Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT HECKER, et al., Plaintiffs.

vs.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al.,
Defendants. -----------------------,/

No.2:05-CV-02441-LKK

REPORT AND RECOMMENDATION OF THE COLEMAN SPECIAL MASTER REGARDING CONSOLIDATION AND/OR RESOLUTION
OF HECKER CLAIMS On February 26,2007, this Court recommended that the special master in Coleman v. Schwarzenegger, Case No. ClY S-90-0520 LKK JFM P, submit a report and recommendation on whether the claims raised in Hecker v. California Department of Corrections and Rehabilitation, Case No. 2:05-CV-02441-LKK, may be consolidated for resolution within the remedial phase of the Coleman action. An order to the same effect was entered on March 15, 2007. The Hecker plaintiffs, as recipients of services provided by the California Department of Corrections and Rehabilitation (CDCR) Mental Health Services Delivery System (MHSDS), are by definition also members of the Coleman plaintiff class. They allege that as inmates incarcerated in the institutions ofthe CDCR, they have been denied access to, or participation in, certain programs, services and activities made available to

1

Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 2 of 6 non-disabled inmates, in violation of Section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act) and Title II of the Americans with Disabilities Act of 1990 (ADA). (See Plaintiffs' Second Amended Complaint. '1['1[71, 72). In particular, plaintiffs contend that the following practices ofthe CDCR amount to violations of their rights under the ADA and Rehabilitation Act:
• Four points: Automatic addition of four points to their inmate classification scores upon entering any CDCR institution, by virtue of their histories of mental illness,
• Segregation of inmates: Segregation from CDCR programs, services and activities, including vocational programs and educational activities, based on their designation at the EOP level of care,
• Heat Plan Status: Automatic denial of access to certain programs, services, and activities (e.g. fire camps) without suitable substitutes, for inmates on heat-sensitive psychotropic medications.
• Denial of Transfer to Out-of-State Facilities: Automatic exclusion from transfers to out-of-state correctional facilities, based on Coleman plaintiff class status.' These points represent practical, if not strictly legal, common issues and
concerns of the two cases. The issues of automatic four classification points, segregation ofEOP inmates, heat plan status, and most recently, transfer to out-of-state facilities, have all been parsed within Coleman. The four-points issue and the separation ofEOP inmates from general population have been, and continue to be, negotiated and managed
I Plaintiffs also allege that additional unlawful discrimination under the Rehabilitation Act and the ADA has occurred in the operation of CDCR programs, serviCes and activities, including but not limited to those in the area ofparole.
2

Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 3 of 6 within Coleman Program Guide provisions. The specials needs of Coleman plaintiff class members who take heat-sensitive psychotropic medications figure prominently in the CDCR's compliance with the heat plan, which is monitored regularly by the Coleman special master. The CDCR policy on transfer of Coleman plaintiff class members to outof-state facilities has evolved at least in part from litigating within Coleman issues of special concern for caseload imnates (for example, plaintiffs' motion to enjoin out-ofstate transfers of caseload imnates that was based on question of whether receiving institutions are equipped to offer adequate mental health services).
The legal positions ofthe parties, however, do not suggest the same parity which exists between the practical aspects ofthe two cases, as described above. The defendants have moved to dismiss Hecker based on Fed.R.Civ.P.12(b)(1),6), 12(f)(f), res judicata and failure of plaintiffs to exhaust administrative remedies under the Prison Litigation Reform Act of 1995 (PLRA). In addition, defendants contend that the claims raised in Hecker are covered within Coleman, and that that they may be appropriately and more efficiently resolved via Program Guide discussion and application. The defendants' motion to dismiss is pending.
In April 2007, the Coleman special master conferred separately with counsel for plaintiffs and defendants in Hecker and Coleman. This was followed by a teleconference with all counsel in May 2007 to explore and facilitate possible agreement between the parties regarding consolidation of the two cases. Discussion topics suggested by the special master included the four issues specified above as well as any other ADA and Rehabilitation Act issues the parties wished to cover. The parties' legal arguments were not explored, as they fall beyond the scope of the special master's
3

Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 4 of 6
jurisdiction. Unable to chart any common course that could circumvent their respective legal positions, the parties reached no agreement. They submitted their positions on consolidation in writing to the special master (see plaintiffs' letter, Exhibit A; defendants' letter, Exhibit B). Plaintiffs decided to cancel a previously scheduled follow-up meeting for June 5, 2007 as moot.
Clearly, the parties are not prepared to reach a consensus on consolidating any common or related claims and issues in the Coleman and Hecker litigation. Plaintiffs have asserted that, as a condition of any consolidation, defendants must stipulate to liability under the ADA and under the Rehabilitation Act to ensure that Coleman is "binding" with respect to Hecker issues. They stated at the teleconference with the special master and in their letter to him that in order to reach a settlement, the parties would have to enter into a process by which:
(1) the full extent of CDCR's systemic policies of discrimination against persons with psychiatric disabilities are revealed through civil discovery or an equivalent process, and, (2) remedial orders can be reached in a legal context that permits the enforcement and monitoring of the rights of the putative Hecker class under the ADA and Rehabilitation Act (e.g. a stipulated settlement within the context of the Hecker case, or an agreement within an expanded Coleman case). (See Exhibit A) During the May 22, 2007 teleconference, plaintiffs stated that they would not compromise on this condition. Defendants asserted that the plaintiffs' ADA and Rehabilitation Act claims cannot be maintained for the legal reasons set forth in their pending motion to dismiss, and that in any event the issues in Hecker and Coleman fall within and are controlled by the Coleman Revised Program Guide. They point out that "the Coleman
4

Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 5 of 6 Court retains jurisdiction over the Revised Program Guide and must ensure it complies with all federal laws, including disability-access laws." (See Exhibit B). Defendants also point to considerations ofjudicial economy in disposing of the common issues and claims under Coleman, which has already been decided, rather than re-litigating them in Hecker, which could consume another two years. Defendants have expressed willingness to work toward resolution of the Hecker claims of inadequate disability-access within the Coleman Program Guide, and to revisit the four-points inmate classification issue. However, the defendants have stated unequivocally that they will not stipulate to liability under the ADA and the Rehabilitation Act.
The common issues and claims have been, or can be, addressed within the Coleman Revised Program Guide context. Back in January 1997, the Coleman court directed the special master to work with the parties to complete and submit for approval plans, policies and protocols for meeting the requirements of the court's remedial order. In response, a collection of standards for the delivery of mental health services were compiled. At the same time, some continuing differences between the parties were addressed in recommendations submitted by the special master, all of which culminated in the court's provisional approval of the submitted plans, policies and protocols, known generically at that time as the "program guides." They were a work in progress, with many aspects revisited and amended over time. In late 2002, the Coleman parties resumed the process of further refining the program guides. This marked the beginning of a three-year round of meetings, intense review, analysis and negotiation, followed by seemingly endless reiteration and critique of draft versions of the final product. In February 2006, the program guides were organized into a more formalized set that has
5

Case 2:05-cv-02441-LKK-JFM Document 72 Filed 06/12/2007 Page 6 of 6 since been referred to as the "Program Guide." Still, it remains a responsive work in progress, and expressly affords it own process for annual review and revision. At least to some degree, it could accommodate a meaningful approach to addressing and resolving many ofthe concerns and claims that have been raised in Hecker.
However, it appears presently that the plaintiffs' demand for the defendants' stipulation to liability under the Rehabilitation Act and the ADA, and the defendants' unwillingness to assume that liability voluntarily, present an insurmountable obstacle to negotiating an agreement to consolidation or merger of the Hecker claims into the Coleman case at this time. This leaves the parties to their respective legal positions, which are beyond the special master's jurisdiction and must be decided by the court.
Respectfully submitted,
/s/
J. Michael Keating, Jr. Special Master

/s/

June 12, 2007

Matthew A. Lopes, Jr. Deputy Special Master

6

Case 2:05-cv-02441-LKK-JFM Document 72-2 Filed 06/12/2007 Page 1 of 4
EXHIBIT A

Case 2:05-cv-02441-LKK-JFM Document 72-2 Filed 06/12/2007

SANFORD lAY ROSEN' MICHAEL W. BIEN ERNEST GALVAN

ROSEN, BIEN & GALVAN, LLP
ATTORNBYS AT LAW 315 MONTGOMERY STREET. TENTH FLOOR

HOLLY BALDWIN

SAN FRANCISCO. CALIFORNIA 94104

GAY C. GRUNFELD

JANllKAHN

MEGHANLANG

SARAH LAUBACH

ANNE MANIA

NURA MAZNAVI
MARIA MORRlS **

THOMAS NOLAN LORI RIFKIN •••

LOREN STEWART

KENNETH WALCZAK"'·••

AMY WHELAN
SARAH OLSON ZIMMERMAN ****

Page 2 of 4
TELEPHONE (415) 433-6830
FAX (415)433-7104
EMAIL rbg@rbg-law.com

May 23, 2007

VIA EMAIL & US MAIL

Kurt A. Franklin Paul B. Mello Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP 425 Market Street, 26th Floor San Francisco, CA 94105

Jay Russell Kenneth Roost Department of Justice Office of the Attorney General 4S5 Golden Gate Avenue, lIth Floor San Francisco, CA 94102

Lisa A. Tillman, Esq. Deputy Attorney General Office ofthe Attorney General P.O. Box 94425S Sacramento, CA 94244-2SS0

Re: Hecker v. Schwarzenegger, No. 2:0S-CV-02441 LKK-JFM (E.D. CaL); Coleman v. Schwarzenegger, No. Civ S 90-0S20 LKK-JFM (E.D. Cal.) . Our File Nos. 489-3 & 93S-1
Dear Counsel:
This is to confirm the results of yesterday morning's meeting at the Attorney General's Office in Sacramento. The Coleman Special Master's office presented art agenda document at the meeting, which is attached hereto for reference. In attendance for CDCR were Michael Stone, Misha Igra, Michael Quinn, Lisa Tillman and Rochelle East, as well as outside counsel, Paul Mello and Kurt Franklin from Hanson Bridgett Marcus Vlahos & Rudy LLP. Deputy Special Master Matthew Lopes chaired the meeting in person. Special Michael Keating participated by telephone. Present for the Coleman class and the putative Hecker class were plaintiffs' counsel Claudia Center of

MEMBER OF THB CONNECTICUT ANDTHB CAUFORNIA BAR

..

MllMBBR OF THB NBWYORK.AND THE CAUPORNIA BAR

u..

MEMBER OF THB CONNBCfICUT, NBW YORK ANI) THBCAUFORNIA BAR MEMBER OFTHB"JLLINOIS AND THB CALIFORNIA BAR

Case 2:05-cv-02441-LKK-JFM Document 72-2 Filed 06/12/2007 Page 3 of 4
May 23, 2007 Page 2
the Legal Aid Society - Employment Law Center, and Jane Kahn and Ernest Galvan of Rosen, Bien & Galvan, LLP.
Special Master Keating reminded the parties of the impending June 15, 2007 deadline for the Special Master's report to the Hecker Court under the March 15,2007 Order referring the matter "to the special master in Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P for a report and recommendation as to whether the claims raised herein can be resolved within the remedial phase of that action, said report to be filed within ninety days from the date of this order." Special Master Keating stated that little time remained for additional negotiations before the reporting deadline. Mr. Lopes reported that he had met separately in April with counsel for CDCR and for the Plaintiffs.
Plaintiffs' counsel asked whether Defendants would agree to a process that would lead to functional, efficient, and enforceable relief for the putative Hfickfir class that would be binding and enforceable under the Americans with Disabilities Act (ADA) and Rehabilitation Act (Rehabilitation Act). Defendants' counsel stated their continued position that relief under the ADA and Rehabilitation Act is barred in Coleman.
Defendants' counsel further stated that they were prepared only to discuss the specific individual issues listed in the attached agenda: heat plan, separation of inmates, transfer, and extra classification points due to mental illness.
Plaintiffs clarified, however, that these particular factual issues should not be confused with the claims asserted in Hficker. The claims in Hecker are that CDCR systematically violates the rights of persons with psychiatric disabilities under the ADA and the Rehabilitation Act in the operation ofCDCR's programs, services and activities. The four issues listed and discussed are examples of the way in which CDCR's systematic policies of discrimination harm persons with disabilities in violation of federal law. Plaintiffs reiterated that the Heckfir class has been harmed by numerous additional discriminatory policies in the administration of other CDCR programs, services and activities, inCluding but not limited to, parole programs, services and activities.
In order to resolve the Hecker claims within the remedial phase of Coleman,
plaintiffs explained, the parties would have to enter into a process by which (1) the full
extent of CDCR's systemic policies of discrimination against persons with psychiatric disabilities are revealed through civil discovery or an equivalent process, and, (2) remedial orders can be reached in a legal context that permits the enforcement and monitoring of the rights of the putative Hecker class under the ADA and Rehabilitation Act (e.g. a stipulated settlement within the context of the Hecker case, or an agreement within an expanded Coleman case). Defendants' counsel stated several times in the meeting that they could not agree to such a framework, and did not even agree to discuss such a framework with their clients.
The parties briefly discussed some of the steps that would be needed to bring the four specific disputed policies listed on the agenda into compliance with the ADA and the

Case 2:05-cv-02441-LKK-JFM Document 72-2 Filed 06/12/2007 Page 4 of 4

May 23, 2007 Page 3

Rehabilitation Act. Defendants' counsel discussed various modifications of policies. Plaintiffs' counsel clarified that policy modifications without a commitment of resources to make reasonable accommodations and modifications in actual programs, services and activities would not be sufficient.

Although the four specific policies areas were discussed, Defendants' counsel again would not agree to a framework whereby specific agreements even regarding these four policy areas would be enforceable under the ADA and the Rehabilitation Act.

The parties discussed whether a follow-up meeting on June 5, 2007 would be appropriate. Defendants' counsel stated that they would only be prepared to discuss the four specific policy areas on the agenda at such a meeting, and not the overall framework for resolving the Hecker claims, or even for agreeing on ADA and Rehabilitation Act remedies regarding the individual policy areas discussed. Given this impasse, we do not believe that a meeting on June 5, 2007 would be productive.

Plaintiffs' counsel has a duty to the Hecker named plaintiffs, and to the putative Hecker class, to diligently prosecute their rights under the ADA and Rehabilitation Act. We cannot simply yield those claims without any assurance that the agreements reached in return will have any binding effect under ADA and Rehabilitation Act standards.

Given Defendants' firmly stated position that ADA and Rehabilitation Act claims are barred in Coleman, we respectfully request that the Special Master report to the Hecker court that the claims raised in Hecker cannot be resolved in the Coleman remedial process. Defendants deserve a prompt ruling on their Rule 12 motion, and Plaintiffs need the case to move forward to the end of discriminatory policies and procedures that are causing grievous and daily harm.

Finally, I note briefly that Defendants attempted to inject attorneys' fees issues into the discussions. It is insulting and unethical to discuss attorneys' fees as a trade off for our clients' rights and we will not do so.

Sincerely Yours,

EG Enclosure cc: Special Master, Michael Keating Deputy Special Master Matthew Lopes Co-counsel

R04BIEN & G~VAN, LLP
&Z"'Gruv~

Case 2:05-cv-02441-LKK-JFM Document 72-3 Filed 06/12/2007 Page 1 of 4
EXHIBITB

Case 2:05-cv-02441-LKK-JFM
EDMUND G. BROWN JR. Attorney General

. ' . Document 72-3

Filed 06/12/2007

Page

2
;

.~o. ;f'

4-"

@ State of California

" ...

... DEPARTMENT OF JUSTICE

13001 STREET, SUITE 125 P.O. BOX 944255
SACRAMENTO, CA 94244·2550
Public: ~916l445-9555 Telephone: 916 327-7872 Facsimile: 916 324-5205 E-Mail: Lisa.Tillman@doj.ca.gov

May 30, 2007

J. Michael Keating, Jr. Special Master 2351 Sussex Drive Fernandina Beach, FL 32034

Via Email and U.S. Mail

Matthew Lopes, Jr. Pannone Lopes & Devereaux LLC 1800 Financial Plaza Providence RI 02903

RE: Coleman v. Schwarzenegger USDC. Eastern District of California. Case No. 2:90-cv-00520 LKK JFM P

Dear Mr. Keating and Mr. Lopes:

Thank you for meeting with us on Tuesday to discuss the Coleman/Hecker matter. In light of the Plaintiffs' counsel statements at that meeting as well as in Mr. Galvan's subsequent letter, Defendants believe it is necessary to reemphasize that the claims raised in Hecker can be, and must be, resolved within the remedial phase of the Coleman action.

1. Because Hecker Concerns Outstanding Program Guide Issues, the Hecker Claims Must Be Determined Within the Coleman Remedial Scheme.
The Coleman Plaintiffs have repackaged the last five percent of the Coleman case into the nascent Hecker lawsuit. The disability-access concerns must continue to be discussed and ultimately resolved in the remedial phase of the Coleman action. As you know, these Hecker issues are not new but Coleman deja vu: (I) the heat plan injunction; (2) the mandated separation of EOP inmates from general population inmates; and (3) the four classification points given to those diagnosed as class members at reception. These issues have and continue to be considered within the ongoing dialogue around the Revised Program Guides. As much as the Coleman court ordered implementation of non-disputed and certain disputed areas of the Revised Program Guide, the Revised Program Guide, including its disputed portions, remain subject to the Coleman court's jurisdiction. (Order, 3/3/06.) In accord, Judge Karlton's order of March 15, 2007 did not request a determination as to whether the Hecker claims could be mediated and resolved by the Coleman Special Master. Rather, it referred the Hecker matter to the Special

Case 2:05-cv-02441-LKK-JFM
Mr. Keating and Mr. Lopes May 30, 2007 Page 2

Document 72-3

Filed 06/12/2007 Page 3 of 4

Master for a "report and recommendation as to whether the claims raised [in Hecker] can be resolved within the remedial phase of[Coleman]."

2. Plaintiffs' 'Deal Breaker' Requests Are Misinformed and Must Be Disregarded To Ensure Judicial Efficiency and Economy.

As in many litigation cases, both Plaintiffs and Defendants have lodged legal objections to their respective claims and defenses. Defendants have asserted the Hecker Plaintiffs' ADA and Rehabilitation Act causes of action should be dismissed on a variety of legal grounds. But, with those legal objections reserved, Defendants are willing to work towards resolving the claims of inadequate disability-access for the already-certified class under the Coleman Program Guides. At our May 22 meeting, Defendants were prepared to review specific disability- access concerns with an eye toward problem solving and finding common ground. This approach benefits the Coleman class, of which the Hecker plaintiffs are a putative subclass, because inmate-patients will be able to obtain functional, efficient and enforceable relief more quickly than if Hecker is litigated for, at the very least, two more years. Even if Plaintiffs survive the 12(b)(6) motion, summary judgment motions, class certification motions, and prevail at trial and on appeal, the Court will be left addressing the very same issues that Defendants are prepared to discuss today.
At the May 22 meeting, we heard Plaintiffs' counsels' refusal to discuss the specific relief sought in Hecker without a "framework" involving Defendants stipulating to ADA and Rehabilitation Act liability to ensure the Coleman order is "binding." This position does a disservice to the class members, to the Special Master, and to the work accomplished - by way of stipulations and orders - already in Coleman. The Revised Program Guide exceeds the requirements of the Eighth Amendment in many respects thanks to the consensus-building work of you and your team. Further, the Coleman Court has issued numerous orders which have changed Defendants' policies, even those policies not directly addressing Eighth Amendment concerns. There is no doubt that the Coleman remedial process can be appropriately and effectively used to address Hecker claims. The Coleman Court can oversee this relief because the Coleman Court retains jurisdiction over the Revised Program Guide and must ensure it complies with all federal laws, including disability-access laws. Because the Coleman Court has jurisdiction to oversee disability-access concerns in its implementation of the Revised Program Guides, Plaintiffs' counsels' refusal to participate in good faith in this process and their assertion of "deal breakers" must be disregarded.
Defendants have already embarked upon good faith resolution of one of the disputed items. Defendants committed at the meeting to reviewing the four-points classification issue. Defendants submitted Supplemental Brief in Response to Plaintiffs' Motion for Referral to a Three-Judge Panel provides an update on the status of their review ofthe four-points issue. (Supp. Brief, filed 5/25/07.)

Case 2:05-cv-02441-LKK-JFM
Mr. Keating and Mr. Lopes May 30, 2007 Page 3

Document 72-3

Filed 06/12/2007 Page 4 of 4

3. Conclusion
In sum, Judge Karlton asked the Special Master to report on whether the Hecker claims can be resolved within the remedial phase of Coleman. Because they are the very same claims already raised in Coleman, the answer is: Yes, the claims raised in Hecker can be resolved within the remedial phase of Coleman. Doing so will avoid inconsistent judgments, duplicative remedial frameworks, and years of additional litigation. Moreover, the Coleman Court still has jurisdiction over the disputed areas and issues of the Revised Program Guides, and must ensure the Revised Program Guides comport with federal laws such as disability-access laws.
Defendants are committed to working with the Special Master, the Coleman Court, and Plaintiffs in order to find solutions to the Plaintiffs' claimed disability-access concerns. Accordingly, Defendants respectfully request that the Special Master's meeting with counsels on June 5, 2007 remain scheduled.

Sincerely,

cc: Ernest Galvan
Jane Kahn Claudia Center

LISA A. TILLMAN Deputy Attorney General
For EDMUND G. BROWN JR. Attorney General

30274388.wptl

 
 Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 1 of 42

1 Claudia Center, State Bar No. 158255

Lewis Bossing, State Bar No. 227492 2 THE LEGAL AID SOCIETY OF SAN FRANCISCO

-EMPLOYMENT LAW CENTER 3 600 Harrison St., Suite 120

San Francisco, CA 94107

4 Telephone: (415) 864-8848

Facsimile: (415) 864-8199

5

Michael W. Bien, State Bar No. 96891

6 Amy Whelan, State Bar No. 215675

ROSEN BIEN & ASARO, LLP

7 155 Montgomery Street, 8th Floor

San Francisco, CA 94104

8 Telephone: (415) 433-6830

Facsimile: (415) 433-7104

9

Attorneys for Plaintiffs

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE EASTERN DISTRICT OF CALIFORNIA

12 ROBERT HECKER, CHRISTOPHER ) Case No. 2:05-cv-02441-LKK-JFM

LEE JENKINS, PETER TAYLOR, YING )

13 WATT, ASKIA ASHANTI, RONALD )

AULD, JOHN MUELLER, DANIEL

) SECOND AMENDED CLASS ACTION

14 HUNLEY, JOSEPH COX, EDDIE

) COMPLAINT FOR DECLARATORY AND

THOMAS, BRIAN K. STAFFORD,

) INJUNCTIVE RELIEF

15 MICHAEL LOVELACE, BOBBY

)

DANIELS, QUINTON GRAY, JOHN )

16 WESLEY WILLIAMS, SAMUEL

) [Civil Rights – Disability

D’ANGELO, JR., and JON SCHOOLEY, ) Discrimination]

17

)

Plaintiffs, on behalf of themselves )

18

and all others similarly situated, )

)

19

v.

)

)

20 CALIFORNIA DEPARTMENT OF

)

CORRECTIONS AND

)

21 REHABILITATION, ARNOLD

)

SCHWARZENEGGER, Governor of the )

22 State of California, in his official capacity, )

JAMES E. TILTON, Secretary (Acting) of )

23

the California Department of Corrections ) and Rehabilitation, in his official capacity, )

24

JEANNE S. WOODFORD, Undersecretary ) of the California Department of Corrections)

25

and Rehabilitation, in her official capacity, ) JOHN DOVEY, Director, Division of )

26

Adult Institutions, in his official capacity, DR. PETER FARBER-SZEKRENYI,

) )

27

Director, Division of Correctional Health Care Services, in his official capacity,

) )

28

Page 1

SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 2 of 42

MARTIN VEAL, Warden (Acting) of the )

1 California Medical Facility, in his official )

capacity, BENJAMIN CURRY, Warden )

2 (Acting) of the Correctional Training

)

Facility, in his official capacity, ROBERT )

3 J. HERNANDEZ, Warden of the Richard J. )

Donovan Correctional Facility, in his

)

4 official capacity, R.K. WONG, Warden of )

the California State Prison – Los Angeles )

5 County, in his official capacity, MICHAEL )

E. POULOS, Warden of the California )

6 Institution for Men, in his official capacity, )

JOHN MARSHALL, Warden of the

)

7 California Men’s Colony, in his official )

capacity, ANTHONY MALFI, Warden of )

8 the California State Prison – Sacramento, in)

his official capacity, and KATHY

)

9 MENDOZA-POWERS, Warden of the )

Avenal State Prison, in her official

)

10 capacity,

)

)

11

Defendants.

)

12

13

Plaintiffs ROBERT HECKER, CHRISTOPHER LEE JENKINS, PETER

14 TAYLOR, YING WATT, ASKIA ASHANTI, RONALD AULD, JOHN MUELLER,

15 DANIEL HUNLEY, JOSEPH COX, EDDIE THOMAS, BRIAN K. STAFFORD,

16 MICHAEL LOVELACE, BOBBY DANIELS, QUINTON GRAY, JOHN WESLEY

17 WILLIAMS, SAMUEL D’ANGELO, JR., and JON SCHOOLEY allege as follows:

18

INTRODUCTION

19

1. This is an action for relief from Defendants’ violation of Plaintiffs’ civil rights

20 under the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and

21 California Government Code section 11135.

22

2. Plaintiff ROBERT HECKER (“HECKER”) is an individual with a psychiatric

23 disability, and an inmate incarcerated at the California Medical Facility (“CMF”).

24

3. Plaintiff CHRISTOPHER LEE JENKINS (“JENKINS”) is an individual with a

25 psychiatric disability, and an inmate incarcerated at the Correctional Training Facility

26 (“CTF”). Plaintiff JENKINS was formerly incarcerated at CMF and at the California

27 Men’s Colony (“CMC”).

28
Page 2
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 3 of 42

1

4. Plaintiff PETER TAYLOR (“TAYLOR”) is an individual with a psychiatric

2 disability, and an inmate incarcerated at CMF.

3

5. Plaintiff YING WATT (“WATT”) is an individual with a psychiatric disability,

4 and an inmate incarcerated at CMF.

5

6. Plaintiff ASKIA ASHANTI (“ASHANTI”), a/k/a Lorenzo Cunningham, is an

6 individual with a psychiatric disability, and an inmate incarcerated at CMF.

7

7. Plaintiff RONALD AULD (“AULD”) is an individual with a psychiatric

8 disability, and an inmate incarcerated at CMF.

9

8. Plaintiff JOHN MUELLER (“MUELLER”) is an individual with a psychiatric

10 disability, and an inmate incarcerated at the Richard J. Donovan Correctional Facility

11 (“RJD”).

12

9. Plaintiff DANIEL HUNLEY (“HUNLEY”) is an individual with a psychiatric

13 disability, and an inmate incarcerated at the California State Prison – Los Angeles

14 County (“LAC”).

15

10. Plaintiff JOSEPH COX (“COX”) is an individual with a psychiatric disability,

16 and an inmate incarcerated at the California Institute for Men (“CIM”). Plaintiff COX

17 was formerly incarcerated at the Sierra Conservation Center (“SCC”).

18

11. Plaintiff EDDIE THOMAS (“THOMAS”) is an individual with a psychiatric

19 disability, and an inmate incarcerated at RJD.

20

12. Plaintiff BRIAN K. STAFFORD (“STAFFORD”) is an individual with a

21 psychiatric disability, and an inmate incarcerated at RJD.

22

13. Plaintiff MICHAEL LOVELACE (“LOVELACE”) is an individual with a

23 psychiatric disability, and an inmate incarcerated at LAC.

24

14. Plaintiff BOBBY DANIELS (“DANIELS”) is an individual with a psychiatric

25 disability, and an inmate incarcerated at LAC.

26

15. Plaintiff QUINTON GRAY (“GRAY”) is an individual with a psychiatric

27 disability, and an inmate incarcerated at CMC.

28
Page 3
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 4 of 42

1

16. Plaintiff JOHN WESLEY WILLIAMS (“WILLIAMS”) is an individual with a

2 psychiatric disability, and an inmate incarcerated at the California State Prison –

3 Sacramento (“SAC”).

4

17. Plaintiff SAMUEL D’ANGELO, JR. (“D’ANGELO”) is an individual with a

5 psychiatric disability. Plaintiff D’ANGELO was formerly incarcerated at CMC and at

6 RJD.

7

18. Plaintiff JON SCHOOLEY (“SCHOOLEY”) is an individual with a psychiatric

8 disability, and an inmate incarcerated at the Avenal State Prison (“ASP”). Plaintiff

9 SCHOOLEY was formerly incarcerated at CMF and at CMC.

10

19. The Defendants CALIFORNIA DEPARTMENT OF CORRECTIONS AND

11 REHABILITATION (“CDCR”), GOVERNOR ARNOLD SCHWARZENEGGER

12 (“SCHWARZENEGGER”), RODERICK Q. HICKMAN (“HICKMAN”), JEANNE S.

13 WOODFORD (“WOODFORD”), JOHN DOVEY (“DOVEY”), PETER FARBER-

14 SZEKRENYI (“FARBER-SZEKRENYI”), MARTIN VEAL (“VEAL”), BENJAMIN

15 CURRY (“CURRY”), ROBERT J. HERNANDEZ (“HERNANDEZ”), R.K. WONG

16 (“WONG”), MICHAEL E. POULOS (“POULOS”), JOHN MARSHALL

17 (“MARSHALL”), ANTHONY MALFI (“MALFI”), and KATHY MENDOZA-

18 POWERS (“MENDOZA-POWERS”), and each of them, have denied Plaintiffs access to

19 basic CDCR programs, services, and activities on the basis of their disabilities.

20

20. Plaintiffs seek declaratory and injunctive relief, and reasonable attorneys’ fees

21 and costs, for defendants’ violations of their rights.

22

JURISDICTION AND VENUE

23

21. This Court has jurisdiction over the subject matter and the parties pursuant to 28

24 U.S.C. §§ 1331, 2201, and 2202. Plaintiffs bring this suit under Title II of the

25 Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, and Section 504

26 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794.

27

22. Venue is proper in the Eastern District of California pursuant to 28 U.S.C. §

28
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1 1391(b), because events giving rise to Plaintiffs’ claims occurred in this District.

2

PARTIES

3

23. Plaintiff HECKER is a person with a disability within the meaning of all

4 applicable statutes, and is a qualified person with a disability within the meaning of Title

5 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff HECKER is a

6 resident of California, and an inmate incarcerated at CMF.

7

24. Plaintiff JENKINS is a person with a disability within the meaning of all

8 applicable statutes, and is a qualified person with a disability within the meaning of Title

9 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff JENKINS is a

10 resident of California, and an inmate incarcerated at CTF. Plaintiff JENKINS was

11 formerly incarcerated at CMF and CMC.

12

25. Plaintiff TAYLOR is a person with a disability within the meaning of all

13 applicable statutes, and is a qualified person with a disability within the meaning of Title

14 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff TAYLOR is a

15 resident of California, and an inmate incarcerated at CMF.

16

26. Plaintiff WATT is a person with a disability within the meaning of all applicable

17 statutes, and is a qualified person with a disability within the meaning of Title II of the

18 ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff WATT is a resident of

19 California, and an inmate incarcerated at CMF.

20

27. Plaintiff ASHANTI is a person with a disability within the meaning of all

21 applicable statutes, and is a qualified person with a disability within the meaning of Title

22 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff ASHANTI is

23 a resident of California, and an inmate incarcerated at CMF.

24

28. Plaintiff AULD is a person with a disability within the meaning of all applicable

25 statutes, and is a qualified person with a disability within the meaning of Title II of the

26 ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff AULD is a resident of

27 California, and an inmate incarcerated at CMF.

28
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1

29. Plaintiff MUELLER is a person with a disability within the meaning of all

2 applicable statutes, and is a qualified person with a disability within the meaning of Title

3 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff MUELLER is

4 a resident of California, and an inmate incarcerated at RJD.

5

30. Plaintiff HUNLEY is a person with a disability within the meaning of all

6 applicable statutes, and is a qualified person with a disability within the meaning of Title

7 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff HUNLEY is a

8 resident of California, and an inmate incarcerated at LAC.

9

31. Plaintiff COX is a person with a disability within the meaning of all applicable

10 statutes, and is a qualified person with a disability within the meaning of Title II of the

11 ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff COX is a resident of

12 California, and an inmate incarcerated at CIM. Plaintiff COX was formerly incarcerated

13 at SCC.

14

32. Plaintiff THOMAS is a person with a disability within the meaning of all

15 applicable statutes, and is a qualified person with a disability within the meaning of Title

16 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff THOMAS is

17 a resident of California, and an inmate incarcerated at RJD.

18

33. Plaintiff STAFFORD is a person with a disability within the meaning of all

19 applicable statutes, and is a qualified person with a disability within the meaning of Title

20 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff STAFFORD

21 is a resident of California, and an inmate incarcerated at RJD.

22

34. Plaintiff LOVELACE is a person with a disability within the meaning of all

23 applicable statutes, and is a qualified person with a disability within the meaning of Title

24 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff LOVELACE

25 is a resident of California, and an inmate incarcerated at LAC.

26

35. Plaintiff DANIELS is a person with a disability within the meaning of all

27 applicable statutes, and is a qualified person with a disability within the meaning of Title

28
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1 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff DANIELS is

2 a resident of California, and an inmate incarcerated at LAC.

3

36. Plaintiff GRAY is a person with a disability within the meaning of all applicable

4 statutes, and is a qualified person with a disability within the meaning of Title II of the

5 ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff GRAY is a resident of

6 California, and an inmate incarcerated at CMC.

7

37. Plaintiff WILLIAMS is a person with a disability within the meaning of all

8 applicable statutes, and is a qualified person with a disability within the meaning of Title

9 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff WILLIAMS

10 is a resident of California, and an inmate incarcerated at SAC.

11

38. Plaintiff D’ANGELO is a person with a disability within the meaning of all

12 applicable statutes, and is a qualified person with a disability within the meaning of Title

13 II of the ADA and Section 504 of the Rehabilitation Act of 1973, Plaintiff D’ANGELO

14 is a resident of California. Plaintiff D’ANGELO was formerly incarcerated at CMC and

15 at RJD.

16

39. Plaintiff SCHOOLEY is a person with a disability within the meaning of all

17 applicable statutes, and is a qualified person with a disability within the meaning of Title

18 II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff SCHOOLEY

19 is a resident of California, and an inmate incarcerated at ASP. Plaintiff SCHOOLEY was

20 formerly incarcerated at CMF and at CMC.

21

40. Defendant CDCR administers and operates the California prison system,

22 including the facilities identified above, and is legally responsible for ensuring

23 compliance with state and federal disability nondiscrimination laws at all California

24 correctional facilities. Defendant CDCR is a public entity within the meaning of Title II

25 of the ADA. Defendant CDCR receives federal financial assistance and is covered by the

26 Rehabilitation Act.

27

41. Defendant SCHWARZENEGGER is the Governor of the State of California,

28
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1 and oversees all state agencies, including the CDCR. Defendant SCHWARZENEGGER

2 is legally responsible for ensuring compliance with state and federal disability

3 nondiscrimination laws at all state facilities, including state correctional facilities.

4 Defendant SCHWARZENEGGER is legally responsible for the unlawful policies,

5 practices, and procedures challenged herein, and has the authority and legal obligation to

6 eliminate disability discrimination by abolishing these policies, practices, and procedures.

7 Defendant SCHWARZENEGGER is sued in his official capacity.

8

42. Defendant TILTON is the Secretary (Acting) of the CDCR, and is legally

9 responsible for ensuring compliance with state and federal disability nondiscrimination

10 laws at all correctional facilities, including the facilities identified above. Defendant

11 TILTON is legally responsible for the unlawful policies, practices, and procedures

12 challenged herein, and has the authority and legal obligation to eliminate disability

13 discrimination by abolishing these policies, practices, and procedures. Defendant

14 TILTON is sued in his official capacity.

15

43. Defendant WOODFORD is the Undersecretary of the CDCR, and is legally

16 responsible for ensuring compliance with state and federal disability nondiscrimination

17 laws at all correctional facilities, including the facilities identified above. Defendant

18 WOODFORD is responsible for the unlawful policies, practices, and procedures

19 challenged herein, and has the authority and legal obligation to eliminate disability

20 discrimination by abolishing these policies, practices, and procedures. Defendant

21 WOODFORD is sued in her official capacity.

22

44. Defendant DOVEY is the Director of the Division of Adult Institutions, and is

23 legally responsible for ensuring compliance with state and federal disability

24 nondiscrimination laws at all adult correctional facilities, including the facilities

25 identified above. Defendant DOVEY is responsible for the unlawful policies, practices,

26 and procedures challenged herein, and has the authority and legal obligation to eliminate

27 disability discrimination by abolishing these policies, practices, and procedures.

28
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1 Defendant DOVEY is sued in his official capacity.

2

45. Defendant FARBER-SZEKRENYI is the Director of the Division of Correctional

3 Health Care Services, and is legally responsible for ensuring compliance with state and

4 federal disability nondiscrimination laws at all adult correctional facilities, including the

5 facilities identified above. Defendant FARBER-SZEKRENYI is responsible for the

6 unlawful policies, practices, and procedures challenged herein, and has the authority and

7 legal obligation to eliminate disability discrimination by abolishing these policies,

8 practices, and procedures. Defendant FARBER-SZEKRENYI is sued in his official

9 capacity.

10 46. Defendant VEAL is the Warden (Acting) of CMF. He is responsible for the

11 administration of programs, services, and activities offered to inmates at the CMF, and is

12 in charge of supervision and discipline of all correctional officials and employees at

13 CMF. Defendant VEAL is sued in his official capacity.

14 47. Defendant CURRY is the Warden (Acting) of CTF. He is responsible for the

15 administration of programs, services, and activities offered to inmates at the CTF, and is

16 in charge of supervision and discipline of all correctional officials and employees at CTF.

17 Defendant CURRY is sued in his official capacity.

18 48. Defendant HERNANDEZ is the Warden of RJD. He is responsible for the

19 administration of programs, services, and activities offered to inmates at the RJD, and is

20 in charge of supervision and discipline of all correctional officials and employees at RJD.

21 Defendant HERNANDEZ is sued in his official capacity.

22

49. Defendant WONG is the Warden of LAC. He is responsible for the

23 administration of programs, services, and activities offered to inmates at the LAC, and is

24 in charge of supervision and discipline of all correctional officials and employees at

25 LAC. Defendant WONG is sued in his official capacity.

26

50. Defendant POULOS is the Warden of CIM. He is responsible for the

27 administration of programs, services, and activities offered to inmates at the CIM, and is

28
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1 in charge of supervision and discipline of all correctional officials and employees at CIM.

2 Defendant POULOS is sued in his official capacity.

3

51. Defendant MARSHALL is the Warden of CMC. He is responsible for the

4 administration of programs, services, and activities offered to inmates at the CMC, and is

5 in charge of supervision and discipline of all correctional officials and employees at

6 CMC. Defendant MARSHALL is sued in his official capacity.

7

52. Defendant MALFI is the Warden of SAC. He is responsible for the

8 administration of programs, services, and activities offered to inmates at the SAC, and is

9 in charge of supervision and discipline of all correctional officials and employees at

10 SAC. Defendant MALFI is sued in his official capacity.

11 53. Defendant MENDOZA-POWERS is the Warden of ASP. She is responsible for

12 the administration of programs, services, and activities offered to inmates at the ASP, and

13 is in charge of supervision and discipline of all correctional officials and employees at

14 ASP. Defendant MENDOZA-POWERS is sued in her official capacity.

15

STATEMENT OF FACTS

16 54. Plaintiff HECKER is an inmate incarcerated at the CMF. He is assigned to a

17 program for inmates with psychiatric disabilities called the Enhanced Outpatient Program

18 (“EOP”), which is a part of the CDCR’s Mental Health Service Delivery System

19 (“MHSDS”). Plaintiff HECKER has experienced, and continues to experience, the

20 unlawful actions and inactions alleged herein.

21

55. Plaintiff JENKINS is an inmate incarcerated at the CTF. He was formerly

22 incarcerated at the CMF and the CMC. While he was at the CMF and the CMC, he was

23 assigned to the EOP. He is currently assigned to a program for inmates with psychiatric

24 disabilities called the Correctional Clinical Case Management System (“CCCMS”),

25 which is also part of the MHSDS. Plaintiff JENKINS has experienced, and continues to

26 experience, the unlawful actions and inactions alleged herein.

27

56. Plaintiff TAYLOR is an inmate incarcerated at the CMF. He is assigned to the

28
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1 EOP. Plaintiff TAYLOR has experienced, and continues to experience, the unlawful

2 actions and inactions alleged herein.

3

57. Plaintiff WATT is an inmate incarcerated at the CMF. He is assigned to the

4 EOP. Plaintiff WATT has experienced, and continues to experience, the unlawful

5 actions and inactions alleged herein.

6

58. Plaintiff ASHANTI is an inmate incarcerated at the CMF. He is assigned to the

7 EOP. Plaintiff ASHANTI has experienced, and continues to experience, the unlawful

8 actions and inactions alleged herein.

9

59. Plaintiff AULD is an inmate incarcerated at the CMF. He is assigned to the EOP.

10 Plaintiff AULD has experienced, and continues to experience, the unlawful actions and

11 inactions alleged herein.

12 60. Plaintiff MUELLER is an inmate incarcerated at the RJD. He is currently

13 assigned to the EOP. He has also been assigned to the CCCMS. Plaintiff MUELLER

14 has experienced, and continues to experience, the unlawful actions and inactions alleged

15 herein.

16 61. Plaintiff HUNLEY is an inmate incarcerated at the LAC. He is assigned to the

17 CCCMS. Plaintiff HUNLEY has experienced, and continues to experience, the unlawful

18 actions and inactions alleged herein.

19 62. Plaintiff COX is an inmate incarcerated at the CIM. He was formerly

20 incarcerated at the SCC. He is assigned to the CCCMS. Plaintiff COX has experienced,

21 and continues to experience, the unlawful actions and inactions alleged herein.

22

63. Plaintiff THOMAS is an inmate incarcerated at the RJD. He is assigned to the

23 EOP. He has also been assigned to the CCCMS. Plaintiff THOMAS has experienced,

24 and continues to experience, the unlawful actions and inactions alleged herein.

25

64. Plaintiff STAFFORD is an inmate incarcerated at the RJD. He is assigned to the

26 EOP. Plaintiff STAFFORD has experienced, and continues to experience, the unlawful

27 actions and inactions alleged herein.

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1

65. Plaintiff LOVELACE is an inmate incarcerated at the LAC. He is assigned to the

2 CCCMS. Plaintiff LOVELACE has experienced, and continues to experience, the

3 unlawful actions and inactions alleged herein.

4

66. Plaintiff DANIELS is an inmate incarcerated at the LAC. He is assigned to the

5 EOP. Plaintiff DANIELS has experienced, and continues to experience, the unlawful

6 actions and inactions alleged herein.

7

67. Plaintiff GRAY is an inmate incarcerated at the CMC. He is assigned to the

8 EOP. Plaintiff GRAY has experienced, and continues to experience, the unlawful actions

9 and inactions alleged herein.

10 68. Plaintiff WILLIAMS is an inmate incarcerated at the SAC. He is assigned to the

11 EOP. Plaintiff WILLIAMS has experienced, and continues to experience, the unlawful

12 actions and inactions alleged herein. 13 69. Plaintiff D’ANGELO was formerly incarcerated at the CMC and at RJD, where 14 he was assigned to the EOP. Plaintiff D’ANGELO has experienced the unlawful actions 15 and inactions alleged herein. 16 70. Plaintiff SCHOOLEY is an inmate incarcerated at the CMC. He was formerly 17 incarcerated at the CMF and at the CMC. He is currently assigned to the CCCMS. He 18 has also been assigned to the EOP. Plaintiff SCHOOLEY has experienced, and 19 continues to experience, the unlawful actions and inactions alleged herein. 20 71. The Defendants CDCR, SCHWARZENEGGER, HICKMAN, WOODFORD, 21 DOVEY, FARBER-SZEKRENYI, VEAL, CURRY, HERNANDEZ, WONG, POULOS, 22 MARSHALL, MALFI, MENDOZA-POWERS, and each of them, have adopted, 23 implemented, ratified, and/or failed to abolish numerous unnecessary and discriminatory 24 policies, practices, and procedures affecting the inmates participating in the MHSDS, 25 including the EOP and the CCCMS. These systemwide, statewide policies, practices, 26 and procedures bar and function to bar Plaintiffs and other similarly situated MHSDS 27 participants from basic educational, vocational, employment, and recreational programs

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1 that are provided to other, nondisabled inmates. For example:

2

(a) While inmates assigned to the EOP at CMF are required to participate

3 in ten hours of mental health programming such as support groups, the remaining hours

4 of their weeks – 30 to 40 hours each week – are unscheduled and available for

5 participation in the broad range of educational, vocational, employment, and recreational

6 programs available to the non-disabled, non-EOP population. Nevertheless, by express

7 policy and without lawful basis, inmates in the EOP are deemed to be “booked” from

8 8:00 a.m. to 4:00 p.m. Monday through Friday, and are entirely precluded from

9 participating in any non-EOP prison programs, including vocational, employment, and

10 educational programs, during those times. See, e.g., December 30, 2002 Memorandum

11 from L.H. Dizmang, M.D., Chief Psychiatrist, California Medical Facility.

12

(b) Further, it is the express policy of the CTF that “[i]nmates in the Mental

13 Health Services Delivery System (MHSDS) at any level of care” are ineligible for

14 placement to CTF – South, and that “participants in the MHSDS at the levels of EOP or

15 CCCMS or on psychotropic medications” are ineligible for placement to CTF – East

16 Dorm. As a result, persons with psychiatric disabilities are excluded from the parole

17 programming and work crew opportunities available at CTF – South, and from the Prison

18 Industry Authority (PIA) jobs available at CTF – East Dorm. See Correctional Training

19 Facility Operation Procedure #20 (Feb. 28, 2005).

20

(c) Further, it is the express policy of the CDCR that current or recent

21 participants in the MHSDS are ineligible for placement in the highly regarded Fire Camp

22 Program. See, e.g., December 23, 2003 Memorandum from Rosanne Campbell, Deputy

23 Director, Health Care Services Division. As a result, persons with psychiatric disabilities

24 are unable to earn the additional “good time” work credits that inmates participating in

25 Fire Camp may earn, and cannot gain the valuable work experience others receive

26 through Fire Camp participation.

27

(d) Further, it is the express policy of the CDCR that all inmates with a

28
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1 “diagnosis of mental illness” entering the CDCR system at one of its “reception centers”

2 are automatically given an additional four points as part of their classification score,

3 which determines security level and thus the environment in which they live while in the

4 system. See C.C.R. Tit. 15, § 3375.3(a)(5); CDC 839 (Rev. 12/02). As a result, inmates

5 with psychiatric disabilities are often isolated and segregated in high security level units,

6 with significantly reduced opportunities for learning, working, or interacting with others.

7

(e) Further, it is the express policy of the CDCR that “heat alert” inmates,

8 who take medications, including psychiatric medications, that make them more

9 susceptible to heat-related illnesses, are required to return to their cells when the

10 temperature reaches or exceeds 90 degrees. See CDCR Departmental Operations Manual

11 (“DOM”), supplement 54060.4.3. These inmates are denied access to appropriate

12 recreational or other programming during heat alerts, unlike inmates who do not use such

13 medications, and as such are unnecessarily segregated from other inmates.

14

(f) Further, it is the express policy of the CDCR that current participants in

15 the MHSDS are excluded from transfer to an out-of-state facility as part of a California

16 Out-of-State Correctional Facility (COCF) placement, regardless of whether they may be

17 able to transfer safely to another state’s facility and receive appropriate treatment there.

18 See October 12, 2006 letter from Bruce M. Slavin, General Counsel, Office of Legal

19 Affairs, CDCR, to J. Michael Keating, Special Master, Coleman v. Schwarzenegger, No.

20 Civ. S-90-0520 LKK JFM (E.D. Cal.).

21

(g) Additional systemwide, statewide policies, practices, and procedures

22 similarly function to discriminate against inmates with severe psychiatric disabilities;

23 exclude them from programs, services, and activities; retaliate against them; and

24 segregate them unnecessarily.

25

72. As a result of the unnecessary and discriminatory systemwide and statewide

26 policies, practices, and procedures challenged herein, and on the basis of disability,

27 Plaintiffs and others similarly situated have been denied equal access to a broad range of

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1 prison programs, services, and activities for which they are qualified, and have been

2 subjected to unlawful segregation. These denials include, but are not limited to, the

3 following:

4

(a) disability-based denial of access to educational opportunities, including the

5

electronics program, computer classes, the Art in Corrections program,

6

classes offered as part of the Disabled Placement Program (“DPP”), and

7

other educational programs;

8

(b) disability-based denial of access to employment and vocational

9

opportunities, including facility yard crews, PIA jobs, and Fire Camp;

10

(c) disability-based denial of access to recreational programs and facilities;

11

(d) disability-based denial of access to religious programs, including church

12

services and bible study; and

13

(e) disability-based denial of access to other programs, services, and activities,

14

including the law library, COCF placements, and the Substance Abuse

15

Program (“SAP”) and other drug treatment programs.

16 73. These systemwide denials and exclusions are unnecessary, discriminatory, and

17 unlawful. The exclusion of MHSDS inmates from programs and services cause them to

18 lose benefits attendant to work, education, vocational, and recreational activities,

19 including but not limited to time credits, privileges, and wages. Further, the inmates in

20 the MHSDS are excluded and segregated despite the fact that participation in

21 educational, vocational, employment, and recreational programs is therapeutic for

22 persons with serious psychiatric disabilities, and promotes mental health and wellness.

23 By contrast, exclusion and segregation, particularly from educational, vocational, and

24 employment opportunities, undermines mental health, wellness, and rehabilitation. The

25 Defendants’ actions and inactions function to aggravate and worsen the mental health

26 status of Plaintiffs and the other, similarly situated MHSDS inmates. These inmates

27 often forego mental health care so that they may participate in beneficial educational,

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1 vocational, and other programs.

2

ADMINISTRATIVE EXHAUSTION

3

Plaintiff HECKER

4

74. Plaintiff HECKER has satisfied all exhaustion requirements for issues raised in

5 this lawsuit. However, his appeals have been repeatedly screened out by the CMF

6 Appeals Office, in violation of the CDC policies and procedures as set forth in California

7 Code of Regulations, Title 15.

8

75. On December 28, 2004, Plaintiff HECKER filed a timely 1824 appeal

9 challenging the policies, practices, and procedures complained of herein, and requesting

10 that “the Electronics program be made available to me” and seeking “modifications to

11 CDC policies, practices, and procedures to avoid discrimination on the basis of

12 disability[.]” Plaintiff HECKER noted that he was “being forced to choose between an

13 EOP level of care that I require to maintain mental health, and a vocation that would

14 further and enhance improvements in my mental health[.]”

15 76. On December 29, 2004, Plaintiff HECKER’s appeal was screened out,

16 purportedly because the “[a]ppeal cannot be understood” and because the “wording is too

17 small.”

18 77. On January 3, 2005, Plaintiff HECKER resubmitted a timely 1824 appeal; this

19 time typed so that it could not be rejected as “too small.” Plaintiff HECKER sought

20 “access to the Electronics Program” and “[m]odification to CDC policies, practices or

21 procedures to avoid discrimination by denial of access to Electronics Program on the

22 basis of my disability[.]”

23

78. On January 5, 2005, Plaintiff HECKER’s appeal was again summarily screened

24 out, purportedly because his appeal was a “duplicate issue.” By “duplicate issue,” the

25 appeals coordinator was referencing a group appeal filed by Plaintiff JENKINS, on

26 January 29, 2003. The issues complained of by Plaintiff HECKER were ongoing and

27 had not been resolved by Plaintiff JENKINS’ appeal. Further, under governing

28
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1 procedures, only Plaintiff JENKINS could appeal the January 2003 group appeal.

2

79. On August 5, 2005, Plaintiff HECKER filed a timely 1824 appeal challenging the

3 policies, practices and procedures complained of herein, and seeking “[m]eaningful and

4 nondiscriminatory access to all prison programs[,]” “including the Electronics Program,

5 the Arts in Corrections Program, computer classes, and bible study.” In his August 5,

6 2005 appeal, Plaintiff HECKER explicitly noted that he was challenging “an ongoing

7 problem and . . . an ongoing need for the reasonable accommodation and modification

8 requested herein,” and that his appeal should not be barred as a “duplicate issue.”

9

80. On August 8, 2005, Plaintiff HECKER’s appeal was summarily screened out,

10 purportedly as a “duplicate issue.”

11 81. On August 15, 2005, Plaintiff HECKER sought Second Level review of the

12 screened-out appeal.

13 82. On August 19, 2005, Plaintiff HECKER’s request for Second Level review was

14 denied.

15 83. On August 23, 2005, Plaintiff HECKER sought Director’s Level review of the

16 screened-out appeal from the Inmate Appeals Branch.

17 84. On October 22, 2005, the Inmate Appeals Branch returned Plaintiff HECKER’s

18 documents to him, purportedly because the appeal was “rejected, withdrawn or

19 cancelled.”

20 85. Because Defendants have repeatedly screened out and/or denied Plaintiff

21 HECKER’s administrative appeals, the grievance procedure has effectively been

22 rendered unavailable to him. In fact, Plaintiff HECKER has been repeatedly and

23 “reliably informed by an administrator that no remedies are available” to him. See Brown

24 v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005); Hemphill v. New York, 380 F.3d 680, 686,

25 688 (2d Cir. 2004).

