treasury Reg. 1.468B-1 of the Internal Revenue Code, and is qualified to receive this settlement payment for future fees. Plaintiffs’ Counsel shall defend and indemnify the County, and hold the County harmless, with respect to any claims, demands, causes of action, suits, debts, liabilities, fees, taxes, charges, losses, or costs, of any nature whatsoever, relating to or arising from the formation, administration, or existence of the QSF or the payment by the County into the QSF.
1. The following, in combination with the complete account number which shall be provided by Plaintiffs’ Counsel to the County, constitute the wire instructions for the QSF:
 Account Name: EPTC Custodial Trust Settlement Trust Contribution Account
 Account Number: X8544  Bank: Union First Market Bank  Routing Number: 051403164  Further Credit Instructions: EPTC FBO – Cole Jail Monitoring
Qualified Settlement Fund
2. The only exceptions to this fixed sum for future fees that are not included in the $2.2 million sum, above, are comprised of the following two scenarios; and these are the only situations in which Plaintiffs’ Counsel or anyone else may file a motion with the court seeking an award of additional reasonable attorney’s fees and costs:
a. The County brings an unsuccessful motion under the Consent Decree against Plaintiffs or Plaintiffs’ Counsel (“County’s Motion”) (Scenario 1); or
b. The Court has found the County to be in violation of provisions of the Consent Decree, and based on that violation, has ordered to County to comply with the Consent Decree

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(“order to comply”); and then, the County refuses to follow that order to comply (Scenario 2).
c. Under Scenario 1, Plaintiffs’ Counsel may only be awarded those reasonable attorney’s fees and costs for work performed that both a) arises after the filing of the County’s Motion and b) directly pertains to Plaintiffs’ Counsel preparing their filed response and attending the hearing, if any, on the County’s Motion.
d. Under Scenario 2, if the County refuses to follow the order to comply, Plaintiffs’ Counsel may file a motion to find the County in contempt of court. If Plaintiffs’ motion is successful, Plaintiffs’ Counsel may then only be awarded those reasonable attorney’s fees and costs for their work drafting and arguing the successful new contempt motion that is performed after both a) the Court enters the order to comply, and then b) the County fails to abide by that order to comply.
C. With the exception of the scenarios set forth in Section VI.B.2, no other attorney’s fees or costs award or payment of any sort is permitted to anyone under this Consent Decree.
VII. Dispute Resolution
A. If either Party seeks to engage in the Dispute Resolution Process, as defined herein, that Party shall give notice to the other Party of the grounds for the dispute. The Party receiving the demand to engage in the Dispute Resolution Process will provide a written response within fourteen (14) days. The Parties shall then engage in good-faith negotiations to attempt to resolve the dispute for a minimum of thirty (30) days from the date of the response. Plaintiffs shall be permitted to bring their own expert into the Jails, at a time, scope, and for a duration mutually agreed upon by the Parties, as part of this thirty (30) day negotiation period in order to assist in resolving the dispute. The County agrees to not unduly delay Plaintiffs’ expert’s access to the Jails under these circumstances.
B. If after meeting and conferring for at least thirty (30) days, the dispute has not been resolved, either Party may request that the Parties bring the dispute before Judge Cousins, or another mutually agreed upon neutral, for purposes of mediation. If Judge Cousins is not available within forty-five days (45), the Parties will utilize the services of the Northern District of California’s Alternative Dispute Resolution program or request that the

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Court appoint another Magistrate Judge. If this mediation is unsuccessful, either Party may apply to the Court for relief that is bounded by and subject to the limitations and terms of this Consent Decree. The Parties agree to work in good faith to avoid such applications wherever possible. Any disputes that cannot be resolved through the Dispute Resolution Process outlined above may be submitted to Judge Cousins, in his capacity as a Magistrate Judge rather than as a mediator as delineated in Section IX.B. below, for a resolution that is bounded by and subject to the limitations and terms of this Consent Decree.
C. During the last nine (9) months of the Term of this Consent Decree, either Party may choose to immediately submit any disputes to Judge Cousins following completion of the thirty-day meet and confer process, in his capacity as a Magistrate Judge, for a resolution that is bounded by and subject to the limitations and terms of this Consent Decree.
In the case of an emergency that poses an immediate and significant threat to the health and safety of inmates, and as such, the nature of the emergency makes completion of the Dispute Resolution Process impracticable, a Party may seek relief from the Court that is bounded by and subject to the limitations and terms of this Consent Decree, with the exception of not having to complete the Dispute Resolution Process, provided that the moving Party has notified the nonmoving party of the issue at least seventy-two (72) hours before seeking such relief from the Court.
VIII. Duration of the Consent Decree
A. The Parties agree that this Consent Decree, and all of its terms, will expire, and will no longer be enforced or enforceable in any court, twelve (12) months after the certificate of occupancy for the New Jail has been issued and the County has begun placement of inmates in the New Jail (the “Term”). This Term is among the most material terms of this Consent Decree, such that absent this Term, the Parties would not have executed this Consent Decree. To effectuate this Term, the Parties further agree to waive their rights under 28 U.S.C. §§ 3626 (b), (e), and (f), including as set forth in paragraphs VIII.B and C, below.
B. Defendant agrees not to seek, support, or assent to termination of the Consent Decree before the completion of the Term, under any circumstances, except as set forth in paragraph VIII.C, below; and Plaintiffs agree not to seek, support, or assent to any extension of the Term, under any circumstances, except as set forth in paragraph VIII.C, below.

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C. The only circumstance by which the Term of this Consent Decree may be extended is that the Parties jointly agree that the Term should be extended because they perceive that ongoing violations remain at the end of the Term and the Parties jointly agree that extension of the Term is the most efficient means to address such violations. In that circumstance, the Parties will jointly move, and can only jointly move, the Court to extend the Term. If Plaintiffs contend, and Defendant disputes, that ongoing violations exist at the end of the Term, and/or if Defendants do not agree that the Term should be extended, Plaintiffs’ sole remedy shall be to file a new lawsuit after the end of the Term of this Consent Decree.
IX. Reservation of Jurisdiction and Enforcement
A. The District Court of the Northern District of California shall retain jurisdiction to enforce, but under no circumstances expand or alter, the terms of this Consent Decree and shall retain jurisdiction to resolve any dispute regarding compliance with this Consent Decree and that such resolution is bounded by and subject to the limitations and terms of this Consent Decree, including that in Section VIII, above, regarding the Term of this Consent Decree. The Court shall have the power to enforce the Consent Decree through specific performance and all other remedies permitted by law and equity throughout the Term of this Consent Decree and that such enforcement is bounded by and subject to the limitations and terms of this Consent Decree, including that in Section VIII, above, regarding the Term of this Consent Decree.
B. The Parties consent to having all disputes between the Parties arising out of this Consent Decree, including those regarding compliance with this Consent Decree, heard and decided by Judge Nathanael Cousins, subject to the provisions of Federal Rule of Civil Procedure 72, and that any relief from such disputes is bounded by and subject to the limitations and terms of this Consent Decree. Should Judge Cousins no longer be available to serve in this capacity for any reason, only this provision, IX.B, will be deemed to be severable from the remainder of this Consent Decree, unless the Parties jointly agree on a new decision-maker.
X. Release
Subject to the entry of Judgment by the Court and in consideration of the relief set forth herein, Plaintiffs, for themselves, the Class, and their successors and assigns, hereby fully and finally release and discharge Defendant and its successors, assigns, officers, directors, and past and present agents and employees (“Released Parties”) from any and all claims for declaratory or injunctive relief raised in the Action, or that could have been raised in the Action, relating to inmates with Mobility Disabilities (“Released Claims”).

