U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:20-cv-05256-CRB

ADRMOP

Disability Rights California v. County of Alameda et al Assigned to: Judge Charles R. Breyer Cause: 42:12101 Americans w/ Disabilities Act (ADA)

Date Filed: 07/30/2020 Jury Demand: None Nature of Suit: 446 American with Disabilities - Other Jurisdiction: Federal Question

Plaintiff Disability Rights California

represented by Kimberly Carol Swain Disability Rights California 1330 Broadway, Suite 500 Oakland, CA 94612 (510) 267-1200 Fax: (510) 267-1201 Email: kim.swain@disabilityrightsca.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Aaron Joseph Fischer Law Office of Aaron J. Fischer 2001 Addison Street, Suite 300 Berkeley, CA 94704 510-806-7366 Fax: (510) 694-6314 Email: ajf@aaronfischerlaw.com ATTORNEY TO BE NOTICED

Andrew Paul Lee Goldstein Borgen Dardarian & Ho 155 Grand Ave Suite 900 Oakland, CA 94612 (510) 763-9800 Fax: (510) 835-1417 Email: alee@gbdhlegal.com ATTORNEY TO BE NOTICED

Claudia Center

Disabiltiy Rights Education and Defense Fund 3075 Adeline Street, Suite 210 Berkeley, CA 94703 (510) 644-2555 Fax: (510) 841-8645 Email: ccenter@dredf.org ATTORNEY TO BE NOTICED
Ira A Burnim Bazelon Center for Mental Health Law 1090 Vermont Ave. NW, Suite 220 Washington, DC 20005 (202) 467-5730 Fax: (202) 223-0409 Email: irab@bazelon.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jain K Samuel Disability Rights California 1330 Broadway, Suite 500 Oakland, CA 94612 (510) 267-1200 Fax: (510) 267-1201 Email: Samuel.Jain@disabilityrightsca.org ATTORNEY TO BE NOTICED
Jennifer Ellen Mathis Bazelon Center for Mental Health Law 1101 15th Street, NW Suite 1212 Washington, DC 20005 202-467-5730 x122 Fax: 202-223-0409 Email: jenniferm@bazelon.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer Lori Stark DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500

Oakland, CA 94612 (510) 267-1208 Fax: (510) 267-1201 Email: Jennifer.stark@disabilityrightsca.org ATTORNEY TO BE NOTICED
Lewis Loy Bossing , Jr. BAZELON CENTER FOR MENTAL HEALTH LAW 1090 Vermont Avenue. NW, Suite 2020 Washington, DC 20005 (202) 467-5730 Fax: (202) 223-0409 Email: lewisb@bazelon.org ATTORNEY TO BE NOTICED
Linda Mary Dardarian Goldstein Borgen Dardarian & Ho 155 Grand Avenue Suite 900 Oakland, CA 94612 (510) 763-9800 Fax: (510) 835-1417 Email: ldar@gbdhlegal.com ATTORNEY TO BE NOTICED
Raymond Alexander Wendell Goldstein Borgen Dardarian & Ho 155 Grand Avenue, Suite 900 Oakland, CA 94612 510-763-9800 Fax: 510-835-1417 Email: rwendell@gbdhlegal.com ATTORNEY TO BE NOTICED
Sarah J Gregory DISABILITY RIGHTS CALIFORNIA 350 S. Bixel Street Suite 290 Los Angeles, CA 90017 213-213-8000 Fax: 213-213-8001 Email:

V. Defendant County of Alameda

sarah.gregory@disabilityrightsca.org ATTORNEY TO BE NOTICED
Sydney Rae Pickern Disability Rights Education & Defense Fund 3075 Adeline Street, Suite 210 Berkeley, CA 94703 510-644-2555 Email: spickern@dredf.org ATTORNEY TO BE NOTICED
represented by Jordan Richea Clark Kearney Hooper Lundy Bookman PC 575 Market St. Suite 2300 San Francisco, CA 94105 415-875-8497 Email: jkearney@health-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrina Angela Pagonis Hooper, Lundy and Bookman PC 101 Montgomery Street 11th Floor San Francisco, CA 94104 415-875-8515 Email: kpagonis@health-law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond S. Lara Office of the County Counsel County of Alameda 1221 Oak Street, Suite 450 Oakland, CA 94612 510-272-6700 Fax: 510-272-5020 Email: raymond.lara@acgov.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Alameda County Behavioral Health Care Services
Defendant Alameda Health System TERMINATED: 02/22/2021

Linda Randlett Kollar Hooper Lundy & Bookman, Inc. 1875 Century Park East Suite 1600 Los Angeles, CA 90067-2799 310-551-8111 Fax: 310-551-818 Email: lkollar@health-law.com, ATTORNEY TO BE NOTICED
represented by Jordan Richea Clark Kearney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katrina Angela Pagonis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Raymond S. Lara (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Randlett Kollar (See above for address) ATTORNEY TO BE NOTICED
represented by Kurt A. Franklin Hanson Bridgett LLP 425 Market Street, 26th Floor San Francisco, CA 94105 (415) 777-3200 Fax: (415) 541-9366 Email: kfranklin@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gymmel Monserrat Trembly Hanson Bridgett

425 Market Street, 26th Floor San Francisco, CA 94105 415-995-5809 Fax: 415-995-3560 Email: gtrembly@hansonbridgett.com ATTORNEY TO BE NOTICED

Date Filed 07/30/2020 07/30/2020
07/31/2020
07/31/2020

# Docket Text

COMPLAINT against All Defendants ( Filing fee $ 400, receipt

1

number 0971-14756689.). Filed byDisability Rights California.

(Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Lee, Andrew)

(Filed on 7/30/2020) (Entered: 07/30/2020)

2 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-14757152.) filed by Disability Rights California. (Attachments: # 1 Exhibit Certificate of Good Standing)(Mathis, Jennifer) (Filed on 7/30/2020) (Entered: 07/30/2020)

3 MOTION for leave to appear in Pro Hac Vice of Ira Burnim ( Filing fee $ 310, receipt number 0971-14757789.) filed by Disability Rights California. (Attachments: # 1 Exhibit Certificate of Good Standing - DC)(Burnim, Ira) (Filed on 7/31/2020) (Entered: 07/31/2020)
4 Case assigned to Magistrate Judge Joseph C. Spero.

Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 51(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 8/14/2020. (mbcS, COURT STAFF) (Filed on 7/31/2020) (Entered: 07/31/2020)

08/03/2020
08/03/2020 08/04/2020 08/04/2020 08/14/2020 09/16/2020
09/16/2020 09/16/2020 09/30/2020 10/08/2020

5 Initial Case Management Scheduling Order with ADR Deadlines: Case Management Statement due by 10/23/2020. Initial Case Management Conference set for 10/30/2020 02:00 PM in San Francisco, Courtroom F, 15th Floor. (fabS, COURT STAFF) (Filed on 8/3/2020) (Entered: 08/03/2020)
6 Summons Issued as to Alameda County Behavioral Health Care Services, Alameda Health System, County of Alameda. (fabS, COURT STAFF) (Filed on 8/3/2020) (Entered: 08/03/2020)
7 Order, signed 8/4/2020, by Chief Magistrate Judge Joseph C. Spero granting 2 Motion for Pro Hac Vice for Jennifer Mathis.(klhS, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/04/2020)
8 ORDER, signed 8/4/2020, by Chief Magistrate Judge Joseph C. Spero granting 3 Motion for Pro Hac Vice for Ira Burnim. (klhS, COURT STAFF) (Filed on 8/4/2020) (Entered: 08/04/2020)
9 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Disability Rights California.. (Lee, Andrew) (Filed on 8/14/2020) (Entered: 08/14/2020)
10 WAIVER OF SERVICE Returned Executed filed by Disability Rights California. Service waived by Alameda County Behavioral Health Care Services waiver sent on 8/12/2020, answer due 10/13/2020. (Lee, Andrew) (Filed on 9/16/2020) (Entered: 09/16/2020)
11 WAIVER OF SERVICE Returned Executed filed by Disability Rights California. Service waived by County of Alameda waiver sent on 8/12/2020, answer due 10/13/2020. (Lee, Andrew) (Filed on 9/16/2020) (Entered: 09/16/2020)
12 WAIVER OF SERVICE Returned Executed filed by Disability Rights California. Service waived by Alameda Health System waiver sent on 8/12/2020, answer due 10/13/2020. (Lee, Andrew) (Filed on 9/16/2020) (Entered: 09/16/2020)
13 Certificate of Interested Entities by Disability Rights California (Lee, Andrew) (Filed on 9/30/2020) (Entered: 09/30/2020)
14 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Lee, Andrew) (Filed on 10/8/2020) (Entered: 10/08/2020)

10/09/2020 10/13/2020 10/13/2020
10/13/2020 10/13/2020 10/14/2020
10/14/2020

15 ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options By Parties And Counsel (Trembly, Gymmel) (Filed on 10/9/2020) (Entered: 10/09/2020)
16 STIPULATION to Extend Time to Respond to Complaint filed by Alameda County Behavioral Health Care Services, County of Alameda. (Lara, Raymond) (Filed on 10/13/2020) (Entered: 10/13/2020)
17 MOTION to Dismiss and, MOTION to Strike 1
Complaint filed by Alameda Health System. Motion Hearing set for 11/20/2020 09:30 AM in San Francisco, Courtroom F, 15th Floor before Magistrate Judge Joseph C. Spero. Responses due by 10/27/2020. Replies due by 11/3/2020. (Attachments: # 1 Declaration of David Abella, # 2 Declaration of Gymmel Trembly, # 3 Proposed Order Granting Defendant Alameda Health System's Motion to Dismiss Plaintiff's Complaint and Motion to Strike)(Trembly, Gymmel) (Filed on 10/13/2020) (Entered: 10/13/2020)
18 Request for Judicial Notice re 17 MOTION to
Dismiss and MOTION to Strike 1 Complaint filed byAlameda Health System. (Related document(s) 17 ) (Trembly, Gymmel) (Filed on 10/13/2020) (Entered: 10/13/2020)
19 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Alameda Health System.. (Trembly, Gymmel) (Filed on 10/13/2020) (Entered: 10/13/2020)
20 CLERK'S NOTICE Re: Consent or Declination: Plaintiff and Defendants County of Alameda and Alameda County Behavioral Health Care Services shall file a consent or declination to proceed before a magistrate judge. Note that any party is free to withhold consent to proceed before a magistrate judge without adverse substantive consequences. The forms are available at: http://cand.uscourts.gov/civilforms. (Party/parties were also notified via telephone or email.) Consent/Declination due by 10/21/2020. (klhS, COURT STAFF) (Filed on 10/14/2020) (Entered: 10/14/2020)
21 NOTICE of Appearance by Kurt A. Franklin for Defendant Alameda Health System (Franklin, Kurt) (Filed on 10/14/2020) (Entered: 10/14/2020)

10/14/2020 10/21/2020 10/21/2020 10/22/2020 10/23/2020
10/26/2020 10/26/2020
10/26/2020

22 ORDER GRANTING re 16 Stipulation to Extend Time filed by Alameda County Behavioral Health Care Services, County of Alameda. Signed by Judge Joseph C. Spero on 10/14/2020. (klhS, COURT STAFF) (Filed on 10/14/2020) (Entered: 10/14/2020)
23 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Alameda County Behavioral Health Care Services, County of Alameda.. (Lara, Raymond) (Filed on 10/21/2020) (Entered: 10/21/2020)
24 NOTICE of Appearance by Raymond S. Lara (Lara, Raymond) (Filed on 10/21/2020) (Entered: 10/21/2020)
25 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klhS, COURT STAFF) (Filed on 10/22/2020) (Entered: 10/22/2020)
26 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge Charles R. Breyer for all further proceedings. Magistrate Judge Joseph C. Spero no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 10/23/20. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 10/23/2020) (Entered: 10/23/2020)
27 Renotice motion hearing re 17 MOTION to Dismiss and MOTION
to Strike 1 Complaint filed byAlameda Health System. (Related document(s) 17 ) (Trembly, Gymmel) (Filed on 10/26/2020) (Entered: 10/26/2020)
28 CLERK'S NOTICE VACATING MOTION to Dismiss and, MOTION to Strike hearing set for November 19, 2020 before the Honorable Charles R. Breyer. Motion Hearing set for 12/3/2020 at 10:00 AM in Videoconference Only before Judge Charles R. Breyer.. (This is a text-only entry generated by the court. There is no document associated with this entry.) (lsS, COURT STAFF) (Filed on 10/26/2020) (Entered: 10/26/2020)
Set/Reset Deadlines as to 17 MOTION to Dismiss and MOTION to
Strike 1 Complaint . Motion Hearing set for 12/3/2020 at 10:00

10/27/2020 10/27/2020 10/27/2020 10/27/2020

AM in Videoconference Only before Judge Charles R. Breyer. (lsS, COURT STAFF) (Filed on 10/26/2020) (Entered: 10/26/2020)
29 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule for Motion to Dismiss filed by Disability Rights California. (Lee, Andrew) (Filed on 10/27/2020) (Entered: 10/27/2020)
30 STIPULATION AND ORDER RE BRIEFING SCHEDULE by Judge Charles R. Breyer: Granting 29 Stipulation. Motion Hearing set for 12/10/2020 at 10:00 AM in Videoconference Only before Judge Charles R. Breyer. (lsS, COURT STAFF) (Filed on 10/27/2020) (Entered: 10/27/2020)
Set/Reset Deadlines as to 17 MOTION to Dismiss and MOTION to
Strike 1 Complaint . Opposition due by 11/10/2020. Replies due by 11/24/2020. Motion Hearing set for 12/10/2020 at 10:00 AM in Videoconference Only before Judge Charles R. Breyer. (lsS, COURT STAFF) (Filed on 10/27/2020) (Entered: 10/27/2020)
This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts .gov/crb
Court Appearances: Advanced notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at crbcrd@cand.uscourts.gov no later than December 7, 2020 at 3:00 PM PST.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.usc ourts.gov/zoom/.
(lsS, COURT STAFF) (Filed on 10/27/2020) (Entered: 10/27/2020)

10/30/2020
10/30/2020 11/10/2020
11/12/2020 11/24/2020 11/24/2020 11/24/2020 11/24/2020
11/24/2020

31 STIPULATION WITH PROPOSED ORDER re 1
Complaint to Extend Time to Respond to Complaint filed by Alameda County Behavioral Health Care Services, County of Alameda. (Lara, Raymond) (Filed on 10/30/2020) (Entered: 10/30/2020)
32 STIPULATION AND ORDER by Judge Charles R. Breyer: Granting 31 Stipulation to extend time to respond. (lsS, COURT STAFF) (Filed on 10/30/2020) (Entered: 10/30/2020)
33 OPPOSITION/RESPONSE (re 17 MOTION to
Dismiss and MOTION to Strike 1 Complaint ) Plaintiff's Opposition to Defendant Alameda Health System's Motion to Dismiss Plaintiff's Complaint and Motion to Strike filed byDisability Rights California. (Attachments: # 1 Plaintiff Disability Rights California's Request for Judicial Notice in Opposition to Defendant Alameda Health System's Motion to Dismiss and Motion to Strike)(Lee, Andrew) (Filed on 11/10/2020) (Entered: 11/10/2020)
34 NOTICE of Change of Address by Andrew Paul Lee (Lee, Andrew) (Filed on 11/12/2020) (Entered: 11/12/2020)
35 NOTICE of Appearance by Katrina Angela Pagonis (Pagonis, Katrina) (Filed on 11/24/2020) (Entered: 11/24/2020)
36 NOTICE of Appearance by Jordan Richea Clark Kearney (Kearney, Jordan) (Filed on 11/24/2020) (Entered: 11/24/2020)
37 NOTICE of Appearance by Linda Randlett Kollar (Kollar, Linda) (Filed on 11/24/2020) (Entered: 11/24/2020)
38 REPLY (re 17 MOTION to Dismiss and MOTION to Strike 1
Complaint ) filed byAlameda Health System. (Attachments: # 1 Declaration of David Abella, # 2 Errata to Defendant Alameda Health System's Motion to Dismiss Plaintiff's Complaint and Motion to Strike)(Trembly, Gymmel) (Filed on 11/24/2020) (Entered: 11/24/2020)
39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT THEREOF] filed by Alameda County Behavioral Health Care Services, County of Alameda. Responses due by 12/8/2020. Replies due by 12/15/2020. (Kearney, Jordan) (Filed on 11/24/2020) (Entered: 11/24/2020)

11/24/2020 11/24/2020 11/30/2020

40 Request for Judicial Notice re 39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT THEREOF] filed byAlameda County Behavioral Health Care Services, County of Alameda. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 39 ) (Kearney, Jordan) (Filed on 11/24/2020) (Entered: 11/24/2020)
41 Proposed Order re 39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT THEREOF] by Alameda County Behavioral Health Care Services, County of Alameda. (Kearney, Jordan) (Filed on 11/24/2020) (Entered: 11/24/2020)
42 CLERK'S NOTICE VACATING Motion to Dismiss and Motion to Strike hearing set for December 10, 2020 before the Honorable Charles R. Breyer.. (This is a text-only entry generated by the court. There is no document associated with this entry.). Motion Hearing reset for 1/28/2021 at 10:00 AM in San Francisco, Videoconference Only before Judge Charles R. Breyer. This proceeding will be held via a Zoom webinar.
Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/crb
Court Appearances: Advanced notice is required of counsel or parties who wish to be identified by the court as making an appearance or will be participating in the argument at the hearing. A list of names and emails must be sent to the CRD at crbcrd@cand.uscourts.gov no later than January 26, 2021 at 2:00 PM PST.
General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.
Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.
Motion Hearing set for 1/28/2021 10:00 AM in San Francisco, Videoconference Only before Judge Charles R. Breyer. (lsS, COURT STAFF) (Filed on 11/30/2020) (Entered: 11/30/2020)

11/30/2020 12/03/2020 12/04/2020 12/09/2020
12/14/2020 12/23/2020

Set/Reset Deadlines as to 17 MOTION to Dismiss and MOTION to
Strike 1 Complaint , 39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT THEREOF]. Motion Hearing set for 1/28/2021 10:00 AM in San Francisco, - Videoconference Only before Judge Charles R. Breyer. (lsS, COURT STAFF) (Filed on 11/30/2020) (Entered: 11/30/2020)
43 STIPULATION WITH PROPOSED ORDER Regarding Briefing Schedule for Motion to Dismiss filed by Disability Rights California. (Lee, Andrew) (Filed on 12/3/2020) (Entered: 12/03/2020)
44 STIPULATION AND ORDER Regarding Briefing Schedule for Motion to Dismiss by Judge Charles R. Breyer: Granting 43 Stipulation. Opposition due by 12/23/2020. Replies due by 1/14/2021.(lsS, COURT STAFF) (Filed on 12/4/2020) (Entered: 12/04/2020)
45 ADMINISTRATIVE MOTION for Leave to File Sur-Reply in Opposition to Defendant Alameda Health System's Motion to Dismiss re 17 MOTION to Dismiss and MOTION to Strike 1
Complaint filed by Disability Rights California. Responses due by 12/14/2020. (Attachments: # 1 Exhibit 1 - Plaintiff's SurReply in Opposition to Defendant Alameda Health System's Motion to Dismiss, # 2 Declaration of Linda M. Dardarian in Support of Plaintiff 's Administrative Motion for Leave to File Sur-Reply in Opposition to Defendant Alameda Health System's Motion to Dismiss, # 3 Proposed Order Granting Plaintiff 's Administrative Motion for Leave to File Sur-Reply in Opposition to Defendant Alameda Health System's Motion to Dismiss)(Dardarian, Linda) (Filed on 12/9/2020) (Entered: 12/09/2020)
46 OPPOSITION/RESPONSE (re 45 ADMINISTRATIVE MOTION for Leave to File Sur-Reply in Opposition to Defendant Alameda Health System's Motion to Dismiss re 17 MOTION to
Dismiss and MOTION to Strike 1 Complaint ) filed byAlameda Health System. (Attachments: # 1 Declaration of Gymmel M. Trembly, # 2 Proposed Order Denying Plaintiff's Motion for Leave to File Surreply to Motion to Dismiss)(Trembly, Gymmel) (Filed on 12/14/2020) (Entered: 12/14/2020)
47 OPPOSITION/RESPONSE (re 39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT

THEREOF] ) filed byDisability Rights California. (Lee, Andrew) (Filed on 12/23/2020) (Entered: 12/23/2020)

01/14/2021

48 REPLY (re 39 MOTION to Dismiss [NOTICE AND MOTION TO DISMISS; MEMORANDUM IN SUPPORT THEREOF] ) IN SUPPORT OF MOTION TO DISMISS filed byAlameda County Behavioral Health Care Services, County of Alameda. (Kearney, Jordan) (Filed on 1/14/2021) (Entered: 01/14/2021)

01/14/2021

49 Request for Judicial Notice re 48 Reply to Opposition/Response, SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO DISMISS filed byAlameda County Behavioral Health Care Services, County of Alameda. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 48 ) (Kearney, Jordan) (Filed on 1/14/2021) (Entered: 01/14/2021)

01/21/2021 50

ORDER by Judge Charles R. Breyer granting 39 Motion to Dismiss; granting 45 Administrative Motion for leave to file sur-reply; granting 17 Motion to Dismiss; denying 17 Motion to Strike. Plaintiff shall have 30 days from the date of this order to file an amended complaint. (crblc2, COURT STAFF) (Filed on 1/21/2021) (Entered: 01/21/2021)

02/19/2021

51 NOTICE of Change of Address by Aaron Joseph Fischer (Fischer, Aaron) (Filed on 2/19/2021) (Entered: 02/19/2021)

02/22/2021

52 AMENDED COMPLAINT against Alameda County Behavioral Health Care Services, County of Alameda. Filed by Disability Rights California. (Lee, Andrew) (Filed on 2/22/2021) (Entered: 02/22/2021)

03/04/2021

53 STIPULATION WITH PROPOSED ORDER TO EXTEND TIME TO RESPOND TO FIRST AMENDED COMPLAINT filed by Alameda County Behavioral Health Care Services, County of Alameda. (Kearney, Jordan) (Filed on 3/4/2021) (Entered: 03/04/2021)

03/04/2021

54 STIPULATION TO EXTEND TIME TO RESPOND TO FIRST AMENDED COMPLAINT (correction of Docket Document 53, which incorrectly was labeled as "Stipulation WITH Proposed Order") filed by Alameda County Behavioral Health Care Services, County of Alameda. (Kearney, Jordan) (Filed on 3/4/2021) (Entered: 03/04/2021)

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 Case 5:20-cv-05256 Document 1 Filed 07/30/20 Page 1 of 57

DISABILITY RIGHTS CALIFORNIA 1330 BROADWAY, SUITE 500
OAKLAND, CALIFORNIA O 94612 (510) 267-1200

1 KIMBERLY SWAIN (SBN 100340) Kim.Swain@disabilityrightsca.org
2 AARON FISCHER (SBN 247391) Aaron.Fischer@disabilityrightsca.org
3 JENNIFER STARK (SBN 267062) Jennifer.Stark@disabilityrightsca.org
4 SAMUEL JAIN (SBN 295739 Samuel.Jain@disabilityrightsca.org
5 SARAH GREGORY (SBN 303973) Sarah.Gregory@disabilityrightsca.org
6 DISABILITY RIGHTS CALIFORNIA 1330 Broadway, Suite 500
7 Oakland, CA 94612 Tel: (510) 267-1200
8 Fax: (510) 267-1201

9 IRA A. BURNIM, Pro Hac Vice* irabster@gmail.com
10 JENNIFER MATHIS, Pro Hac Vice* jenniferm@bazelon.org
11 LEWIS BOSSING (SBN 227492) lewisb@bazelon.org
12 BAZELON CENTER FOR MENTAL HEALTH LAW 1090 Vermont Avenue. NW, Suite 2020
13 Washington, DC 20005 Tel: (202) 467-5730
14 Fax: (202) 223-0409

15 *Pro Hac Vice Applications Forthcoming

16 Attorneys for Plaintiff (Additional counsel on following page)
17

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 DISABILITY RIGHTS CALIFORNIA, a
21 California nonprofit corporation,

22

Plaintiff,

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23 vs.

24 COUNTY OF ALAMEDA; ALAMEDA COUNTY BEHAVIORAL HEALTH CARE
25 SERVICES; and ALAMEDA HEALTH SYSTEM,
26
Defendants. 27

28

785552.7

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 5:20-cv-05256 Document 1 Filed 07/30/20 Page 2 of 57

1 LINDA M. DARDARIAN (SBN 131001) ldardarian@gbdhlegal.com
2 ANDREW P. LEE (SBN 245903) alee@gbdhlegal.com
3 RAYMOND A. WENDELL (SBN 298333) rwendell@gbdhlegal.com
4 GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000
5 Oakland, CA 94612 Tel: (510) 763-9800
6 Fax: (510) 835-1417
7 CLAUDIA CENTER (SBN 158255) ccenter@dredf.org
8 SYDNEY PICKERN (SBN 303908) spickern@dredf.org
9 DISABILITY RIGHTS EDUCATION AND DEFENSE FUND 3075 Adeline Street, Suite 210
10 Berkeley, CA 94703 Tel: (510) 644-2555
11 Fax: (510)841-8645
12 Attorneys for Plaintiff
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

785552.7

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 5:20-cv-05256 Document 1 Filed 07/30/20 Page 3 of 57

1

INTRODUCTION

2

1.