26

86. Further, it is the policy of the CDCR not to accept appeals that have been

27 screened out as a “duplicate issue.” Accordingly, Plaintiff HECKER’s efforts to appeal

28
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1 his “screened out” 1824 to the Second Level and to the Third Level (Director’s Level)

2 have been unavailing. At no time has the CDCR or its agents attempted to consider,

3 much less resolve, Plaintiff HECKER’s complaints. It would be futile for Plaintiff

4 HECKER to attempt to further avail himself of the internal CDCR appeals process.

5

Plaintiff JENKINS

6

87. Plaintiff JENKINS has satisfied all exhaustion requirements, including Director’s

7 Level appeals, for issues raised in this lawsuit. His appeals regarding the exclusion of

8 inmates with psychiatric disabilities from work and education programs have been

9 repeatedly denied and/or screened out by CDCR officials.

10 88. On January 29, 2003, while at CMF, Plaintiff JENKINS filed a timely 1824

11 appeal challenging the policies, practices, and procedures complained of herein, stating

12 that “EOP inmates at CMF are being denied equal access to work and educational

13 opportunities available to other inmates at CMF. This denial has taken place solely as a

14 consequence of the fact that these inmates are disabled.” The appeal seeks to have “full

15 and equal access to work and educational programs at CMF restored to EOP inmates.”

16 89. On March 6, 2003, Plaintiff JENKINS’ appeal was denied at the First Level of

17 review.

18 90. On March 19, 2003, Plaintiff JENKINS appealed his issues to the Second Level

19 of review, expressly protesting the CDCR’s exclusion of CMF EOP inmates from

20 programs and services including religious services, Arts and Corrections, library,

21 telephone, and work and education programs between the hours of 8:00 a.m. to 4:00 p.m.

22 Monday-Friday.

23

91. On April 10, 2003, Plaintiff JENKINS’ appeal was denied at the Second Level of

24 review.

25

92. On April 27, 2003, Plaintiff JENKINS sought a Director’s Level review of his

26 1824 appeal, and provided a copy of the Director’s Level appeal to the CDCR. Plaintiff

27 JENKINS mailed the original Director’s Level appeal form to the CDCR on May 25,

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1 2003. On June 3, 2003, the CDCR returned the copy of the appeal to Plaintiff JENKINS,

2 purportedly because “[o]nly the original appeal form is accepted at the Director’s Level

3 of Review.”

4

93. On June 16, 2003, the CDCR returned the original form to Plaintiff because “[a]n

5 appellant must submit the appeal within 15 working days of the event or decision being

6 appealed, or of receiving a lower level decision.”

7

94. On October 6, 2004, while at CMC, Plaintiff JENKINS filed a timely 602 appeal

8 regarding the discriminatory denial of access to a work assignment in a clerical position

9 for which he was qualified because of his participation to the EOP program. According

10 to prison officials, “[b]ased on [Plaintiff] JENKINS’ assessment as an EOP inmate, he is

11 incapable of performing the tasks assigned to him in this assignment.” See “General

12 Chrono: Request for Unassignment” (Aug. 16, 2004).

13 95. On November 26, 2004, Plaintiff JENKINS’ appeal was partially granted at the

14 First Level of review, because he was given copies of the paperwork relevant to the

15 denial, but he was not considered for the clerk’s position he was seeking.

16 96. On December 30, 2004, Plaintiff JENKINS requested Second Level review of his

17 appeal. His appeal was partially granted on February 2, 2005, but he was still not

18 considered for the clerk’s position he was seeking. Instead of being considered for the

19 paid clerical position he sought, he had been assigned to a non-paid position as a yard

20 crew worker.

21

97. On February 16, 2005, Plaintiff JENKINS requested Director’s Level review of

22 his appeal.

23

98. On May 18, 2005, Plaintiff JENKINS’ appeal was denied at the Director’s Level.

24 Although the CDCR acknowledged that “the basis for the appellant’s removal was

25 inappropriate in that his Mental Health issue should not have been the factor in the

26 removal of the appellant from his clerical position,” Plaintiff JENKINS was still not

27 considered for the clerical position in question, nor awarded any pay he could have

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1 received had he been permitted to work.

2

99. Now at CTF, Plaintiff JENKINS is continuing to experience exclusion from core

3 vocational and other programs on the basis of his psychiatric disability. For example, he

4 has been excluded from the parole programming and work crew opportunities available

5 at CTF – South because he is CCCMS.

6

100. On January 19, 2006, Plaintiff JENKINS filed a timely 1824 appeal (Log No.

7 06-00379) challenging the systemwide policies, practices, and procedures addressed

8 herein, and specifically the CDCR’s denial of access to “outside work crews, fire camp,

9 substance abuse program (SATF), etc. . . . because I am CCCMS[.]”

10 101. Plaintiff JENKINS received a response to this appeal on February 17, 2006.

11 The response indicates that Plaintiff JENKINS’ appeal was “partially granted” because

12 his “annual review” would consider whether to transfer him to another facility.

13 102. Plaintiff JENKINS sought Second Level review of this response in March 2006.

14 In his appeal, Plaintiff JENKINS indicated that “[t]he only reason to accommodate [my]

15 transfer was to place me into an outside work crew as a CCCMS inmate and ‘if’ this

16 cannot be allowed as an CCCMS inmate I would ask not to be transferred.”

17 103. On April 11, 2006 Plaintiff JENKINS was notified that he had been endorsed

18 for transfer to the California Correctional Institution (“CCI”) in Tehachapi, California, as

19 a Level II inmate. He then filed an emergency 602 appeal dated April 12, 2006 (Log No.

20 06-01164), in which he asked that he not be transferred to CCI Level II because as a

21 Level II he would not be given access to fire camp or outside work crews. His April 12

22 appeal was rejected as an emergency appeal on April 14, 2006, but was assigned for

23 Second Level review.

24

104. On April 28, 2006, Plaintiff JENKINS’ January 19 appeal was denied at the

25 Second Level because he was endorsed to CCI Level II after his “Annual Review.”

26

105. On May 11, 2006, Plaintiff JENKINS’ April 12 appeal was denied at the

27 Second Level because his “history of CCCMS treatment within the last two years is one

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1 of the factors that preclude placement in a camp facility.”

2

106. Plaintiff JENKINS sought Director’s Level review of his January 19 appeal on

3 May 2006, stating that “[t]he denial of this appeal is denying access to . . . programming

4 to inmates who are CCCMS just because they are CCCMS or mental health disordered

5 inmates.” His appeal to the Director’s Level was denied on June 13, 2006; the reviewer

6 noted that Plaintiff JENKINS “receives the CCCMS level of care” and “does not qualify

7 for camp placement.”

8

107. In view of the multiple institutional transfers he has experienced, in addition to

9 transfers from the EOP to the CCCMS to general population (GP) and back, as well as

10 the ongoing discrimination currently being experienced at CTF, Plaintiff JENKINS’

11 claims regarding the systemic exclusion of EOP and CCCMS inmates from work and

12 education programs present a live controversy “capable of repetition, yet evading

13 review.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594 n.6 (1999) (citing Vitek v.

14 Jones, 445 U.S. 480, 486-87 (1980)). Indeed, there is a significant probability that

15 Plaintiff JENKINS will be transferred again, and will continue to experience

16 discrimination on the basis of his psychiatric disability in the EOP or in the CCCMS –

17 either at CMF, CMC, or another CDCR institution.

18

Plaintiff TAYLOR

19 108. Plaintiff TAYLOR has satisfied all exhaustion requirements for issues raised in

20 this lawsuit. His appeals regarding the exclusion of inmates with psychiatric disabilities

21 from work and education programs have been repeatedly denied and/or inappropriately

22 screened out by CDCR officials.

23

109. On December 17, 2002, Plaintiff TAYLOR filed a timely 602 group appeal

24 requesting that EOP inmates “not be discriminated against because of EOP mental health

25 disabilities” and seeking to “reverse the [extreme] bias and discrimination toward all

26 EOP inmates with mental illness … by not allowing … off wing authorized access during

27 the hours of 8:00 a.m. – 4:00 p.m.” This appeal bypassed lower levels and went directly

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1 to Second Level review, where it was denied on February 25, 2003.

2

110. Plaintiff TAYLOR sought Director’s Level review of this response. His

3 Director’s Level appeal was denied on May 15, 2003.

4

111. On March 22, 2005, Plaintiff TAYLOR filed an 1824 appeal challenging his

5 exclusion from the DPP because of his participation in the EOP. He withdrew this appeal

6 after he was threatened with expulsion from the EOP for not “focusing on [his] mental

7 health.”

8

112. As with Plaintiff JENKINS’ appeals, Plaintiff TAYLOR’s claims regarding the

9 systemic exclusion of EOP and CCCMS inmates from work and education programs

10 present a live controversy “capable of repetition, yet evading review.” There is a

11 significant probability that Plaintiff TAYLOR and other similarly situated inmates will

12 continue to experience discrimination on the basis of his psychiatric disability in the

13 EOP. Additionally, the defendant officials’ own actions inhibiting Plaintiff TAYLOR’s

14 exhaustion of his appeals estop them from arguing his failure to exhaust as a defense.

15 See Hemphill, supra, 380 F.3d at 688.

16

Plaintiff WATT

17 113. Plaintiff WATT has satisfied all exhaustion requirements, including Director’s

18 Level appeals, for issues raised in this lawsuit. His appeal regarding the exclusion of

19 inmates with psychiatric disabilities from work and education programs has been denied

20 by CDCR officials.

21

114. On December 27, 2005, Plaintiff WATT filed a timely 602 appeal challenging

22 the systemwide policies, practices, and procedures addressed herein, and specifically the

23 CDCR’s denial of access to “educational, vocational, employment and recreation

24 opportunities . . . to EOP inmates due to discrimination against their mental health

25 disability.” The appeals requests that EOP inmates be provided equal access to these

26 opportunities, noting that they were provided to EOP inmates at CMF prior to 2002.

27

115. Plaintiff WATT’s appeal bypassed lower levels of review and went directly to

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1 Second Level review, where it was denied on February 9, 2006. After receiving this

2 decision on February 16, 2006, Plaintiff WATT appealed the denial on March 1, 2006,

3 stating that “[t]he response failed to address my request for equal access to mainline

4 programs and services for [EOP] inmates . . . . I continue to be denied access to programs

5 and services based on my mental health disability and EOP participation.”

6

116. Plaintiff WATT’s appeal was denied at the Director’s Level on May 30, 2006.

7

Plaintiff ASHANTI

8

117. Plaintiff ASHANTI, a/k/a Lorenzo Cunningham, has satisfied all exhaustion

9 requirements, including Director’s Level appeals, for issues raised in this lawsuit. His

10 appeal regarding the exclusion of inmates with psychiatric disabilities from education,

11 work, and vocational programs has been denied by CDCR officials.

12 118. On April 8, 2006, Plaintiff ASHANTI, then a participant in the EOP at CMF,

13 filed a timely 1824 appeal challenging the CDCR’s denial of access to “education, work,

14 and vocational programs . . . due to [his] mental health disability.” Plaintiff ASHANTI

15 asked that he be granted “the opportunity to participate in education, work, and

16 vocational programs that are available to non-EOP inmates.”

17 119. Plaintiff ASHANTI’s 1824 appeal was denied on May 1, 2006. He filed his

18 Second Level appeal on May 9, 2006, asking that the CMF administration “grant (EOP)

19 access to school/work/trade programs per the ADA/Americans With Disability Act

20 law(s).” The Second Level appeal was denied on May 26, 2006, and was returned to

21 Plaintiff ASHANTI on June 2, 2006.

22

120. Plaintiff ASHANTI filed his Director’s Level appeal seeking access to

23 “school/work/trade programs” on June 7, 2006. This appeal was denied on July 18,

24 2006. The appeal decision states that, “[a]t this point the EOP program will not be

25 changed.”

26

Plaintiff AULD

27

121. Plaintiff AULD has satisfied all exhaustion requirements, including Director’s

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1 Level appeals, for issues raised in this lawsuit. His appeal regarding the exclusion of

2 inmates with psychiatric disabilities from education and other programs has been denied

3 by CDCR officials.

4

122. On December 30, 2005, Plaintiff AULD filed a timely 1824 appeal requesting

5 access to education programs and/or access to the Disabled Placement Program, but had

6 been informed that “he cannot go to school because he is in EOP.”

7

123. Plaintiff AULD’s 1824 appeal was screened out on January 4, 2006, and he was

8 told to file a 602 appeal regarding his issues. On January 5, 2006, Plaintiff AULD filed a

9 602 appeal challenging “CDCR regulations, policies and procedures barring access to

10 educational opportunities for inmates with mental disabilities covered under the

11 Americans with Disabilities Act receiving treatment at the Enhanced Outpatient Program,

12 in violation of state and federal nondiscrimination laws at state facilities.”

13 124. Plaintiff AULD received notice of the First Level denial of his appeal on

14 February 28, 2006. He filed his Second Level appeal on March 12, 2006; in his appeal,

15 he notes that EOP inmates at CMF have 30 hours available during weekdays to

16 participate in education programs offered to the non-disabled, non-EOP inmate

17 population, but instead are left to “stagnat[e] in cells most of each day Monday through

18 Friday,” and are “barred from access to education programs.”

19 125. Plaintiff AULD’s Second Level appeal was denied on April 6, 2006. On April

20 15, 2006, Plaintiff AULD filed a Director’s Level appeal contending that “prison officials

21 have violated his rights under Title II of the ADA by denying him equal access to

22 education programs offered to other, non-EOP inmates at CMF.”

23

126. Plaintiff AULD’s Director’s Level appeal was denied on June 20, 2006.

24

Plaintiff MUELLER

25

127. Plaintiff MUELLER has satisfied all exhaustion requirements, including

26 Director’s Level appeals, for issues raised in this lawsuit. His appeal regarding the

27 exclusion of inmates with psychiatric disabilities from work and education programs

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1 have been denied by CDCR officials. His appeal regarding the automatic addition of

2 four points to his classification score because of his “diagnosis of mental illness” is

3 ongoing and will be completed shortly.

4

128. Plaintiff MUELLER was assigned to the EOP program on November 16, 2005.

5 On November 23, 2005, he was removed from his position as a Library Clerk in the

6 Central Library at RJD because of his participation in the EOP. Plaintiff MUELLER

7 filed an 1824 appeal challenging this decision on December 5, 2005.

8

129. Plaintiff MUELLER’s appeal of his removal from his Library Clerk position

9 was denied at the First Level on March 17, 2006. Plaintiff MUELLER then appealed this

10 response, but his appeal was also denied at the Second Level on April 25, 2006. The

11 reviewer explained that Plaintiff MUELLER’s “current EOP level of care does not allow

12 his placement in the Central Library . . . . The inmate will be eligible to apply for his old

13 position in the Central Library once his level of care is downgraded to CCCMS.”

14 130. On May 5, 2006 Plaintiff MUELLER appealed the Second Level decision,

15 asking that he be returned to his job in the Central Library and that “all programs be

16 unsegregated . . . as God does not reconize [sic] the difference between EOP, & CCCMS,

17 & G.P.’s.” His appeal was denied at the Director’s Level on June 13, 2006 because

18 Plaintiff MUELLER “requires the EOP level of care and is not eligible to work in the

19 Central Library while in the EOP.”

20 131. In April 2006, Plaintiff MUELLER also appealed the automatic addition of four

21 extra points to his classification score because of his “diagnosis of mental illness.” He

22 has yet to receive a response to this appeal.

23

Plaintiff HUNLEY

24

132. Plaintiff HUNLEY has satisfied all exhaustion requirements, including

25 Director’s Level appeals, for issues raised in this lawsuit. His appeals regarding the

26 exclusion of inmates with psychiatric disabilities using heat-sensitive medications, who

27 are required to remain in their cells during “heat alerts,” from recreational and other

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1 programs have been repeatedly denied and/or inappropriately screened out by CDCR

2 officials.

3

133. On May 23, 2004, Plaintiff HUNLEY filed a timely 1824 appeal regarding the

4 discriminatory denial of access to recreational programs to inmates who use heat-

5 sensitive medications during “heat alerts.” Plaintiff HUNLEY’s appeal states that having

6 “no established alternative program for heat alert inmates . . . is a blatant form of

7 discrimination based on disability,” because other inmates are allowed access to

8 recreational programs during heat alerts.

9

134. Plaintiff HUNLEY’s 1824 appeal was denied at the First Level of review on

10 June 15, 2004 because the reviewer determined that he was “not an ADA member,” and

11 his 1824 was “not an ADA issue.” The reviewer advised Plaintiff HUNLEY to submit a

12 602 appeal regarding this issue.

13 135. Plaintiff HUNLEY filed a 602 appeal regarding his segregation and exclusion

14 from recreational programs during heat alerts. This appeal was denied at the Second

15 Level on August 5, 2004.

16 136. Plaintiff HUNLEY requested Director’s Level review of the Second Level

17 decision. On March 2, 2005, his appeal of the Second Level decision was denied at the

18 Director’s Level, where the reviewer stated that “heat alert policies do not fall under the

19 requirements of the ADA or [the Armstrong v. Davis Court Ordered Remedial Plan].”

20

Plaintiff COX

21

137. Plaintiff COX has satisfied all exhaustion requirements, including Director’s

22 Level appeals, for issues raised in this lawsuit. His appeals regarding the exclusion of

23 inmates with psychiatric disabilities from work and education programs have been

24 repeatedly denied and/or inappropriately screened out by CDCR officials.

25

138. During 2004 and 2005, Plaintiff COX was assigned to the SCC, which functions

26 as “the [CDCR’s] center for training staff and inmates in firefighting techniques” and for

27 work in CDCR Fire Camps. See CDCR, Sierra Conservation Center, at

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1 http://www.cdcr.ca.gov/Visitors/fac_prison_SCC.html (visited July 25, 2006). He was

2 transferred to CIM on December 1, 2005.

3

139. On December 26, 2005 Plaintiff COX filed a timely 1824 appeal challenging his

4 exclusion from fire camp “due to [his] medical problem[s],” including having a

5 psychiatric disability and receiving mental health care through the CCCMS program.

6

140. Plaintiff COX’s appeal was denied at the First Level on January 20, 2006.

7 Plaintiff COX appealed this decision on January 25, 2006, but his appeal was denied at

8 the Second Level on February 6, 2006. The Second Level Reviewer expressly indicated

9 that Plaintiff COX did not meet “camp criteria due to his . . . on-going mental health

10 monitoring and treatment needs,” including his use of psychotropic medications.

11 141. Plaintiff COX sought Director’s Level review of this decision on February 14,

12 2006. His appeal was denied at the Director’s Level on March 21, 2006; the reviewer

13 noted that Plaintiff COX “receives the CCCMS level of care” and that “such type of care

14 is not available in fire camps.”

15

Plaintiff THOMAS

16 142. Plaintiff THOMAS has satisfied all exhaustion requirements for issues raised in

17 this lawsuit. His appeal regarding the exclusion of inmates with psychiatric disabilities

18 from work and education programs has thus far been denied by CDCR officials.

19 143. On April 6, 2006 Plaintiff THOMAS filed a timely 1824 appeal stating that he

20 has a mental health disability, that he receives treatment at the “EOP/CCCMS” level of

21 care, and that he has been “excluded from participation in programs and services which

22 are available to non-EOP/CCCMS inmates,” including employment and PIA

23 opportunities. He also challenged as discrimination his “being forced to receive a

24 shortened recreational period and access to Law Library than non-EOP/CCCMS

25 inmates.”

26

144. On May 1, 2006, Plaintiff THOMAS’ appeal was denied at the First Level of

27 Review, because “at the EOP level of care, you will not be assigned to a work

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1 assignment.” Plaintiff THOMAS was deemed ineligible for work assignments such as

2 Library Clerk, “until such time your level of care is reduced to CCCMS.” The reviewer

3 also noted that the procedure at RJD’s Facility One is for EOP inmates to access the law

4 library is to notify their Housing Unit Officer who in turn calls the law library for

5 permission to “ducat” the inmate for the library during their yard hours.

6

145. Plaintiff THOMAS appealed this adverse decision to the Second Level. In his

7 appeal, Plaintiff THOMAS noted that EOP inmates at RJD get far less recreational

8 time—as little as 90 minutes a week—and far less law library time—approximately one-

9 third as much—than do inmates in the general population, who are not required to use

10 their yard time for visits to the law library.

11 146. Plaintiff THOMAS is still awaiting a response from CDCR officials to his

12 Second Level appeal. Plaintiff THOMAS will complete his appeal of these issues

13 through the Director’s Level, if necessary, as soon as he receives his response to the

14 Second Level appeal.

15

Plaintiff STAFFORD

16 147. Plaintiff STAFFORD has satisfied all exhaustion requirements, including

17 Director’s Level appeals, for issues raised in this lawsuit. His appeals regarding the

18 exclusion of inmates with psychiatric disabilities from educational, recreational, and

19 religious programs have been repeatedly denied by CDCR officials.

20 148. On June 14, 2006, Plaintiff STAFFORD, who is an EOP inmate, filed a timely

21 1824 appeal challenging his exclusion from programs available to non-EOP inmates,

22 including the law library, yard, dayroom, and religious services, “due solely to my

23 psychiatric disability.” He requested that access to these programs be provided “to the

24 same extent that these programs are available to non-EOP inmates.”

25

149. Plaintiff STAFFORD’s 1824 appeal was deemed “partially granted” and

26 returned to him on August 10, 2006. Plaintiff STAFFORD appealed this decision to the

27 Second Level on August 14, 2006.

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1

150. Plaintiff STAFFORD’s Second Level appeal was deemed “partially granted” on

2 August 18, 2006. The appeal decision noted that “EOP inmates currently are not

3 assigned to work/education assignments.” Plaintiff STAFFORD appealed to the

4 Director’s Level on August 27, 2006. This appeal was denied on September 28, 2006.

5

Plaintiff LOVELACE

6

151. Plaintiff LOVELACE has satisfied all exhaustion requirements for issues raised

7 in this lawsuit. His appeals regarding the exclusion of inmates with psychiatric

8 disabilities from work and other programs have been repeatedly denied and/or screened

9 out by CDCR officials.

10 152. On April 6, 2006 Plaintiff LOVELACE filed a timely 1824 appeal stating that

11 “[s]ince I have been on heat meds, I am excluded from . . . programs available to inmates

12 not on heat meds.” Plaintiff LOVELACE, who identified his level of mental health care

13 as CCCMS, sought “access to work, education, work furlough, PIA, and vocational

14 programs.”

15 153. On May 18, 2006 Plaintiff LOVELACE’s appeal was “partially granted” at the

16 First Level of review; although the reviewer noted that “Inmates listed as CCCMS/EOP

17 are not assigned in the PIA, Central Kitchen, Facility Culinary, or the Facility Yard

18 Crew,” the appeal was “partially granted” because Plaintiff LOVELACE was placed on

19 the Support Service Waiting List (“SSWL”) and “will receive a job when one becomes

20 available.”

21

154. Plaintiff LOVELACE received the First Level decision on his 1824 appeal on

22 May 29, 2006. He sought Second Level review of this decision on June 14, 2006.

23

155. Plaintiff LOVELACE is still awaiting a response from CDCR officials to his

24 Second Level appeal. Plaintiff LOVELACE will complete his appeal of these issues

25 through the Director’s Level, if necessary, as soon as he receives his response to the

26 Second Level appeal.

27

Plaintiff DANIELS

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1

156. Plaintiff DANIELS has satisfied all exhaustion requirements, including

2 Director’s Level appeals, for issues raised in this lawsuit. His appeal regarding the

3 exclusion of inmates with psychiatric disabilities from work and recreational programs

4 have been repeatedly denied by CDCR officials.

5

157. On January 8, 2006, Plaintiff DANIELS filed a timely 1824 appeal stating that

6 he has a psychiatric disability covered under the ADA, as indicated by his participation in

7 the EOP, and requesting that jobs outside the EOP program unit at LAC be made

8 available to him.

9

158. Plaintiff DANIELS’ 1824 appeal was denied at the First Level on January 18,

10 2006. The First Level reviewer’s response states that “inmates housed in EOP are not

11 assigned work positions outside of the program.” Plaintiff DANIELS was notified of the

12 First Level denial on January 22, 2006.

13 159. Plaintiff DANIELS appealed to the Second Level on February 1, 2006. His

14 Second Level appeal was denied on March 24, 2006.

15 160. Plaintiff DANIELS appealed to the Director’s Level on March 29, 2006. In his

16 appeal he reiterates that he is “being barred because of [his] disability.”

17 161. Plaintiff DANIELS’ Director’s Level appeal was denied on July 11, 2006.

18

Plaintiff GRAY

19 162. Plaintiff GRAY has satisfied all exhaustion requirements, including Director’s

20 Level appeals, for issues raised in this lawsuit. His appeal regarding the exclusion of

21 inmates with psychiatric disabilities from rehabilitation and other programs has been

22 repeatedly denied and/or screened out by CDCR officials.

23

163. On May 15, 2006, Plaintiff GRAY filed a timely 1824 appeal challenging his

24 exclusion from programs and services available to non-EOP inmates, including the

25 Substance Abuse Program (SAP). Stating that “EOP inmates are barred from SAP

26 placement,” and citing California Code of Regulations, tit. 5, § 3040.1(c)(6), CDCR

27 officials denied Plaintiff GRAY’s appeal at the First Level of Review on June 5, 2006

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1

164. Plaintiff GRAY filed his Second Level appeal on June 6, 2006, contending that

2 he “should be able to have access to rehabilitation groups” to “address [his] issues of

3 drugs and mental illness.” On June 19, 2006, Plaintiff GRAY’s appeal was “partially

4 granted.” The Second Level reviewer noted that GRAY was “not eligible for Minimum

5 Support Facility (MSF)/Camp/Community Correctional Facility (CCF)/California

6 Community Re-Entry Center (CCRC)/Restitution Center (RC)/ or SAP due to [his] PSY

7 (EOP) status.” Nevertheless, GRAY’s appeal was “partially granted” in that “[y]ou will

8 have access to programs and services available to non-EOP inmates, as long as you can

9 meet the essential functions of the job . . . . You will not be allowed to participate in the

10 SAP.”

11 165. Plaintiff GRAY filed a Director’s Level appeal challenging his continuing

12 exclusion from the SAP on June 28, 2006. This appeal was denied on August 2, 2006.

13

Plaintiff WILLIAMS

14 166. Plaintiff WILLIAMS has satisfied all exhaustion requirements, including

15 Director’s Level appeals, for issues raised in this lawsuit. His appeal regarding the

16 failure of CDCR officials to provide him with accommodations during the appeal process

17 has been repeatedly denied and/or screened out by CDCR officials, and demonstrates that

18 the appeal process itself is a CDCR program or activity that is inaccessible to inmates

19 with psychiatric disabilities. He has also been retaliated against for attempting to use the

20 appeals process to vindicate his rights.

21

167. On September 21, 2005, Plaintiff WILLIAMS filed a timely 1824 appeal stating

22 that he did not understand the process for filing appeals, because his “perception of the

23 prisons [sic] rules for filing inmate appeals is incompetent, & this is due to my disability,

24 which the appeals coordinator has discriminated against[.]” He asked for assistance from

25 CDCR officials “authorized and trained in the area of inmate appeals” so that his appeals

26 could be made compliant with CDCR policies.

27

168. Plaintiff WILLIAMS’ appeal was “partially granted” at the First Level on

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1 March 29, 2006. Plaintiff WILLIAMS submitted his Second Level appeal on April 3,

2 2006; the Second Level appeal was denied on May 25, 2006.

3

169. Plaintiff WILLIAMS filed his Director’s Level appeal regarding the CDCR’s

4 failure to ensure that the appeals process was accessible on May 27, 2006. This appeal

5 was denied on August 22, 2006.

6

170. On October 12, 2005, Plaintiff WILLIAMS filed a timely 602 appeal alleging

7 that SAC officials had decided to reassign him from the EOP to the CCCMS because he

8 “process[es] a lot of paperwork.” He alleged that the basis for the reassignment was not

9 related to his mental health treatment, but was instead “retaliation due to [his] being

10 functional enough to relie [sic] & depend on” the CDCR’s administrative complaint

11 procedures. He requested that he be free from any reprisals or retaliation based upon his

12 use of the complaint procedure.

13 171. Plaintiff WILLIAMS’ appeal was designated as “partially granted,” and he

14 received notification of this decision on November 9, 2005. Plaintiff WILLIAMS filed a

15 Second Level appeal of his issue, which was also “partially granted,” on January 9, 2006.

16 172. On January 19, 2006, Plaintiff WILLIAMS filed a Director’s Level appeal in

17 which he stated that CDCR officials had informed him that his “massive paperwork” was

18 the basis for his reassignment from EOP to CCCMS. His Director’s Level appeal was

19 denied on March 27, 2006.

20 173. Plaintiff WILLIAMS also filed a group 602 appeal, dated October 24, 2005, on

21 behalf of approximately 56 other EOP inmates alleging that they faced retaliation,

22 including inappropriate dismissal from the EOP, for making complaints related to mental

23 health care or discrimination. This appeal was deemed “partially granted” at the First

24 Level of review. Plaintiff WILLIAMS appealed this decision to the Second Level; this

25 appeal was denied on February 28, 2006.

26

174. Plaintiff WILLIAMS, who received four additional classification points at entry

27 to the CDCR for having a “diagnosis of mental illness,” has also filed a timely 1824

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 33 of 42

1 appeal challenging this practice, but has yet to receive a response from CDCR officials.

2

3

Plaintiff D’ANGELO

4

175. Plaintiff D’ANGELO has satisfied all exhaustion requirements, including

5 Director’s Level appeals, for issues raised in this lawsuit. His appeals regarding the

6 exclusion of inmates with psychiatric disabilities from education and rehabilitation

7 programs have been repeatedly denied and/or screened out by CDCR officials.

8

176. Plaintiff D’ANGELO was placed in the EOP at CMC on October 4, 2005. After

9 his assignment to the EOP, he was not permitted to participate in substance abuse

10 rehabilitation programming through the SAP. On October 18, 2005, he was approved for

11 transfer to an EOP unit at either RJD or CMF.

12 177. On October 20, 2005 Plaintiff D’ANGELO filed a timely 1824 appeal

13 challenging his exclusion from the SAP and asking that he not be “discriminated

14 [against] because of his diagnosis” of a psychiatric disability.

15 178. Plaintiff D’ANGELO’s 1824 appeal was denied on October 28, 2005. The

16 reviewer stated that Plaintiff D’ANGELO’s complaint was “not an ADA issue, rather, a

17 regular CDCR-602 appeal,” and explained that under Title 15 of the California Code of

18 Regulations, EOP inmates were not allowed to participate in a SAP. The appeal was

19 characterized as “partially granted” because Plaintiff D’ANGELO would receive

20 consideration for SAP “should his Level of Care be elevated from EOP in the future.”

21

179. Plaintiff D’ANGELO sought Second Level review of this decision on

22 November 9, 2005, stating that “the EOP process was used to deny me SAP

23 participation.” This appeal was “partially granted” on November 22, 2005 because,

24 although Plaintiff D’ANGELO “[did] not currently meet the criteria to be placed in a

25 SAP due to your current MHSDS Level of Care (LOC) as an EOP” he would be

26 evaluated for SAP placement “if in the future, your LOC should decrease from EOP.”

27

180. Plaintiff D’ANGELO appealed to the Director’s Level in December 2005.

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 34 of 42

1 alleging that he was “being moved around as punishment . . . to destroy my SAP

2 eligibility.” This appeal was denied on January 30, 2006. Afterward, Plaintiff

3 D’ANGELO was transferred to RJD.

4

181. Plaintiff D’ANGELO’s repeated requests for assistance with appeals—including

5 sending messages to CDCR officials as attachments to appeals pleading for help with the

6 appeals filing process—clearly indicate that the CDCR appeals process is inaccessible to

7 him. All of the CDCR’s policies, including its inmate appeals policies, must “address the

8 needs of prisoners . . . who have problems understanding complex information or

9 communicating through the spoken or written word.” Armstrong v. Davis, 275 F.3d 849,

10 862 (9th Cir. 2001). Because the CDCR’s appeals policies do not address Plaintiff

11 D’ANGELO’s communication and comprehension needs, or those of similarly situated

12 inmates with psychiatric disabilities, they violate the ADA and the Rehabilitation Act.

13 182. Additionally, although he is currently on parole, Plaintiff D’ANGELO’s claims

14 regarding the systemic exclusion of EOP and CCCMS inmates from rehabilitation and

15 other programs present a live controversy “capable of repetition, yet evading review.”

16 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 594 n.6 (1999) (citing Vitek v. Jones, 445

17 U.S. 480, 486-87 (1980)). Indeed, there is a significant likelihood that Plaintiff

18 D’ANGELO will return to the CDCR system, and will continue to experience

19 discrimination on the basis of his psychiatric disability in the EOP or in the CCCMS –

20 either at CMC, RJD, or another CDCR institution.

21

Plaintiff SCHOOLEY

22

183. Plaintiff SCHOOLEY has satisfied all exhaustion requirements for issues raised

23 in this lawsuit. His attempts to appeal the automatic addition of four points to his

24 classification score because of his “diagnosis of mental illness” have been thwarted by

25 the actions of CDCR officials in placing Plaintiff SCHOOLEY in an “administrative

26 segregation” unit, involving extremely limited contact with prison officials and other

27 inmates, for extended periods of time, and because of his frequent transfers between

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 35 of 42

1 different CDCR facilities.

2

184. Plaintiff SCHOOLEY filed a timely 1824 appeal on March 9, 2006 while at

3 CMC. His appeal challenged the CDCR’s ongoing policy of automatically adding four

4 points to his classification score “simply because I have a psychiatric disability.” After

5 he filed his appeal, he was placed in administrative segregation because he protested a

6 housing assignment to an upper bunk, which was in conflict with the opinion of CDCR

7 medical officials restricting him to a lower bunk because of his physical disability.

8 Although his assignment to administrative segregation was reversed “in the interest of

9 justice” on April 30, 2006, Plaintiff SCHOOLEY was required to remain in

10 administrative segregation pending review of his housing assignment by his

11 “classification committee” in June 2006. In the meantime, on March 27, 2006 CMF

12 officials screened out Plaintiff SCHOOLEY’s 1824 appeal on the ground that there was

13 “too great a time lapse” between the addition of four points to his classification score and

14 his March 9 appeal. Plaintiff SCHOOLEY was notified that his appeal had been

15 screened out only after the deadline for him to appeal the decision to the Second Level of

16 review.

17 185. Plaintiff SCHOOLEY was transferred to ASP in June 2006. On June 12, 2006,

18 he filed another timely 602 appeal regarding the ongoing harm he suffers due to the

19 automatic addition of four points to his classification score. He filed an 1824 appeal on

20 the same issue on July 5, 2006. On July 10, 2006, his appeals were returned to him after

21 being “screened out,” again because there was “too great a time lapse” between his

22 appeal and the addition of the extra points to his classification score.

23

186. Plaintiff SCHOOLEY continues to suffer ongoing discrimination because of the

24 CDCR’s illegal policy of automatically adding four points to the classification score of

25 inmates with a “diagnosis of mental illness,” which subjects him to higher security levels

26 and fewer opportunities for work, educational, and other programming. Plaintiff

27 SCHOOLEY’s “four-point” claim regarding presents a live controversy “capable of

28
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Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 36 of 42

1 repetition, yet evading review,” whether he is assigned to CMF, CMC, ASP, or another

2 CDCR institution. Additionally, the defendant officials’ own actions inhibiting Plaintiff

3 SCHOOLEY’s exhaustion of his appeals estop them from arguing his failure to exhaust

4 as a defense. See Hemphill, supra, 380 F.3d at 688.

5

Additional Allegations Regarding Administrative Exhaustion

6

187. Plaintiffs’ appeals have placed the defendant prison officials on notice of the

7 issues raised in this lawsuit, see Massie v. Early, No. 1:00CV5248OWW LJO P, 2005

8 WL 2105304, at *3 (E.D. Cal. Aug. 31, 2005), “‘afford[ing them] time and opportunity

9 to address [Plaintiffs’] complaints internally.’” Woodford v. Ngo, 126 S. Ct. 2378, 2387

10 (2006) (quoting Porter v. Nussle, 534 U.S. 516, 525 (2002)). Prior efforts by other

11 inmates to challenge the MHSDS and EOP policies at issue herein using the internal

12 grievance procedures have similarly placed the defendant prison officials on notice, and

13 have been similarly fruitless. For example, inmate David W. Wilson, Inmate No. K-

14 66474, has filed 602 appeals in 2004 and 2005 regarding the policies that exclude EOP

15 inmates from prison programs available to non-EOP inmates. These 602 appeals were

16 repeatedly screened out. In fact, on March 15, 2005, inmate Wilson received from the

17 appeals office all of his documentation with the notation “REJECTED – DO NOT

18 RESUBMIT.”

19 188. At least two in pro per lawsuits have been filed challenging the policies of the

20 CDCR which exclude EOP inmates from education, vocational, and other programs and

21 activities available to non-EOP inmates. See Wilson v. Woodford, Case No. CIVS-05-

22 0876-LKK-JFM (E.D. Cal.), and Ashanti v. California Medical Facility State Prison,

23 Case No. 2:06-cv-01304-DFL-DAD (E.D. Cal.).

24

189. Further, as Plaintiffs’ experiences illustrate, the CDCR’s system for processing

25 601 and 1824 appeals works an extreme hardship on inmates with psychiatric disabilities,

26 many of whom require assistance with navigating the myriad procedural rules imposed

27 by the CDCR. Plaintiffs and other similarly situated inmates with psychiatric disabilities

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 37 of 42

1 are left to comply with these filing rules and deadlines without any assistance, regardless

2 of whether their disabilities affect their ability to process information and comply with

3 deadlines. At other times, they face retaliation for attempting to use the administrative

4 appeals process to vindicate their rights. As such, the CDCR’s administration of its

5 appeals process renders it inaccessible to inmates with psychiatric disabilities, including

6 Plaintiffs.

7

190. Also, as Plaintiffs’ experiences demonstrate, CDCR officials at various

8 institutions across the state regularly “screen out” the 1824 appeals of inmates with

9 psychiatric disabilities as “not an ADA issue.” Plaintiffs and similarly situated inmates

10 with psychiatric disabilities are thus denied access to the relatively streamlined procedure

11 for processing 1824 appeals afforded to inmates with other disabilities.

12 191. The CDCR and its agents have had repeated and ample notice of the issues

13 raised by this lawsuit, and have had many opportunities over several years to consider

14 these issues through the administrative process. There can be no dispute that further

15 administrative efforts would be futile, and that judicial consideration is appropriate.

16

CLASS ACTION ALLEGATIONS

17 192. Plaintiffs bring this action on behalf of themselves and on behalf of a class of all

18 those similarly situated pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil

19 Procedure.

20 193. Plaintiffs seek to represent a class of all present and future California inmates of

21 the CDCR with psychiatric conditions that are disabilities as defined by the ADA and the

22 Rehabilitation Act who are excluded and/or screened out from any prison program,

23 service, or activity on the basis of their assignment to or participation in the MHSDS

24 program, including the EOP and the CCCMS.

25

194. The class is so numerous that joinder of all members is impractical. There are

26 thousands of present and future inmates assigned to MHSDS programs throughout

27 California who are subject to the systemwide, statewide policies, practices, and

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 38 of 42

1 procedures complained of herein. Moreover, putative class members are not capable of

2 being identified at this time, as the proposed class includes future inmates assigned to the

3 MHSDS, the EOP, and the CCCMS. The class is constantly in flux, with inmates being

4 paroled and new inmates being incarcerated.

5

195. Common questions of law and fact predominate, and include whether inmates

6 assigned to the MHSDS are being excluded and/or screened out from any prison

7 program, service, or activity on the basis of disability.

8

196. The claims of Plaintiffs are typical of the claims of the other putative class

9 members. Plaintiffs have been unnecessarily excluded from core CDCR educational,

10 vocational, and employment activities and programs on the basis of their assignment to

11 the MHSDS and the EOP or the CCCMS. This is the same injury that members of the

12 proposed class have suffered, are suffering and, unless this Court grants relief, will

13 continue to suffer. Plaintiffs are members of the proposed class in that they are current

14 CDCR inmates assigned to the MHSDS who have been subjected to disability-based

15 discrimination.

16 197. Plaintiffs will fairly and adequately represent and protect the interests of the

17 class. Plaintiffs intend to prosecute this action rigorously in order to secure remedies for

18 the entire class. Counsel of record for Plaintiffs are experienced in state and federal civil

19 rights litigation and class actions, including systemic litigation challenging prison

20 conditions and disability discrimination.

21

198. Defendants have acted or refused to act on grounds generally applicable to the

22 class, thereby making appropriate final declaratory and injunctive relief with respect to

23 the class as a whole under Federal Rule of Civil Procedure 23(b)(2).

24

FIRST CAUSE OF ACTION

Disability-Based Discrimination in Violation of

25

Title II of the Americans with Disabilities Act of 1990

Against All Defendants

26

199. Plaintiffs incorporate by reference as though fully set forth herein paragraphs 1

27 through 198 of this Complaint.

28

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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 39 of 42

1

200. Title II of the ADA provides that “no qualified individual with a disability shall,

2 by reason of such disability, be excluded from participation in or be denied the benefits

3 of the services, programs, or activities of a public entity, or be subjected to discrimination

4 by any such entity.” 42 U.S.C. § 12132. By no later than July 26, 1992, public entities

5 were required to complete an evaluation of its services, policies, and practices, and the

6 effects thereof on persons with disabilities, and to make any modifications necessary to

7 ensure that the requirements of Title II are met. 28 C.F.R. § 35.105.

8

201. In providing any aid, benefit or service, a public entity “may not . . . [d]eny a

9 qualified individual with a disability the opportunity to participate in or benefit from the

10 aid, benefit or service,” “[a]fford a qualified individual with a disability an opportunity to

11 participate in or benefit from the aid, benefit, or service that is not equal to that afforded

12 others,” “[p]rovide a qualified individual with a disability with an aid, benefit, or service 13 that is not as effective in affording equal opportunity . . . as those provided to others,” or 14 “[o]therwise limit a qualified individual with a disability in the enjoyment of any right, 15 privilege, advantage, or opportunity enjoyed by others[.]” 28 C.F.R. § 35.130(b)(1)(i), 16 (ii), (iii), (vi). A public entity may not “[d]eny a qualified individual with a disability the 17 opportunity to participate as a member of planning or advisory boards.” 28 C.F.R. § 18 35.130(b)(1)(vi). 19 202. Further, “[a] public entity may not . . . utilize criteria or methods of 20 administration . . . [t]hat have the effect of subjecting qualified individuals with 21 disabilities to discrimination on the basis of disability[.]” 28 C.F.R. 22 § 35.130(b)(3)(i). Nor may a public entity “impose or apply eligibility criteria that screen 23 out or tend to screen out an individual with a disability or any class of individuals with 24 disabilities from fully and equally enjoying any service, program, or activity, unless such 25 criteria can be shown to be necessary[.]” 28 C.F.R. 26 § 35.130(b)(8). A public entity must “make reasonable modifications in policies, 27 practices, or procedures when the modifications are necessary to avoid discrimination on

28
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Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 40 of 42

1 the basis of disability, unless the public entity can demonstrate that making the

2 modifications would fundamentally alter the nature of the service, program, or activity.”

3 28 C.F.R. § 35.130(b)(7). Finally, “[a] public entity shall administer services, programs,

4 and activities in the most integrated setting appropriate to the needs of qualified

5 individuals with disabilities.” 28 C.F.R. § 35.130(d).

6

203. Defendants have violated the ADA and its regulations by, inter alia: (a)

7 denying Plaintiffs and other inmates similarly situated the opportunities and benefits of

8 the programs, services, and activities offered by the Defendants to other, nondisabled

9 inmates; (b) denying Plaintiffs and other inmates similarly situated equal and/or equally

10 effective access to vocational, educational, employment, recreational, and other

11 opportunities on the basis of disability; (c) utilizing systemwide policies and practices

12 that have a disparate impact on, and which screen out or tend to screen out, inmates with

13 psychiatric disabilities, including Plaintiffs; (d) utilizing methods of administration that

14 have the effect of discriminating against inmates with psychiatric disabilities, including

15 Plaintiffs; (e) failing to make reasonable modifications in policies, practices, or

16 procedures when the modifications are necessary to avoid discriminating against inmates

17 with psychiatric disabilities, including Plaintiffs; (f) failing to complete and implement an

18 adequate self-evaluation plan with respect to inmates with psychiatric disabilities; (g)

19 failing to take prompt and equitable steps to remedy their discriminatory conduct; and (h)

20 by otherwise segregating, excluding, and discriminating against inmates with psychiatric

21 disabilities, including Plaintiffs.

22

204. Defendants’ unlawful actions were and continue to be intentional, willful,

23 malicious, and/or done with reckless disregard to the right of Plaintiffs and other inmates

24 similarly situated to be free from discrimination based on disability.

25

205. Plaintiffs are entitled to declaratory relief, injunctive relief, and attorneys’ fees

26 and costs.

27

SECOND CAUSE OF ACTION

Disability-Based Discrimination in Violation of

28

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Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 41 of 42

Section 504 of the Rehabilitation Act of 1973

1

Against All Defendants

2

206. Plaintiffs incorporate by reference as though fully set forth herein paragraphs 1

3 through 205 of this Complaint.

4

207. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified

5 individual with a disability . . . shall, solely by reason of her or his disability, be excluded

6 from the participation in, be denied the benefits of, or be subjected to discrimination

7 under any program or activity receiving Federal financial assistance.” 29 U.S.C. §

8 794(a). Nearly 30 years ago, recipients of federal financial assistance were required to

9 complete a self-evaluation of their programs and activities, and make necessary changes

10 to ensure that such programs and activities were accessible to and usable by persons with 11 disabilities. See, e.g., 28 C.F.R. § 42.521; 45 C.F.R. § 84.22.

12 208. As detailed herein, the Defendants have violated Section 504 and its regulations

13 by unnecessarily segregating and discriminating against inmates with psychiatric

14 disabilities, including Plaintiffs, and by systemically excluding such inmates from a

15 broad range of basic vocational, educational, employment, recreational, and other

16 programs. The Defendants have also failed to complete and implement an adequate self-

17 evaluation plan with respect to inmates with psychiatric disabilities.

18 209. Defendants’ unlawful actions were and continue to be intentional, willful,

19 malicious, and/or done with reckless disregard to the right of Plaintiffs and other inmates

20 similarly situated to be free from discrimination based on disability.

21

210. Plaintiffs are entitled to declaratory relief, injunctive relief, and attorneys’ fees

22 and costs.

23

DECLARATORY RELIEF ALLEGATIONS

24

211. Plaintiffs incorporate by reference the allegations in paragraphs 1 through 210,

25 as though fully set forth herein.

26

212. A present and actual controversy exists between Plaintiffs and Defendants

27 concerning their rights and respective duties. Plaintiffs contend that the Defendants have

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 35 Filed 10/20/2006 Page 42 of 42

1 violated and continue to violate their rights, and the rights of other inmates similarly

2 situated, under the ADA, Section 504, and Section 11135 of the California Government

3 Code. Plaintiffs are informed and believe, and thereon allege, that the Defendants deny

4 these allegations. Declaratory relief is therefore necessary and appropriate.

5

213. Plaintiffs seek a judicial declaration of the rights and duties of the respective

6 parties

7

INJUNCTIVE RELIEF ALLEGATIONS

8

214. Plaintiffs incorporate by reference the allegations in paragraphs 1 through 213,

9 as though fully set forth herein.

10 215. No plain adequate, or complete remedy at law is available to Plaintiffs to redress

11 the wrongs alleged herein.

12 216. If the court does not grant the injunctive relief sought herein, Plaintiffs will be

13 irreparably harmed.

14

PRAYER FOR RELIEF

15

1. For an order enjoining the Defendants from engaging in the unlawful

16 discrimination complained of herein;

17

2. For an order granting such other injunctive relief as may be appropriate;

18

3. For declaratory relief;

19

4. For reasonable attorneys’ fees and costs of suit, including expert fees, pursuant

20 to 42 U.S.C. § 12205, 29 U.S.C § 2617(a)(3), Cal. Civ. Code §§ 52(a), 54.3(a), 55, Cal.

21 Civ. Proc. Code § 1021.5, and other laws; and

22

5. For such other and further relief as the Court deems just and proper.

23
Dated: October 20, 2006
24

25
By: /s/Claudia Center

26

CLAUDIA

CENTER

27

LEWIS BOSSING

28
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SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:05-cv-02441-LKK-JFM Document 65 Filed 02/27/2007 Page 1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT HECKER, et al.,

11

Plaintiffs,

No. CIV S-05-2441 LKK JFM P

12

vs.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND
14 REHABILITATION, et al.,

15

Defendants.

FINDINGS & RECOMMENDATIONS

16

/

17

Plaintiffs are state prisoners proceeding through counsel with a proposed class

18 action raising claims under the Rehabilitation Act of 1973, the Americans with Disabilities Act

19 of 1990, and California Government Code § 11135. This matter came on for hearing before the

20 undersigned on February 8, 2006 on defendants’ motion to dismiss and to strike allegations 21 pursuant to Fed. R. Civ. P. 12(b)(1), (6) and 12(f).1 Claudia Center, Esq. and Michael Bien, Esq.,

22

23

1 This action is proceeding on plaintiffs’ second amended complaint, filed October 20,

2006. On November 17, 2006, defendants California Department of Corrections and 24 Rehabilitation (CDCR), Schwarzenegger, Tilton, Woodford, Poulos and Dovey filed the instant

motion. On November 27, 2006, defendants Hernandez, Wong, Malfi, Mendoza-Powers and 25 Curry filed a motion to join in the motion to dismiss. On November 30, 2006, defendant Farber-

Szekrenyi filed a motion to join in the motion to dismiss. Good cause appearing, the November 26 27, 2006 and November 30, 2006 motions to join in the November 17, 2006 motion are granted.

1

Case 2:05-cv-02441-LKK-JFM Document 65 Filed 02/27/2007 Page 2 of 3

1 appeared as counsel for plaintiffs. Jay Craig Russell, Deputy Attorney General, and Kurt

2 Franklin, Esq., appeared as counsel for defendants.

3

At issue is the extent of the relationship between the claims raised in the instant

4 action and those litigated in the related class action, Coleman v. Schwarzenegger, Case No. CIV

5 S-90-0520 LKK JFM P. The parties in the Coleman case have been working with a special

6 master for over eleven years to remedy constitutional violations in the delivery of mental health

7 care to seriously mentally ill inmates in the California Department of Corrections. Plaintiffs in

8 the instant action raise claims which they contend have arisen as a consequence of the remedial

9 efforts in the Coleman case. During the hearing, it became apparent that the interests of the

10 parties and of judicial economy will be well-served by an assessment by the Coleman special

11 master as to whether the claims raised in the instant action can be resolved within the remedial

12 phase of the Coleman case. (See Transcript of Proceedings, February 8, 2007 Hearing re:

13 Defendants’ Motion to Dismiss, filed February 9, 2007, at 13-15.)

14

Good cause appearing, IT IS HEREBY ORDERED that the Clerk of the Court is

15 directed to serve a copy of these findings and recommendations on the parties in Coleman v.

16 Schwarzenegger, Case No. CIV S-90-0520 LKK JFM P and on the special master in the

17 Coleman case; and

18

IT IS HEREBY RECOMMENDED that:

19

1. This matter be referred to the special master in Coleman v. Schwarzenegger,

20 No. CIV S-90-0520 LKK JFM for a report and recommendation as to whether the claims raised

21 herein can be resolved within the remedial phase of that action, said report to be filed within

22 ninety days from the date of any order by the district court adopting these findings and

23 recommendations; and

24

2. This matter be stayed until said report from the Coleman special master has

25 been filed and considered by the district court.

26 /////

2

Case 2:05-cv-02441-LKK-JFM Document 65 Filed 02/27/2007 Page 3 of 3

1

These findings and recommendations are submitted to the United States District

2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

3 after being served with these findings and recommendations, any party may file written

4 objections with the court and serve a copy on all parties. Such a document should be captioned

5 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that

6 failure to file objections within the specified time may waive the right to appeal the District

7 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

8 DATED: February 26, 2007.

9

10

11

12 12 heck2441.frs
13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 1 of 15

1 Claudia Center, State Bar No. 158255
2 LTeHwEisLBEoGsAsiLngAISDtatSeOBCaIrENToY. -2E2M74P9L2OYMENT LAW CENTER
600 Harrison St., Suite 120 3 San Francisco CA 94107
Telephone: (415) 864-8848 4 FacsImile: (415) 864-8199

5 Michael W. Bien, State Bar No. 96891 Thomas B. Nolan, State Bar No. 169692
6 MeghanLang, State BarNo. 221156 ROSEN BIEN & ASARO, LLP
7 155 Montgomery Street, 8th Floor San FrancIsco, CA 94lO4
8 Telephone: (415) 433-6830 FacsImile: (415) 433-7lO4
9
Attorneys for Plaintiff Robert Hecker
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13

14 ROBERT HECKER,

No.:

15

Plaintiff, on behalf of himself and

CLASS ACTION COMPLAINT FOR

others similarly situated,

DECLARATORY AND INJUNCTIVE

16
v.