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Cole v. County of Santa Clara Consent Decree

The Released Claims do not include any claims to enforce the terms of this Consent Decree. Nothing in this Consent Decree releases any damages claims to which Plaintiffs or other individual members of the Plaintiff Class may be entitled.
XI. Miscellaneous
A. This Consent Decree, which incorporates by reference the Remedial Plan (Exhibit A) and the draft Notice to the Class (Exhibit B), contains the entire agreement between the Parties. This Consent Decree expresses the complete and final understanding with respect to the subject matter of this Consent Decree. The Parties hereto understand and agree that the terms of this Consent Decree supersede any prior discussions, understandings, or agreements between them related to the subject matter hereof.
B. The Parties each acknowledge that they are entering into this Consent Decree freely, knowingly, voluntarily, and with a full understanding of its terms. The Parties acknowledge that they have consulted with counsel of their own choosing concerning this Consent Decree and that they were given reasonable time to review and consider the terms of this Consent Decree.
C. This Consent Decree shall be binding on all successors, assignees, employees, agents, and all others working for or on behalf of Defendant and Plaintiffs.
D. The language of this Consent Decree shall be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. The terms of this Consent Decree are the product of joint negotiations and shall not be construed as having been authored by one party rather than another. Any ambiguity shall not be construed against any Party. Where required by context, the plural includes the singular and the singular includes the plural. The headings in this Consent Decree are solely for convenience and will not be considered in its interpretation.
E. If any provision or provisions of this Consent Decree, other than the Term, shall be held invalid, illegal, or unenforceable, the validity, legality, and/or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
F. This Consent Decree may be executed in counterparts, each of which will be considered an original, but all of which, when taken together, will constitute one and the same instrument.

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G. H. I.
/ / /

This Consent Decree shall be governed by and construed in accordance with the laws of the State of California.
To the extent any documents are required to be executed by any of the Parties to effectuate this Consent Decree, each party hereto agrees to execute and deliver such and further documents as may be required to carry out the terms of this Consent Decree.
Each signatory to this Consent Decree certifies that it, he, or she is fully authorized by the party it, he, or she represents to enter into the Consent Decree, to execute it on behalf of the party represented, and to legally bind that party thereto.
Unless otherwise indicated in the Consent Decree, all notices or communications required by this Consent Decree shall be in writing by email addressed as stated below. Should any Party’s contact information change from what is listed below, that Party shall promptly provide written notice of the updated contact information to the other Parties.
To Named Plaintiffs, Plaintiffs’ Counsel, or the Settlement Class:
Lisa Ells Rosen Bien Galvan & Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 lells@rbgg.com
Michelle Iorio Disability Rights Advocates 2001 Center Street, Fourth Floor Berkeley, CA 94704 miorio@dralegal.org

/ / /

/ / /

/ / /

/ / /

/ / /

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Cole v. County of Santa Clara Consent Decree

To Defendant:
Douglas M. Press, Assistant County Counsel Aryn Harris, Deputy County Counsel Emily Fedman, Deputy County Counsel 70 West Hedding St., 9th Floor, East Wing San Jose, CA 95110 douglas.press@cco.sccgov.org aryn.harris@cco.sccgov.org emily.fedman@cco.sccgov.org
IT IS AGREED AND SO STIPULATED.
DATED: ______________, 2018 ROSEN BIEN GALVAN & GRUNFELD LLP
By: Lisa Ells
DATED: _______________, 2018 DISABILITY RIGHTS ADVOCATES
By: Michelle Iorio
Attorneys for Plaintiffs and the Plaintiff Class
DATED: ______________, 2018 JAMES R. WILLIAMS County Counsel
By: Aryn Paige Harris Deputy County Counsel
Attorneys for Defendant

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To Defendant:
Douglas M. Press, Assistant County Counsel Aryn Harris, Deputy County Counsel Emily Fedman, Deputy County Counsel 70 West Hedding St., 9th Floor, East Wing San Jose, CA 95110 douglas.press@cco.sccgov.org aryn.harris@cco.sccgov.org emily.fedman@cco.sccgov.org

BIEN GALVAN IT IS AGREED AND SO STIPULATED.
DATED: N o v12e20m 18 RbOSEeN r

& GRUNFELD LLP

By: ___ f u _

_

Lisa Ells

DATED: Novemb1e2r,2018 DISABILITY RIGHTS ADVOCAT

Michelle Iorip

Attorneys/or Plaintiffs and the PlaintiffClass

1l 1- DATED:

I 13 , 2018 JAMES R. WILLIAMS

County Counsel

By: Deputy CountyCounsel

Attorneys for Defendant

20

Cole v. County of Clara Consent

EXHIBIT A

Santa Clara County Mobility Disability Remedial Plan
I. TERMINOLOGY AND DEFINITIONS
The terms and definitions set forth in the Consent Decree, to which this Remedial Plan is attached and into which this Remedial Plan is incorporated by reference, also control the terms and definitions set forth in this Remedial Plan.
II. INTAKE PROCESS
A. In a reasonably confidential setting, the County shall inquire during intake whether an inmate has a Mobility Disability using an agreed-upon screening tool.
B. The intake screening shall be conducted by a licensed registered nurse or, at the County’s discretion, a Medical Provider.
C. During the intake screening, the County shall begin the verification process of whether an inmate has a Mobility Disability, as outlined in Section III, if:
1. The inmate self-reports a Mobility Disability;
2. The inmate’s Healthlink or ADA Tracking System record contains documentation of a Mobility Disability; or
3. The screening tool indicates that the inmate might have a Mobility Disability.
D. If the intake process outlined in Section II.C, above, indicates that an inmate might have a Mobility Disability, the County shall utilize the agreed-upon screening tool to determine what type of reasonable modifications are necessary and available (e.g., changes to housing, lower bunk/lower tier) and shall provide such reasonable modifications while the inmate awaits verification pursuant to Section III.
E. Issuance and Retention of Mobility Devices at Intake
1. The County will issue a Standard Mobility Device promptly, but in any case no later than the timelines contained in Section IV, to any inmate who is determined to possibly need a Mobility Device pursuant to Section II.D, subject to later verification pursuant to Section III, unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that an inmate’s possession of a Mobility Device constitutes an immediate risk of
Santa Clara County ADA Remedial Plan Page 1

bodily harm to inmates or staff, or threatens the security of the facility. If providing an alternative Mobility Device would mitigate the risk, the Captain or Watch Commander shall direct that the inmate be provided with the designated alternative.
2. The County acknowledges its obligations to comply with California Penal Code section 2656 pertaining to retention of orthopedic and prosthetic appliances.
3. Subject to Sections II.E.1 & II.E.2, inmates will be permitted to keep their Personal Mobility Device(s) during the intake process until the County issues a Standard or Generic (if available) Mobility Device, unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that the Mobility Device constitutes an immediate risk of bodily harm to inmates or staff, or threatens the security of the facility. If providing an alternative Mobility Device would mitigate the risk, the Captain or Watch Commander shall direct that the inmate be provided with the designated alternative.
F. If an inmate arrives at the Jail with a Personal Mobility Device that is exchanged for a County-owned Mobility Device, the County shall store the Personal Mobility Device at the Jail at no cost to the inmate for return upon release and/or transfer from the Jail to another facility. Alternatively, the inmate may arrange for pick-up of the Mobility Device. The County will not store a Personal Mobility Device for more than ninety (90) days after an inmate has been released or transferred.
G. The County shall advise inmates of the results of the intake screening and notify the inmate of the right to request a physical examination by a Medical Provider to the extent the inmate disagrees with the results and/or reasonable modifications provided. The County shall further notify inmates of the right to request use of a Personal Mobility Device consistent with Section IV below.
H. The results of the intake screening shall be documented and promptly inputted into the County’s ADA Tracking System.
I. As part of the intake process, all inmates shall be informed of the process by which they can request a reasonable modification while in custody, including the types of issues that can be reviewed by the County Jails’ ADA Unit on an expedited basis.
Santa Clara County ADA Remedial Plan Page 2