Plaintiff Disability Rights California (“DRC” or “Plaintiff”) brings this action

3 for declaratory and injunctive relief against Alameda County, Alameda County Behavioral

4 Health Care Services (“ACBHCS”), and Alameda Health System (“AHS”) (collectively,

5 “Defendants”). DRC challenges Defendants’ needless and illegal segregation of adults with

6 serious mental health disabilities into Alameda County’s psychiatric institutions. DRC also

7 challenges Defendants’ practice of subjecting adults with serious mental health disabilities to a

8 high risk of such institutionalization, including those experiencing homelessness and those who

9 have been incarcerated in Alameda County’s jail. Defendants must increase access to

10 community-based mental health services to end this unlawful and extremely damaging disability

11 discrimination.

12

2.

Defendants’ failure to provide intensive community-based services puts adults

13 with serious mental health disabilities, especially Black adults with such disabilities, at constant

14 and high risk of unnecessary institutionalization. Alameda County’s psychiatric detention rate

15 for people with mental health disabilities is more than three-and-a-half times the California

16 statewide average. Defendants have detained more than 10,000 people in the County’s

17 psychiatric institutions since January 2018. During this time, Defendants have also detained

18 hundreds of people more than ten times, the majority of whom are Black. Some people have

19 been institutionalized more than 100 times. These “cycling admissions” are “the hallmark of a

20 failed system.” United States v. Mississippi, 400 F. Supp. 3d 546, 555 (S.D. Miss. 2019).

21

3.

DRC is California’s Protection and Advocacy (“P&A”) system. It is

22 empowered and charged by federal law to protect the rights of California residents with mental

23 health disabilities. In 2018, DRC opened an investigation into Alameda County’s practices

24 regarding unnecessary segregation in the County’s psychiatric institutions. These institutions

25 include John George Psychiatric Hospital (“John George”), a public psychiatric hospital operated

26 by Alameda Health System, and Villa Fairmont Mental Health Rehabilitation Center (“Villa

27 Fairmont”), a locked psychiatric institution located on the same campus as John George. On

28 November 1, 2019, DRC issued a written probable cause finding detailing the results of DRC’s

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1 investigation, attached herein as Appendix A. Specifically, DRC found probable cause to

2 believe that the mental health system’s actions constitute abuse and/or neglect based on, inter

3 alia, Defendants’ failure to provide people with serious mental health disabilities with needed

4 services in the most integrated setting appropriate. Because Defendants have failed to remedy

5 the issues identified in DRC’s probable cause finding, DRC is compelled to now file suit.

6

4.

DRC brings this action on behalf of adult Alameda County residents who have

7 serious mental health disabilities and who are unnecessarily segregated into the County’s

8 psychiatric institutions or are at serious risk of being needlessly segregated into these institutions.

9 For the purpose of this action, DRC refers to these individuals—who are primary beneficiaries of

10 DRC’s activities and advocacy—as “DRC Constituents.”

11

5.

Defendants Alameda County and ACBHCS subject DRC Constituents to

12 unnecessary institutionalization and a serious risk of unnecessary institutionalization by failing to

13 provide timely access to intensive community-based services, which are necessary to prevent

14 DRC Constituents from requiring emergency psychiatric institutionalization or inpatient care.

15 These needed services include Full Service Partnerships, assertive community treatment,

16 rehabilitative mental health services, intensive case management, crisis services, substance use

17 disorder treatment, peer support services, supported employment, and supported housing.

18 Defendants Alameda County and ACBHCS operate existing services in a manner and amount

19 that is insufficient to meet DRC Constituents’ needs, including systemic failures in the linkages

20 to and the delivery of services.

21

6.

Defendant AHS, which owns and operates John George, subjects DRC

22 Constituents to unnecessary institutionalization and a serious risk of unnecessary

23 institutionalization by holding people in institutions longer than clinically appropriate, by failing

24 to develop individualized treatment and discharge plans for DRC Constituents detained at John

25 George, and by failing to ensure timely and effective implementation and coordination with the

26 County, ACBHCS, and community-based service providers.

27

7.

If Defendants Alameda County, ACBHCS, and AHS collectively provided

28 needed, intensive, and culturally-responsive community services, Defendants would divert DRC

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1 Constituents from psychiatric institutions such as John George and Villa Fairmont when

2 appropriate, patient stays in psychiatric institutions would be shorter, and DRC Constituents

3 could live stably in their own homes and communities with fewer psychiatric crises and better

4 outcomes.

5

8.

Defendants’ current policies and practices have dire effects on DRC

6 Constituents. Defendants’ unnecessary institutionalization of DRC Constituents in psychiatric

7 facilities restricts their freedom to participate in life activities—such as family events,

8 educational opportunities, and stable employment—and perpetuates harmful stereotypes that

9 individuals with serious mental health disabilities are incapable or unworthy of community

10 participation.

11

9.

Defendants’ failure to provide adequate intensive community-based mental

12 health services causes many DRC Constituents to face homelessness and/or incarceration in the

13 County’s Santa Rita Jail (“jail”) for behaviors related to their mental health disabilities.

14 Approximately 50% of the people committed to psychiatric institutions in Alameda County while

15 homeless have also been incarcerated in the County’s jail. A grossly disproportionate number of

16 those experiencing psychiatric institutionalization, incarceration, and homelessness are Black.

17

10. Defendants’ failures, which result in needless institutionalization, also place

18 DRC Constituents at heightened risk of contracting COVID-19. Within the last two weeks,

19 COVID-19 has started spreading through Santa Rita Jail, and the risk of mass spread through

20 psychiatric facilities and homeless shelters in Alameda County is extreme. Defendants must

21 address the grave risk that COVID-19 poses to DRC Constituents by serving them in the

22 community with adequate community-based mental health services.

23

11. Unnecessary institutionalization causes irreparable harm. One DRC

24 Constituent, Azizah Ahmad, was detained at John George multiple times over the course of one

25 summer. Ms. Ahmad describes each experience with psychiatric institutionalization as leaving

26 her “with more trauma than she came in with.” Her story and others are described herein.

27

12. Defendants’ actions violate Title II of the Americans with Disabilities Act of

28 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, Section 504 of the Rehabilitation Act of 1973

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1 (“Section 504” or the “Rehabilitation Act”), 29 U.S.C. §§ 794 et seq., and California Government

2 Code sections 11135-11139 (“Section 11135”). The ADA and Rehabilitation Act forbid all

3 forms of discrimination against persons with disabilities, including needless unwarranted

4 institutionalization. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999). California law

5 provides similar protections.

6

13. Defendants’ unnecessary institutionalization of DRC Constituents and their

7 failure to provide needed intensive community-based services have irreparably harmed DRC

8 Constituents, and will continue to harm them irreparably unless this Court intervenes. In order to

9 prevent DRC Constituents’ unnecessary institutionalization, Plaintiff seeks an order from this

10 Court directing Defendants to provide needed intensive community services to DRC

11 Constituents, and effective linkages to ensure meaningful access to such services.

12

JURISDICTION

13

14. This Court has jurisdiction over this dispute pursuant to 28 U.S.C. § 1331, 28

14 U.S.C. § 2201, and 28 U.S.C. § 2202. A substantial, actual, and continuing controversy exists

15 between the parties. The Court’s exercise of supplemental jurisdiction over Plaintiff’s claims

16 under state law is proper, as the state law claims “are so related to [Plaintiff’s claims] that they

17 form part of the same case or controversy.” 28 U.S.C. § 1367(a).

18

VENUE & INTRADISTRICT ASSIGNMENT

19

15. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

20 §§ 1391(b)(1) and (2).

21

16. Defendants reside or are organized in the Northern District of California and the

22 events or omissions giving rise to this action arose in Alameda County, which is located within

23 the Northern District of California. Plaintiff Disability Rights California also has offices in

24 Alameda County, and its constituents reside in Alameda County.

25

17. While this action arises in Alameda County and would ordinarily be assigned to

26 the San Francisco or Oakland Division of the Northern District of California pursuant to Civil

27 Local Rule 3-2(c) and (d), this action concerns substantially the same parties as Babu v. Cnty. of

28 Alameda, Case No. 18-07677 (N.D. Cal.), which was filed on December 21, 2018, and is pending

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1 before the Honorable Nathanael Cousins of the San Jose division of this Court. In order to avoid

2 an unduly burdensome duplication of labor and expense or conflicting results if the cases are

3 conducted before different Judges, this action should be related to Babu and assigned to

4 Magistrate Judge Cousins pursuant to Civil Local Rule 3-12.

5

PARTIES

6

Plaintiff DRC and its Constituents

7

18. Plaintiff Disability Rights California is a federally funded nonprofit corporation

8 organized under the laws of the State of California, with offices in Oakland, Sacramento, Los

9 Angeles, Fresno, Ontario, and San Diego. DRC’s mission is to advocate, educate, investigate,

10 and litigate to advance the rights and dignity of all people with disabilities.

11

19. The State of California has designated DRC to serve as California’s Protection

12 and Advocacy (“P&A”) system for individuals with disabilities, pursuant to the Developmental

13 Disabilities Assistance and Bill of Rights (“DD”) Act, 42 U.S.C. §§ 15041 et seq., the Protection

14 and Advocacy for Individuals with Mental Illness Act (“PAIMI”), 42 U.S.C. §§ 10801 et seq.,

15 and the Protection and Advocacy of Individual Rights Act, § 29 U.S.C. § 794(e).

16

20. PAIMI provides for the establishment and funding of P&A systems, including

17 DRC, to investigate the abuse and neglect of people with mental health disabilities, to engage in

18 protection and advocacy “to ensure that the rights of individuals with mental health disabilities

19 are protected,” and “to ensure the enforcement of the Constitution and Federal and State statutes”

20 on behalf of people with mental health disabilities. 42 U.S.C. §§ 10801(b)(1), 10801(b)(2)(A).

21 As California’s P&A system, DRC is authorized to “pursue administrative, legal, and other

22 appropriate remedies to ensure the protection of individuals with mental illness who are receiving

23 care or treatment in the State.” 42 U.S.C. § 10805(a)(1)(B); see also Or. Advocacy Ctr. v. Mink,

24 322 F.3d 1101, 1110 (9th Cir. 2003).

25

21. Individuals with serious mental health disabilities have representation in DRC

26 and guide and influence its activities. DRC is governed by a multi-member board of directors

27 comprised predominantly of people with disabilities and their families. DRC’s board is advised

28 by a PAIMI advisory council, the majority of which, including the advisory council chair, are

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1 individuals who have received mental health services or have family members who do. The

2 PAIMI advisory council has significant input in setting DRC’s goals and objectives. Also, DRC

3 uses surveys, focus groups, and public hearings to collect input from people with disabilities and

4 their communities, and uses that input to set its goals and objectives.

5

22. DRC fulfills its federal mandate under PAIMI by providing an array of

6 protection and advocacy services to people with mental health disabilities across California,

7 including individuals who have been unnecessarily institutionalized or who are at risk of such

8 institutionalization.

9

23. Under this authority, DRC pursues legal remedies on behalf of people with

10 disabilities in California and, in the context of this action, adult Alameda County residents who

11 are unnecessarily segregated in the County’s psychiatric institutions or are at serious risk of being

12 needlessly segregated into these institutions, all of whom are the primary beneficiaries of DRC’s

13 activities. It is on behalf of these individuals that DRC proceeds and collectively refers to as the

14 “DRC Constituents.” See Hunt v. Washington State Appl. Adver. Comm’n, 432 U.S. 333, 343

15 (1977); Mink, 322 F.3d at 1111-12.

16

24. The DRC Constituents as defined herein each have a serious mental health

17 disability that substantially limits one or more major life activities.

18

25. The majority of DRC Constituents defined herein are eligible to receive services

19 under California’s Medicaid program (known as “Medi-Cal”), as well as services funded by

20 California’s Mental Health Services Act.

21

26. DRC has a shared interest in the resolution of the issues alleged herein because

22 it has devoted significant organizational resources to investigating Defendants’ violations and

23 advocating for necessary remedies.

24

27. DRC has standing to bring this action to vindicate the rights of the DRC

25 Constituents under the ADA, the Rehabilitation Act, and state law to be free of unnecessary

26 institutionalization and to receive needed intensive mental health services in their homes and

27 communities. DRC Constituents have representation and influence in DRC’s operations. The

28 participation of individual DRC Constituents in this lawsuit is not required. The declaratory and

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1 injunctive relief requested is appropriate for DRC to pursue on behalf of its constituents and is

2 germane to DRC’s mission and activities.

3

28. The DRC Constituents include the following individuals, each of whom would

4 have standing to bring this lawsuit in his or her own right. Their experiences illustrate the many

5 ways in which Defendants’ practices harm DRC Constituents.

6

Azizah Ahmad

7

29. Azizah Ahmad is a 41-year-old Black Alameda County resident and mother of

8 three children. She is currently working for the U.S. Census as a census field supervisor and is

9 enrolled in a tech-related online certificate program. Ms. Ahmad has been diagnosed with

10 bipolar disorder and is currently enrolled in Medi-Cal.

11

30. In 2016, Ms. Ahmad began an intensive community-based day program to treat

12 her bipolar disorder. She successfully graduated from the program and was symptom-free for

13 three years. In 2019, however, Ms. Ahmad developed increased symptoms of bipolar disorder

14 due to major stressors in her life. Ms. Ahmad was admitted to John George Psychiatric Hospital

15 multiple times during the summer of 2019. She stayed overnight each visit.

16

31. Ms. Ahmad recalls her admissions to John George as some of the worst

17 experiences of her life. Prior to Ms. Ahmad’s first visit in June 2019, Ms. Ahmad took steps to

18 manage her symptoms, including by working with her existing mental health providers and

19 scheduling doctor’s appointments as needed. Approximately two days before a doctor’s

20 appointment, the County took Ms. Ahmad against her will to John George via an ambulance.

21 The County did not offer Ms. Ahmad any community-based crisis services, and denied her

22 requests to receive inpatient care at Sutter Health, where she had received treatment previously.

23 Defendant AHS employees immediately tied Ms. Ahmad down with leather restraints and

24 forcibly medicated her. Having decided to hold Ms. Ahmad involuntarily, they provided her a

25 blanket and put her in a large, general population common room. Ms. Ahmad and most of the

26 other patients were forced to sleep on the floor. She was not evaluated by a physician for over 24

27 hours. When she was finally evaluated, the doctor talked to her briefly, asked her a few

28 questions, and told her she would be released. Staff did not provide her with a treatment plan,

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1 and did not arrange for any follow-up appointments. Ms. Ahmad felt that she was “on [her]

2 own.”

3

32. Ms. Ahmad reports that, after her experience at John George, she spiraled into a

4 full-blown manic episode. She could not sleep, kept seeing images of a needle coming at her,

5 and felt an intense fear of being admitted again. The fear and anxiety she experienced after her

6 stay at John George made Ms. Ahmad feel as though her symptoms were worse than if she had

7 not been treated there.

8

33. Ms. Ahmad was psychiatrically hospitalized additional times during the summer

9 of 2019, including again at John George. Defendants did not take steps to provide Ms. Ahmad

10 with community-based crisis services, even though Ms. Ahmad would have strongly preferred

11 such care. Ms. Ahmad was forced to sleep on a bench or the floor at John George’s Psychiatric

12 Emergency Services (“PES”) unit each time. Upon discharge, AHS staff provided Ms. Ahmad

13 with prescriptions for medication, but did not provide her with a treatment plan.

14

34. Ms. Ahmad sought treatment for herself. Ms. Ahmad called ACCESS, Alameda

15 County’s mental health information line, and asked for a referral to a community-based day

16 program like the one she successfully completed in 2016. The ACCESS representative told Ms.

17 Ahmad that there were no such programs available to her in Alameda County. Instead, ACCESS

18 connected Ms. Ahmad to an outpatient clinic in Alameda County which provides online

19 appointments with a psychiatrist and prescription refills, but not the intensive community

20 services she needs to help her manage her disability, such as day-program services, peer supports,

21 and social services. There is a serious risk she will be re-institutionalized at John George if her

22 condition again deteriorates. Ms. Ahmad is terrified of the prospect of relapsing and being

23 involuntarily admitted to John George again. She describes the difference between receiving

24 mental health care in the community versus receiving it in an institutional setting as the

25 difference between “healing” and simply being “kept alive.”

26

Rian Walter

27

35. Rian Walter is a 42-year-old Black Alameda County resident who graduated

28 from the University of California, Berkeley with degrees in Philosophy and English. He

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1 developed a mental health disability when he was 26-years-old. Since his first psychotic episode,

2 Mr. Walter has had a long history of mood dysregulation and psychosis complicated by

3 insufficient outpatient mental health services, lack of housing, and untreated substance use

4 disorder. He is enrolled in Medi-Cal and is currently an ACBHCS client.

5

36. Since 2004, Mr. Walter has had over 170 contacts with the County’s mental

6 health system, including approximately eighty-seven visits to John George and four admissions

7 to Villa Fairmont. He has cycled in and out of John George numerous times. He has been

8 institutionalized at Villa Fairmont on at least three different occasions. He has been incarcerated

9 at Santa Rita Jail several times for charges related to his mental health symptoms. He has also

10 been conserved on several occasions.

11

37. Over the course of Mr. Walter’s multiple psychiatric institutionalizations,

12 Defendants have consistently failed to provide him with effective discharge planning. Without

13 being connected to needed community-based mental health services, Mr. Walter has

14 decompensated, each time leading to the next institutionalization.

15

38. In contrast, during periods when Defendants have effectively connected Mr.

16 Walter to community-based mental health services, he has been able to live independently in the

17 community and avoid frequent psychiatric hospitalizations.

18

39. Recently, the County re-connected Mr. Walter with a Full Service Partnership

19 program and assisted him in securing housing. However, his shared housing situation does not

20 meet his substance use disorder needs, jeopardizing Mr. Walter’s efforts to maintain his recovery.

21 Additionally, Mr. Walter has tried and been unable to get supported employment services from

22 the County. Without supported housing that fits his needs, employment support, and other

23 needed services, Mr. Walter is at serious risk of re-institutionalization.

24

KG1

25

40. KG is a 57-year-old Black Alameda County resident who attended Mills College

26 and San Francisco State, and received her master’s degree from the University of California,

27

28 1 Plaintiff is using a pseudonym for this exemplar to protect the exemplar’s privacy.

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1 Berkeley. KG used to have her own tutoring business. She has a history of bipolar disorder,

2 depression, and post-traumatic stress disorder (“PTSD”). She is enrolled in Medi-Cal and is

3 currently an ACBHCS client.

4

41. KG has had approximately 50 psychiatric hospitalizations, mostly at John

5 George, since 1995. KG cycled in and out of John George at least five times during 2019 alone.

6 She has also cycled in and out of Villa Fairmont and other psychiatric institutions in Alameda

7 County.

8

42. KG’s mental health symptoms have been exacerbated by periods of

9 homelessness, problems with her outpatient mental health service provider, periods of

10 incarceration at Santa Rita Jail, and poor discharge planning from psychiatric institutions such as

11 John George.

12

43. KG is currently homeless and lacks community supports such as adequate case

13 management services and supported housing. Without access to needed intensive community

14 services, KG is at serious risk of further unnecessary institutionalization by Defendants.

15

MR2

16

44. MR is a 24-year-old motorcycle and photography enthusiast who wants to unite

17 these passions in a career. She has been diagnosed with bipolar disorder.

18

45. MR has twice been admitted to John George. In November 2019, after a period

19 of struggling with her mental health, MR experienced a psychiatric emergency and was taken to

20 John George and held for two nights. MR looks back at this stay as one of the most traumatic

21 experiences of her life. MR felt frightened and unsafe as a result of the unsanitary conditions,

22 overcrowding, and lack of medical attention in the Psychiatric Emergency Services unit at John

23 George.

24

46. MR was released from John George with no discharge plan whatsoever. With

25 no medical insurance, MR was unable to access needed mental health services. After her stay,

26

27

28 2 Plaintiff is using a pseudonym for this exemplar to protect the exemplar’s privacy.

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1 MR became severely physically ill, which she believes resulted from unsanitary conditions and

2 overcrowding at John George.

3

47. In December 2019, MR’s estranged, abusive husband contacted authorities

4 during a conflict knowing how traumatic MR’s experience at John George had been. Police

5 officers arrived and told MR she could either be arrested or be hospitalized at John George

6 again. She was taken back to John George, even though she was not having a psychiatric

7 emergency. MR again found herself in unhygienic, overcrowded, and frightening conditions.

8 This compounded her trauma from her first stay at John George. MR again left without a

9 meaningful discharge plan: she was simply given a thirty-day supply of medication and

10 instructed to seek care from a psychotherapist.

11

48. MR now has medical insurance and is receiving care from a psychologist and a

12 psychiatrist. She has not returned to John George. However, her brief stays have had a lasting

13 negative impact. MR has been pursuing a degree in automotive photography. While she was

14 being held at John George and while ill after her first stay, she fell behind in her coursework,

15 failed a class, and nearly lost one of her jobs. Without adequate services moving forward, she is

16 at serious risk of re-institutionalization at John George.

17

49. Ms. Ahmad, Mr. Walter, KG, and MR are just a few of the many DRC

18 Constituents who daily face a serious risk of unnecessary institutionalization. Defendants’ failure

19 to provide them adequate community-based mental health services has harmed them and places

20 them at serious risk of future harm.

21

Defendants

22

50. Defendant County of Alameda (the “County” or “Alameda County”) is a public

23 entity, duly organized and existing under the laws of the State of California. The County has the

24 authority and responsibility to provide mental health treatment and services to County residents,

25 including DRC Constituents, either directly or through the administration of contracts with

26 providers. Alameda County also operates Santa Rita Jail. Alameda County is subject to Title II

27 of the ADA, and receives “federal financial assistance,” thereby subjecting it to Section 504 of

28

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1 the Rehabilitation Act. The County is funded directly or receives “financial assistance from the

2 state,” thereby subjecting it to California Government Code Section 11135.

3

51. Defendant Alameda County Behavioral Health Care Services (“ACBHCS”) is

4 the County entity that provides mental health services to Alameda County residents. ACBHCS is

5 subject to Title II of the ADA, and receives “federal financial assistance,” thereby subjecting it to

6 Section 504 of the Rehabilitation Act. ACBHCS also is funded directly or receives “financial

7 assistance from the state,” thereby subjecting it to California Government Code Section 11135.

8

52. Defendant Alameda Health System (“AHS”) is a public hospital authority that

9 owns and operates John George Psychiatric Hospital, in addition to four other hospitals and four

10 wellness centers in Alameda County. Defendant AHS contracts with ACBHCS to provide

11 psychiatric emergency and inpatient care at John George Psychiatric Hospital. AHS is a public

12 entity subject to Title II of the ADA. Defendant AHS receives “federal financial assistance,”

13 thereby subjecting it to Section 504, 29 U.S.C. §§ 794-794(a). AHS is also funded directly or

14 receives “financial assistance from the state,” thereby subjecting it to California Government

15 Code Section 11135.

16

53. All Defendants are responsible for ensuring that people with serious mental

17 health disabilities are served in accordance with federal and state law, including the ADA,

18 Section 504, and Section 11135.

19

STATUTORY AND REGULATORY FRAMEWORK

20

54. Title II of the ADA applies to all “public entities,” including Defendants herein.

21 42 U.S.C. §12131(1)(b). It provides that “no qualified individual with a disability shall, by

22 reason of disability, be excluded from participation in or be denied the benefits of services,

23 programs, or activities of a public entity or be subjected to discrimination by such entity.” 42

24 U.S.C. § 12132.

25

55. In enacting the ADA, Congress found that “historically, society has tended to

26 isolate and segregate individuals with disabilities, and, despite some improvements, such forms

27 of discrimination against individuals with disabilities continue to be a serious and pervasive

28 social problem[.]” 42 U.S.C. § 12101(a)(2). Among the areas in which Congress found that

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1 discrimination persists was “in ... institutionalization ... and access to public services[,]” 42

2 U.S.C. § 12101(a)(3). “[I]ndividuals with disabilities continually encounter various forms of

3 discrimination, including ..., segregation, and relegation to lesser services, programs, activities,

4 benefits, jobs or other opportunities[.]” 42 U.S.C. § 12101(a)(5). According to Congress, “the

5 Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity,

6 full participation, independent living, and economic self-sufficiency for such individuals.” 42

7 U.S.C. § 12101(a)(7).

8

56. Twenty-one years ago, the United States Supreme Court in Olmstead v. L.C. ex

9 rel. Zimring, held that the unnecessary institutionalization of individuals with disabilities is a

10 form of discrimination prohibited under Title II of the ADA. 527 U.S. at 597. In so holding, the

11 Supreme Court made clear that public entities must serve persons with disabilities in community-

12 based, rather than institutional, settings when: (1) providing community-based services is

13 appropriate; (2) the individual does not oppose receiving such services; and (3) the provision of

14 community-based services can be reasonably accommodated, considering the resources available

15 to the entity and the needs of other persons with disabilities. Id. at 607.

16

57. Regulations implementing Title II of the ADA and the Olmstead decision

17 provide that “[a] public entity may not, directly or through contractual or other arrangements,

18 utilize criteria or … methods of administration: (i) that have the effect of subjecting qualified

19 individuals with disabilities to discrimination on the basis of disability; (ii) that have the purpose

20 or effect of defeating or substantially impairing accomplishment of the objectives of the entity’s

21 program with respect to individuals with disabilities; (iii) that perpetuate the discrimination of

22 another public entity ….” 28 C.F.R. § 35.130(b)(3); 28 C.F.R. § 41.51(b)(3); 45 C.F.R. §

23 84.4(b)(4).

24

58. The regulations implementing Title II also require that public entities administer

25 their services, programs, and activities in “the most integrated setting” appropriate to the needs of

26 qualified individuals with disabilities. 28 C.F.R. § 35.130(d); 28 C.F.R. § 41.51(d). The “most

27 integrated setting” is the “setting that enables individuals with disabilities to interact with non-

28 disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 450 (2010).