RELIEF

17

rCivi1 Rights ~ Disability

CALIFORNIA DEPARTMENT OF

bIscnmmatIOn]

18 CORRECTIONS AND

REHABILITATION, ARNOLD

19 SCHWARZENEGGER, Governor of

the State of California, m his official
20 capacity, RODERICK Q. HICKMAN,

Secretary of the California Department

21 of Corrections and RehabilitatIOn, in his

official capacity, JEANNE S.

22 WOODFORD, Undersecretary of the

California Department of Corrections

23 and Rehabilitation, in her official

capacity, JOHN DOVEY, Director,

24 Division of Adult Institutions, in hIS

official capacity,and TERESA A.

25 SCHWARTZ, Warden of the California

Medical Facility, in her official

26 capacity,

27 Defendants.

28
Page 1 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 2 of 15

1
Plaintiff ROBERT HECKER alleges as follows:
2
INTRODUCTION
3
1. This is an action for relief from Defendants' violation of Plaintiff's civil
4
rights under the Rehabilitation Act of 1973, the Americans with Disabilities Act of
5
1990, and California Government Code section 11135.
6
2. Plaintiff ROBERT HECKER ("HECKER") is an individual with a
7
: psychiatric disability, and an inmate incarcerated at the California Medical Facility
8 !
("CMF"). The Defendants CALIFORNIA DEPARTMENT OF CORRECTIONS
9
AND REHABILITATION ("CDCR"), GOVERNOR ARNOLD
10
, SCHWARZENEGGER ("SCHWARZENEGGER"), RODERICK Q. HICKMAN
11' ("HICKMAN"), JEANNE S. WOODFORD ("WOODFORD"), JOHN DOVEY

12
("DOVEY") and TERESA A. SCHWARTZ ("SCHWARTZ"), and each of them,

13
have denied Plaintiff HECKER access to basic CDCR programs, services, and

14
activities on the basis of HECKER's disability.

15
3. Plaintiff seeks declaratory and injunctive relief, and reasonable attorneys'

16
fees and costs, for defendants' violations of his rights.

17
JURISDICTION AND VENUE

18
4. This court has jurisdiction over the subject matter and the parties pursuant

19
to 28 U.S.C. §§ 1331, 2201, and 2202. Plaintiff brings this suit under Title II of

20 the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12132, and

21 Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. §

22 794.

23

5. Venue is proper in the Eastern District of California pursuant to 28 U.S.C.

24 § 1391 (b), because the events giving rise to Plaintiff's claims occurred in this

25 District.

26

PARTIES

271

6. Plaintiff HECKER is a person with a disability within the meaning of all

28
1

Page 2 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 3 of 15

applicable statutes, and is a qualified person with a disability within the meaning

2 of Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff

3 HECKER is a resident of California, and an inmate incarcerated at CMF.

4

7. Defendant CDCR administers and opcrates the California prison system,

5 including CMF, and is legally responsible for ensuring compliance with state and

6 federal disability nondiscrimination laws at all cOlTectional facilities, including

7 CMF. Defendant CDCR is a public entity within the meaning of Title II ofthe

8 ADA. Defendant CDCR receives federal financial assistance and is covered by

9 the Rehabilitation Act.

10

8. Defendant SCHWARZENEGGER is the Governor of the State of

11 California, and oversees all state agencies, including the CDCR. Defendant

12 SCHWARZENEGGER is legally responsible for ensuring compliance with state

13 and federal disability nondiscrimination laws at all state facilities, including state

14 cOlTectional facilities. Defendant SCHWARZENEGGER is legally responsible

15 i for the unlawful policies, practices, and procedures challenged herein, and has the

16 authority and legal obligation to eliminate disability discrimination by abolishing

17 these policies, practices, and procedures. Defendant SCHWARZENEGGER is

18 sued in his official capacity.

19

9. Defendant HICKMAN is the Secretary of the CDCR, and is legally

20 responsible for ensuring compliance with state and federal disability

21 nondiscrimination laws at all cOlTectional facilities, including CMF. Defendant

22 HICKMAN is legally responsible for the unlawful policies, practices, and

23 procedures challenged herein, and has the authority and legal obligation to 24 eliminate disability discrimination by abolishing these policies, practices, and

25 procedures. Defendant HICKMAN is sued in his official capacity.

26

10. Defendant WOODFORD is the Undersecretary of the CDCR, and is

27 legally responsible for ensuring compliance with state and federal disability

28
Page 3 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 4 of 15

1 nondiscrimination laws at all correctional facilities, including CMF. Defendant

2 WOODFORD is responsible for the unlawful policies, practices, and procedures

3 challenged herein, and has the authority and legal obligation to eliminate disability

4 discrimination by abolishing these policies, practices, and procedures. Defendant

5 WOODFORD is sued in her official capacity.

6

11. Defendant DOVEY is the Director of the Division of Adult Institutions,

7 and is legally responsible for ensuring compliance with state and federal disability

8 nondiscrimination laws at all adult correctional facilities, including CMF.

9 Defendant DOVEY is responsible for the unlawful policies, practices, and

10 procedures challenged herein, and has the authority and legal obligation to

11 eliminate disability discrimination by abolishing these policies, practices, and

12 procedures. Defendant DOVEY is sued in his official capacity.

l3 12. Defendant SCHWARTZ is the Warden ofCMF. She is responsible for the

14 administration of programs, services, and activities offered to inmates at the CMF,

15 and is in charge of supervision and discipline of all correctional officials and

16 employees at CMF. Defendant SCHWARTZ is sued in her official capacity.

17

STATEMENT OF FACTS

18

13. Plaintiff HECKER is an inmate incarcerated at the CMF. He is assigned to

19 a program for inmates with serious psychiatric disabilities called the Enhanced

20 Outpatient Program ("EOP").

21

14. The Defendants CDCR, SCHWARZENEGGER, HICKMAN,

22 WOODFORD, DOVEY, and SCHWARTZ, and each of them, have adopted,

23 implemented, ratified, and/or failed to abolish numerous unnecessary and

24 discriminatory policies, practices, and procedures affecting the inmates assigned to

25 the EOP. These policies, practices and procedures bar and function to bar Plaintiff

26 I HECKER and other similarly situated EOP participants from basic educational, 27 vocational, employment, and recreational programs that are provided to other,

28 ,

Page4 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 5 of 15

1 nondisabled inmates. For example, while inmates assigned to the EOP are

2 required to participate in ten hours of mental health programming such as support

3 groups, the remaining hours of their weeks - 30 to 40 hours each week - are

4 unscheduled and available for participation in the broad range of educational,

5 vocational, employment, and recreational programs available to the non-disabled,

6 non-EOP population. Nevertheless, by express policy and without basis, inmates

7 in the EOP are deemed to be "booked" from 8:00 a.JTI. to 4:00 p.m. Monday

8 through Friday, and are entirely precluded from participating in any non-EOP

9 prison programs, including vocational, employment, and educational programs,

10 during those times. See, e.g., December 30, 2002 Memorandum from L.H.

11 Dizmang, M.D., Chief Psychiatrist, California Medical Facility. Additional

12 policies, practices, and procedures similarly function to discriminate against

13 inmates with severe psychiatric disabilities, exclude them from programs, services,

14 and activities, and segregate them unnecessarily.

15 15. As a result of the unnecessary and discriminatory policies, practices, and

16 procedures challenged herein, and on the basis of disability, Plaintiff HECKER

17 and others similarly situated have been denied equal access to a broad range of

18 prison programs, services, and activities for which they are qualified, and have

19 I been subjected to unlawful segregation. These denials include, but are not limited

20 to, the following:

21 '

(a) disability-based denial of access to educational opportunities,

22

including the electronics program, computer classes, the Art in

23

Corrections program, and other school programs;

24

(b) disability-based denial of access to employment and vocational

25

opportunities;

26

(c) disability-based denial of access to recreational programs and

27

facilities;

28
Page 5 CLASS ACTION COMPLAINT FOR DECLARATQRY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 6 of 15

1

(d) disability-based denial of access to religious programs, including

2

church services and bible study; and

3

(e) di sability-based denial of access to other programs, services, and

4

activities.

5

16. The exclusion of EOP inmates from programs and services cause them to

6 lose benefits attendant to work, education, or vocational programs.

7

17. These denials and exclusions are unnecessary, discriminatory, and

8 unlawful. Further, the inmates in the EOP are excluded and segregated despite the

9 fact that participation in educational, vocational, employment, and recreational

10 programs is therapeutic for persons with serious psychiatric disabilities, and

11 promotes mental health and wellness. By contrast, exclusion and segregation,

12 particularly from educational, vocational, and employment opportunities,

13 undennines mental health, wellness, and rehabilitation. The Defendants' actions

14 and inactions function to aggravate and worsen the mental health status of

15 Plaintiff HECKER and the other, similarly situated EOP inmates.

16 !

ADMINISTRATIVE EXHAUSTION

17 18. Plaintiff HECKER has repeatedly attempted to appeal the issues raised in

18 this lawsuit. However, his appeals have been repeatedly screened out by the CMF

19 Appeals Office, in violation ofthe CDC policies and procedures as set forth in

20 California Code of Regulations, Title 15.

21 ! 19. On December 28, 2004, Plaintiff HECKER filed a timely 1824 appeal

22 challenging the policies, practices, and procedures complained of herein, and

23 ! requesting that "the Electronics program be made available to me" and seeking

24 "modifications to CDC policies, practices, and procedures to avoid discrimination 25 on the basis of disability[.]" Plaintiff HECKER noted that he was "being forced to 26 choose between an EOP level of care that I require to maintain mental health, and 27 a vocation that would further and enhance improvements in my mental health[.]"

28
Page 6 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 7 of 15

20. On December 29,2004, Plaintiff HECKER's appeal was screened out,

2 purportedly because the "[a]ppeal cannot be understood" and because the

3 "wording is too small."

4

21. On January 3,2005, Plaintiff HECKER resubmitted a timely 1824 appeal;

5 this time typed so that it could not be rejected as "too small." Plaintiff HECKER

6 sought "access to the Electronics Program" and "[m]odification to CDC policies,

7 practices or procedures to avoid discrimination by denial of access to Electronics

8 Program on the basis of my disability[.]"

9

22. On January 5,2005, Plaintiff HECKER's appeal was again summarily

10 screened out, purportedly because his appeal was a "duplicate issue." By

11 "duplicate issue," the appeals coordinator was referencing a group appeal filed by 12 another il1lnate, Christopher Jenkins, on January 29, 2003. The issues complained 13 of by Plaintiff HECKER were ongoing and had not been resolved by the Jenkins 14 appeal. Further, under governing procedures, only imnate Jenkins could appeal 15 the January 2003 group appeal. Jenkins' appeal was rejected at the Second Level 16 on April 10,2003. 17 23. On August 5, 2005, Plaintiff HECKER filed a timely 1824 appeal 18 challenging the policies, practices and procedures complained of herein, and 19 seeking "[m]eaningful and nondiscriminatory access to all prison programs[,]"
"including the Electronics Program, the Arts in Corrections Program, computer

classes, and bible study." In his August 5, 2005 appeal, Plaintiff HECKER

22 explicitly noted that he was challenging "an ongoing problem and ... an ongoing

23 need for the reasonable accommodation and modification requested herein," and

24 that his appeal should not be barred as a "duplicate issue."

25

24. On August 8, 2005, Plaintiff HECKER's appeal was summarily screened

26 out, purportedly as a "duplicate issue."

27

25. On August IS, 2005, Plaintiff HECKER sought Second Level review of

28
Page 7 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 8 of 15

1 the screened-out appeal.

2

26. On August 19,2005, Plaintiff HECKER's request for Second Level review

3 was denied.

4

27. On August 23,2005, Plaintiff HECKER sought Director's Level review of

5 the screened-out appeal from the Inmate Appeals Branch.

6

28. On October 22,2005, the Inmate Appeals Branch returned Plaintiff

7 HECKER's documents to him, purportedly because the appeal was "rejected,

8 withdrawn or cancelled."

9

29. Because Defendants have repeatedly screened out Plaintiff HECKER's

10 , administrative appeals, the grievance procedure has been rendered unavailable to !
11 I him, and the defendants cannot now claim that Plaintiff HECKER has failed to

12 exhaust his administrative remedies. See Hall v. Alameida, No. S-03-1595 DFL

13 i KJM P, 2005 WL 2030728, at *3 (E.D. Cal. Aug. 23, 2005). Plaintiff HECKER
141 has been repeatedly and "reliably informed by an administrator that no remedies

15 are available" to him. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

16 30. It is the policy of the CDCR not to accept appeals that have been screened

17 out as a "duplicate issue." Accordingly, Plaintiff HECKER's efforts to appeal his

18 I "screened out" 1824 to the Second Level and to the Third Level (Director's Level)

19 have been unavailing. At no time has the CDCR or its agents attempted to

20 consider, much less resolve, Plaintiff HECKER's complaints. It would be futile

21 I for Plaintiff HECKER to attempt to further avail himself of the internal CDCR 22 i appeals process.

23 31. By providing prison officials with timely grievances describing the

24 i problems alleged herein, Plaintiff HECKER has satisfied the exhaustion

25 requirement. See Holcomb v. High Desert State Prison, No. CIVS022417LKK

26 , KJM P, 2005 WL 2089849, at *2 (E.D. Cal. Aug. 30, 2005) (citing Ngo v. 27 Woodford, 403 F.3d 620,631 (9th Cir. 2005)). Plaintiff HECKER's appeals

28
Page 8 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 9 of 15

1 placed the defendant prison officials on notice of the issues raised in this lawsuit.

2 See Massie v. Early, No. 1:00CV52480WW LJO P, 2005 WL 2105304, at *3

3 (E.D. CaL Aug. 31,2005).

4

32. Prior efforts by other inmates to challenge the EOP policies at issue herein

5 using the internal grievance procedures have similarly placed the defendant prison

6 officials on notice, and have been similarly fruitless:

7

(a) Inmate Peter Taylor, Inmate No. T-19666, filed a 602 appeal on

8

December 17, 2002, requesting that EOP inmates "not be

9

discriminated against because ofEOP mental health disabilities" and

10

seeking to "reverse the [extreme] bias and discrimination toward all

11

EOP inmates with mental illness ... by not allowing ... off wing

12 .

authorized access during the hours of 8:00 a.m. - 4:00 p.m." This

l3

appeal was denied at the First and Second Levels in February 2003,

14

and at the Director's Level on May 15, 2003.

15

(b) Inmate Christopher Jenkins, Inmate No. P-73828, has filed an 1824

16

appeal in January 2003 regarding the policies that exclude EOP

17 !

inmates. By April 10,2003, Jenkins' appeal was rejected at the

18

Second Level.

19

(c) Inmate David W. Wilson, Inmate No. K-66474, has filed 602 appeals

20

in 2004 and 2005 regarding the policies that exclude EOP inmates

from prison programs available to non-EOP inmates. These 602

appeals were repeatedly screened out. In fact, on March 15, 2005,

23

inmate Wilson received from the appeals office all of his

24

documentation with the notation "REJECTED - DO NOT

25

RESUBMIT."

26

33. The CDCR and its agents have had repeated and ample notice of the issues

27 raised by this lawsuit, and have had many opportunities over several years to

28
Page 9 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 10 of 15

1 consider these issues through the administrative process. There can be no dispute

2 that further administrative efforts would be futile, and that judicial consideration is

3 appropriate.

4

CLASS ACTION ALLEGATIONS

5

34. Plaintiff HECKER brings this action on behalf of himself and on behalf of

6 a class of all those similarly situated pursuant to Rule 23(a) and (b)(2) of the

7 Federal Rules of Civil Procedure.

S

35. Plaintiff HECKER seeks to represent a class of all present and future

9 California inmates of the CDCR with psychiatric conditions that are disabilities as

10 defined by the ADA and the Rehabilitation Act who are excluded and/or screened

11 out from any prison program, service, or activity on the basis of their assignment

12 ! to or participation in the EOP program.

I
13 !

36. The class is so numerous that joinder of all members is impractical. There

14 are thousands of present and future inmates assigned to EOP programs throughout

15 California who are subject to the policies, practices, and procedures complained of

16 herein. Moreover, putative class members are not capable of being identified at

17 ! this time, as the proposed class includes future inmates assigned to the EOP. The

18

I
!

class

is

constantly

in

flux,

with

inmates

being

paroled

and

new

inmates

being

19 incarcerated.

20 I 37. Common questions oflaw and fact predominate, and include whether
!
21 inmates assigned to the EOP are being excluded and/or screened out from any
prison program, service, or activity on the basis of disability.

38. The claims of Plaintiff HECKER are typical of the claims of the other

24 putative class members. Plaintiff HECKER has been unnecessarily excluded from
25 I core CDCR educational, vocational, and employment activities and programs on

26 the basis of his assignment to the EOP. This is the same injury that members of

27 the proposed class have suffered, are suffering and, unless this Court grants relief,

28
Page 10 CLASS ACTION COMPLAINT FOR D.:CLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 11 of 15

1 will continue to suffer. Plaintiff HECKER is a member of the proposed class in 2 that he is a current CDCR inmate assigned to the EOP who has been subjected to

3 disabili ty-based discrimination.

4

39. Plaintiff HECKER will fairly and adequately represent and protect the

5 interests of the class. Plaintiff HECKER intends to prosecute this action

6 rigorously in order to secure remedies for the entire class. Counsel of record for 7 Plaintiff HECKER are experienced in state and federal civil rights litigation and 8 class actions, including systemic litigation challenging prison conditions and

9 disability discrimination. 10 40. Defendants have acted or refused to act on grounds generally applicable to

11 the class, thereby making appropriate final declaratory and injunctive relief with

12 respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).

13

FIRST CAUSE OF ACTION

Disability-Based Discrimination in Violation of

14

Title II of the Americans with Disabilities Act of 1990

Against All Defendants

41. Plaintiff HECKER incorporates by reference as though fully set forth

16 herein paragraphs I through 40 of this Complaint.

17 i
I

42. Title II of the ADA provides that "no qualified individual with a disability

18 '

shall, by reason of such disability, be excluded from participation in or be denied

19 the benefits of the services, programs, or activities of a public entity, or be

20 subjected to discrimination by any such entity." 42 U.S.C. § 12132. By no later

21 than July 26, 1992, public entities were required to complete an evaluation of its

22 services, policies, and practices, and the effects thereof on persons with

23 disabilities, and to make any modifications necessary to ensure that the

24 requirements of Title II are met. 28 C.F.R. § 35.105.

25

43. In providing any aid, benefit or service, a public entity "may not ... [d]eny

26 a qualified individual with a disability the opportunity to participate in or benefit

27 from the aid, benefit or service," "[a]fford a qualified individual with a disability

28
Page 11 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 12 of 15

1 an opportunity to participate in or benefit from the aid, benefit, or service that is

2 not equal to that afforded others," "[p]rovide a qualified individual with a

3 disability with an aid, benefit, or service that is not as effective in affording equal

4 opportunity ... as those provided to others," or "[0]therwise limit a qualified

5 individual with a disability in the enjoyment of any right, privilege, advantage, or

6 opportunity enjoyed byothers[.]" 28 C.F.R. § 35.130(b)(I)(i), (ii), (iii), (vi). A

7 public entity may not "[d]eny a qualified individual with a disability the

8 opportunity to participate as a member of planning or advisory boards." 28 C.F.R.

9 § 35.130(b)(1 )(vi).

10 44. Further, "[a] public entity may not ... utilize criteria or methods of

11 I administration ... [t]hat have the effect of subjecting qualified individuals with

12 i disabilities to discrimination on the basis of disability[T 28 C.F.R.

13 • § 35.130(b)(3)(i). Nor maya public entity "impose or apply eligibility criteria that
141 screen out or tend to screen out an individual with a disability or any class of

15 individuals with disabilities from fully and equally enjoying any service, program,

16 or activity, unless such criteria can be shown to be necessary[.]" 28 C.F.R.

17 § 35.130(b)(8). Finally, "[a] public entity shall administer services, programs, and

18 activities in the most integrated setting appropriate to the needs of qualified

19 individuals with disabilities." 28 C.F.R. § 35.l30(d).

20

45. Defendants have violated the ADA and its regulations by, inter alia: (a)

21 denying Plaintiff HECKER and other inmates similarly situated the opportunities

22 and benefits of the programs, services, and activities offered by the Defendants to

23 other, nondisabled inmates; (b) denying Plaintiff HECKER and other inmates

24 . similarly situated equal and/or equally effective access to vocational, educational,

25 employment, recreational, and other opportunities on the basis of his disability; (c)

26 i utilizing policies and practices that have a disparate impact on, and which screen

27 out or tend to screen out, inmates with psychiatric disabilities, including Plaintiff

28
Page 12 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 13 of 15

1 HECKER; (d) utilizing methods of administration that have the effect of

2 discriminating against inmates with psychiatric disabilities, including Plaintiff

3 HECKER; (f) failing to complete and implement an adequate self-evaluation plan

4 with respect to inmates with psychiatric disabilities; (g) failing to take prompt and

5 equitable steps to remedy their discriminatory conduct; and (h) by otherwise

6 segregating, excluding, and discriminating against inmates with psychiatric

7 . disabilities, including Plaintiff HECKER. I

8

46. Defendants' unlawful actions were and continue to be intentional, willful,

9 malicious, and/or done with reckless disregard to the right of Plaintiff HECKER

10 and other inmates similarly situated to be free from discrimination based on

11 disability. 12 47. Plaintiff HECKER is entitled to declaratory relief, injunctive relief, and

13 attorneys' fees and costs.

14

SECOND CAUSE OF ACTION

Disability-Based Discrimination in Violation of

15

Section 504 of the Rehabilitation Act of 1973

Against All Defendants

16

48. Plaintiff HECKER incorporates by reference as though fully set forth

17 .
herein paragraphs 1 through 47 of this Complaint.

18

49. Section 504 of the Rehabilitation Act states that "[n]o otherwise qualified

19 ' individual with a disability ... shall, solely by reason of her or his disability, be

20 excluded from the participation in, be denied the benefits of, or be subjected to

21 discrimination under any program or activity receiving Federal financial

22 assistance." 29 U.S.C. § 794(a). Nearly 30 years ago, recipients of federal

23 financial assistance were required to complete a self-evaluation of their programs

24 and activities, and make necessary changes to ensure that such programs and

25 activities were accessible to and usable by persons with disabilities. See, e.g., 28

26 C.F.R. § 42.521; 45 C.F.R. § 84.22.

27

50. As detailed herein, the Defendants have violated Section 504 and its

28
Page 13 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 14 of 15

1 regulations by unnecessarily segregating and discriminating against inmates with

2 psychiatric disabilities, including Plaintiff HECKER, and by excluding such

3 inmates from a broad range of basic vocational, educational, employment,

4 recreational, and other programs. The Defendants have failed to complete and

5 implement an adequate self-evaluation plan with respect to inmates with

6 psychiatric disabilities.

7

51. Defendants' unlawful actions were and continue to be intentional, willful,

8 malicious, and/or done with reckless disregard to the right of Plaintiff HECKER

9 and other inmates similarly situated to be free from discrimination based on

10 disability.

11 52. Plaintiff HECKER is entitled to declaratory relief, injunctive relief, and

12 attorneys' fees and costs.

13

DECLARATORY RELIEF ALLEGATIONS

14 53. Plaintiff HECKER incorporates by reference the allegations in paragraphs

15 1 through 52, as though fully set forth herein.

16 54. A present and actual controversy exists between Plaintiff HECKER and

17 Defendants concerning their rights and respective duties. Plaintiff HECKER

18 contends that the Defendants have violated and continue to violate his rights, and

19 the rights of other inmates similarly situated, under the ADA, Section 504, and

20 Section 11135 of the California Government Code. Plaintiff is informed and

21 believes, and thereon alleges, that the Defendants deny these allegations.

22 Declaratory relief is therefore necessary and appropriate.

23

55. Plaintiff HECKER seeks a judicial declaration of the rights and duties of

24 the respective parties.

25 .

INJUNCTIVE RELIEF ALLEGATIONS

26

56. Plaintiff HECKER incorporates by reference the allegations in paragraphs

27 1 through 55, as though fully set forth herein.

28
Page 14 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 1 Filed 12/01/05 Page 15 of 15

1

57.No plain adequate, or complete remedy at law is available to Plaintiff

2 HECKER to redress the wrongs alleged herein.

3

58.Ifthe court does not grant the injunctive relief sought herein, Plaintiff

4 HECKER will be irreparably harmed.

5

PRAYER FOR RELIEF

6

I. For an order enjoining the Defendants from engaging in the unlawful

7 discrimination complained ofherein;

8

2. For an order granting such other injunctive relief as may be appropriate;

9

3. For declaratory relief;

10

4. For reasonable attorneys' fees and costs of suit, including expert fees,

11 pursuant to 42 U.S.C. § 12205,29 US.C § 26 17(a)(3), Cal. Civil Code §§ 52(a),

12 54.3(a), 55, Cal. Code ofCiv. Proc. § 1021.5, and other laws;

13

5. For such other and further relief as the Court deems just and proper.

14
Dated: December 1, 2005
15

16

17
CLAUDIA CENTER
18

19

20

21

22

23

24

25

26

27

28
Page 15 CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:05-cv-02441-LKK-JFM Document 12 Filed 02/23/06 Page 1 of 19

1 Claudia Center, State Bar No. 158255 Lewis Bossing, State Bar No. 227492
2 THE LEGAL AID SOCIETY-EMPLOYMENT LAW CENTER 600 Harrison St., Suite 120
3 San Francisco, CA 94107 Telephone: (415) 864-8848
4 Facsimile: (415) 864-8199

5 Michael W. Bien, State Bar No. 96891 Thomas B. Nolan, State Bar No. 169692
6 Meghan Lang, State Bar No. 221156 ROSEN BIEN & ASARO, LLP
7 155 Montgomery Street, 8th Floor San Francisco, CA 94104
8 Telephone: (415) 433-6830 Facsimile: (415) 433-7104
9
Attorneys for Plaintiffs
10

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13 ROBERT HECKER and

) Case No. 2:05-cv-02441-LKK-GGH

CHRISTOPHER LEE JENKINS,
14

) ) FIRST AMENDED CLASS ACTION

Plaintiffs, on behalf of themselves ) COMPLAINT FOR DECLARATORY AND

15 and all others similarly situated,

) INJUNCTIVE RELIEF

)

16

v.

) [Civil Rights – Disability

) Discrimination]

17 CALIFORNIA DEPARTMENT OF )

CORRECTIONS AND

)

18 REHABILITATION, ARNOLD

)

SCHWARZENEGGER, Governor of )

19 the State of California, in his official )

capacity, RODERICK Q. HICKMAN, )

20 Secretary of the California Department )

of Corrections and Rehabilitation, in his )

21 official capacity, JEANNE S.

)

WOODFORD, Undersecretary of the )

22 California Department of Corrections )

and Rehabilitation, in her official

)

23 capacity, JOHN DOVEY, Director, )

Division of Adult Institutions, in his )

24 official capacity, MARTIN VEAL, )

Warden of the California Medical

)

25 Facility, in his official capacity, and )

ANTHONY KANE, Warden of the )

26 Correctional Training Facility, in his )

official capacity,

)

27

)

Defendants.

)

28

Page 1

FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 12 Filed 02/23/06 Page 2 of 19

1

2

Plaintiffs ROBERT HECKER and CHRISTOPHER LEE JENKINS allege

3 as follows:

4

INTRODUCTION

5

1. This is an action for relief from Defendants’ violation of Plaintiffs’ civil

6 rights under the Rehabilitation Act of 1973, the Americans with Disabilities Act of

7 1990, and California Government Code section 11135.

8

2. Plaintiff ROBERT HECKER (“HECKER”) is an individual with a

9 psychiatric disability, and an inmate incarcerated at the California Medical Facility

10 (“CMF”).

11

3. Plaintiff CHRISTOPHER LEE JENKINS (“JENKINS”) is an individual

12 with a psychiatric disability, and an inmate incarcerated at the Correctional

13 Training Facility (“CTF”). Plaintiff JENKINS was formerly incarcerated at CMF

14 and at the California Men’s Colony (CMC).

15

4. The Defendants CALIFORNIA DEPARTMENT OF CORRECTIONS

16 AND REHABILITATION (“CDCR”), GOVERNOR ARNOLD

17 SCHWARZENEGGER (“SCHWARZENEGGER”), RODERICK Q. HICKMAN

18 (“HICKMAN”), JEANNE S. WOODFORD (“WOODFORD”), JOHN DOVEY

19 (“DOVEY”), MARTIN VEAL (“VEAL”), and ANTHONY KANE (“KANE”),

20 and each of them, have denied Plaintiffs HECKER and JENKINS access to basic

21 CDCR programs, services, and activities on the basis of their disabilities.

22

5. Plaintiffs seek declaratory and injunctive relief, and reasonable attorneys’

23 fees and costs, for defendants’ violations of their rights.

24

JURISDICTION AND VENUE

25

6. This Court has jurisdiction over the subject matter and the parties pursuant

26 to 28 U.S.C. §§ 1331, 2201, and 2202. Plaintiffs bring this suit under Title II of

27 the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, and

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1 Section 504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §

2 794.

3

7. Venue is proper in the Eastern District of California pursuant to 28 U.S.C. §

4 1391(b), because events giving rise to Plaintiffs’ claims occurred in this District.

5

PARTIES

6

8. Plaintiff HECKER is a person with a disability within the meaning of all

7 applicable statutes, and is a qualified person with a disability within the meaning of

8 Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff

9 HECKER is a resident of California, and an inmate incarcerated at CMF.

10

9. Plaintiff JENKINS is a person with a disability within the meaning of all

11 applicable statutes, and is a qualified person with a disability within the meaning of

12 Title II of the ADA and Section 504 of the Rehabilitation Act of 1973. Plaintiff

13 JENKINS is a resident of California, and an inmate incarcerated at CTF. Plaintiff

14 JENKINS was formerly incarcerated at CMF and CMC.

15

10.Defendant CDCR administers and operates the California prison system,

16 including CMF and CTF, and is legally responsible for ensuring compliance with

17 state and federal disability nondiscrimination laws at all California correctional

18 facilities, including CMF and CTF. Defendant CDCR is a public entity within the

19 meaning of Title II of the ADA. Defendant CDCR receives federal financial

20 assistance and is covered by the Rehabilitation Act.

21

11.Defendant SCHWARZENEGGER is the Governor of the State of

22 California, and oversees all state agencies, including the CDCR. Defendant

23 SCHWARZENEGGER is legally responsible for ensuring compliance with state

24 and federal disability nondiscrimination laws at all state facilities, including state

25 correctional facilities. Defendant SCHWARZENEGGER is legally responsible for

26 the unlawful policies, practices, and procedures challenged herein, and has the 27 authority and legal obligation to eliminate disability discrimination by abolishing

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1 these policies, practices, and procedures. Defendant SCHWARZENEGGER is

2 sued in his official capacity.

3

12.Defendant HICKMAN is the Secretary of the CDCR, and is legally

4 responsible for ensuring compliance with state and federal disability

5 nondiscrimination laws at all correctional facilities, including CMF and CTF.

6 Defendant HICKMAN is legally responsible for the unlawful policies, practices,

7 and procedures challenged herein, and has the authority and legal obligation to

8 eliminate disability discrimination by abolishing these policies, practices, and

9 procedures. Defendant HICKMAN is sued in his official capacity.

10

13. Defendant WOODFORD is the Undersecretary of the CDCR, and is

11 legally responsible for ensuring compliance with state and federal disability 12 nondiscrimination laws at all correctional facilities, including CMF and CTF. 13 Defendant WOODFORD is responsible for the unlawful policies, practices, and 14 procedures challenged herein, and has the authority and legal obligation to 15 eliminate disability discrimination by abolishing these policies, practices, and 16 procedures. Defendant WOODFORD is sued in her official capacity. 17 14. Defendant DOVEY is the Director of the Division of Adult Institutions, 18 and is legally responsible for ensuring compliance with state and federal disability 19 nondiscrimination laws at all adult correctional facilities, including CMF and CTF. 20 Defendant DOVEY is responsible for the unlawful policies, practices, and 21 procedures challenged herein, and has the authority and legal obligation to 22 eliminate disability discrimination by abolishing these policies, practices, and 23 procedures. Defendant DOVEY is sued in his official capacity. 24 15. Defendant VEAL is the Warden of CMF. He is responsible for the 25 administration of programs, services, and activities offered to inmates at the CMF, 26 and is in charge of supervision and discipline of all correctional officials and 27 employees at CMF. Defendant VEAL is sued in his official capacity.

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1

16. Defendant KANE is the Warden of CTF. He is responsible for the

2 administration of programs, services, and activities offered to inmates at the CTF,

3 and is in charge of supervision and discipline of all correctional officials and

4 employees at CTF. Defendant KANE is sued in his official capacity.

5

STATEMENT OF FACTS

6

17. Plaintiff HECKER is an inmate incarcerated at the CMF. He is assigned to

7 a program for inmates with psychiatric disabilities called the Enhanced Outpatient

8 Program (“EOP”), which is a part of the CDCR’s Mental Health Service Delivery

9 System (“MHSDS”). Plaintiff HECKER has experienced, and continues to 10 experience, the unlawful actions and inactions alleged herein.

11 18. Plaintiff JENKINS is an inmate incarcerated at the CTF. He was formerly

12 incarcerated at the CMF and the CMC. While he was at the CMF and the CMC, he

13 was assigned to the EOP. He is currently assigned to a program for inmates with

14 psychiatric disabilities called the Correctional Clinical Case Management System

15 (“CCCMS”), which is also part of the MHSDS. Plaintiff JENKINS has

16 experienced, and continues to experience, the unlawful actions and inactions

17 alleged herein.

18 19. The Defendants CDCR, SCHWARZENEGGER, HICKMAN,

19 WOODFORD, DOVEY, VEAL, and KANE, and each of them, have adopted,

20 implemented, ratified, and/or failed to abolish numerous unnecessary and

21 discriminatory policies, practices, and procedures affecting the inmates

22 participating in the MHSDS. These systemic policies, practices and procedures bar

23 and function to bar Plaintiffs HECKER and JENKINS and other similarly situated

24 MHSDS participants from basic educational, vocational, employment, and

25 recreational programs that are provided to other, nondisabled inmates. For

26 example:

27

(a) While inmates assigned to the EOP at CMF are required to

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1 participate in ten hours of mental health programming such as support groups, the

2 remaining hours of their weeks – 30 to 40 hours each week – are unscheduled and

3 available for participation in the broad range of educational, vocational,

4 employment, and recreational programs available to the non-disabled, non-EOP

5 population. Nevertheless, by express policy and without basis, inmates in the EOP

6 are deemed to be “booked” from 8:00 a.m. to 4:00 p.m. Monday through Friday,

7 and are entirely precluded from participating in any non-EOP prison programs,

8 including vocational, employment, and educational programs, during those times. 9 See, e.g., December 30, 2002 Memorandum from L.H. Dizmang, M.D., Chief 10 Psychiatrist, California Medical Facility.

11

(b) Further, it is the express policy of the CTF that “[i]nmates in the

12 Mental Health Services Delivery System (MHSDS) at any level of care” are

13 ineligible for placement to CTF – South, and that “participants in the MHSDS at

14 the levels of EOP or CCCMS or on psychotropic medications” are ineligible for

15 placement to CTF – East Dorm. As a result, persons with psychiatric disabilities

16 are excluded from the parole programming and work crew opportunities available

17 at CTF – South, and from the Prison Industry Authority (PIA) jobs available at 18 CTF – East Dorm. See Correctional Training Facility Operation Procedure #20

19 (Feb. 28, 2005).

20

(c) Additional systemwide policies, practices, and procedures

21 similarly function to discriminate against inmates with severe psychiatric

22 disabilities, exclude them from programs, services, and activities, and segregate

23 them unnecessarily.

24 20. As a result of the unnecessary and discriminatory systemic policies,

25 practices, and procedures challenged herein, and on the basis of disability,

26 Plaintiffs HECKER and JENKINS and others similarly situated have been denied 27 equal access to a broad range of prison programs, services, and activities for which

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1 they are qualified, and have been subjected to unlawful segregation. These denials

2 include, but are not limited to, the following:

3

(a) disability-based denial of access to educational opportunities,

4

including the electronics program, computer classes, the Art in

5

Corrections program, and other school programs;

6

(b) disability-based denial of access to employment and vocational

7

opportunities, including PIA jobs;

8

(c) disability-based denial of access to recreational programs and

9

facilities;

10

(d) disability-based denial of access to religious programs, including

11

church services and bible study; and

12

(e) disability-based denial of access to other programs, services, and

13

activities.

14 21. These systemic denials and exclusions are unnecessary, discriminatory, and

15 unlawful. The exclusion of MHSDS inmates from programs and services cause

16 them to lose benefits attendant to work, education, and vocational activities.

17 Further, the inmates in the MHSDS are excluded and segregated despite the fact

18 that participation in educational, vocational, employment, and recreational

19 programs is therapeutic for persons with serious psychiatric disabilities, and

20 promotes mental health and wellness. By contrast, exclusion and segregation,

21 particularly from educational, vocational, and employment opportunities,

22 undermines mental health, wellness, and rehabilitation. The Defendants’ actions 23 and inactions function to aggravate and worsen the mental health status of 24 Plaintiffs HECKER and JENKINS and the other, similarly situated MHSDS 25 inmates.

26

27

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1

ADMINISTRATIVE EXHAUSTION

2

Plaintiff HECKER

3

22. Plaintiff HECKER has repeatedly attempted to appeal the issues raised in

4 this lawsuit. However, his appeals have been repeatedly screened out by the CMF

5 Appeals Office, in violation of the CDC policies and procedures as set forth in

6 California Code of Regulations, Title 15.

7

23. On December 28, 2004, Plaintiff HECKER filed a timely 1824 appeal

8 challenging the policies, practices, and procedures complained of herein, and

9 requesting that “the Electronics program be made available to me” and seeking 10 “modifications to CDC policies, practices, and procedures to avoid discrimination

11 on the basis of disability[.]” Plaintiff HECKER noted that he was “being forced to 12 choose between an EOP level of care that I require to maintain mental health, and a 13 vocation that would further and enhance improvements in my mental health[.]” 14 24. On December 29, 2004, Plaintiff HECKER’s appeal was screened out, 15 purportedly because the “[a]ppeal cannot be understood” and because the “wording 16 is too small.” 17 25. On January 3, 2005, Plaintiff HECKER resubmitted a timely 1824 appeal; 18 this time typed so that it could not be rejected as “too small.” Plaintiff HECKER 19 sought “access to the Electronics Program” and “[m]odification to CDC policies, 20 practices or procedures to avoid discrimination by denial of access to Electronics 21 Program on the basis of my disability[.]” 22 26. On January 5, 2005, Plaintiff HECKER’s appeal was again summarily 23 screened out, purportedly because his appeal was a “duplicate issue.” By 24 “duplicate issue,” the appeals coordinator was referencing a group appeal filed by 25 plaintiff JENKINS, on January 29, 2003. The issues complained of by Plaintiff 26 HECKER were ongoing and had not been resolved by Plaintiff JENKINS’ appeal. 27 Further, under governing procedures, only Plaintiff JENKINS could appeal the

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1 January 2003 group appeal.

2

27. On August 5, 2005, Plaintiff HECKER filed a timely 1824 appeal

3 challenging the policies, practices and procedures complained of herein, and

4 seeking “[m]eaningful and nondiscriminatory access to all prison programs[,]”

5 “including the Electronics Program, the Arts in Corrections Program, computer

6 classes, and bible study.” In his August 5, 2005 appeal, Plaintiff HECKER

7 explicitly noted that he was challenging “an ongoing problem and . . . an ongoing

8 need for the reasonable accommodation and modification requested herein,” and

9 that his appeal should not be barred as a “duplicate issue.” 10 28. On August 8, 2005, Plaintiff HECKER’s appeal was summarily screened

11 out, purportedly as a “duplicate issue.” 12 29. On August 15, 2005, Plaintiff HECKER sought Second Level review of the 13 screened-out appeal. 14 30. On August 19, 2005, Plaintiff HECKER’s request for Second Level review 15 was denied. 16 31. On August 23, 2005, Plaintiff HECKER sought Director’s Level review of 17 the screened-out appeal from the Inmate Appeals Branch. 18 32. On October 22, 2005, the Inmate Appeals Branch returned Plaintiff 19 HECKER’s documents to him, purportedly because the appeal was “rejected, 20 withdrawn or cancelled.” 21 33. Because Defendants have repeatedly screened out Plaintiff HECKER’s 22 administrative appeals, the grievance procedure has been rendered unavailable to 23 him, and the defendants cannot now claim that Plaintiff HECKER has failed to 24 exhaust his administrative remedies. See Hall v. Alameida, No. S-03-1595 DFL 25 KJM P, 2005 WL 2030728, at *3 (E.D. Cal. Aug. 23, 2005). Plaintiff HECKER 26 has been repeatedly and “reliably informed by an administrator that no remedies 27 are available” to him. See Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005).

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1

34. It is the policy of the CDCR not to accept appeals that have been screened

2 out as a “duplicate issue.” Accordingly, Plaintiff HECKER’s efforts to appeal his

3 “screened out” 1824 to the Second Level and to the Third Level (Director’s Level)

4 have been unavailing. At no time has the CDCR or its agents attempted to

5 consider, much less resolve, Plaintiff HECKER’s complaints. It would be futile

6 for Plaintiff HECKER to attempt to further avail himself of the internal CDCR

7 appeals process.

8

Plaintiff JENKINS

9

35. Plaintiff JENKINS has also repeatedly attempted to appeal the issues raised

10 in this lawsuit. His appeals regarding the exclusion of inmates with psychiatric

11 disabilities from work and education programs have been repeatedly denied and/or 12 screened out by CDCR officials. 13 36. On January 29, 2003, while at CMF, Plaintiff JENKINS filed a timely 1824 14 appeal challenging the policies, practices, and procedures complained of herein, 15 stating that “EOP inmates at CMF are being denied equal access to work and 16 educational opportunities available to other inmates at CMF. This denial has taken 17 place solely as a consequence of the fact that these inmates are disabled.” The 18 appeal seeks to have “full and equal access to work and educational programs at 19 CMF restored to EOP inmates.” 20 37. On March 6, 2003, Plaintiff JENKINS’ appeal was denied at the first level 21 of review. 22 38. On March 19, 2003, Plaintiff JENKINS appealed his issues to the second 23 level of review, expressly protesting the CDCR’s exclusion of CMF EOP inmates 24 from programs and services including religious services, Arts and Corrections, 25 library, telephone, and work and education programs between the hours of 8:00 26 a.m. to 4:00 p.m. Monday-Friday. 27 39. On April 10, 2003, Plaintiff JENKINS’ appeal was denied at the second

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1 level of review.

2

40. On April 27, 2003, Plaintiff JENKINS sought a Director’s Level review of

3 his 1824 appeal, and provided a copy of the Director’s Level appeal to the CDCR.

4 Plaintiff JENKINS mailed the original Director’s Level appeal form to the CDCR

5 on May 25, 2003. On June 3, 2003, the CDCR returned the copy of the appeal to

6 Plaintiff JENKINS, purportedly because “[o]nly the original appeal form is

7 accepted at the Director’s Level of Review.”

8

41. On June 16, 2003, the CDCR returned the original form to Plaintiff because

9 “[a]n appellant must submit the appeal within 15 working days of the event or 10 decision being appealed, or of receiving a lower level decision.” By these actions,

11 the CDCR screened out Plaintiff JENKINS’ administrative appeal, rendering the 12 grievance procedure unavailable to him. See Hall v. Alameida, supra. 13 42. On October 6, 2004, while at CMC, Plaintiff JENKINS filed a 602 appeal 14 regarding the discriminatory denial of access to a work assignment in a clerical 15 position for which he was qualified because of his participation to the EOP 16 program. According to prison officials, “[b]ased on [Plaintiff] JENKINS’ 17 assessment as an EOP inmate, he is incapable of performing the tasks assigned to 18 him in this assignment.” See “General Chrono: Request for Unassignment” (Aug. 19 16, 2004). 20 43. On November 26, 2004, Plaintiff JENKINS’ appeal was partially granted at 21 the First Level of review, because he was given copies of the paperwork relevant to 22 the denial, but he was not considered for the clerk’s position he was seeking. 23 44. On December 30, 2004, Plaintiff JENKINS requested Second Level review 24 of his appeal. His appeal was partially granted on February 2, 2005, but he was 25 still not considered for the clerk’s position he was seeking. Instead of being 26 considered for the paid clerical position he sought, he had been assigned to a non27 paid position as a yard crew worker.

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1

45. On February 16, 2005, Plaintiff JENKINS requested Director’s Level

2 review of his appeal.

3

46. On May 18, 2005, Plaintiff JENKINS’ appeal was denied at the Director’s

4 Level. Although the CDCR acknowledged that “the basis for the appellant’s

5 removal was inappropriate in that his Mental Health issue should not have been the

6 factor in the removal of the appellant from his clerical position,” Plaintiff was still

7 not considered for the clerical position in question, nor awarded any pay he could

8 have received had he been permitted to work.

9

47. Now at CTF, Plaintiff JENKINS is continuing to experience exclusion

10 from core vocational and other programs on the basis of his psychiatric disability.

11 For example, he has been excluded from the parole programming and work crew 12 opportunities available at CTF – South because he is CCCMS. 13 48. On January 19, 2006, Plaintiff JENKINS filed an 1824 appeal challenging 14 the systemwide policies, practices, and procedures addressed herein, and 15 specifically the CDCR’s denial of access to “outside work crews, fire camp, 16 substance abuse program (SATF), etc. . . . because I am CCCMS[.]” Plaintiff 17 JENKINS will complete his appeal of these issues through the Director’s Level 18 within the next few weeks. 19 49. In view of the multiple institutional transfers he has experienced, in 20 addition to transfers from the EOP to the CCCMS to general population (GP) and 21 back, as well as the ongoing discrimination currently being experienced at CTF, 22 Plaintiff JENKINS’ claims regarding the systemic exclusion of EOP and CCCMS 23 inmates from work and education programs present a live controversy “capable of 24 repetition, yet evading review.” Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 25 594 n.6 (1999) (citing Vitek v. Jones, 445 U.S. 480, 486-87 (1980)). Indeed, there 26 is a significant probability that Plaintiff JENKINS will be transferred again, and 27 will continue to experience discrimination on the basis of his psychiatric disability

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1 in the EOP or in the CCCMS – either at CMF, CMC, or another CDCR institution.

2

Additional Allegations Regarding Administrative Exhaustion

3

50. By providing prison officials with timely grievances describing the

4 problems alleged herein, Plaintiffs HECKER and JENKINS have satisfied the 5 exhaustion requirement. See Holcomb v. High Desert State Prison, No.

6 CIVS022417LKK KJM P, 2005 WL 2089849, at *2 (E.D. Cal. Aug. 30, 2005) 7 (citing Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005)). Plaintiffs

8 HECKER’s and JENKINS’ appeals placed the defendant prison officials on notice 9 of the issues raised in this lawsuit. See Massie v. Early, No. 1:00CV5248OWW 10 LJO P, 2005 WL 2105304, at *3 (E.D. Cal. Aug. 31, 2005).

11 51. Prior efforts by other inmates to challenge the MHSDS and EOP policies at

12 issue herein using the internal grievance procedures have similarly placed the

13 defendant prison officials on notice, and have been similarly fruitless:

14

(a) Inmate Peter Taylor, Inmate No. T-19666, filed a 602 appeal on

15

December 17, 2002, requesting that EOP inmates “not be

16

discriminated against because of EOP mental health disabilities” and

17

seeking to “reverse the [extreme] bias and discrimination toward all

18

EOP inmates with mental illness … by not allowing … off wing

19

authorized access during the hours of 8:00 a.m. – 4:00 p.m.” This

20

appeal was denied at the First and Second Levels in February 2003,

21

and at the Director’s Level on May 15, 2003.

22

(b) Inmate David W. Wilson, Inmate No. K-66474, has filed 602 appeals

23

in 2004 and 2005 regarding the policies that exclude EOP inmates

24

from prison programs available to non-EOP inmates. These 602

25

appeals were repeatedly screened out. In fact, on March 15, 2005,

26

inmate Wilson received from the appeals office all of his

27

documentation with the notation “REJECTED – DO NOT

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1

RESUBMIT.”

2

52. The CDCR and its agents have had repeated and ample notice of the issues

3 raised by this lawsuit, and have had many opportunities over several years to

4 consider these issues through the administrative process. There can be no dispute

5 that further administrative efforts would be futile, and that judicial consideration is

6 appropriate.

7

CLASS ACTION ALLEGATIONS

8

53. Plaintiffs HECKER and JENKINS brings this action on behalf of

9 themselves and on behalf of a class of all those similarly situated pursuant to Rule 10 23(a) and (b)(2) of the Federal Rules of Civil Procedure.

11 54. Plaintiffs HECKER and JENKINS seek to represent a class of all present 12 and future California inmates of the CDCR with psychiatric conditions that are 13 disabilities as defined by the ADA and the Rehabilitation Act who are excluded 14 and/or screened out from any prison program, service, or activity on the basis of 15 their assignment to or participation in the MHSDS program, including the EOP and 16 the CCCMS. 17 55. The class is so numerous that joinder of all members is impractical. There 18 are thousands of present and future inmates assigned to MHSDS programs 19 throughout California who are subject to the systemic policies, practices, and 20 procedures complained of herein. Moreover, putative class members are not 21 capable of being identified at this time, as the proposed class includes future 22 inmates assigned to the MHSDS, the EOP, and the CCCMS. The class is 23 constantly in flux, with inmates being paroled and new inmates being incarcerated. 24 56. Common questions of law and fact predominate, and include whether 25 inmates assigned to the MHSDS are being excluded and/or screened out from any 26 prison program, service, or activity on the basis of disability. 27 57. The claims of Plaintiffs HECKER and JENKINS are typical of the claims

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1 of the other putative class members. Plaintiffs HECKER and JENKINS have been

2 unnecessarily excluded from core CDCR educational, vocational, and employment

3 activities and programs on the basis of their assignment to the MHSDS and the

4 EOP or the CCCMS. This is the same injury that members of the proposed class

5 have suffered, are suffering and, unless this Court grants relief, will continue to

6 suffer. Plaintiffs HECKER and JENKINS are members of the proposed class in

7 that they are current CDCR inmates assigned to the MHSDS who have been

8 subjected to disability-based discrimination.

9

58. Plaintiffs HECKER and JENKINS will fairly and adequately represent and

10 protect the interests of the class. Plaintiffs HECKER and JENKINS intend to

11 prosecute this action rigorously in order to secure remedies for the entire class.

12 Counsel of record for Plaintiffs HECKER and JENKINS are experienced in state

13 and federal civil rights litigation and class actions, including systemic litigation

14 challenging prison conditions and disability discrimination.

15 59. Defendants have acted or refused to act on grounds generally applicable to

16 the class, thereby making appropriate final declaratory and injunctive relief with 17 respect to the class as a whole under Federal Rule of Civil Procedure 23(b)(2).

18

FIRST CAUSE OF ACTION

Disability-Based Discrimination in Violation of

19

Title II of the Americans with Disabilities Act of 1990

Against All Defendants

20 60. Plaintiffs HECKER and JENKINS incorporate by reference as though fully

21 set forth herein paragraphs 1 through 59 of this Complaint.

22 61. Title II of the ADA provides that “no qualified individual with a disability

23 shall, by reason of such disability, be excluded from participation in or be denied

24 the benefits of the services, programs, or activities of a public entity, or be

25 subjected to discrimination by any such entity.” 42 U.S.C. § 12132. By no later

26 than July 26, 1992, public entities were required to complete an evaluation of its

27 services, policies, and practices, and the effects thereof on persons with disabilities,

28

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1 and to make any modifications necessary to ensure that the requirements of Title II

2 are met. 28 C.F.R. § 35.105.

3

62. In providing any aid, benefit or service, a public entity “may not . . . [d]eny

4 a qualified individual with a disability the opportunity to participate in or benefit

5 from the aid, benefit or service,” “[a]fford a qualified individual with a disability

6 an opportunity to participate in or benefit from the aid, benefit, or service that is

7 not equal to that afforded others,” “[p]rovide a qualified individual with a

8 disability with an aid, benefit, or service that is not as effective in affording equal

9 opportunity . . . as those provided to others,” or “[o]therwise limit a qualified 10 individual with a disability in the enjoyment of any right, privilege, advantage, or

11 opportunity enjoyed by others[.]” 28 C.F.R. § 35.130(b)(1)(i), (ii), (iii), (vi). A 12 public entity may not “[d]eny a qualified individual with a disability the 13 opportunity to participate as a member of planning or advisory boards.” 28 C.F.R. 14 § 35.130(b)(1)(vi). 15 63. Further, “[a] public entity may not . . . utilize criteria or methods of 16 administration . . . [t]hat have the effect of subjecting qualified individuals with 17 disabilities to discrimination on the basis of disability[.]” 28 C.F.R. 18 § 35.130(b)(3)(i). Nor may a public entity “impose or apply eligibility criteria that 19 screen out or tend to screen out an individual with a disability or any class of 20 individuals with disabilities from fully and equally enjoying any service, program, 21 or activity, unless such criteria can be shown to be necessary[.]” 28 C.F.R. 22 § 35.130(b)(8). Finally, “[a] public entity shall administer services, programs, and 23 activities in the most integrated setting appropriate to the needs of qualified 24 individuals with disabilities.” 28 C.F.R. § 35.130(d). 25 64. Defendants have violated the ADA and its regulations by, inter alia: (a) 26 denying Plaintiffs HECKER and JENKINS and other inmates similarly situated the 27 opportunities and benefits of the programs, services, and activities offered by the

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1 Defendants to other, nondisabled inmates; (b) denying Plaintiffs HECKER and

2 JENKINS and other inmates similarly situated equal and/or equally effective

3 access to vocational, educational, employment, recreational, and other

4 opportunities on the basis of disability; (c) utilizing systemic policies and practices

5 that have a disparate impact on, and which screen out or tend to screen out, inmates

6 with psychiatric disabilities, including Plaintiffs HECKER and JENKINS; (d)

7 utilizing methods of administration that have the effect of discriminating against

8 inmates with psychiatric disabilities, including Plaintiffs HECKER and JENKINS;

9 (f) failing to complete and implement an adequate self-evaluation plan with respect

10 to inmates with psychiatric disabilities; (g) failing to take prompt and equitable

11 steps to remedy their discriminatory conduct; and (h) by otherwise segregating,

12 excluding, and discriminating against inmates with psychiatric disabilities,

13 including Plaintiffs HECKER and JENKINS.