III. VERIFICATION OF AN INMATE’S MOBILITY DISABILITY AND NEED FOR REASONABLE MODIFICATIONS
A. The County’s policy is to issue County owned Mobility Devices in all instances unless: (a) an inmate’s Personal Mobility Device is the only reasonable modification for the inmate’s Mobility Disability; or (b) the nature of the inmate’s Personal Mobility Device would pose particular difficulty and/or harm to the inmate to remove, and/or removal is otherwise unnecessary due to the origin or nature of the device (i.e., a hospital-issued sling or brace).
B. An inmate may make a request to the ADA Unit to be able to continue to use his/her Personal Mobility Device. The ADA Unit and/or Medical Provider (where necessary) will evaluate the request based on an individualized assessment as outlined in Sections III.D and III.E.
C. An inmate’s Personal Mobility Device may be retained by the County for a short period of time sufficient to inspect the device for contraband. In most cases the inspection should occur promptly, but in rare cases the inspection may take longer, in which case it shall be completed within 14 days.
D. ADA Unit’s Responsibilities
1. The County’s ADA Unit shall review whether an inmate has a Mobility Disability and/or what reasonable modification(s) are necessary for the inmate within 7 calendar days under the following circumstances:
a. An inmate is designated during the intake screening as possibly having a Mobility Disability and/or the need for a reasonable modification;
b. An inmate makes a request to the ADA Unit, including through an ADA Request or ADA-related grievance as outlined in Section XIII, for evaluation of a Mobility Disability and/or the need for a reasonable modification; or
c. The inmate is referred by staff to the ADA Unit for evaluation of a Mobility Disability and/or the need for a reasonable modification.
2. The ADA Unit shall document a Mobility Disability and/or what reasonable modification(s) are necessary in the ADA Tracking System.
Santa Clara County ADA Remedial Plan Page 3

a. If the ADA Unit determines that an inmate requires a Mobility Device, the County shall issue it consistent with Section IV.D.1, and the ADA Unit will issue to the inmate appropriate documentation authorizing possession of a Mobility Device.
b. If the ADA Unit determines that an inmate requires a reasonable modification related to their housing assignment (e.g., ADA Accessible cell, grab bars, dining areas, showers, path of travel, lower bunk, lower tier and/or a housing reassignment in order to access work, educational or other programs), the inmate shall receive the reasonable modification within 24 hours.
3. If the ADA Unit determines that an inmate’s Mobility Disability requires evaluation from a Medical Provider, the ADA Unit shall offer an inmate a reasonable modification on a temporary basis pending a medical appointment, which shall occur within 30 days.
4. The Parties agree that not all Mobility Disabilities and/or reasonable modifications will require an appointment with a Medical Provider to verify the Mobility Disability and/or the need for a reasonable modification. Further, an inmate’s Mobility Disability and/or need for a reasonable modification could change over time and will be addressed based on an inmate’s current status.
E. Medical Provider’s Responsibilities
1. If the ADA Unit refers an inmate for evaluation pursuant to Section III.D.3, or if an inmate or Medical Provider first identifies a Mobility Disability at a medical encounter where the Medical Provider is able to assess the Mobility Disability, the Medical Provider shall verify whether the inmate has a Mobility Disability and/or determine what reasonable modification(s) are necessary for the inmate unless such a determination requires a specialist-medical appointment.
a. If the Medical Provider determines that an inmate requires a Mobility Device, the County shall issue it consistent with Section IV.D.1, and the County will issue to the inmate appropriate documentation authorizing possession of a Mobility Device
b. If the Medical Provider determines that an inmate requires a reasonable modification related to their housing assignment
Santa Clara County ADA Remedial Plan Page 4