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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59. Title II’s “integration mandate” protects not only people who are currently
institutionalized but also people with disabilities who are at serious risk of institutionalization.
See, e.g., M.R. v. Dreyfus, 697 F.3d 706, 720, 734 (9th Cir. 2012) (amended). As the U.S.
Department of Justice has explained:
[T]he ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings. Individuals need not wait until the harm of institutionalization or segregation occurs or is imminent. For example, a plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity’s failure to provide community services … will likely cause a decline in health, safety, or welfare that would lead to the individual’s eventual placement in an institution.
Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of
the Americans with Disabilities Act and Olmstead v. L.C.,
https://www.ada.gov/olmstead/q&a_olmstead.htm (last updated Feb. 25, 2020) (“Department of
Justice Statement on Integration Mandate”) (emphasis added).
60. The integration mandate requires that public entities provide individuals with
disabilities with “opportunities to live, work, and receive services in the greater community, like
individuals without disabilities.” Id. Defendants must provide individuals such as the DRC
Constituents with “opportunities to live in their own apartments or family homes, with necessary
supports,” as well as “expanding the services and supports necessary for [their] successful
community tenure,” rather than providing services in large congregate facilities. Id.
61. Section 504 of the Rehabilitation Act bans discrimination by recipients of
federal funds, such as Defendants herein. 29 U.S.C. §§ 794-794(a). It contains the same
“integration mandate” and similar prohibitions against discrimination as Title II of the ADA.
62. Likewise, California’s non-discrimination statute prohibits discriminatory
actions by the state and state-funded agencies or departments, and provides civil enforcement
rights for violations. Section 11135 states, in pertinent part:
With respect to discrimination on the basis of disability, programs and activities subject to subdivision (a) shall meet the protections and prohibitions contained in Section 202 of the federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12132), and the federal rules and regulations adopted in implementation thereof, except that if the laws of this state prescribe stronger
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1

protections and prohibitions, the programs and activities subject to

subdivision (a) shall be subject to stronger protections and prohibitions.

2

3 Cal. Gov’t Code § 11135(b).

4

63. Regulations implementing Section 11135 state that recipients of state funding

5 may not discriminate, either directly or through contractual arrangements, including by

6 “utiliz[ing] criteria or methods of administration that … have the purpose or effect of subjecting a

7 person to discrimination on the basis of … a physical or mental disability[.]” 2 C.C.R. §§ 11154,

8 11154(e) and (i)(1). “It is a discriminatory practice for a recipient of State support to fail to

9 administer programs and activities in the most integrated setting appropriate to the needs of

10 qualified disabled persons.” Id. at § 11189.

11

FACTUAL ALLEGATIONS

12

64. Alameda County is a large, diverse county located in Northern California. It is

13 home to a population of approximately 1.67 million residents and contains fourteen incorporated

14 cities (including Oakland, Berkeley, Fremont, Union City, Hayward, Alameda, Newark,

15 Pleasanton, and Dublin) and several unincorporated areas. Alameda County’s population is

16 approximately 32% Asian, 30% White, 22% Latinx, 11% Black, and 5% Biracial. Within the

17 Bay Area, Alameda County has the highest percentage of people living in poverty. The homeless

18 population has increased by 43% since 2017.

19

65. Alameda County operates a mental health care system that is required by federal

20 and state law to provide treatment and services to County residents with mental health

21 disabilities, including DRC Constituents. ACBHCS estimates that approximately 15,260

22 Alameda County residents have a serious mental health disability.

23

66. ACBHCS is the agency responsible for implementing Alameda County’s mental

24 health system, including executing the County’s Medi-Cal Mental Health Plan and overseeing its

25 Mental Health Services Act (“MHSA”) planning and spending. ACBHCS contracts with

26 numerous community-based organizations and businesses to provide care. ACBHCS also

27 contracts with AHS to provide psychiatric emergency and inpatient care at John George

28 Psychiatric Hospital.

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67. Federal and state law require that Alameda County’s mental health system

2 include community-based services that prevent unnecessary institutionalization and the risk of

3 such institutionalization.3 Under California law, a primary goal of community-based “systems of

4 care” is to serve adults with serious mental health disabilities who are homeless, involved in the

5 criminal system, or require acute treatment. Cal. Welf. & Inst. Code § 5600.3(b).

6

68. Nationally, the intensive community services that are recognized as critical and

7 effective in enabling individuals with serious mental health disabilities to avoid unnecessary 8 institutionalization include: Full Service Partnerships/assertive community treatment,4

9 rehabilitative mental health services, intensive case management, crisis services, substance use

10 disorder treatment,5 peer support services, supported housing, and supported employment. The

11 references to “community services” and “community-based services” throughout this Complaint

12 are references to these specific services. Each of these services is described in further detail in

13 Section III, infra.

14

69. DRC opened an investigation into Alameda County’s practices regarding

15 unnecessary institutionalization in 2018. During its investigation, DRC visited numerous mental

16 health facilities and programs throughout Alameda County, including several visits to John

17 George and Villa Fairmont. DRC also visited the Santa Rita Jail and various homeless shelters,

18 and consulted with providers of supported housing. In each of these instances, DRC and its

19 designated agents toured the facilities and interviewed residents, including DRC Constituents,

20

21 3 The provision of needed community services is authorized and funded (using federal, state and local monies) under a number of California programs, including: the Bronzan-McCorquodale Act,

22 Cal. Welf. & Inst. Code §§ 5600, et seq.; Medi-Cal Specialty Mental Health Services, Cal. Welf.

& Inst. Code §§ 14700, et seq.; 9 C.C.R. §§ 1810.100, 1810.247; Mental Health Services Act, 23 Proposition 63 (2003); and California’s Medi-Cal program, Cal. Welf. & Inst. Code §§ 14000 et

24 seq., 22 C.C.R. §§ 50000, et seq. 4 As discussed in further detail in Section III, infra, in California, Full Service Partnership
25 programs (“FSPs”) provide “whatever it takes” to promote recovery for targeted, high needs

26

individuals. Most FSPs use the “ACT model” as the primary mode of services delivery – which includes teams of professional and peers who deliver a full range of services to clients in their

27 homes or the community.

5 Many who experience a mental health disability during their lives will also experience a 28 substance use disorder and vice versa.

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1 and providers. DRC submitted numerous Public Records Act requests to Defendants related to

2 the provision of mental health care in Alameda County and unnecessary institutionalization.

3

70. On November 1, 2019, DRC found probable cause to believe that the County’s

4 actions constitute abuse and/or neglect of DRC Constituents based on, inter alia, Defendants’

5 failure to provide them needed services and supports in the most integrated setting appropriate, in

6 order to promote their recovery.6

7

71. DRC’s investigation revealed that Defendants have not provided sufficient

8 intensive community-based mental health services to DRC Constituents, and are causing them,

9 particularly Black DRC Constituents, to be unnecessarily segregated in costly, publicly funded

10 institutions, often repeatedly.

11 I. Defendants Unnecessarily Segregate DRC Constituents Into Psychiatric Institutions.

12

72. Under California’s civil commitment laws, a DRC Constituent can be detained

13 for up to 72 hours based on a statement by certain County staff that they have reason to believe

14 that the person, due to a mental health disability, is gravely disabled or a danger to themselves or 15 others.7 California’s civil commitment laws also authorize county behavioral health systems,

16 including Defendant ACBHCS, to designate which facilities to use for the evaluation and

17 treatment of individuals.

18

73. Alameda County detains more individuals for psychiatric evaluation and

19 treatment than any other county in California. Its psychiatric detention rate is three-and-a-half

20 times higher than the statewide average.

21

74. Because Defendants’ community-based services are insufficiently available, the

22 County detains vast numbers of DRC Constituents in crisis at John George, the designated public

23

24

25 6 See App. A, DRC, Ltr to ACBHCS and Alameda County Re: DRC Abuse/Neglect Investigation
26 and Request for Information Alameda County’s Mental Health System (Nov. 1, 2019). 7 Cal. Welf. & Inst. Code § 5150(a). After the 72-hour period, detained individuals must either be
27 released, provided treatment on a voluntary basis, certified for intensive treatment under Welfare
& Institutions Code section 5250, or appointed a conservator or temporary conservator under 28 Welfare & Institutions Code section 5152.

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1 hospital authority, pursuant to California Welfare & Institutions Code sections 5150 and 5250.

2 More than 10,000 people have passed through the facility since January 2018.

3

75. At John George, there are three locked inpatient units and a locked Psychiatric

4 Emergency Services (“PES”) unit. The psychiatric hospital is large, crowded, and physically

5 isolated from community life.

6

76. A shockingly high number of DRC Constituents, especially Black DRC

7 Constituents, are held in these locked institutional facilities repeatedly and for periods longer

8 than necessary.

9

A.

Unnecessary Institutionalization in John George’s PES Unit.

10

77. Defendants detain nearly 1,000 people at John George’s PES unit every month.

11 Through its investigation, DRC learned that these numbers are 30% higher than they were a

12 decade ago.

13

78. A disproportionate number of individuals held in the PES—36%—are Black.

14 This is more than three times their overall composition in Alameda County. The County’s data

15 also shows that Black men are nearly 30% more likely than others to be involuntarily

16 institutionalized in the wake of a mental health crisis call.

17

79. An enormous number of the people taken to PES need not be detained there at

18 all. According to the County’s own estimates, more than 75% of those detained in PES do not

19 meet medical necessity criteria for inpatient psychiatric services.

20

80. At PES, Defendants crowd DRC Constituents into a locked 35-foot-by-45-foot

21 room, illuminated by harsh fluorescent lights, where they must compete for places to sit, lie, or

22 stand. The room can be filled with upwards of sixty (60) people with mental health disabilities,

23 some of whom are relegated to hallways or the floor due to overcrowding. Ms. Ahmad describes

24 the common room as “filthy” and “smelling like urine.” The facility’s harsh institutional

25 conditions often exacerbate rather than alleviate people’s mental health symptoms. MR

26 experienced sexual harassment while she was held there. Staff did not intervene until she

27 advocated for herself loudly and repeatedly. She was forced to take such large doses of Ativan—

28 an anxiety medication—that she experienced withdrawal symptoms after being discharged.

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81. Once detained in PES, DRC Constituents languish until they are released or

2 referred to one of John George’s inpatient units or another facility. Many DRC Constituents

3 spend fewer than twenty-four hours at the PES, but a significant number remain for multiple

4 days. Some remain in the PES for more than a week.

5

82. The majority of DRC Constituents detained in the PES are released without

6 adequate intensive community-based services in place, resulting in their re-institutionalization,

7 often repeatedly. One Alameda County Mental Health Board report noted a “vicious cycle of

8 overcrowding” at the PES, and “patients being discharged and being readmitted when they fail to

9 function outside the hospital setting.”8

10

B.

Unnecessary Institutionalization in John George’s Inpatient Units.

11

83. Approximately twenty-five (25) percent of those brought to PES are admitted to

12 John George’s inpatient units. In recent years, the average daily census and average length of

13 stay in John George’s inpatient units have risen, with an estimated 5,000 patient visits in 2019,

14 and an average length of stay of approximately nine days.

15

84. John George’s inpatient units are highly institutional settings. DRC

16 Constituents are confined in locked wards, monitored continuously, afforded little privacy or

17 autonomy over their daily lives, and required to abide by rigid rules.

18

85. Defendants needlessly extend DRC Constituents’ institutionalization at John

19 George due to the lack of available community-based services. These extended stays—which are

20 considered “administrative” because they are not medically necessary—last several days or more,

21 harm DRC Constituents, and cost millions of dollars in public monies. Even after

22 “administrative” stays, DRC Constituents are often released without being linked to adequate

23 intensive community-based services, resulting in their re-institutionalization.

24

C.

Unnecessary Institutionalization in Villa Fairmont’s Sub-Acute Units.

25

86. Defendants discharge large numbers of DRC Constituents from John George’s

26 inpatient units to Villa Fairmont for an additional period of institutionalization. Villa Fairmont is

27 8 See Darwin BondGraham, Overwhelmed, East Bay Express (Mar. 9, 2016),
28 https://www.eastbayexpress.com/oakland/overwhelmed/Content?mode=print&oid=4705660.

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1 a 96-bed, locked “sub-acute” mental health facility located on the same campus as John George.

2 Defendant ACBHCS contracts with Telecare Corporation to operate this facility.

3

87. Villa Fairmont is an institution similar in many ways to John George. DRC

4 Constituents are subjected to around-the-clock monitoring and are restricted from leaving the

5 facility.

6

88. Due to a lack of intensive community services, Defendants Alameda County and

7 ACBHCS often keep DRC Constituents at Villa Fairmont beyond the time staff deems

8 appropriate. These extended stays are damaging to DRC Constituents and costly to Defendants.

9 II.

DRC Constituents Are at Serious Risk of Unnecessary Institutionalization.

10

89. Without access to needed intensive community services, DRC constituents are at

11 serious risk of repeated cycles of unnecessary institutionalization.

12

90. Defendants detain hundreds of DRC Constituents at John George repeatedly.

13 According to the County’s data, from January 2018 to June 2020, Defendant AHS held more than

14 350 DRC Constituents in the PES over ten (10) times. Among this group, 55% were Black.

15 During that same time period, Defendant AHS held approximately eighty-four (84) individuals

16 twenty-five (25) times or more; close to 60% were Black. Six cycled in and out of the PES more

17 than eighty-five (85) times in this two-and-half year period; five of them were Black.

18

91. Repeat admissions to John George’s inpatient Units and to sub-acute facilities

19 such as Villa Fairmont are also common among DRC Constituents. For example, since 2018, the

20 County’s data shows that at least 365 DRC Constituents have each been admitted to John

21 George’s Inpatient Units four (4) or more times. Approximately 44% of this group are Black.

22

92. The high rate of re-institutionalization is directly related to Defendants’ failure

23 to provide DRC Constituents with needed intensive community-based services upon discharge

24 from PES, John George’s inpatient units, and sub-acute facilities such as Villa Fairmont. The

25 County itself has admitted that the majority of people discharged from PES are “not linked to

26 planned services and continue to over-use emergency services.”

27

93. The risk of unnecessary institutionalization and re-institutionalization is

28 particularly serious for people experiencing homelessness or who have been incarcerated.

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1

A.

DRC Constituents Without Stable Housing Are at Serious Risk of

Unnecessary Institutionalization. 2

3

94. As of 2019, approximately 2,567 people experiencing homelessness in Alameda

4 County—or 32% of the County’s homeless population—identified as having a serious mental

5 disability.

6

95. Despite state law and policy that discourages discharging people from

7 psychiatric institutions to the streets or emergency shelters,9 Defendants frequently discharge

8 DRC Constituents from psychiatric institutions such as John George and Villa Fairmont to

9 homelessness. Some DRC Constituents end up in emergency shelters, if there are shelter beds

10 available. Others end up in homeless encampments crammed under overpasses in unsafe and

11 degrading conditions. The New York Times recently described the homeless encampments in

12 Alameda County as “among the world’s most dire places.”10

13

96. The vulnerability of Black DRC Constituents to unnecessary institutionalization

14 is exacerbated by the fact that they comprise approximately 47% of the unhoused population in

15 Alameda County.

16

97. DRC Constituents who are homeless are deeply vulnerable to violence and

17 trauma while living outside. Homelessness itself is a traumatic experience that aggravates the

18 effects of mental health disabilities.

19

98. By discharging DRC Constituents into homelessness, Defendants increase their

20 risk of re-institutionalization.

21

99. The County has acknowledged that, for DRC Constituents experiencing

22 homelessness, psychiatric hospitalization is among “the most frequent—and the most

23 expensive—source of [their] medical care.”

24

25 9 Cal. Health & Safety Code § 1262.5(n)(3) (requiring discharge planning for homeless patients

26

that “that helps prepare the homeless patient for return to the community by connecting him or her with available community resources, treatment, shelter, and other supportive services”).

27 10 Thomas Fuller & Josh Haner, Among the World’s Most Dire Places: This California Homeless Camp, N.Y. Times (Dec. 17, 2019), https://www.nytimes.com/interactive/2019/12/17/us/oakland-
28 california-homeless-camp.html.

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1

100. Mr. Walter’s experiences illustrate these challenges. From 2015 to 2017, Mr.

2 Walter was homeless and without access to outpatient mental health services. During this time,

3 Mr. Walter was assaulted, stranded naked, forced to dig through garbage bins for scraps of food,

4 and almost shot. Mr. Walter was so afraid for his safety that he would frequently use

5 methamphetamine just to stay awake as long as possible. Over the two years that Mr. Walter

6 lacked housing, Mr. Walter was institutionalized at John George on forty-three (43) occasions.

7 In one year alone, Mr. Walter was institutionalized thirty-one (31) times, and seven (7) times in

8 one month. Despite the high number of involuntary psychiatric admissions, Defendants failed to

9 provide Mr. Walter with stable housing or intensive mental health services.

10

B.

DRC Constituents Who Have Been Incarcerated or Had Other

Involvement with the Criminal System Are at Serious Risk of Unnecessary

11

Institutionalization.

12

101. Without access to sufficient intensive community services, DRC Constituents,

13 particularly Black DRC Constituents, are highly likely to experience arrest and incarceration in

14 the County’s jail solely for disability-related behaviors. This compounds their risk of future 15 psychiatric institutionalization.

16

102. Approximately 53% of people—484 out of 919—whom the County identifies as

17 both “justice involved” and a “high utilizer” in the mental health system are Black. (“High 18 utilizer” is a status generally assigned to people with repeated psychiatric institutionalizations.)

19

103. Hundreds of DRC Constituents discharged from John George end up in jail

20 shortly after their release. According to County data, from January 2018 to mid-December 2019,

21 nearly 200 DRC Constituents discharged from John George’s inpatient units were jailed within

22 the next sixty (60) days. DRC’s investigation determined that, for many, the time from discharge

23 to incarceration was less than two (2) weeks.

24

104. The County—which runs the jail—is aware that many DRC Constituents are

25 arrested and detained at the County’s jail for behaviors relating to their mental health condition.

26 Typically, DRC Constituents are incarcerated in jail for minor offenses including minor

27 probation violations. Often charges are dropped or the DRC Constituents accept a plea deal

28

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1 allowing their release for time-served. If needed intensive community services were available,

2 many of these individuals would be able to avoid incarceration.

3

105. Once entangled in the criminal system, DRC Constituents tend to stay in jail

4 longer than other jail prisoners, are at greater risk of deteriorating psychologically and

5 committing acts of self-harm, and more frequently receive punishments in response to minor

6 infractions. Approximately one-quarter of the people held in the County’s jail population have

7 been identified as having a “serious mental illness.”11 Half of the people receiving mental health

8 services from the County while in jail are Black.

9

106. It is well known that people with mental health disabilities held in the County’s

10 jail face dangerous and damaging isolation and inadequate access to mental health treatment,

11 including discharge planning. See Babu v. Cnty. of Alameda, Case No. 18-07677 (N.D. Cal filed

12 Dec. 21, 2018); Babu v. Cnty. of Alameda, Case No. 18-07677, Notice Re: Final Joint Expert

13 Reports, ECF No. 111 (N.D. Cal., Apr. 22, 2020). A large number have died while in jail.12

14

107. Defendant ACBHCS is responsible for providing mental health treatment to jail

15 prisoners, except for inpatient care at John George, which Defendant AHS provides. Defendants

16 ACBHCS and AHS’s failures to provide adequate mental health services, including discharge

17 planning, put people at serious risk of institutionalization upon release from incarceration. These

18 failures also put people at risk of re-arrest.

19

108. The County and ACBHCS recognize that “[a] large percentage of individuals

20 with [mental health disabilities] released from County jail in Alameda County do not receive the

21 services needed to connect them to the treatment and resources that help prevent recidivism.”

22 The joint mental health expert in the Babu case identified several deficiencies with the jail’s

23

24 11 A “serious mental illness” is another term for “serious mental health disability” and is generally

defined as “a mental, behavioral, or emotional disorder resulting in serious functional impairment,

25 which substantially interferes with or limits one or more major life activities.” Nat’l Inst. of

26

Mental Health, Mental Health Information, https://www.nimh.nih.gov/health/statistics/mentalillness.shtml.

27 12 See, e.g., Lisa Fernandez, A look at the 45 inmates who have died at Santa Rita Jail in the last five years, KTVU Fox 2 (Oct. 4, 2019), https://www.ktvu.com/news/a-look-at-the-45-inmates-
28 who-have-died-at-santa-rita-jail-in-the-last-five-years.

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1 discharge planning, concluding that it “should include coordination with community services” to

2 prevent further cycling.13

3

109. As but one example, KG was recently imprisoned at Santa Rita Jail for a

4 misdemeanor related to her mental health symptoms. She was then transferred to John George

5 where she was involuntarily institutionalized for fourteen days, after which she was discharged

6 and returned to Santa Rita Jail. Following her incarceration, KG was released without any

7 connection to mental health services or housing supports. KG worries that she will be

8 involuntarily institutionalized at John George or Santa Rita again.

9 III. Defendants Fail to Provide Needed Community-Based Services.

10

110. Defendants Alameda County, ACBHCS, and AHS are the primary and

11 interconnected sources of mental health services for DRC Constituents, and therefore each carries

12 responsibility for DRC Constituents’ unnecessary institutionalization and/or serious risk of

13 institutionalization.

14

A.

Defendants Alameda County and ACBHCS Fail to Provide Needed Full

Service Partnerships, Supported Housing, and Other Intensive

15

Community-Based Services.

16

111. DRC Constituents are qualified to receive mental health services in the

17 community, in settings far more integrated than John George and Villa Fairmont.

18

112. The County and ACBHCS fail to provide DRC Constituents with the

19 community services they need, including Full Service Partnerships and/or comparable intensive

20 services and supported housing. Some DRC Constituents receive some of the services they need

21 some of the time. However, Defendants deny a vast number of DRC Constituents the intensive

22 community services they need to avoid institutionalization in John George and Villa Fairmont, or

23 detention in jail.

24

25

26

27 13 Evaluation of Mental Health Delivery at the Alameda County Sheriff’s Office Santa Rita Jail,
28 Kerry Hughes, M.D., ECF No. 111-3 at 27.

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1

1.

Insufficient Full-Service Partnerships and Comparable

Intensive Services. 2

3

113. Most DRC Constituents who are cycling in and out of John George, Villa

4 Fairmont, or other psychiatric institutions in the County are eligible for Full Service Partnership

5 (“FSP”) services or comparable intensive services.

6

114. FSP services are targeted to individuals with serious mental health disabilities

7 who are homeless, involved in the criminal system, and/or frequent users of hospital or

8 emergency room services or are at risk of such. 9 C.C.R. §3620.05.

9

115. FSPs are comprised of multidisciplinary teams that develop a collaborative

10 relationship with a client and provide a full spectrum of community services so the client can

11 achieve identified goals. 9 C.C.R. §3200.130. The foundation of the FSP program is doing

12 “whatever it takes” to help individuals (called “partners”) on their path to recovery and wellness.

13 In Alameda County, Defendants report that the FSP program has helped support people in

14 “getting off the streets, getting benefits such as insurance and social security, becoming

15 psychiatrically stable, reducing interactions with the criminal justice system and emergency

16 services, improving overall physical health …, and integrating into the community as employees,

17 students, volunteers, and advocates.”

18

116. The specific intensive community services that DRC Constituents need to stop

19 unnecessary institutionalization can be provided as an integrated part of the FSP model or as

20 separate services. These services include: assertive community treatment, rehabilitative mental

21 health services, intensive case management, crisis services, substance use disorder treatment,

22 peer support services, and supported employment.

23

a.

Assertive Community Treatment (“ACT”) is a widely used

24 evidence-based practice. ACT services are available 24 hours per day, 7 days a week, with

25 someone always available to handle emergencies. These services are provided at home, at work,

26 and/or in other settings, with the goal of providing individuals adequate community care and

27 helping them with community life. Teams provide individuals with whatever services they need

28 for as long as they need them.

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1

b.

Rehabilitative Mental Health Services is a broad category of services

2 that includes assessment and plan development, medication management, and individual or group

3 therapies and education to increase independence and self-sufficiency.

4

c.

Intensive Case Management, including Targeted Case

5 Management,14 helps individuals gain access to needed medical, social, educational, and other

6 services, including through face-to-face encounters. It supports the assessment and periodic

7 reassessment of individual needs and the development of an individualized care plan, and

8 includes monitoring of whether the care plan is being properly implemented and whether it is

9 successful and if not, securing adjustments to the plan.

10

d.

Crisis Services include mobile crisis services and community-based

11 residential crisis services, such as crisis homes or apartments. Mobile crisis services are provided

12 by teams of mental health professionals who respond quickly to individuals in crisis and utilize a

13 variety of techniques to de-escalate the situation and resolve the crisis.

14

e.

Substance Use Disorder Treatment includes individual and group

15 services, including medication assisted therapy (“MAT”), outpatient and residential treatment,

16 counseling and therapy, and peer support services.

17

f.

Peer Support Services are provided by individuals with lived

18 experience in the mental health system who build relationships of trust with those they serve.

19 They help people with mental health disabilities stay connected to treatment providers, maintain

20 or develop social relationships, and participate in community activities. They help individuals

21 transition to the community from institutional or correctional settings.

22

g.

Supported Employment/Independent Placement and Support

23 (“IPS”) helps people with mental health disabilities obtain and keep a job.

24

117. Defendant ACBHCS is required to provide all of these services through Medi-

25 Cal and the Mental Health Services Act.

26

27 14 The term “targeted case management” means “services that assist a beneficiary to access needed medical, educational, social, prevocational, vocational, rehabilitative, or other community
28 services.” 9 C.C.R. §1810.249.

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1

118. Unfortunately, many DRC Constituents who need FSP services or comparable

2 intensive services do not receive them.