14 65. Defendants’ unlawful actions were and continue to be intentional, willful,

15 malicious, and/or done with reckless disregard to the right of Plaintiffs HECKER

16 and JENKINS and other inmates similarly situated to be free from discrimination 17 based on disability. 18 66. Plaintiffs HECKER and JENKINS are entitled to declaratory relief, 19 injunctive relief, and attorneys’ fees and costs.

20

SECOND CAUSE OF ACTION

Disability-Based Discrimination in Violation of

21

Section 504 of the Rehabilitation Act of 1973

Against All Defendants

22 67. Plaintiffs HECKER and JENKINS incorporate by reference as though fully

23 set forth herein paragraphs 1 through 66 of this Complaint.

24 68. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified

25 individual with a disability . . . shall, solely by reason of her or his disability, be

26 excluded from the participation in, be denied the benefits of, or be subjected to

27 discrimination under any program or activity receiving Federal financial

28

Page 17
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 12 Filed 02/23/06 Page 18 of 19

1 assistance.” 29 U.S.C. § 794(a). Nearly 30 years ago, recipients of federal

2 financial assistance were required to complete a self-evaluation of their programs

3 and activities, and make necessary changes to ensure that such programs and 4 activities were accessible to and usable by persons with disabilities. See, e.g., 28

5 C.F.R. § 42.521; 45 C.F.R. § 84.22.

6

69. As detailed herein, the Defendants have violated Section 504 and its

7 regulations by unnecessarily segregating and discriminating against inmates with

8 psychiatric disabilities, including Plaintiffs HECKER and JENKINS, and by

9 systemically excluding such inmates from a broad range of basic vocational, 10 educational, employment, recreational, and other programs. The Defendants have

11 failed to complete and implement an adequate self-evaluation plan with respect to

12 inmates with psychiatric disabilities.

13 70. Defendants’ unlawful actions were and continue to be intentional, willful,

14 malicious, and/or done with reckless disregard to the right of Plaintiffs HECKER

15 and JENKINS and other inmates similarly situated to be free from discrimination

16 based on disability.

17 71. Plaintiffs HECKER and JENKINS are entitled to declaratory relief,

18 injunctive relief, and attorneys’ fees and costs.

19

DECLARATORY RELIEF ALLEGATIONS

20 72. Plaintiffs HECKER and JENKINS incorporate by reference the allegations

21 in paragraphs 1 through 71, as though fully set forth herein.

22 73. A present and actual controversy exists between Plaintiffs HECKER and

23 JENKINS and Defendants concerning their rights and respective duties. Plaintiffs

24 HECKER and JENKINS contend that the Defendants have violated and continue

25 to violate their rights, and the rights of other inmates similarly situated, under the

26 ADA, Section 504, and Section 11135 of the California Government Code. 27 Plaintiffs are informed and believe, and thereon allege, that the Defendants deny

28
Page 18
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 2:05-cv-02441-LKK-JFM Document 12 Filed 02/23/06 Page 19 of 19

1 these allegations. Declaratory relief is therefore necessary and appropriate.

2

74. Plaintiffs HECKER and JENKINS seeks a judicial declaration of the rights

3 and duties of the respective parties.

4

INJUNCTIVE RELIEF ALLEGATIONS

5

75. Plaintiffs HECKER and JENKINS incorporate by reference the allegations

6 in paragraphs 1 through 74, as though fully set forth herein.

7

76. No plain adequate, or complete remedy at law is available to Plaintiffs

8 HECKER and JENKINS to redress the wrongs alleged herein.

9

77. If the court does not grant the injunctive relief sought herein, Plaintiffs

10 HECKER and JENKINS will be irreparably harmed.

11

PRAYER FOR RELIEF

12

1. For an order enjoining the Defendants from engaging in the unlawful

13 discrimination complained of herein;

14

2. For an order granting such other injunctive relief as may be appropriate;

15

3. For declaratory relief;

16

4. For reasonable attorneys’ fees and costs of suit, including expert fees,

17 pursuant to 42 U.S.C. § 12205, 29 U.S.C § 2617(a)(3), Cal. Civ. Code §§ 52(a),

18 54.3(a), 55, Cal. Civ. Proc. Code § 1021.5, and other laws; and

19

5. For such other and further relief as the Court deems just and proper.

20
Dated: February 23, 2006
21

22

By: /s/Claudia Center

23

CLAUDIA CENTER

24

25

26

27

28
Page 19
FIRST AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:05-cv-02441-LKK-JFM Document 14 Filed 05/02/06 Page 1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 RALPH COLEMAN,et al.,

12

Plaintiffs,

13

v.

CIV. NO. S-90-0520 LKK JFM P

14 ARNOLD SCHWARZENEGGER, et al.,

15

Defendants.

16

/

17 MITCHELL J. KLEMASKE,

18

Plaintiff,

19

v.

CIV. NO. S-04-1750 FCD KJM P

20 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
21 et al.,

22

Defendants.

23

/

24 /////

25 /////

26 /////

1

Case 2:05-cv-02441-LKK-JFM Document 14 Filed 05/02/06 Page 2 of 3

1 DAVID WILSON,

2

Plaintiff,

3

v.

CIV No. S-05-0876 LKK GGH P

4 JEANNE WOODFORD, et al.,

5

Defendants.

6

/

7 ROBERT HECKER,

8

Plaintiffs,

9

v.

CIV No. S-05-2441 LKK GGH P

10 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
11 et al.,

12

Defendants.

13

/

14

Examination of the above-entitled actions reveals that

15 the four (4) actions are related within the meaning of Local Rule

16 83-123(a) (E.D. Cal. 1997). The actions involve the same parties,

17 and are based on the same or similar claims, the same property,

18 transaction or event, and similar questions of fact and law.

19

Accordingly, the assignment of the matters to the same judge

20 and magistrate judge is likely to effect a substantial savings of

21 judicial effort and is also likely to be convenient for the

22 parties.

23

The parties should be aware that relating the cases under

24 Local Rule 83-123 merely has the result that the four (4) actions

25 are assigned to the same judge and magistrate judge; no

26 consolidation of the actions is effected. Under the regular

2

Case 2:05-cv-02441-LKK-JFM Document 14 Filed 05/02/06 Page 3 of 3

1 practice of this court, related cases are generally assigned to the

2 judge and magistrate judge to whom the first filed action was

3 assigned.

4

IT IS THEREFORE ORDERED that the actions denominated CIV. NO.

5 S-04-1750 FCD JFM P, be, and the same hereby is, reassigned to

6 Judge Lawrence K. Karlton and Magistrate Judge John F. Moulds for 7 all further proceedings1; the actions denominated CIV No. S-05-0876

8 LKK GGH P, and CIV No. S-05-2441 LKK GGH shall remain assigned to

9 Judge Lawrence K. Karlton and shall be reassigned to Magistrate

10 Judge John F. Moulds; and any dates currently set in the reassigned

11 cases only are hereby VACATED. Henceforth, the caption on

12 documents filed in the reassigned cases shall be shown as CIV. NO.

13 S-04-1750 LKK JFM P, CIV No. S-05-0876 LKK JFM P, and CIV No. S-05-

14 2441 LKK JFM P, respectively.

15

IT IS FURTHER ORDERED that the Clerk of the Court make

16 appropriate adjustment in the assignment of civil cases to

17 compensate for this reassignment.

18

DATED: May 1, 2006

19

/s/Lawrence K. Karlton

20

LAWRENCE K. KARLTON

SENIOR JUDGE

21

UNITED STATES DISTRICT COURT

22

23

24

25

26

1 This order supersedes the non-related case order filed on

September 22, 2005 in Case NO. CIV S-04-1750 FCD KJM P.

3

 
 Case 2:05-cv-02441-LKK-JFM Document 29 Filed 09/14/06 Page 1 of 3

1 HANSON BRIDGETT MARCUS VLAHOS CLAUDIA CENTER - 158255

2

& RUDY, LLP JERROLD C. SCHAEFER - 39374

LEWIS BOSSING - 227492 THE LEGAL AID SOCIETY --

3

KURT A. FRANKLIN - 172715 PAUL B. MELLO - 179755

EMPLOYMENT LAW CENTER 600 Harrison St., Suite 120

DOROTHY S. LIU - 196369 4 425 Market Street, 26th Floor

San Francisco, CA 94107 Telephone: (415) 864-8848

5

San Francisco, CA 94105 Telephone: (415) 777-3200

Facsimile: (415) 864-8199 CCenter@las-elc.org

6

Facsimile: (415) 541-9366 jschaefer@hansonbridgett.com

MICHAEL W. BIEN -- 96891

7 BILL LOCKYER

8

Attorney General of the State of California JAMES M. HUMES

Chief Assistant Attorney General 9 FRANCES T. GRUNDER

10

Senior Assistant Attorney General ROCHELLE C. EAST

THOMAS B. NOLAN -- 169692 MEGHAN LANG -- 221156 ROSEN BIEN & ASARO, LLP 155 Montgomery St., 8th Fl. San Francisco, CA 94014 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 rba@rbalaw.com

11

Supervising Deputy Attorney General JAY C. RUSSELL, State Bar No. 122626

12

Deputy Attorney General 455 Golden Gate Avenue, Suite 11000

13

San Francisco, CA 94102-7004 Telephone: (415) 703-5717

Facsimile: (415) 703-5843 14 jay.russell@doj.ca.gov

Attorneys for Plaintiffs ROBERT HECKER and CHRISTOPHER LEE JENKINS PETER TAYLOR, YING WATT, JOHN MUELLER, DAVID HUNLEY, JOSEPH COX, EDDIE THOMAS, MICHAEL LOVELACE, SAMUEL D'ANGELO, JR., and JON SCHOOLEY

15

Attorneys for Defendants CALIFORNIA DEPARTMENT OF CORRECTIONS AND

16

REHABILITATION, SCHWARZENEGGER, HICKMAN,

17 WOODFORD, and DOVEY

18 UNITED STATES DISTRICT COURT

19 FOR THE EASTERN DISTRICT OF CALIFORNIA

20 ROBERT HECKER and CHRISTOPHER LEE
21 JENKINS, et al.,

22

Plaintiffs,

No. 2:05-CV-02441 LKK
JOINT STIPULATION AND ORDER

23

vs.

24

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al.,

Date: September 14, 2006 Time: 11:00 a.m. Courtroom: 25 Judge: Hon John F. Moulds

25

Defendants.

/

26

1

Case 2:05-cv-02441-LKK-JFM Document 29 Filed 09/14/06 Page 2 of 3

1

Defendants California Department of Corrections and Rehabilitation (CDCR), Arnold

2 Schwarzenegger, Roderick Q. Hickman, Jeanne S. Woodford, and John Dovey ("Defendants")

3 and Plaintiffs Robert Hecker, Christopher Lee Jenkins, Peter Taylor, Ying Watt, John Mueller,

4 David Hunley, Joseph Cox, Eddie Thomas, Michael Lovelace, Samuel D'Angelo, Jr., and Jon

5 Schooley (hereinafter "Plaintiffs"),

6

HEREBY STIPULATE THAT:

7

(1) The Court take off calendar the status conference currently set for Thursday,

8 September, 14, 2006.

9

(2) Plaintiffs shall file their revised Second Amended Class Action Complaint for

10 Declaratory and Injunctive Relief by Friday, October 20, 2006.

11

(3) Defendants CDCR, Arnold Schwarzenegger, Jeanne S. Woodford, and John Dovey

12 shall file their responsive pleading to Plaintiff's revised Second Amended Complaint within 30

13 days of Plaintiff's filing the revised Second Amended Complaint.

14

(4) By Friday, September 29, 2006, the parties shall meet and confer, and attempt to agree

15 upon a scheduling order for this case. The proposed joint scheduling should be filed by

16 September 29, 2006, and should address:

17

(a) a deadline for leave to add new parties or pleading amendments;

18

(b) a deadline to complete non-expert discovery related to class certification;

(c) a deadline to complete non-expert discovery post-certification; 19

(d) a deadline to designate experts; 20

(e) a deadline to designate rebuttal experts; 21

(f) a deadline to complete expert discovery; 22
(g) a deadline to file dispositive motions; 23
(h) a deadline to participate in court-assisted alternative dispute resolution; 24
(i) a deadline for plaintiffs to file their motion for class certification; 25
(j) a proposed trial date if the Court denies class certification; 26

2

Case 2:05-cv-02441-LKK-JFM Document 29 Filed 09/14/06 Page 3 of 3

1

(k) a proposed trial date if the Court approves class certification; and

2

(l) a proposed date for another status conference.

3 DATED: September 12, 2006

THE LEGAL AID SOCIETY

4 5 6 7 DATED: September 12, 2006 8 9 10 11 12

By: /s/ CLAUDIA CENTER Attorneys for Plaintiffs
HANSON BRIDGETT MARCUS VLAHOS & RUDY, LLP
By: /s/ KURT A. FRANKLIN Attorneys for Defendants CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, SCHWARZENEGGER, HICKMAN, WOODFORD, and DOVEY

13 APPROVED AND SO ORDERED:
14 DATED: September 13, 2006.
15
16

/S/ John F. Moulds U. S. Magistrate Judge

17
heckerstip.doc
18

19

20

21 22 23

24

25

26

3

 
 Case 2:05-cv-02441-LKK-JFM Document 70 Filed 03/14/2007 Page 1 of 2

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT HECKER, et al.,

11

Plaintiffs,

No. CIV S-05-2441 LKK JFM P

12

vs.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND
14 REHABILITATION, et al.,

15

Defendants.

ORDER

16

/

17

On February 22, 2007, plaintiffs filed a notice of motion and motion to compel a

18 definite deposition schedule; to compel production of documents; and for a protective order.

19 Said motion was noticed for hearing on this court’s regular law and motion calendar for March

20 15, 2007. Pursuant to Local Rule 37-251, either a joint statement regarding the discovery dispute

21 pursuant to Local Rule 37-251(c) or an affidavit pursuant to Local Rule 37-251(d) was due on or

22 before March 12, 2007. The time for filing either a joint statement or an affidavit has expired

23 and neither has been filed.

24 /////

25 /////

26 /////

1

Case 2:05-cv-02441-LKK-JFM Document 70 Filed 03/14/2007 Page 2 of 2

1

Accordingly, good cause appearing, IT IS HEREBY ORDERED that plaintiff’s

2 February 22, 2007 motion is denied without prejudice. See Local Rule 37-251(a).

3 DATED: March 13, 2007.

4

5

6
7 12
heck2441.mtc
8

9

10

11

12

13

14 15 16

17

18

19

20

21 22 23

24

25

26

2

 
 Case 2:05-cv-02441-LKK-JFM Document 71 Filed 03/15/2007 Page 1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT HECKER, et al.,

11

Plaintiffs,

No. CIV S-05-2441 LKK JFM P

12

vs.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND
14 REHABILITATION, et al.,

15

Defendants.

ORDER

16

/

17

Plaintiffs are state prisoners proceeding through counsel with a proposed class

18 action raising claims under the Rehabilitation Act of 1973, the Americans with Disabilities Act

19 of 1990, and California Government Code § 11135. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B).1

21
1 Plaintiffs continue to object to the referral of this matter to a United States Magistrate 22 Judge pursuant to 28 U.S.C. § 636(b)(1)(B). Relying primarily on McCarthy v. Bronson, 500
U.S. 136 (1991), plaintiffs contend that the referral authorized by 28 U.S.C. § 636(b)(1)(B) is 23 limited to “prisoner habeas petitions and prisoner petitions regarding conditions of confinement
under 42 U.S.C. § 1983.” Plaintiffs argue that since this action arises under federal statutes other 24 than 42 U.S.C. § 1983 referral to a magistrate judge under 28 U.S.C. § 636(b)(1)(B) is not
authorized by that section. Plaintiffs read McCarthy and the applicable statute too narrowly. 25 /////
///// 26 /////

1

Case 2:05-cv-02441-LKK-JFM Document 71 Filed 03/15/2007 Page 2 of 3

1

On February 27, 2007, the magistrate judge filed findings and recommendations

2 herein which were served on all parties and which contained notice to all parties that any

3 objections to the findings and recommendations were to be filed within ten days. Plaintiffs have 4 filed objections to the findings and recommendations.2

5

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 72-304,

6 this court has conducted a de novo review of this case. Having carefully reviewed the entire file,

7 the court finds the findings and recommendations to be supported by the record and by proper

8 analysis.

9

10

Section 636(b)(1)(B) provides in relevant part:

11

(B) a judge may ... designate a magistrate judge to conduct

hearings, including evidentiary hearings, and to submit to a judge

12

of the court proposed findings of fact and recommendations for the

disposition, by a judge of the court, ... of applications for posttrial

13

relief made by individuals convicted of criminal offenses and of

prisoner petitions challenging conditions of confinement. 14

28 U.S.C. § 636(b)(1)(B). In McCarthy v. Bronson, the United States Supreme Court held that 15 referrals under this section properly included individual actions “challenging specific acts of

alleged misconduct” as well as those “challenging ongoing conditions.” McCarthy, 500 U.S. at 16 143. In so holding, the Court found that “[t]he text of the statute does not define the term

‘conditions of confinement’ or contain any language suggesting that prisoner petitions should be 17 divided into subcategories. On the contrary, when the relevant section is read in its entirety, it

suggests that Congress intended to authorize the nonconsensual reference of all prisoner petitions 18 to a magistrate [judge].” Id. at 139 (emphasis in original). The Court did specifically find that

Congress “intended to include in their entirety the two primary categories of suits brought by 19 prisoners-applications for habeas corpus relief pursuant to 28 U.S.C. §§ 2254 and 2255 and

actions for monetary or injunctive relief under 42 U.S.C. § 1983.” Id. at 140. Neither that 20 specific reference to 42 U.S.C. § 1983 nor anything else in McCarthy suggests, however, that

referral to a magistrate judge under 28 U.S.C. § 636(b)(1)(B) is only authorized for prisoner 21 petitions brought under the three provisions of federal law specifically referenced in the

foregoing sentence.

22

The instant action is brought, through counsel, by prisoner plaintiffs challenging

conditions of their confinement and is a “prisoner petition challenging conditions of 23 confinement” within the meaning of 28 U.S.C. § 636(b)(1)(B). For all of the foregoing reasons,

plaintiffs’ continuing objection to the referral of this matter to a United States Magistrate Judge 24 pursuant to 28 U.S.C. § 636(b)(1)(B) is overruled.

25

2 Plaintiffs have also requested oral argument on the matter at bar. That request is

denied. 26

2

Case 2:05-cv-02441-LKK-JFM Document 71 Filed 03/15/2007 Page 3 of 3

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. The findings and recommendations filed February 27, 2007, are adopted in

3 full;

4

2. This matter is referred to the special master in Coleman v. Schwarzenegger,

5 No. CIV S-90-0520 LKK JFM P for a report and recommendation as to whether the claims raised

6 herein can be resolved within the remedial phase of that action, said report to be filed within

7 ninety days from the date of this order;

8

3. This action is stayed until said report from the Coleman special master has

9 been filed and considered by this court; and

10

4. The Clerk of the Court is directed to serve a copy of this order on J. Michael

11 Keating, Jr., Special Master in Coleman v. Schwarzenegger and on the parties in the Coleman

12 case.

13

DATED: March 15, 2007.

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 Case 2:05-cv-02441-LKK-JFM Document 90 Filed 01/10/2008 Page 1 of 1

1

2

3

4

5

6

7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE EASTERN DISTRICT OF CALIFORNIA
9 SACRAMENTO DIVISION
10

11 ROBERT HECKER, on behalf of himself and others similarly situated,
12 Plaintiffs,
13 v.
14 CALIFORNIA DEPARTMENT OF
15 CORRECTIONS AND REHABILITATION, et al.,

05-CV-02441 LKK JFM
ORDER ON DEFENDANTS’ REQUEST FOR AN EXTENSION OF TIME TO FILE AN OPPOSITION TO PLAINTIFFS’ MOTION FOR RELIEF FROM STAY

16

Defendants.

17

18 On December 24, 2007, defendants filed a motion for an extension of time to file an
19 opposition to Plaintiffs’ “Motion for Relief from Stay.” By the motion defendants sought an
20 extension of time, up to and including January 21, 2008, to file their opposition. However, on
21 January 7, 2008, defendants timely filed an opposition to the motion. Accordingly, defendants’
22 motion for an extension of time is moot and is therefore denied.
23 IT IS SO ORDERED.
24 Dated: January 9, 2008.
25

26

27

28
/heck2441.ext

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT HECKER, et al.,

11

Plaintiffs,

No. 2:05-cv-2441 LKK JFM P

12

vs.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND
14 REHABILITATION, et al.,

15

Defendants.

ORDER

16

/

17

Plaintiffs are state prisoners proceeding through counsel with a proposed class

18 action raising claims under the Rehabilitation Act of 1973, the Americans with Disabilities Act

19 of 1990, and California Government Code § 11135. This action is proceeding on plaintiffs’

20 second amended complaint, filed October 20, 2006. It was stayed by order filed March 15, 2007.

21 On June 29, 2012, inmate Christopher Jenkins filed, in propria persona, a motion to be dismissed

22 as a named plaintiff in this action and to proceed pro se. The plaintiffs in this action are

23 represented by counsel and all motions for court action must be filed by counsel for plaintiffs.

24 For that reason, inmate Jenkins’ motion will be denied without prejudice.

25

In accordance with the above, IT IS HEREBY ORDERED that:

26 /////

1

1

1. Inmate Jenkins’ June 28, 2012 motion (Docket No. 93) is denied without

2 prejudice; and

3

2. The Clerk of the Court is directed to serve a copy of this order on inmate

4 Jenkins at the address on said motion.

5 DATED: October 18, 2012.

6

7

8

9 12 heck2441.jm
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 
 1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 ROBERT HECKER, et al.,

11

Plaintiffs,

No. 2:05-cv-2441 LKK JFM P

12

vs.

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND
14 REHABILITATION, et al.,

15

Defendants.

ORDER

16

/

17

Plaintiffs are state prisoners proceeding through counsel with a proposed class

18 action raising claims under the Rehabilitation Act of 1973, the Americans with Disabilities Act

19 of 1990, and California Government Code § 11135. This action is proceeding on plaintiffs’

20 second amended complaint, filed October 20, 2006. It was stayed by order filed March 15, 2007. 21 On September 19, 2012, plaintiffs filed a motion to lift the stay.1 Plaintiffs’ motion, opposed by

22 defendants, is set for hearing before the undersigned on October 25, 2012.

23 /////

24

25

1 Plaintiffs’ motion is styled as a renewed motion and supersedes their filed motion for

relief from the stay to “pursue mediation, seek class certification, and update plaintiffs by filing 26 third amended complaint.” Motion, filed December 14, 2007.

1

1

This matter was stayed pending consideration of whether the claims raised herein

2 can be resolved in the remedial phase of Coleman v. Brown, No. 2:90-cv-0520 LKK JFM P. In

3 support of their motion, plaintiffs identify ten specific issues of alleged discrimination against

4 mentally ill inmates in the California Department of Corrections and Rehabilitation (CDCR), and

5 contend that “attempts to resolve issues raised in Hecker through the Coleman framework [have]

6 remained awkward and often infeasible” in spite of efforts to do so. Plaintiffs’ Renewed Motion

7 for Relief from Stay, filed September 19, 2012, at 5. In opposition to the motion, defendants

8 contend that several of the identified issues have been resolved in the remedial process in

9 Coleman and “the parties continue to work to resolve Plaintiffs’ concerns through Coleman’s

10 remedial phase.” Defendants’ Opposition, filed October 11, 2012, at 2.

11

After review of the papers filed in support of and opposition to the motion, and

12 good cause appearing, the court will direct the parties to meet and confer, under the guidance of

13 the Coleman special master to: (1) identify which, if any, issues raised in the second amended

14 complaint have been resolved through the Coleman remedial process; (2) identify which, if any,

15 issues raised in the second amended complaint remain in dispute; (3) as to any remaining issues

16 so identified, which of those are or could be resolved in the Coleman remedial process; and (4)

17 which, if any, of the claims raised in the second amended complaint cannot be resolved through

18 the Coleman remedial process and why they cannot be so resolved. The parties will be directed

19 to complete this process by February 15, 2013. Plaintiffs’ motion to lift the stay will be denied

20 without prejudice to its renewal, as appropriate, not later than March 1, 2013. Any renewed

21 motion must be accompanied by a joint report by the parties and approved by the Coleman

22 special master addressing the four topics outlined in this order.

23

In accordance with the above, IT IS HEREBY ORDERED that:

24

1. Plaintiffs’ December 14, 2007 motion (Docket No. 78) is superseded by

25 plaintiffs’ September 19, 2012 motion (Docket No. 94).

26 /////

2

1

2. The parties shall meet and confer, under the guidance of the Coleman special

2 master to: (1) identify which, if any, issues raised in the second amended complaint have been

3 resolved through the Coleman remedial process; (2) identify which, if any, issues raised in the

4 second amended complaint remain in dispute; (3) as to any remaining issues so identified, which

5 of those are or could be resolved in the Coleman remedial process; and (4) which, if any, of the

6 claims raised in the second amended complaint cannot be resolved through the Coleman

7 remedial process and why they cannot be so resolved.

8

3. The meet and confer process required by this order shall be completed by

9 February 15, 2013.

10

4. Plaintiffs’ September 19, 2012 motion to lift the stay of this action (Docket

11 No. 94) is denied without prejudice to its renewal, as appropriate, not later than March 1, 2013.

12 Any renewed motion must be accompanied by a joint report by the parties and approved by the

13 Coleman special master addressing the four topics outlined in this order.

14

5. The Clerk of the Court is directed to serve a copy of this order on Matthew A.

15 Lopes, Jr., Esq., Pannone Lopes & Devereaux LLC, 317 Iron Horse Way, Suite 301, Providence,

16 RI 02908.

17 DATED: October 18, 2012.

18

19

20

21 12 heck2441.ls
22

23

24

25

26

3

 
 Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 1 of 8

1 Claudia Center, State Bar No. 1582S5

Lewis Bossing, State Bar No. 227492

2 THE LEGAL AID SOCIETY OF SAN FRANCISCO

- EMPLOYMENT LAW CENTER

3 600 Harrison St., Suite 120

San Francisco, CA 94107 4 Telephone: (4IS) 864-8848
Facsimile: (415) 864-8199

5 Michael W. Bien, State Bar No. 96891

6 Amy Whelan, State Bar No. 21567S

Ernest Galvan, State Bar No. 196065

7 Kenneth M. Walczak, State Bar No. 247389

8

ROSEN BIEN & 31S Montgomery

GALV Street,

A10Nm, FLlLoPor.

San Francisco, CA 94104

9 Telephone: (415) 433-6830

Facsimile: (4IS) 433-7104

10 Attorneys for Plaintiffs

I 1

UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13 ROBERT HECKER, et al.,

No. 2:0S-CV-02441 LKK JFM

14

Plaintiffs,

15

v.

16 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al.,
17 Defendants.
18

Plaintiffs' Motion for Relief From Stay to Pursue Mediation, Seek Class Certification, and Update Plaintiffs by Filing Third Amended Complaint

19

20

INTRODUCTION

21

Plaintiffs are persons with psychiatric disabilities who allege disability-based discrimination in

22 numerous programs, services and activities conducted by defendant California Department of Corrections

23 and Rehabilitation (CDCR), and who seek to represent a class of similarly situated individuals. Since

24 March IS, 2007, plaintiffs' action has been stayed by Court order. Given the passage of time since the

25 entry of the stay (about nine months), the ongoing injuries to the plaintiffs and the putative class, and the

26 fact that the purpose of the stay has been served, plaintiffs respectfully request that the Court lift the stay.

27 In the alternative, plaintiffs request limited relief from the stay to pursue mediation, seek class

28 certification, and update the status of various plaintiffs by filing a Third Amended Complaint.
I I
PLAINTIFF'S MOTION FOR RELIEF FROM STAY
(No. 2,05-CV-02441 LKK .IFM)

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 2 of 8

PROCEDURAL AND FACTUAL BACKGROUND

2

This action was filed two years ago, on December 5, 2005. Amended complaints were filed on

3 February 23,2006 and October 20, 2006. On November 17, 2006, the defendants filed a Rule 12(b) and

4 (f) motion to dismiss the case; all briefing was completed on January 4,2007. Defendant's motion to

5 dismiss was heard on February 8, 2007, and has not yet been decided. The case was stayed on March 15,

6 2007.

7

In their complaint, their responses to interrogatories, and their motion for class certification (which

8 was drafted in early 2007 but never filed due to the Court's stay), plaintiffs allege that defendants have

9 engaged in the following policies and practices in violation of the Americans with Disabilities Act (ADA)

10 and the Rehabilitation Act:

11

Adding four points to the classification scores of incoming inmates with psychiatric disabilities,

without lawful basis;

12 Excluding qualified inmates with psychiatric disabilities from conservation and fire camp

13

programs;

14

Excluding qualified inmates with psychiatric disabilities at the Enhanced Outpatient Program

(EOP) level of care from mainline vocational and educational programs;

15 Failing to provide "reasonable modifications" to enable inmates covered by heat plans to access

16

equivalent programming;

17

Excluding qualified inmates with psychiatric disabilities from Prison Industry Authority (PIA) jobs

and other employment positions;

18 Excluding qualified inmates with psychiatric disabilities at the EOP level of care from the

19

Substance Abuse Program (SAP);

20

Assigning inmates with psychiatric disabilities to higher-security housing based upon their need

for psychiatric services;

21

Excluding inmates and parolees with psychiatric disabilities from numerous community-based

22

and/or minimum security programs, including Community Correctional Facilities (CCFs), Minimum Support Facilities (MSFs), Restitution Centers, Community Re-Entry Centers, and

23

similar programs;

24

Failing to give inmates at the EOP level of care classification score deductions for "average or above average perfom1ance" in vocational and educational programs;

25

Failing to give service credits to inmates with psychiatric disabilities who experience disability-

26

based delays at receptions centers;

27

Excluding parolees with psychiatric disabilities at the EOP level of care from the in-home electronic monitoring (EID) program;

28 2
2
PLAINTIFF'S MOTION FOR RELIEF FROM STAY
(No. 205-CV-0244I LKK .lFM)

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 3 of 8

Excluding parolees with psychiatric disabilities from the Parolee Substance Abuse Programs

(PSAPs); and

2

Excluding parolees with psychiatric disabilities from numerous In-Custody Drug Treatment

3

Programs (ICDTPs).

4 Declaration of Claudia Center, ~ 5.

5

Plaintiffs, defendants, and the Court have all noted the connection between this action, filed in

6 2005, and the Coleman case, filed in 1990 and tried in 1993. The putative class in Hecker is essentially a 7 sub-set of the certified class in Coleman, but with substantively different - and later arising - claims. 1

8 The Coleman case includes Eighth Amendment claims only, and is in a monitoring phase that was crafted

9 following a 1995 order. There aTe no disability discrimination claims in the Coleman case - the presiding

10 judge decertified the class in Coleman as to any Rehabilitation Act claims. Declaration of Claudia Center,
11 '16, Exh. A.

12

The March 2007 stay was issued to obtain and consider "a report and recommendation as to

13 whether the claims raised [in Hecker] can be resolved within the remedial phase of [Coleman]."

14 Thereafter, the parties met with respect to this question, and reached a standstill. Plaiiltiffs explained that

15 the Coleman process as presently designed is not well suited to the resolution of disability discrimination

16 claims, and sought an agreement to expand the mandate of Coleman to include such claims. Defendants

17 declined. The special master's report of June 12,2007 followed.

18

Due to the ongoing stay, plaintiffs have not been able to file their motion for class certification.

19 The motion was completed on March 15,2007, but the stay order issued just before plaintiffs' counsel
20 intended to file. Center Decl. '1'13, 4. Class certification (either by motion or stipulation) is essential in a

21 case such as Hecker - without a certified class, claims become moot when individuals are transferred to

22 another prison, switched from one level of care to another (e.g. from EOP to CCCMS), paToled, and/or

23 released from parole. Such changes have already affected the claims of named plaintiffs during the

24 pendency of the stay, causing prejUdice to all of the members of the putative class. For similar reasons-

25 because of the changes that have occurred with the passage oftimc - plaintiffs seek to file a third

26 1 There may be members of the Hecker class who are not Coleman class members (for example, inmates

27

with a record of or perceived psychiatric disability who received four points at reception), so "sub-set" is not precise. However, if one pictures a Venn diagram with two circles, a Hecker class member circle and

28 a Coleman class member circle, most of the Hecker circle is inside of the Coleman circle.

3 3
PLA1NT1FFS MOT10N FOR RELlEF FROM STAY

(No. 2,05-CV-02441 LKK JFM)

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 4 of 8

amended complaint to update the names and current statuses of the plaintiffs.

2

Accordingly, plaintiffs now seek an order from the Court lifting the stay, and penllitting this case

3 to go forward. In the alternative, plaintiffs seek relief from the stay to pursue mediation, file their motion

4 for class certification, and seek leave to file an amended complaint.

5

ARGUMENT

6

"A trial court may, with propriety, find it is efficient for its own docket and the fairest course for

7 the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear

8 upon the case." Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863-64 (9th Cir.1979); but

9 see Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th Cir. 2007) ("[W]hile

10 it is the prerogative of the district court to manage its workload, case management standing alone is not

11 necessarily a sufficient ground to stay proceedings."). In deciding whether to stay an action, the court

12 must weigh the hanns faced by the stay applicant against the hanns that a stay would impose upon the

13 opposing party. Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005); see also CMAX, Inc., 300

14 F.2d 265, 268 (9th Cir. 1962) McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982). "[T]he

15 supplicant for a stay must make out a clear case of hardship or inequity in being required to go forward, if

16 there is even a fair possibility that the stay for which he prays will work damage to someone else." Landis

17 v. North American Co., 299 U.S. 248, 254-55 (1936).

18

Consistent with the required balancing of interests, "[a] stay should not be granted unless it

19 appears likely the other proceedings will be concluded within a reasonable time." Leyva, 593 F.2d at 864;

20 accord Landis, 299 U.S. at 259 (remanding to consider whether to grant a stay of what was likely to be

21 fairly short duration). In a recent opinion, the Ninth Circuit reviewed the "general poliey favoring stays of

22 short, or at least reasonable, duration," noting: "Generally, stays should not be indefinite in nature."

23 Dependable Highway Exp., Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066-67 (9th Cir. 2007). This is

24 so because undue delay can cause substantial prej udice to a litigant.

25 I. 26

The Purpose of the Stay Has Been Satisfied, and the Stay Should Be Lifted. The Court here stayed the action for the following stated purpose:

27

This matter is referred to the special master in Coleman v. Schwarzenegger, No. CN S-90-0520 LKK JFM P for a report and recommendation as to whether the claims raised herein can be

28

resolved within the remedial phase of that action, said report to be filed within ninety days from

the date of this order; [and]

4

4

PLAINTIFF'S MOTION FOR RELlEF FROM STAY

(No. 2:05·CV·02441 LKKJFM)

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 5 of 8

This action is stayed until said report from the Coleman special master has been filed and

2

consi dered by this court[.]

3 Order dated Mar. 15,2007, at 3:4-9.

4

Following this Court's referral, the Coleman special master and the deputy special master

5 conferred with the parties in Hecker by meeting jointly and separately, by telephone and in person. See

6 Report and Recommendation of the Coleman Special Master ("Report and Recommendation") (June 12,

7 2007), pp. 3,4. The parties submitted their positions to the special master, and provided additional

8 information and documents. Report and Recommendation at pp. 4; 5 ; Exhs. A (letter from Ernest Galvan

9 dated May 23,2007) & B (letter from Lisa Tillman dated May 30, 2007); Declaration of Ernest Galvan in

10 Support of Plaintiffs' Objections to Special Master's Report and Recommendation ("Galvan Dec!."), Exh.

11 1 (letter from Ernest Galvan dated June 1,2007).

12

On June 12,2007, the special master and the deputy special master tendered their report and

13 recommendation. The parties thereafter filed responses. See Plaintiffs' Objections to Special Master's

14 Report and Recommendation (June 21, 2007); Defendants' Response [and Request to Strike] (June 22,

15 2007). The report concludes that the parties' differences "present an insurmountable obstacle to

16 negotiating an agreement to consolidation or merger of the Hecker claims into the Coleman case at this

17 time." Report and Recommendation, p. 6.

18

As an intermediate step, the stay enabled the parties and the COUli to explore the role of the

19 Coleman remedial process in resolving claims in this case. The conditions and purposes of the stay have

20 been satisfied: the Court has the benefit of the report from the Coleman special master and deputy special

21 master. The stay should be lifted, and the case should proceed. See Report and Recommendation, p. 6

22 ("This leaves the parties to their respective legal positions, which are beyond the special master's

23 jurisdiction and must be decided by the court."). Further extension ofthe stay is no longer constructive.

24 Fed. R. Civ. Proc. 1 ("These rules ... shall be construed and administered to secure the just, speedy, and

25 inexpensive determination of every action.").

26 II. The Stay Should Be Lifted, and the Parties Referred to Mediation.

27

The plaintiffs have no opposition to negotiating a settlement of the claims in Hecker. Plaintiffs did

28 not object to the often-successful ADR aspect of Coleman, but to its legal constraints relative to the
5
5
PLAINTIFF'S MOTION FOR RELIEF FROM STAY
(No. 2:05-CV-02441 LKK .lFM)

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 6 of 8

1 Hecker action: as explained in prior filings, the Coleman context lacks the jurisdiction and incentives to

2 reach an enforceable aud effective ADA settlement. Whether or not the stay continues or is lifted,

3 plaintiffs seek a referral to a mutually agreeable mediator. Such a referral would enable the parties to try

4 to fashion - in the context. of Hecker - a settlement or a settlement process for the claims raised by this

5 matter.

6

Plaintiffs will pursue mediation with or without a stay. However, plaintiffs believe that a ruling on

7 the dcfcndants' motion to dismiss would further mediation. Mediation is difficult to pursue while one side

8 (the Defendants) continues to hope that Plaintiffs' claims will be dismissed in their entirety.

9 III. The Stay Should Be Lifted, and the Plaintiffs Permitted to Seek Leave to File an Amended Complaint.

10 It has been more than one year since plaintiffs filed their Second Amended Complaint. Since that

II time, there have been changes in the statuses of the named plaintiffs. For example, plaintiffs' counsel and

12 named plaintiff Askia Ashanti have agreed that Mr. Ashanti should be dismissed from the Hecker case.

13 Other plaintiffs have been transferred or paroled, such that their descriptions for purposes of a class action

14 complaint are no longer accurate. These include:

IS
Plaintiff Christopher Jenkins, previously at Correctional Training Facility (CTF), has paroled;

16 Plaintiff Daniel Hunley, previously at California State Prison, Los Angeles (LAC), has been

17

transferred to Richard J. Donovan Correctional Facility (RJD);

18

Plaintiff Joseph Cox, previously at California Institute for Men (CIM), has paroled;

19

Plaintiff Eddie Thomas, previously at RJD, has paroled;

20

Plaintiff Brian Stafford, previously at California State Prison, Folsom (FOL), has been trausferred to California State Prison, Corcoran (COR);

21 Plaintiff Michael Lovelace, previously at LAC, has paroled;

22

Plaintiff Quinton Gray, previously at California Mens Colony (CMC), has paroled;

23

Plaintiff John Wesley Williams, previously at California State Prison, Sacramento (SAC), has been

24

transferred to LAC;

25

Plaintiff Samuel D'Angelo Jr., previously at RID, has paroled, and has completed his parole; and

26

Plaintiff John Schooley, previously at COR, has been transferred to FOL.

27 Declaration of Claudia Center, ~ 7. Further, named plaintiffs have experienced additional incidents of

28 disability discrimination relevant to this action, and additional potential plaintiffs have come forward. It is
6 6
PLAINTIFF'S MOTION FOR RELIEF FROM STAY

Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 7 of 8

1 appropriate under Rules 15(a)2 and 16(b)(1), and Local Rule 16-240(a)(3), for plaintiffs to be granted the

2 opportunity to update their claims and add all necessary parties.

3 IV. The Stay Should Be Lifted, and the Plaintiffs Permitted to File Their Motion for Class Certification.
4 As the Ninth Circuit has noted, inmates who may be paroled or transferred face special concerns
5 regarding whether their claims for injunctive relief might be mooted, see Johnson v. Moore, 948 F.2d 517,
6 519 (9th Cir. 1991); Daring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986), unless their suit has been
7 celiified as a class action. Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995) (citing Preiser v. Newkirk,
8 422 U.S. 395, 402-03 (1975)). See also Dionne v. Bouley, 757 F.2d 1344,1356 (1st Cir. 1985) (danger of
9 mootness "may render a denial of certification improper"); Guckenberger v. Boston Univ., 957 F. Supp.
10 306,326-27 (D. Mass. 1997) ("The danger of mootness is great enough in the instant litigation to
11 necessitate class certification. Students graduate, transfer, drop out, move away, grow disinterested, fall
12 in love ... all too often student-initiated disputes escape review."); Nehmer v. United States Veterans'
13 Admin., 118 F.R.D. 113, 119 (N.D. Cal. 1987)(,,[Cllass actions enable plaintiffs to avoid the mooting of
14 important claims. ").
15 Here, class certification is critical to reaching enforceable and effective relief. Accordingly,
16 plaintiffs' counsel prepared a motion for class certification, with supporting declarations, for filing in
17 March 2007; the stay prevented plaintiffs' proceeding. Since the entry of the stay, six named plaintiffs
18 have been paroled and/or have completed parole (more than one-third of the named plaintiffs). While
19 these changes alone do not detennine whether plaintiffs' claims are moot, class certification remains
20 critically impOliant to ensure live claims. And, as additional time elapses, the threat of mootness
21 increases. Class certification would also allow the Court to fully address the claims of parolees against
22 whom CDCR and DAPO have promulgated and applied discriminatory policies. There is no remedy, or
23 process for shaping a remedy, for these violations in Coleman.
24

25 2 Leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). Leave to amend

26

is freely given unless the opposing party makes a showing of undue prejudice, bad faith, or dilatory motive. Unless the opposing patiy can show that the amendment would cause undue prejudice to the

27

opposing party, is sought in bad faith, or creates undue delay, the amendment should be granted. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). This policy is to be applied with

28 "extreme liberality." Morongo Band ofMission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990).

7
7
PLAINTIFF'S MOTION FOR RELIEF FROM STAY

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Case 2:05-cv-02441-LKK-JFM Document 78 Filed 12/14/07 Page 8 of 8

1

CONCLUSION

2

For all of the reasons stated herein, the stay should be lifted, and the Hecker plaintiffs should be

3 permitted to pursue their claims for discrimination in violation of the Americans with Disabilities Act and

4 the Rehabilitation Act. In the alternative, the stay should be lifted for the following purposes: (1) a

5 judicial referral to mediation; (2) plaintiffs' pursuing the filing of a Third Amended Complaint; and (3)

6 plaintiffs' motion for class certification.

7 8 Respectfully submitted,

9 10 II 12 Dated: December 14, 2007 13 14

THE LEGAL AID SOCIETY EMPLOYMENT LAW CENTER
By: /s/ Claudia Center Claudia Center, Counsel for Plaintiffs

15 16 17 18 19 20
21
22 23
24 25 26 27 28
8 8
PLAINTIPF'S MOTION FOR RELIEF FROM STAY (No. 2005-CV-0244I LKK .TFM)

 
 Case 2:05-cv-02441-LKK-JFM Document 94 Filed 09/19/12 Page 1 of 12

[675442-1]

1 CLAUDIA CENTER – 158255

THE LEGAL AID SOCIETY OF SAN FRANCISCO

2 –EMPLOYMENT LAW CENTER

180 Montgomery Street, Suite 600

3 San Francisco, California 94104-4244

Telephone: (415) 864-8848

4 Facsimile: (415) 864-8199

Email:

ccenter@las-elc.org

5

MICHAEL W. BIEN – 096891

6 ERNEST GALVAN – 196065

BLAKE THOMPSON – 255600

7 ROSEN BIEN GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

8 San Francisco, California 94104-1823

Telephone: (415) 433-6830

9 Facsimile: (415) 433-7104

Email:

mbien@rbgg.com

10

egalvan@rbgg.com

bthompson@rbgg.com

11

Attorneys for Plaintiffs

12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

15

16 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 LKK JFM

17

Plaintiffs,

18

v.

19 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
20 et al.,

PLAINTIFFS’ RENEWED MOTION FOR RELIEF FROM STAY
Judge: John F. Moulds Date: October 25, 2012 Time: 11:00 a.m. Crtrm.: 16th Floor, Courtroom 1

21

Defendants.

22

23

24

25

26

27

28

PLAINTIFFS’ RENEWED MOTION FOR RELIEF FROM STAY

Case 2:05-cv-02441-LKK-JFM Document 94 Filed 09/19/12 Page 2 of 12

[675442-1]

1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that on October 25, 2012 at 11:00 a.m., or as soon

3 thereafter as the matter may be heard, in the Courtroom of the Honorable John F. Moulds, 4 located at 501 I Street, Sacramento, CA 95814, 16th Floor, Courtroom 1, Plaintiffs Robert

5 Hecker, et al., will and hereby do move the Court to lift the stay in this matter.

6

This motion is based on this Notice of Motion, the Declarations of Claudia Center

7 and Michael W. Bien filed herewith, the entire record in this action, and such other

8 materials and arguments as may be presented before or at the hearing.

9

INTRODUCTION

10

Plaintiffs are persons with psychiatric disabilities who allege disability-based

11 discrimination in numerous programs, services and activities conducted by defendants

12 California Department of Corrections and Rehabilitation (CDCR) and various state

13 officials, and who seek to represent a class of similarly situated individuals. Since March

14 15, 2007, Plaintiffs’ action has been stayed by Court order. Given the passage of time

15 since the entry of the stay (over five years), the ongoing injuries to the named Plaintiffs

16 and the putative class, and the fact that the purpose of the stay has been served, Plaintiffs

17 respectfully request that the Court lift the stay.

18

PROCEDURAL AND FACTUAL BACKGROUND

19

This action was filed more than six years ago, on December 1, 2005. Docket No. 1.

20 Amended complaints were filed on February 23, 2006 and October 20, 2006. Docket Nos.

21 12, 35. On November 17, 2006, the defendants filed a Rule 12(b) and (f) motion to

22 dismiss the case; all briefing was completed on January 4, 2007. Docket Nos. 38-43, 45-

23 60. Defendant’s motion to dismiss was heard on February 8, 2007, and has not yet been

24 decided. Docket No. 61. The case was stayed on March 15, 2007. Docket No. 71.

25 Disability-Based Discrimination by Defendants.

26

As detailed in the operative complaint and in responses to discovery and in other

27 communications related to this action, Plaintiffs have alleged that Defendants have

28 engaged in policies and practices that violate the Americans with Disabilities Act (ADA)

1
PLAINTIFFS’ RENEWED MOTION FOR RELIEF FROM STAY

Case 2:05-cv-02441-LKK-JFM Document 94 Filed 09/19/12 Page 3 of 12

[675442-1]

1 and the Rehabilitation Act, including but not limited to:

2

• excluding qualified inmates with psychiatric disabilities at the Enhanced

Outpatient Program (EOP) level of care from mainline vocational and

3

educational programs;

4

• failing to provide “reasonable modifications” to enable inmates covered by

5

heat plans to access equivalent programming;

6

• excluding qualified inmates with psychiatric disabilities from Prison Industry

7

Authority jobs and other employment positions;

8

• excluding qualified inmates with psychiatric disabilities at the EOP level of

care from the Substance Abuse Program (SAP); 9

10

• assigning inmates with psychiatric disabilities to higher-security housing

based upon their need for psychiatric services;

11

• excluding inmates and parolees with psychiatric disabilities from numerous

12

community-based and/or minimum security programs;

13

• failing to give service credits to inmates with psychiatric disabilities who

14

experience disability-based delays at receptions centers;

15

• failing to give inmates at the EOP level of care classification score

16

deductions for “average or above average performance” in vocational and

educational programs;

17

• adding four points to the classification scores of incoming inmates with

18

psychiatric disabilities, without lawful basis;

19

• excluding qualified inmates with psychiatric disabilities from conservation

20

and fire camp programs; and

21

• additional discriminatory treatment.

22 Declaration of Claudia Center (Center Decl.), ¶ 5.

23 Case Related to Coleman.

24

In filing their complaint, and pursuant to Local Rule 83-123, Plaintiffs identified

25 several related cases, including Coleman v. Schwarzenegger, Case No. 2:90-cv-00520

26 LKK JFM P. Docket No. 3. The Coleman case was brought under the Eighth Amendment

27 alleging unconstitutional failures in the provision of mental health care on behalf of

28 inmates with severe mental disorders. The Coleman case was filed in 1990 and tried in

2
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Case 2:05-cv-02441-LKK-JFM Document 94 Filed 09/19/12 Page 4 of 12

[675442-1]

1 1993, and remains in a monitoring phase following a 1995 order on the merits. As

2 litigated, the Coleman class case included only Eighth Amendment claims. On July 12,

3 1995, the Court decertified the Coleman case as to claims originally pled under the

4 Rehabilitation Act. Center Decl., Exh. A. As well, there were no findings of law or fact

5 regarding federal disability nondiscrimination standards. See id. (“The Magistrate Judge

6 issued Findings and Recommendations on June 6, 1994, but did not decide plaintiffs’

7 claims under the Rehabilitation Act. Defendants … did not address the Rehabilitation Act

8 claim.”). However, the claims were related, in that the effects of the disability

9 discrimination being experienced, such as undue segregation and the exclusion from

10 beneficial programs, exacerbated the Eighth Amendment violations. Center Decl., ¶ 6.

11 The case was related to Coleman. Docket No. 14.

12 Defendants File Motion to Dismiss.

13

On November 17, 2006, the defendants filed a Rule 12(b) and (f) motion to dismiss

14 the case. Docket No. 38. Defendants contended that this action was barred by the

15 Coleman case. Plaintiffs responded that the claims and allegations of this case arose years

16 after the Coleman trial, under a different legal framework (federal statutory disability

17 nondiscrimination standards as opposed to Eighth Amendment mental health care

18 standards), and were not barred. All briefing on this motion was completed on January 4,

19 2007. Docket Nos. 38-43, 45-60. Defendants’ motion to dismiss was heard on February 8,

20 2007. Docket Nos. 61, 62. The Court has not ruled on the Defendants’ motion to dismiss.

21 Court Issues Stay on Litigation.

22

On February 27, 2007, the Magistrate Judge issued findings and recommendations,

23 including recommendations that the matter to be referred to the special master in Coleman

24 and that the matter be stayed. Docket No. 65. Plaintiffs objected. Docket Nos. 66-68. On

25 March 15, 2007, the Court adopted the findings and recommendations, and issued an order

26 staying this action, stating: “This matter is referred to the special master in Coleman v.

27 Schwarzenegger, No. CIV S-90-0520 LKK JFM P for a report and recommendation as to

28 whether the claims raised herein can be resolved within the remedial phase of that action,

3
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[675442-1]

1 said report to be filed within ninety days from the date of this order[.] This action is stayed

2 until said report from the Coleman special master has been filed and considered by this

3 court.” Docket No. 71 at 3.

4

Following this Court’s referral, the Coleman special master and the deputy special

5 master conferred with the parties in this matter through meeting jointly and separately, by

6 telephone and in person. See Docket No. 72. The parties submitted their positions, and

7 provided additional information and documents. On June 12, 2007, the special master and

8 the deputy special master tendered their report and recommendation, to which the parties

9 filed responses. Docket Nos. 72-77. The report concluded that the parties’ differences

10 “present an insurmountable obstacle to negotiating an agreement to consolidation or

11 merger of the Hecker claims into the Coleman case at this time.” Docket No. 72, p. 6; see

12 also id. (“This leaves the parties to their respective legal positions, which are beyond the

13 special master’s jurisdiction and must be decided by the court.”).

14 Plaintiffs Seek Resolution of Disability Discrimination Issues Within Coleman Framework, With Limited Results.
15

16

Despite the special master’s findings, Plaintiffs’ counsel have made good faith

17 efforts to address some “Hecker issues” within the Coleman framework, where possible.