(e.g., ADA Accessible cell, grab bars, dining areas, showers, path of travel, lower bunk, lower tier and/or a housing reassignment in order to access work, educational or other programs), the inmate shall receive the reasonable modification within 24 hours.
c. The County shall document the Medical Provider’s determination in the ADA Tracking system and refer the inmate to the ADA Unit for follow-up.
d. If the Medical Provider determines that an inmate requires a specialist-medical appointment, the Medical Provider shall promptly request that appointment, and shall consult with the ADA Unit in order to provide a reasonable modification, such as a Mobility Device and/or a housing change in accordance with Sections III.E.1.a and III.E.1.b on a temporary basis pending the outcome of the specialist-medical appointment.
2. If an inmate or Medical Provider first identifies a Mobility Disability at a medical or mental health appointment where the Medical Provider cannot assess the Mobility Disability (e.g., because the appointment is not conducted by the appropriate Medical Provider and/or is scheduled for a different purpose), the Medical Provider shall refer the inmate to the ADA Unit, and the County shall document the referral in the ADA Tracking System. The ADA Unit shall then conduct a review consistent with Section III.
3. Medical Providers evaluating an inmate’s Mobility Disability and/or the need for a reasonable modification(s) may determine at an inperson evaluation that the inmate does not have a Mobility Disability and/or the inmate does not require a reasonable modification. If such a determination is made, the County shall document the rationale for the Medical Provider’s finding in the ADA Tracking system.
IV. ISSUANCE, RETENTION, MAINTENANCE, AND DENIAL OF MOBILITY DEVICE(S)
A. The County’s policies and procedures for the ordering, retention, maintenance, and denial/confiscation of Mobility Devices shall be reviewed and amended or drafted, as necessary to be consistent with this Remedial Plan.
B. Supply and Maintenance of Standard Mobility Devices
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1. The County shall maintain a reasonable supply of Standard wheelchairs, walkers, canes, and crutches.
2. The County shall inspect its supply of Standard Mobility Devices on a quarterly basis to ensure sufficient operational quantities are available.
C. Motorized Mobility Devices
1. Motorized Mobility Devices are generally not permitted in the Jails.
2. The ADA Unit and Medical Provider(s), in coordination with the Assistant Sheriff, shall determine the most appropriate manner to accommodate an inmate who requires a motorized Mobility Device in the exceptional circumstance where a Medical Provider or the ADA Unit have determined, as outlined in Section III, that a motorized Mobility Device is the only reasonable modification that would meet the needs of the inmate with a Mobility Disability.
3. The County shall consult with Plaintiffs’ Counsel if the County determines that it will accommodate the inmate in need of motorized Mobility Device in some other manner than permitting the inmate to utilize the motorized Mobility Device in the Jail.
D. Timing for Issuance of Mobility Devices
1. An inmate with a Mobility Disability in need of a Standard Mobility Device shall be issued a Standard Mobility Device within four (4) hours, absent extenuating circumstances, following the ADA Unit or the Medical Provider’s determination that an inmate needs a Mobility Device.
2. Generic or Customized Mobility Devices may take time to order or design. If the required Generic Mobility Device is available on site, it shall be issued within four (4) hours, absent extenuating circumstances, following the ADA Unit or the Medical Provider’s determination that an inmate needs a Mobility Device. For Customized Mobility Devices and Generic Mobility Devices not kept on site, Adult Custody Health Services shall either obtain the device or, if the device requires a special order, place the order for said device within three (3) business days of identification of need. The County shall inform the inmate of an estimated time that the Generic and/or Customized Mobility Device shall be provided. The County shall check on the status of the Generic or Customized
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Mobility Devices every 30 days and shall provide the inmate with a temporary reasonable modification to the extent necessary.
E. Maintenance of Mobility Devices
1. If an inmate’s Mobility Device is operable but in need of maintenance or repair, and the inmate notifies the ADA Unit, the ADA Unit shall assess and address the maintenance or repair need within seven (7) days.
2. If an inmate’s Standard Mobility Device becomes inoperable and the inmate reports the problem to custody staff, the County shall provide a replacement within twenty-four (24) hours.
3. If an inmate advises the ADA Unit and/or a Medical Provider that a Generic or Customized Mobility Device is in need of maintenance, repair, or replacement, the County shall coordinate maintenance, repair, or replacement as necessary. In the interim, the ADA Unit shall replace the Generic Mobility Device if such device is kept in stock on site or provide the inmate with a Standard Mobility Device on a temporary basis and evaluate the provision of other interim reasonable modification(s).
F. Safety-Security Assessments After Intake
1. The County shall permit an inmate to keep a Mobility Device unless a Captain or Watch Commander determines and documents, based on a Safety-Security Assessment, that a Mobility Device constitutes an immediate risk of bodily harm to inmates or staff, or threatens the security of the facility.
2. If the Captain or Watch Commander makes such a determination, they shall document the decision, and reasons for it, as well as the date of decision, in writing, and shall promptly consult with a Medical Provider and the ADA Coordinator to determine if an appropriate alternative reasonable modification can be provided, in which case an alternative reasonable modification shall be provided. The Captain, Watch Commander, Medical Provider, or ADA Coordinator shall document the nature of any alternative reasonable modification(s) provided in the ADA Tracking System.
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3. If the County removes an inmate’s Mobility Device following a Safety-Security Assessment, the County shall reevaluate the SafetySecurity Assessment as follows:
a. The inmate must be reevaluated by the ADA Unit to determine if he or she can safely possess the Mobility Device a minimum of every seven (7) days if the device is removed during the intake process.
b. The inmate must be reevaluated by the ADA Unit to determine if he or she can safely possess the Mobility Device a minimum of every fourteen (14) days if the device is removed at any other time.
c. For each evaluation pursuant to Section IV.F.3.a and IV.F.3.b, the ADA Unit shall make a recommendation to the Captain of the facility or his or her superiors regarding whether the Mobility Device should continue to be removed from the inmate and shall document the rationale in the ADA Tracking System.
4. Notwithstanding the provisions above, the County acknowledges its obligations to comply with California Penal Code section 2656 pertaining to retention of orthopedic and prosthetic appliances.
V. CLASSIFICATION AND HOUSING OF INMATES WITH MOBILITYDISABILITIES
A. The County shall review its Classification Policies and Procedures and revise, as necessary, to be consistent with this Remedial Plan.
B. An inmate’s need for a Mobility Device in a housing unit shall not be a basis for assignment to the infirmary, a medical unit, or a mental health housing unit.
C. That an inmate has a Mobility Disability and/or requires reasonable modifications for that disability (including the provision of Mobility Devices) shall not be a factor in determining an inmate’s security classification.
D. Inmates identified as having a Mobility Disability shall be placed in housing that is consistent with their security classification and their accessibility needs. Not all inmates with a Mobility Disability require an ADA Accessible cell or unit, but may require reasonable modifications
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related to housing such as, but not limited to, a lower bunk/lower tier assignment, or access to ADA Accessible shower facilities.
E. This Remedial Plan recognizes that, while additional ADA Accessible housing is constructed pursuant to the Construction Remedial Plan (Section XI), ADA Accessible housing may not be immediately available for every inmate needing such housing consistent with their classification. As ADA Accessible housing is completed and brought online under the Construction Remedial Plan, inmates in need of ADA Accessible housing shall be housed consistent with their needs. In the interim, the Parties agree that inmates with Mobility Disabilities who require ADA Accessible housing shall be housed as follows:
1. Male Inmates
a. Inmates determined to be a Level 1 classification shall be housed in Barracks 3 at the Elmwood Minimum Camp unless Barracks 3 is closed for repairs, construction, or other extenuating circumstances, in which case these inmates shall be housed in Special Housing.
b. Inmates who use wheelchairs, and who are determined to be Level 2, 3, or 4 security level inmates, shall be housed in Main Jail Unit 2B and/or Elmwood Unit M3.
c. Inmates who use Mobility Devices other than wheelchairs and who are determined to be Level 2, 3, or 4 security level inmates, shall be assessed on an individualized basis and housed as appropriate.
2. Female Inmates
a. Inmates who can be appropriately housed in a dorm setting based on their security level shall be housed in W2. The ADA Unit will promptly conduct an individualized assessment to determine if additional reasonable modification(s) are necessary and develop a plan to address those needs.
b. Inmates who require cell-style housing based on their security level shall be housed in W4. The ADA Unit shall promptly conduct an individualized assessment to determine if additional reasonable modification(s) are necessary and develop a plan to address those needs. The County shall
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promptly consult with Plaintiffs’ Counsel regarding the County’s planned reasonable modifications for an inmate requiring cell-style housing who, the County has determined as outlined in Section III, requires full-time use of a wheelchair.
F. If the housing units listed in Sections V.E.1 and/or V.E.2 are closed for repairs, construction, or other extenuating circumstances, the County shall promptly (1) notify Plaintiffs’ Counsel of the closure(s), and (2) provide Plaintiffs’ Counsel with a list of where inmates with Mobility Disabilities will be housed for the duration of the closure(s). During such closure(s), the ADA Unit shall promptly conduct an individualized assessment to determine if additional reasonable modifications are necessary for the affected inmates with Mobility Disabilities and develop a plan to address those needs.
VI. TRACKING INMATES WITH MOBILITY DISABILITIES (“ADA TRACKING SYSTEM”)
A. The County shall use an ADA Tracking System to document and share internally information regarding inmates with Mobility Disabilities.
B. The ADA Tracking System shall identify and track all inmates with a Mobility Disability.
C. The ADA Tracking System shall have the following functional capabilities:
1. Code the type of Mobility Disability and the reasonable modifications an inmate requires for the Mobility Disability (e.g., Mobility Devices, lower bunks, ground floor housing).
2. Track all programs, services, and reasonable modifications offered to an inmate with a Mobility Disability throughout his/her incarceration.
D. The County shall designate staff that shall be responsible for using the ADA Tracking System. Designated Staff shall include Classification Staff, the ADA Coordinator and his or her staff, the Facility Watch Commander, Division Commander, Administrative Sergeant, Program Managers, and staff from Adult Custody Health Services (“Designated Staff”).
E. Designated Staff, both during the intake and booking process and during clinical encounters, shall be responsible for adding or modifying
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information regarding the nature of an inmate’s Mobility Disability and necessary reasonable modifications for that Mobility Disability.
F. Designated Staff shall be able and expected to view information in the system to ensure that the County provides reasonable modifications to inmates with Mobility Disabilities.