3

119. The County’s existing FSP programs are constrained by limited capacity and

4 lack coordination and resources. Defendants fail to inform many eligible beneficiaries and

5 referral agencies about FSP services. In addition, the process for assessing eligibility for and

6 authorizing FSP services is so cumbersome that many DRC Constituents experience escalating

7 crises and dire outcomes while awaiting a determination. Many are institutionalized, become

8 homeless, or are jailed.

9

120. Existing FSPs also fail to provide DRC Constituents with access to the full

10 range of services they need to shorten or avoid institutionalization, such as community-based

11 crisis services and treatment for people with co-occurring substance use disorders. Defendants

12 have for years relied heavily, and almost exclusively, on John George Psychiatric Hospital to

13 serve people with mental health disabilities who may be experiencing a psychiatric crisis. 14 Alameda County only recently opened a Crisis Stabilization Unit (“CSU”).15 This CSU, which

15 has twelve (12) beds, is the only one in the County, though the need for crisis beds is far greater.

16 Other recent initiatives to enhance crisis services in the County, including short-term crisis

17 residential treatment programs, drop-in Crisis Response Programs, and a Mobile Crisis Unit, are

18 insufficient to meet the need for such services and have significant limitations in their capacity,

19 hours of operation, and geographic accessibility.

20

121. The scarcity of FSP and similarly intensive services is especially acute for

21 individuals who have health needs beyond their mental health disabilities. For instance, in all of

22 Alameda County, there is only one dual diagnosis residential treatment program for people with

23 mental health disabilities and substance use disorders, and it serves only eight (8) Alameda

24 County residents at a time. DRC Constituents with dual diagnoses also report needing additional

25 intensive case management services, more time in dual diagnosis treatment programs, and mobile

26

27 15 Crisis Stabilization Units offer an alternative to psychiatric hospitalization by providing crisis
28 response and observation services in a community-based setting.

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1 treatment teams that proactively address individuals’ co-occurring mental health and substance

2 use.

3

2.

Lack of Supported Housing.

4

122. FSPs, or similarly intensive services, are often paired with Supported Housing.16

5 Supported housing typically includes two components: (1) a rental subsidy for the individual with

6 a mental health disability, and (2) services to support the individual’s successful tenancy.

7 Assistance finding and securing housing is also available. The support services can include case

8 management, training in independent living skills, medication management, home health aides,

9 and/or other services. The Department of Justice, and often courts in Olmstead cases, refer to 10 such housing as “supported housing.”17

11

123. The California legislature has found that “[h]ousing is a key factor for

12 stabilization and recovery to occur and results in improved outcomes for individuals living with a

13 mental illness.” Cal. Welf. & Inst. Code § 5849.1 (West). It has also found that tenants of

14 permanent supported housing “reduced their visits to an emergency department by 56 percent,

15 and their hospital admissions by 45 percent.” Id. Historically, the FSP Housing Support

16 Program in Alameda County has “demonstrated reductions in inpatient … per client costs by an

17 average of more than $50,000/year.”

18

124. DRC Constituents consistently report that the lack of supported housing in

19 Alameda County is one of the greatest challenges they face and a significant barrier to their

20 stabilizing and managing their mental health conditions.

21

22

23 16 Housing is included in the “full spectrum of services” provided under FSPs, which includes,

24 but is not limited to “rental subsidies, housing vouchers, house payments, residence in a

drug/alcohol rehabilitation program and transitional and temporary housing.” 9 C.C.R. 25 § 3620(a)(1)(B)(iii). California Welfare and Institutions Code section 5892.5 defines “housing

26

assistance” to include rental assistance, operating subsidies, move in costs and utility payments, as well as capital funding to build or rehabilitate housing for homeless or at-risk persons with

27 mental health disabilities.

17 Department of Justice Statement on Integration Mandate at 7 (“Olmstead remedies should 28 include, depending on the population at issue, supported housing.”).

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1

125. Despite examples of successful supported housing in the County, Defendants

2 Alameda County and ACBHCS fail to provide sufficient supported housing services to meet the

3 needs of DRC Constituents. Recent data show that there were approximately 300 permanent

4 supported housing slots in Alameda County dedicated to people with serious mental health

5 disabilities, even though the number of homeless adults with serious mental health disabilities in

6 the County is estimated to exceed 2,500, and the number who have serious mental health

7 disabilities and are “chronically homeless”18 is over 1,500.

8

126. According to ACBHCS, “[a] number of Full-Service Partnership (FSP)

9 providers have reported that the lack of affordable housing is a major challenge for many FSP

10 clients and this is reflected in the increase in homelessness.” Many service providers have

11 underscored the enormity of this problem. In the words of one mental health provider:

12

The lack of affordable subsidized housing in Berkeley and Alameda County

is a huge issue for many people served by the mental health division. A

13

sizable number of those who enter care in the division are homeless, and the

lack of housing options provides a huge barrier to moving individuals forward

14

in their recovery.

15

127. Many DRC Constituents experience periods of homelessness or face significant

16 challenges related to their housing that contribute directly to their being involuntarily

17 hospitalized at John George or taken to jail. For example, KG did not have any psychiatric

18 admissions for five years while living in Section 8 housing. In 2018, however, KG lost her

19 Section 8 housing after her FSP provider failed to engage and assist her. Since that time, KG has

20 had at least ten psychiatric hospitalizations and the County and ACBHCS have failed to re-

21 connect her with housing.

22

3.

Lack of Culturally Congruent and Responsive Community

23

Services.

24

128. In order for FSP programs, other intensive services, and supported housing

25 programs to be accessible to DRC Constituents from diverse racial and ethnic groups, these

26

27 18 “Chronically homeless” refers to individuals who are currently homeless and have been
28 homeless for six months or more in the past year.

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1 programs and services must be provided in a culturally congruent and responsive manner.19

2 Specifically, these community services and programs must be delivered in ways that

3 acknowledge the various traumas that DRC Constituents have experienced and advance a person-

4 centered approach to providing services. For example, peers providing services can be more

5 effective when they share the cultural background of and have lived experiences similar to those

6 being served. All staff providing services need to understand the cultural norms and socio-

7 economic challenges of DRC Constituents.

8

129. Defendants have a longstanding policy or practice of failing to provide intensive

9 community services in ways that are culturally congruent and affirming. This failure has a

10 disproportionate impact on people of color and Black residents in particular, leading to even

11 higher rates of unnecessary institutionalization of Black DRC Constituents compared to people

12 from other racial and ethnic groups.

13

130. Defendants are well aware of this problem. In the words of former ACBHCS

14 director Marye L. Thomas, M.D., “most behavioral health care programs in California serve

15 African Americans at a disproportionately higher rate than other ethnic communities, and these

16 services are provided in extremely restrictive (often involuntary) settings such as hospitals and

17 jails.” Dr. Thomas acknowledged that, “[d]espite this ‘over-provision’ of services, across the

18 lifespan, positive mental health outcomes among African Americans in Alameda County … are

19 inconsistent, which leads us to conclude that many African Americans are being inappropriately

20 served.”

21

22

23

24
25 19 Programs that rely strictly on evidence-based practices may not be accessible to racial or ethnic minority groups if the studies they are based upon did not account for the cultural orientation of
26 those communities. See, e.g., V. Diane Woods, et al., “We Ain’t Crazy! Just Coping with a Crazy System:” Pathways into the Black Population for Eliminating Mental Health Disparities (2012)
27 (discussing culturally congruent mental health services for Black communities in California), https://lhc.ca.gov/sites/lhc.ca.gov/files/Reports/225/ReportsSubmitted/CRDPAfricanAmericanPo
28 pulationReport.pdf.

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1

B.

Defendant AHS Fails to Ensure Effective Linkages and to Coordinate Care

with the County and ACBHCS. 2

3

131. Defendants Alameda County and ACBHCS’s failure to provide needed

4 community-based services to DRC Constituents, particularly Black DRC Constituents, is

5 compounded by Defendant AHS’s failure to develop individualized treatment and discharge

6 plans, to ensure their timely and effective implementation, and to coordinate with the County,

7 ACBHCS, and community-based services providers.

8

132. Through operating John George, AHS serves as a critical component in

9 Alameda County’s mental health system, including with respect to patient intake, assessment,

10 referral, admission, and discharge.

11

133. AHS’s role and specific responsibilities with respect to the operation of the

12 County’s public mental health system are set forth in detail in the AHS-ACBHCS master

13 contract. This document provides considerable guidance as to AHS’s Olmstead-related

14 obligations. For example, AHS is responsible for:

15

a.

“Facilitat[ing] … a patient’s ability to return to less restrictive

16 treatment in the community[;]”

17

b.

“Evaluat[ing] … continuity and coordination of care[;]”

18

c.

“[E]xtensively review[ing ] clinical and treatment history and

19 communicate with community services providers to ... optimize treatment and discharge planning

20 and reduce the likelihood of inpatient recidivism or multiple PES admissions[;]”

21

d.

“[C]ollaborat[ing] with BHCS’s Community Placement Specialist and

22 other system administrators in the development and/or implementation of a discharge or system-

23 wide care plan for selected patients needing special management and coordination[;]” and

24

e.

“[P]articipat[ing] in BHCS’ comprehensive analysis to assess and

25 recommend changes in the administration, management, policies, operations, relationships and

26 accountability of Information and Referral, Crisis and Emergency Services which serve as entry

27 points to BHCS’s System of Care.”

28

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1

134. In practice, Defendant AHS fails to adequately consult and coordinate with

2 community providers and ACBHCS case managers, physicians, and other personnel in the

3 admission, diversion, referral, treatment, and discharge of patients.

4

135. Defendant AHS fails to develop adequate individualized treatment and

5 discharge plans of DRC Constituents. Defendant AHS’s discharge plans are frequently

6 boilerplate and disconnected from what DRC Constituents need in order to live successfully in

7 the community. Many DRC Constituents are discharged to insecure housing or homelessness

8 and are not adequately connected to mental health care.

9

136. Defendant AHS’s practices significantly contribute to DRC Constituents’

10 institutionalization and have led to numerous DRC Constituents decompensating soon after being

11 discharged from John George, leading to additional institutionalizations. For instance, in May

12 2019, AHS staff discharged Mr. Walter from the John George PES unit without sufficient

13 coordination with community-based mental health providers, and Mr. Walter was forced to return

14 to John George the very same day on an involuntary hold. Ms. Ahmad and MR also recall being

15 discharged from the John George PES without any meaningful discharge plans, and then cycling

16 through PES again within a short period of time. Ms. Ahmad, Mr. Walter, and MR all believe

17 that their repeat hospitalizations were unnecessary and avoidable.

18 IV. Defendants’ Practices Harm DRC Constituents.

19

137. Defendants’ failure to provide and link DRC Constituents to needed intensive

20 community-based services has devastating effects. DRC Constituents do not receive the services

21 they need to stabilize their conditions, and they live at constant and high risk of unnecessary

22 institutionalization.

23

138. Ms. Ahmad believes that her stays at PES contributed to her developing post-

24 traumatic stress disorder and prolonged her recovery. Ms. Ahmad thinks that, if Defendants had

25 provided her with community-based services, she could have avoided being institutionalized

26 multiple times in one summer.

27

139. MR believes her experience at John George caused her to fail a higher education

28 course and almost lose a job.

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1

140. Mr. Walter and KG have experienced dozens of unnecessary

2 institutionalizations, which they believe contributed to instability in their housing and

3 stigmatization by family members and service providers, which has made them feel further

4 isolated.

5 V. 6

Defendants’ Response to the Covid-19 Pandemic Puts DRC Constituents at Heightened Risk of Harm.

7

141. Defendants’ practices place DRC Constituents at especially grave risk from the

8 COVID-19 pandemic.

9

142. As of July 17, 2020, more than 100 Santa Rita Jail prisoners were infected with

10 COVID-19.20 The number of cases went from six to 101 in three days.

11

143. Even though Defendants have initiated social distancing protocols at John

12 George and Villa Fairmont in response to COVID-19, there remains a significant risk of COVID-

13 19 infection spreading through these institutions, just as it has done in Santa Rita and many other

14 psychiatric hospitals, detention centers, and nursing facilities throughout the country. While John

15 George has limited the PES unit to accepting 25 patients at a time, those admitted to PES still sit

16 in close proximity to one another for several hours. In John George’s inpatient units and at Villa

17 Fairmont, rooms have multiple beds and sealed windows, hallways are narrow, staff move

18 between wards, and alcohol-based hand sanitizer is not readily available (and may not be kept on

19 hand by residents on the grounds as it is considered an ingestion hazard).

20

144. Due to the spread of COVID-19 at Santa Rita Jail, many DRC Constituents are

21 at high risk of contracting and dying from infection. Individuals with serious mental health

22 disabilities have significantly higher risks of cardiovascular disease, diabetes, HIV, tuberculosis,

23 and Hepatitis B and C. In addition, many DRC Constituents are older adults and/or take

24 medications that may compromise their immune systems.

25

26

27 20 Angela Ruggiero, More Than 100 Santa Rita Jail Inmates Now Infected with Coronavirus, Mercury News (July 17, 2020, 5:08pm), https://www.mercurynews.com/2020/07/17/nearly-100-
28 inmates-now-infected-with-coronavirus-in-santa-rita-jail-outbreak/.

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1

145. Recent data indicates that the coronavirus death rate among Black, Native, and

2 Latinx people is substantially higher than that of other groups, and that rates of depression and

3 anxiety have spiked among Black people since the pandemic began. These factors compound the

4 racial disparities already present in the County’s mental health system and put people of color at

5 heightened risk for negative health outcomes.

6

146. Given the grave risk of infection for DRC Constituents who cycle between jail,

7 John George, Villa Fairmont, and homelessness, DRC Constituents need intensive community-

8 based mental health services now more than ever. The community-based services that protect

9 DRC Constituents from unnecessary institutionalization also limit their exposure to COVID-19.

10 VI. Defendants Can Provide Services to DRC Constituents in Integrated, Community

11

Settings by Reasonably Modifying the Mental Health Service System.

12

147. The County’s mental health system does not provide intensive community-based

13 services in a timely manner or at a sufficient level.

14

148. With reasonable modifications to Alameda County’s mental health system,

15 Defendants would be able to meet DRC Constituents’ service needs and prevent their

16 unnecessary institutionalization. Such modifications include: conducting a systemwide

17 assessment of the community-based service needs of DRC Constituents with input from the

18 Constituents themselves; ensuring the effective coordination and provision of existing

19 community-based services; expanding the capacity to provide needed intensive community-based

20 services; relocating services from institutions to community-based settings; outreach to and

21 engaging DRC Constituents in services; and maximizing federal, state, and local funding,

22 including through Medi-Cal.

23

149. Defendants could also redirect spending from segregated, institutional settings to

24 community-based programs. Publicly available records show that the average cost per John

25 George PES visit is $3,010. The average cost per day for a John George inpatient hospitalization

26 is $2,602, and a daily stay at Villa Fairmont costs close to $400 per day. For people with a

27 mental health disability who are chronically homeless, the average length of John George

28

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1 psychiatric hospitalization is more than eight (8) days, costing more than $20,000 in public

2 monies. At Villa Fairmont, the average stay of four (4) months costs $48,000.

3

150. In 2019, the County spent 30% of its entire mental health budget on about 800

4 individuals with the highest utilization of public mental health services in the County. Fully 70%

5 of those dollars were spent on institutional care at John George and Villa Fairmont and mental

6 health services in jail. Upon information and belief, it would cost the County far less to provide

7 these individuals, who are DRC Constituents, with community services—even the most intensive

8 and expensive community services available.

9

151. Ultimately, serving DRC Constituents in the least restrictive and most integrated

10 setting possible in the community is not only legally required and more humane, it is also

11 financially feasible.

12

CLAIMS FOR RELIEF

13

FIRST CLAIM FOR RELIEF

14

Violation of Title II of the ADA

Failure to Provide Services in the Most Integrated Setting Appropriate

15

42 U.S.C. §§ 12131 et seq., 28 C.F.R. § 35.130

16

152. Plaintiff repeats and incorporates by reference the preceding paragraphs of this

17 Complaint as if set forth in full herein.

18

153. DRC Constituents are qualified individuals with disabilities within the meaning

19 of Title II of the ADA and meet the essential eligibility requirements for the receipt of services,

20 programs, or activities of Defendants. 42 U.S.C. § 12131(2).

21

154. Defendant Alameda County, which includes Alameda County Behavioral Health

22 Care Services, is a public entity subject to Title II, 42 U.S.C. § 12131(1). Defendant Alameda

23 Health System, which was created by and is an instrumentality of Alameda County, is also a

24 public entity subject to Title II. Id.

25

155. Defendants violate the ADA, and its implementing regulations, including as

26 follows:

27

28

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1

a. By administering the County’s mental health system in a way that

2 subjects DRC Constituents to unnecessary institutionalization at a psychiatric hospital or other

3 institution, instead of providing them with services in the community. 42 U.S.C. § 12132.

4

b. By failing to administer services, programs, and activities in “the most

5 integrated setting” appropriate to the needs of DRC Constituents. 28 C.F.R. § 35.130(d).

6

c. By using criteria or methods of administration in Alameda County’s

7 mental health system that subject DRC Constituents to discrimination on the basis of their

8 disabilities. 28 C.F.R. § 35.130(b)(3).

9

d. By failing to make reasonable modifications to allow DRC Constituents

10 to participate in Defendants’ services, programs, and activities in an integrated community

11 setting.

12

156. Providing DRC Constituents with the community services they need to avoid

13 unnecessary institutionalization and segregation at a psychiatric hospital or other institution

14 would not fundamentally alter Defendants’ programs, services, or activities.

15

157. Plaintiff and DRC Constituents have suffered and will suffer injury as a

16 proximate result of Defendants’ violation of their rights under the ADA.

17

158. Plaintiff is entitled to declaratory relief, injunctive relief, attorneys’ fees, and

18 costs.

19

SECOND CLAIM FOR RELIEF

20

Violation of Section 504 of the Rehabilitation Act

Failure to Provide Services in the Most Integrated Setting Appropriate

21

29 U.S.C. § 794; 28 C.F.R. § 41.51; 45 C.F.R. § 84.4

22

159. Plaintiff repeats and incorporates by reference the preceding paragraphs of this

23 Complaint as if set forth in full herein.

24

160. DRC Constituents are qualified individuals with disabilities within the meaning

25 of Section 504 of the Rehabilitation Act. 29 U.S.C.§ 794(a).

26

161. Defendants are engaged in providing programs or activities receiving Federal

27 financial assistance sufficient to invoke the coverage of Section 504. Id. 28 § 794(b)(1) & (b)(3).

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1

162. Defendants violate Section 504, and its implementing regulations, including as

2 follows:

3

a.

By failing to administer services, programs, and activities in “the most

4 integrated setting” appropriate to the needs of the DRC Constituents. 28 C.F.R. § 41.51(d); 45

5 C.F.R. § 84.4(b)(2).

6

b.

By directly or through contractual or other arrangements using

7 methods of administering Alameda County’s mental health system that subject DRC Constituents

8 to discrimination on the basis of their disabilities. 28 C.F.R. § 41.51(b)(3); 45 C.F.R. §

9 84.4(b)(4)

10

163. Providing DRC Constituents with the community services they need to avoid

11 unnecessary institutionalization and segregation at a psychiatric hospital or other institution

12 would not fundamentally alter Defendants’ programs, services, or activities.

13

164. Plaintiff and DRC Constituents have suffered and will suffer injury as a

14 proximate result of Defendants’ violation of their rights under Section 504 of the Rehabilitation

15 Act.

16

165. Plaintiff is entitled to declaratory relief, injunctive relief, attorneys’ fees, and

17 costs.

18 THIRD CLAIM FOR RELIEF

19

Violation of California Government Code §§ 11135 and 11139

20

166. Plaintiff repeats and incorporates by reference the preceding paragraphs of this

21 Complaint as if set forth in full herein.

22

167. California Government Code sections 11135 and 11139 prohibit discrimination

23 against persons on the basis of physical or mental disability and other protected statuses in state-

24 run or state-funded programs and activities.

25

168. Defendants Alameda County, ACBHCS, and AHS are recipients of financial

26 assistance from the state of California under Government Code section 11135(a).

27

169. Defendants Alameda County and ACBHCS transfer part of their State support to

28 AHS as part of their contractual arrangement.

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1

170. California Government Code § 11135(b) incorporates the protections and

2 prohibitions contained in the ADA and its implementing regulations. Section 11135(b) states in

3 pertinent part, that:

4

With respect to discrimination on the basis of disability, programs and

activities subject to subdivision (a) shall meet the protections and prohibitions

5

contained in Section 202 of the Americans with Disabilities Act of 1990 (42

U.S.C. § 12132), and the federal rules and regulations adopted in

6

implementation thereof, except that if the laws of this state prescribe stronger

protections and prohibitions, the programs and activities subject to

7

subdivision (a) shall be subject to stronger protections and prohibitions.

8

171. Accordingly, Defendants’ failure to provide DRC Constituents with services in

9 the most integrated setting appropriate as alleged above, which violates the ADA, also violates

10 Section 11135.

11

172. In addition, Defendants’ policies and methods of administering Alameda

12 County’s mental health system—directly or through contractual or other arrangements, including

13 through the County and ACBHCS’ contract with AHS—subjects DRC Constituents to

14 unnecessary institutionalization and segregation at psychiatric hospitals and other institutions,

15 instead of providing them with services in the community. The County and ACBHCS are

16 therefore in violation of the regulations implementing Section 11135 by causing, aiding, or

17 perpetuating discrimination against DRC Constituents on the basis of mental disability through

18 the contractual arrangement with AHS. 2 Cal. Code Regs. § 11154(e).

19

173. For all the reasons outlined above, Defendants have violated and continue to

20 violate California Government Code § 11135 and 11139 through their non-compliance with the

21 statute and its implementing regulations. See 2 C.C.R. § 11154(i).

22

174. Plaintiff is entitled to declaratory relief, injunctive relief, attorneys’ fees, and

23 costs.

24

REQUEST FOR RELIEF

25 WHEREFORE, Plaintiff respectfully requests that the Court:

26

1.

Issue a declaratory judgment that Defendants are violating the ADA, Section

27 504 of the Rehabilitation Act, and California Government Code section 11135 by, inter alia:

28

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1

a. failing to provide DRC Constituents with services in the most integrated

2 setting and needlessly institutionalizing them in a psychiatric hospital or other institution or

3 putting them at serious risk of such institutionalization;

4

b. discriminating against DRC Constituents on the basis of disability by

5 utilizing methods of administration, adopting and applying policies, failing to make reasonable

6 modifications to programs and policies, and engaging in practices that result in unnecessary

7 segregation and institutionalization or subjecting them to risk of institutionalization;

8

2.

Enjoin Defendants, their successors in office, subordinates, agents, employees

9 and assigns, and all persons acting in concert with them from subjecting DRC Constituents to the

10 unlawful acts and omissions described herein, and issue an injunction sufficient to remedy these

11 violations;

12

3.

Order Defendants to take immediate action to reform their policies, procedures

13 and practices to fully comply with the ADA, Section 504, and California Government Code

14 section 11135. Under such order, Defendants must:

15

a. Cease the unnecessary institutionalization of DRC Constituents;

16

b. Provide intensive community-based mental health services to prevent

17 unnecessary institutionalization;

18

c. Ensure that these intensive community services are provided in a manner

19 that is culturally congruent and responsive which, among other things, will address the racial

20 disparities impacting Black DRC Constituents described herein.

21

4.

Retain jurisdiction of this case until Defendants have fully complied with the

22 orders of this Court and there is reasonable assurance that Defendants will continue to comply in

23 the future absent the Court’s continuing jurisdiction;

24

5.

Award Plaintiff reasonable attorneys’ fees, costs, expenses, and disbursements

25 as authorized by law; and

26

27

28

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1

6.

Grant further relief as the Court may deem just and proper.

2 Dated: July 30, 2020
3
4

Respectfully submitted, DISABILITY RIGHTS CALIFORNIA

5 /s/ Kimberly Swain

6

Kimberly Swain

7

8

GOLDSTEIN, BORGEN, DARDARIAN & HO

9 /s/ Andrew P. Lee

10

Andrew P. Lee

11

12

BAZELON CENTER FOR MENTAL HEALTH LAW

13

14

/s/ Ira A. Burnim

Ira A. Burnim 15

16

DISABILITY RIGHTS EDUCATION AND

17

DEFENSE FUND

18

/s/ Claudia Center

19

Claudia Center

20

Attorneys for Plaintiff

21

SIGNATURE ATTESTATION 22

In accordance with Civil Local Rule 5-1(i)(3), I attest that concurrence in the filing of this 23

document has been obtained from the signatories on this e-filed document. 24

Dated: July 30, 2020 25

/s/ Andrew P. Lee Andrew P. Lee

26

27

28

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Appendix A

Case 5:20-cv-05256 Document 1 Filed 07/30/20 Page 44 of 57

November 1, 2019

LEGAL ADVOCACY UNIT 1330 Broadway, Ste. 500 Oakland, CA 94612 Tel: (510) 267-1200 TTY: (800) 719-5798
Intake Line: (800) 776-5746 Fax: (510) 267-1201
www.disabilityrightsca.org
Via Email

Karyn L. Tribble, Director Alameda County Behavioral Health Care Services 2000 Embarcadero Cove, Suite 400 Oakland, CA 94606 Karyn.Tribble@acgov.org

Donna Ziegler Alameda County Counsel 1221 Oak Street, Suite 450 Oakland, CA 94612 Donna.Ziegler@acgov.org

Re: DRC Abuse/Neglect Investigation and Request for Information Alameda County’s Mental Health System

Dear Dr. Tribble and Ms. Ziegler,
Disability Rights California (“DRC”) has been investigating Alameda County’s (“the County”) mental health system pursuant to its authority as California’s protection and advocacy system for people with disabilities. In the last few months, DRC has visited numerous mental health facilities, including John George Psychiatric Hospital (“John George”), Villa Fairmont Mental Health Rehabilitation Center (“Villa Fairmont”), Jay Mahler Recovery Center, Woodroe Place, Casa de la Vida, Bonita House, and Cronin House, among others. DRC also visited additional facilities that detain, house, or serve a high number of Alameda County residents with mental health disabilities, including Santa Rita Jail, the Henry Robinson Center, and the South County Homeless Project.1 This letter summarizes our initial findings.