18 Center Decl., ¶ 11; Declaration of Michael Bien (Bien Decl.), filed herewith, ¶ 7-10. As

19 well, Defendants have issued various memoranda that appeared to reflect an effort to

20 address certain issues raised in the Hecker case. Center Decl., ¶ 11. Nevertheless,

21 attempts to resolve issues raised in Hecker through the Coleman framework remained

22 awkward and often infeasible. Id. The Coleman monitoring framework focuses on basic

23 obstacles to care (e.g., a shortage of beds and staff) and not issues of disability

24 discrimination. Bien Decl., ¶ 9. Thus, for example, after the CDCR issued memoranda

25 regarding Hecker issues, Plaintiffs’ counsel wrote to counsel for the CDCR and to the

26 Coleman Special Master commenting on the purported changes and seeking clarifications,

27 improvements, and commitments regarding implementation. Bien Decl., ¶ 10. Plaintiffs,

28 however, received no written response to this request, and the Coleman framework is not

4
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[675442-1]

1 designed to require such response. Id.. As a result of this disconnect, discrimination

2 issues continue to injure the putative Hecker class without remedy. Bien Decl., ¶¶ 7-9;

3 Center Decl, ¶¶ 17-19.

4 Plaintiffs’ Initial Motion to Lift Stay.

5

On December 14, 2007, Plaintiffs in this matter filed a motion to lift the stay.

6 Docket Nos. 78-79. Defendants opposed Plaintiffs’ motion to lift the stay. Briefing on the

7 matter was completed by January 16, 2008. Docket Nos. 87, 91. The Court has not ruled

8 on the Plaintiffs’ motion to lift the stay. Plaintiffs are suffering ongoing harm, as

9 described below. Plaintiffs also need to be able to file an amended complaint to update the

10 status of the Plaintiffs in the original complaint. For example, Plaintiffs had agreed that

11 Plaintiff Askia Ashanti would be dismissed from the case, but Plaintiffs have been unable

12 to do so while the stay has been in place. See Docket No. 78 at 6.

13 Ongoing Problems With Disability Discrimination.

14

As Plaintiffs have confirmed by surveying hundreds of inmates who are known to

15 be members of the Hecker class, policies and practices that discriminate against inmates

16 with psychiatric disabilities continue on without remedy. Bien Decl., ¶¶ 7-10; Center

17 Decl., ¶¶ 17-19. These include “out-of-level housing” (routinely housing inmates with

18 psychiatric disabilities in higher security levels) and excluding inmates with psychiatric

19 disabilities from participation in critical employment, educational, vocational, and

20 substance abuse programs. Bien Decl., ¶ 8; Center Decl, ¶ 18. Inmates are punished for

21 the symptoms of their psychiatric conditions. Bien Decl., ¶ 9. Inmates using heat

22 medications for their psychiatric disabilities are required to return to their cells during heat

23 alerts, and are not provided with alternative safe programming. Center Decl., ¶ 18.

24 Inmates report that they have not had the four points removed from their classification

25 score, despite the September 5, 2008 memo. Id. When inmates attempt to file grievances

26 about the discrimination they have experienced, they report that their appeals are rejected

27 as “not ADA,” or that they are unable to effectively access the procedures. Id.

28

5
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1 The Coleman/Plata Overcrowding Proceedings.

2

Plaintiffs are cognizant of the fact that the Coleman/Plata overcrowding

3 proceedings consumed significant judicial resources from 2006 through 2011. Bien Decl.,

4 ¶ 6; Center Decl., ¶¶ 14-15. Throughout this period, Plaintiffs’ counsel has been contacted

5 by Hecker plaintiffs, asserting their frustration at the lack of progress in their case. Center

6 Decl., ¶ 16. Plaintiffs’ counsel explained the stay, and advised that once the overcrowding

7 proceedings had drawn to a close, counsel would again request that the stay be lifted. Id.

8 Given that part of CDCR’s overcrowding remedy involves increasing its rehabilitative

9 programming for prisoners, remedying the discriminatory disparities in access to such

10 programming is more significant now than ever before. Bien Decl., ¶ 11. We therefore

11 renew our request for an order from the Court lifting the stay, and permitting this case to

12 go forward.

13

ARGUMENT

14

“A trial court may, with propriety, find it is efficient for its own docket and the

15 fairest course for the parties to enter a stay of an action before it, pending resolution of

16 independent proceedings which bear upon the case.” Leyva v. Certified Grocers of

17 California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979). However, the Ninth Circuit has held

18 that, in deciding whether to stay an action, the court must weigh “the competing interests

19 which will be affected by the granting or refusal to grant a stay.” Lockyer v. Mirant Corp.,

20 398 F.3d 1098, 1110 (9th Cir. 2005), quoting CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th

21 Cir. 1962). The three interests the Court must consider are: (1) the possible damage that

22 may result from the granting of a stay; (2) the hardship that the party seeking the stay may

23 suffer by being required to go forward; and (3) the orderly course of justice measured by

24 considering whether the issues, proof or questions of law will be simplified or complicated

25 as a result of the stay. Lockyer, 398 F.3d at 1110; see also CMAX, 300 F.2d at 268;

26 McKnight v. Blanchard, 667 F.2d 477, 479 (5th Cir. 1982). “[T]he suppliant for a stay

27 must make out a clear case of hardship or inequity in being required to go forward, if there

28 is even a fair possibility that the stay for which he prays will work damage to someone

6
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1 else.” Landis v. North American Co., 299 U.S. 248, 255 (1936).

2

Here, the damage to the Plaintiffs caused by this ongoing stay far outweighs any

3 potential damage to Defendants that could result from lifting it. Further, not only has the

4 specific purpose of the stay – the report and recommendations of the special master – been

5 completed, but the Coleman/Plata overcrowding trial and subsequent appeal have

6 concluded. The resolution of that matter has not only informed the Court of overcrowding

7 remedies to take place which may affect Hecker plaintiffs, but has also eliminated the basis

8 for the stay.

9 I. 10 11

The Damage Resulting from the Ongoing Stay Outweighs the Importance of Continuing It.
A. Indefinite Stays are Disfavored, and Can Substantially Prejudice Litigants.

12

The Ninth Circuit has a “general policy favoring stays of short, or at least

13 reasonable, duration,” noting that “[g]enerally, stays should not be indefinite” due to the

14 substantial prejudice such delays can cause for a litigant. Dependable Highway Exp., Inc.

15 v. Navigators Ins. Co., 498 F.3d 1059, 1066-67 (9th Cir. 2007); see also Consolidation

16 Coal Co. v. U.S., 102 Fed. Cl. 489 (2011) (“A court … abuses its discretion by issuing a

17 stay of indefinite duration in the absence of a pressing need and must weigh competing

18 interests and maintain an even balance; while conducting this balance, the court must keep

19 in mind its paramount obligation to timely exercise jurisdiction in cases properly before

20 it.”) (internal quotation marks and citations omitted).

21

Although a court may stay an action “pending the resolution of independent

22 proceedings which bear upon the case.… [a] stay should not be granted unless it appears

23 likely the other proceedings will be concluded within a reasonable time in relation to the

24 urgency of the claims presented to the court.” Leyva, 593 at 863-64; accord Landis, 299

25 U.S. at 259 (remanding to consider whether to grant a stay where duration of stay was

26 likely to be fairly short). Although the special master’s report and recommendations were

27 completed within a reasonable time after the Court issued its stay, the stay has continued

28 for years after this proceeding took place.

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1

B. Plaintiffs Have Been and Continue to Be Damaged by this Stay.

2

Plaintiffs have suffered and continue to suffer harms during the court’s lengthy stay

3 of this matter. Instances of discrimination have continued. In the fall of 2011, in

4 preparation for this motion, plaintiffs’ counsel conducted a survey of the several hundred

5 inmates known to be members of the putative Hecker class. The responses to these

6 surveys confirmed that inmates are continuing to experience discrimination, including:

7

Being excluded from jobs, including PIA jobs, fire camp jobs, and other jobs, on the

basis of being part of the Mental Health Services Delivery System. 8

9

Being forced to return to a cell during a heat alert instead of being given access to alternative safe programming.

10

Being excluded from programs, activities, and jobs on the basis of being EOP,

11

despite the March 30, 2007 memo.

12

Being excluded from substance abuse programs on the basis of being CCCMS or

13

EOP.

14

Not having had the four points for “mental illness” removed from their

classifications scores, despite the September 5, 2008 memorandum. 15

16

Being excluded from lower security placements (Level I, Level II, or minimum security placements) on the basis of being CCCMS or EOP.

17

Being denied credits and point reductions for completion of programs during annual

18

reviews.

19

Being forced to choose between receiving mental health care and obtaining a

20

desired housing assignment.

21

Being denied remedial sanctions in lieu of incarceration for a parole violation based

on a psychiatric condition. 22

23

Being denied single-cell assignment and other modifications needed as a reasonable accommodation to a psychiatric disability.

24

Being denied access to an effective appeals process for complaining about

25

discrimination on the basis of psychiatric disability, including having an 1824

26

appeal based on a psychiatric disability screened out as “not ADA,” and/or being denied reasonable accommodation to participate in appeals process.

27

28 Center Decl., ¶ 18; Bien Decl., ¶¶ 8-10.

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[675442-1]

1

C. The Purpose of the Stay has Been Satisfied.

2

The Court’s primary rationale for the stay is no longer an issue, as the purpose for

3 which the Court issued the stay has been fulfilled. The Court stayed the action for the

4 following stated purpose:

5

This matter is referred to the special master in Coleman v. Schwarzenegger,

No. CIV S-90-0520 LKK JFM P for a report and recommendation as to

6

whether the claims raised herein can be resolved within the remedial phase

7

of that action, said report to be filed within ninety days from the date of this

order; [and]

8

This action is stayed until said report from the Coleman special master has

9

been filed and considered by this court[.]

10 Docket No. 71, at 3:4-9.

11

Following this Court’s referral, the Coleman special master and the deputy special

12 master conferred with the parties in Hecker by meeting jointly and separately, by telephone

13 and in person. Docket No. 72. The parties submitted their positions to the special master,

14 and provided additional information and documents. On June 12, 2007, the special master

15 and the deputy special master tendered their report and recommendation. The parties

16 thereafter filed responses. Docket Nos. 72-77. The report concluded that the parties’

17 differences “present an insurmountable obstacle to negotiating an agreement to

18 consolidation or merger of the Hecker claims into the Coleman case at this time.” Docket

19 No. 72 at 6.

20

As an intermediate step, the stay enabled the parties and the Court to explore the

21 role of the Coleman remedial process in resolving claims in this case. The conditions and

22 purposes of the stay have been satisfied: The Court has had the benefit of the report from

23 the Coleman special master and deputy special master, and any issues that could be

24 resolved via Coleman have been resolved. The stay should be lifted, and the case should

25 proceed. See Docket No. 72 at 6 (“This leaves the parties to their respective legal

26 positions, which are beyond the special master’s jurisdiction and must be decided by the

27 court.”). Further extension of the stay is no longer constructive. Fed. R. Civ. Proc. 1

28 (“These rules … should be construed and administered to secure the just, speedy, and

9
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[675442-1]

1 inexpensive determination of every action.”). The continued stay permits the ongoing

2 discrimination without remedy against inmates with psychiatric disabilities.

3 II. Lifting the Stay Would Pose No Hardship to Defendants.

4

In their opposition to Plaintiffs’ initial motion to lift this stay, filed on December 14,

5 2007, Defendants set forth two arguments for continuing the stay. First, Defendants

6 argued that they were working with Plaintiffs to address their concerns through the

7 Coleman framework. Docket No. 87 at 3-5. In fact, Defendants have been limited in their

8 willingness to address Plaintiffs’ federal disability discrimination claims, and have

9 objected that the disability discrimination claims in Hecker were not part of the Coleman

10 case. Bien Decl. ¶¶ 4-5; Coleman Docket No. 1761. And even where progress has been

11 made that provides some basic relief to Hecker and Coleman plaintiffs alike,

12 discrimination adversely affecting Hecker plaintiffs is still endemic. After five years of

13 attempting to work in good faith with defendants through the Coleman framework,

14 plaintiffs believe the parties have reached a plateau. The Hecker plaintiffs cannot fully

15 remedy the discrimination against them through the Coleman framework.

16

Second, Defendants argued that the stay should be continued until the conclusion of

17 the Coleman/Plata overcrowding proceedings, as the outcome of those proceedings might

18 affect Hecker claims. Docket No. 87 at 5. To the extent that the Court was persuaded by

19 this argument, it is now moot – those proceedings have concluded and are now in the

20 remedial phase. Where defendants advised prolonging the stay until the conclusion of

21 these proceedings, plaintiffs now urge that the conclusion of these proceedings necessitates

22 the urgent lifting of this stay. This is especially important because the CDCR is enhancing

23 its programming as part of its remedy to overcrowding, yet continues to exclude inmates

24 with psychiatric from these programs.

25 III. Lifting the Stay Promotes the Orderly Course of Justice and Reduces the Risk of Mootness Including by Permitting Plaintiffs to File for Class Certification.
26

27

The longer a matter is delayed, the greater the risk that “memories will fade,

28 litigation costs will balloon, and resolve will dwindle.” Cherokee Nation of Oklahoma v.

10
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[675442-1]

1 U.S., 124 F.3d 1413, 1418 (Fed. Cir. 1997); see also Clinton v. Jones, 520 U.S. 681, 707-

2 708 (1997) (“delaying trial would increase the danger of prejudice resulting from the loss

3 of evidence, including the inability of witnesses to recall specific facts, or the possible

4 death of a party.”). Here, some of these risks have already been realized. Plaintiff’s

5 counsel has regularly heard from many clients who are frustrated with the indefinite stay,

6 and one has requested to be dismissed from this matter altogether due to the significant

7 delays. See Center Decl. ¶¶ 16, 21; Docket No. 93, Motion By Plaintiff Christopher Lee

8 Jenkins to Dismiss as Plaintiff. Other named plaintiffs have paroled, and many others been

9 reassigned, or have experienced other changes in circumstances affecting their

10 participation in this case. Center Decl., ¶ 20. Plaintiffs must be permitted to amend their

11 complaint to provide updated information about these inmates and parolees.

12

Here, class certification is also critical to reaching enforceable and effective relief.

13 Accordingly, plaintiffs’ counsel prepared a motion for class certification, with supporting

14 declarations, for filing in March 2007; the stay prevented Plaintiffs from proceeding.

15 Lifting the stay would allow the Court to fully address the claims of inmates and parolees

16 against whom CDCR has promulgated and applied discriminatory policies. There is no

17 remedy, or process for shaping a remedy, for these violations in Coleman.

18

CONCLUSION

19

For all of the reasons stated herein, the stay should be lifted, and the Hecker

20 plaintiffs should be permitted to pursue their claims for discrimination in violation of the

21 Americans with Disabilities Act and the Rehabilitation Act.

22 DATED: September 19, 2012 Respectfully submitted,

23

ROSEN BIEN

24

GALVAN & GRUNFELD LLP

25

26

By: /s/ Michael W. Bien Michael W. Bien

27 Attorneys for Plaintiffs
28

11
PLAINTIFFS’ RENEWED MOTION FOR RELIEF FROM STAY

 
 Case 2:05-cv-02441-KJM-DAD Document 124 Filed 08/05/14 Page 1 of 4

[1253650-2]

1 CLAUDIA CENTER – 158255 AMERICAN CIVIL LIBERTIES UNION
2 FOUNDATION DISABILITY RIGHTS PROGRAM
3 39 Drumm Street San Francisco, California 94111
4 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
5 Email: ccenter@aclu.org
6

KAMALA D. HARRIS – 146672 Attorney General of California JAY C. RUSSELL – 122626 Supervising Deputy Attorney General MICHAEL J. Quinn – 209542 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone: (415) 703-5717 Facsimile: (415) 703-5843 E-mail: Jay.Russell@doj.ca.gov

7 MICHAEL W. BIEN – 096891

ERNEST GALVAN – 196065

8 BLAKE THOMPSON – 255600

ROSEN BIEN

9 GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

10 San Francisco, California 94104-1823

Telephone: (415) 433-6830

11 Facsimile: (415) 433-7104

Email: mbien@rbgg.com

12

egalvan@rbgg.com

bthompson@rbgg.com

13

Attorneys for Plaintiffs

14

Attorneys for Defendants

15

16

UNITED STATES DISTRICT COURT

17

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

18

19 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 LKK-DAD

20

Plaintiffs,

21

v.

JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

22 CALIFORNIA DEPARTMENT OF

Judge: Hon. Lawrence K. Karlton

CORRECTIONS AND REHABILITATION,

23 et al.,

Trial Date: Not Set

24

Defendants.

25

26

27

28

JOINT MOTION FOR PRELIMINARY APPROVAL OF SETTLEMENT AGREEMENT

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[1253650-2]

1

In July 2014, the parties in this case reached an agreement to certify a settlement

2 class and settle the instant action. Through this joint motion, the parties request

3 certification of the settlement class, preliminary approval of the settlement agreement,

4 approval of notice to the class, and the scheduling of a final fairness hearing. The full

5 Settlement Agreement is filed herewith as Exhibit 1 to the Declaration of Michael W. Bien

6 in Support of the Joint Motion for Preliminary Approval of Class Action Settlement.

7 Memorandum of Points and Authorities in Support of the Joint Motion, provides further

8 detail in support of the proposed order.

9

A court should preliminarily approve a class action settlement if it “appears to be

10 the product of serious, informed, non-collusive negotiations, has no obvious deficiencies,

11 does not improperly grant preferential treatment to class representatives or segments of the

12 class, and falls within the range of possible approval.” In re Tableware Antitrust Litig.,

13 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). This standard is met in this case, as the

14 proposed settlement is the product of arm’s-length, serious, informed and non-collusive

15 negotiations between experienced and knowledgeable counsel who have actively

16 prosecuted and defended this litigation, under the guidance of the Court’s Special Master

17 in Coleman v. Brown.

18

Federal Rule of Civil Procedure 23(a) permits a case to be maintained as a class

19 action if:

20

(1) the class is so numerous that joinder of all members is impracticable, (2) there

are questions of law or fact common to the class, (3) the claims or defenses of the

21

representative parties are typical of the claims or defenses of the class, and (4) the

representative parties will fairly and adequately protect the interests of the class.

22

23

The settlement class here meets the requirements under Rule 23(a) of numerosity,

24 commonality and typicality to justify certification, and the requirement that there is

25 adequate and fair representation. Here, the proposed settlement class – all present and

26 future CDCR inmates with psychiatric conditions that are disabilities as defined by the

27 ADA and the Rehabilitation Act and who are allegedly excluded and/or screened out from

28 any prison program, service, or activity on the basis of their assignment to or participation

1
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[1253650-2]

1 in the MHSDS program, may number in the thousands of prisoners, and joinder is

2 therefore impossible. The commonality and typicality requirements are met here because

3 the class shares common questions of law or fact, as the action challenges system-wide

4 policies or practices affecting MHSDS inmates, and the named class representatives who

5 remain incarcerated have claims typical of the class, as they are EOP or CCCMS inmates

6 who are subject or who have been subject to the challenged policies or procedures. The

7 requirement of adequate representation will be met here because class counsel will fairly

8 and adequately represent the interests of the class, as they have done in the Coleman

9 matter.

10

The proposed settlement class also meets the requirements of Rule 23(b)(2) because

11 the issues resolved via the parties’ settlement “apply generally to the class.” Fed. R. Civ.

12 P. 23(b)(2). As noted above, this action challenges system-wide policies or practices

13 affecting MHSDS inmates, and the policy changes that are a part of the settlement will

14 apply generally to the class.

15

As described in the Stipulated Proposed Order, the parties’ plan for notice to class

16 members meets the requirement of Federal Rule of Civil Procedure 23(e)(1) that “(1) the

17 court must direct notice in a reasonable manner to all class members who would be bound

18 by the proposal.” The proposed order requires that notice be posted in English and

19 Spanish in all CDCR prisons in locations accessible to all prisoners, and that full copies of

20 the Settlement Agreement be made available in all CDCR libraries. The proposed order

21 provides that prisoners will have 60 days to provide comments to the Court, and that the

22 Court will then conduct a final fairness hearing to determine whether the proposed

23 settlement of this action on the terms and conditions provided for in the Settlement

24 Agreement is fair, reasonable, and adequate and should be finally approved by the Court,

25 and whether this action should be dismissed pursuant to the settlement.

26

The parties therefore request that the Court enter the stipulated proposed order filed

27 herewith to order as follows:

28

1. To conditionally certify under Fed. R. Civ. P. 23(a) & (b)(2) an injunctive

2
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[1253650-2]

1 relief settlement class defined as: all present and future CDCR inmates with psychiatric

2 conditions that are disabilities as defined by the ADA and the Rehabilitation Act and who

3 are allegedly excluded and/or screened out from any prison program, service, or activity on

4 the basis of their assignment to or participation in the Mental Health Services Delivery

5 System;

6

2. To preliminarily approve the Settlement Agreement between Plaintiffs, on

7 behalf of themselves and those similarly situated, and Defendants California Department

8 of Corrections and Rehabilitation, et al.;

9

3. To approve the proposed Notice to be distributed to class members under

10 Fed. R. Civ. P. 23(c)(2) & (e)(1); and

11

4. To schedule a fairness and final approval hearing.

12

13 DATED: August 5, 2014

ROSEN BIEN GALVAN & GRUNFELD LLP

14

15

By: /s/ Michael W. Bien

Michael W. Bien

16

17

Counsel for Plaintiffs

18 DATED: August 5, 2014 19

KAMALA D. HARRIS ATTORNEY GENERAL OF CALIFORNIA

20

21

By: /s/ Jay C. Russell

Jay C. Russell

22

Supervising Deputy Attorney General

23

Counsel for Defendants

24

25

26

27

28

3
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[1260730-3]

1 CLAUDIA CENTER – 158255 AMERICAN CIVIL LIBERTIES UNION
2 FOUNDATION DISABILITY RIGHTS PROGRAM
3 39 Drumm Street San Francisco, California 94111
4 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
5 Email: ccenter@aclu.org
6

KAMALA D. HARRIS – 146672 Attorney General of California JAY C. RUSSELL – 122626 Supervising Deputy Attorney General MICHAEL J. Quinn – 209542 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone: (415) 703-5717 Facsimile: (415) 703-5843 E-mail: Jay.Russell@doj.ca.gov

7 MICHAEL W. BIEN – 096891

ERNEST GALVAN – 196065

8 BLAKE THOMPSON – 255600

ROSEN BIEN

9 GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

10 San Francisco, California 94104-1823

Telephone: (415) 433-6830

11 Facsimile: (415) 433-7104

Email: mbien@rbgg.com

12

egalvan@rbgg.com

bthompson@rbgg.com

13

Attorneys for Plaintiffs

14

Attorneys for Defendants

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

17

18 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 LKK DAD

19

Plaintiffs,

20

v.

21 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
22 et al.,

23

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JOINT MOTION RE: CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS AND PRELIMINARY APPROVAL OF SETTLEMENT; APPROVAL OF CLASS NOTICE; AND SCHEDULING OF FAIRNESS HEARING

24

Judge: Hon. Lawrence K. Karlton

25

26

27

28

MEMORANDUM OF POINTS & AUTHORITIES ISO JOINT MOTION RE: CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS & PRELIMINARY APPROVAL OF SETTLEMENT; APPROVAL OF CLASS NOTICE; & SCHEDULING OF FAIRNESS HEARING

Case 2:05-cv-02441-KJM-DAD Document 124-1 Filed 08/05/14 Page 2 of 16

[1260730-3]

1

The parties submit this memorandum in support of the Joint Motion by the Parties’

2 that the Court enter an order as follows:

3

1. To conditionally certify under Fed. R. Civ. P. 23(a) & (b)(2) an injunctive

4 relief settlement class defined as: all present and future California Department of

5 Corrections and Rehabilitation (CDCR) inmates with psychiatric conditions that are

6 disabilities as defined by the Americans with Disabilities Act (ADA) and the

7 Rehabilitation Act and who are allegedly excluded and/or screened out from any prison

8 program, service, or activity on the basis of their assignment to or participation in the

9 Mental Health Service Delivery System (MHSDS), including the Correctional Clinical

10 Case Management System (CCCMS), and the Enhanced Outpatient Program (EOP);

11

2. To preliminarily approve the settlement agreement entered into between

12 Plaintiffs, on behalf of themselves and those similarly situated, and Defendants;

13

3. To approve the proposed Notice to be distributed to class members under

14 Fed. R. Civ. P. 23(c)(2) & (e)(1); and

15

4. To schedule a fairness and final approval hearing.

16

INTRODUCTION

17

The parties seek preliminary approval of a class action settlement agreement that

18 provides substantial equitable relief to a putative class of CDCR inmates who have

19 psychiatric disabilities as defined by the ADA and the Rehabilitation Act of 1973.

20 Following months of negotiations facilitated by the Special Master appointed in Coleman

21 v. Brown, E.D. Cal. No. 90- cv-0520 LKK DAD, the parties successfully resolved this

22 litigation, thus avoiding the uncertainties, risks, and expense of protracted litigation.

23

The settlement describes substantial revisions to CDCR policies, practices, and

24 procedures that have been and will be implemented in exchange for Plaintiffs’ dismissal of

25 the lawsuit. These include revising policies and practices so that four points are not added

26 to the classification scores of inmates requiring mental health care, revising policies and

27 practices so that EOP inmates who have successfully completed programing may have

28 classification points reduced, revising policies affecting inmates who use heat-sensitive

1
MEMORANDUM OF POINTS & AUTHORITIES ISO JOINT MOTION RE: CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS & PRELIMINARY APPROVAL OF SETTLEMENT; APPROVAL OF CLASS NOTICE; & SCHEDULING OF FAIRNESS HEARING

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[1260730-3]

1 psychiatric medication, changes to the Interdisciplinary Treatment Team (IDTT) process to

2 ensure that EOP inmates are not improperly excluded from CDCR programs and services,

3 adding lower security housing for inmates with psychiatric disabilities, allowing inmates

4 with psychiatric disabilities to earn milestone credits, and implementing a ADA grievance

5 procedure. The proposed settlement also provides for monitoring by the Coleman Special

6 Master of these agreed-upon policy changes, and the resolution of certain disputes by the

7 Coleman Court. The settlement requires CDCR to periodically provide inmate data so that

8 the parties may review the implementation and impact of the various policy and procedure

9 changes described in the settlement agreement. Defendants have already begun to provide

10 such data and reports; these are tremendously valuable in assessing compliance.

11

The parties have not agreed that certain CDCR policies, practices, and procedures

12 have discriminated against or excluded EOP and CCCMS participants from the benefits of

13 the services, programs, and activities operated by CDCR. The settlement agreement

14 provides that the parties will work within the Coleman remedial process to resolve whether

15 any action is required on the following claims: privileges for inmates with psychiatric

16 disabilities who experience extended stays at reception centers solely due to a psychiatric

17 disability; access to substance abuse programs for inmates with psychiatric disabilities;

18 access to minimum security facilities and community-based programs for inmates with

19 psychiatric disabilities, and access to reentry hubs for inmates with psychiatric disabilities.

20 Attorneys’ fees and costs associated with the resolution of these issues will also be

21 resolved through the Coleman process.

22

The settlement class defined by the agreement complies with Rule 23 of the Federal

23 Rules of Civil Procedure because, like the Coleman class, the class of persons seeking

24 relief through this case potentially numbers in the thousands, and the complaint seeks

25 reform of policies and procedures of general application toward all CDCR inmates with

26 psychiatric disabilities who are part of the MHSDS program. The claims alleged by the

27 named Plaintiffs who remain imprisoned – who have not been paroled during the pendency

28 of the action – are typical of the claims of the class. The named Plaintiffs and their

2
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1 experienced counsel are adequate to represent the class.

2

Further, the proposed settlement agreement is fair, adequate and reasonable. It

3 secures durable relief on numerous core disputes set forth in the operative complaint, and

4 provides a remedial process to monitor implementation of agreed-upon or ordered changes

5 to policies and procedures. The settlement additionally creates a process for negotiating

6 several additional disputes that are not yet resolved. The parties seek certification of a

7 settlement class for equitable relief under Rule 23(b)(2). In addition, the plaintiffs and the

8 putative class members will be given effective notice and will have an opportunity to

9 object consistent with Rule 23(c)(2) and (e).

10

Accordingly, Plaintiffs request that the Court: (i) conditionally certify the proposed

11 settlement class; (ii) preliminarily approve the settlement; (iii) approve the proposed form

12 of the Class Notice and proposed notice plan, including the proposed dates for Class

13 Members to object to the proposed settlement; and (iv) schedule a fairness hearing to

14 consider granting final approval.

15

RELEVANT BACKGROUND AND PROCEDURAL HISTORY

16 Plaintiffs’ Complaint; Defendants’ Motion to Dismiss; Court’s Stay of Litigation.

17

On December 5, 2005, Plaintiffs filed their complaint, alleging violations of the

18 ADA and the Rehabilitation Act. Plaintiffs filed amended complaints on February 23,

19 2006 and October 20, 2006. The complaint alleges numerous forms of discrimination on

20 the basis of psychiatric disability, including the addition of four points to the classification

21 scores of inmates with psychiatric conditions, the refusal to provide full classification

22 score reductions points to EOP inmates for “successful programming,” the exclusion of

23 inmates with psychiatric disabilities from jobs and CDCR programming, the unlawful

24 segregation of inmates using heat-sensitive medications to their cells during heat alerts, the

25 housing of inmates with psychiatric disabilities at higher security levels than their

26 classification scores would otherwise indicate, the exclusion of inmates with psychiatric

27 disabilities from community-based facilities and minimum security placements, and

28 additional forms of disability discrimination. ECF No. 1.

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1

On November 17, 2006, Defendants filed a Rule 12(b) and (f) motion to dismiss the

2 case; all briefing on the motion was completed on January 4, 2007. ECF No. 38.

3

The action was stayed by order filed March 15, 2007. ECF No. 71. The stay was

4 issued to obtain and consider “a report and recommendation as to whether the claims

5 raised [in Hecker] can be resolved within the remedial phase of [Coleman].” Id.

6 Following the Court’s referral, the Coleman special master and the deputy special master

7 conferred with the parties in Hecker by meeting jointly and separately, by telephone and in

8 person. The parties submitted their positions to the special master, and provided additional

9 information and documents. On June 12, 2007, the special master and the deputy special

10 master tendered their report and recommendation, concluding that the parties were unable

11 to “negotiate[e] an agreement to consolidation or merger of the Hecker claims into the

12 Coleman case at this time.” ECF No. 72.

13 Renewed Motions to Lift Stay; Renewed Settlement Negotiations; Settlement Agreement.

14

Plaintiffs filed a renewed motion to lift the stay on September 19, 2012. ECF

15 No. 94. On October 19, 2012, the Court denied Plaintiffs’ motion without prejudice to its

16 renewal, as appropriate, not later than March 1, 2013, and the parties were directed to meet

17 and confer with the Coleman Special Master to determine whether any Hecker issues could

18 be resolved via the Coleman remedial process. ECF No. 102. The parties met and

19 conferred with the Coleman Special Master, but again were unable, at that juncture, to

20 reach a resolution. Declaration of Michael W. Bien in Support of Motion for Preliminary

21 Approval of Class Action Settlement (“Bien Decl.”), filed herewith, ¶ 10.

22

On March 1, 2013, Plaintiffs filed a renewed motion to lift the stay. ECF No. 103.

23 On April 12, 2013, the Court denied Plaintiffs’ motion “without prejudice to its renewal, as

24 appropriate, not later than September 5, 2013.” ECF No. 107. The Court ordered the

25 parties to continue to meet and confer with the Coleman Special Master. Id. The Court

26 ordered that any renewed Plaintiffs’ motion to lift the stay be “accompanied by a joint

27 report by the parties and approved by the Coleman special master.” Id. The parties met

28 and conferred, and memorialized their meet and confer in a Joint Status Report that was

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1 approved and reviewed by Special Master Matthew Lopes and filed with the Court on

2 September 5, 2013. ECF No. 108. In that report, the parties noted that with the assistance

3 of the Coleman Special Master, they were making progress on certain disputed issues in

4 this case and stipulated that the deadline for Plaintiffs’ motion to lift the stay be extended

5 to December 31, 2013. Id. The parties continued to make progress in negotiations and

6 later agreed to extend that deadline to lift the stay until June 6, 2014. See ECF No. 119.

7 On July 10, 2014, the Court held a status conference, in which the parties informed the

8 Court that they had reached an agreement in principle to resolve the Hecker matter, which

9 forms the basis of this motion. Bien Decl. ¶ 12.

10

SUMMARY OF PROPOSED SETTLEMENT TERMS

11

As noted above, in October 2012, the Court ordered the parties to meet and confer

12 with the Coleman Special Master to determine if the issues raised in Hecker could be

13 addressed through the Coleman remedial process. The parties continued to meet and

14 confer in 2012 and 2013, and in May and June 2013, the Coleman Special Master’s team

15 visited a number of CDCR institutions and gathered information regarding the

16 implementation of CDCR policies and procedures that were at issue in the Hecker case.

17 Following the Court’s October 19, 2012 Order, the parties made significant progress in

18 resolving the issues raised in the Hecker case, resulting in the settlement agreement

19 presented here.

20

The settlement agreement memorializes agreed-upon changes in policies and

21 practices, and Defendants have agreed to providing periodic reports and data. The

22 settlement further confirms the parties’ agreement that the Coleman Special Master may

23 monitor implementation of agreed-upon or ordered changes to CDCR’s policies and

24 procedures, and that disputes and concerns regarding these commitments may be

25 addressed within the Coleman litigation by the Special Master and the Court using the

26 legal standards set forth in the ADA and the Rehabilitation Act. Further, the proposed

27 settlement agreement lists several areas in which there is no resolution as yet but that the

28 parties agree may be negotiated within the Coleman process.

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1

The terms of settlement agreement include the following:

2

Removal of Four Points Added to Classification Scores. Many of the Hecker

3 Plaintiffs and putative class members had four points added to their classification scores

4 based on their psychiatric disabilities. In 2008, the CDCR issued a memo to end the

5 practice. As of January 2014, CDCR reported that there were no remaining prisoners who

6 still had the additional four points on their classification scores. See Exhibit 1 to Bien

7 Declaration (hereinafter “Settlement Agreement”), ¶ 21.a.

8

Cessation of Restrictions on Classification Point Reductions for EOP Inmates for

9 Successful Programming. EOP inmates who are Plaintiffs or putative class members in the

10 Hecker case reported that they were denied the opportunity to achieve a yearly four-point

11 classification score reduction for successful programming. The settlement confirms that

12 EOP inmates are now entitled to earn up to a four-point reduction annually for successfully

13 programming. Settlement Agreement, ¶ 21.a.

14

Accommodations Including Meaningful Access to Equivalent Programming for

15 Heat Alert Inmates. Plaintiffs in Hecker and many putative class members who use heat-

16 sensitive medications reported that they were typically locked in their cells during heat

17 alerts under Coleman Program Guide requirements. As a result of 2013 and 2014

18 settlement discussions, CDCR amended their heat plan policies to provide that prisoners

19 taking heat-sensitive medications must be provided with reasonable accommodations

20 during heat alerts. The settlement agreement confirms that “Defendants have agreed to

21 revise their policies to provide that inmates subject to the heat plan promulgated in

22 Coleman shall receive meaningful access to equivalent programming — including out-of-

23 cell time — during heat alert days.” Settlement Agreement, ¶ 21.b.

24

Revised Process to Ensure EOP Participation in CDCR Programs and Services

25 Including Jobs and Education. EOP inmates who are Plaintiffs or putative class members

26 reported that they were excluded from CDCR programs and activities on the basis of their

27 psychiatric disabilities. Under the settlement agreement, “Defendants have agreed to

28 revise the Interdisciplinary Treatment Team (IDTT) process to ensure that the IDTT team

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1 evaluates and, if appropriate, clears Enhanced Outpatient Program (EOP) inmates for

2 participation in prison programs and services, including jobs and education.” With the

3 data and reporting requirements, described below, counsel for Plaintiffs will be able to

4 ensure that the revised process is implemented. Settlement Agreement, ¶ 21.c.

5

Additional Level II Housing for EOP Inmates. Discovery and investigation by

6 counsel for the Hecker Plaintiffs revealed that many inmates with psychiatric disabilities

7 were housed at higher security levels than were otherwise indicated by their classifications

8 scores. The settlement confirms that Defendants have added additional Level II housing

9 for EOP inmates, including the Substance Abuse Treatment Facility (SATF), a Level II

10 substance abuse program for male EOP inmates, and a Level II male EOP program at

11 Valley State Prison. Further, as described below, Defendants will periodically provide

12 data on this topic. Settlement Agreement, ¶ 21.d.

13

Opportunities for Milestone Credits for Inmates with Psychiatric Disabilities.

14 Milestone credits are sentence credits issued to CDCR prisoners who complete approved

15 rehabilitative programs. Prisoners can earn one to six weeks of credits during each 12

16 month period. Plaintiffs had objected that EOP prisoners did not have access to these

17 credits. As a result of negotiations between the parties in 2013 and 2014, CDCR amended

18 its regulations to provide that prisoners who complete EOP programs will be eligible for

19 milestones credits. The settlement agreement confirms that “Defendants have agreed to

20 make available to inmates with psychiatric disabilities milestone credit earning by granting

21 credits for existing Mental Health Services Delivery System groups, such as anger

22 management and criminal thinking groups. Defendants are also working on new

23 curriculum for additional programs that will earn them milestone credits.” This provision

24 is further subject to periodic data reporting. Settlement Agreement, ¶ 21.e.

25

ADA Grievance and Appeal Procedure for Inmates with Psychiatric Disabilities.

26 Hecker Plaintiffs and putative class members reported that they were excluded from using

27 the ADA grievance process, and/or that the standard CDCR grievance process was not

28 effective to resolve alleged discrimination because of psychiatric disabilities. The

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1 settlement agreement includes a commitment by Defendants to implement an ADA

2 grievance and appeal procedures available to inmates with psychiatric disabilities,

3 allowing them to request reasonable accommodations. Settlement Agreement, ¶ 21.f.

4

Periodic Reporting by Defendants. Under the settlement agreement, CDCR will

5 periodically report on the following:

6

 the numbers of EOP inmates and of CCCMS inmates assigned to jobs,

7

vocational, education, and substance abuse programs at each institution, and the

8

number of non-MHSDS inmates assigned to each category of program;

9

 the numbers of EOP and CCCMS inmates housed at a higher security level than

10

their points would require, and the number of non-MHSDS inmates so

11

assigned; and

12

 the percentages of EOP and CCCMS inmates earning milestone credits,

13

compared to the percentage of non-MHSDS inmates.

14 Settlement Agreement, ¶¶ 21. c, d, e. The collection and provision of this data will allow

15 Plaintiffs’ counsel to ensure that the settlement terms have been or are being implemented.

16 Defendants have already begun to provide such data and reports; these are tremendously

17 valuable in assessing compliance and institution-specific variations in compliance.

18

Monitoring of Implementation and Resolution of Remaining Disputes Within the

19 Coleman Remedial Process; Termination of Hecker Case. The parties agree that disputes

20 regarding agreed-upon or ordered changes to CDCR’s policies and procedures

21 memorialized in the settlement agreement may be resolved using the existing Coleman

22 remedial process. The parties further agree to work with the Coleman Special Master to

23 try to resolve whether any action is appropriate regarding four additional areas of dispute:

24 privileges for inmates with psychiatric disabilities who experience extended stays at

25 reception centers solely due to a psychiatric disability; access to substance abuse programs

26 for inmates with psychiatric disabilities; access to minimum security facilities and

27 community-based programs for inmates with psychiatric disabilities, and access to reentry

28 hubs for inmates with psychiatric disabilities. (Plaintiffs’ and putative class members’

8
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1 access to fire/conservation camp will not be resolved under the settlement agreement or

2 through the Coleman remedial process.) With monitoring and remedial processes in place,

3 the parties agree that the Hecker case may be dismissed with prejudice upon the

4 settlement’s final approval. The parties further agree that attorneys’ fees and costs related

5 to the claims of disability discrimination against inmates with psychiatric disabilities may

6 be resolved in the Coleman process. Settlement Agreement, ¶ 30.

7

LEGAL ANALYSIS

8 I. THE PROPOSED SETTLEMENT CLASS SHOULD BE CERTIFIED

9

Federal Rule of Civil Procedure 23(a) permits a case to be maintained as a class

10 action if:

11

(1) the class is so numerous that joinder of all members is impracticable,

(2) there are questions of law or fact common to the class, (3) the claims or

12

defenses of the representative parties are typical of the claims or defenses of

the class, and (4) the representative parties will fairly and adequately protect

13

the interests of the class.

14 Id. To demonstrate that class certification is proper, plaintiffs must show that all four of

15 these threshold requirements, and one of the three provisions of Rule 23(b), are satisfied.

16 Id.; see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 162-63 (1974); In Re Mego Fin.

17 Corp. Sec. Litig., 213 F.3d 454, 462 (9th Cir. 2000). Here, the proposed settlement

18 class — all present and future CDCR inmates with psychiatric conditions that are

19 disabilities as defined by the ADA and the Rehabilitation Act and who are allegedly

20 excluded and/or screened out from any prison program, service, or activity on the basis of

21 their assignment to or participation in the MHSDS program, including the CCCMS and

22 EOP — meets all requirements and should be certified. The settlement class, all of whom

23 are also members of the Coleman class, benefits from having its ADA and Rehabilitation

24 Act claims enforced through the existing Coleman remedial process.

25

Numerosity. Joinder of all members of the proposed class is plainly impracticable.

26 The latest data show that more than 33,000 CDCR inmates are part of the mental health

27 case load, or more than 28 percent of the inmate population. A subset of that population,

28 possibly numbering in the thousands, is alleged to have been excluded and/or screened out

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1 from a prison program, service, or activity on the basis of their psychiatric disability.

2 Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006) (finding numerosity satisfied

3 for a class of “thousands,” noting Rule 23(a)(1) requires only “substantial” numbers)

4 (citations omitted); Schwarm v. Craighead, 233 F.R.D. 655, 660 (E.D. Cal. 2006) (“[A]

5 class consisting of one thousand members clearly satisfies the numerosity requirement”)

6 (citation omitted). Certification is particularly appropriate where, as here, individual class

7 members have significant mental disabilities are and disproportionately poor. Amone v.

8 Aveiro, 226 F.R.D. 677, 684 (D. Haw. 2005) (finding joinder impracticable where

9 proposed class comprised of “individuals whose financial circumstances may prevent them

10 from pursuing individual litigation [and] who are unlikely to know that a cause of action

11 exists”); Tenants Associated for a Better Spaulding v. U.S. Dep’t of Hous. and Urban Dev.,

12 97 F.R.D. 726, 729 (N.D. Ill. 1983) (“As the plaintiff class members are or were residents

13 of federally-subsidized housing, there is a very real possibility that few, if any, of the class

14 members are in the financial position to individually pursue this action.”); Matyasovszky v.

15 Hous. Auth. of City of Bridgeport, 226 F.R.D. 35, 40 (D. Conn. 2005) (finding numerosity,

16 particularly given circumstances of class, whose members were “low income, disabled,

17 and in some cases, homeless individuals”); Arenson v. Whitehall Convalescent and

18 Nursing Home, Inc., 164 F.R.D. 659, 663 (N.D. Ill. 1996) (certifying class where

19 individuals “who are residents of a nursing home may also lack the ability to pursue their

20 claims individually”).

21

Common Questions of Law or Fact. “All questions of fact and law need not be

22 common to satisfy the rule. The existence of shared legal issues with divergent factual

23 predicates is sufficient, as is a common core of salient facts coupled with disparate legal

24 remedies within the class.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.

25 1998). Here, the class shares common questions of law or fact, as the action challenges

26 system-wide policies or practices affecting inmates with psychiatric disabilities. L.H. v.

27 Schwarzenegger, No. CIV S-06-2042 LKK/GGH, 2007 WL 662463, at *11 (commonality

28 is satisfied where “plaintiffs’ grievances share a common question of law or of fact”)

10
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1 (citing Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)). Common issues

2 predominate over any other question of law or fact.

3

Typicality. The named class representatives who remain incarcerated have claims

4 typical of the class, as they are EOP or CCCMS inmates who are subject or who have been

5 subject to the challenged policies or procedures. Thus, each is part of the class and

6 possesses “the same interest and suffer the same injury as the class members.” General

7 Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 156 (1982) (quoting East Tex. Motor Freight

8 Sys. v. Rodriguez, 431 U.S. 395 (1977); see also Hanlon v. Chrysler Corp., 150 F.3d 1011,

9 1020 (9th Cir. 1998) (claims are “typical” if “reasonably co-extensive” and “they need not

10 be substantively identical”).

11

Adequacy. The named Plaintiffs and their counsel are adequate. The named

12 Plaintiffs’ claims for injunctive relief are aligned with the interests of other class members

13 who are being or will be subjected to the same policies and practices, and the named

14 plaintiffs have no interests antagonistic to the proposed class. Walters v. Reno, 145 F.3d

15 1032, 1046 (9th Cir. 1998) (affirming finding of adequate representation where named

16 plaintiffs “interested and involved in obtaining relief” for entire class); Access Now, Inc. v.

17 Ambulatory Surgery Ctr. Group, Ltd., 197 F.R.D. 522, 528 (S.D. Fla. 2000) (certification

18 appropriate where named plaintiffs sought injunction against accessibility barriers on

19 behalf of similarly disabled persons); Hilton v. Wright, 235 F.R.D. 40, 52 (N.D.N.Y. 2006)

20 (finding claims of named prisoner plaintiffs “consistent and complementary to” those of

21 proposed class, all of whom had been refused medical treatment based on state prison

22 policy). Courts rarely decline class certification in cases such as this one, where no

23 individual damages are sought. See, e.g., Access Now, Inc., 197 F.R.D. at 528 (“[B]ecause

24 there are no individual monetary damages sought, the interests of the representative

25 Plaintiffs do not actually or potentially conflict with those of the Class.”). Class counsel

26 will fairly and adequately represent the interests of the class as they have done in the

27 Coleman matter.

28

Rule 23(b)(2). Finally, the proposed settlement class meets the requirements of

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1 Rule 23(b)(2) because the issues resolved via the parties’ settlement “apply generally to

2 the class.” Fed. R. Civ. P. 23(b)(2). As a matter seeking injunctive relief only regarding

3 system-wide policies or practices, this matter is well-suited for certification under Rule

4 23(b)(2). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases

5 against parties charged with unlawful, class-based discrimination are prime examples” of

6 Rule 23(b)(2) cases); Taylor v. Hous. Auth. of New Haven, 257 F.R.D. 23, 32 (D. Conn.

7 2009) (“Where, as here, plaintiffs allege discriminatory and unlawful systemic or policy-

8 level actions, certification under Rule 23(b)(2) is proper.”). Indeed, subdivision (b)(2) was

9 added to Rule 23 in 1966 “primarily to facilitate the bringing of class actions in the civil

10 rights area.” Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d, § 1775,

11 p. 470 (1986).

12 II. 13

THE PROPOSED SETTLEMENT AGREEMENT SHOULD BE GRANTED PRELIMINARY APPROVAL

14

Preliminary approval is an initial assessment of the fairness of the proposed

15 settlement made by a court on the basis of written submissions and presentations from the

16 settling parties. Newberg on Class Actions summarizes the preliminary approval criteria

17 as follows:

18

If the preliminary evaluation of the proposed settlement does not disclose

grounds to doubt its fairness or other obvious deficiencies, such as unduly

19

preferential treatment of class representatives or of segments of the class, or

excessive compensation for attorneys, and appears to fall within the range of

20

possible approval, the court should direct that notice under Rule 23(e) be

given to the class members of a formal fairness hearing, at which arguments

21

and evidence may be presented in support of and in opposition to the

settlement.

22

23 4 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 11:25 (4th Ed. 2002)

24 (“Preliminary Court Approval”) (quoting Manual for Complex Litigation (Third) § 30.41

25 at 237 (1995)).

26

The purpose of the preliminary approval process is to determine whether the

27 proposed settlement is within the range of reasonableness and thus whether notice to the

28 Class of the terms and conditions and the scheduling of a formal fairness hearing is

12
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1 worthwhile. Id.; see also Young v. Polo Retail, LLC, 2006 WL 3050861, at *5 (N.D. Cal.

2 Oct. 25, 2006) (same). There is an “initial presumption of fairness when a proposed class

3 settlement was negotiated at arm’s length by counsel for the class.” Murillo v. Texas A&M

4 Univ. Sys., 921 F. Supp. 443, 445 (S.D. Tex. 1996). Other factors courts consider in

5 assessing a settlement proposal include: (1) the strength of the plaintiff’s case; (2) the risk,

6 expense, complexity, and likely duration of further litigation; (3) the risk of maintaining

7 class action status throughout the trial; (4) the amount offered in settlement; (5) the extent

8 of discovery completed and the stage of the proceedings; (6) the experience and views of

9 counsel; (7) the presence of a government participant; and (8) the reaction of the class

10 members to the proposed settlement. Hanlon, 150 F.3d at 1026; see also In re Oracle Sec.

11 Litig., 829 F. Supp. 1176, 1179 (N.D. Cal. 1993). The district court must explore these

12 factors comprehensively to survive appellate review but “the decision to approve or reject

13 a settlement is committed to the sound discretion of the trial judge.” Hanlon, 150 F.3d at

14 1026.

15

Furthermore, courts must give “proper deference to the private consensual decision

16 of the parties.” Id. at 1027. Settlement is the preferred means of dispute resolution,

17 particularly in complex class litigation. Officers for Justice v. Civil Serv. Comm’n, 688

18 F.2d 615, 625 (9th Cir. 1982) (class action suit challenging allegedly discriminatory

19 employment practices by a police department). “[T]he court’s intrusion upon what is

20 otherwise a private consensual agreement negotiated between the parties to a lawsuit must

21 be limited to the extent necessary to reach a reasoned judgment that the agreement is not

22 the product of fraud or overreaching by, or collusion between, the negotiating parties, and

23 that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.”

24 Hanlon, 150 F.3d at 1027. Thus, a district court’s decision to approve a class action

25 settlement may be reversed “only upon a strong showing that the district court’s decision

26 was a clear abuse of discretion.” Id.

27

Here, the settlement agreement should be approved because it provides substantial

28 equitable relief to class members, and will ensure compliance by incorporating the existing

13
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1 remedial process available in the Coleman case. Further, the outcome of the litigation is

2 uncertain. If the case had not settled, the Court would have heard Defendants’ pending

3 motion to dismiss. In addition to opposing that motion, Plaintiffs were prepared to file a

4 motion for class certification. While the requirements for certification are met here,

5 Plaintiffs faced burdens due to the changes in CDCR policies and in the status of named

6 Plaintiffs that have occurred during the multi-year stay on litigation issued by the Court.

7 Proceeding through pre-trial motions, trial, and appeal would impose risks and costs, and

8 would substantially delay the implementation of mutually agreed remedies in this matter.

9 Given the relief achieved and the risks involved in further litigation, the negotiated

10 settlement represents a fundamentally “fair, reasonable and adequate” resolution of the

11 disputed issues and should be preliminarily approved. See Fed. R. Civ. Pro. 23(e)(2).

12 III. THE PARTIES’ STIPULATED ORDER SHOULD BE ENTERED BY THE COURT
13

14

Because the parties have reached a fair, reasonable and adequate settlement, one

15 providing substantial equitable relief to a class of thousands, the Court should enter the

16 requested stipulated order. Specifically, the Court should order conditional certification of

17 an injunctive relief settlement class and preliminary approval of the settlement agreement.

18 Further, the Court should approve the parties’ proposed notice, and should schedule a

19 hearing on final approval. These matters are set forth in the parties’ proposed stipulated

20 order. The proposed order provides that Defendants will certify that notice has been be

21 posted in locations accessible to all CDCR prisoners with thirty days of the entry of the

22 Order, and that copies of the full settlement agreement will be available in each CDCR

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

14
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1 library. The Order also provides for a sixty day period of notice for class members to

2 provide comment to the Court in advance of a hearing for final approval.

3

4 DATED: August 5, 2014

Respectfully submitted,

5

ROSEN BIEN GALVAN & GRUNFELD LLP

6

By: /s/ Michael W. Bien

7

Michael W. Bien

8

Attorneys for Plaintiffs

9

10 DATED: August 5, 2014 11

KAMALA D. HARRIS ATTORNEY GENERAL OF CALIFORNIA

12 By: /s/ Jay C. Russell

13

Jay C. Russell

14

Supervising Deputy Attorney General

15

Counsel for Defendants

16

17

18

19

20

21

22

23

24

25

26

27

28

15
MEMORANDUM OF POINTS & AUTHORITIES ISO JOINT MOTION RE: CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS & PRELIMINARY APPROVAL OF SETTLEMENT; APPROVAL OF CLASS NOTICE; & SCHEDULING OF FAIRNESS HEARING

Case 2:05-cv-02441-KJM-DAD Document 124-2 Filed 08/05/14 Page 1 of 2
NOTICE: HECKER V. CDCR CLASS ACTION SETTLEMENT REGARDING RIGHTS
OF PRISONERS WITH MENTAL ILLNESS
Hecker v. CDCR, E.D. Cal. No. 2:05-CV-02441 LKK-DAD, is a class action challenging CDCR policies, procedures and practices regarding the rights of CDCR prisoners with mental illness under the Americans with Disabilities Act (ADA) and the Rehabilitation Act. If you are an inmate with a mental illness that is a disability as defined by the ADA and the Rehabilitation Act, and have allegedly been excluded and/or screened out from any prison service, program, or activity on the basis of your disability, you are a Hecker class member.
The Court has preliminarily approved a settlement of this matter. This notice explains the proposed settlement, how you can read it, and how you can tell the court about whether you think it is fair.
The settlement provides that the issues raised in the Hecker case will now be addressed through the existing remedial process in Coleman v. Brown. Under this settlement, CDCR has also agreed to implement certain new policies or revise existing policies in the Coleman Program Guide to prevent discrimination against prisoners with mental illness.
This case does not seek money damages and none will be awarded. This case does not involve any claim for individual relief, and attorneys for the class offer no opinion as to your ability to pursue any such claims. The settlement does not affect your ability to sue for money damages or to petition for a writ of habeas corpus.
You can read the full version of the Settlement Agreement in the prison’s law library. The settlement agreement includes provisions that CDCR will implement procedures to ensure that:
 Prisoners in the Enhanced Outpatient Program will have access to jobs and educational and vocational programs, if approved by their treatment team.
 Prisoners taking heat-sensitive medications will receive reasonable accommodations to allow time outside their cells during heat alerts.
 EOP prisoners will have access to milestones credits for participation in EOP groups and other programs
 Requests for Accommodation through the CDC Form 1824 process from prisoners with mental illness will be processed under the procedures set out for prisoners with physical disabilities.
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Fees for Plaintiffs’ counsel’s work in this case will not be resolved through this settlement, but will be addressed as part of the Coleman case.