G. Designated Staff shall also be responsible for updating the system with information regarding the reasonable modifications provided during the inmate’s incarceration and any subsequent returns to custody.
H. Housing unit, education, and program office staff shall be provided with a report listing all inmates with a Mobility Disability in the relevant unit or program, as well as those inmates’ needing reasonable modifications for a Mobility Disability. The report shall be updated and provided in written form to such staff at least once per week. Additionally, information from the report shall be communicated in writing to staff whenever an inmate with a Mobility Disability is assigned to the unit or program.
I. All Designated Staff shall be trained to properly use the ADA Tracking System. The training shall occur on site over the course of six months after implementation begins.
J. The County shall develop and maintain appropriate policies outlining who can access and modify information in the ADA Tracking System.
VII. PROGRAMS AND SERVICES
A. The County’s policies and procedures pertaining to programs and services shall be reviewed and amended or drafted, as necessary, to be consistent with this Remedial Plan.
B. The County shall ensure that an inmate with a Mobility Disability has equal access to all inmate programs and services for which an inmate would be eligible but for that Mobility Disability—including, but not limited to educational, vocational, work, recreational, visiting, medical, mental health, substance abuse, self-improvement, and religious programs, as well as early release programs such as the Custody Alternative Supervision Program (CASP)—on a space available basis, consistent with the inmate’s security classification.
C. If an inmate’s Mobility Disability interferes with his or her ability to participate in a program or service for which he or she is otherwise eligible, the ADA Coordinator shall first determine whether the individual inmate
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can participate in the program or service if the County provided a reasonable modification. If a non-structural reasonable modification will allow an inmate with a Mobility Disability to participate in a program, the County shall provide the non-structural reasonable modification and shall allow the inmate to participate in the program.
D. If a non-structural reasonable modification would result in a fundamental alteration of the program, the County must take actions that would not result in such an alteration but would nevertheless ensure that the inmate with a Mobility Disability receives the benefits or services offered by the County’s program.
E. The County can refuse to provide a reasonable modification to an inmate with a Mobility Disability who is otherwise qualified for a program or service if: (1) the inmate’s participation in the program would pose a direct threat to the health or safety of others, or (2) there is a reason for doing so that is reasonably related to a legitimate penological interest(s), as determined by the ADA Unit in coordination with the Assistant Sheriff. Refusal to provide a reasonable modification pursuant to either of the preceding exceptions shall be based on a Safety-Security Assessment. If providing an alternative Mobility Device would mitigate the risk, the County shall provide the inmate with the designated alternative as expeditiously as possible.
F. If the County relies upon any of the above exceptions to deny an inmate with a Mobility Disability the opportunity to participate in a program or service, the ADA Unit must document the basis for the determination in the ADA Tracking System.
G. Location of Programs and Services
1. The Parties have designated structural changes in the Construction Remedial Plan outlined in Section XI in order to provide program accessibility to inmates with Mobility Disabilities.
2. In order to address program accessibility, the County agrees to provide programming and services in the areas designated in the Construction Plan (Section XI) as the portions of the Construction Plan providing accessibility to programs and services are completed.
3. As an alternative to providing programming and services in areas designated in the Construction Plan, the County may continue to utilize nonstructural methods to provide accessibility to programs and services, including but not limited to acquisition or redesign of
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equipment, assignment of aides to inmates with Mobility Disabilities or, at the County’s election, the provision of services at alternate accessible sites.
4. While the County is undertaking the construction described in Section XI of this Remedial Plan, the Parties agree that the County shall take the following interim measures to provide accessibility to programs and service for inmates with Mobility Disabilities:
a. The County may use inmates or Custody Staff to push inmates in wheelchairs to a program or service along paths of travel agreed upon by the Parties. Pending completion of physical modifications to the paths of travel, wheelchair pushers may be used as an interim measure. Wheelchair pushers used on an interim basis are subject to the training requirements and other provisions outlined in Section VII.G.7.
b. Assignment of aides to inmates with Mobility Disabilities.
5. Where the County cannot provide programs or services at the locations designated in the Construction Plan and cannot find nonstructural measures to provide accessibility to programs and services, the County may refuse to provide the program or service to an inmate with a Mobility Disability only upon a showing that doing so would result in a fundamental alteration in the nature of the program, service, or activity, or would result in undue financial and administrative burdens.
6. The County shall maintain ADA Accessible facilities in operable working condition. Isolated or temporary interruptions in access to these facilities due to maintenance or repairs are not prohibited if the County is exercising reasonable diligence in addressing the maintenance or repairs.
7. Once paths of travel are made compliant with this Remedial Plan, wheelchair pushers may continue to be used for inmates who need assistance traveling long distances, unless otherwise requested by the inmates. Appropriately screened inmates and/or Custody Staff chosen to assist inmates who use wheelchairs shall receive initial and periodic training as to their job duties and performance criteria. The training shall cover how to safely and properly assist inmates with Mobility Disabilities. The ADA Unit shall evaluate wheelchair
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pushers which shall include feedback from the inmates with Mobility Disabilities. Inmates with Mobility Disabilities have the right to refuse a wheelchair pusher, and in that circumstance, the ADA Unit shall determine an appropriate alternative reasonable modification.
H. If an inmate with a Mobility Disability requires transportation in a vehicle—e.g., to court or to a medical appointment at an outside facility— the vehicle used to transport the inmate must be ADA Accessible. Specifically, inmates who use wheelchairs on permanent bases and/or inmates who have difficulty navigating steps without assistance must be transported in vehicles equipped with a wheelchair lift and other safety equipment mandated by the Department of Motor Vehicles and the Department of Transportation. If the Department of Motor Vehicles and Department of Transportation standards conflict, the applicable standard that provides greater protections to individuals with a Mobility Disability shall govern.
VIII. POLICY REVIEW AND REVISION
A. The County is reviewing and revising, as needed, all policies, procedures, Post Orders, and forms, including those for Adult Custody Health Services, and the Inmate Orientation book, to be consistent with the provisions in this Remedial Plan. Plaintiffs’ Counsel shall be provided the opportunity to comment on these documents.
B. Policy Revision Process
1. Within 30 days of the execution of the Consent Decree, the Parties shall meet and confer to designate the policies that require revision to address key portions of this Remedial Plan
2. The County shall provide Plaintiffs’ Counsel with draft proposed revisions to the agreed upon policies within 120 days of the execution of the Consent Decree unless a longer timeframe is mutually agreed upon by the Parties.
3. The designated policies shall be finalized with one year of the execution of the Consent Decree unless the Parties agree to a longer time frame.
C. The County shall train relevant Staff on new or revised policies and procedures as detailed in Section X.
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IX. ADA COORDINATOR
A. The County has appointed a full-time ADA Coordinator, a lieutenant who reports directly to the Assistant Sheriff. The ADA Coordinator shall oversee all issues related to inmates with Mobility Disabilities, including, but not limited to, classification; housing; inspection, maintenance, provision, and removal of Mobility Devices; and responding to Mobility Disability-related requests and inmate grievances pursuant to County policy.
B. The County shall not modify the job description of the ADA Coordinator without consultation with Plaintiffs’ Counsel.
C. As soon as practical, but under no circumstances more than ninety (90) days after an inmate has been identified as having a Mobility Disability, the ADA Coordinator and/or her or his staff shall personally meet with each new inmate housed in the Jail who is identified as having a Mobility Disability. The meeting with the ADA Coordinator shall be for the purpose of ensuring that the inmate is housed in a cell and unit that accommodates his or her Mobility Disability; has the appropriate Mobility Device(s) and/or other reasonable modifications; ensuring the inmate has equal access to Jail programs for which she or he is eligible but for his or her Mobility Disability; ensuring the inmate has access to grievance forms to raise disability-related issues; and to advise the inmate of personnel who can assist her or him with reasonable modification needs. For an inmate identified as having a Mobility Disability who remains in the Jails for more than six (6) months, the ADA Coordinator and/or her/his staff shall meet with the inmate at least once every six (6) months until the inmate is released from the Jail.
D. The ADA Coordinator is charged with facilitating ADA Mobility-Disability related training to Custody Staff and Adult Custody Health Services Staff, and with monitoring programs and work assignments to ensure meaningful access for all inmates with Mobility Disabilities. The ADA Coordinator shall have sufficient staffing (the “ADA Unit”) to assist him or her regarding Mobility-Disability issues.
E. During any period where the ADA Coordinator is unavailable for more than thirty (30) days, a sergeant or higher-ranked individual shall fulfill the duties of the ADA Coordinator position until the ADA Coordinator becomes available or a replacement is appointed to the position.
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F. The ADA Coordinator shall attend and complete a certificate-course designed for ADA coordinators and obtain a certification and maintain said certification with updates and continuing education courses. Any replacement ADA Coordinator or interim ADA Coordinator shall obtain his or her ADA certification within twelve (12) months of starting in the position.
X. TRAINING
A. The County provided eight (8) hours of mutually agreed upon ADA training to all DOC Academy Cadets, Custody Staff, and Adult Custody Health Services Staff members in 2015 and 2016.
B. Training on New Policies and Procedures
1. Within six (6) months of the finalization of the revised policies and procedures (see Section VIII), the Parties shall select a mutually agreed upon trainer to train on the revised policies and procedures. Within the same six (6) month period, the selected trainer shall develop a curriculum for training Custody and Adult Custody Health Services Staff on the revised policies and procedures. The trainer shall then train Custody and Adult Custody Health Services Staff as outlined in Sections X.C.2 and X.D.2.
2. Within nine (9) months of the trainer’s preparedness to conduct the training, the trainer shall train 90 percent of Custody and Adult Custody Health Services Staff, and make reasonable efforts to train all Custody and Adult Custody Health Services Staff, on new policies and procedures or revised policies and procedures adopted pursuant to relevant topics in this Agreement. Critical Staff, such as the ADA Coordinator, ADA Unit, Intake Staff, and Medical Providers shall be prioritized for training during the first three months.