1 DRC has designated Goldstein Borgen Dardarian & Ho, the Bazelon Center for Mental Health Law, and Disability Rights Education and Defense Fund as its authorized agents for purposes of its investigation. 42 C.F.R. § 51.42(a).

Case 5:20-cv-05256 Document 1 Filed 07/30/20 Page 45 of 57
DRC Investigation, Alameda County Mental Health System November 1, 2019 Page 2 of 14
Based on our investigation, including facility visits and interviews with patients and providers, we have concluded that there is probable cause to find that abuse and/or neglect of people with disabilities has or may have occurred, as those terms are defined in our authorizing statutes and regulations. Accordingly, consistent with DRC’s statutory access authority, we are requesting the production of additional information and documents, as identified in Attachment A at the end of this letter.2
As our investigation continues, we propose meeting with you – along with other important stakeholders, including Alameda Health System – to discuss our findings of systemic deficiencies that amount to violations of federal and state law and that put people with mental health disabilities at serious risk of harm. It is our intention to ensure effective, durable remedial measures to address these issues with you in an efficient and cooperative manner. Please let us know if and when you are available for such a meeting.
I. Definition of Probable Cause
Disability Rights California is the protection and advocacy system for the State of California, with authority to investigate facilities and programs providing services to people with disabilities under the Developmental Disabilities Assistance and Bill of Rights (“PADD”) Act,3 the Protection and Advocacy for Individuals with Mental Illness (“PAIMI”) Act,4 and the Protection and Advocacy for Individual Rights (“PAIR”) Act.5 The patients and clients we interviewed fall under the federal protections of the PADD Act and/or the PAIMI Act, and their implementing regulations.
Under the PAIMI Act, probable cause means “reasonable grounds for belief that an individual with mental illness has been, or may be at significant risk of being subject to abuse or neglect.” DRC may make a probable cause determination based “on reasonable inferences drawn from [its] experience or training regarding similar incidents, conditions or problems that are usually associated with abuse or neglect.”6
2 Welf. & Inst. Code § 4903. 3 42 U.S.C. § 15041, et seq., as amended, 45 C.F.R. § 1386. 4 42 U.S.C. § 10801, et seq., as amended, 42 C.F.R. § 51. 5 29 U.S.C. § 794e; Welf. & Inst. Code § 4900, et seq. 6 42 C.F.R. § 51.2.

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“Abuse” is defined as “any act or failure to act by an employee of a facility rendering care or treatment which was performed, or which was failed to be performed, knowingly, recklessly, or intentionally, and which caused, or may have caused, injury or death to an individual with mental illness.”7 It also includes “any other practice which is likely to cause immediate harm if such practices continue.”8 Additionally, “the P&A may determine[] in its discretion that a violation of an individual's legal rights amounts to abuse.”9
“Neglect” is defined as any “negligent act or omission by an individual responsible for providing services in a facility rendering care or treatment which caused or may have caused injury or death to an individual with mental illness or which placed an individual with mental illness at risk of injury or death.” Neglect may include a failure to “establish or carry out an appropriate individual program or treatment plan (including a discharge plan),” “provide adequate nutrition, clothing, or health care”; or “provide a safe environment” with adequate numbers of appropriately trained staff.10
II. Key Initial Findings
We have found probable cause that abuse and/or neglect of people with disabilities has or may have occurred based on the County’s failure to provide people with mental health disabilities: (1) appropriate services and supports in the most integrated setting appropriate, consistent with the goals of treatment and recovery; and (2) adequate treatment, conditions, and discharge planning at the County’s institutions (psychiatric hospital, IMDs, and jail).
Alameda Health System plays a notable role in this discussion, with respect to the conditions people with disabilities face at John George as well as the deficiencies in treatment and discharge planning.
Similarly, Alameda County’s jail system, which consistently incarcerates a disproportionately high population of people with mental health disabilities, plays a consequential role in the issues we have
7 42 C.F.R. § 51.2. 8 45 C.F.R. § 1326.19. 9 Id. 10 42 C.F.R. § 51.2.

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identified. We are aware that people with mental health disabilities held in jail face dangerous and damaging isolation conditions and inadequate access to programming or meaningful mental health treatment (including discharge planning), deficiencies that are the subject of current federal litigation. Babu v. County of Alameda, Case No. 4:18-cv-07677 (N.D. Cal). We have learned that people with mental health disabilities regularly cycle in and out of both the County’s psychiatric institutions and the jail system.

A.

Failure to Provide Appropriate Services in the Most

Integrated Setting

People with mental health disabilities have a right to access treatment and services in the most integrated setting appropriate.11 Needless
segregation in institutions perpetuates unfounded assumptions that people
with disabilities are incapable or unworthy of participating in society. In addition, it deprives them of benefits and opportunities of community life.12

Recent data shows that Alameda County involuntarily commits the highest number of adults with serious mental illness of any county in California. Its involuntary detention rate is more than three-and-a-half times the statewide average.13

We found that people with serious mental illness in Alameda County experience, or are at risk of experiencing, unnecessary institutionalization on a broad and systemic scale, in ways that are harmful and injurious to their health and well-being, thus constituting a ground for a finding of probable cause of abuse and/or neglect.

11 Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12134, Section 504 of the Rehabilitation Act (“the Rehabilitation Act”), 29 U.S.C. §§ 794 et seq., 28 C.F.R. § 41.51(d); 28 C.F.R. § 35.130(d) (1991); and Gov’t Code §§ 11135-11139. 12 Olmstead v. L.C., 527 U.S. 581, 600-01 (1999). 13 See California Involuntary Detentions Data Report, FY 2016/2017, http://www.dhcs.ca.gov/services/MH/Documents/FY1617_InvolunDetenRep_12pt.pdf (Alameda County’s 72-hour involuntary detention rate is 162.5 per 10,000 people, in contrast to the statewide average of 46.0, and that its 14-day intensive treatment rate is 46.6 per 10,000 people, in contrast to the statewide average of 13.1).

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1. Harmful and Needless Institutionalization in John George’s Psychiatric Emergency Services Unit
John George’s Psychiatric Emergency Services (PES) unit is the primary facility providing services for adult Alameda County residents in psychiatric crisis. The PES is experiencing record high numbers of crisis visits—more than 1,100 visits per month. The number of people experiencing a psychiatric crisis regularly exceeds John George’s capacity to treat such patients safely.
During our recent monitoring visits, we observed that individuals at John George’s PES unit regularly wait 24 hours or more to receive an evaluation or any treatment. Our analysis of available data found that scores of people have been held for 70 hours or longer in 2019 alone, including at least one person who remained in the PES unit for eight days.
We observed individuals crowded into a single room awaiting evaluation and treatment. While waiting, patients compete for places to sit and lie down—including on the floor and in the hallways. On our recent tour, the census in the PES had reached 60 patients, far above the number of people it is designed and equipped to serve (resulting in a “census hold,” discussed below).
Subjecting Alameda County residents to these counter-therapeutic conditions is particularly disconcerting given the County’s own estimate that more than 75% of those placed on involuntary psychiatric holds—almost 10,000 people per year—do “not meet medical necessity criteria for inpatient acute psychiatric services.”14
John George periodically institutes “census holds,” which means that, in the troubling yet common situation where demand outpaces the facility’s resources, John George must cut off admissions of patients from local emergency departments and inpatient units, regardless of their need for acute psychiatric evaluation and treatment.
14 See, e.g., Alameda County Project Summary, Community Assessment and Transport Team (Apr. 13, 2018), https://mhsoac.ca.gov/sites/default/files/documents/201810/Alameda_INN%20Project%20Plan_Community%20Assessment%20and%20 Transport%20Team_8.6.2018_Final.pdf.

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Given these circumstances, people with serious mental illness face enormous risks, both of being confined unnecessarily in countertherapeutic institutions and of being denied needed acute care.
These problems are compounded by systemic deficiencies that drive cycling in and out of John George for many people. The County itself has recognized that, upon discharge from PES, the majority of patients are “not linked to planned services and continue to over-use emergency services.”15 For example, we spoke with a patient who spent well over 24 hours in the PES and had multiple previous PES admissions. He reported that he is generally provided with little or no support at discharge (other than a nonindividualized list of resources), and we confirmed that he would soon be discharged again without adequate discharge planning.
2. Harmful and Needless Institutionalization in John George’s Inpatient Units
We learned through the course of our monitoring that the average daily census and average length of stay in John George’s inpatient units is on the rise in recent years. The inpatient units are on pace to have over 5,000 patient visits in 2019. These units are segregated, institutional settings that allow little autonomy and are defined by rigid rules and monitoring.
All too often, patients are subjected to extended stays beyond what is clinically necessary due to a lack of sufficient community mental health resources, housing support, and/or programs that can meet patients’ needs. These extended “administrative” stays can last several days or more, costing millions of dollars and harming patients through unnecessary institutionalization.
3. Harmful and Needless Institutionalization in Institutes for Mental Diseases
ACBHCS contracts with the Telecare Corporation to operate three mental health facilities that collectively hold almost 200 people with mental illness on a given day: (1) Villa Fairmont Mental Health Rehabilitation
15 Alameda County Project Summary, Community Assessment and Transport Team (Apr. 13, 2018), https://mhsoac.ca.gov/sites/default/files/documents/201810/Alameda_INN%20Project%20Plan_Community%20Assessment%20and%20 Transport%20Team_8.6.2018_Final.pdf.

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Center, (2) Gladman Mental Health Rehabilitation Center, and (3) Morton Bakar Center. These facilities are large, congregate, institutional settings populated by individuals with mental health disabilities. Individuals confined to these psychiatric institutions, especially Villa Fairmont, regularly remain institutionalized for weeks beyond what is clinically necessary due to the shortage of appropriate community options.
For example, we understand that, at Villa Fairmont, people are often held longer than clinically indicated due to the lack of appropriate residential and supportive services in the community. One patient at Villa Fairmont who was clinically ready for discharge faced an extremely lengthy delay in discharging from the institution due to the lack of a program to support his diabetes care needs. We also learned of incidents where people identified as appropriate for the community-based Casa de la Vida program waited weeks in Villa Fairmont, and even in Santa Rita Jail, for a spot to become available.
4. Lack of Community-Based Mental Health Services and Permanent Supported Housing
DRC found that, even with the recent implementation of some community programs (including the new crisis intervention services16), the need for community-based mental health treatment in Alameda County greatly outpaces the County’s current capacity to provide such services. Indeed, providers at virtually every facility we visited spoke about how the lack of sufficient community-based mental health services and inadequate housing options create significant barriers to providing Alameda County residents with long-term safe environments and opportunities for recovery.
While the lack of community-based mental health services is extensive, a few key deficiencies raised repeatedly by mental health providers and Alameda County residents include not only the limited crisis intervention services but also: (1) failure to link high needs individuals to
16 We are encouraged to see the recent implementation of programs designed to address the historical service deficit in the area of crisis intervention, including this year’s rollout of the Community Assessment and Transport Team (CATT) program and the recent opening of Amber House’s crisis stabilization unit and crisis residential treatment program. These programs are essential, and will almost certainly require significant expansion in order to meet the needs of the County’s mental health services consumer population.

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Full Service Partnerships; (2) lack of housing, especially permanent supported housing; and (3) lack of integrated services.
We learned of people with mental health disabilities discharging from residential treatment programs to inadequate housing or homelessness, and without essential services and support to avoid further incident of psychiatric decompensation and institutionalization. We discovered waitlists for housing and other services of six months or more.
The scarcity of community-based mental health resources in Alameda County is especially acute for individuals who have both mental health and other co-occurring needs. For instance, there is insufficient service capacity for people with a dual diagnosis of mental illness and substance use. The primary provider of this service, Bonita House, has capacity to serve just fifteen people. Patients must be ambulatory. This means that individuals who have dual-diagnoses and need such services are often left without timely access to such services.
Likewise, patients with co-occurring disabilities and health conditions experience a shortage of treatment and housing options, as noted above.
These systemic deficiencies are dangerous and damaging in multiple ways: first, they prolong unnecessary institutionalization in restrictive facilities; and second, they place at serious risk patients who have mental health disabilities combined with other disability and/or treatment needs that are not adequately addressed. Indeed, a high number of chronically homeless individuals report living with multiple disabling conditions, including not just psychiatric disorders but also intellectual and developmental disabilities, chronic health problems, physical disabilities, and/or substance abuse disorders. The situation also serves to stigmatize members of the population that ACBHS serves who are already marginalized and at elevated risk.
* * *
Alameda County’s harmful and needless institutionalization of large numbers of its residents with serious mental illness puts people at serious risk of harm, at times with life-threatening consequences. The County’s failure to provide services in the most integrated setting possible—through community services and supports—also violates Alameda County residents’ federal and state rights. The ADA, the Rehabilitation Act, and the federal Medicaid Act, as well as related state law, prohibit

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discrimination against persons with disabilities, which includes unnecessary segregation in institutions like psychiatric hospitals and other locked facilities.

B.

Inadequate Discharge and Other Treatment Plans

Alameda County’s system of discharge planning for people returning to the community from institutions is inadequate; the County maintains no effective practice for ensuring that individuals are discharged to appropriate settings with adequate services and supports to prevent reinstitutionalization. This deficiency constitutes “neglect” under the law, which is defined, inter alia, as a failure to “establish or carry out an appropriate individual program or treatment plan (including a discharge plan).”17

During our monitoring visits, we observed significant deficiencies related to discharge planning, and a lack of adequate coordination between facilities and community-based service providers. We learned that many individuals are discharged to dangerous situations without adequate linkages to essential mental health care and related supports. The discharge plans for people with mental health disabilities at John George, IMDs, and Santa Rita Jail are frequently boilerplate and disconnected from a person’s individualized needs as they prepare to return to the community.

Due to inadequate treatment and discharge plans, Alameda County residents with mental health disabilities end up experiencing repeated placements at John George or other locked psychiatric facilities. We are aware of many patients with mental health disabilities who have been repeatedly admitted to John George. Public documents show that approximately 2,300 John George PES visits each year consist of “high utilizers” of care (defined by AHS as people with at least four PES visits in a twelve-month period).18 Data recently provided by AHS also reveals that more than 250 people have had four or more John George inpatient admissions since 2016. Nearly half of this group identifies as Black or

17 42 C.F.R. § 51.2 (emphasis added); see also Welf. & Inst. Code § 4900(g)(3). 18 Rebecca Gebhart & Karyn Tribble, John George Pavilion, Capacity Issues: Causes and Potential Solutions at 6 (July 11, 2016), http://www.acgov.org/board/bos_calendar/documents/DocsAgendaReg_7_11_16 /HEALTH%20CARE%20SERVICES/Regular%20Calendar/John_George_Pavilio n_Psych_services_Health_7_11_16.pdf.

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African-American, a striking and disproportionately high number. One person estimated that he had been held at John George more than 150 times.
We are also concerned about these same individuals cycling unnecessarily between locked psychiatric facilities, jail, and homelessness. It is notable and disturbing that an estimated 25% of the County’s jail population and one-third of the County’s homeless population has serious mental illness.
Alameda County also lacks an adequate system for assessing, placing, and tracking its mental health patients, which compounds the problems that DRC observed related to discharge planning. The system is comprised of various different providers and lacks an effective method for tracking each patient’s evaluations, referrals, treatment, and progress.
Deficiencies in the County’s coordination between the County’s jail system and Alameda County Behavioral Health Care Services plays a role here as well. We observed deficiencies in the provision of discharge/reentry planning and services for people with mental health disabilities being released from Santa Rita Jail. These deficiencies expose this group to significant risks of re-institutionalization, homelessness, and a range of physical and psychological harms.
As one federal court recently noted, the recurring cycle of institutionalization, without adequate community‐based services to stop it, is “the hallmark of a failed system.”19
III. Next Steps
Given these initial findings, we plan to proceed with our investigation, including reviewing additional relevant documents and information.
Because DRC has found probable cause to believe that abuse and/or neglect has occurred, we are entitled to access and examine all relevant
19 United States of America v. State of Mississippi, --- F.Supp.3d ----, 2019 WL 4179997, *7, No. 3:16‐CV‐622‐CWR‐FKB (S.D. Miss. Sept. 3, 2019).

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records.20 We are also entitled to lists of names of individuals receiving services from the County’s mental health system.21
While DRC has broad discretion and independence in determining how to best gain access to individuals, facilities, and records, we have a statutory duty to maintain the confidentiality of any records obtained in the course of an investigation.22 The access authority and confidentiality requirements that apply to DRC apply equally to its authorized agents.
DRC’s statutory access authority directs that it shall have access to such records “relevant to conducting an investigation . . . not later than three business days after the agency makes a written request.”23
We request that the County provide the records and information requested in Attachment A no later than November 22, 2019.
IV. Conclusion
If you have any questions regarding our initial findings or our request for documents and information, please feel free to contact us.
20 42 C.F.R. § 51.41(d); Welf. & Inst. Code § 4902(a)(1); Welf. & Inst. Code § 4903(a). 21 DRC’s access comes with Congress’ intent that protection and advocacy systems have extensive investigative authority to “ensure that PAIMI’s mandates can be effectively pursued.” Ala. Disabilities Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492, 497 (11th Cir.1996). Courts have found this to mean that following the requisite probable cause finding that neglect and abuse occurs within a facility charged with caring for individuals with a mental illness, authorized agencies, like DRC, may access a list names of individuals at the facility or involved in a specific program at the facility. Connecticut Office of Prot. & Advocacy for Persons With Disabilities v. Hartford Bd. of Educ., 464 F.3d 229, 244-45 (2d Cir. 2006); Penn. Prot. & Advocacy, Inc. v. Royer-Greaves Sch. for the Blind, 1999 WL 179797 (E.D. Pa 1999). 22 42 U.S.C. §§ 10805, 10806; see also Welf. & Inst. Code § 4903(f). 23 Welf. & Inst. Code § 4903(e)(1).

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We also look forward to having the opportunity to sit down and speak with you about next steps toward achieving an effective, durable remedy to the issues we have identified. Please let us know when you are available for such a meeting.
Thank you for your ongoing cooperation and courtesy.
Sincerely, /s/ Kim Swain Kim Swain Disability Rights California
/s/ Andrew P. Lee
Andrew P. Lee Goldstein Borgen Dardarian & Ho
/s/ Jennifer Mathis
Jennifer Mathis Bazelon Center for Mental Health Law
/s/ Namita Gupta
Namita Gupta Disability Rights Education & Defense Fund
Cc: David Abella, Alameda Health System [dabella@alamedahealthsystem.org]
Encl: Attachment A-DRC Requests for Records and Information

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Attachment A
DRC REQUESTS FOR RECORDS AND INFORMATION
Pursuant to its access authority, DRC requests the documents and information described below no later than November 22, 2019.
DRC reserves the right to follow up with additional document and information requests.
A. List of all individuals, including their respective current commitment status, length of stay, and contact information, currently (i.e., as of date of response) receiving treatment at: (1) John George Psychiatric Hospital, (2) Villa Fairmont, (3) Gladman, and (4) Morton Bakar.
B. List of all individuals, including contact information, who visited John George’s PES unit more than three times since January 1, 2018, including documentation of how many times they visited John George’s PES and/or inpatient unit, the dates and lengths of stay for each visit, the setting to which each person was discharged, and any discharge plans provided.
C. List of all individuals, including contact information, who were admitted to John George’s inpatient unit two or more times since January 1, 2018, including documentation of how many times they visited John George’s inpatient unit, the dates and lengths of stay for each visit, the setting to which each person was discharged, and any discharge plans provided.
D. List of all individuals, including contact information, who stayed at Villa Fairmont, Morton Bakar, and/or Gladman two or more times since January 1, 2018, including documentation of how many times they visited these facilities, the dates and lengths of stay for each visit, the setting to which each person was discharged, and any discharge plans provided.
E. List of all individuals, including contact information, who have within the past two years received treatment at: (1) John George Psychiatric Hospital, (2) Villa Fairmont, (3) Gladman, or (4) Morton Bakar, AND had a co-occurring disorder or chronic condition, such as a substance abuse disorder, a physical disability, or a chronic condition, with the dates and lengths of stay for each visit, the setting to which each person was discharged, and any discharge plans provided.

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F. List of all individuals, including contact information, who have a serious mental illness and have been discharged to a homeless shelter following a visit/admission at John George.
G. List of all individuals, including contact information, who have used crisis or emergency services for psychiatric reasons two or more times within the past two years.
H. List of all individuals, including contact information, who were booked at Santa Rita Jail within 60 days or less of discharge from John George’s inpatient or PES units, Villa Fairmont, Gladman, or Morton Bakar since January 1, 2018.
I. List of all individuals, including contact information, who were admitted to John George’s inpatient or PES units within 60 days or less of release from Santa Rita Jail since January 1, 2018.
J. The MHS-140 Client Information Face Sheet(s) for each person on any of lists produced in response to any of the aforementioned Requests.
K. The County’s definition of a “high utilizer” of mental health services, and any policies or procedures that correspond with special treatment or care provided to such high utilizers.
L. Any and all policies and training materials regarding referrals to Full Service Partnerships.
M. The criteria that ACCESS uses to determine eligibility for a Full Service Partnership.
N. Any and all policies and training materials regarding discharge plans from John George’s PES, John George’s inpatient units, Villa Fairmont, Gladman, Morton Bakar, and Santa Rita Jail.

 
 Case 3:20-cv-05256-CRB Document 50 Filed 01/21/21 Page 1 of 20

United States District Court Northern District of California

1

2

3

4

5

IN THE UNITED STATES DISTRICT COURT

6

FOR THE NORTHERN DISTRICT OF CALIFORNIA

7

8 DISABILITY RIGHTS CALIFORNIA,

Case No. 20-cv-05256-CRB

9

Plaintiff,

10

v.

11 COUNTY OF ALAMEDA, et al.,

ORDER GRANTING MOTIONS TO DISMISS AND DENYING MOTION TO STRIKE

12

Defendants.

13

Disability Rights California (DRC) is suing the County of Alameda (the County),

14 Alameda County Behavioral Health Care Services (ACBHCS), and Alameda Health

15 System (AHS) for alleged violations of the Americans with Disabilities Act, the

16 Rehabilitation Act, and California disability law. DRC alleges that Defendants subject

17 Alameda residents to unnecessary institutionalization and an unnecessary risk of

18 institutionalization by failing to provide sufficient community-based treatment programs

19 and other services that would reduce institutionalization in the County.

20

AHS has moved to dismiss DRC’s claims for lack of standing and for failure to

21 state a claim for which relief may be granted. Separately, the County and ACBHCS

22 (collectively, the County Defendants) have moved to dismiss DRC’s claims for lack of

23 standing and for failure to state a claim for which relief may be granted.

24

Although the Court concludes that DRC has standing, the Court grants Defendants’

25 motions to dismiss with leave to amend because DRC has not stated a claim against AHS,

26 the County, or ACBHCS for which relief may be granted. The Court determines that there

27 is no need for oral argument.

28

United States District Court Northern District of California

Case 3:20-cv-05256-CRB Document 50 Filed 01/21/21 Page 2 of 20
I. BACKGROUND 1
The Protection and Advocacy for Individuals with Mental Illness Act (PAIMI)’s 2
express statutory purpose is, in part, “to assist States to establish and operate a protection 3
and advocacy system for individuals with mental illness.” 42 U.S.C. § 10801(b)(2). A 4
Protection & Advocacy system established under PAIMI has authority to “pursue 5
administrative, legal, and other remedies” on behalf of state residents with mental 6
illnesses. Id. § 10805(a)(1)(C). California has designated DRC to serve as California’s 7
Protection & Advocacy system for people in California with disabilities. Id. ¶ 19. DRC 8
refers to California residents for whom it advocates as “Constituents.” Id. ¶ 23. 9
On July 30, 2020, DRC brought this action against the County, ACBHCS, and 10
AHS. Complaint (dkt. 1) ¶ 1. ACBHCS is a County entity that implements the County’s 11
mental health system and provides mental health services to County residents. Id. ¶¶ 51, 12
66. AHS owns and operates John George Psychiatric Hospital (John George), where it 13
provides inpatient care under a contract with ACBHCS, but not Villa Fairmont Mental 14
Health Rehabilitation Center (Villa Fairmont), another County psychiatric institution 15
located on the same “campus” as John George. Id. ¶¶ 3, 6, 52, 66, 107. 16
A. General Allegations 17
DRC opened an investigation into the County’s institutionalization practices in 18
2018. Id. ¶ 69. The investigation involved touring mental health facilities, Santa Rita Jail, 19
and various homeless shelters and interviewing their residents. Id. On November 1, 2019, 20
DRC “found probable cause to believe” that the County had abused and neglected DRC 21
Constituents based on Defendants’ failure to provide “needed services and support in the 22
most integrated setting appropriate.” Id. ¶ 70. Here, the relevant DRC Constituents are 23
“adult Alameda County residents” who “have a serious mental health disability” and 24
whom DRC alleges “are unnecessarily segregated in the County’s psychiatric institutions 25
or are at serious risk of being needlessly segregated into these institutions.” Id. ¶¶ 23–24. 26
DRC has listed several individual Constituents as exemplars. Id. ¶ 28. 27
In general, DRC alleges that “Defendants have not provided sufficient intensive 28
2

Case 3:20-cv-05256-CRB Document 50 Filed 01/21/21 Page 3 of 20

United States District Court Northern District of California

1 community-based mental health services to DRC Constituents, and are causing them,

2 particularly black DRC Constituents, to be unnecessarily segregated in costly, publicly

3 funded institutions, often repeatedly.” Id. ¶ 71. DRC alleges that Defendants’ practices

4 violate federal and state laws prohibiting unnecessary institutionalization, and that

5 Defendants can reasonably accommodate providing expanded “community-based” or 6 “integrated” services. Id. ¶¶ 54–63.1

7

Based on these general allegations, DRC seeks a declaratory judgment that

8 Defendants are violating the Americans with Disabilities Act (ADA), the Rehabilitation

9 Act, and California Government Code sections 11135 and 11139. Id. at 38–39. DRC also

10 seeks an injunction requiring Defendants to comply with these laws. Id. at 39.