The court will hold a hearing on the fairness of the settlement on _______, 2014 at _____ a.m./p.m., at the United States Courthouse in Sacramento, Courtroom ___.

Prisoners can write to the federal court about whether the settlement is fair. Comments MUST include at the top of the first page the case name, Hecker v. CDCR. Comments must be postmarked no later than _________, 2014, and sent to the following address: Clerk of the Court, United States District Court, Eastern District of California, 501 "I" Street, Sacramento" CA 95814

If you have additional information about the case, or to share your experience regarding the issues addressed in the case, please contact the attorneys for the Plaintiff class at the following addresses:

Rosen, Bien Galvan & Grunfeld, LLP P.O. Box 390 San Francisco, CA 94104

American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111

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[1245672-2]

1 CLAUDIA CENTER – 158255 AMERICAN CIVIL LIBERTIES UNION
2 FOUNDATION DISABILITY RIGHTS PROGRAM
3 39 Drumm Street San Francisco, California 94111
4 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
5 Email: ccenter@aclu.org

6 MICHAEL W. BIEN – 096891

ERNEST GALVAN – 196065

7 BLAKE THOMPSON – 255600

ROSEN BIEN

8 GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

9 San Francisco, California 94104-1823

Telephone: (415) 433-6830

10 Facsimile: (415) 433-7104

Email: mbien@rbgg.com

11

egalvan@rbgg.com

bthompson@rbgg.com

12

Attorneys for Plaintiffs

13

14 UNITED STATES DISTRICT COURT
15 EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
16

17 ROBERT HECKER, et al.,
18 Plaintiffs,
19 v.
20 CALIFORNIA DEPARTMENT OF
21 CORRECTIONS AND REHABILITATION, et al.,
22 Defendants.
23

Case No. 2:05-CV-02441 LKK-DAD
DECLARATION OF MICHAEL W. BIEN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Judge: Hon. Lawrence K. Karlton
Trial Date: Not Set

24

25

26

27

28

DECLARATION OF MICHAEL W. BIEN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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1

I, Michael W. Bien, declare:

2

1. I am an attorney admitted to practice law in California, a member of the bar

3 of this Court, and a partner in the law firm of Rosen Bien Galvan & Grunfeld LLP, counsel

4 of record for Plaintiffs. I have personal knowledge of the matters set forth herein, and if

5 called as a witness I could competently so testify. I make this declaration in support of the

6 Joint Motion for Preliminary Approval of the Settlement Agreement. I am also counsel of

7 record for the Plaintiffs in Coleman v. Brown, in which the Plaintiff class of prisoners with

8 mental illness have pursued claims against CDCR officials under the Eighth Amendment.

9 I. 10

INTRODUCTION TO THE PROPOSED SETTLEMENT AND RELIEF SOUGHT BY THIS MOTION

11

2. The Joint Motion seeks preliminary approval of the settlement of this class

12 action—a settlement that has come seven years after the case was stayed, and after

13 approximately 22 months of the most recent round of negotiations with Defendants and the

14 Coleman Special Master. As a result of these negotiations, a settlement agreement was

15 reached, pursuant to which the parties agreed, as described below, to merge the issues

16 remaining in Hecker into the Coleman Remedial process. Attached hereto as Exhibit 1 is

17 a true and correct copy of the Settlement Agreement signed by counsel on August 4, 2014.

18 As described below, I believe that this Settlement Agreement confers a significant benefit

19 on the class of prisoners with psychiatric disabilities, achieving important changes in

20 prison policies and procedures, while avoiding costly, prolonged litigation.

21

3. Pursuant to the terms of the Settlement Agreement, the parties now move for

22 entry of the proposed “Order Granting Joint Motion for Preliminary Approval of Class

23 Action Settlement,” filed herewith, which accomplishes the following:

24

a. grants preliminary approval of the proposed Settlement;

25

b. schedules a date for the fairness hearing to consider final approval of

26 the Settlement;

27

c. approves the form and content of the notice to the class

28
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1

4. In the paragraphs that follow, I describe the factual background and

2 procedural history of this lawsuit and summarize the terms of the proposed Settlement. I

3 also provide information about why this settlement is fair and reasonable. Accompanying

4 this Declaration is the Memorandum of Points and Authorities in Support of Joint Motion

5 for Preliminary Approval of Class Action Settlement and Injunctive Relief, which

6 demonstrates why, under governing decisional law, this Court should preliminarily

7 approve the proposed Settlement and grant the relief requested in the Motion.

8 II. PLAINTIFFS’ SUIT AND THE LITIGATION HISTORY

9

A. History of Litigation

10

5. On December 5, 2005, Plaintiffs filed their complaint, alleging violations of

11 the Americans with Disabilities Act and the Rehabilitation Act of 1973. Plaintiffs filed

12 amended complaints on February 23, 2006 and October 20, 2006.

13

6. On November 17, 2006, the defendants filed a Rule 12(b) and (f) motion to

14 dismiss the case; all briefing on the motion was completed on January 4, 2007.

15

7. The action was stayed by order filed March 15, 2007. The stay was issued to

16 obtain and consider “a report and recommendation as to whether the claims raised [in

17 Hecker] can be resolved within the remedial phase of [Coleman].” Following the Court’s

18 referral, the Coleman special master and the deputy special master conferred with the

19 parties in Hecker by meeting jointly and separately, by telephone and in person. The

20 parties submitted their positions to the special master, and provided additional information

21 and documents. On June 12, 2007, the special master and the deputy special master

22 tendered their report and recommendation. The report concluded that the parties’ were not

23 able to “negotiate[e] an agreement to consolidation or merger of the Hecker claims into the

24 Coleman case at this time.”

25

8. On December 14, 2007, Plaintiffs filed a motion to lift the stay. The Court

26 did not rule on the motion. In the meantime, the parties and the Court proceeded through a

27 period of intense litigation in Coleman regarding overcrowding and bed planning in CDCR

28 prisons. In November 2006, Plaintiffs in Coleman filed a motion for appointment of a
2
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1 three-judge panel to address overcrowding. That motion was re-briefed in May and June

2 of 2007, and the three judge panel was convened in July 2007. The parties conducted

3 discovery and trial preparation from July 2007 through October 2008. The three judge

4 court held trial proceedings in November and December 2008, and issued a tentative ruling

5 in February 2009 and an opinion and order in August 2009. Additional briefing regarding

6 the remedy was conducted in the fall of 2009, and the Court entered a further remedial

7 order in January 2010. The decision of the three judge court was appealed to the United

8 States Supreme Court, and the Supreme Court affirmed the decision on May 3, 2011.

9 After the overcrowding trial ended, the parties in Coleman also embarked on a massive

10 bed planning process leading to the Court’s July 13, 2012 order on the “sustainable

11 process” for addressing inpatient mental health care. See Coleman Docket No. 4214.

12

9. Plaintiffs filed a renewed motion to lift the stay on September 19, 2012. On

13 October 19, 2012, the Court denied Plaintiffs’ motion without prejudice to its renewal, as

14 appropriate, not later than March 1, 2013, and the parties were directed to meet and confer

15 with the Coleman Special Master to determine whether any Hecker issues could be

16 resolved in the Coleman remedial process.

17

10. The parties met and conferred with the Coleman Special Master, but in the

18 midst of that meet and confer process in January 2013 the Coleman Defendants moved to

19 terminate the Coleman case. As such, the parties were not able to agree to resolve Hecker

20 issues within the Coleman remedial process.

21

11. On March 1, 2013, Plaintiffs filed a renewed motion to lift the stay. On

22 April 12, 2013, the Court denied Plaintiffs’ motion “without prejudice to its renewal, as

23 appropriate, not later than September 5, 2013.” The Court ordered the parties to continue

24 to meet and confer with the Coleman Special Master. The Court ordered that any renewed

25 Plaintiffs’ motion to lift the stay be “accompanied by a joint report by the parties and

26 approved by the Coleman special master.”

27

12. The parties met and conferred, and memorialized their meet and confer in a

28 Joint Status Report that was approved and reviewed by Special Master Matthew Lopes and
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1 filed with the Court on September 5, 2013. In that report, the parties noted that they were

2 making progress with the assistance of the Coleman Special Master on certain disputed

3 issues in this case and stipulated that the deadline for Plaintiffs’ motion to lift the stay be

4 extended to December 31, 2013. The parties continued to make progress in negotiations

5 and later agreed to extend that deadline to lift the stay until June 6, 2014. On July 10,

6 2014, the Court held a status conference, in which the parties informed the Court that they

7 had reached an agreement in principle to resolve the Hecker matter, which formed the

8 basis of this motion.

9

B. History of Negotiations and Policy Changes Prior to 2012

10

13. The issues raised in this case have been discussed by the parties in Coleman

11 dating back to even before the Hecker complaint was filed. For example, in the latter part

12 of 2005, the Coleman parties were heavily involved in negotiations over various aspects of

13 the Coleman Program Guide that addressed the discrimination problems that became part

14 of the Hecker case. On February 3, 2006, the Coleman Special Master issued a report, but

15 noted that at that time the legal determination as to the resolution of the discrimination

16 issues was beyond the jurisdiction of the special master.

17

14. During the period the case was stayed, the parties continued to address

18 discriminatory practices within Coleman, particularly where those practices undermined

19 access to constitutionally required mental health care.

20

15. For example, on March 30, 2007, CDCR issued two memoranda addressing

21 access to programming for prisoners with psychiatric disabilities. One memorandum,

22 entitled “CCCMS Housing and Program Accessibility,” stated that prisoners at the

23 CCCMS level of care should be assessed for eligibility for programs on an individualized

24 basis, and that no inmate should be excluded from programming because of his or her

25 status in the Mental Health Services Delivery System. The other memorandum, entitled

26 “EOP Accessibility to General Population Prison Programs,” stated that prisoners at the

27 EOP level of care are eligible for all prison programs and activities if the prisoner’s

28
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1 Interdisciplinary Treatment Team determines that the programming is consistent with the

2 prisoner’s treatment.

3

16. Similarly, on September 5, 2008, CDCR issued a memorandum directing

4 that CDCR discontinue the assessment of four points to the classification score of

5 prisoners participating in the Mental Health Services Delivery System.

6

17. While the case was stayed, the parties also made progress on the problem of

7 CDCR housing some prisoners in higher security levels solely because of their psychiatric

8 disability. One cause of this problem was that, until recently, CDCR had no Level I or

9 Level II housing for prisoners at the EOP level of care. EOP prisoners therefore could

10 only be housed in Level III and Level IV housing units. Through the bed-planning process

11 in Coleman, however, the parties negotiated to open a Level II EOP program at the

12 Substance Abuse Treatment Facility (“SATF”) in Corcoran and eventually another Level

13 II program at Valley State Prison in Chowchilla. As part of the Level II program in SATF,

14 EOP prisoners there also now have access to a substance abuse program for individuals

15 with co-occurring disorders (substance abuse and mental illness).

16

18. Another issue of discrimination that has been addressed in part in Coleman is

17 the disproportionate number of prisoners with psychiatric disabilities in administrative

18 segregation and the SHU. One of the causes of this problem is that prisoners with

19 psychiatric disabilities are continually punished for behavior caused by their disability.

20 Plaintiffs in Coleman have objected to the way prisoners with mental illness are

21 disciplined, and CDCR issued a new policy in November 2011. This policy, however, did

22 not resolve the disproportionate incidence of discipline against prisoners with psychiatric

23 disabilities. As a result, CDCR’s discipline policies and practices were a subject of a

24 motion brought by the Coleman Plaintiffs on May 9, 2013. On April 10, 2014 the

25 Coleman Court issued an Order requiring, among other things, Defendants to develop a

26 plan to limit the placement of prisoners with mental illness in segregations for non-

27 disciplinary reasons, and that Defendants are prohibited from placing prisoners in the SHU

28 unless a clinician certifies that the behavior leading to the SHU placement was not the
5
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1 product of mental illness. In the April 10, 2014 Order, the Court also ordered that CDCR

2 revise its use of force policies, in response to Plaintiffs’ May 29, 2013 motion showing the

3 disproportionate use of force against mentally ill prisoners.

4

19. During this period, we also continued to be in regular communication with

5 Coleman class members about the issues raised in the Hecker case. This communication

6 included contacts with individual class members who were reporting that they were not

7 receiving reasonable accommodations for their disabilities, or who were being

8 discriminated against because of their mental illness. We also conducted a large scale

9 survey of hundreds of Coleman class members to determine what issues raised in the

10 complaint were still most problematic.

11

C. Recent Negotiations with CDCR and Coleman Special Master

Starting in October 2012

12

13

20. As noted above, in October 2012, the Court again ordered the parties to meet

14 and confer with the Coleman special master to determine if the issues raised in Hecker

15 could be addressed through the Coleman remedial process. The parties met and exchanged

16 information in November and December 2012, but that process was interrupted in early

17 2013 by the filing of a termination motion in Coleman. After the termination motion in

18 Coleman was denied on April 5, 2013, the parties resumed meeting and conferring soon

19 thereafter. In May and June 2013, the Coleman Special Master’s team also visited a

20 number of CDCR institutions and gathered information regarding the implementation of

21 CDCR policies and procedures that were at issue in the Hecker case.

22

21. Since the Court’s October 19, 2012 Order, the parties have made significant

23 progress in resolving the issues raised in the Hecker case. During these negotiations,

24 Defendants have been generally very receptive and willing to investigate the causes of the

25 problems we have identified, and to propose policy solutions for many of these problems.

26 Examples of specific issues where progress has been made are discussed below.

27

22. Four Points Added to Classification Scores - As noted above, CDCR had

28 issued a memorandum on September 5, 2008 stating that prisoners should not have four
6
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1 points added to their classification score on account of their mental illness, and that all

2 prisoners for whom the four points have been added should have them removed. As of

3 April 2013, however, CDCR reported that there were still approximately 1,300 prisoners

4 who had initially received four points added on account of their mental illness that had not

5 been removed. Through these negotiations in 2013 and 2014, CDCR provided updates as

6 to their efforts to remove these points from the remaining prisoners. As of January 2014,

7 CDCR reported that there were no remaining prisoners who still had the additional four

8 points on their classification scores.

9

23. Exclusion from Jobs, Education and Vocational Programs – As noted above,

10 CDCR had issued memoranda in March 2007 regarding the eligibility of prisoners with

11 mental illness for participation in various CDCR programs. These memoranda, however,

12 were so vague that they did not eliminate the discriminatory practices that were preventing

13 prisoners with psychiatric disabilities from accessing prison employment, educational,

14 vocational, and other programs. As part of the meet and confer process with the Coleman

15 Special Master, in 2013 and 2014, however, CDCR gathered data about the job and

16 program assignments of prisoners with psychiatric disabilities. This data identified some

17 CDCR prisons where prisoners with psychiatric disabilities were not being assigned to jobs

18 and educational and vocational programs. Then, on March 3, 2014, CDCR issued another

19 memorandum setting out the process by which prisoners in the Enhanced Outpatient

20 Program (“EOP) must be evaluated for participation in jobs and programs. CDCR

21 reported to us that training regarding this procedure was scheduled to be conducted in June

22 2014.

23

24. Accommodations for Prisoners Taking Heat Sensitive Medications – Under

24 the “heat plan” set out in Coleman, prisoners who are taking heat-sensitive medications

25 (which includes many psychiatric medications) must be moved to a cooler environment

26 when the temperature outside reaches above ninety degrees. Plaintiffs, however, have

27 objected that instead of providing these prisoners with reasonably equivalent out-of-cell

28 time during “heat alerts,” prisoners on heat-sensitive medications have instead been simply
7
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1 locked up in their cells. As a result of our discussions with CDCR in 2013 and 2014,

2 CDCR amended their heat plan policies in the spring of 2014 to provide that prisoners

3 taking heat-sensitive medications must be provided with reasonable accommodations

4 during heat alerts.

5

25. Milestones Credits – Milestone credits are sentence credits issued to CDCR

6 prisoners who complete approved rehabilitative programs. Prisoners can earn one to six

7 weeks of credits during each 12 month period. Plaintiffs had objected that prisoners in the

8 Enhanced Outpatient Program did not have access to these credits. As a result of our

9 negotiations with Defendants in 2013 and 2014, in May 2014 CDCR amended its

10 regulations to provide that prisoners who complete EOP programs will be eligible for

11 milestones credits.

12

26. Requests for Accommodations and Grievances – As part of Armstrong v.

13 Brown, an ADA lawsuit brought on behalf of prisoners with various physical disabilities,

14 CDCR created a “Request for Accommodation” CDC 1824 form, which allowed prisoners

15 to request disability accommodations, appeal denials of accommodations, and address

16 issues of disability discrimination. If prisoners with psychiatric disabilities requested

17 accommodation, however, those appeals and requests were “screened out” out of the ADA

18 grievance process. In 2014, however, CDCR agreed to revamp its ADA appeals process,

19 and to include requests from prisoners with psychiatric disabilities in that request for

20 accommodation process.

21 III. TERMS OF THE SETTLEMENT AGREEMENT

22

27. As part of the meet and confer process, in addition to the substantive changes

23 outlined above, the parties also reached an agreement that the issues raised in Hecker could

24 be addressed through the Coleman Remedial Process. The key terms of the settlement,

25 which is set out in full in Exhibit A, are as follows:

26

 The parties agreed that the Coleman Program Guide shall be amended so that

27

certain policies, practices, and procedures (such as those discussed in

28
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1

paragraphs 22 -26 above) are modified to ensure that the rights of prisoners

2

with psychiatric disabilities are not violated.

3  As to certain other disputed issues, the parties agreed to continue to negotiate
4 with the Coleman Special Master to attempt to resolve their differences.
5

6

 As part of the monthly production of data in Coleman, Defendants will

7

produce data regarding the number of prisoners in the Mental Health

8

Services Delivery System assigned to jobs and programs at each institution,

9

the number of MHSDS prisoners receiving milestones credits, and the

10

number of MHSDS prisoners housed at a higher security level than their

11

classification score would require.

12  If the parties have a dispute about the implementation of CDCR policies or
13 practices that Plaintiffs claim violate the ADA or Rehabilitation Act, the
14 parties agree that the Coleman Court should address whether the policies or
15 practices violate the ADA or Rehabilitation Act, and if so, what prospective
16 relief is appropriate.
17

18

 As to the exclusion of prisoners with psychiatric disabilities from CDCR’s

19

fire/conservation camps, the parties determined that they could not reach an

20

agreement, and that those claims would be dismissed without prejudice.

21

 The parties agreed that a Notice of Settlement of the Hecker Action would be 22

submitted for approval by the Court, and subject to such approval, to be

23

posted in all CDCR institutions. The parties agreed to request a fairness

24

hearing on the Hecker settlement to be set at a reasonable time after the

25

posting of notice, to allow for the receipt and consideration of class member

26

objections. Following that hearing, if the settlement was approved, the

27

Hecker case would be dismissed.

28

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1

 Plaintiffs’ counsel’s claim for reasonable attorney’s fees incurred in the

2

Hecker matter would be addressed through the quarterly fees process already

3

established in Coleman.

4 IV.
5
6

THE SETTLEMENT CLASS MEETS ALL REQUIREMENTS FOR CONDITIONAL CERTIFICATION OF A RULE 23(b)(2) CLASS FOR SETTLEMENT PURPOSES

7

28. Accompanying this Declaration is Plaintiffs’ Memorandum of Points and

8 Authorities in Support of Joint Motion for Preliminary Approval of Class Action

9 Settlement and Injunctive Relief that demonstrates why, under governing law, this Court

10 should preliminarily approve the proposed Settlement and grant the relief requested in the

11 instant motion.

12

29. This settlement agreement, which was reached after a meet and confer

13 process with the Coleman Special Master that lasted almost two years, was the result of

14 extended arms-length negotiations to find a way to address Plaintiffs’ claims of disability

15 discrimination, consistent with the Court’s suggestions that these claims be addressed

16 within the Coleman Remedial Process.

17

30. I believe that this settlement is fair, reasonable, and very beneficial to the

18 class of prisoners with mental illness. This settlement agreement allows the parties to

19 implement appropriate remedies to protect the Plaintiff class, without requiring additional,

20 costly litigation with results that would be uncertain. As outlined above, as part of this

21 settlement process, Defendants have made significant and positive efforts to put in place

22 policies to solve the problems that were identified in the Hecker complaint that was first

23 filed in 2005. This settlement requires major changes to the Coleman Program Guide to

24 make sure these policies are implemented on a permanent basis, and a process to resolve

25 several remaining disputed issues. CDCR will now produce data on a monthly basis to

26 evaluate whether these modified policies are having the intended effect of increasing

27 access for prisoners with psychiatric disabilities and eliminating discrimination against

28 prisoners with mental illness. The implementation of these changes will also now also be
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1 monitored by the Coleman Special Master’s team. This settlement also provides a

2 mechanism to resolve disputes if future problems persist, in that Plaintiffs can bring the

3 matter before the Coleman court for resolution. This agreement effectively amends

4 Coleman to cover the issues raised in Hecker, providing class members with an

5 opportunity to obtain relief from the Court if violations of the ADA and Rehabilitation Act

6 continue. If such litigation is required, the monitoring by the Special Master’s team and

7 data collected by CDCR will allow the parties to litigate any disputed matters in an

8 efficient and effective manner.

9

31. In the absence of an approved settlement, Plaintiffs would face lengthy and

10 substantial litigation, with no guarantee that any relief would be obtained. This case has

11 already been stayed for more than seven years, without any court-ordered relief for CDCR

12 prisoners with psychiatric disabilities. There are a number of risks to continuing to litigate.

13 For example, Defendants have a pending motion to dismiss the case. If that motion were

14 to be denied, Plaintiffs would have to file a successful motion for class certification, and

15 then navigate motions for summary judgment and trial. Such litigation hurdles always

16 create risks and uncertainty, and this settlement allows for immediate relief to the class.

17

32. This settlement is not contingent on obtaining attorneys’ fees for Plaintiffs’

18 counsel. The agreement provides that Plaintiffs’ counsel’s request for reasonable

19 attorneys’ fees will be addressed through the Coleman quarterly fees process. The

20 agreement also provides that Plaintiffs’ counsel have agreed to seek only those rates

21 allowed under the Prison Litigation Reform Act. If this case would have been litigated to

22 verdict, Plaintiffs’ counsel would have been entitled to their regular hourly rates, not

23 limited to the rates under the PLRA. See Armstrong v. Davis, 318 F.3d 965, 973-74 (9th

24 Cir. 2003).

25

33. In evaluating the fairness of the proposed settlement, Plaintiffs’ Counsel

26 have also communicated with class members, including the named class representatives

27 who are still in prison. All of the named Plaintiffs who are currently incarcerated signed

28
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1 the Settlement Agreement and voiced support for the changes in policy and procedure

2 identified in the Settlement Agreement.

3

34. Plaintiffs’ Counsel have extensive experience in class action litigation on

4 behalf of prisoners (as well as many other types of class action lawsuits). We have served

5 as lead or lead co-counsel in major cases representing prisoners or classes of prisoners in

6 actions resulting in systemic injunctive relief and the development of policies and

7 procedures to implement such relief. One example specifically relevant to this case,

8 concerning the rights of prisoners under the ADA and Rehabilitation Act, is Armstrong v.

9 Schwarzenegger, N.D. Cal. Case No. C94-2307 CW. Plaintiffs’ Counsel also have

10 considerable expertise in monitoring and enforcing complex post-judgment remedial

11 policies and procedures concerning the rights of large classes of prisoners and parolees.

12 Based on the experience of Plaintiffs’ Counsel, their contacts with class members, experts

13 and other professionals in the field, and the legal uncertainties, delay, and risks associated

14 with pursuing the class claims through trial and/or appeal, Plaintiffs’ Counsel believe the

15 proposed settlement is fair, adequate and reasonable, is in the best interest of the class, and

16 confers significant advantages to the class.

17

I declare under penalty of perjury under the laws of the United States and the State

18 of California that the foregoing is true and correct, and that this declaration is executed at

19 San Francisco, California this 5th day of August, 2014.

20

21

22

/s/ Michael W. Bien

Michael W. Bien

23

24

25

26

27

28
12
DECLARATION OF MICHAEL W. BIEN IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 14 of 38
Exhibit A

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 15 of 38

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11

12
ROBERT HECKER, et al., on behalf of 13 themselves and others similarly situated,

SETTLEMENT AGREEMENT Judge:

14

Plaintiffs, The Honorable Lawrence K. Karlton

15

v.

Action Filed: December 1, 2005

16

CALIFORNIA DEPARTMENT OF

2:05-cv-2441 LKK DAD (PC)

17 CORRECTIONS AND

REHABILITATION, et al.,

18

Defendants.

19

2:90-cv-0520 LKK DAD

20 RALPH COLEMAN, et al.,,

21

Plaintiffs,

22

v.

23 EDMUND G. BROWN, JR., et al.,
24 Defendants.
25

26

27

28
[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 16 of 38

1 I. RECITALS

2 1. This action was filed on December 1, 2005. In the presently operative
3 pleading, the Second Amended Complaint, Plaintiffs Robert Hecker, Christopher Lee
4 Jenkins, Peter Taylor, Ying Watt, Askia Ashanti, Ronald Auld, John Mueller, Daniel
5 Hunley, Joseph Cox, Eddie Thomas, Brian K. Stafford, Michael Lovelace, Bobby Daniels,
6 Quinton Gray, John Wesley Williams, Samuel D’Angelo and Jon Schooley, alleged that
7 their rights were being violated under the Americans with Disabilities Act and section 504
8 of the Rehabilitation Act. Plaintiffs alleged, among other things, that Defendants:
9

10

have adopted, implemented, ratified, and/or failed to abolish numerous unnecessary and discriminatory policies, practices and procedures affecting

11

the inmates participating in the MHSDS [Mental Health Services Delivery

System] including the EOP [Enhanced Outpatient Program] and the

12

CCCMS [Correctional Clinical Case Management System].

13

14 (Second Amended Complaint, Docket No. 35, at 12.) Plaintiffs alleged “systemwide,

15 statewide policies, practices, and procedures [that] function to discriminate against

16 inmates with severe psychiatric disabilities; exclude them from programs, services, and

17 activities; retaliate against them; and segregate them unnecessarily.” Plaintiffs further

18 sought to represent “a class of all present and future California inmates of the CDCR with

19 psychiatric conditions that are disabilities as defined by the ADA and the Rehabilitation

20 Act who are excluded and/or screened out from any prison program, service, or activity on

21 the basis of their assignment to or participation in the MHSDS program, including the

22 EOP and CCCMS.” (Id. at 14.)

23

2. Before the Hecker action was filed, the parties in Coleman v. Brown, E.D.

24 Cal. No. cv 90-0520 LLK, had attempted to negotiate provisions of the Coleman Program

25 Guide (which describes policies and procedures for provision of mental health care for

26 California prison inmates) regarding program access and disability discrimination for

27 prison inmates with psychiatric disabilities. The parties did not reach a resolution.

28
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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 17 of 38

1 3. On February 3, 2006, the Coleman Special Master issued his report and
2 recommendation concerning the Program Guide, concluding that the parties’ disputes
3 concerning alleged disability discrimination could not be resolved by the Special Master
4 at that time.
5 4. On November 27, 2006, Defendants filed a motion to dismiss the Hecker
6 action.
7 5. On March 15, 2007, the Court issued an order staying the Hecker litigation,
8 and referred the matter to the Coleman Special Master to determine whether the claims
9 raised in the present litigation could be resolved within the remedial phase of Coleman.
10 The Coleman Special Master filed a report on June 12, 2007 stating that the parties were
11 not able to resolve the dispute at that time.
12 6. The Hecker Plaintiffs filed motions to lift the stay on December 14, 2007,
13 and again on September 9, 2012 and March 1, 2013. On October 19, 2012, the Court
14 ordered that the parties meet and confer under the guidance of the Coleman Special
15 Master to determine again whether the issues in the Hecker action could be resolved
16 through the Coleman remedial process.
17 7. Since that date, the parties have engaged in settlement negotiations with the
18 assistance of the Coleman Special Master. On May 5, 2014, the Court entered an order
19 extending the stay to June 6, 2014.
20 8. While the case has been stayed, the parties have resolved issues concerning
21 some of the specific policies, practices, and procedures that may have excluded some EOP
22 and CCCMS participants from some of the benefits of the services, programs, and
23 activities operated by CDCR, and may have discriminated against individuals with
24 psychiatric disabilities. These specific issues are listed below at Paragraph 21. To
25 facilitate resolution of these issues, the parties agree that the Coleman Program Guide
26 shall be amended to reflect these changed policies, practices, and procedures. The parties
27

28
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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 18 of 38

1 further agree that implementation of the modified replacement polices, practices and

2 procedures may be enforced by the Court as part of the Coleman class action litigation.

3 9. During the period of the Hecker stay, the parties also identified specific

4 policies, practices, and procedures as to which there is no agreement regarding any past or

5 present effect of exclusion or discrimination. Therefore, as to these issues, which are

6 identified in Paragraph 22 below, the parties have reached no agreement that a remedy is

7 required. The parties, however, have agreed that these issues are appropriate for

8 resolution within the Coleman remedial process.

9 10. During the period of the Hecker stay, the parties also identified specific

10 policies, practices and procedures that Defendants maintain are legally justified, do not

11 unlawfully have the effect of excluding or discriminating against EOP and CCCMS

12 prisoners, and therefore cannot be addressed in the Coleman remedial process. These

13 specific issues are listed at Paragraph 23 below. The parties agree that as to these specific

14 issues, there is no remedy in Coleman, and any claims as to them will be dismissed in

15 Hecker without prejudice.

16 11. The parties agree that solely for purposes of settlement and judicial approval

17 of this Agreement, they stipulate that the putative class in Hecker—specifically, all

18 present and future CDCR inmates with psychiatric conditions that are disabilities as

19 defined by the ADA and the Rehabilitation Act and who are allegedly excluded and/or

20 screened out from any prison program, service, or activity on the basis of their assignment

21 to or participation in the MHSDS program, including the CCCMS and EOP—may be

22 certified as a class for settlement purposes under Federal Rule of Civil Procedure 23(b)(1),

23 and that an order may be entered, after notice to the class and an opportunity to object,

24 finding the settlement to be fair and reasonable as to this settlement class.

25 12. All parties and their counsel recognize that, in the absence of an approved

26 settlement, they face lengthy and substantial litigation, including motions to dismiss,

27 motions for class certification, formal discovery, motions for summary judgment, and trial

28

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 19 of 38

1 and potential appellate proceedings, all of which will consume time and resources and

2 present the parties with ongoing litigation risks and uncertainties. The parties wish to

3 avoid these risks, uncertainties, and consumption of time and resources through a

4 settlement under the terms and conditions of this Agreement.

5 ACCORDINGLY, without any admission or concession by Defendants of any

6 liability or wrongdoing with respect to the allegations in the complaint, and without any

7 admission or concession by Defendants of any systemic violation of the ADA or the

8 Rehabilitation Act, the complaint, and all claims made in it, shall be finally and fully

9 compromised, settled, and released, and the action dismissed with prejudice upon and

10 subject to the terms and conditions of this Agreement, which the parties enter into freely,

11 voluntarily, knowingly, and with the advice of counsel.

12 II. PARTIES

13 13. Plaintiffs Robert Hecker, Christopher Lee Jenkins, Peter Taylor, Ying Watt,

14 Askia Ashanti, Ronald Auld, John Mueller, Daniel Hunley, Joseph Cox, Eddie Thomas,

15 Brian K. Stafford, Michael Lovelace, Bobby Daniels, Quinton Gray, John Wesley

16 Williams, Samuel D’Angelo, and Jon Schooley have been at relevant periods inmates of

17 the California Department of Corrections and Rehabilitation and participates in the Mental

18 Health Services Delivery System (MHSDS) at both the Enhanced Outpatient Program

19 (EOP) and Clinical Correctional Case Management System (CCCMS) levels of care as

20 defined by the Coleman Program Guide. Plaintiffs allege that they are persons with

21 disabilities within the meaning of all applicable statues, and are qualified persons with

22 disabilities within the meaning of Title II of the ADA and Section 504 of the

23 Rehabilitation Act of 1973. Plaintiffs allegedly represent a class of all present and future

24 CDCR inmates with psychiatric conditions that are disabilities as defined by the ADA and

25 the Rehabilitation Act who are excluded and/or screened out from any prison program,

26 service, or activity on the basis of their assignment to or participation in the MHSDS

27 program, including the EOP and CCCMS.

28

[1251989-1]

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1 14. Defendants are CDCR, the Governor of the State of California, CDCR’s
2 secretary, CDCR’s undersecretary, CDCR’s Director of Adult Institutions, and the
3 Warden of the California Medical Facility. Each Defendant is a state official sued in his
4 or her official capacity.
5 III. JURISDICTION
6 15. This Court has jurisdiction under 28 U.S.C §§ 1331, 2201, and 2202.
7 IV. VENUE
8 16. Venue is proper under 28 U.S.C. § 1391(b), because a substantial part of the
9 events alleged by Plaintiff occurred within the Eastern District of California.
10 V. CERTIFICATION OF A SETTLEMENT CLASS, NOTICE, OBJECTIONS, FAIRNESS HEARING
11

12

17. The parties shall jointly request certification of a settlement class to be

13 defined as all present and future CDCR inmates with psychiatric conditions that are

14 disabilities as defined by the ADA and the Rehabilitation Act and who are allegedly

15 excluded and/or screened out from any prison program, service, or activity on the basis of

16 their assignment to or participation in the MHSDS program, including the CCCMS and

17 EOP (the Hecker class.)

18

18. The parties shall lodge their joint request for certification of the Hecker

19 class along with a Notice of Settlement of the Hecker Action to be submitted for approval

20 by the Court, and subject to such approval, to be posted in all CDCR institutions.

21

19. The parties shall jointly request a fairness hearing on the Hecker settlement

22 to be set at a reasonable time after the posting of notice to allow for the receipt and

23 consideration of class member objections.

24

20. If this Agreement is not approved by the Court, the parties shall be restored

25 to their respective positions in the action as of the date on which the Agreement was

26 entered, the terms and provisions of this Agreement shall have no force and effect, and

27 shall not be used in this action or in any proceeding for any purpose, and the litigation of

28 this action would resume as if there had been no settlement, with no stipulated class.

[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 21 of 38

1 VI. TERMS AND CONDITIONS

2 21. The parties agree that the Coleman Program Guide shall be amended, where
3 necessary, so that the following polices, practices, and procedures have been or will be
4 modified:
5 a. Prior Policy, Practice, or Procedure: Automatic Addition of Four
6 Points to Custody Score of Persons in the MHSDS.
7 Modified Policy, Practice, or Procedure: Defendants no longer add
8 four points to the classification scores of inmates for participation in the Mental Health
9 Services Delivery System, and they have removed the four points previously added to
10 inmate classification scores on that basis.
11 b. Prior Policy, Practice, or Procedure: Lack Of Reasonable
12 Accommodations During Heat Alerts.
13 Modified Policy, Practice, or Procedure: Defendants have agreed to
14 revise their policies to provide that inmates subject to the heat plan promulgated in
15 Coleman shall receive meaningful access to equivalent programming—including out-of-
16 cell time—during heat alert days.
17 c. Prior Policy, Practice, or Procedure: Lack of Access to Programming
18 and Jobs.
19 Modified Policy, Practice, or Procedure: Defendants have agreed to
20 revise the Interdisciplinary Treatment Team (IDTT) process to ensure that the IDTT team
21 evaluates and, if appropriate, clears Enhanced Outpatient Program (EOP) inmates for
22 participation in prison programs and services, including jobs and education. Defendants
23 agree that, as part of the Coleman monthly data production, or through an equivalent
24 means, Defendants shall produce data regarding the number of inmates in the EOP and
25 Correctional Clinical Case Management System (CCCMS) programs, as defined by the
26 Coleman Program Guide —assigned to jobs, vocational, education, and substance abuse
27

28
[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 22 of 38

1 programs at each institution, as compared to inmates not in the Mental Health Services

2 Delivery System.

3 d. Prior Policy, Practice, or Procedure: Systematically Housing Inmates

4 Out of Security Level Due to Psychiatric Disabilities.

5 Modified Policy, Practice, or Procedure: Defendants have opened a

6 Level II program at the Substance Abuse Treatment Facility (SATF), and a Level II male

7 EOP program at Valley State Prison to provide greater opportunities for inmates

8 participating in the Mental Health Services Delivery System to be housed consistent with

9 their security levels. Defendants agree that, as part of the Coleman monthly data

10 production, or through an equivalent means, Defendants shall produce data regarding the

11 number of Coleman class members housed at a higher security level than their points

12 would require, as compared to inmates not in the Mental Health Services Delivery

13 System.

14 e. Prior Policy, Practice, or Procedure: Restricting Eligibility for

15 Milestone Credits In Manners That Tend to Exclude Persons With Psychiatric Disabilities.

16 Modified Policy, Practice, or Procedure: Defendants have agreed to

17 make available to inmates with psychiatric disabilities milestone credit earning by

18 granting credits for existing Mental Health Services Delivery System groups, such as

19 anger management and criminal thinking groups. Defendants are also working on new

20 curriculum for additional programs that will earn them milestone credits. Defendants

21 agree that, as part of the Coleman monthly data production, or through an equivalent

22 means, Defendants shall produce data on the percentage of CCCMS and EOP inmates

23 who are earning milestone credits, as compared to inmates not in the Mental Health

24 Services Delivery System.

25 f. Prior Policy, Practice, or Procedure: Excluding Allegations of

26 Discrimination on Account of Psychiatric Disability from the ADA Grievance Process.

27 Modified Policy, Practice, or Procedure: Defendants are

28

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 23 of 38

1 implementing a revised ADA grievance process through which inmates with psychiatric
2 disabilities may request reasonable modifications to services, programs, and activities and
3 make requests for reasonable accommodations. These inmates will also be permitted to
4 grieve any decision rendered under this process via an inmate appeal.
5 g. Prior Policy, Practice, or Procedure: Restricting eligibility for
6 periodic classification score reductions for EOP inmates for successful programming.
7 Modified Policy, Practice, or Procedure: EOP inmates are now entitled
8 to earn up to four point reductions annually from their classification score for successful
9 programming.
10

11 22. The parties have not agreed that the following specific policies, practices,

12 and procedures have had the effect of discriminating against or excluding EOP and

13 CCCMS participants from the benefits of the services, programs, and activities operated

14 by CDCR, and therefore that any remedy is required regarding them. The parties

15 nevertheless agree that allegations of discrimination related to the following specific

16 policies, practices, and procedures are appropriate for resolution within the Coleman

17 remedial process.

18 a. Privileges for inmates with psychiatric disabilities with extended

19 stays in reception centers (i.e. beyond ninety days) due solely to a psychiatric disability;

20 b. Access to substance abuse programs by inmates with psychiatric

21 disabilities;

22 c. Access to minimum security facilities and community-based

23 programs by inmates with psychiatric disabilities;

24 d. Access to reentry hub programs by inmates with psychiatric

25 disabilities;

26 e. Effective communication and discrimination in the Rules Violation

27 Report (RVR) process for inmates with psychiatric disabilities; and

28

[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 24 of 38

1 f. Discrimination in use of restraints, including treatment modules, for
2 prisoners with psychiatric disabilities.
3 23. Resolution of issues identified in Paragraphs 21 and 22 through the
4 Coleman remedial process shall include a reasonable continued period of negotiations
5 facilitated by the Special Master. Any issues resolved in such negotiations may result in
6 further amendments to policies, practices, and procedures to be implemented as part of the
7 Coleman remedy. Issues that are not resolved after a reasonable period of negotiations
8 may be presented by Plaintiffs to the Coleman court for resolution. The parties agree that
9 for purposes of resolving issues of discrimination or exclusion against prison inmates with
10 psychiatric disabilities, the Coleman Court should address whether the specific systemic
11 policies, practices and procedures identified in this paragraph violate the ADA and
12 Rehabilitation Act, and if so what prospective relief is appropriate. Plaintiffs shall have
13 the burden of proving that the specific systemic policies, practices and procedures
14 identified in Paragraphs 21 and 22 violate the ADA and Rehabilitation Act. Defendants
15 shall have an opportunity to respond to any such evidence presented to the Court and to
16 present their own evidence. Brief or isolated instances of alleged disability discrimination
17 shall not constitute an ongoing, system-wide policy or practice in violation of the ADA or
18 Rehabilitation Act.
19 24. The parties agree that the following issues are not appropriate for resolution
20 in the Coleman remedial process, and that upon dismissal of the Hecker action, these
21 issues will not become part of the Coleman remedy, and that as to these issues the
22 dismissal of Hecker will be without prejudice to resolution of these issues in subsequent
23 litigation:
24 a. Exclusion of CCCMS inmates from participation in the program,
25 service, or activity of assignment to conservation/fire camp.
26

27

28
[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 25 of 38

1 Defendants agree that any of the individual Hecker plaintiffs may pursue ADA or
2 Rehabilitation Act claims concerning fire camp/ conservation camp against Defendants in
3 a separate lawsuit.
4

5 VII. DISMISSAL

6

25.

The parties shall jointly request that the Hecker Court, after the

7 fairness hearing described in Paragraph 19 above, shall dismiss the Hecker action in a

8 form of order jointly proposed by the parties that specifies that the Hecker certified class

9 action is dismissed in return for the relief that the Hecker class will have received under

10 the terms of this Agreement by virtue of the implementation of specific policy, practice

11 and procedure changes as part of the Coleman remedial process. The form of order shall

12 specify that the dismissal is with prejudice except as to claims regarding assignment of

13 MHSDS inmates to fire/conservation camps.

14 26. It is the intention of the parties in signing this Agreement that upon approval

15 by the Court it shall be effective as a full and final accord and satisfaction and release

16 from all claims asserted in the Second Amended Complaint except for claims concerning

17 conservation/fire camp, which will be dismissed without prejudice as described above.

18 By signing this Agreement, Plaintiffs release CDCR, Defendants, and any other past or

19 current State officials and employees from all claims, past, present and future, known or

20 unknown, that arise or could arise from the facts alleged in the complaint. Nothing in this

21 Agreement will affect the rights of any named Hecker Plaintiffs regarding any legal claim

22 that arises after the date that the settlement is executed or regarding claims of Hecker

23 Plaintiffs other than those asserted in the Second Amended Complaint under the ADA

24 and the Rehabilitation Act for injunctive and declaratory relief.

25 27. In furtherance of this intention, the parties acknowledge that they are

26 familiar with, and expressly waive, the provisions of California Civil Code section 1542,

27 which states:

28

[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 26 of 38

1

A general release does not extend to claims which the creditor

2

does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must

3

have materially affected his or her settlement with the debtor.

4 28. This Agreement is the compromise of various disputed claims and shall not
5 be treated as an admission of liability by any of the parties for any purpose. The signature
6 of or on behalf of the respective parties does not indicate or acknowledge the validity or
7 merits of any claim or demand of the other party. The parties further agree that the
8 Coleman class does not include persons on parole and that nothing in this agreement
9 limits the ability of Plaintiffs to pursue any claims on behalf of persons on parole.
10 29. The parties agree that this Agreement regarding specific policies, practices,
11 and procedures that have allegedly had the effect of excluding some EOP and CCCMS
12 participants from some of the benefits of the services, programs and activities operated by
13 CDCR shall not affect or otherwise impact Defendants’ ability to seek termination of
14 prospective relief entered in Coleman. Termination of the Coleman litigation will
15 terminate the issues that have been or are being resolved under this Agreement. By this
16 agreement, Defendants do not waive any defenses already asserted in this litigation.
17

18 VIII. ATTORNEY’S FEES AND COSTS

19 30. The parties agree that all claims for reasonable fees and costs for work
20 previously done in this litigation, and any future work done by Plaintiffs’ counsel in
21 Coleman regarding Plaintiffs’ alleged violations of the ADA and Rehabilitation Act by
22 Defendants, may be resolved through the periodic fees process in Coleman. The parties
23 agree that Plaintiffs’ counsel’s billing rates for such work will be subject to the maximum
24 billing rate under the Prison Litigation Reform Act. Defendants waive any objection that
25 such work is not compensable in Coleman because it involves allegations of violations of
26 the ADA and Rehabilitation Act. Work performed by Plaintiff’s counsel before execution
27

28
[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 27 of 38

1 of this Settlement Agreement may be addressed in the Coleman quarterly fees negotiation
2 immediately following the execution of the Settlement Agreement.
3 IX. SUCCESSORS AND ASSIGNS
4

5

31. This Agreement shall be binding on the parties and their respective officers,

6 agents, administrators, successors, assignees, heirs, executors, trustees, attorneys,

7 consultants, and any committee or arrangement of creditors organized with respect to the

8 affairs of any such party.

9

32. Plaintiffs represent that they own the interests, rights, and claims that are the

10 subject matter of this Agreement. Plaintiffs and their principals, agents, attorneys,

11 successors, assigns, heirs, descendants, executors, representatives, partners, and associates

12 fully release and discharge the other parties and their principals, agents, attorneys,

13 successors, assigns, heirs, descendants, executors, representatives, partners, and associates

14 from all rights, claims, and actions that Plaintiffs and their successors now may have or at

15 any time in the future may have against the other parties and their successors except for

16 claims concerning conservation/fire camp dismissed without prejudice.

17 X. REPRESENTATIONS AND WARRANTIES

18 33. The consideration recited in this Agreement is the only consideration for
19 this Agreement, and no representations, promises, or inducements have been made to the
20 parties, or any of their representatives, other than those set forth in this Agreement.
21 34. This Agreement may be executed simultaneously in one or more
22 counterparts, each of which shall be deemed an original, but all of which together shall
23 constitute one and the same instrument.
24 35. Each party to this Agreement shall execute or cause to be executed such
25 further and other documents as are needed to carry out the expressed intent and purpose of
26 this Agreement.
27

28
[1251989-1]

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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 28 of 38

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement, but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

Zo Dated:

~

o~~ ~~, By.

-~

21 22 Dated:

23 Approved as to form:
24 Dated:
25
26
27 Approved as to form:

Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
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Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 29 of 38

Jul, 29. 2014 3:30PM

No. 4454 P. c

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 30 of 38

36, This Agreement constitutes a single, integrated agreement expressing the 2
entire agreement o~the paxties, and there are no other agreements, written or oral, express
3
or implied, between the pa~txes, excepti as set forth in this Agreement,
4
37, No s~ppleinent, modification, or amendment to this Agreement shall Eye 5
binding unless executed in variting by all the parties. No waiver ofany provision ofthis 6
Agreement shall be binding u~~ess executed in ~crriting by the party making the ~wai~er. 7
No waiver ofany provision ofthis Agreement sha11 be deemed,or shall co~.stitute, a 8
waiver of any other provision, whether or not similar, nor shall any waiver constitute a 9
contin~xing waiver. 10
38. Unless expressly stated otherwise in this Agreement,the terrr~s, conditions, 11
and provisions ofthis Agreement are governed by and interpreted under California state
12

13 39. Should and provision ofthis Agreement be held invalid or illegal, sucks
14 illegality shall not invalidate the whole ofthis Agreement, but the Agreement shall be
1.5 construed as ifit did not contain the illegal pert, and the rrghts and obligatio~as ofthe
16 parties shall be construed and enforced accordingly.
17

18 '~'l~e undersigned agree to the above:

19

2D Dated: ~ ~`~

~y.

1,~, ~ 1.' ✓ y

21
2z Dated: ~ 7~l l

B~: ~DN~ ~~sl~Y ~,l ~~A~s

23
Approved as to form: 24

25 26 27 ~~ APproved as to form: 28

Jai C.Russell, Supervising Deputy Atto~-~iey General Counsel for llefendants

II

JCLLLCIIICIIL H~CCCI[1CL16 OG LlG1GQJC IL,V~~~+V'L441 LAIC LKL ~r~~~

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 31 of 38

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
_11_
and provisions ofthis Agreement are governed by and interpreted under California state
12

13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement,but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

20 Dated:~ 21

a'E~ ~

By:
~i~~~n I~1 ~lei

22

23
Approved as to form: 24

25 26 27 ~ Approved as to form:

JQy 1... AUSJGll~ JU~GlV1J111~ LG~ULy HLLViI1Cy
General Counsel for Defendants

28

Jettlement Agreement ~i Kelease (L:U~-cv-1441 LKK llAll(YC:)) ~

Jul. 3u. 2014 1:22PM

No. 4493 P, 2

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 32 of 38

Y 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement of the parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as ser forth in thzs Agreement,
4 ~7, loo su~~le~xaent, modification, or amendment do this Agreement shad be
5 binding unless executed in waiting by alI the parties. No waiver ofany pzovision o~this
6 Agreement shall be binding unless executed in wx~ting by the party making th,e wai~v~r.
7 No waiver ofany p~ovisi4n ofthis Agreement shall be deemed,or shall constitute, a
8 weaver ofand other ~rovis~on, v~rhether or not similar, nor shall an~r waiver consCrtute a
9 continuing waiver.
10 38, Uc~less expressly stated otherwise in this Agreement,the berms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
Y2 Yar~r,
13 39, Should any provision ofthis Agrcem~ent ~e held invalid or illegal, suck
1~ illegality sha11 not invalidate the whole ofthis Agr~cme~at, but the Agreementi shall be
15 construed as i~it did nod contain the illegax part, and the rights and obligations ~fthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:

19

IU

20 lla~ed: r ~ V

By:

21

22 Dated:

By:

R ~~D P~ U~D

23 Approved as to form:
24 T~ated:
25
26
27 Approved as to form;

By: Jai C.Russell,Supervising T~eputy AtCO~ne~ General Counsel for llefend~~ts

28
~izstses-~~

I4
Se~Clement Agreement& Ttclease (2:05-cv-2441 LKTC DAD(PC))

Ja', 30. 2014 1;23PM

No. 4493 F'.

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 33 of 38

1
36. This Agreement constitutes a single, i~ategrated agr~eme~at expressing tie
2
entire agreement ofthe parties, and there are no other agreements, writte~a or oral, e:~press
3
or implied, between the parties, except as set forth in this ,Agreement.

37. No supplement, modifcation, or amendment to tk~is Agreement shall be
5
binding unless executed in r~riting by all the parties, N"o waiver o~ any provision o~this 6
Agreement shall be binding unless executed in writing by the pai-~y rxzaking the ~~vaiver..
7 N"o waiver ofany provision ofthis Agreement shall be deemed, or shall constitute, a
8 waiter of any other provision, whether ar not similar, nor sha11 and waiver constitute a
9
continuing wai~Ver.
10 38. Unless expressl~r stated otherwise in this A,gree~nent, the terms, conditions,
11 and provisions ofthis Agree~aent are governed by and interpreted under California state
12 lam.
13 39. Should any provision ofthis Agreement be held invalid or iI~egal, stYCh
14
illegality shaX~ not invalidate the'whole ofthis Agreement, but the Agreement shall be 15
construed as ifit did not contaiza the illegal part, and the rights and ob~xgations ofthe 16
parties shall be construed and enforced accordingly,
17

18 Tie ~undexsigned agree to the above:
19

20 Dated:

f~

l 21

22 Dated:

23 A.ppro~ed as to ~oxm:
24 25 Dated:
26
27 Approved as to form:
Zs
~tz~tsas~~~

day C. Russell, Super~is~ng Deputy Attorney CreneraI Counsel for Defendants
14
Settlement AgreemcnC &Release (2:05-cv-2441 I.KK DAD (PC)}

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 34 of 38

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 35 of 38

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement of the parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver of any provision of this
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver of any provision of this Agreement shall be deemed, or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement, the terms, conditions,
11 and provisions of this Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision of this Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole of this Agreement, but the Agreement shall be
15 construed as if it did not contain the illegal part, and the rights and obligations of the
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

20 Dated: July 29, 2014 21

By: Ying Watt

22 Dated:

By:

23 Approved as to form:
24 25 Dated:
26
27 Approved as to form:

By: Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
[1251989-1]

14
Settlement Agreement & Release (2:05-cv-2441 LKK DAD (PC))

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 36 of 38

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver ofany other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement,but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

Zo Dated:

By: ~!~

~ ~ t~~~~"

21

~ ~

~

22 Dated: ~'-` —~'f

23 Approved as to form:
24 Dated:
25
26
27 ~ Approved as to form:

Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
[125198&1]

14
Settlement Agreement &Release (2:05-cv-2441 LKK DAD(PC))

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 37 of 38

Case 2:05-cv-02441-KJM-DAD Document 124-3 Filed 08/05/14 Page 38 of 38

~/ / 1 Dated: ~ l I /
2 3
4
SF2006200078
5 6 7 8 9 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28
[1251989- t]

~--

By:

~

Michael W.Bien

Rosen Bien Galvan & Grunfeld LLP

Counsel for the Coleman and Hecker Plaintiffs

15
Settlement Agreement & Release (2:05-cv-2441 LKK DAD(PC))

Case 2:05-cv-02441-KJM-DAD Document 124-4 Filed 08/05/14 Page 1 of 5

[1251472-4]

1 CLAUDIA CENTER – 158255 AMERICAN CIVIL LIBERTIES UNION
2 FOUNDATION DISABILITY RIGHTS PROGRAM
3 39 Drumm Street San Francisco, California 94111
4 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
5 Email: ccenter@aclu.org
6

KAMALA D. HARRIS – 146672 Attorney General of California JAY C. RUSSELL – 122626 Supervising Deputy Attorney General MICHAEL J. Quinn – 209542 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone: (415) 703-5717 Facsimile: (415) 703-5843 E-mail: Jay.Russell@doj.ca.gov

7 MICHAEL W. BIEN – 096891

ERNEST GALVAN – 196065

8 BLAKE THOMPSON – 255600

ROSEN BIEN

9 GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

10 San Francisco, California 94104-1823

Telephone: (415) 433-6830

11 Facsimile: (415) 433-7104

Email: mbien@rbgg.com

12

egalvan@rbgg.com

bthompson@rbgg.com

13

Attorneys for Plaintiffs

14

Attorneys for Defendants

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

17

18 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 LKK-DAD

19

Plaintiffs,

20

v.