C. On-Going Training to Custody and Adult Custody Health Services Staff
1. The County shall provide eight hours of ADA training to all DOC Academy classes.
2. After completion of the training in Section X.B, the County shall provide a biennial training by a mutually agreed upon trainer to train Custody and Adult Custody Health Services Staff.
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D. The County may engage a consultant to provide one 24-hour Train the Trainer (T4T) ADA training to prepare the County to take over the responsibility of providing ongoing ADA training and the responsibility of providing biennial refresher training.
E. The appropriate length, format, and method of the training for Staff, including different types of Staff, will be developed in consultation with Plaintiffs’ counsel. Plaintiffs’ Counsel shall have the right to comment on all of the above-listed training modules in advance of their roll-out and to observe any of the aforementioned trainings upon request.
XI. FACILITY MODIFICATIONS AND ADJUSTMENTS
A. Facilities
1. The County currently has two jail facilities:
a. Main Jail (presently, Main Jail North and South).
b. Elmwood (presently, Elmwood Correctional Center for Men and Correctional Center for Women).
2. The County intends to build a new jail (“New Jail”). However, if the County determines it will not build the New Jail, the parties will meet and confer within thirty (30) days of such determination to discuss any additional construction that may be necessary at the Jails to meet the needs of inmates with Mobility Disabilities.
3. The County shall not house inmates with Mobility Disabilities at Main Jail South or Elmwood W1.
4. The County shall maintain ADA Accessible features required by this Agreement in operable working condition. This requirement does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.
B. New Jail
1. The New Jail shall be constructed in accordance with all applicable construction requirements under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and California Government Code Section 11135 (“Section 11135”).
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2. The New Jail shall include at least three percent ADA Accessible cells or 20 ADA Accessible cells, whichever is greater. The New Jail will provide housing for Level 2 and 3 inmates at a minimum.
C. Main Jail North 1. Booking Area (Basement Level): The County shall make the following ADA Accessible: a. One transaction counter for men;
b. One transaction counter for women;
c. One single occupancy holding cell for men; d. One multiple occupancy holding cell for men;
e. One dress out area, including shower; f. One television shelf in the general occupancy classification
holding cell; g. One mirror for inmate use; and
h. One pay telephone for inmate use.
i. The Parties agree that in lieu of making one holding cell for women ADA Accessible, the County shall use the dress out area in the bathroom/shower for women with Mobility Disabilities.
2. Property Release Area: The County shall make the following ADA Accessible:
a. One transaction counter; and
b. One bench in holding room.
c. The Parties agree that in lieu of making the property release area restroom ADA Accessible, the County shall provide access, immediately upon request, to a restroom located in the lobby.
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3. Second Floor:
a. General Use Area and Medical Unit (2A): The County shall make the following ADA Accessible:
i. One dental examination room;
ii. Remove access barriers and install a high-low table in one examination room on the unit;
iii. One medical waiting area cell with accessible restroom;
iv. The counter in one visiting cell; and
v. One telephone in the pro per interview room.
b. Special Housing (2B): The County shall make the following ADA Accessible:
i. Eight cells;
ii. One shower (excluding a fixed bench) and one bathtub;
iii. One table in the dayroom and one table in the multipurpose room; and
iv. One piece of exercise equipment.
v. The Parties agree that in lieu of providing fixed benches in ADA Accessible showers, the County shall adopt a policy of providing a safe and secure shower chair which shall be readily accessible and provided immediately upon request to an inmate with a Mobility Disability.
c. Infirmary (2C): The County shall make the following ADA Accessible:
i. Two dorms with a combined minimum of 8 beds;
ii. Eight cells;
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iii. One shower (excluding a fixed bench) and one bathtub;
iv. One table in the dayroom and one table in the multipurpose room;
v. Call buttons; and
vi. One piece of exercise equipment.
vii. The Parties agree that in lieu of providing fixed benches in ADA Accessible showers, the County shall adopt a policy of providing a safe and secure shower chair which shall be readily accessible and provided immediately upon request.
4. Fourth and Fifth Floor Housing Units: The County shall make the following ADA Accessible:
a. Five cells on the 4th floor;
b. Five cells on the 5th floor;
c. The counter in one visiting room on the 4th floor;
d. The counter in one visiting room on the 5th floor;
e. One shower serving each of the designated housing units on the 4th floor;
f. One shower serving each of the designated housing units on the 5th floors;
g. One table in the dayroom serving each of the designated housing units on the 4th and 5th floors;
h. One table in the multipurpose room serving each of the designated housing units on the 4th and 5th floors;
i. One payphone and one mirror in the dayrooms serving each of the designated housing units on the 4th and 5th floors; and
j. One piece of exercise equipment.
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5. Eighth Floor (Mental Health/Special Management Housing): The County shall make the following ADA Accessible:
a. The door threshold of the Seclusion/Safety cell;
b. Four cells in 8A and one cell in 8B;
c. One shower with flip-down shower bench serving each of the designated housing units;
d. One table in the dayroom serving each of the designated housing units;
e. One table in the multipurpose room serving each of the designated housing units;
f. One payphone and one mirror in the dayrooms serving each of the designated housing units; and
g. One piece of exercise equipment.
h. The Parties agree that in lieu of providing additional ADA Accessible cells on 8A, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on 8A, be transferred to the County hospital if there is not appropriately accessible housing for the inmate’s needs on 8A.
i. The Parties also agree that in lieu of providing additional ADA Accessible cells on 8B, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on 8B, shall be housed in another appropriate accessible housing unit at the Jail and shall be provided with services equivalent to what the inmate would have received in 8B in that housing unit.
D. Elmwood Facility
1. General:
a. The County shall install ADA Accessible water fountains in housing areas, program areas, and along paths of travel utilized by inmates with Mobility Disabilities.
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b. Paths of Travel: The County agrees to make the Paths of Travel used by inmates with Mobility Disabilities affixed as Attachment 1 ADA Accessible.
c. Processing Area: The County shall make the following ADA Accessible:
i. One restroom; and
ii. Dress out area for male and female inmates.
iii. The Parties agree that in lieu of making the holding cells ADA Accessible, the County shall adopt a policy of placing an inmate with a Mobility Disability outside of the holding cells either on or next to the seating area and shall ensure that the inmate with a Mobility Disability is moved directly to housing, limiting the amount of time in the processing area.
iv. The Parties agree that in lieu of making the showers ADA Accessible, the County shall not use the showers unless needed for decontamination or biohazard cleanup in the rare circumstance where contamination or biohazard incident occurs in the immediate area, in which case the inmate shall be offered appropriate assistance. An inmate with a Mobility Disability has the right to refuse assistance, in which case the inmate shall be transported to an alternative ADA shower for decontamination.
d. Information Center: The County shall make the following ADA Accessible:
i. The counter; and
ii. One restroom.
iii. The Parties agree that the room for attorney visits located in the Information Center shall have a small table to allow sufficient clearance space for an inmate with a Mobility Disability. The County agrees to provide a small table and maintain sufficient clearance space at all times.
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e. M1 – (Upper Floor): The County shall make eight cells ADA Accessible to house men and/or women.
f. Medical Facility: The County shall make the following ADA Accessible:
i. The restroom serving the waiting area.
ii. The Parties agree that in lieu of installing a bench in the X-ray changing room, the County shall adopt a policy of providing a chair for an inmate with a Mobility Disability. The County further commits to ensuring all movable furniture shall not be placed in paths of travel.
2. Elmwood Men’s
a. Operations Facilities: The County shall make the following ADA Accessible:
i. The counter located in the library;
ii. One restroom in the workshop area;
iii. One restroom near the classrooms;
iv. The threshold to classroom doors except that the County is not required to modify the cross-slope of the walkway that abuts the classrooms; and
v. Table or work bench where used by Mobility Impaired inmates.
b. Men’s Minimum Security Housing (Level 1 Dorm-Style Housing): The County shall make the following ADA Accessible:
i. Twenty-five beds spread across at least two different housing units;
ii. The entryway/ramps to the housing units;
iii. One shower and restroom serving the designated housing units; and
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iv. One table in the designated housing units.
c. Men’s Dining Hall for Minimum Security (Level 1) Inmates: The County shall make the following ADA Accessible:
i. Five percent of the seating capacity; and
ii. One ADA-designated portable toilet that meets California Building Code 11B-603 outside the dining hall.
d. Men’s Recreation Yard for Minimum Security (Level 1) Inmates: The County shall make the following ADA Accessible:
i. Handrails on the path to the volleyball court;
ii. Paved route from ADA housing unit(s) to the handball courts and basketball courts, or paved route from ADA housing unit(s) to and around the perimeter of the field; and
iii. One piece of exercise equipment.
e. Men’s Medium Housing (Level II and III Inmates): The County shall make the following ADA Accessible:
i. Cell-Style Housing at M4 and/or M5:
(1) Four cells in a minimum of two different cellstyle housing units;
(2) One shower serving each of the designated housing units;
(3) One dayroom table serving each of the designated housing units;
(4) Cane detectable railing serving each of the designated housing units;
(5) Remove access barriers and install a high-low table in one examination room on the housing unit; and
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(6) One piece of exercise equipment.
(7) The Parties agree that in lieu of providing additional ADA Accessible cells in M4 and/or M5, the County shall adopt a policy that shall require that an inmate with a Mobility Disability, who otherwise would be housed on M4 and/or M5, shall be housed in ADA Accessible dorm-style housing at the same security level or lower.
ii. Dorm-Style Housing Units in M3 and/or M8
(1) Twenty-five beds spread across at least two different housing units;
(2) One restroom serving each of the designated housing units;
(3) One shower serving each of the designated housing units;
(4) One dayroom table serving each of the designated housing units;
(5) Cane detectable railing serving each of the designated housing units;
(6) Remove access barriers and install a high-low table in one examination room on the unit;
(7) One piece of exercise equipment; and
(8) One holding cell in M8.
3. Elmwood – Women’s
a. W-2 Dorm Style Housing for Minimum and Medium (Level 1 and 2 Inmates): The County shall make the following ADA Accessible:
i. Eight beds in a minimum of two different housing units;
ii. One restroom serving the housing units;
Santa Clara County ADA Remedial Plan Page 25