11

B. Specific Allegations

12

1. Unnecessary Institutionalization

13

DRC alleges that Defendants “unnecessarily segregate DRC Constituents into

14 psychiatric institutions.” Id. at 17. Under California law, if County staff state that they

15 have reason to believe that a person is gravely disabled or a danger to themselves or others

16 due to a mental health disability, the County can detain the person for 72 hours. Id. ¶ 72

17 (citing Cal. Welf. & Inst. Code § 5150(a)). DRC alleges that the County detains more

18 individuals than any other county in California, at more than triple the statewide rate. Id.

19 ¶ 73. As DRC puts it, “[b]ecause Defendants’ community-based services are insufficiently

20 available, the County detains vast numbers of DRC Constituents in crisis at John George,

21 the designated public hospital authority . . . . The psychiatric hospital is large, crowded,

22 and physically isolated from community life.” Id. ¶¶ 74–75.

23

Part of the alleged unnecessary institutionalization takes place in John George’s

24

25 1 DRC alleges that “Defendants’ practices place DRC constituents at especially grave risk from the

26

COVID-19 pandemic” because, although they have initiated social distancing protocols, “there remains a significant risk of Covid-19 infection spreading through” Defendants’ facilities.

27

Complaint ¶¶ 141, 143. “Given the grave risk of infection for DRC Constituents who cycle between jail, John George, Villa Fairmont, and homelessness, DRC constituents need intensive

28 community-based mental health services now more than ever.” Id. ¶ 146.

3

Case 3:20-cv-05256-CRB Document 50 Filed 01/21/21 Page 4 of 20

United States District Court Northern District of California

1 Psychiatric Emergency Services (PES) unit. Plaintiffs allege that the County detains

2 “nearly 1,000 people at John George’s PES unit every month,” that 36% of those detained

3 are black, that black men are 30% more likely to be detained after a mental health crisis

4 call, and that “[a]ccording to the County’s own estimates, more than 75% of those detained

5 in PES do not meet medical necessity criteria for inpatient psychiatric services.” Id.

6 ¶¶ 77–79. At PES, detainees are locked in a 35x45 foot “filthy” room, “where they must

7 compete for places to sit, lie, or stand.” Id. at ¶ 80. These conditions “often exacerbate

8 rather than alleviate people’s mental health symptoms.” Id. “Many DRC Constituents

9 spend fewer than twenty-four hours at the PES” before being released or transferred to one

10 of John George’s inpatient units or another facility, “but a significant number remain for

11 multiple days,” and some stay “for more than a week.” Id. ¶ 81. Because most are

12 released “without adequate intensive community-based services in place,” repeated “re-

13 institutionalization” is common. Id. ¶ 82.

14

Additional alleged unnecessary institutionalization takes place in John George’s

15 inpatient units. Id. at 19. About 25% of people brought to PEC are admitted to these units,

16 which are “highly institutional settings” with “locked wards” that are “monitored

17 continuously” and subject to “rigid rules.” Id. ¶ 83. DRC alleges that Defendants

18 “needlessly extend” institutionalization in these inpatient units without medical

19 justification “due to the lack of available community-based services,” which also

20 contributes to “re-institutionalization.” Id. ¶ 85.

21

Other alleged unnecessary institutionalization takes place in Villa Fairmont’s sub-

22 acute units. Id. at 19. Many people are discharged from John George’s inpatient units into

23 Villa Fairmont’s “locked” facility that is “similar in many ways to John George.” Id.

24 ¶¶ 86–87. DRC alleges that “due to a lack of intensive community services, the County

25 Defendants often keep people at Villa Fairmont “beyond the time the staff deems

26 appropriate.” Id. ¶ 88.

27

2. Risk of Unnecessary Institutionalization

28

DRC also alleges that its Constituents “are at serious risk of repeated cycles of

4

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1 unnecessary institutionalization.” Id. ¶ 89. DRC alleges that from January 2018 to

2 January 2020, over 350 DRC Constituents were detained in PES over ten times, that 84 of

3 these people were detained 25 times or more, and that six people were detained more than

4 85 times. Id. ¶ 90. A disproportionate number of repeat detainees were black. Id. And

5 “[r]epeat admissions to John George’s inpatient units and to sub-acute facilities such as

6 Villa Fairmont are also common.” Id. ¶ 91.

7

DRC alleges that this “high rate of re-institutionalization is directly related to

8 Defendants’ failure to provide DRC Constituents with needed intensive community-based

9 services upon discharge from” the relevant facilities. Id. ¶ 92. First, DRC alleges that

10 Constituents “without stable housing” are at “serious risk” of unnecessary

11 institutionalization. Id. at 21. And DRC alleges that Defendants “frequently discharge”

12 DRC Constituents “to homelessness, which itself “aggravates the effects of mental health

13 disabilities” and increases the “risk of re-institutionalization.” Id. ¶¶ 95, 97–98. Second,

14 DRC alleges that Constituents who “have been incarcerated” or had “other involvement

15 with the criminal system” are at “serious risk” of unnecessary institutionalization. Id. at

16 22. “Hundreds” of Constituents “discharged from John George end up in jail shortly after

17 their release, and the County “is aware that many DRC Constituents are arrested and

18 detained . . . for behaviors relating to their mental health condition[s].” Id. ¶¶ 103–104.

19 “If needed intensive community services were available, many of these individuals would

20 be able to avoid incarceration.” Id. ¶ 104.

21

3. Failure to Provide Specific Community-Based Services

22

DRC alleges that Defendants do not provide certain community-based

23 services that would reduce unnecessary institutionalization. Id. at 24. Although its

24 Constituents “are qualified to receive mental health services in the community, in settings

25 far more integrated” than the relevant facilities, DRC alleges that

26

[t]he County and ACBHCS fail to provide DRC Constituents with the

27

community services they need, including Full Service Partnerships and/or

comparable intensive services and supported housing. Some DRC

28

Constituents receive some of the services they need some of the time.

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1

However, Defendants deny a vast number of DRC Constituents the intensive community services they need to avoid institutionalization . . . or detention in

2

jail.

3 Id. ¶ 112 (emphasis in original).

4 DRC alleges that these failures on the part of the County Defendants are

5 “compounded” by AHS’s “failure to develop individualized treatment and discharge plans,

6 to ensure their timely and effective implementation, and to coordinate with the County,

7 ACBHCS, and community-based service providers.” Id. ¶ 131. DRC alleges that under its

8 contract with ACBHCS, AHS is responsible for facilitating patients’ return to less

9 restrictive treatment in the community, communicating with community service providers

10 to improve treatment and discharge planning, collaborating with ACBHCS on care plans

11 for patients needing special attention, and helping ACBHCS to assess problems and

12 recommend changes related to various services. Id. ¶ 133. DRC alleges that AHS does

13 not “adequately consult” with community providers, ACBHCS case managers, physicians,

14 and other relevant persons regarding the treatment and discharge of patients, and that AHS

15 fails to develop individualized treatment and discharge plans. Id. ¶¶ 134–135.

16 4. Reasonable Modifications

17

Finally, DRC alleges that “with reasonable modifications to [the] County’s mental

18 health system, Defendants would be able to meet DRC Constituents’ services needs and

19 prevent their unnecessary institutionalization.” Id. ¶ 148. DRC says such modifications

20 would include:

21

Conducting a systemwide assessment of the community-based needs of DRC

22

Constituents with input from the Constituents themselves; ensuring the

23

effective coordination and provision of existing community-based services;

expanding the capacity to provide needed intensive community-based

24

services; relocating services from institutions to community-based settings;

25

outreach to and engaging DRC constituents in services; and maximizing federal, state, and local funding, including through Medi-Cal.

26 Id. DRC alleges that Defendants could accomplish these changes by redirecting spending

27 from segregated and institutional programs to community-based ones. Id. ¶ 149.

28

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C. Claims for Relief 1
Based on these allegations, DRC asserts three claims for relief. First, DRC asserts
2 that Defendants have violated Title II of the ADA by failing to provide services in the most
3 integrated setting appropriate. Id. at 35 (citing 42 U.S.C. §§ 12131 et seq; 28 C.F.R.
4 § 35.130).2 Second, DRC asserts that Defendants have violated § 504 of the Rehabilitation
5 Act by failing to provide services in the most integrated setting appropriate. Id. at 36
6 (citing 29 U.S.C. § 794; 28 C.F.R. § 41.51; 45 C.F.R. § 84.4). Third, DRC asserts that
7 Defendants have violated California Government Code sections 11135 and 11139 by
8 discriminating against persons based on physical or mental disability in state-run or state-
9 funded programs and activities. Id. ¶ 167.
10 DRC requests that the Court (1) issue a declaratory judgment that defendants are
11 violating these statutes, (2) enjoin Defendants from “subjecting DRC Constituents to the
12 unlawful acts” alleged, and (3) order Defendants to “take immediate action to reform their
13 policies, procedures, and practices to fully comply with” the statutes. Id. at 38–39 ¶¶ 1–3.
14 DRC asks the Court to order Defendants to
15

16

a. Cease the unnecessary institutionalization of DRC Constituents; b. Provide intensive community-based mental health services to prevent

17

unnecessary institutionalization; [and]

c. Ensure that these intensive community services are provided in a manner

18

that is culturally congruent and responsive which, among other things,

19

will address the racial disparities [described in the complaint].

20 Id. at 39 ¶ 3. 21

22 2 DRC states that Defendants violate the ADA

23

(a) by administering the County’s mental health system in a way that subjects DRC Constituents to unnecessary institutionalization . . . instead of providing them with

24

services in the community. 42 U.S.C. § 12132; (b) by failing to administer services, programs, and activities in “the most integrated

25

setting” appropriate to the needs of DRC Constituents. 28 C.F.R. § 35.130(d); (c) by using criteria or methods of administration in [the] County’s mental health

26

system that subject DRC Constituents to discrimination on the basis of their disabilities. 28 C.F.R. § 35.130(b)(3); [and]

27

(d) by failing to make reasonable modifications to allow DRC Constituents to participate in Defendants’ services, programs, and activities in an integrated

28 Id. ¶ 155.

community setting.

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1

Defendants have moved to dismiss DRC’s claims for lack of standing and for

2 failure to state a claim for which relief may be granted. See AHS Mot. to Dismiss (dkt.

3 17); County Mot. to Dismiss (dkt. 39).

4 II. LEGAL STANDARD

5

“The doctrine of standing limits federal judicial power.” Or. Advocacy Ctr. v.

6 Mink, 332 F.3d 1101, 1108 (9th Cir. 2003). Plaintiffs must have standing to be “entitled to

7 have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin,

8 422 U.S. 490, 498 (1975). To have standing, plaintiffs must establish (1) that they have

9 suffered an injury in fact, (2) that their injury is fairly traceable to a defendant’s conduct,

10 and (3) that their injury would likely be redressed by a favorable decision. See Lujan v.

11 Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

12

“The doctrine of associational standing permits an organization to ‘sue to redress its

13 members’ injuries, even without a showing of injury to the association itself.’” Mink, 332

14 F.3d at 1109 (quoting United Food & Commercial Workers Union Local 751 v. Brown

15 Group, Inc., 517 U.S. 544, 552 (1996)). An association has standing to sue on behalf of its

16 members when “(a) its members would otherwise have standing to sue in their own right;

17 (b) the interests it seeks to protect are germane to the organization’s purpose; and (c)

18 neither the claim asserted nor the relief requested requires the participation of individual

19 members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 20 (1977).3

21

A plaintiff with standing may nonetheless have its complaint dismissed under Rule

22 12(b)(6) of the Federal Rules of Civil Procedure if the complaint fails to state a claim for

23 which relief may be granted. Dismissal may be based on either “the lack of a cognizable

24 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”

25 Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019). To avoid

26

27 3 Because these requirements derive from Article III, the mere fact that Congress has statutorily

28

designated an advocacy system under, for example, PAIMI, does not guarantee that the advocacy system has standing in a particular case. See Mink, 322 F.3d at 1110.

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1 dismissal under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to

2 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (citing Bell

3 Atlantic Corp. v. Twombly, 550 U.S. 544, 50 (2007)). A claim is plausible “when the

4 plaintiff pleads factual content that allows the court to draw the reasonable inference that

5 the defendant is liable for the misconduct alleged.” Id. at 678. When evaluating a motion

6 to dismiss, the Court “must presume all factual allegations of the complaint to be true and

7 draw all reasonable inferences in favor of the nonmoving party.” Usher v. City of Los

8 Angeles, 828 F.2d 556, 561 (9th Cir. 1987). “[C]ourts must consider the complaint in its

9 entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)

10 motions to dismiss, in particular, documents incorporated into the complaint by reference,

11 and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

12 Rights, Ltd., 551 U.S. 308, 322 (2007).

13

If a court dismisses a complaint for failure to state a claim, it should “freely give

14 leave” to amend “when justice so requires.” Fed. R. Civ. P. 15(a)(2). A court has

15 discretion to deny leave to amend due to “undue delay, bad faith or dilatory motive on the

16 part of the movant, repeated failure to cure deficiencies by amendment previously allowed,

17 undue prejudice to the opposing party by virtue of allowance of the amendment, [and]

18 futility of amendment.” Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.

19 2008).

20 III. DISCUSSION

21

Although AHS and the County Defendants have separately moved to dismiss

22 DRC’s claims, their arguments overlap. AHS argues that (1) DRC lacks standing as to

23 AHS because there is no Article III case or controversy as to AHS and DRC lacks

24 associational standing, see AHS Mot. to Dismiss at 10, 15, and (2) DRC fails to state a

25 disability discrimination claim for which relief may be granted, id. at 17. The County

26 Defendants argue that (1) DRC lacks standing as to them because DRC’s “exemplars”

27 have not “suffered an injury-in-fact that [the] ADA remedies,” see County Mot. to Dismiss

28 at 17–21, (2) DRC fails to state a disability discrimination claim for which relief may be

9

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1 granted, id. at 11–17, (3) DRC’s claims present non-justiciable political questions, id. at

2 21, and (4) the County Defendants cannot be liable for AHS’s conduct, id. at 22.

3

The Court holds that DRC has standing to sue AHS and the County Defendants, but

4 that DRC has not stated a claim for which relief may be granted. DRC has failed to

5 plausibly allege disability discrimination under the relevant statutes. Thus, the Court

6 grants Defendants’ motions to dismiss with leave to amend.

7

A. Standing

8

Putting aside the merits of DRC’s underlying claims, DRC has standing to sue

9 Defendants because DRC’s allegations establish that its Constituents have suffered injuries

10 fairly traceable to Defendants’ conduct, and those injuries would likely be redressed if

11 DRC’s claims succeeded. See Lujan, 504 U.S. at 560–61. DRC has alleged that its

12 Constituents have been unnecessarily institutionalized and continue to face a risk of

13 unnecessary institutionalization as a result of Defendants’ practices and lack of services.

14 And DRC asks the Court to order Defendants to change their practices and expand their

15 services. That is enough for standing. See id.; Hunt, 432 U.S. at 343.

16

1. Standing: Claims against AHS

17

AHS argues that DRC lacks standing to sue AHS because only the County

18 Defendants can provide the relief that DRC seeks. See AHS Mot. to Dismiss at 14. AHS

19 argues that, as a hospital, it cannot cease unnecessary institutionalization of DRC

20 Constituents, provide intensive community-based mental health services, or ensure that

21 those services are culturally congruent. See id. at 8, 11. Insofar as AHS advances these

22 arguments to challenge DRC’s standing, these arguments fail.

23

Although it may be true that AHS cannot provide community-based services, DRC

24 has nonetheless pleaded an injury traceable to AHS’s conduct that could be redressed by a

25 favorable decision. See Lujan, 504 U.S. at 560–61. DRC alleges that its Constituents are

26 injured because they are institutionalized too often and face an unreasonable risk of

27 institutionalization. Complaint ¶¶ 6, 107. DRC alleges that AHS’s conduct causes these

28 injuries because AHS holds patients “longer than clinically appropriate,” does not

10

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1 “develop individualized treatment and discharge plans,” and fails to timely coordinate

2 “with the County, ACBHCS, and community-based service providers.” Complaint ¶ 6.

3 Put differently, AHS unjustifiably retains patients and fails to take actions that would

4 reduce their risk of future institutionalization. And DRC requests that the Court order

5 AHS to change these practices. Id. at 39 ¶ 3.

6

AHS’s associational standing argument fares no better. AHS does not dispute that

7 DRC’s constituents are properly considered “members” of DRC, that DRC seeks to protect

8 interests germane to DRC’s purpose, or that DRC’s claims require individual members to

9 participate in this suit. See Hunt, 432 U.S. at 343. Instead, AHS argues that DRC’s

10 Constituents lack standing to sue as individuals because AHS cannot provide the relief

11 requested. AHS Mot. to Dismiss at 15–17. Thus, AHS’s associational standing argument

12 duplicates AHS’s argument that it cannot provide the relief that DRC requests. The Court

13 rejects it for the same reason.

14

“[S]tanding in no way depends on the merits of the plaintiff’s contention that

15 particular conduct is illegal.” Warth, 422 U.S. at 500. But AHS’s standing arguments are

16 merits arguments in disguise; they rest on the premise that AHS is not legally obligated to

17 provide the relief that DRC requests. The Court addresses that merits question below. See

18 infra Part III.B.2.a.

19

2. Standing: Claims against County Defendants

20

The County Defendants argue that DRC lacks standing because DRC “has not

21 pleaded that any of the exemplar constituents have suffered an injury-in-fact of the type

22 recognized by the ADA.” County Mot. to Dismiss at 19.

23

This argument is similarly misplaced. The County Defendants’ focus on whether

24 DRC has pleaded an injury “recognized by the ADA” confuses standing with the merits.

25 See Warth, 422 U.S. at 500. As discussed above, DRC must show that “its members

26 would . . . have standing to sue in their own right.” Hunt, 432 U.S. at 343. Under Article

27 III, the question is whether DRC has shown that its members have suffered an injury-in-

28 fact, causation, and redressability, see Lujan, 504 U.S. at 560–61, regardless whether those

11

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1 members would be entitled to relief on the merits. DRC’s allegations satisfy these

2 requirements. DRC alleges that its Constituents have been unnecessarily institutionalized

3 and that, as County residents with mental illness, they continue to suffer an unnecessary

4 risk of institutionalization. As discussed in more detail below, the Ninth Circuit has held

5 that plaintiffs not currently institutionalized may assert claims under the ADA based on

6 government conduct that creates such “risk.” M.R. v. Dreyfus, 663 F.3d 1100, 1118 (9th

7 Cir. 2011). DRC alleges that the unnecessary risk faced by these Constituents is caused in

8 part by the County Defendants’ failure to provide the community-based services that DRC

9 seeks. And if the County Defendants provided those services, DRC alleges that it would

10 remedy its Constituents’ unnecessary institutionalization and risk thereof.4

11

The County Defendants’ additional argument that DRC lacks standing because the

12 four exemplars in DRC’s Complaint would lack standing as individuals, see County Mot.

13 to Dismiss at 18–20, fails for two reasons. First, DRC is not required to identify individual

14 Constituents who satisfy each element of standing. There is no dispute that DRC’s

15 “constituents are the functional equivalent of [an organization’s] members.” Mink, 322

16 F.3d at 1112. The question is thus whether DRC has established that “at least one” of its

17 Constituents “would have had standing,” id. (citation omitted), and DRC’s general

18 allegations regarding its Constituents and the services that Defendants provide satisfy this

19 test. Given DRC’s broad allegations of the harms suffered by mentally ill individuals in

20 the County, it is “relatively clear . . . that one or more members have been or will be

21 adversely affected by a defendant’s action.” National Council of La Raza v. Cegavske,

22 800 F.3d 1032, 1041 (9th Cir. 2015). Therefore, DRC would have to “identify . . . a

23 particular member” with standing only if Defendants could not otherwise “understand and

24 respond to” DRC’s claims. Id. The County Defendants have not persuasively shown that

25 they are unable to understand or respond to DRC’s claims; instead, they merely point to

26

27 4 For the same reason, the County’s argument that DRC’s exemplars’ hospitalizations were not

28

“caused by an Olmstead violation,” see County Reply (dkt. 48) at 6, goes to the merits, not standing.

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1 the weakness of those claims on the merits. See County Mot. to Dismiss at 18; County

2 Reply at 8–12. Second, even if DRC were required to identify specific Constituents with

3 standing, DRC’s exemplars would have standing as individuals. As County residents who

4 suffer from mental illness, who have experienced alleged unnecessary institutionalization,

5 and who continue to face an alleged risk of unnecessary institutionalization, see Complaint

6 ¶¶ 29–49, DRC has adequately pleaded that these exemplars have suffered injuries caused

7 by Defendants’ failure to provide certain services. Whether those injuries give rise to a

8 claim under the ADA is a separate question. The Court now turns to that question.

9

B. Disability Discrimination

10

Defendants argue that DRC fails to state a claim for which relief may be granted.

11 See AHS Mot. to Dismiss at 17; County Mot. to Dismiss at 11. In particular, AHS argues

12 that because the County is responsible for Community-based treatment, DRC has failed to

13 state with particularity how AHS’s conduct violates the “integration mandate” articulated

14 in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). AHS Mot. to Dismiss at 19.

15 The County Defendants argue that DRC is requesting a “fundamental alteration” of the

16 County’s behavioral health system, County Mot. to Dismiss at 12, and that DRC’s claims

17 do not satisfy the elements articulated in Olmstead and its progeny, see id. at 16–17.

18

The Court grants Defendants’ motions to dismiss with leave to amend because

19 DRC’s allegations do not state a claim for relief under Olmstead.

20

1. Legal Framework

21

Under Title II of the ADA, “no qualified individual with a disability shall, by

22 reason of such disability, be excluded from participation in or denied the benefits of the

23 services, programs, or activities of a public entity, or be subjected to discrimination by any 24 such entity.” 42 U.S.C. § 12132.5 Congress instructed the Attorney General to promulgate

25

26 5 “The term ‘qualified individual with a disability’ means an individual with a disability who

27

. . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). A “public entity”

28

includes “any State or local government,” and “any department, agency, [or] special purpose district.” Id. §§ 12131(1)(A), (B).

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1 regulations implementing Title II. See id. § 12134(a). In addition to the statute’s general

2 anti-discrimination rule, these regulations forbid public entities from using “criteria or

3 methods of administration . . . that have the effect of subjecting qualified individuals with

4 disabilities to discrimination on the basis of disability,” or “that perpetuate the

5 discrimination of another public entity if both public entities are subject to common

6 administrative control.” 28 C.F.R. §§ 35.130(b)(3)(i), (iii).

7

As relevant here, disability discrimination includes providing services in an

8 institutional setting that could be provided in a less restrictive setting, subject to certain

9 caveats. Public entities must “administer services, programs, and activities in the most

10 integrated setting appropriate to the needs of qualified individuals with disabilities.” 28

11 C.F.R. § 35.130(d). The “most integrated setting appropriate” means “a setting that

12 enables individuals with disabilities to interact with non-disabled persons to the fullest

13 extent possible.” Olmstead, 527 U.S. at 592 (quoting 28 C.F.R. pt. 35, App. A, p.450

14 (1998)). In promulgating this regulation, “the Attorney General concluded that unjustified

15 placement or retention of persons in institutions, severely limiting their exposure to the

16 outside community, constitutes a form of discrimination.” Olmstead, 527 U.S. at 596.

17 And the Supreme Court has since confirmed that “[u]njustified isolation . . . is properly

18 regarded as discrimination based on disability.” Id. at 597.

19

In this context, however, unjustified isolation does not mean isolation that could be

20 avoided if a state or public entity simply provided more or better services. Olmstead did

21 not establish that state or local governments are subject to a particular “standard of care” in

22 their provision of “medical services . . . or that the ADA requires States to provide a

23 certain level of benefits to individuals with disabilities.” 527 U.S. at 603 n.14. Instead, it

24 established “that States must adhere to the ADA’s nondiscrimination requirement with

25 regard to the services they in fact provide.” Id. As the Ninth Circuit has explained,

26 “where the issue is the location of services, not whether services will be provided,

27 Olmstead controls.” Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003) (emphasis in

28 original). For example, Townsend addressed a request that the plaintiff receive services

14

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1 for which he was eligible “in the community-based adult home where he lives, rather than

2 the nursing home setting the state require[d].” Id.

3

The Ninth Circuit has held that plaintiffs not currently institutionalized may assert

4 Olmstead claims to challenge government actions that create a “risk” of “unnecessary

5 institutionalization” in order to receive services. M.R. v. Dreyfus, 663 F.3d 1100, 1118

6 (9th Cir. 2011) (citation omitted), as amended 697 F.3d 706 (9th Cir. 2012). For example,

7 in M.R. v. Dreyfus, certain Washington residents had been eligible for “personal care

8 services,” meaning “assistance in performing basic life activities” that they could not

9 perform on their own because of their disabilities. Id. at 663. Washington reduced

10 available personal care service hours by 10 percent. Id. The Ninth Circuit held that

11 plaintiffs challenging the reduction stated a disability discrimination claim because the

12 reduction would “substantially increase the risk” that recipients of these services would

13 “be institutionalized in order to receive [the] care” they had been receiving in a community

14 setting. Id.