21 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
22 et al.,

[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
Judge: Hon. Lawrence K. Karlton

23

Defendants.

24

25

26

27

28

[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 2:05-cv-02441-KJM-DAD Document 124-4 Filed 08/05/14 Page 2 of 5

[1251472-4]

1

This Court has presided over the proceedings in the above-captioned action and has

2 reviewed all of the pleadings, records, and papers on file.

3

The parties have entered into a Settlement Agreement, which was filed with the

4 Court as Exhibit 1 to the Declaration of Michael W. Bien in Support of Joint Motion for

5 Preliminary Approval of Class Action Settlement on August 5, 2014.

6

The Court has reviewed the Joint Motion for Preliminary Approval of Class Action

7 Settlement, along with the Settlement Agreement and supporting documents, and has

8 considered the parties’ arguments concerning the proposed settlement of this action.

9

The Court has determined that inquiry should be made as to the fairness and

10 adequacy of this proposed settlement.

11

Accordingly, good cause appearing, IT IS ORDERED AS FOLLOWS:

12

1. A court should preliminarily approve a class action settlement if it “appears

13 to be the product of serious, informed, non-collusive negotiations, has no obvious

14 deficiencies, does not improperly grant preferential treatment to class representatives or

15 segments of the class, and falls within the range of possible approval.” In re Tableware

16 Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). The Court finds that this

17 standard is met in this case, as the proposed settlement is the product of arm’s-length,

18 serious, informed and non-collusive negotiations between experienced and knowledgeable

19 counsel who have actively prosecuted and defended this litigation, under the guidance of

20 the Court’s Special Master in Coleman v. Brown. The Settlement Agreement is granted

21 preliminary approval and incorporated by reference, and has the full force and effect of an

22 order of this Court, subject to the right of Class Members to challenge the fairness,

23 reasonableness or adequacy of Settlement Agreement and to show cause, if any exists, why

24 a final judgment dismissing this case should not be entered following a Final Fairness

25 Hearing.

26

2. The Court certifies, for settlement purposes only, under Federal Rules of

27 Civil Procedure 23(a) & (b)(2), an injunctive relief settlement class (together the

28 “Settlement Class”) defined as: all present and future CDCR inmates with psychiatric
1
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 2:05-cv-02441-KJM-DAD Document 124-4 Filed 08/05/14 Page 3 of 5

[1251472-4]

1 conditions that are disabilities as defined by the ADA and the Rehabilitation Act and who

2 are allegedly excluded and/or screened out from any prison program, service, or activity on

3 the basis of their assignment to or participation in the MHSDS [Mental Health Service

4 Delivery System] program, including the CCCMS [Correctional Clinical Case

5 Management System] and EOP [Enhanced Outpatient Program].

6

3. The Court finds, for settlement purposes only, that the proposed class meets

7 the requirements under Rule 23(a) of numerosity, commonality and typicality to justify

8 certification, and that there is adequate and fair representation.

9

4. The proposed settlement class meets the requirements of Rule 23(b)(2)

10 because the issues resolved under the Settlement Agreement “apply generally to the class.”

11 Fed. R. Civ. P. 23(b)(2).

12

5. Under Rule 23(g) of the Federal Rules of Civil Procedure, the Court appoints

13 Rosen Bien Galvan & Grunfeld LLP and the ACLU Foundation of Northern California as

14 Class Counsel to represent the Settlement Class for purposes of the Settlement.

15

6. Under Federal Rule of Civil Procedure 23(e)(1), the Court approves the

16 substance, form and manner of the Notice of Proposed Class Action Settlement (the

17 “Notice”) filed by the parties on August 5, 2014, and finds that the proposed method of

18 disseminating the Class Notice meets all due process and other legal requirements and is

19 the best notice practicable under the circumstances.

20

7. Within three days of this Order, the parties are directed to prepare a final

21 version of the Notice, incorporating the dates set forth in this Order.

22

8. Within thirty days of this Order, CDCR is directed to post the Notice in

23 English and Spanish in all California prisons in such a manner as to make the notice visible

24 to all prisoners. Within thirty days of this Order, CDCR is also directed to place a copy of

25 this Order and the full Settlement Agreement in every CDCR library. Defendants must file

26 and serve on Plaintiffs’ counsel a declaration affirming that notice was published as

27 required in this order.

28

9. A Final Fairness Hearing shall take place at ____ a.m. on ___________ [no

2
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 2:05-cv-02441-KJM-DAD Document 124-4 Filed 08/05/14 Page 4 of 5

[1251472-4]

1 sooner than 60 days after the deadline for notice to be published], 2014 at the United States

2 District Court for the Eastern District of California, United States Courthouse, 501 I St.,

3 Sacramento CA 95814, in Courtroom ____, to determine whether the proposed settlement

4 of this action on the terms and conditions provided for in the Settlement Agreement is fair,

5 reasonable, and adequate and should be finally approved by the Court, and whether this

6 action should be dismissed under the settlement. The hearing may be continued from time

7 to time without further notice. Any further briefing from the parties in advance of the

8 hearing shall be filed no later than ______, 2014.

9

10. Any member of the class may enter an appearance on his or her own behalf

10 in this action through that class member’s own attorney (at their own expense), but need

11 not do so. Class members who do not enter an appearance through their own attorneys

12 will be represented by Class counsel. Alternatively, any member of the class may write to

13 the federal court about whether the settlement is fair. The federal court will consider

14 written communications when deciding whether to approve the settlement. Comments

15 regarding the fairness of the settlement MUST include at the top of the first page the case

16 name (Hecker v. CDCR) and the case number (2:05-CV-02441 LKK-DAD). A written

17 comment must contain the author’s full name and CDCR number, must include all

18 objections and the reasons for them, must include any and all supporting papers (including,

19 without limitation, all briefs, written evidence, and declarations), and must be signed by

20 the Class Member. A Class Member who desires to comment but who fails to comply

21 with the above objection procedure and timeline shall be deemed to have not objected and

22 the objection shall not be heard or considered at the hearing. Comments must be

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /
3
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Case 2:05-cv-02441-KJM-DAD Document 124-4 Filed 08/05/14 Page 5 of 5

[1251472-4]

1 postmarked by _________ [60 days from the deadline for notice to be posted] and must be

2 sent to the following address:

3

Clerk of the Court

4

United States District Court

5

Eastern District of California

501 “I” Street

6

Sacramento, CA 95814

7

IT IS SO ORDERED.

8

9 DATED: _______________, 2014 10

11

12

Lawrence K. Karlton

Judge of the United States District Court

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

 
 [1251472-4]

1 CLAUDIA CENTER – 158255 AMERICAN CIVIL LIBERTIES UNION
2 FOUNDATION DISABILITY RIGHTS PROGRAM
3 39 Drumm Street San Francisco, California 94111
4 Telephone: (415) 343-0770 Facsimile: (415) 395-0950
5 Email: ccenter@aclu.org
6

KAMALA D. HARRIS – 146672 Attorney General of California JAY C. RUSSELL – 122626 Supervising Deputy Attorney General MICHAEL J. Quinn – 209542 Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, California 94102-7004 Telephone: (415) 703-5717 Facsimile: (415) 703-5843 E-mail: Jay.Russell@doj.ca.gov

7 MICHAEL W. BIEN – 096891

ERNEST GALVAN – 196065

8 BLAKE THOMPSON – 255600

ROSEN BIEN

9 GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

10 San Francisco, California 94104-1823

Telephone: (415) 433-6830

11 Facsimile: (415) 433-7104

Email: mbien@rbgg.com

12

egalvan@rbgg.com

bthompson@rbgg.com

13

Attorneys for Plaintiffs

14

Attorneys for Defendants

15

UNITED STATES DISTRICT COURT

16

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

17

18 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 LKK-DAD

19

Plaintiffs,

20

v.

ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

21 CALIFORNIA DEPARTMENT OF

Judge: Hon. Lawrence K. Karlton

CORRECTIONS AND REHABILITATION,

22 et al.,

23

Defendants.

24

25

26

27

28

[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

[1251472-4]

1

This Court has presided over the proceedings in the above-captioned action and has

2 reviewed all of the pleadings, records, and papers on file.

3

The parties have entered into a Settlement Agreement, which was filed with the

4 Court as Exhibit 1 to the Declaration of Michael W. Bien in Support of Joint Motion for

5 Preliminary Approval of Class Action Settlement on August 5, 2014.

6

The Court has reviewed the Joint Motion for Preliminary Approval of Class Action

7 Settlement, along with the Settlement Agreement and supporting documents, and has

8 considered the parties’ arguments concerning the proposed settlement of this action.

9

The Court has determined that inquiry should be made as to the fairness and

10 adequacy of this proposed settlement.

11

Accordingly, good cause appearing, IT IS ORDERED AS FOLLOWS:

12

1. A court should preliminarily approve a class action settlement if it “appears

13 to be the product of serious, informed, non-collusive negotiations, has no obvious

14 deficiencies, does not improperly grant preferential treatment to class representatives or

15 segments of the class, and falls within the range of possible approval.” In re Tableware

16 Antitrust Litig., 484 F. Supp. 2d 1078, 1079 (N.D. Cal. 2007). The Court finds that this

17 standard is met in this case, as the proposed settlement is the product of arm’s-length,

18 serious, informed and non-collusive negotiations between experienced and knowledgeable

19 counsel who have actively prosecuted and defended this litigation, under the guidance of

20 the Court’s Special Master in Coleman v. Brown. The Settlement Agreement is granted

21 preliminary approval and incorporated by reference, and has the full force and effect of an

22 order of this Court, subject to the right of Class Members to challenge the fairness,

23 reasonableness or adequacy of Settlement Agreement and to show cause, if any exists, why

24 a final judgment dismissing this case should not be entered following a Final Fairness

25 Hearing.

26

2. The Court certifies, for settlement purposes only, under Federal Rules of

27 Civil Procedure 23(a) & (b)(2), an injunctive relief settlement class (together the

28 “Settlement Class”) defined as: all present and future CDCR inmates with psychiatric
1
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

[1251472-4]

1 conditions that are disabilities as defined by the ADA and the Rehabilitation Act and who

2 are allegedly excluded and/or screened out from any prison program, service, or activity on

3 the basis of their assignment to or participation in the MHSDS [Mental Health Service

4 Delivery System] program, including the CCCMS [Correctional Clinical Case

5 Management System] and EOP [Enhanced Outpatient Program].

6

3. The Court finds, for settlement purposes only, that the proposed class meets

7 the requirements under Rule 23(a) of numerosity, commonality and typicality to justify

8 certification, and that there is adequate and fair representation.

9

4. The proposed settlement class meets the requirements of Rule 23(b)(2)

10 because the issues resolved under the Settlement Agreement “apply generally to the class.”

11 Fed. R. Civ. P. 23(b)(2).

12

5. Under Rule 23(g) of the Federal Rules of Civil Procedure, the Court appoints

13 Rosen Bien Galvan & Grunfeld LLP and the ACLU Foundation of Northern California as

14 Class Counsel to represent the Settlement Class for purposes of the Settlement.

15

6. Under Federal Rule of Civil Procedure 23(e)(1), the Court approves the

16 substance, form and manner of the Notice of Proposed Class Action Settlement (the

17 “Notice”) filed by the parties on August 5, 2014, and finds that the proposed method of

18 disseminating the Class Notice meets all due process and other legal requirements and is

19 the best notice practicable under the circumstances.

20

7. Within three days of this Order, the parties are directed to prepare a final

21 version of the Notice, incorporating the dates set forth in this Order.

22

8. Within thirty days of this Order, CDCR is directed to post the Notice in

23 English and Spanish in all California prisons in such a manner as to make the notice visible

24 to all prisoners. Within thirty days of this Order, CDCR is also directed to place a copy of

25 this Order and the full Settlement Agreement in every CDCR library. Defendants must file

26 and serve on Plaintiffs’ counsel a declaration affirming that notice was published as

27 required in this order.

28

9. A Final Fairness Hearing shall take place at 10:00 a.m. on Friday, December

2
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

[1251472-4]

1 5, 2014 at the United States District Court for the Eastern District of California, United

2 States Courthouse, 501 I St., Sacramento CA 95814, in Courtroom 3, to determine whether

3 the proposed settlement of this action on the terms and conditions provided for in the

4 Settlement Agreement is fair, reasonable, and adequate and should be finally approved by

5 the Court, and whether this action should be dismissed under the settlement. The hearing

6 may be continued from time to time without further notice. Any further briefing from the

7 parties in advance of the hearing shall be filed no later than November 21, 2014.

8

10. Any member of the class may enter an appearance on his or her own behalf

9 in this action through that class member’s own attorney (at their own expense), but need

10 not do so. Class members who do not enter an appearance through their own attorneys

11 will be represented by Class counsel. Alternatively, any member of the class may write to

12 the federal court about whether the settlement is fair. The federal court will consider

13 written communications when deciding whether to approve the settlement. Comments

14 regarding the fairness of the settlement MUST include at the top of the first page the case

15 name (Hecker v. CDCR) and the case number (2:05-CV-02441 LKK-DAD). A written

16 comment must contain the author’s full name and CDCR number, must include all

17 objections and the reasons for them, must include any and all supporting papers (including,

18 without limitation, all briefs, written evidence, and declarations), and must be signed by

19 the Class Member. A Class Member who desires to comment but who fails to comply

20 with the above objection procedure and timeline shall be deemed to have not objected and

21 the objection shall not be heard or considered at the hearing. Comments must be

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28
3
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

[1251472-4]

1 postmarked by November 7, 2014 and must be sent to the following address:

2

Clerk of the Court

3

United States District Court

4

Eastern District of California

501 “I” Street

5

Sacramento, CA 95814

6

11. The status conference set for August 8, 2014 at 1:30 p.m. is dropped from

7 calendar.

8

IT IS SO ORDERED.

9

10 DATED: August 7, 2014

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
[PROPOSED] ORDER GRANTING JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

 
 Case 2:05-cv-02441-KJM-DAD Document 148 Filed 03/02/15 Page 1 of 5

[1377603-1]

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

10 ROBERT HECKER, et al.,

Case No. 2:05-CV-02441 KJM-DAD

11

Plaintiffs,

12

v.

ORDER FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT

13 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,
14 et al.,

15

Defendants.

16 RALPH COLEMAN, et al.,

Case No. 2:90-CV-00520-KJM-DAD

17

Plaintiffs,

18

v.

19 EDMUND G. BROWN, JR., et al.,

20

Defendants.

21

22

23

24

25

26

27

28

ORDER FOR FINAL APPROVAL OF SETTLEMENT AGREEMENT

Case 2:05-cv-02441-KJM-DAD Document 148 Filed 03/02/15 Page 2 of 5

[1377603-1]

1

WHEREAS, the parties filed a Joint Motion for Preliminary Approval of Settlement

2 Agreement (the “Joint Motion”) and supporting pleadings on August 5, 2014; and

3

WHEREAS, the Court has reviewed the Joint Motion and supporting pleadings

4 thereto; and

5

WHEREAS, on August 7, 2014, the Court preliminarily approved of the Settlement

6 Agreement submitted as part of the Joint Motion (the “Settlement”), and ordered that

7 notice of the proposed settlement be disseminated to the Plaintiff Class within thirty days

8 of the August 7, 2014 order; and

9

WHEREAS, as of September 8, 2014, the California Department of Corrections and

10 Rehabilitation (CDCR) posted the Settlement Notice in all housing units and libraries of

11 each CDCR prison.

12

WHEREAS the August 7, 2014 Order required that any objections to the Settlement

13 be sent to the Court and postmarked by November 7, 2014, and the Court did not receive

14 any objections to the Settlement.

15

WHEREAS, on December 8, 2014, this matter came before the Court for hearing

16 pursuant to Federal Rule of Civil Procedure 23(e) and the Order of this Court dated

17 August 7, 2014, to consider final approval of the proposed settlement set forth in the

18 parties Joint Motion, with no objectors appearing at the hearing;

19

WHEREAS, on January 16, 2015, the Court approved a modified notice to the class

20 and ordered it posted not later than January 22, 2015 in all inpatient mental health units

21 operated by the California Department of Corrections and Rehabilitation and the

22 Department of State Hospitals in which class members may be housed;

23

WHEREAS, on January 22, 2015, counsel for Defendants filed certification that the

24 January 16, 2015 Order had been complied with; and

25

WHEREAS, due and adequate notice having been given to the Plaintiff Class

26 defined below as required by the Court’s August 7, 2014 and January 16, 2015 Orders and

27 the Court having considered all papers filed and proceedings in this case, the pleadings and

28 papers filed in support of preliminary approval of the Settlement, and otherwise being fully

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[1377603-1]

1 informed regarding this litigation and good cause appearing therefore; the Court now finds

2 and orders as follows:

3

FINDINGS

4

1. The Court finds that the proposed settlement is the product of arm’s-length,

5 serious, and non-collusive negotiations between experienced and knowledgeable counsel

6 for the Plaintiff Class and Defendants, who have actively and competently prosecuted and

7 defended this litigation.

8

2. The Court finds that distribution of notice to the class has been completed in

9 conformance with the Court’s August 7, 2014 and January 16, 2015 Orders and that no

10 class member objected to the proposed settlement.

11

3. The Court, having carefully considered the Settlement set forth in the parties’

12 Joint Motion and supporting documents filed August 5, 2014, finds that the Settlement is

13 fair, adequate and reasonable, and further finds that the benefit to the Plaintiff Class

14 supports final approval of the proposed settlement in light of all of the relevant

15 considerations.

16

IT IS HEREBY ORDERED THAT:

17

1. This action is determined to be properly maintained as a class action

18 pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, with an

19 injunctive relief settlement class consisting of all present and future CDCR inmates with

20 psychiatric conditions that are disabilities as defined by the Americans with Disability Act

21 (ADA) and the Rehabilitation Act, and who are allegedly excluded and/or screened out

22 from any prison program, service, or activity on the basis of their psychiatric disability

23 status.

24

2. This Court has jurisdiction over the subject matter of this litigation and over

25 all parties to the action, including all members of the Plaintiff Class as defined above.

26

3. The notices disseminated to the Plaintiff Class as described in Paragraphs 6

27 through 8 of the Court’s August 7, 2014 Order constituted the best notice practicable under

28 the circumstances. Said notices provided due and adequate notice of proceedings for

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[1377603-1]

1 approval of the Settlement and of the matters set forth therein, including the proposed

2 Settlement set forth in the Joint Motion, to all persons entitled to such notice, and said

3 notices fully satisfied the requirements of Rule 23(e) of the Federal Rules of Civil

4 Procedure, the Constitution of the United States, due process and any other applicable

5 rule(s) of this Court.

6

4. A district court’s role in reviewing the substance of a class action settlement

7 under Rule 23 is to ensure that it is ‘fair, adequate, and free from collusion.’” Lane v.

8 Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012), cert. denied, 134 S. Ct. 8 (2013)

9 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998)). The Court finds

10 that in all respects the settlement in this case is fair, adequate, and free from collusion, and

11 that all of the relevant Hanlon factors weigh in favor of granting final approval in this case.

12 See Hanlon, 150 F.3d 1011 at 1026. The Court thus grants final approval of the settlement

13 pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.

14

5. The parties’ Settlement Agreement, attached as Exhibit A1, is granted final

15 approval and incorporated by reference, and has the full force and effect of an order of this

16 Court. The Court orders that the matters addressed in Paragraphs 21 and 22 of the

17 Settlement Agreement are hereby incorporated into the Coleman Remedial Process, and

18 that the Coleman Special Master shall have the power to monitor and enforce the parties’

19 agreements on these issues. The Court orders the Coleman Special Master to oversee the

20 process of amending the Program Guide to incorporate the changes required by the

21 Settlement Agreement, and hereby orders the Coleman Special Master to work with the

22 parties through the Coleman remedial process to promptly attempt to resolve the remaining

23 issues described in Paragraphs 21 and 22 of the Settlement Agreement.

24

25 1 At the December 8, 2014 hearing the parties confirmed that the Settlement Agreement 26 executed by defendant Dr. Jeffrey A. Beard on August 4, 2014, appended at page 13(A) of
Exhibit A to this order, also included paragraphs 35 through 39 of the Settlement 27 Agreement approved by this order.
28

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[1377603-1]

1

6. The Court in Coleman will hereafter have jurisdiction to enforce and

2 administer the Settlement Agreement, including resolving disputes arising under Paragraph

3 23 of the Settlement Agreement regarding allegations of disability discrimination against

4 class members or the exclusion of class members from Defendants’ programs and services

5 on the basis of disability. For purposes of resolving disputes regarding discrimination

6 against or the exclusion of class members from Defendants’ programs and services on the

7 basis of a disability, the Coleman Court will address whether the specific systemic

8 policies, practices and procedures identified under Paragraphs 21 and 22 of the Settlement

9 Agreement violate the ADA and Rehabilitation Act, and if so what prospective relief is

10 appropriate. The Coleman Court shall have jurisdiction to resolve any dispute regarding

11 attorneys’ fees as set forth in Paragraph 30 of the Settlement Agreement.

12

7. The revised Coleman notice agreed to by the Parties filed on January 23,

13 2015, attached as Exhibit B, is approved. Within ten days from the date of this order the

14 revised Coleman notice shall be posted in all thirty-four California Department of

15 Corrections and Rehabilitation institutions and in all California Department of Corrections

16 and Rehabilitation and Department of State Hospital inpatient mental health units in which

17 members of the Coleman class are housed. Defendants shall serve on Plaintiffs’ counsel a

18 declaration affirming that the revised Coleman notice was published as required in this

19 order.

20

8. The Hecker action is hereby dismissed with prejudice except as to claims

21 regarding assignment of (MHSDS) inmates to fire/conservation camps, as described in

22 Paragraph 25 of the Settlement Agreement, which are dismissed without prejudice.

23

IT IS SO ORDERED.

24 DATED: March 2, 2015.

25

26

UNITED STATES DISTRICT JUDGE

27

28

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EXHIBIT A

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 2 of 25

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

SACRAMENTO DIVISION

11

12
ROBERT HECKER, et al., on behalf of 13 themselves and others similarly situated,

SETTLEMENT AGREEMENT Judge:

14

Plaintiffs, The Honorable Lawrence K. Karlton

15

v.

Action Filed: December 1, 2005

16

CALIFORNIA DEPARTMENT OF

2:05-cv-2441 LKK DAD (PC)

17 CORRECTIONS AND

REHABILITATION, et al.,

18

Defendants.

19

2:90-cv-0520 LKK DAD

20 RALPH COLEMAN, et al.,,

21

Plaintiffs,

22

v.

23 EDMUND G. BROWN, JR., et al.,
24 Defendants.
25

26

27

28
[1251989-1]

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1 I. RECITALS

2 1. This action was filed on December 1, 2005. In the presently operative
3 pleading, the Second Amended Complaint, Plaintiffs Robert Hecker, Christopher Lee
4 Jenkins, Peter Taylor, Ying Watt, Askia Ashanti, Ronald Auld, John Mueller, Daniel
5 Hunley, Joseph Cox, Eddie Thomas, Brian K. Stafford, Michael Lovelace, Bobby Daniels,
6 Quinton Gray, John Wesley Williams, Samuel D’Angelo and Jon Schooley, alleged that
7 their rights were being violated under the Americans with Disabilities Act and section 504
8 of the Rehabilitation Act. Plaintiffs alleged, among other things, that Defendants:
9

10

have adopted, implemented, ratified, and/or failed to abolish numerous unnecessary and discriminatory policies, practices and procedures affecting

11

the inmates participating in the MHSDS [Mental Health Services Delivery

System] including the EOP [Enhanced Outpatient Program] and the

12

CCCMS [Correctional Clinical Case Management System].

13

14 (Second Amended Complaint, Docket No. 35, at 12.) Plaintiffs alleged “systemwide,

15 statewide policies, practices, and procedures [that] function to discriminate against

16 inmates with severe psychiatric disabilities; exclude them from programs, services, and

17 activities; retaliate against them; and segregate them unnecessarily.” Plaintiffs further

18 sought to represent “a class of all present and future California inmates of the CDCR with

19 psychiatric conditions that are disabilities as defined by the ADA and the Rehabilitation

20 Act who are excluded and/or screened out from any prison program, service, or activity on

21 the basis of their assignment to or participation in the MHSDS program, including the

22 EOP and CCCMS.” (Id. at 14.)

23

2. Before the Hecker action was filed, the parties in Coleman v. Brown, E.D.

24 Cal. No. cv 90-0520 LLK, had attempted to negotiate provisions of the Coleman Program

25 Guide (which describes policies and procedures for provision of mental health care for

26 California prison inmates) regarding program access and disability discrimination for

27 prison inmates with psychiatric disabilities. The parties did not reach a resolution.

28
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1 3. On February 3, 2006, the Coleman Special Master issued his report and
2 recommendation concerning the Program Guide, concluding that the parties’ disputes
3 concerning alleged disability discrimination could not be resolved by the Special Master
4 at that time.
5 4. On November 27, 2006, Defendants filed a motion to dismiss the Hecker
6 action.
7 5. On March 15, 2007, the Court issued an order staying the Hecker litigation,
8 and referred the matter to the Coleman Special Master to determine whether the claims
9 raised in the present litigation could be resolved within the remedial phase of Coleman.
10 The Coleman Special Master filed a report on June 12, 2007 stating that the parties were
11 not able to resolve the dispute at that time.
12 6. The Hecker Plaintiffs filed motions to lift the stay on December 14, 2007,
13 and again on September 9, 2012 and March 1, 2013. On October 19, 2012, the Court
14 ordered that the parties meet and confer under the guidance of the Coleman Special
15 Master to determine again whether the issues in the Hecker action could be resolved
16 through the Coleman remedial process.
17 7. Since that date, the parties have engaged in settlement negotiations with the
18 assistance of the Coleman Special Master. On May 5, 2014, the Court entered an order
19 extending the stay to June 6, 2014.
20 8. While the case has been stayed, the parties have resolved issues concerning
21 some of the specific policies, practices, and procedures that may have excluded some EOP
22 and CCCMS participants from some of the benefits of the services, programs, and
23 activities operated by CDCR, and may have discriminated against individuals with
24 psychiatric disabilities. These specific issues are listed below at Paragraph 21. To
25 facilitate resolution of these issues, the parties agree that the Coleman Program Guide
26 shall be amended to reflect these changed policies, practices, and procedures. The parties
27

28
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1 further agree that implementation of the modified replacement polices, practices and

2 procedures may be enforced by the Court as part of the Coleman class action litigation.

3 9. During the period of the Hecker stay, the parties also identified specific

4 policies, practices, and procedures as to which there is no agreement regarding any past or

5 present effect of exclusion or discrimination. Therefore, as to these issues, which are

6 identified in Paragraph 22 below, the parties have reached no agreement that a remedy is

7 required. The parties, however, have agreed that these issues are appropriate for

8 resolution within the Coleman remedial process.

9 10. During the period of the Hecker stay, the parties also identified specific

10 policies, practices and procedures that Defendants maintain are legally justified, do not

11 unlawfully have the effect of excluding or discriminating against EOP and CCCMS

12 prisoners, and therefore cannot be addressed in the Coleman remedial process. These

13 specific issues are listed at Paragraph 23 below. The parties agree that as to these specific

14 issues, there is no remedy in Coleman, and any claims as to them will be dismissed in

15 Hecker without prejudice.

16 11. The parties agree that solely for purposes of settlement and judicial approval

17 of this Agreement, they stipulate that the putative class in Hecker—specifically, all

18 present and future CDCR inmates with psychiatric conditions that are disabilities as

19 defined by the ADA and the Rehabilitation Act and who are allegedly excluded and/or

20 screened out from any prison program, service, or activity on the basis of their assignment

21 to or participation in the MHSDS program, including the CCCMS and EOP—may be

22 certified as a class for settlement purposes under Federal Rule of Civil Procedure 23(b)(1),

23 and that an order may be entered, after notice to the class and an opportunity to object,

24 finding the settlement to be fair and reasonable as to this settlement class.

25 12. All parties and their counsel recognize that, in the absence of an approved

26 settlement, they face lengthy and substantial litigation, including motions to dismiss,

27 motions for class certification, formal discovery, motions for summary judgment, and trial

28

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1 and potential appellate proceedings, all of which will consume time and resources and

2 present the parties with ongoing litigation risks and uncertainties. The parties wish to

3 avoid these risks, uncertainties, and consumption of time and resources through a

4 settlement under the terms and conditions of this Agreement.

5 ACCORDINGLY, without any admission or concession by Defendants of any

6 liability or wrongdoing with respect to the allegations in the complaint, and without any

7 admission or concession by Defendants of any systemic violation of the ADA or the

8 Rehabilitation Act, the complaint, and all claims made in it, shall be finally and fully

9 compromised, settled, and released, and the action dismissed with prejudice upon and

10 subject to the terms and conditions of this Agreement, which the parties enter into freely,

11 voluntarily, knowingly, and with the advice of counsel.

12 II. PARTIES

13 13. Plaintiffs Robert Hecker, Christopher Lee Jenkins, Peter Taylor, Ying Watt,

14 Askia Ashanti, Ronald Auld, John Mueller, Daniel Hunley, Joseph Cox, Eddie Thomas,

15 Brian K. Stafford, Michael Lovelace, Bobby Daniels, Quinton Gray, John Wesley

16 Williams, Samuel D’Angelo, and Jon Schooley have been at relevant periods inmates of

17 the California Department of Corrections and Rehabilitation and participates in the Mental

18 Health Services Delivery System (MHSDS) at both the Enhanced Outpatient Program

19 (EOP) and Clinical Correctional Case Management System (CCCMS) levels of care as

20 defined by the Coleman Program Guide. Plaintiffs allege that they are persons with

21 disabilities within the meaning of all applicable statues, and are qualified persons with

22 disabilities within the meaning of Title II of the ADA and Section 504 of the

23 Rehabilitation Act of 1973. Plaintiffs allegedly represent a class of all present and future

24 CDCR inmates with psychiatric conditions that are disabilities as defined by the ADA and

25 the Rehabilitation Act who are excluded and/or screened out from any prison program,

26 service, or activity on the basis of their assignment to or participation in the MHSDS

27 program, including the EOP and CCCMS.

28

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1 14. Defendants are CDCR, the Governor of the State of California, CDCR’s
2 secretary, CDCR’s undersecretary, CDCR’s Director of Adult Institutions, and the
3 Warden of the California Medical Facility. Each Defendant is a state official sued in his
4 or her official capacity.
5 III. JURISDICTION
6 15. This Court has jurisdiction under 28 U.S.C §§ 1331, 2201, and 2202.
7 IV. VENUE
8 16. Venue is proper under 28 U.S.C. § 1391(b), because a substantial part of the
9 events alleged by Plaintiff occurred within the Eastern District of California.
10 V. CERTIFICATION OF A SETTLEMENT CLASS, NOTICE, OBJECTIONS, FAIRNESS HEARING
11

12

17. The parties shall jointly request certification of a settlement class to be

13 defined as all present and future CDCR inmates with psychiatric conditions that are

14 disabilities as defined by the ADA and the Rehabilitation Act and who are allegedly

15 excluded and/or screened out from any prison program, service, or activity on the basis of

16 their assignment to or participation in the MHSDS program, including the CCCMS and

17 EOP (the Hecker class.)

18

18. The parties shall lodge their joint request for certification of the Hecker

19 class along with a Notice of Settlement of the Hecker Action to be submitted for approval

20 by the Court, and subject to such approval, to be posted in all CDCR institutions.

21

19. The parties shall jointly request a fairness hearing on the Hecker settlement

22 to be set at a reasonable time after the posting of notice to allow for the receipt and

23 consideration of class member objections.

24

20. If this Agreement is not approved by the Court, the parties shall be restored

25 to their respective positions in the action as of the date on which the Agreement was

26 entered, the terms and provisions of this Agreement shall have no force and effect, and

27 shall not be used in this action or in any proceeding for any purpose, and the litigation of

28 this action would resume as if there had been no settlement, with no stipulated class.

[1251989-1]

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1 VI. TERMS AND CONDITIONS

2 21. The parties agree that the Coleman Program Guide shall be amended, where
3 necessary, so that the following polices, practices, and procedures have been or will be
4 modified:
5 a. Prior Policy, Practice, or Procedure: Automatic Addition of Four
6 Points to Custody Score of Persons in the MHSDS.
7 Modified Policy, Practice, or Procedure: Defendants no longer add
8 four points to the classification scores of inmates for participation in the Mental Health
9 Services Delivery System, and they have removed the four points previously added to
10 inmate classification scores on that basis.
11 b. Prior Policy, Practice, or Procedure: Lack Of Reasonable
12 Accommodations During Heat Alerts.
13 Modified Policy, Practice, or Procedure: Defendants have agreed to
14 revise their policies to provide that inmates subject to the heat plan promulgated in
15 Coleman shall receive meaningful access to equivalent programming—including out-of-
16 cell time—during heat alert days.
17 c. Prior Policy, Practice, or Procedure: Lack of Access to Programming
18 and Jobs.
19 Modified Policy, Practice, or Procedure: Defendants have agreed to
20 revise the Interdisciplinary Treatment Team (IDTT) process to ensure that the IDTT team
21 evaluates and, if appropriate, clears Enhanced Outpatient Program (EOP) inmates for
22 participation in prison programs and services, including jobs and education. Defendants
23 agree that, as part of the Coleman monthly data production, or through an equivalent
24 means, Defendants shall produce data regarding the number of inmates in the EOP and
25 Correctional Clinical Case Management System (CCCMS) programs, as defined by the
26 Coleman Program Guide —assigned to jobs, vocational, education, and substance abuse
27

28
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1 programs at each institution, as compared to inmates not in the Mental Health Services

2 Delivery System.

3 d. Prior Policy, Practice, or Procedure: Systematically Housing Inmates

4 Out of Security Level Due to Psychiatric Disabilities.

5 Modified Policy, Practice, or Procedure: Defendants have opened a

6 Level II program at the Substance Abuse Treatment Facility (SATF), and a Level II male

7 EOP program at Valley State Prison to provide greater opportunities for inmates

8 participating in the Mental Health Services Delivery System to be housed consistent with

9 their security levels. Defendants agree that, as part of the Coleman monthly data

10 production, or through an equivalent means, Defendants shall produce data regarding the

11 number of Coleman class members housed at a higher security level than their points

12 would require, as compared to inmates not in the Mental Health Services Delivery

13 System.

14 e. Prior Policy, Practice, or Procedure: Restricting Eligibility for

15 Milestone Credits In Manners That Tend to Exclude Persons With Psychiatric Disabilities.

16 Modified Policy, Practice, or Procedure: Defendants have agreed to

17 make available to inmates with psychiatric disabilities milestone credit earning by

18 granting credits for existing Mental Health Services Delivery System groups, such as

19 anger management and criminal thinking groups. Defendants are also working on new

20 curriculum for additional programs that will earn them milestone credits. Defendants

21 agree that, as part of the Coleman monthly data production, or through an equivalent

22 means, Defendants shall produce data on the percentage of CCCMS and EOP inmates

23 who are earning milestone credits, as compared to inmates not in the Mental Health

24 Services Delivery System.

25 f. Prior Policy, Practice, or Procedure: Excluding Allegations of

26 Discrimination on Account of Psychiatric Disability from the ADA Grievance Process.

27 Modified Policy, Practice, or Procedure: Defendants are

28

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1 implementing a revised ADA grievance process through which inmates with psychiatric
2 disabilities may request reasonable modifications to services, programs, and activities and
3 make requests for reasonable accommodations. These inmates will also be permitted to
4 grieve any decision rendered under this process via an inmate appeal.
5 g. Prior Policy, Practice, or Procedure: Restricting eligibility for
6 periodic classification score reductions for EOP inmates for successful programming.
7 Modified Policy, Practice, or Procedure: EOP inmates are now entitled
8 to earn up to four point reductions annually from their classification score for successful
9 programming.
10

11 22. The parties have not agreed that the following specific policies, practices,

12 and procedures have had the effect of discriminating against or excluding EOP and

13 CCCMS participants from the benefits of the services, programs, and activities operated

14 by CDCR, and therefore that any remedy is required regarding them. The parties

15 nevertheless agree that allegations of discrimination related to the following specific

16 policies, practices, and procedures are appropriate for resolution within the Coleman

17 remedial process.

18 a. Privileges for inmates with psychiatric disabilities with extended

19 stays in reception centers (i.e. beyond ninety days) due solely to a psychiatric disability;

20 b. Access to substance abuse programs by inmates with psychiatric

21 disabilities;

22 c. Access to minimum security facilities and community-based

23 programs by inmates with psychiatric disabilities;

24 d. Access to reentry hub programs by inmates with psychiatric

25 disabilities;

26 e. Effective communication and discrimination in the Rules Violation

27 Report (RVR) process for inmates with psychiatric disabilities; and

28

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Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 11 of 25

1 f. Discrimination in use of restraints, including treatment modules, for
2 prisoners with psychiatric disabilities.
3 23. Resolution of issues identified in Paragraphs 21 and 22 through the
4 Coleman remedial process shall include a reasonable continued period of negotiations
5 facilitated by the Special Master. Any issues resolved in such negotiations may result in
6 further amendments to policies, practices, and procedures to be implemented as part of the
7 Coleman remedy. Issues that are not resolved after a reasonable period of negotiations
8 may be presented by Plaintiffs to the Coleman court for resolution. The parties agree that
9 for purposes of resolving issues of discrimination or exclusion against prison inmates with
10 psychiatric disabilities, the Coleman Court should address whether the specific systemic
11 policies, practices and procedures identified in this paragraph violate the ADA and
12 Rehabilitation Act, and if so what prospective relief is appropriate. Plaintiffs shall have
13 the burden of proving that the specific systemic policies, practices and procedures
14 identified in Paragraphs 21 and 22 violate the ADA and Rehabilitation Act. Defendants
15 shall have an opportunity to respond to any such evidence presented to the Court and to
16 present their own evidence. Brief or isolated instances of alleged disability discrimination
17 shall not constitute an ongoing, system-wide policy or practice in violation of the ADA or
18 Rehabilitation Act.
19 24. The parties agree that the following issues are not appropriate for resolution
20 in the Coleman remedial process, and that upon dismissal of the Hecker action, these
21 issues will not become part of the Coleman remedy, and that as to these issues the
22 dismissal of Hecker will be without prejudice to resolution of these issues in subsequent
23 litigation:
24 a. Exclusion of CCCMS inmates from participation in the program,
25 service, or activity of assignment to conservation/fire camp.
26

27

28
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1 Defendants agree that any of the individual Hecker plaintiffs may pursue ADA or
2 Rehabilitation Act claims concerning fire camp/ conservation camp against Defendants in
3 a separate lawsuit.
4

5 VII. DISMISSAL

6

25.

The parties shall jointly request that the Hecker Court, after the

7 fairness hearing described in Paragraph 19 above, shall dismiss the Hecker action in a

8 form of order jointly proposed by the parties that specifies that the Hecker certified class

9 action is dismissed in return for the relief that the Hecker class will have received under

10 the terms of this Agreement by virtue of the implementation of specific policy, practice

11 and procedure changes as part of the Coleman remedial process. The form of order shall

12 specify that the dismissal is with prejudice except as to claims regarding assignment of

13 MHSDS inmates to fire/conservation camps.

14 26. It is the intention of the parties in signing this Agreement that upon approval

15 by the Court it shall be effective as a full and final accord and satisfaction and release

16 from all claims asserted in the Second Amended Complaint except for claims concerning

17 conservation/fire camp, which will be dismissed without prejudice as described above.

18 By signing this Agreement, Plaintiffs release CDCR, Defendants, and any other past or

19 current State officials and employees from all claims, past, present and future, known or

20 unknown, that arise or could arise from the facts alleged in the complaint. Nothing in this

21 Agreement will affect the rights of any named Hecker Plaintiffs regarding any legal claim

22 that arises after the date that the settlement is executed or regarding claims of Hecker

23 Plaintiffs other than those asserted in the Second Amended Complaint under the ADA

24 and the Rehabilitation Act for injunctive and declaratory relief.

25 27. In furtherance of this intention, the parties acknowledge that they are

26 familiar with, and expressly waive, the provisions of California Civil Code section 1542,

27 which states:

28

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1

A general release does not extend to claims which the creditor

2

does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must

3

have materially affected his or her settlement with the debtor.

4 28. This Agreement is the compromise of various disputed claims and shall not
5 be treated as an admission of liability by any of the parties for any purpose. The signature
6 of or on behalf of the respective parties does not indicate or acknowledge the validity or
7 merits of any claim or demand of the other party. The parties further agree that the
8 Coleman class does not include persons on parole and that nothing in this agreement
9 limits the ability of Plaintiffs to pursue any claims on behalf of persons on parole.
10 29. The parties agree that this Agreement regarding specific policies, practices,
11 and procedures that have allegedly had the effect of excluding some EOP and CCCMS
12 participants from some of the benefits of the services, programs and activities operated by
13 CDCR shall not affect or otherwise impact Defendants’ ability to seek termination of
14 prospective relief entered in Coleman. Termination of the Coleman litigation will
15 terminate the issues that have been or are being resolved under this Agreement. By this
16 agreement, Defendants do not waive any defenses already asserted in this litigation.
17

18 VIII. ATTORNEY’S FEES AND COSTS

19 30. The parties agree that all claims for reasonable fees and costs for work
20 previously done in this litigation, and any future work done by Plaintiffs’ counsel in
21 Coleman regarding Plaintiffs’ alleged violations of the ADA and Rehabilitation Act by
22 Defendants, may be resolved through the periodic fees process in Coleman. The parties
23 agree that Plaintiffs’ counsel’s billing rates for such work will be subject to the maximum
24 billing rate under the Prison Litigation Reform Act. Defendants waive any objection that
25 such work is not compensable in Coleman because it involves allegations of violations of
26 the ADA and Rehabilitation Act. Work performed by Plaintiff’s counsel before execution
27

28
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1 of this Settlement Agreement may be addressed in the Coleman quarterly fees negotiation
2 immediately following the execution of the Settlement Agreement.
3 IX. SUCCESSORS AND ASSIGNS
4

5

31. This Agreement shall be binding on the parties and their respective officers,

6 agents, administrators, successors, assignees, heirs, executors, trustees, attorneys,

7 consultants, and any committee or arrangement of creditors organized with respect to the

8 affairs of any such party.

9

32. Plaintiffs represent that they own the interests, rights, and claims that are the

10 subject matter of this Agreement. Plaintiffs and their principals, agents, attorneys,

11 successors, assigns, heirs, descendants, executors, representatives, partners, and associates

12 fully release and discharge the other parties and their principals, agents, attorneys,

13 successors, assigns, heirs, descendants, executors, representatives, partners, and associates

14 from all rights, claims, and actions that Plaintiffs and their successors now may have or at

15 any time in the future may have against the other parties and their successors except for

16 claims concerning conservation/fire camp dismissed without prejudice.

17 X. REPRESENTATIONS AND WARRANTIES

18 33. The consideration recited in this Agreement is the only consideration for
19 this Agreement, and no representations, promises, or inducements have been made to the
20 parties, or any of their representatives, other than those set forth in this Agreement.
21 34. This Agreement may be executed simultaneously in one or more
22 counterparts, each of which shall be deemed an original, but all of which together shall
23 constitute one and the same instrument.
24 35. Each party to this Agreement shall execute or cause to be executed such
25 further and other documents as are needed to carry out the expressed intent and purpose of
26 this Agreement.
27

28
[1251989-1]

13
Settlement Agreement & Release (2:05-cv-2441 LKK DAD (PC))

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 15 of 25

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement, but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

Zo Dated:

~

o~~ ~~, By.

-~

21 22 Dated:

23 Approved as to form:
24 Dated:
25
26
27 Approved as to form:

Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
[12519811]

14
Settlement A~eement &Release (2:05-cv-2441 LKK DAD(PC))

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 16 of 25

Jul, 29. 2014 3:30PM

No. 4454 P. c

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 17 of 25

36, This Agreement constitutes a single, integrated agreement expressing the 2
entire agreement o~the paxties, and there are no other agreements, written or oral, express
3
or implied, between the pa~txes, excepti as set forth in this Agreement,
4
37, No s~ppleinent, modification, or amendment to this Agreement shall Eye 5
binding unless executed in variting by all the parties. No waiver ofany provision ofthis 6
Agreement shall be binding u~~ess executed in ~crriting by the party making the ~wai~er. 7
No waiver ofany provision ofthis Agreement sha11 be deemed,or shall co~.stitute, a 8
waiver of any other provision, whether or not similar, nor shall any waiver constitute a 9
contin~xing waiver. 10
38. Unless expressly stated otherwise in this Agreement,the terrr~s, conditions, 11
and provisions ofthis Agreement are governed by and interpreted under California state
12

13 39. Should and provision ofthis Agreement be held invalid or illegal, sucks
14 illegality shall not invalidate the whole ofthis Agreement, but the Agreement shall be
1.5 construed as ifit did not contain the illegal pert, and the rrghts and obligatio~as ofthe
16 parties shall be construed and enforced accordingly.
17

18 '~'l~e undersigned agree to the above:

19

2D Dated: ~ ~`~

~y.

1,~, ~ 1.' ✓ y

21
2z Dated: ~ 7~l l

B~: ~DN~ ~~sl~Y ~,l ~~A~s

23
Approved as to form: 24

25 26 27 ~~ APproved as to form: 28

Jai C.Russell, Supervising Deputy Atto~-~iey General Counsel for llefendants

II

JCLLLCIIICIIL H~CCCI[1CL16 OG LlG1GQJC IL,V~~~+V'L441 LAIC LKL ~r~~~

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 18 of 25

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
_11_
and provisions ofthis Agreement are governed by and interpreted under California state
12

13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement,but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

20 Dated:~ 21

a'E~ ~

By:
~i~~~n I~1 ~lei

22

23
Approved as to form: 24

25 26 27 ~ Approved as to form:

JQy 1... AUSJGll~ JU~GlV1J111~ LG~ULy HLLViI1Cy
General Counsel for Defendants

28

Jettlement Agreement ~i Kelease (L:U~-cv-1441 LKK llAll(YC:)) ~

Jul. 3u. 2014 1:22PM

No. 4493 P, 2

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 19 of 25

Y 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement of the parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as ser forth in thzs Agreement,
4 ~7, loo su~~le~xaent, modification, or amendment do this Agreement shad be
5 binding unless executed in waiting by alI the parties. No waiver ofany pzovision o~this
6 Agreement shall be binding unless executed in wx~ting by the party making th,e wai~v~r.
7 No waiver ofany p~ovisi4n ofthis Agreement shall be deemed,or shall constitute, a
8 weaver ofand other ~rovis~on, v~rhether or not similar, nor shall an~r waiver consCrtute a
9 continuing waiver.
10 38, Uc~less expressly stated otherwise in this Agreement,the berms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
Y2 Yar~r,
13 39, Should any provision ofthis Agrcem~ent ~e held invalid or illegal, suck
1~ illegality sha11 not invalidate the whole ofthis Agr~cme~at, but the Agreementi shall be
15 construed as i~it did nod contain the illegax part, and the rights and obligations ~fthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:

19

IU

20 lla~ed: r ~ V

By:

21

22 Dated:

By:

R ~~D P~ U~D

23 Approved as to form:
24 T~ated:
25
26
27 Approved as to form;

By: Jai C.Russell,Supervising T~eputy AtCO~ne~ General Counsel for llefend~~ts

28
~izstses-~~

I4
Se~Clement Agreement& Ttclease (2:05-cv-2441 LKTC DAD(PC))

Ja', 30. 2014 1;23PM

No. 4493 F'.

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 20 of 25

1
36. This Agreement constitutes a single, i~ategrated agr~eme~at expressing tie
2
entire agreement ofthe parties, and there are no other agreements, writte~a or oral, e:~press
3
or implied, between the parties, except as set forth in this ,Agreement.

37. No supplement, modifcation, or amendment to tk~is Agreement shall be
5
binding unless executed in r~riting by all the parties, N"o waiver o~ any provision o~this 6
Agreement shall be binding unless executed in writing by the pai-~y rxzaking the ~~vaiver..
7 N"o waiver ofany provision ofthis Agreement shall be deemed, or shall constitute, a
8 waiter of any other provision, whether ar not similar, nor sha11 and waiver constitute a
9
continuing wai~Ver.
10 38. Unless expressl~r stated otherwise in this A,gree~nent, the terms, conditions,
11 and provisions ofthis Agree~aent are governed by and interpreted under California state
12 lam.
13 39. Should any provision ofthis Agreement be held invalid or iI~egal, stYCh
14
illegality shaX~ not invalidate the'whole ofthis Agreement, but the Agreement shall be 15
construed as ifit did not contaiza the illegal part, and the rights and ob~xgations ofthe 16
parties shall be construed and enforced accordingly,
17

18 Tie ~undexsigned agree to the above:
19

20 Dated:

f~

l 21

22 Dated:

23 A.ppro~ed as to ~oxm:
24 25 Dated:
26
27 Approved as to form:
Zs
~tz~tsas~~~

day C. Russell, Super~is~ng Deputy Attorney CreneraI Counsel for Defendants
14
Settlement AgreemcnC &Release (2:05-cv-2441 I.KK DAD (PC)}

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 21 of 25

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 22 of 25

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement of the parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver of any provision of this
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver of any provision of this Agreement shall be deemed, or shall constitute, a
8 waiver of any other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement, the terms, conditions,
11 and provisions of this Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision of this Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole of this Agreement, but the Agreement shall be
15 construed as if it did not contain the illegal part, and the rights and obligations of the
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

20 Dated: July 29, 2014 21

By: Ying Watt

22 Dated:

By:

23 Approved as to form:
24 25 Dated:
26
27 Approved as to form:

By: Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
[1251989-1]

14
Settlement Agreement & Release (2:05-cv-2441 LKK DAD (PC))

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 23 of 25

1 36. This Agreement constitutes a single, integrated agreement expressing the
2 entire agreement ofthe parties, and there are no other agreements, written or oral, express
3 or implied, between the parties, except as set forth in this Agreement.
4 37. No supplement, modification, or amendment to this Agreement shall be
5 binding unless executed in writing by all the parties. No waiver ofany provision ofthis
6 Agreement shall be binding unless executed in writing by the party making the waiver.
7 No waiver ofany provision ofthis Agreement shall be deemed,or shall constitute, a
8 waiver ofany other provision, whether or not similar, nor shall any waiver constitute a
9 continuing waiver.
10 38. Unless expressly stated otherwise in this Agreement,the terms, conditions,
11 and provisions ofthis Agreement are governed by and interpreted under California state
12 law.
13 39. Should any provision ofthis Agreement be held invalid or illegal, such
14 illegality shall not invalidate the whole ofthis Agreement,but the Agreement shall be
15 construed as ifit did not contain the illegal part, and the rights and obligations ofthe
16 parties shall be construed and enforced accordingly.
17

18 The undersigned agree to the above:
19

Zo Dated:

By: ~!~

~ ~ t~~~~"

21

~ ~

~

22 Dated: ~'-` —~'f

23 Approved as to form:
24 Dated:
25
26
27 ~ Approved as to form:

Jay C. Russell, Supervising Deputy Attorney General Counsel for Defendants

28
[125198&1]

14
Settlement Agreement &Release (2:05-cv-2441 LKK DAD(PC))

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 24 of 25

Case 2:05-cv-02441-KJM-DAD Document 148-1 Filed 03/02/15 Page 25 of 25

~/ / 1 Dated: ~ l I /
2 3
4
SF2006200078
5 6 7 8 9 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28
[1251989- t]

~--

By:

~

Michael W.Bien

Rosen Bien Galvan & Grunfeld LLP

Counsel for the Coleman and Hecker Plaintiffs

15
Settlement Agreement & Release (2:05-cv-2441 LKK DAD(PC))

Case 2:05-cv-02441-KJM-DAD Document 148-2 Filed 03/02/15 Page 1 of 1
NOTICE - DECISION IN MENTAL HEALTH CARE CLASS ACTION (Coleman v. Brown)

On September 13, 1995, a federal court in Sacramento ruled that the CDCR violated the cruel and unusual punishment clause of the Constitution by failing to provide adequate mental health care. The ruling was in a case called Coleman v. Wilson (now Coleman v. Brown). The case covers all prisoners with serious mental disorders housed in California state prisons. The case continues today. The Court’s 1995 Order is available for review in your prison law library.

There have been numerous additional Orders from the Court requiring specific changes. Some of the areas addressed include: screening, treatment programs, staffing, accurate and complete records, medication distribution, inpatient psychiatric care, segregation, use of force, the disciplinary process and suicide prevention.