iii. One shower serving the designated housing unit;
iv. One table serving the designated housing unit;
v. Cane detectable railings in designated housing unit; and
vi. One piece of exercise equipment.
b. W-4 Cell-Style Housing Medium and Maximum Security Inmates (Level II, III, and IV Inmates): The County shall make the following ADA Accessible:
i. Four cells in two different housing units;
ii. One restroom serving the designated housing units;
iii. One shower serving the designated units;
iv. One table serving the designated units;
v. Cane detectable railings in designated units;
vi. Walkway and thresholds to the yards on the designated units;
vii. Restroom in court holding cell;
viii. Bench in visiting area; and
ix. One piece of exercise equipment.
c. Level IV inmates shall not be housed in the W-1 dorm setting.
d. Modular Classrooms: The County shall make ADA Accessible any classrooms serving Elmwood Women’s ADA Accessible housing, including the associated paths of travel.
XII. MONITORING PLAN
A. The County shall develop a Monitoring Plan to ensure effective internal oversight and accountability procedures to comply with the nonconstruction related portions of this Agreement. Plaintiffs’ Counsel shall be provided the opportunity to comment on the Monitoring Plan.
Santa Clara County ADA Remedial Plan Page 26

B. The County shall develop a construction schedule for the Construction Plan. Plaintiffs’ Counsel shall be provided with an opportunity to comment on the plan.
XIII. GRIEVANCE AND ADA REQUEST SYSTEM
A. ADA Requests
1. The County will provide and maintain a readily available mechanism for inmates to make a request for reasonable modifications independent of the grievance system (“ADA Request”).
2. The ADA Coordinator or a member of the ADA Unit shall review the ADA Request within seven (7) days of receipt of such a request and, where appropriate, provide the requested reasonable modification and/or begin the verification process as set forth in Section III.
B. Grievance System
1. The County shall provide and maintain an inmate grievance system that provides for prompt and equitable resolution of complaints by inmates with Mobility Disabilities who allege disability-related violations.
2. The County grievance form shall continue to include a checkbox or similar means to identify that the request and/or grievance is ADArelated. The County shall train grievance staff to route “ADA” grievances appropriately even if the inmate who filed the grievance did not check the “ADA” checkbox.
3. The ADA Coordinator or a member of the ADA Unit shall review all ADA-related complaints, assign an ADA-trained staff person to investigate the complaints, and/or interview the inmate to the extent his or her complaint or requested reasonable modification is unclear, and provide a substantive written response to the inmate. The total response time for all ADA-related grievances (but not appeals) shall be no more than 30 days from receipt.
4. All ADA-related grievances and responses, including provision of interim reasonable modifications, shall be documented and tracked in the ADA Tracking System.
Santa Clara County ADA Remedial Plan Page 27