15

If a plaintiff plausibly alleges a failure to provide services in the most integrated

16 setting appropriate, another regulation requires public entities to “make reasonable

17 modifications in policies, practices, or procedures” that are “necessary to avoid” this sort

18 of discrimination, “unless the public entity can demonstrate that making the modifications

19 would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

20 § 35.130(b)(7)(i). If a public entity resists making modifications based on a “fundamental-

21 alteration defense,” courts must consider the “resources available” to the government

22 entity, including “the range of services the [government] provides to others with mental

23 disabilities, and the [government]’s obligation to mete out those services equitably.”

24 Olmstead, 527 U.S. at 597.6 If a public entity is “genuinely and effectively in the process

25 of deinstitutionalizing disabled persons ‘with an even hand,’” courts “will not interfere.”

26 Arc of Washington State Inc. v. Braddock, 427 F.3d 615, 620 (2005) (quoting Olmstead,

27

28

6 Although this section of Olmstead commanded only four votes, the Ninth Circuit has held that it “controls.” Townsend, 328 F.3d at 519 n.3.

15

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1 527 U.S. at 605–06).7

2

Combining these rules, when a state provides a particular service, the state must

3 “provide community-based treatment for [qualified] persons with . . . disabilities when the

4 State’s treatment professionals determine that such placement is appropriate, the affected

5 persons do not oppose such treatment, and the placement can be reasonably

6 accommodated, taking into account the resources available to the State and the needs of

7 others with . . . disabilities.” Olmstead, 527 U.S. at 607. Failure to do so constitutes

8 disability discrimination. Id.

9

The parties agree that § 504 of the Rehabilitation Act imposes substantially the

10 same requirements on public entities, see AHS Mot. to Dismiss at 18; Opp. to AHS Mot. to

11 Dismiss (dkt. 33) at 15–16; County Mot. to Dismiss at 10 n.1, and that a violation under

12 Title II or § 504 is also a violation of California Government Code section 11135, see AHS

13 Mot. to Dismiss at 18 & n.75; Complaint ¶¶ 166–173; County Mot. to Dismiss at 10 n.1.

14

2. Analysis

15

The Court concludes that DRC has not plausibly alleged disability discrimination

16 by AHS or the County Defendants.

17

a. Claims against AHS

18

Because DRC does not allege that AHS is responsible for providing community-

19 based treatment programs, DRC’s allegations against AHS are narrower than those against

20 the County Defendants. As discussed above, DRC alleges that AHS subjects DRC

21 Constituents to unnecessary institutionalization and a risk thereof by (1) failing to develop

22 individualized treatment and discharge plans, (2) failing to ensure timely and effective

23 implementation and coordination with the County Defendants and other relevant entities,

24

25

7 Arc of Washington addressed an Olmstead claim that Washington’s Home and CommunityBased Services waiver program, which provided services is noninstitutional settings for qualified

26

persons, was “too small to accommodate the state’s population of eligible participants.” 427 F.3d at 619. Thus, like M.R. v. Dreyfus, Arc of Washington addressed the location where services

27

provided by the state would be provided. The Ninth Circuit concluded that “forcing the state to apply for an increase in its Medicaid waiver program cap” in order to accommodate more eligible

28

participants would constitute “a fundamental alteration” and was thus “not required by the ADA.” Id. at 622.

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1 and (3) holding Constituents for longer than clinically appropriate. See Complaint ¶ 6.

2

AHS’s alleged failure to develop sufficiently individualized treatment and discharge

3 plans does not constitute disability discrimination because it relates to whether AHS

4 provides a service, not where AHS provides that service. See Townsend, 328 F.3d at 517.

5 In this regard, DRC’s claim amounts to an assertion that AHS’s services are not up to

6 DRC’s preferred “standard of care.” Olmstead, 527 U.S. at 603 n.14. But the requirement

7 that AHS treat patients “in the most integrated setting appropriate,” 28 C.F.R. § 35.130(d),

8 is not a requirement that AHS provide patients with specific treatment. Further, DRC has

9 not plausibly alleged that AHS’s failure to provide individualized treatment plans creates a

10 “risk” of “unnecessary institutionalization” in the relevant sense. M.R. v. Dreyfus, 663

11 F.3d at 1118. To state such a claim, DRC would have to point to a service that its patients

12 would receive in a community setting, like the “personal care services” in M.R. v. Dreyfus,

13 but instead risk receiving in an institutional setting due to AHS’s failure to provide such

14 individualized plans. See id. DRC plausibly alleges that AHS’s failure to provide

15 individualized plans leads to worse mental health outcomes for Constituents, including a

16 higher likelihood of future institutionalization. But even under Olmstead’s broad

17 definition of discrimination, worse outcomes are not equivalent to discrimination.

18

Similarly, DRC’s allegations that AHS does not effectively communicate with

19 community service providers, collaborate with ACBHCS on care plans, or help ACBHCS

20 optimize mental health services fail to show that AHS has engaged in disability

21 discrimination. Once more, these allegations do not establish any direct discrimination

22 because they neither identify a specific service currently provided in an institutional setting

23 nor argue that such a service should be provided in a more integrated setting. See

24 Olmstead, 527 U.S. at 596. And once again, these allegations do not identify a “risk” that

25 specific services will be delivered in an institutional setting that should be delivered in a

26 community setting.

27

DRC’s allegation that AHS holds Constituents “longer than clinically appropriate,”

28 Complaint ¶ 6, also falls short of establishing disability discrimination. To state a claim

17

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United States District Court Northern District of California

1 based on AHS’s retention decisions, DRC must first allege that the public entity’s

2 “treatment professionals” have determined that “community-based treatment . . . is

3 appropriate.” 527 U.S. at 607. DRC alleges that under the “County’s own estimates,” a

4 significant number of PES detainees “do not meet medical necessity criteria for inpatient

5 psychiatric services.” Complaint ¶ 79. But PES is where patients are initially detained by

6 the County—AHS plays no role there. DRC also alleges that AHS needlessly extends

7 stays at John George, and that these stays are called “administrative” because they are not

8 “medically necessary.” Id. ¶ 85. But DRC does not specifically allege that AHS’s

9 “treatment professionals” have determined that community-based treatment would be more

10 appropriate for patients subject to these stays. Olmstead, 52 U.S. at 607. Indeed, DRC

11 does not identify what specific services AHS provides during these stays that could be

12 provided in other settings—or that AHS could provide any services in a community

13 setting, given that AHS merely contracts with ACBHCS to provide inpatient care. See

14 Complaint ¶¶ 52, 66.

15

In sum, AHS’s failures to take certain actions that might improve DRC’s

16 Constituents’ mental health do not, without more, constitute discrimination. And even if

17 the County Defendants engaged in discrimination (which the Court addresses below), and

18 if AHS’s failures have “compounded” the resulting harms, see Complaint ¶ 131, that

19 would not make AHS’s failures discrimination.

20

Because DRC could conceivably cure these deficiencies in an amended complaint,

21 the Court grants AHS’s motion to dismiss with leave to amend. Leadsinger, 512 F.3d at

22 532. For DRC to state a claim, it must provide more detailed allegations that fit within the

23 framework of Olmstead and its progeny.

24

b. Claims against County Defendants

25

The County Defendants argue that DRC fails to state an Olmstead claim against

26 them because DRC seeks “the vast implementation of multiple new and expanded

27 programs” rather than pointing to specific services that are being provided in institutional

28 settings but that could be provided in community settings. County Mot. to Dismiss at 11.

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United States District Court Northern District of California

1 The County Defendants also point out that to state a claim under Olmstead, DRC must

2 show that the County’s “own professionals determined that community-based treatment

3 would be appropriate.” Id. at 16. DRC argues that it “does not seek new types of

4 community-based services.” Opp. to County Mot. to Dismiss (dkt. 47) at 2. Instead, DRC

5 argues that it “seeks to expand . . . existing features of the County Defendants’ mental

6 health program,” and that such an expansion would “prevent the needless

7 institutionalization of DRC constituents.” Id. at 2–3.

8

The County Defendants are correct that DRC has not stated a claim for which relief

9 may be granted. DRC seeks to broaden Olmstead to provide a remedy for when state and

10 local governments deliver services that, regardless of setting, could be expanded to reduce

11 the County’s rate of institutionalization. See Opp. to County Mot. to Dismiss at 2–3, 11.

12 But Olmstead specifically rejected this sort of theory, which would require states and

13 counties “to provide a certain level of benefits to individuals with disabilities.” 527 U.S. at

14 603 n.14. Olmstead provides a remedy for when state and local governments deliver

15 services in institutional settings that could reasonably be delivered in community

16 settings—or when government conduct creates an unnecessary risk that patients will need

17 to enter an institution to obtain services they could otherwise obtain in the community.

18 See Townsend, 328 F.3d at 517. It does not provide a remedy for when government

19 entities could generally do more to keep people from being institutionalized.

20

Because Olmstead applies “where the issue is the location of services, not whether

21 services will be provided, Townsend, 328 F.3d at 517 (emphasis in original), DRC must

22 point to services being provided in institutional settings that could be provided in the

23 community, or a risk that DRC Constituents will need to endure institutionalization to

24 receive specific services that could be provided in the community. Although DRC’s

25 Complaint requests that Defendants relocate services “from institutions to community-

26 based settings,” Complaint ¶ 112, DRC does not plead with particularity which services

27 the County Defendants must relocate. DRC must also plausibly allege that the relevant

28 entity’s treatment professionals have determined that community placement for receipt of

19

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16909751.7

1 HANSON BRIDGETT LLP KURT A. FRANKLIN, SBN 172715
2 kfranklin@hansonbridgett.com GYMMEL M. TREMBLY, SBN 327236
3 gtrembly@hansonbridgett.com 425 Market Street, 26th Floor
4 San Francisco, California 94105 Telephone: (415) 777-3200
5 Facsimile: (415) 541-9366

6 Attorneys for Defendant ALAMEDA HEALTH SYSTEM
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

10

11 DISABILITY RIGHTS CALIFORNIA, a California nonprofit corporation,
12 Plaintiff,
13 v.
14 COUNTY OF ALAMEDA; ALAMEDA
15 COUNTY BEHAVIORAL HEALTH CARE SERVICES; and ALAMEDA HEALTH
16 SYSTEM,

17

Defendants.

18

Case No. 20-cv-05256 JCS
DEFENDANT ALAMEDA HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

Judge: Date: Time: Ctrm.:

Hon. Joseph C. Spero November 20, 2020 9:30 a.m. F – 15th Floor

19

20

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1

TABLE OF CONTENTS

Page

2

NOTICE OF MOTION AND MOTION TO DISMISS ....................................................................1

3

MEMORANDUM OF POINTS AND AUTHORITIES ...................................................................3

4

I. INTRODUCTION..................................................................................................................3

5

II. ISSUES PRESENTED ...........................................................................................................5

6

A. Does This Court Lack Subject Matter Jurisdiction To Hear DRC’s Claims

7

Against A Hospital When DRC’s Concern Is Based On County-Provided

Community-Based Programming That Does Not Yet Exist? ....................................5

8

B. Can An Olmstead-Based Discrimination Claim Under Title II Of The

9

Americans With Disabilities Act, Section 504 Of The Rehabilitation Act,

And Government Code Section 11135, Be Raised Against A Hospital That

10

Provides Emergency Psychiatric Care And Has No Means To Provide

Community-Based Programming? .............................................................................5

11

III. PROCEDURAL BACKGROUND ........................................................................................5

12

IV. FACTUAL BACKGROUND ................................................................................................6

13

A. Alameda Health System Oversees John George Psychiatric Hospital, Which

14

Is Limited To Treatment Of Patients In Mental Health Crisis ...................................6

15

B. Psychiatric Treatment For Individuals With Mental Health Disabilities At

John George Psychiatric Hospital Is Provided According To Statutory

16

Mandates ....................................................................................................................7

17

C. DRC Asks This Court For Equitable Relief Against AHS Which Only The

County Can Provide ...................................................................................................8

18

D. Alameda County And Alameda County Behavioral Health Care Services

19

Administer Mental Health Care Services For Alameda County Residents ...............9

20 V. LEGAL STANDARD ............................................................................................................9

21 VI. ARGUMENT .......................................................................................................................10

22

A. DRC Lacks Article III Standing Because There Is No Case Or Controversy

As To Defendant AHS .............................................................................................10

23

1. As pled, the issues before this Court are not fit for adjudication

24

because AHS does not detain patients, nor does it have the means to

provide community-based programming. ....................................................11

25

a. AHS does not arrest, detain, take into custody, nor

26

institutionalize patients.....................................................................12

27

b. AHS does not place, provide, nor fund community-based

services .............................................................................................13

28

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1

2. DRC does not suffer direct hardship if its claims as to Defendant

AHS are not heard in federal court...............................................................15

2

B. DRC Lacks Article III Associational Standing Because DRC Has Not Pled

3

That Any DRC Constituent In His Or Her Own Right Can Claim A Risk Of

Unjust Institutionalization Resulting From Any Conduct By AHS .........................15

4

C. DRC’s Fails To State A Claim of Disability Discrimination Upon Which

5

Relief Can Be Granted .............................................................................................17

6

1. DRC has not alleged facts to make a regular disability

accommodation claim under the ADA or Rehabilitation Act and

7

limits itself to an Olmstead integration claim. .............................................17

8

2. Because courts interpret the ADA and Rehabilitation Act’s

integration requirement in an identical manner, DRC’s failure to

9

state a claim under the ADA necessarily results in a failure to state a

claim under the Rehabilitation Act, and the derivative claim under

10

state law also fails. .......................................................................................18

11

3. DRC fails to state that AHS’s statutorily mandated patient care is

not in accordance with the prescriptions of the ADA and

12

Rehabilitation Act. .......................................................................................19

13 14
VII. 15

D. DRC’s Allegations Of Racial Disparities In Treatment, And COVID-19 Risk Of Infection Are Immaterial And Impertinent, And Must Be Stricken ...........21
CONCLUSION ....................................................................................................................22

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

Page(s)

3 Cases

4 Abbott Laboratories v. Gardner,

5

387 U. S. 136, 87 S.Ct. 1507, 18 L. Ed. 2d 681 (1967) .............................................................11

6 Arbaugh v. Y&H Corp., 546 U.S. 500, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) .........................................................9
7 Ashcroft v. Iqbal,
8 556 U.S. 662 (2009) ...................................................................................................................10

9 Babu, et al. v. County of Alameda, et al.,

10

Case No. 5:18-cv-07677-NC ....................................................................................................5, 6

11

Balistreri v. Pacifica Police Dept., 901 F.2d 696 (9th Cir. 1990)......................................................................................................10

12 Bassilios v. City of Torrance,
13 166 F.Supp.3d 1061 (C.D. Cal. 2015)........................................................................................18

14 Bell Atlantic Corp. v. Twombly,

15

500 U.S. 554 (2007) ...................................................................................................................10

16

Black v. Dep’t of Mental Health, 83 Cal. App. 4th 739, 100 Cal. Rptr. 2d 39 (2000) ....................................................................18

17 Ernst & Young v. Depositors Econ. Prot. Corp.,
18 45 F.3d 530 (1st Cir.1995) .........................................................................................................11

19 Gonzalez, et al. v. Ahern, et al.,

20

Case No. 19-cv-07423-JSC ......................................................................................................5, 6

21

Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977) .............................................................15

22 Johnson v. DTBA, LLC, 23 424 F. Supp. 3d 657 (N.D. Cal. 2019) .......................................................................................10

24 Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001)......................................................................................................10
25

26

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ......................................................15, 16

27 Mack v. South Bay Beer Distrib., 28 798 F.2d 1279 (9th Cir.1986).....................................................................................................10

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1 McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63 (1st Cir. 2003) ..................................................................................................11, 15
2

3

Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed. 2d 921 (1998) .........................................................11

4 Olmstead v. L.C. ex. rel. Zimring, 5 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) .................................................... passim

6 Oregon Advocacy Ctr. v. Mink,

322 F.3d 1101 (9th Cir. 2003)....................................................................................................15 7

8

Prescott v. Rady Children’s Hosp.-San Diego, 265 F. Supp. 3d 1090 (S.D. Cal. 2017) ......................................................................................17

9 Rodriguez v. City of New York,

10

197 F.3d 611 (2d Cir. 1999) .......................................................................................................21

11 Sidney-Vinstein v. A.H. Robins Co.,

697 F.2d 880 (9th Cir. 1983)......................................................................................................21

12

Spokeo, Inc. v. Robins,

13

136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) ................................................................................10

14 Townsend v. Quasim,

15

328 F.3d 511 (9th Cir. 2003)......................................................................................................18

16 Statutes

17 29 U.S.C. § 794(a)............................................................................................................................17

18 42 U.S.C. § 12131, et seq.................................................................................................................17

19 Cal. Code Regs., tit. 9, § 1810.205...............................................................................................9, 14

20 Cal. Code Regs., tit. 9, § 1810.226...................................................................................................14

21 Cal. Code Regs. tit. 9, § 1810.228......................................................................................................9

22 Cal. Code Regs., tit. 9, § 1810.305...................................................................................................14
23 Cal. Code Regs., tit. 9, § 1810.405...................................................................................................14 24
Cal. Code Regs., tit. 9, § 1810.405(a) ..............................................................................................13 25
Cal. Code Regs. tit. 9, § 1820.219......................................................................................................9 26
Cal. Code Regs. tit. 9, § 1820.220......................................................................................................9 27
28 Cal. Gov’t Code § 11135........................................................................................................5, 17, 18

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1 Cal. Gov’t Code § 11139..................................................................................................................17

2 Cal. Health & Safety Code § 101850.................................................................................................6

3 Cal. Health & Safety Code § 101850(ak) ....................................................................................7, 14
4 Cal. Health & Safety Code § 101850(j) .......................................................................................7, 14
5 Cal. Welf. & Inst. Code § 5150..........................................................................................7, 8, 12, 13 6 Cal. Welf. & Inst. Code § 5150(g)-(i) ................................................................................................8 7
Cal. Welf. & Inst. Code § 5152 ..................................................................................................12, 13 8
Cal. Welf. & Inst. Code § 5152(a) ...................................................................................................13 9 10 Cal. Welf. & Inst. Code § 5250....................................................................................................8, 13 11 Cal. Welf. & Inst. Code § 5254..........................................................................................................8 12 Cal. Welf. & Inst. Code § 5254.1.......................................................................................................8
13 Cal. Welf. & Inst. Code § 5254.2.......................................................................................................8
14 Cal. Welf. & Inst. Code § 10720........................................................................................................9

15 Cal. Welf. & Inst. Code § 14000, et seq.............................................................................................9

16 Cal. Welf. & Inst. Code § 14680........................................................................................................9

17 Cal. Welf. & Inst. Code § 14682.1...............................................................................................9, 14

18 Cal. Welf. & Inst. Code § 14684................................................................................................13, 16

19 Cal. Welf. & Inst. Code § 14684(a)(3)...............................................................................................9
20 Cal. Welf. & Inst. Code § 14714..................................................................................................9, 14 21
Cal. Welf. & Inst. Code § 14718 ......................................................................................................13 22
Cal. Welf. & Inst. Code § 14726 ..................................................................................................9, 14 23
Other Authorities 24 25 22 C.C.R. § 50000, et seq...................................................................................................................9
26 28 C.F.R. § 35.130(b)(7)(i) ..............................................................................................................18

27 28 C.F.R. § 35.310(d).......................................................................................................................19

28 28 C.F.R. § 41.53 .............................................................................................................................18

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1 Fed. R. Civ. P. 12(b)(1)........................................................................................................3, 4, 9, 10

2 Fed. R. Civ. P. 12(b)(6)............................................................................................................ passim

3 Fed. R. Civ. P. 12(f) .....................................................................................................................4, 21

4 Jonathan Sherin and Darrell Steinberg, Op-Ed: Mentally ill people in desperate

5

need of treatment often don’t get it because of an antiquated law, Los Angeles Times (Aug. 20, 2020) ...............................................................................................................21

6 U.S. Const. art. III, § 2 ...............................................................................................................10, 16

7

8

9

10

11

12

13

14

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16

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1

NOTICE OF MOTION AND MOTION TO DISMISS

2 TO PLAINTIFF AND ITS COUNSEL OF RECORD:

3

PLEASE TAKE NOTICE THAT on November 20, 2020, at 9:30 a.m., or as soon

4 thereafter as counsel may be heard, in the courtroom of the Honorable Joseph C. Spero, located in

5 the United States Courthouse, Courtroom F, 15th Floor, 450 Golden Gate Avenue, San Francisco,

6 CA 94102, Defendant ALAMEDA HEALTH SYSTEM (“AHS”) will and hereby does move this

7 Court to dismiss all causes of action against it in Plaintiff Disability Rights California’s

8 (“Plaintiff” or “DRC”) Complaint for Damages (“the Complaint”).

9

This Motion is made upon the following grounds:

10

Under Federal Rule of Civil Procedure, Rule 12(b)(1), this Court lacks subject matter

11 jurisdiction because there is no case or controversy as to Defendant AHS. By its enabling

12 legislation, AHS stands separate from the County of Alameda (“the County”). AHS consists of

13 five hospitals, four wellness centers, and over 800 beds. Its psychiatric hospital, which is the

14 subject of DRC’s allegations against it, is John George Psychiatric Hospital (“John George” or

15 “the hospital”). Unsurprisingly, as a hospital, AHS does not arrest persons, nor seek to

16 involuntarily bring patients to John George. Moreover, it is not AHS that has the power or

17 resources to oversee patients in community-based programing, nor does it fund such

18 programming. This is up to the County. Thus, DRC lacks Article III standing against AHS, as

19 DRC constituents cannot suffer a risk of unjustified institutionalization caused by AHS. Nor, can

20 the Court order a hospital like AHS to create community-based programming.

21

Further, DRC lacks statutory standing to pursue its federal claims as the relief that DRC

22 seeks – community-based treatment of mental health conditions – is provided by the County. As

23 pled, there is no available equitable relief against AHS. Until the County makes community-based

24 treatment readily available, equitable relief that requires that AHS coordinate with the County on

25 programming that does not yet exist is premature.

26

Under Rule 12(b)(6), DRC fails to state a valid claim upon which relief can be granted.

27 Piecing together a cause of action, DRC blends its allegations as to the County’s detention,

28 administration and funding of community-based programming with AHS’s limited function in

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16909751.7

1 administering the hospital. But, in doing so, DRC has failed to plead with sufficient particularity

2 any causal connection between AHS’s conduct and any alleged risk of unjustified

3 institutionalization. Thus, on its face, the Complaint falls short of the pleading standard sufficient

4 to state a claim against AHS.

5

Under Rule 12(f), allegations in the Complaint referencing racial disparities in patient care

6 and risk of COVID-19 infection should be stricken as redundant, impertinent, and immaterial.

7 These allegations are superfluous, inflammatory, and distract from the central issues of this case.

8 This is neither an inadequate medical care case more common in prison litigation, nor is it a case

9 based on racial inequities. DRC is no better off having pled these facts, than had it chosen a more

10 focused approach to litigate this case for efficient resolution. Accordingly, this Court should grant

11 AHS’s motion to strike these allegations.

12

This Motion is based on this Notice of Motion, the attached Memorandum of Points and

13 Authorities, and Request for Judicial Notice filed concurrently herewith, all of the pleadings, files,

14 and records in this proceeding, all other matters of which the Court may take judicial notice, and

15 any argument or evidence that may be presented to or considered by the Court prior to its ruling.

16 DATED: October 13, 2020

HANSON BRIDGETT LLP

17

18

By:

/s/ Gymmel M. Trembly

19

KURT A. FRANKLIN

GYMMEL M. TREMBLY

20

Attorneys for Defendant

21

ALAMEDA HEALTH SYSTEM

22

23

24

25

26

27

28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2

I. INTRODUCTION

3

Plaintiff Disability Rights California (“DRC” or “Plaintiff”) has framed its complaint as an

4 Olmstead-based claim of disability discrimination resulting from the alleged segregation of

5 persons with mental health disabilities in psychiatric facilities and risk of continued unjustified

6 institutionalization. Importantly, this case is not a case of discrimination in public

7 accommodations against persons with disabilities. It is also not a case of lack of medical care

8 brought typically in prison litigation. Instead, DRC blames AHS – a hospital – for its alleged

9 failure to coordinate and refer patients to County services that do not yet exist.

10

For the following reasons, each of the DRC’s claims fail at the pleading stage and this

11 Court should grant AHS’s motion to dismiss under Federal Rule of Civil Procedure, Rule 12(b)(1)

12 and Rule 12(b)(6):

13

First, this Court lacks subject matter jurisdiction and should dismiss this action under

14 Rule 12(b)(1) because there is no case or controversy for the Court to decide. DRC asks this

15 Court to adjudicate a cause of action based on a future risk of harm that may be created by AHS

16 and may never materialize, as patients are discharged from the hospital when it is safe to do so

17 given the hospital’s medical assessment of the individual.

18

But by its enabling statute, AHS has a strictly limited function – the management of five

19 hospitals and four wellness centers in Alameda County, including John George Psychiatric

20 Hospital. At John George, a patient either voluntarily seeks psychiatric care, or he or she is

21 brought to the hospital by the County after having made a determination with probable cause that

22 the patient is a danger to himself or herself, or others, or is gravely disabled. AHS does not arrest,

23 detain, nor place individuals in unjustified segregated facilities. Neither does AHS fund

24 community-based programs or regulate the quality of care provided by those community-based

25 programs. Those functions are the job of the County. Because AHS does not perform these

26 functions, any alleged risk of future harm cannot be attributed to AHS. Moreover, no hardship

27 results to DRC if its claims as to Defendant AHS are not heard in federal court because DRC can

16909751.7

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1

Second, this Court should also dismiss DRC’s complaint under Rule 12(b)(1) because

2 DRC lacks associational standing to bring this action. No DRC constituent can allege a risk of

3 future harm that can be traced to any alleged unlawful conduct by AHS. And, DRC’s sought after

4 relief requiring Defendant AHS to refer DRC constituents to services under the County’s

5 operation and control – when it also claims that the County does not yet provide sufficient

6 community-based programming – is premature.