The Court has approved CDCR’s plan for providing mental health care. That plan is now set forth in the “Mental Health Services Delivery System Program Guide.” CDCR also is modifying policies that may have discriminated against prisoners with psychiatric disabilities and will allow class members to request reasonable accommodations. The Court has appointed a Special Master who, among other things, monitors and reports on CDCR’s compliance with the mental health Program Guide and CDCR policies.

The lawyers representing the prisoners are:

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964-0001

Michael W. Bien Rosen Bien Galvan & Grunfeld, LLP P.O. Box 390 San Francisco, CA 94104-0390

Prison officials are represented by lawyers in the California Attorney General’s office:

(Revised January 2015)

Deputy Attorney General 1300 I Street P.O. Box 944255 Sacramento, CA 94244

[1495744-2]

 
 Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 1 of 23
PRISONER_CIVIL_RIGHTS,CLOSED,STAYED,MEMBER_CASE
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:05−cv−02441−KJM−DAD

(PC) Hecker v. California Department of Corrections and Rehabilitation et al Assigned to: Judge Kimberly J. Mueller Referred to: Magistrate Judge Dale A. Drozd Related Cases: 2:90−cv−00520−KJM−DAD
2:05−cv−00876−LKK−JFM Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 12/01/2005 Date Terminated: 03/15/2007 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Robert Hecker TERMINATED: 01/16/2015

represented by Claudia B Center American Civil Liberties Union Disability Rights Program 39 Drumm Street San Francisco, CA 94111 (415) 343−0770 Fax: (415) 395−0950 Email: ccenter@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan National Center for Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102 (415) 392−6257 Email: awhelan@nclrights.org ATTORNEY TO BE NOTICED

Blake Thompson Rosen Bien Galvan & Grunfeld LLP. 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: bthompson@rbg−law.com ATTORNEY TO BE NOTICED

Ernest Galvan Rosen Bien Galvan & Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x223 Fax: (415) 433−7104 Email: egalvan@rbgg.com ATTORNEY TO BE NOTICED

Michael Bien Rosen Bien Galvan & Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: mbien@rbgg.com ATTORNEY TO BE NOTICED

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 2 of 23

Plaintiff Christopher Jenkins TERMINATED: 01/16/2015
Plaintiff Askia S. Ashanti
Plaintiff Ronald Auld

Thomas Bengt Nolan Rosen Bien Galvan & Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: tnolan@rbgg.com ATTORNEY TO BE NOTICED
represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 3 of 23

ATTORNEY TO BE NOTICED

Plaintiff
Joseph cox TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Samuel D'Angelo TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bobby Daniels

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Quinton Gray

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 4 of 23

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Daniel Hunley TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Lovelace TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff John Mueller

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 5 of 23

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff
John Schooley TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brian K Stafford

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Peter Taylor TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Eddie Thomas TERMINATED: 01/16/2015

represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 6 of 23

Plaintiff Ying Watt TERMINATED: 01/16/2015
Plaintiff John Wesley Williams

Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address) ATTORNEY TO BE NOTICED
represented by Claudia B Center (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Michael Bien (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
State of California Department of Corrections and Rehabilitation

represented by Kenneth T Roost Deputy Attorney General California Department of Justice 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5824 Fax: 415−703−5843 Email: ken.roost@doj.ca.gov LEAD ATTORNEY

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 7 of 23

ATTORNEY TO BE NOTICED

Kurt A. Franklin Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−995−5086 Fax: 415−541−9366 Email: kfranklin@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn Attorney General's Office for the State of California 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5726 Email: Michael.Quinn@doj.ca.gov LEAD ATTORNEY

Sahar Nayeri CA DOJ 455 Golden Gate Ave., Suite 11000 San Francisco, CA 94102 415−703−5337 Email: sahar.nayeri@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dorothy S. Liu Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415995−5046 Fax: 415541−9366 Email: dliu@hansonbridgett.com ATTORNEY TO BE NOTICED

Jay Craig Russell Office of the Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5717 Fax: 415−703−5843 Email: jay.russell@doj.ca.gov ATTORNEY TO BE NOTICED

Defendant
Arnold Schwarzenegger Governor of the State of California, in his official capacity

represented by Jay Craig Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth T Roost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kurt A. Franklin

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 8 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Dorothy S. Liu (See above for address) ATTORNEY TO BE NOTICED

Defendant
Roderick Hickman Secretary of the California Department of Corrections and Rehabilitation, in his official capacity

represented by Jay Craig Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dorothy S. Liu (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jeanne S. Woodford Undersecretary of the California Department of Corrections and Rehabilitation, in her official capacity

represented by Jay Craig Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth T Roost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Dorothy S. Liu (See above for address) ATTORNEY TO BE NOTICED

Defendant
John Dovey Director, Division of Adult Institutions, in his official capacity

represented by Jay Craig Russell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kenneth T Roost

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 9 of 23

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dorothy S. Liu (See above for address) ATTORNEY TO BE NOTICED

Defendant
Teresa A. Schwartz Warden TERMINATED: 02/23/2006

represented by Kenneth T Roost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Kurt A. Franklin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Martin Veal Warden of the California Medical Facility, in his official capacity

Defendant
Anthony Kane Warden of the Correctional Training Facility, in his official capacity

Defendant Warden Benjamin Curry

represented by Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 10 of 23

(415) 995−5049 Fax: (415) 541−9366 Email: rjacob@hansonbridgett.com ATTORNEY TO BE NOTICED

Defendant Director Peter Farber−Szekrenyi

represented by Kenneth T Roost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Kurt A. Franklin (See above for address) ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob (See above for address) ATTORNEY TO BE NOTICED

Defendant Warden Robert Hernandez

represented by Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob (See above for address) ATTORNEY TO BE NOTICED

Defendant Warden Anthony Malfi

represented by Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Quinn (See above for address) LEAD ATTORNEY

Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob (See above for address) ATTORNEY TO BE NOTICED

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 11 of 23

Defendant Warden Marshall Defendant Warden Kathy Mendoza−Powers
Defendant Warden Michael Poulos
Defendant Warden R. K. Wong
Defendant Secretary James E. Tilton

represented by Kenneth T Roost (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Quinn (See above for address) LEAD ATTORNEY
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Renju Palanilkumuryil Jacob (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Quinn (See above for address) LEAD ATTORNEY
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Kurt A. Franklin (See above for address) ATTORNEY TO BE NOTICED
represented by Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Quinn (See above for address) LEAD ATTORNEY
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED
Renju Palanilkumuryil Jacob (See above for address) ATTORNEY TO BE NOTICED
represented by Kenneth T Roost (See above for address) LEAD ATTORNEY

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 12 of 23
ATTORNEY TO BE NOTICED
Kurt A. Franklin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Quinn (See above for address) LEAD ATTORNEY
Jay Craig Russell (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/01/2005 12/02/2005 12/02/2005 12/05/2005 12/05/2005
12/05/2005
12/05/2005 12/13/2005 12/27/2005 01/05/2006
01/10/2006
02/23/2006

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against all defendants, filed by Robert Hecker. (Attachments: # 1 Civil Cover Sheet)(Center, Claudia) (Entered: 12/01/2005)
3 NOTICE of RELATED CASE 2:90−cv−00520, s:04−01750, s:05−0876 by Robert Hecker (Nolan, Thomas) (Entered: 12/02/2005)
4 DECLARATION of Michael W. Bien in SUPPORT OF NOTICE OF RELATED CASES. (Nolan, Thomas) (Entered: 12/02/2005)
RECEIPT number 20214630 for $250.00 for New Case Filing from Claudia Center. (Yin, K) (Entered: 12/05/2005)
5 SUMMONS ISSUED as to *Teresa A. Schwartz, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Q. Hickman, Jeanne S. Woodford, John Dovey* with answer to complaint due within *20* days. Attorney *Claudia Center* *600 Harrison Street* *Ste. 120* *San Francisco, CA 94104*. (Yin, K) (Entered: 12/05/2005)
6 AMENDED SUMMONS ISSUED as to *Teresa A. Schwartz, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Q. Hickman, Jeanne S. Woodford, John Dovey* with answer to complaint due within *20* days. Attorney *Claudia Center* *600 Harrison Street* *Ste. 120* *San Francisco, CA 94104*. (Yin, K) Modified on 12/9/2005 (Yin, K). (Entered: 12/05/2005)
7 PRISONER NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Forms) (Yin, K) (Entered: 12/05/2005)
8 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Robert Hecker. (Center, Claudia) (Entered: 12/13/2005)
9 OBJECTIONS by David Wilson (in 2:05−cv−0876 LKK GGH (PC)) to 3 Notice of Related Case. (Dotson, B) (Entered: 12/28/2005)
10 SUMMONS ISSUED as to *Teresa A. Schwartz, Warden of the CA Medical Facility in her official capacity* with answer to complaint due within *20* days. Attorney *Claudia Center* *The Legal Aid Society−Employment Law Center* *600 Harrison Street, Suite 120* *San Francisco, CA 94107*. (Warren, P) (Entered: 01/05/2006)
11 SUMMONS RETURNED EXECUTED by Robert Hecker. Teresa A. Schwartz served on 1/6/2006, answer due 1/26/2006; California Department of Corrections and Rehabilitation served on 12/30/2005, answer due 1/19/2006; Arnold Schwarzenegger served on 12/30/2005, answer due 1/19/2006; Roderick Q. Hickman served on 12/30/2005, answer due 1/19/2006; Jeanne S. Woodford served on 12/30/2005, answer due 1/19/2006; John Dovey served on 12/30/2005, answer due 1/19/2006. (Center, Claudia) (Entered: 01/10/2006)
12 FIRST AMENDED COMPLAINT against all defendants filed by Christopher Jenkins, Robert Hecker.(Center, Claudia) Modified on 2/24/2006 (Dotson, B). (Entered: 02/23/2006)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 13 of 23

03/22/2006 05/02/2006
05/04/2006
06/01/2006
06/14/2006
06/26/2006 08/08/2006
08/08/2006 08/14/2006 08/14/2006 08/14/2006 08/14/2006 08/31/2006 08/31/2006

13 ANSWER to 12 AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF by California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey.(Liu, Dorothy) Modified on 3/23/2006 (Dotson, B). (Entered: 03/22/2006)
14 ORDER signed by Judge Lawrence K. Karlton on 5/1/06 ORDERING that case 05cv2441 LKK GGH is related to member of cases 90cv520 LKK JFM, 04cv1750 FCD KJM and 05cv876 LKK GGH P. Case 05cv2441 shall remain assigned to Judge Lawrence K. Karlton and shall be reassigned to Judge John F. Moulds for all further proceedings. Clerk to make appropriate adjustment in the assignment of civil cases to compensate for this reassignment . (Duong, D) (Entered: 05/03/2006)
15 ORDER SETTING STATUS CONFERENCE signed by Judge John F. Moulds on 5/4/06 ORDERING that: a Status Conference is set for 6/1/2006 at 11:00 AM in Courtroom 25 before Magistrate Judge John F. Moulds; the parties are not required to submit to the court or serve upon the parties a status report; and, counsel are reminded of their duty to notify chambers immediately of any settlement or other disposition.(Brown, T) (Entered: 05/04/2006)
16 MINUTES for proceedings held on 6/1/2006 before Judge John F. Moulds : STATUS CONFERENCE. The parties advised the Court as to the status of the case. The Court to issue an order.Plaintiffs Counsel Claudia Center and Michael Bien present. Defendants Counsel Kurt Franklin and Jay Russell present. Michael Keating appearing by telephone.Court Reporter/CD Number: ECRO, CD 1 of 1. TEXT ONLY.(Cannarozzi, N) (Entered: 06/01/2006)
17 ORDER signed by Judge John F. Moulds on 6/13/06 ORDERING Any motion to amend the complaint shall be filed and noticed for hearing so that it will be heard not later than 9/14/06. The notice requirements and briefing schedule set forth in LR 78−230 shall apply to any such motion, which shall be set for hrg on this court's law and motion calendar. This matter is SET for furhter Status Conference on 9/14/2006 at 11:00 AM in Courtroom 25 (JFM) before Magistrate Judge John F. Moulds. (Girgis, C) (Entered: 06/14/2006)
18 TRANSCRIPT of Status Conference held on 6/1/2006 before the Honorable John F. Moulds. (TEXT ONLY − Maintained on Paper) (Schultz, C) (Entered: 06/27/2006)
19 MINUTE ORDER: The court is in receipt of a request for clarification of the referral in the instant case. The court clarifies that it was the court's intention to assign the case to Magistrate Judge Moulds, pursuant to 28 U.S.C. 636(b)(1)(B), to decide all matters initially, reserving for this court review of the magistrate judge's proposed findings. In the event a party objects to that process, they should file a pleading which sets for the basis for their desire that this court hear the matter. Ordered by Judge Lawrence K. Karlton on 8/8/06. (No document attached).(Hinkle, T) Modified on 8/10/2006 (Duong, D). (Entered: 08/08/2006)
20 LETTER from plaintiffs re Clarification of 5/1/06 order 14 . See Minute Order 19 . (Duong, D) Modified on 8/10/2006 (Duong, D). (Entered: 08/09/2006)
21 MOTION to AMEND the COMPLAINT by Christopher Jenkins, Robert Hecker. Motion Hearing set for 9/14/2006 at 11:00 AM in 8th floor courtroom (JFM) before Magistrate Judge John F. Moulds. (Center, Claudia) (Entered: 08/14/2006)
22 MEMORANDUM/RESPONSE in SUPPORT re 21 MOTION to AMEND the COMPLAINT. (Center, Claudia) (Entered: 08/14/2006)
23 DECLARATION of Lewis Bossing in Support of re 21 MOTION to AMEND the COMPLAINT. (Center, Claudia) (Entered: 08/14/2006)
24 PROPOSED ORDER re 21 MOTION to AMEND the COMPLAINT. (Center, Claudia) (Entered: 08/14/2006)
25 STATEMENT of NON−OPPOSITION to MOTION. Attorney Franklin, Kurt A. added. Plantiffs' Motion to Amend First Amended Complaint (Franklin, Kurt) (Entered: 08/31/2006)
26 DECLARATION of Kurt A. Franklin in Support of. Defendants' Statement of Non−Opposition to Plaintiffs' Motion to Amend First Amended Complaint (Franklin,

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 14 of 23

08/31/2006 09/12/2006 09/14/2006
09/29/2006 10/06/2006 10/13/2006 10/13/2006 10/13/2006 10/20/2006
11/06/2006 11/14/2006 11/17/2006
11/17/2006

Kurt) (Entered: 08/31/2006)
27 STIPULATION and PROPOSED ORDER Joint Stipulation and Proposed Order by Anthony Kane, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey. (Franklin, Kurt) (Entered: 08/31/2006)
28 STIPULATION and PROPOSED ORDER Joint Stipulation by California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey. (Franklin, Kurt) (Entered: 09/12/2006)
29 JOINT STIPULATION AND ORDER signed by Judge John F. Moulds on 9/13/06. The Status conference currently set for Thursday, September, 14, 2006 is VACATED. Plaintiffs shall file their revised Second Amended Class Action Complaint for Declaratory and Injunctive Relief by Friday, October 20, 2006. The proposed joint scheduling should be filed by September 29, 2006. (Kaminski, H) Modified on 9/14/2006 (Kaminski, H). (Entered: 09/14/2006)
30 STIPULATION and PROPOSED ORDER GRANTING EXTENSION OF TIME TO FILE PROPOSED SCHEDULING ORDER by California Department of Corrections and Rehabilitation. Attorney Russell, Jay Craig added. (Russell, Jay) (Entered: 09/29/2006)
31 FURTHER STIPULATION and PROPOSED ORDER by California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey to extend time to file proposed scheduling order. (Franklin, Kurt) Modified on 10/10/2006 (Kirkpatrick, S). (Entered: 10/06/2006)
32 PLAINTIFF(S) CASE MANAGEMENT STATEMENT and proposed order by Christopher Jenkins, Robert Hecker. (Center, Claudia) Modified on 10/16/2006 (Matson, R). (Entered: 10/13/2006)
33 DECLARATION of Claudia Center in Support of re 32 Case Management Statement. (Center, Claudia) Modified on 10/16/2006 (Matson, R). (Entered: 10/13/2006)
34 STIPULATION and PROPOSED ORDER Joint Stipulation and [Proposed] Order by California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey. Attorney Russell, Jay Craig added. (Russell, Jay) (Entered: 10/13/2006)
35 SECOND AMENDED CLASS ACTION COMPLAINT against all defendants by Askia S Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. Attorney Center, Claudia B added.(Center, Claudia) Modified on 10/23/2006 (Matson, R). (Entered: 10/20/2006)
36 NOTICE of Change of Law Firm Name and Address by all plaintiffs. Attorney Whelan, Amy Elizabeth added. (Whelan, Amy) Modified on 11/8/2006 (Matson, R). (Entered: 11/06/2006)
37 STIPULATION and PROPOSED ORDER by Teresa A. Schwartz, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Roderick Hickman, Jeanne S. Woodford, John Dovey. Attorney Franklin, Kurt A. added. (Franklin, Kurt) (Entered: 11/14/2006)
38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations by Michael Poulos, California Department of Corrections and Rehabilitation, Jeanne S. Woodford, John Dovey. Attorney Franklin, Kurt A. added. Motion Hearing set for 12/21/2006 at 11:00 AM in 8th floor courtroom (JFM) before Magistrate Judge John F. Moulds. (Franklin, Kurt) (Entered: 11/17/2006)
39 Memo of Points and Authorities to 38 Motion to Dismiss by Michael Poulos, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Franklin, Kurt) Modified on 11/28/2006 (Matson, R). (Entered: 11/17/2006)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 15 of 23

11/17/2006 11/17/2006 11/17/2006
11/20/2006
11/20/2006 11/20/2006 11/27/2006 11/27/2006 11/30/2006 11/30/2006 12/01/2006 12/14/2006

40 Appendix to 38 Motion to Dismiss by Michael Poulos, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Attachments: # 1 Appendix Part 2)(Franklin, Kurt) Modified on 11/28/2006 (Matson, R). (Entered: 11/17/2006)
41 Request for Judicial Notice and Exhibits by Michael Poulos, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Attachments: # 1 Exhibit E and F, pt 1 of 4 # 2 Exhibit F pt 2 of 4 # 3 Exhibit F pt 3 of 4 # 4 Exhibit F pt 4 of 4 # 5 Exhibit G through I # 6 Exhibit J # 7 Exhibit K through M)(Franklin, Kurt) Modified on 11/28/2006 (Matson, R). (Entered: 11/17/2006)
42 DISREGARD − filed correct proposed order 43 PROPOSED ORDER Motion to Dismiss re 40 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Appendix to MPA, 38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations, 41 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Request for Judicial Notice and Exhibits, 39 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Memo of Points and Authorities by Michael Poulos, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Franklin, Kurt) Modified on 11/20/2006 (Holland, K). (Entered: 11/17/2006)
43 PROPOSED ORDER Motion to Dismiss and Strike re 40 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Appendix to MPA, 38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations, 41 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Request for Judicial Notice and Exhibits, 39 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations − Memo of Points and Authorities by Michael Poulos, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Franklin, Kurt) (Entered: 11/20/2006)
CLERK'S NOTICE of DOCKET CORRECTION re 42 Disregard, corrected Proposed Order filed 43 (Holland, K) (Entered: 11/20/2006)
44 SUMMONS RETURNED EXECUTED as to James E Tilton served on 11/10/2006; Benjamin Curry served on 11/6/2006; Peter Farber−Szekrenyi served on 11/10/2006; Robert Hernandez served on 11/8/2006; Anthony Malfi served on 11/6/2006; Marshall served on 11/17/2006; Kathy Mendoza−Powers served on 11/17/2006; Michael Poulos served on 11/6/2006; and R. K. Wong served on 11/6/2006. (Center, Claudia) Modified on 12/21/2006 (Matson, R). (Entered: 11/20/2006)
45 JOINDER by Defendants Benjamin Curry, Robert Hernandez, Anthony Malfi, Kathy Mendoza−Powers, R. K. Wong to Motion to Dismiss 38 . Attorney Jacob, Renju Palanilkumuryil added. (Jacob, Renju) Modified on 11/30/2006 (Mena−Sanchez, L). (Entered: 11/27/2006)
46 MEMORANDUM of Points and Authorities by Benjamin Curry, Robert Hernandez, Anthony Malfi, Kathy Mendoza−Powers, R. K. Wong to 45 MOTION to DISMISS.(Jacob, Renju) Modified on 11/30/2006 (Mena−Sanchez, L). (Entered: 11/27/2006)
47 JOINDER by Defendant Farber−Szekrenyi to MOTION TO DISMISS 38 (Jacob, Renju) Modified on 12/1/2006 (Mena−Sanchez, L). (Entered: 11/30/2006)
48 MEMORANDUM of Points and Authorities is SUPPORT of JOINDER to Motion to Dismiss 47 . (Jacob, Renju) Modified on 12/1/2006 (Mena−Sanchez, L). (Entered: 11/30/2006)
49 STIPULATION and PROPOSED ORDER re 38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations by Askia S Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Center, Claudia) (Entered: 12/01/2006)
50 PLAINTIFFS' Memorandum of Points And Authorities In Opposition To Defendants' Motion to Dismiss Plaintiffs' Complaint and Motion to Strike Allegations. Attorney

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 16 of 23

12/14/2006 12/14/2006 12/28/2006
01/04/2007 01/04/2007 01/09/2007
01/10/2007 01/23/2007
01/31/2007 01/31/2007 02/08/2007
02/12/2007 02/14/2007 02/22/2007

Bien, Michael added. (Bien, Michael) Modified on 12/21/2006 (Matson, R). (Entered: 12/14/2006)
51 PROPOSED ORDER re 50 Opposition to Motion to Dismiss. (Bien, Michael) Modified on 12/21/2006 (Matson, R). (Entered: 12/14/2006)
52 APPENDIX by Robert Hecker re 50 Plaintiffs' Memorandum of Points And Authorities In Opposition To Defendants' Motion to Dismiss Plaintiffs' Complaint and Motion to Strike Allegations" filed by Robert Hecker. (Bien, Michael) Modified on 12/21/2006 (Matson, R). (Entered: 12/14/2006)
53 REQUEST for Change of Hearing Date Due to Surgery by California Department of Corrections and Rehabilitation re 49 Stipulation and Proposed Order, filed by John Wesley Williams,, Brian K Stafford,, Askia S Ashanti,, Christopher Jenkins,, Bobby Daniels,, Robert Hecker,, Peter Taylor,, Ying Watt,, Ronald Auld,, Daniel Hunley,, Joseph cox,, Eddie Thomas,, Michael Lovelace,, Quinton Gray,, Samuel D'Angelo,, John Schooley,, 38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations filed by John Dovey,, Jeanne S. Woodford,, California Department of Corrections and Rehabilitation,, Michael Poulos,. (Franklin, Kurt) (Entered: 12/28/2006)
54 REPLY to RESPONSE to MOTION 50 . Attorney Franklin, Kurt A. added. (Franklin, Kurt) Modified on 1/5/2007 (Duong, D). (Entered: 01/04/2007)
55 EXHIBIT Appendix to Defendants' Reply in Support of Motion to Dismiss and Motion to Strike. (Franklin, Kurt) (Entered: 01/04/2007)
56 STIPULATION and PROPOSED ORDER re 38 MOTION to DISMISS Plaintiffs' Complaint and Motion to Strike Allegations by Askia S Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Center, Claudia) (Entered: 01/09/2007)
57 ORDER signed by Judge John F. Moulds on 1/9/2007 ORDERING that the hearing on dfts' motion to dismiss and to strike allegations is reset to 2/8/2007 at 11:00 a.m. in Courtroom 26 (JFM) before Magistrate Judge John F. Moulds.(Matson, R) (Entered: 01/10/2007)
58 STATEMENT of Recent Decision by Plaintiffs Askia S Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Attachments: # 1 Exhibit A)(Center, Claudia) (Entered: 01/23/2007)
59 OBJECTION to 58 Plantiffs' Statement of Recent Decision by Defendants. (Russell, Jay) Modified on 2/1/2007 (Krueger, M). (Entered: 01/31/2007)
60 AMENDED OBJECTION to 58 Plaintiffs' Statement of Recent Decision by Defendants. (Russell, Jay) Modified on 2/1/2007 (Krueger, M). (Entered: 01/31/2007)
61 MINUTES (Text Only) for proceedings held before Judge John F. Moulds : MOTION HEARING held on 2/8/2007 re: MOTION to DISMISS, Joinder. Supplemental brief will be considered. Arguments. Matter submitted. Order to issue.Plaintiffs Counsel Claudia Center; Michael Bien present. Defendants Counsel Jay Russell; Kurt Franklin present. Court Reporter/CD Number: CD #1. (Farnsworth, C) (Entered: 02/08/2007)
62 TRANSCRIPT of Motion Hearing held on 2/8/07 before the Honorable John F. Moulds. (TEXT ONLY−Maintained on Paper) (Schultz, C) (Entered: 02/12/2007)
63 STATEMENT of Recent Decision by Defendants Curry, Farber−Szekrenyi, Hernandez, Malfi, Mendoza−Powers, Poulos, Wong, Tilton, CDCR, Schwarzenegger,Woodford, & Dovey. (Franklin, Kurt) Modified on 2/15/2007 (Brown, T). (Entered: 02/14/2007)
64 MOTION to COMPEL a Definite Deposition Schedule; To Compel Productions of Documents; and For a Protective Order by Askia S Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 17 of 23

02/27/2007
03/13/2007 03/13/2007 03/13/2007 03/13/2007 03/14/2007 03/15/2007
04/10/2007 06/12/2007 06/21/2007
06/21/2007 06/21/2007 06/22/2007

Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. Motion Hearing set for 3/15/2007 at 11:00 AM in Courtroom 25 (JFM) before Magistrate Judge John F. Moulds. (Center, Claudia) Modified on 2/26/2007 (Engbretson, K.). Modified on 2/26/2007 (Engbretson, K.). (Entered: 02/22/2007)
65 FINDINGS and RECOMMENDATIONS signed by Judge John F. Moulds on 2/26/2007 recommending that this matter be referred to the special master in Coleman v. Schwarzenegger, CIV S−90−0520 LKK JFM for a report and recommendation as to whether the claims raised can be resolved w/in the remedial phase of that action, said report to be filed w/in 90 days from the date of any order by the district court adopting these F&R's; and this matter be stayed until said report from the Coleman special master hasbeen filed and considered by the district court. Objections to the F&R's are due w/in 10 days. (Matson, R) (Entered: 02/27/2007)
66 OBJECTIONS to FINDINGS and RECOMMENDATIONS 65 by Plaintiffs. Attorney Galvan, Ernest added. (Galvan, Ernest) Modified on 3/14/2007 (Engbretson, K.). (Entered: 03/13/2007)
67 DECLARATION of Michael W. Bien in SUPPORT OF 66 Objections to Findings and Recommendations. Attorney Bien, Michael added. (Attachments: # 1 Exhibit A)(Bien, Michael) Modified on 3/14/2007 (Engbretson, K.). (Entered: 03/13/2007)
68 PROPOSED ORDER Declining to Adopted the 65 Findings and Recommendations filed by Plaintiffs. (Bien, Michael) Modified on 3/14/2007 (Engbretson, K.). (Entered: 03/13/2007)
69 WITHDRAWAL of 64 MOTION to COMPEL by Plaintiffs. (Center, Claudia) Modified on 3/14/2007 (Engbretson, K.). (Entered: 03/13/2007)
70 ORDER signed by Judge John F. Moulds on 3/13/07 ORDERING that Pltf's 64 Motion to Compel is DENIED without prejudice. (Engbretson, K.) (Entered: 03/14/2007)
71 ORDER ADOPTING FINDINGS and RECOMMENDATIONS 65 signed by Judge Lawrence K. Karlton on 03/15/07 ORDERING that this matter is referred to the special master in Coleman v. Schwarzenegger,No. CIV S−90−0520 LKK JFM P for a report and recommendation as to whether the claims raised herein can be resolved within the remedial phase of that action, said report to be filed within ninety days from the date of this order. This action is stayed until said report from the Coleman special master hasbeen filed and considered by this court. The Clerk of the Court is directed to serve a copy of this order on J. Michael Keaing, Jr., Special Master in Coleman v Schwarzenegger and on the parties in the Coleman case. Case STAYED. (cc: the parties of Coleman case). (Duong, D) (Entered: 03/15/2007)
Address Changed for John Wesley Williams pursuant to change of address received in 2:06−cv−1238 FCD GGH. (Duong, D) (Entered: 04/11/2007)
72 STATUS REPORT by J Michael Keating, Jr. (Attachments: # 1 Exhibit # 2 Exhibit)(Keating, Joseph) (Entered: 06/12/2007)
73 OBJECTIONS to SPECIAL MASTER'S REPORT by Plaintiffs Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Galvan, Ernest) Modified on 6/22/2007 (Plummer, M). (Entered: 06/21/2007)
74 DECLARATION of Ernest Galvan in SUPPORT OF re 73 Objections to Special Master's Report. (Galvan, Ernest) Modified on 6/22/2007 (Plummer, M). (Entered: 06/21/2007)
75 DECLARATION of Michael W. Bien in SUPPORT OF re 73 Objections to Special Master's report 1 Exhibits 1−4 to Bien Declaration)(Bien, Michael) Modified on 6/22/2007 (Plummer, M). (Entered: 06/21/2007)
76 RESPONSE to Plaintiffs' "Objections to Special Master's Report and Recommendation" by Michael Poulos, James E. Tilton, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 18 of 23

06/25/2007 12/14/2007 12/14/2007 12/14/2007 12/17/2007
12/24/2007
12/24/2007 12/24/2007
12/24/2007 12/24/2007

Dovey. (Russell, Jay) Modified on 6/27/2007 (Mena−Sanchez, L). (Entered: 06/22/2007)
77 OPPOSITION to Defendants' Motion to Strike. (Bien, Michael) Modified on 6/27/2007 (Kirkpatrick, S). (Entered: 06/25/2007)
78 MOTION for Relief From Stay to Pursue Mediation, Seek Class Certification, and Update Plaintiffs by Filing Third Amended Complaint by Askia S. Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Center, Claudia) Modified on 12/17/2007 (Carlos, K). (Entered: 12/14/2007)
79 DECLARATION of Claudia Center in Support of 78 MOTION Relief From Stay to Pursue Mediation, Seek Class Certification, and Update Plaintiffs by Filing Third Amended Complaint. (Attachments: # 1 Exhibit A)(Center, Claudia) Modified on 12/17/2007 (Carlos, K). (Entered: 12/14/2007)
80 REQUEST for Status Conference by Askia S. Ashanti, Ronald Auld, Joseph cox, Samuel D'Angelo, Bobby Daniels, Quinton Gray, Daniel Hunley, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Christopher Jenkins, Robert Hecker. (Center, Claudia) (Entered: 12/14/2007)
81 NOTICE of LOCAL RULE 78−230 re* 78 ** MOTION Relief From Stay to Pursue Mediation, Seek Class Certification, and Update Plaintiffs by Filing Third Amended Complaint ** filed by Askia S. Ashanti, John Wesley Williams, John Schooley, Eddie Thomas, Quinton Gray, Peter Taylor, Ying Watt, Joseph cox, John Mueller, Robert Hecker, Daniel Hunley, Michael Lovelace, Ronald Auld, Brian K Stafford, Samuel D'Angelo, Bobby Daniels, Christopher Jenkins * on *12/14/2007* (Plummer, M) (Entered: 12/17/2007)
82 MOTION for EXTENSION of TIME to FILE ANSWER Defendants' Request for Extension of Time to File an Opposition to Plaintiffs' Motion for Relief from Stay by Benjamin Curry, Peter Farber−Szekrenyi, Robert Hernandez, Anthony Malfi, Kathy Mendoza−Powers, Michael Poulos, R. K. Wong, James E. Tilton, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. Attorney Quinn, Michael James added. (Quinn, Michael) (Entered: 12/24/2007)
83 [DISREGARD − REFILED, see #85] DECLARATION of Michael J. Quinn in Support of re 82 MOTION for EXTENSION of TIME to FILE ANSWER Defendants' Request for Extension of Time to File an Opposition to Plaintiffs' Motion for Relief from Stay. (Quinn, Michael) Modified on 12/26/2007 (Waggoner, D). (Entered: 12/24/2007)
84 [DISREGARD − REFILED, See #86] PROPOSED ORDER re 82 MOTION for EXTENSION of TIME to FILE ANSWER Defendants' Request for Extension of Time to File an Opposition to Plaintiffs' Motion for Relief from Stay by Benjamin Curry, Peter Farber−Szekrenyi, Robert Hernandez, Anthony Malfi, Kathy Mendoza−Powers, Michael Poulos, R. K. Wong, James E. Tilton, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Quinn, Michael) Modified on 12/26/2007 (Waggoner, D). (Entered: 12/24/2007)
85 DECLARATION of Michael J. Quinn in Support of re 82 MOTION for EXTENSION of TIME to FILE ANSWER Defendants' Request for Extension of Time to File an Opposition to Plaintiffs' Motion for Relief from Stay. (Quinn, Michael) (Entered: 12/24/2007)
86 PROPOSED ORDER re 82 MOTION for EXTENSION of TIME to FILE ANSWER Defendants' Request for Extension of Time to File an Opposition to Plaintiffs' Motion for Relief from Stay by Benjamin Curry, Peter Farber−Szekrenyi, Robert Hernandez, Anthony Malfi, Kathy Mendoza−Powers, Michael Poulos, R. K. Wong, James E. Tilton, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. (Quinn, Michael) (Entered: 12/24/2007)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 19 of 23

01/07/2008 01/07/2008
01/07/2008
01/10/2008 01/16/2008 01/16/2008
06/28/2012 09/19/2012 09/19/2012 09/19/2012 10/11/2012 10/11/2012 10/15/2012 10/18/2012
10/18/2012 10/18/2012 10/19/2012

87 RESPONSE in OPPOSITION to 78 Motion for Relief From Stay to Pursue Mediation. Attorney Quinn, Michael James added. (Quinn, Michael) Modified on 1/9/2008 (Engbretson, K.). 78 (Entered: 01/07/2008)
88 DECLARATION of Michael J. Quinn in Support of 87 Response in Opposition To Plaintiffs' Motion For Relief From Stay To Pursue Mediation. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Quinn, Michael) Modified on 1/9/2008 (Engbretson, K.). (Entered: 01/07/2008)
89 NOTICE of APPEARANCE by Kenneth T Roost on behalf of Teresa A. Schwartz, Peter Farber−Szekrenyi, Kathy Mendoza−Powers, James E. Tilton, California Department of Corrections and Rehabilitation, Arnold Schwarzenegger, Jeanne S. Woodford, John Dovey. Attorney Roost, Kenneth T added. (Roost, Kenneth) (Entered: 01/07/2008)
90 ORDER signed by Judge John F. Moulds on 1/9/08 ORDERING dfts' request for extension of time to file an answer 82 is MOOT and DENIED. (Carlos, K) (Entered: 01/10/2008)
91 REPLY in SUPPORT of 78 MOTION for Relief From Stay to Pursue Mediation, Seek Class Certification, and Update Plaintiffs by Filing Third Amended Complaint. (Galvan, Ernest) Modified on 1/17/2008 (Mena−Sanchez, L). (Entered: 01/16/2008)
92 REPLY DECLARATION of Ernest Galvan in SUPPORT of 78 MOTION for Relief From Stay (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E Part 1# 6 Exhibit E Part 2# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N# 16 Exhibit O# 17 Exhibit P)(Galvan, Ernest) Modified on 1/17/2008 (Mena−Sanchez, L). (Entered: 01/16/2008)
93 MOTION to DISMISS as plaintiff and MOTION to proceed in pro se by Christopher Jenkins. (Benson, A.) (Entered: 06/29/2012)
94 MOTION to Lift the Stay by Robert Hecker. Motion Hearing set for 10/25/2012 at 11:00 AM in 8th floor courtroom (JFM) before Magistrate Judge John F. Moulds. (Bien, Michael) (Entered: 09/19/2012)
95 DECLARATION of Michael W. Bien in SUPPORT OF 94 MOTION to Lift the Stay. (Bien, Michael) (Entered: 09/19/2012)
96 DECLARATION of Claudia Center in SUPPORT OF 94 MOTION to Lift the Stay. (Center, Claudia) (Entered: 09/19/2012)
97 OPPOSITION by State of California Department of Corrections and Rehabilitation to 94 MOTION to Lift the Stay. (Attachments: # 1 Proof of Service proof of service)(Roost, Kenneth) (Entered: 10/11/2012)
98 DECLARATION of Debbie Vorous re 97 Opposition to Motion. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Roost, Kenneth) (Entered: 10/11/2012)
99 NOTICE of APPEARANCE by Kenneth T Roost on behalf of State of California Department of Corrections and Rehabilitation. (Attachments: # 1 Proof of Service)(Roost, Kenneth) (Entered: 10/15/2012)
100 ORDER signed by Magistrate Judge John F. Moulds on 10/18/12 DENYING without prejudice 93 Motion to Dismiss ; Clerk of the Court is directed to serve a copy of this order on inmate Jenkins at the address on said motion. (Dillon, M) (Entered: 10/18/2012)
SERVICE BY MAIL: 100 Order on Motion to Dismiss served on Jenkins. (Dillon, M) (Entered: 10/18/2012)
101 REPLY by Robert Hecker re 94 MOTION to Lift the Stay. Attorney Thompson, Blake added. (Thompson, Blake) (Entered: 10/18/2012)
102 ORDER signed by Magistrate Judge John F. Moulds on 10/18/12 ordering plaintiff's 12/14/07 motion 78 is superseded by plaintiff's 09/19/12 motion 94 . The meet and confer process required by this order shall be completed by 02/15/13. Plaintiff's 09/19/12 motion to lift the stay of this action 94 is denied without prejudice to its

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 20 of 23

10/26/2012 03/01/2013 03/19/2013 03/20/2013 04/04/2013 04/12/2013
04/12/2013 09/05/2013
09/16/2013 12/19/2013 12/19/2013
01/03/2014 02/28/2014

renewal, as appropriate, not later than 03/01/13. The clerk of the court is directed to serve a copy of this order on Matthew A. Lopes Jr., Esq., Pannone Lopes & Devereaux LLC, 317 Iron Horse Way, Suite 301, Providence RI 02908. (Copy of this order mailed to Matthew A. Lopes Jr. Esq. at the address listed above)(Plummer, M) Modified on 10/19/2012 (Plummer, M). (Entered: 10/19/2012)
MAIL RETURNED as Undeliverable, Discharged: 102 Order on Motion sent to Christopher Lee Jenkins. Notice of Change of Address due by 1/3/2013. (Meuleman, A) (Entered: 10/29/2012)
103 MOTION for Relief from Stay by Robert Hecker. Motion Hearing set for 4/4/2013 at 11:00 AM before Magistrate Judge John F. Moulds. (Attachments: # 1 Joint Status Report Pursuant to the Court's October 19, 2012 Order)(Bien, Michael) (Entered: 03/01/2013)
104 MINUTE ORDER (TEXT ONLY) by CRD: Due to the Court's unavailability the 103 Motion for Miscellaneous Relief currently set for 04/04/2013 at 11:00 AM is VACATED and RESET before Magistrate Judge Dale A. Drozd on 4/5/2013 at 10:00 AM in Courtroom 27 (DAD). (Anderson, J) (Entered: 03/19/2013)
105 MINUTE ORDER (TEXT ONLY) by CRD: Due to a calendar conflict the current hearing re 103 Motion for Relief set for 04/05/2013 at 10:00 AM is VACATED and RESET for 4/19/2013 at 10:00 AM in Courtroom 27 (DAD) before Magistrate Judge Dale A. Drozd. (Anderson, J) (Entered: 03/20/2013)
106 OPPOSITION by State of California Department of Corrections and Rehabilitation to 103 MOTION for Relief from Stay. (Roost, Kenneth) (Entered: 04/04/2013)
107 ORDER signed by Magistrate Judge Dale A. Drozd on 4/11/13 ORDERING that The parties shall resume the meet and confer process required by the courtsOctober 19, 2012 order 102 ; The meet and confer process required by this order shall be completed by August 16, 2013. Plaintiffs March 1, 2013 motion for relief from stay 103 is DENIED without prejudice to its renewal, as appropriate, not later than September 5, 2013. The hearing set for April 19, 2013 before the undersigned is dropped from calendar. The Clerk of the Court is directed to serve a copy of this order on Matthew A. Lopes, Jr., Esq.(Dillon, M) (Entered: 04/12/2013)
SERVICE BY MAIL: 107 Order, served on J Michael Keating Jr. and Matthew A. Lopez, Jr., Esq. (Dillon, M) (Entered: 04/12/2013)
108 STIPULATION and PROPOSED ORDER for extending deadlines by Samuel D'Angelo, Bobby Daniels, Quinton Gray, Robert Hecker, Daniel Hunley, Christopher Jenkins, Michael Lovelace, John Mueller, John Schooley, Brian K Stafford, Peter Taylor, Eddie Thomas, Ying Watt, John Wesley Williams, Joseph cox. (Attachments: # 1 Exhibit A)(Center, Claudia) Modified on 9/6/2013 (Plummer, M). Modified on 9/6/2013 (Plummer, M). (Entered: 09/05/2013)
109 STIPULATION and ORDER signed by Magistrate Judge Dale A. Drozd on 09/13/13 ordering that the parties hereby stipulate to the extending of any deadline for plaintiff's to renew their motion to lift the stay until 12/31/13. (Plummer, M) Modified on 9/17/2013 (Plummer, M). (Entered: 09/16/2013)
110 STIPULATION and PROPOSED ORDER for Extending Deadlines by Robert Hecker. (Bien, Michael) (Entered: 12/19/2013)
112 ORDER by Chief Judge Morrison C. England, Jr.: Due to the retirement of Magistrate Judge * John F. Moulds* from the bench of the Eastern District, this action is reassigned to *Magistrate Judge Dale A. Drozd* for all further proceedings. Future pleadings shall bear the new case number 2:05−cv−2441 LKK DAD (PC). (Waggoner, D) (Entered: 12/19/2013)
113 STIPULATION and ORDER signed by Magistrate Judge Dale A. Drozd on 1/2/2014 GRANTING 110 that the parties stipulate to the extending of any deadline for Plaintiffs to renew their motion to lift the stay until 2/28/2014. (Reader, L) (Entered: 01/03/2014)
114 ***Please Disregard; filed in error***STIPULATION and PROPOSED ORDER for Extending Deadlines by Robert Hecker. (Bien, Michael) (Entered: 02/28/2014)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 21 of 23

02/28/2014 03/04/2014 03/14/2014 05/01/2014 05/05/2014 05/09/2014 06/06/2014 06/10/2014 07/10/2014
08/05/2014
08/07/2014 08/29/2014 09/08/2014 11/21/2014
11/21/2014 11/21/2014

115 STIPULATION and PROPOSED ORDER for Extending Deadlines by Robert Hecker. (Bien, Michael) (Entered: 02/28/2014)
116 STIPULATION and ORDER extending deadline for Plaintiffs to renew their motion to lift the stay until March 14, 2014 signed by Magistrate Judge Dale A. Drozd on 3/4/14. (Kaminski, H) (Entered: 03/04/2014)
117 JOINT STIPULATION and PROPOSED ORDER for Extending Deadlines. Attorney Nayeri, Sahar added. (Nayeri, Sahar) Modified on 3/17/2014 (Yin, K). (Entered: 03/14/2014)
118 STIPULATION and PROPOSED ORDER for Extension of Time by Robert Hecker. (Bien, Michael) (Entered: 05/01/2014)
119 STIPULATION and ORDER signed by Magistrate Judge Dale A. Drozd on 05/05/14 ordering the parties hereby stipulate to the extending of any deadline for plaintiff's to renew their motion to lift the stay until 06/06/14. (Plummer, M) (Entered: 05/05/2014)
120 NOTICE of CHANGE of ADDRESS by Claudia B Center. (Center, Claudia) (Entered: 05/09/2014)
121 STIPULATION and PROPOSED ORDER for Scheduling Status Conference by State of California Department of Corrections and Rehabilitation. (Russell, Jay) Modified on 6/9/2014 (Plummer, M). (Entered: 06/06/2014)
122 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 6/10/2014 ORDERING that a Status Conference is set for 7/10/2014 at 01:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Zignago, K.) (Entered: 06/10/2014)
123 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: STATUS CONFERENCE held on 7/10/2014. The parties represented that they have reached agreement on settlement. The parties are to file a proposed order within 3 weeks. Further Status Conference set for 8/8/2014 at 01:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Michael Bien, Margo Mendelson, Claudia Center present. Defendants Counsel Jay Russell present. Court Reporter: K. O'Halloran. (Rivas, A) (Entered: 07/10/2014)
124 MOTION for Preliminary Approval of Settlement Agreement by Robert Hecker. Motion Hearing set for 8/8/2014 at 01:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Settlement Notice, # 3 Declaration of Michael W. Bien, # 4 Proposed Order)(Bien, Michael) Modified on 8/6/2014 (Plummer, M). (Entered: 08/05/2014)
125 ORDER signed by Judge Lawrence K. Karlton on 8/7/2014 GRANTING 124 Motion for Preliminary Approval of Settlement Agreement; VACATING the Status Conference set for 8/8/2014. (Michel, G) (Entered: 08/07/2014)
126 ORDER by Chief Judge Morrison C. England, Jr.: Due to the retirement of *Lawrence K. Karlton* to the bench of the Eastern District, this action is reassigned to *Judge Kimberly J. Mueller* for all further proceedings. (Donati, J) (Entered: 08/29/2014)
127 DECLARATION of Cpt. Thomas Tyler Affirming Publication of Notice In All California Prisons. (Attachments: # 1 Proof of Service)(Russell, Jay) (Entered: 09/08/2014)
128 MOTION to APPROVE CONSENT JUDGMENT Joint Motion for Final Approval of Settlement Agreement by Robert Hecker. Motion Hearing set for 12/5/2014 at 10:00 AM in Courtroom 3 (KJM) before Judge Kimberly J. Mueller. (Attachments: # 1 Proposed Order Plaintiffs' Proposed Order, # 2 Proposed Order Defendants' Proposed Order)(Bien, Michael) (Entered: 11/21/2014)
129 DECLARATION of Blake Thompson re 128 MOTION to APPROVE CONSENT JUDGMENT Joint Motion for Final Approval of Settlement Agreement. (Thompson, Blake) (Entered: 11/21/2014)
130 DECLARATION of Jay C. Russell in SUPPORT OF 128 MOTION to APPROVE CONSENT JUDGMENT Joint Motion for Final Approval of Settlement Agreement. (Russell, Jay) (Entered: 11/21/2014)

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 22 of 23

11/25/2014 12/02/2014 12/04/2014 12/04/2014
12/08/2014 12/12/2014 12/22/2014
01/12/2015 01/15/2015 01/15/2015 01/16/2015

131 MINUTE ORDER issued by Courtroom Deputy C. Schultz for District Judge Kimberly J. Mueller on 11/25/2014: On the court's own motion, the hearing on the parties' Joint Motion for Final Approval of Settlement Agreement 128 set for 12/5/2014 is VACATED and RESET for 12/8/2014 at 10:00 AM in Courtroom 3 before District Judge Kimberly J. Mueller. Filing deadlines are reset as provided by Local Rule 230. (Text Only Entry) (Schultz, C) (Entered: 11/25/2014)
132 STIPULATION and PROPOSED ORDER for Leave to File [Proposed] Order on 128 Joint Motion for Final Approval of Settlement by State of California Department of Corrections and Rehabilitation. (Attachments: # 1 Proposed Joint Order)(Russell, Jay) Modified on 12/3/2014 (Yin, K). (Entered: 12/02/2014)
133 STIPULATION and ORDER signed by Judge Kimberly J. Mueller on 12/3/2014 GRANTING Leave to file proposed order on Joint Motion for Final Approval of Settlement. (Donati, J) (Entered: 12/04/2014)
134 MINUTE ORDER issued by Courtroom Deputy C. Schultz for Judge Kimberly J. Mueller: This matter is set for hearing on Monday, December 8, 2014 on the joint motion for final approval of the settlement agreement reached by the parties. The court directs the parties to be prepared to address the following two matters at the hearing: first, whether the revised notice to the class in Coleman v. Brown described in paragraph 7 of the Joint [Proposed] Order for Final Approval of Settlement Agreement (ECF No. 132−1) should be provided to the class prior to final approval of the settlement in Hecker; and second, whether the class in Hecker certified pursuant to the settlement is entirely a subset of the class in Coleman v. Brown or whether, given the respective class definitions, there may be inmates in the Hecker class who are not part of the Coleman class. (Text Only Entry) (Schultz, C) (Entered: 12/04/2014)
135 MINUTES for MOTION HEARING held before Judge Kimberly J. Mueller on 12/8/2014. Plaintiffs' Counsel, Michael Bien, Claudia Center, and Blake Thompson, present. Defendants' Counsel, Michael Quinn, present. The court and counsel discussed the parties' Joint Motion for Final Approval of Settlement Agreement 128 ; matter submitted; order to issue. Electronic Court Recorder Operator: Judy Streeter. (Text Only Entry) (Schultz, C) (Entered: 12/08/2014)
136 NOTICE REGARDING WILSON V. CDCR by Benjamin Curry, John Dovey, Roderick Hickman, Kathy Mendoza−Powers, Teresa A. Schwartz, Arnold Schwarzenegger, Jeanne S. Woodford. Attorney Quinn, Michael added. (Quinn, Michael) (Entered: 12/12/2014)
137 ORDER to SHOW CAUSE signed by Judge Kimberly J. Mueller on 12/19/14 ORDERING that on or before 1/15/2015, the parties shall show cause in writing why the notice to the Hecker class should not be posted forthwith in all inpatient program units in which members of the Coleman class are housed or, in the alternative, certify by declaration that such notice has been posted. On or before 1/23/15, the parties shall file in this action and in Coleman v. Brown an agreed revised notice to the Coleman class. On or before 1/15/15, 2015, Plaintiffs shall either request voluntary dismissal of named Plaintiffs Robert Hecker, Christopher Lee Jenkins, Ying Watt, Askia Ashanti, Daniel Hunley, Michael Lovelace, Samuel D'Angelo, Jr., and Jon Schooley or show cause in writing why said Plaintiffs should not be dismissed from this action. In addition, by the same date Plaintiffs shall clarify whether named Plaintiffs John Mueller and Quinton Gray are currently incarcerated. (Mena−Sanchez, L) (Entered: 12/22/2014)
138 LETTER from Kenneth Doxie regarding Coleman v. Brown Program / Coleman Guide (EOP). (Marciel, M) (Entered: 01/14/2015)
139 STIPULATION and PROPOSED ORDER for Voluntary Dismissal of Certain Individual Plaintiffs re 137 Order to Show Cause,,, by Robert Hecker. (Bien, Michael) (Entered: 01/15/2015)
140 DECLARATION of Jay C. Russell re 137 Order to Show Cause,,,. (Russell, Jay) (Entered: 01/15/2015)
141 ORDER signed by Judge Kimberly J. Mueller on 1/15/2015 ORDERING counsel for defendants to confirm that a copy of the proposed settlement agreement is available in any and all law libraries at California State Prison − Lancaster; REFERRING 138 Letter to counsel for such further response, if any, as counsel may deem appropriate;

Case: 2:05-cv-2441 As of: 07/15/2015 01:44 AM PDT 23 of 23

01/16/2015
01/16/2015
01/22/2015 01/23/2015 01/23/2015 03/02/2015

DIRECTING the Clerk of Court to serve a copy of this order on Kenneth Lamont Doxie, T−55895, at California State Prison − Lancaster. (Michel, G) (Entered: 01/16/2015)
143 STIPULATION and ORDER signed by Judge Kimberly J. Mueller on 1/16/2015 ORDERING 139 that Plaintiffs Daniel Hunley, Christopher Jenkins, Michael Lovelace, John Schooley, Peter Taylor, Eddie Thomas, Ying Watt, Joseph Cox, Samuel D'Angelo and Robert Hecker, are no longer incarcerated in CDCR prisons and should be voluntarily dismissed; the Court hereby DISMISSES the claims of plaintiffs without prejudice. (Reader, L) (Entered: 01/16/2015)
144 ORDER signed by Judge Kimberly J. Mueller on 1/16/15: The modified notice attached as Attachment A to the Declaration of Jay C. Russell (ECF No. 140) is approved. Not later than January 22, 2015, defendants shall post the modified notice approved by this order in all inpatient mental health units operated by the California Department of Corrections and Rehabilitation (CDCR) and the Department of State Hospitals (DSH) in whichclass members may be housed and shall file written certification that said notice has been posted. (Kaminski, H) (Entered: 01/16/2015)
145 RESPONSE by Arnold Schwarzenegger to 144 Order,,. (Russell, Jay) (Entered: 01/22/2015)
146 RESPONSE by State of California Department of Corrections and Rehabilitation to 141 Order,. (Attachments: # 1 Exhibit A)(Russell, Jay) (Entered: 01/23/2015)
147 RESPONSE by Robert Hecker to 137 Order to Show Cause,,,. (Thompson, Blake) (Entered: 01/23/2015)
148 ORDER for FINAL APPROVAL OF SETTLEMENT AGREEMENT signed by Judge Kimberly J. Mueller on 3/2/15. (Dillon, M) (Additional attachment(s) added on 3/2/2015: # 1 Exhibit A, # 2 Exhibit B) (Donati, J). (Entered: 03/02/2015)