C. Expedited ADA Unit Review of Urgent ADA Requests and Grievances 1. The ADA Unit shall screen ADA Requests and ADA-related grievances for ADA-related issues that, if true, would subject the inmate to a substantial risk of injury or other harm, which include: (a) unauthorized removal of an inmate’s Mobility Device by Custody Staff; and (b) failures to provide housing-related reasonable modifications following a determination that the inmate requires such reasonable modification. 2. If the ADA Unit finds that the issue can be addressed through an interim modification, the ADA Unit shall provide such interim modification promptly, but in any case no later than seven (7) days from receipt of the ADA Request or Grievance. If the risk to health or safety cannot be addressed through an interim accommodation, within seven days from receipt of the ADA Request or Grievance, the ADA Unit shall, as appropriate: (1) confer with the Captain or his or her superior; and/or (2) arrange for a medical consultation with a Medical Provider for resolution of the ADA Request or Grievance. The ADA Unit shall also provide written notification to the inmate of the action(s) taken within the same seven-day period.
Santa Clara County ADA Remedial Plan Page 28

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EXHIBIT B

NOTICE: CLASS ACTION SETTLEMENT Santa Clara County Jails: Access for Persons With
Mobility Disabilities
A proposed settlement has been reached in Cole v. County of Santa Clara, N.D. Cal. No. 5:16-cv-06594-LHK. The Cole case is a federal class action lawsuit challenging access to programs, services, and activities at the Santa Clara County Jails on behalf of inmates with mobility disabilities. You are a member of this class if you have a mobility disability and are incarcerated in the County Jails.
The Court has preliminarily approved the settlement of this matter. This notice explains the proposed settlement, how you can see it, and how you can tell the Court whether you think it is fair.
This action does not seek money damages and none will be awarded. Nor does the proposed Consent Decree release any claims for monetary damages class members may have.
The terms of the settlement are described in a document called the Consent Decree. The Consent Decree implements a document called the “Remedial Plan,” which outlines specific conditions in the jails that the County has agreed to remedy.
Under the Consent Decree, the County will be required to develop implementation plans to reform certain policies, procedures, and practices for providing accommodations to inmates with mobility disabilities in the Jails, including in the areas of the County’s: (1) intake process; (2) verification of mobility disability process; (3) issuance, retention, and denial of mobility device(s); (4) classification and housing of inmates with mobility disabilities; (5) tracking of inmates with mobility disabilities and disability-related needs; (6) provision of programs and services; (7) ADA Coordinator; (8) training of custody and custody health staff; and (9) ADA-related grievance and request systems.
The Consent Decree also requires that the County undertake significant construction to remedy physical barriers at the County Jails including increasing the number of ADA-accessible cells, removing barriers in the County’s booking area, medical areas, dining areas, education and
[3303182.5]

program areas, yards, and along paths of travel. The County has already begun these efforts and has allocated over $100 million dollars to ADA jail improvements. Finally, the Consent Decree requires the County to retain experts to monitor the County’s implementation of, and compliance with, the Consent Decree. The Consent Decree further provides for plaintiffs’ counsel to also monitor the County’s compliance.
You can read about these changes in the Consent Decree. The Consent Decree and Remedial Plan will be available in a binder in each housing unit or, alternatively, you can read the Consent Decree and Remedial Plan by completing an Inmate Request Form and asking to see a copy. Custody Staff will provide you a copy within three (3) days of your request.
You can also access the precise terms and conditions of the Consent Decree online at www.dralegal.org or www.rbgg.com, by contacting class counsel at the addresses listed below, by accessing the Court docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at https://ecf.cand.uscourts.gov, or by visiting the office of the Clerk of the Court for the United States District Court for the Northern District of California at 280 South 1st Street, Room 2112, San Jose, CA 95113.
Michelle Iorio Disability Rights Advocates 2001 Center Street, 4th Floor Berkeley, CA 94704 Telephone: (510) 665-8644
Kara Janssen Rosen Bien Galvan & Grunfeld LLP 101 Mission Street, Sixth Floor San Francisco, CA 94105-1738 Telephone: (415) 433-6830
PLEASE DO NOT TELEPHONE THE COURT OR THE COURT CLERK’S OFFICE TO INQUIRE ABOUT THE CONSENT DECREE.
The Court will keep jurisdiction to enforce the requirements of this settlement. The Court will hold a hearing on the fairness of this
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settlement at [TIME] a.m. on [DATE], before the Honorable Lucy H. Koh at the United States District Court, Northern District of California, San Jose Courthouse, Courtroom 8 - 4th Floor, 280 South 1st Street, San Jose, CA 95113.
The attorneys who brought the class action will ask the Court to have Defendants pay for their attorneys’ fees and expenses for the work they have performed and will perform in the future to monitor the County’s compliance. The Consent Decree limits the attorneys’ fees and expenses to $1 million for the work done so far and to $2.2 million for work that will be necessary in the future to implement the Consent Decree and for plaintiffs’ counsel to monitor compliance in order to protect the rights of class members.
You may object to the proposed Consent Decree in writing. The County will provide inmates with a cost-free mechanism for writing to the Court. You may also appear at the Final Approval Hearing, either in person or through your attorney. If you appear through your own attorney you are responsible for paying that attorney. All written objections and supporting papers must include the case name (Cole v. County of Santa Clara) and case number (No. 5:16-cv-06594-LHK). Objections must be postmarked no later than [DATE], and sent to the following address:
Clerk of the Court United States District Court Northern District of California 280 South 1st Street San Jose, CA 95113
Comments may also be submitted by filing them in person at any location of the United States District Court for the Northern District of California.
[3303182.5]