7

Third, DRC has failed to state a claim upon which relief can be granted and this Court

8 should dismiss the Complaint under Rule 12(b)(6). On its face, DRC’s Complaint conflates the

9 County’s alleged failures in providing, administering and funding for community-based care for

10 DRC constituents, with AHS’s statutory mandate to provide individualized emergency psychiatric

11 care at John George. In short, DRC blames AHS for the County’s funding-based inabilities to

12 make community-based programs available and seeks to remedy that failure by requiring AHS to

13 discharge patients to non-existent community-based services.

14

Fourth, DRC has failed to state a claim that any DRC constituent face risk of

15 institutionalization based AHS’s alleged unlawful conduct. Indeed, DRC’s allegation that DRC’s

16 exemplars face a risk of unjustified institutionalization results from the County’s failure to provide

17 community-based programming; not from AHS’s hospital administrative procedures. DRC’s

18 claim that AHS’s practices present a risk of harm to DRC constituents of unjustified

19 institutionalization are conclusory and based on speculation and surmise given the current status of

20 community-based programming.

21

Finally, this Court should also grant Defendant AHS’s motion to strike under Rule 12(f) as

22 to DRC’s allegations of racial disparities in patient care and risk of COVID-19 infection should be

23 stricken as redundant, impertinent, and immaterial. These allegations are superfluous,

24 inflammatory, and unnecessary to establish a cause of action under the statutory framework of

25 Title II of the ADA, the Rehabilitation Act, and State public accommodation law, and serve only

26 to distract from the central issues of this case. Accordingly, this Court should grant AHS’s motion

27 to strike these allegations.

28 / / /

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1

II. ISSUES PRESENTED

2 A. 3

Does This Court Lack Subject Matter Jurisdiction To Hear DRC’s Claims Against A Hospital When DRC’s Concern Is Based On County-Provided Community-Based Programming That Does Not Yet Exist?

4



An Article III court has subject matter jurisdiction to hear a case when there is a

case or controversy for it to adjudicate. On one hand, a case is ripe where the

5

questions are purely legal ones; on the other hand, a case is unripe if a threatened

injury is contingent on several events which may or may not happen.

6

Given that the County detains persons with mental health disabilities for

7

involuntary psychiatric treatment and is responsible for providing community-

based care to such persons, and the hospital, which only provides emergency

8

psychiatric mental health care to patients to keep them from harming themselves or

others, does not have the means to provide community-based programing, does this

9

Court have jurisdiction to hear claims against the hospital when DRC’s relief is

based on County-provided community-based programming?

10

11 B. 12 13

Can An Olmstead-Based Discrimination Claim Under Title II Of The Americans With Disabilities Act, Section 504 Of The Rehabilitation Act, And Government Code Section 11135, Be Raised Against A Hospital That Provides Emergency Psychiatric Care And Has No Means To Provide Community-Based Programming?

14



Both Title II of the Americans with Disabilities Act (“ADA”) and Section 504 of

the Rehabilitation Act (“Rehabilitation Act”) forbid public entities from

15

discriminating against qualified individuals because of his or her disability. Under

both federal laws, discrimination results when a public entity fails to provide

16

services, programs, or activities in the most integrated setting appropriate to the

needs of the individual. Further, California law codifies the proscriptions against

17

discrimination in Government Code section 11135 such that a violation of ADA

results in a violation of Section 11135.

18

Because DRC has pled that (a) the County is responsible for providing,

19

administering, and funding community-based programming for persons with

mental health disabilities, and (b) the County has not created enough community-

20

based programming to satisfy the needs of its residents, as to AHS (the hospital)

does the Complaint state a claim of disability discrimination under Title II of the

21

ADA, Section 504 of the Rehabilitation Act, and California Government Code

section 11135 based on the hospital’s claimed failure to refer patients to

22

community-based programming that does not yet exist?

23

III. PROCEDURAL BACKGROUND

24

Plaintiff, disability advocacy association DRC, has filed this Olmstead-based action

25 claiming the County and AHS discriminate against persons with mental health disabilities. This

26 case follows recent litigation brought against the County challenging prison conditions and

27 medical care provided to prisoners in County jails; Gonzalez, et al. v. Ahern, et al. and Babu, et

28 / / /

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1 al. v. County of Alameda, et al.1 DRC sought to relate this case to the Babu class action, which

2 was filed in December 2018. The Babu case raises constitutional challenges to the use of

3 isolation, mental health care provided to prisoners and alleged unlawful segregation of prisoners

4 with mental health needs at Santa Rita and Glenn Dyer county jails. Babu also claims Olmstead-

5 based allegations concerning prisoners with psychiatric disabilities based on the County’s alleged

6 use of punishment of prisoners because of their mental health disabilities, inadequate suicide

7 prevention, inadequate staffing, and inadequate discharge planning among other claims.2 The

8 Gonzalez class action filed against the County challenges the general facility conditions and

9 services. Both actions include allegations that the County failed to adequately prevent individuals

10 from becoming infected with COVID-19.3 The Babu court correctly rejected DRC’s motion to

11 relate the cases.4

12

The Babu Plaintiffs also ask the Court to grant an equitable remedy from the County

13 requiring that it cease discriminating against prisoners with psychiatric disabilities by housing

14 such inmates in the most integrated setting appropriate to their individual needs. Thus, the

15 County’s obligations (if any) to provide mental health programs to DRC “constituents” is already

16 being litigated. Wrongly, DRC’s lawsuit brought by lawyers and an organization that is friendly

17 to Babu is an effort to sweep AHS into litigation which it does not belong.

18

IV. FACTUAL BACKGROUND

19 A. 20

Alameda Health System Oversees John George Psychiatric Hospital, Which Is Limited To Treatment Of Patients In Mental Health Crisis

21

AHS is an independent hospital authority dedicated to the management, administration,

22 and control of five hospitals and four wellness centers – including John George Psychiatric

23 Hospital.5 At John George, patients, including the medically indigent, receive emergency or

24

25

26

1 Gonzalez, et al. v. Ahern, et al.¸ Case No. 19-cv-07423-JSC; Babu, et al. v. County of Alameda, et al., Case No. 5:18-cv-07677-NC.

27

2 Babu, First Am. Compl., ¶ 6. 3 Id. ¶¶ 163-164; Gonzalez Second Am. Compl., ¶¶ 172-188.

28

4 Babu Dkt. No. 193. 5 Cal. Health & Safety Code § 101850.

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1 inpatient psychiatric treatment.6

2

AHS is an entity separate and distinct from the County.7 And, its relationship with the

3 County is purely contractual.8 AHS and the County are parties to a Master Contract (“Master

4 Contract”). Under the terms of this agreement, the County purchases certain medical and health

5 services from AHS.9 However, the County retains the sole ability to terminate the activities of

6 AHS and can expire AHS as an entity.10

7 B. 8

Psychiatric Treatment For Individuals With Mental Health Disabilities At John George Psychiatric Hospital Is Provided According To Statutory Mandates

9

County residents, including Medi-Cal beneficiaries, may receive mental health services at

10 John George. By statute, individuals are admitted to the John George for emergency services

11 when, due to a mental health disorder, he or she is a danger to himself or herself, or others, or is

12 gravely disabled as a result of the mental health disorder.11 An individual may seek voluntary

13 psychiatric care at John George. Alternatively, by law enforcement, the courts, or other County

14 action, a patient may be involuntarily brought to the hospital for acute, intensive mental health

15 treatment for up to 72 hours, upon a showing of probable cause.12

16

To ensure the hospital can deliver high quality care, in some circumstances the hospital

17 census may be adjusted and emergency departments seeking to transfer patients to the hospital

18 may be delayed. The hospital’s census management includes an assessment of available physical

19 space in the emergency unit, staffing levels and whether adding additional staff to ensure quality

20 care is not possible due to staff unavailability, the availability of one-to-one staffing, the number

21 of patients waiting for an evaluation by a physician, and the number of patients with a confirmed

22 and available disposition. If the hospital determines that conditions in the emergency unit exceeds

23

24 6 Master Contract Between County of Alameda and Alameda County Medical Center, executed

25

June 23, 1998 as amended November 28, 2000, a true and correct copy attached as Ex. A to Def.’s Req. for Judicial Notice (hereinafter, “Ex. A”) § 1.11.

7 Cal. Health & Safety Code § 101850(j). 26 8 Id. §§ (k)-(l).

9 Ex. A § 3.2. 27 10 Id. § 6.5; Cal. Health & Safety Code § 101850(ak).

11 Cal. Welf. & Inst. Code §§ 5150; 5150.05. 28 12 Id. §§ 5150; 5151.

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1 its ability to deliver high quality mental health services, area emergency departments seeking to

2 transfer patients to John George will be delayed. However, patients arriving at John George by

3 way of ambulances, walk-in patients seeking emergency care, and patients brought to the hospital

4 by law enforcement will continue to be admitted.

5

Once at John George, the hospital may admit the patient only after having determined that

6 the individual is in need of emergency services and cannot be properly served without

7 admission.13 The patient is informed that he or she may request to be evaluated or treated at a

8 facility of his or her choice, and may request to be evaluated or treated by a mental health

9 professional of his or her choice.14 The hospital honors the patient’s choice when possible.

10

Following the 72-hour admission period, the patient may continue inpatient treatment on a

11 voluntary basis. For some patients, continued involuntary intensive treatment may be necessary.15

12 A person may be committed for an additional 14–day period for intensive treatment.16 However,

13 such detentions can be terminated before the expiration of the commitment period, and he or she

14 has the right to have a judicial determination of whether there is probable cause for the

15 commitment.17 Further, the person being certified also has the right to counsel and the right to

16 bring a writ of habeas corpus.18

17 C. 18

DRC Asks This Court For Equitable Relief Against AHS Which Only The County Can Provide

19

DRC seeks to require that AHS take immediate action to: (1) cease the unnecessary

20 institutionalization of DRC constituents; (2) provide intensive community-based mental health

21 services; and, (3) ensure that these community-based services are provided in a manner that is

22 culturally congruent.19 In this lawsuit, DRC has wrongly reinvented the bounds of AHS’s

23 function in disregard of the law and public contracts that limits the hospital’s function. As

24

25 13 See id.

26

14 Id. § 5150(g)-(i). 15 Id. § 5250.

27

16 Id. 17 See id. §§ 5254, 5254.2.

28

18 Id. 19 Compl. at 39, ¶ 3.

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1 discussed below, only the County, not AHS, can provide DRC the equitable relief it seeks.

2 D. 3

Alameda County And Alameda County Behavioral Health Care Services Administer Mental Health Care Services For Alameda County Residents

4

California participates in Medicaid through the Medi-Cal Program and has designated the

5 Department of Health Care Services as the entity responsible for its administration.20 The

6 Department implements and administers mental health care for Medi-Cal eligible residents of the

7 State through Mental Health Plans (“MHP”).21 The MHP in each county is responsible for setting

8 appropriate standards relating to the quality, access, and coordination of services within a

9 managed system of care, and opportunities for Medi-Cal providers to provide services, as long as

10 the provider meets MHP standards.22 Medi-Cal beneficiaries receive mental health care services

11 through the County MHP, including, inpatient hospitalizations services and psychiatric health

12 facility services.23

13

The County provides mental health services independently and in conjunction with mental

14 health and substance abuse programs, and community hospitals and health centers.24 Alameda

15 County Behavioral Health Care Services (“ACBHCS”), a County entity, is the MHP in Alameda

16 County. Accordingly, the County – not AHS – is responsible for arranging, and paying for

17 specialty mental health services for beneficiaries.25

18

V. LEGAL STANDARD

19

The Court must dismiss a case when it lacks subject matter jurisdiction or when the

20 plaintiff fails to state a claim upon which relief can be granted.26 Federal Rule of Civil Procedure

21 12(b)(1) requires dismissal for failure to state grounds for federal subject matter jurisdiction.27

22

23

20 See Cal. Welf. & Inst. Code §§ 10720, 14000, et seq.; 22 C.C.R. § 50000, et seq. 21 Cal. Welf. & Inst. Code §§ 14682.1, 14726, 14714.

24

22 Id. §§ 14680, 14684(a)(3). 23 See Cal. Code Regs. tit. 9, § 1810.205; see, § 1820.219; see also, § 1820.220.

24 Ex. A § 1.5.

25 25 Alameda County Behavioral Health Policy & Procedure: Authorization of Specialty Mental

26

Health Services, 200-2, attached as Ex. I to Def.’s Req. for Judicial Notice; see also, Cal. Code Regs. tit. 9, § 1810.228.

26 Fed. R. Civ. P. 12(b)(1), 12(b)(6).

27 27 Arbaugh v. Y&H Corp., 546 U.S. 500, 506, 126 S. Ct. 1235, 1240, 163 L. Ed. 2d 1097 (2006)

(“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of

28 the subject matter, the court shall dismiss the action.”).

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1

A complaint should be dismissed for failure to state a claim under Rule 12(b)(6) when

2 there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a

3 cognizable legal theory.28 A complaint must state “enough facts to state a claim to relief that is

4 plausible on its face.”29

5

In ruling on a motion to dismiss under Rule 12(b)(6), the court generally considers only the

6 pleadings, and accepts as true the allegations contained in the complaint.30 However, the court

7 does not accept as true “[t]hreadbare recitals of the elements of a cause of action, supported by

8 mere conclusory statements.”31 Also, the court may take judicial notice of documents in the

9 public record. 32

10

VI. ARGUMENT

11 A. 12

DRC Lacks Article III Standing Because There Is No Case Or Controversy As To Defendant AHS

13

DRC lacks standing to pursue its claims against Defendant AHS. A complaint is properly

14 dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks

15 constitutional authority to adjudicate the dispute.33

16

More specifically, Article III courts are confined to adjudicating actual “cases” and

17 “controversies,” in other words, the case must be ripe for adjudication.34 The party invoking

18 federal jurisdiction bears the burden to establish standing, i.e., carries the burden to allege

19 sufficient facts to establish that the case is ripe for adjudication based on the following: (1) fitness

20 of the issues for judicial decision, and (2) hardship to the parties resulting from withholding court

21

22

28 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). 29 Bell Atlantic Corp. v. Twombly, 500 U.S. 554, 570 (2007).

23

30 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 31 Id.

24

32 Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citing Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir.1986)) (on a motion to dismiss, a court may take judicial

25

notice on matters of public record); Johnson v. DTBA, LLC, 424 F. Supp. 3d 657, 662 (N.D. Cal. 2019) (taking judicial notice of public records maintained on government websites).

26

33 See Fed. R. Civ. P. 12(b)(1). 34 U.S. Const. art. III, § 2; Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547, 194 L. Ed. 2d 635

(2016), as revised (May 24, 2016) (The irreducible constitutional minimum of Article III standing

27 consists of three elements, as the plaintiff must have: (1) suffered an injury in fact, (2) that is

28

fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision).

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1 consideration.35 On one hand, a case may be ripe where the questions are purely legal ones; on the

2 other hand, a case is unripe if a threatened injury is contingent on several events which may or

3 may not happen.36

4

“Federal courts cannot—and should not—spend their scarce resources on what

amounts to shadow boxing. Thus, if a plaintiff’s claim, though predominantly legal

5

in character, depends on future events that may never come to pass, or that may not

occur in the form forecasted, then the claim is unripe.”37

6

7

Here, DRC’s prayer for relief seeks to have the Court declare AHS’s actions unlawful.

8 Beyond this declaratory relief, its demand is solely equitable in nature. But as to AHS, DRC’s

9 Complaint is premature because it asks the Court for remedies that are entirely dependent on the

10 County creating community-based mental health services and remedies that are beyond AHS’s

11 reach.38

12

1. As pled, the issues before this Court are not fit for adjudication because AHS

does not detain patients, nor does it have the means to provide community-

13

based programming.

14

DRC’s Complaint asserts that individuals with mental health disabilities will be exposed to

15 risk of unjustified institutionalization by Defendant AHS unless it immediately “(a) [c]ease[s] the

16 unnecessary institutionalization of DRC constituents; (b) [p]rovide[s] intensive community-based

17 services to prevent unnecessary institutionalization; and (c) [e]nsure[s] that these intensive

18 services are provided in a manner that is culturally congruent and responsive.”39 But as to AHS,

19 the Complaint states a threatened injury that may never come to pass since DRC’s concern is

20

21

35 McInnis-Misenor v. Maine Med. Ctr., 319 F.3d 63, 73 (1st Cir. 2003). 36 See Ohio Forestry Assn. v. Sierra Club, 523 U.S. 726, 118 S. Ct. 1665, 140 L. Ed. 2d 921

22

(1998) (citing to Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149, 87 S.Ct. 1507, 18 L. Ed. 2d 681 (1967); Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 537 (1st

23

Cir.1995) (“Even when the ‘legal’ emphasis of a particular claim is sufficient to mask gaps in the factual record, a court will find ripeness lacking if the anticipated events and injury as simply too

remote to justify contemporaneous adjudication”). 24 37 Ernst & Young, 45 F.3d at 537 (1st Cir.1995).
38 DRC seeks declaratory judgment that would find “a. failing to provide DRC Constituents with 25 services in the most integrated setting and needlessly institutionalizing them in a psychiatric

26

hospital or other institution or putting them at serious risk of such institutionalization; b. discriminating against DRC Constituents on the basis of disability by utilizing methods of

27

administration, adopting and applying policies, failing to make reasonable modifications to programs and policies, and engaging in practices that result in unnecessary segregation and

institutionalization or subjecting them to risk of institutionalization.” Compl. at 39, ¶ 1. 28 39 Compl. at 39, ¶ 3.

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1 based on County-provided community-based programming.

2

a. AHS does not arrest, detain, take into custody, nor institutionalize

patients.

3

4

AHS treats patients, it does not and cannot institutionalize them. It does not arrest, detain,

5 nor “take” into custody any patient. By legislative mandate and contract, its charge is limited.

6 Persons are treated at John George on an involuntary basis only if they present a danger to

7 themselves or others, or are gravely disabled. Patients are either brought to the hospital by the law

8 enforcement, the County mobile crisis team, or designated County professional.

9

DRC’s Complaint recognizes that it is the County that detains individuals for

10 commitment – “[u]nder California commitment laws, a DRC Constituent can be detained for up to

11 72 hours based on a statement by certain County staff that they have reason to believe that the

12 person, due to a mental health disability, is gravely disabled or a danger to themselves or others.”40

13 And, “the County detains vast numbers of Constituents at John George.”41 Thus, only the County

14 detains, arrests, takes into custody, and institutionalizes patients – not AHS.

15

Further, only after patients are at the hospital are AHS’s statutory obligations to administer

16 appropriate mental health care services triggered. John George staff may admit a patient in severe

17 psychiatric crisis based on their assessment.42 Once the patient is admitted to the hospital, as soon

18 as possible, in light of staffing and other patient needs, a hospital professional evaluates and

19 assesses the care appropriate for the needs of the individual.43 For some patients, his or her

20 emergency psychiatric condition may require that he or she is admitted to the hospital for up to 72

21 hours; for others, treatment may require up to 14 days of care.44 In any case, to prevent

22 inappropriate, indefinite commitments of patients, such treatment is implemented incrementally by

23 statute and patients may be discharged before the expiration of their 72-hour or 14-day care.45

24

There is no controversy as to Defendant AHS because by statute the hospital’s function is

25

40 Compl. at 17, ¶ 72.

26 41 Id. at 17, ¶ 74.

42 Cal. Welf. & Inst. Code § 5150.

27 43 Id. §§ 5150, 5152.

28

44 Id. §§ 5150, 5250. 45 Id.

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1 to treat and care for the mental health needs of patients, not to detain, arrest, take into custody, nor

2 institutionalize patients. That later is a function of the County.

3

b. AHS does not place, provide, nor fund community-based services

4

AHS does not place patients in intensive community-based services; rather, its purpose is

5 strictly to provide patients psychiatric care.46 Instead, it is the County that is responsible for the

6 administration of community-based programming. Based upon appropriate medical

7 recommendations, the hospital can discharge patients.47 Indeed, an individualized medical

8 assessment prior to discharge is an essential part of the care provided to John George patients such

9 that the Legislature codified specific procedural requirements that must be followed prior to

10 release. For instance, if a dispute arises between the psychiatrist and other professional

11 concerning whether to terminate the 72-hour treatment of a patient early, a psychiatrist must make

12 the decision.48 Discharge occurs “only if, the psychiatrist directly responsible for the person’s

13 treatment believes, as a result of his or her personal observations, that the person no longer

14 requires evaluation or treatment.”49

15

In contrast, for a patient who is not in crisis, the County through its MHP, ACBHCS,

16 provides community-based programming and sets standards for quality of the care provided by

17 these services.50 ACBHCS is responsible for ensuring that persons with mental health disabilities

18 have access to specialty mental health care services.51 The Complaint states that Defendant

19 ACBHCS is required to, and can provide the intensive community services constituents need to

20 stop unnecessary institutionalization.52 Moreover, ACBHCS designate[s] which facilit[y] to use

21 for evaluation and treatment of individuals.53 And, it is “responsible for providing mental health

22

46 Ex. A at § 1.7.

23 47 See Cal. Welf. & Inst. Code §§ 5150, 5250.

24

48 See id. § 5152. 49 Id. § 5152(a).

25

50 See Cal. Welf. & Inst. Code §§ 14684, 14718; Compl. at 15, ¶ 66 (“ACBHCS is the agency responsible for implementing Alameda County’s mental health system”).

26

51 See Cal. Code Regs., tit. 9, § 1810.405(a). 52 Compl. at 25, ¶¶ 116-117 (noting the specific services that DRC constituents need to stop

27

unnecessary institutionalization can be provided as an integrated part of the FSP model and ACBHCS is required to provide all of these services through Medi-Cal and Mental Health

Services Act). 28 53 See id. at 17, ¶ 72.

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1 treatment in County jail.”54

2

Therefore, taking the facts of the Complaint as true, any risk of unnecessary

3 institutionalization cannot be placed upon AHS because it is not responsible for placing,

4 providing, nor funding community-based programs, nor dictating that the programs provide a

5 service in a culturally congruent manner. Instead, the County does so by contracting with specific

6 service providers to ensure that residents with mental health disabilities have services available to

7 them, including emergency care, urgent care, and routine care that meets the individual’s mental

8 health needs.55

9

AHS is simply a service provider.56 AHS is an entity separate and apart from the County;

10 it is not “governed by, nor [] subject to, the charter of the county and shall not be subject to

11 policies or operational rules of the county, including, but not limited to, those relating to personnel

12 and procurement.”57 The County, in seeking to fulfill its commitment to the medically indigent,

13 special needs, and general population of its residents entered into an agreement with AHS to

14 provide psychiatric hospital services to County residents.58 And, under its Master Contract, the

15 County retains the ability to terminate the activities of AHS and expire AHS as an entity.59

16 Accordingly, only the County can provide the relief that DRC seeks. It is up to the County to fund

17 community-based services, or cut them. Moreover, the County maintains a system to monitor

18 compliance with its designated standard of care, and makes compliance required in order for a

19 provider to receive funding for its services.

20

In contrast, AHS provides necessary, individualized treatment for emergency psychiatric

21 conditions on an incremental basis and discharges patients based upon a medical assessment of the

22 particular needs of the individual. Because AHS does not institutionalize patients and cannot

23 provide community-based programs, nor can it dictate to these programs that they provide services

24

25 54 Id. at 23, ¶ 107.

26

55 See Cal. Code Regs., tit. 9, §§ 1810.205, 1810.226, 1810.305, 1810.405; Cal. Welf. & Inst. Code § 14714.

27

56 See Compl. at 15, ¶ 66. 57 Cal. Health & Safety Code § 101850(j).

58 Ex. A § 1.11.

28 59 Cal. Health & Safety Code § 181850(ak); Ex. A § 6.5.

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1 in a culturally congruent and responsive manner, there is no presently available remedy to DRC

2 based on an action that the Court could require of AHS. Therefore, the issues before this Court as

3 to Defendant AHS are not fit for adjudication.

4

2. DRC does not suffer direct hardship if its claims as to Defendant AHS are not

heard in federal court.

5

6

DRC faces no hardship if its complaint against Defendant AHS is dismissed. Hardship

7 focuses on the direct and immediate harm.60 As pled, DRC is not prevented from presenting their

8 claims in federal court, nor is it prevented from having its claims heard as to the County. If

9 appropriate, the County has the authority, conferred upon it by legislation, to grant DRC’s relief

10 sought if the Court were to find a violation of Title II of the ADA and Section 504 of the

11 Rehabilitation Act. As alleged by DRC, given that the County has not yet created the additional

12 community-based programming that DRC seeks, John George professionals cannot take the action

13 that DRC asks this Court to require.

14 B. 15

DRC Lacks Article III Associational Standing Because DRC Has Not Pled That Any DRC Constituent In His Or Her Own Right Can Claim A Risk Of Unjust Institutionalization Resulting From Any Conduct By AHS

16

DRC lacks associational standing to bring claims on behalf of its members. To have

17 associational standing, DRC must establish: (1) its members would otherwise have standing to

18 sue in their own right; (2) the interests it seeks to protect are germane to the organization’s

19 purpose; and (3) neither the claim asserted nor the relief requested requires participation of

20 individual members in the lawsuit.61

21

DRC has not pled that any of its constituents, including exemplars, have standing to sue in

22 his or her own right. Because DRC seeks injunctive-relief, it must also plead that any DRC

23 constituent risks a real threat of repeated injury that is more than conjecture.62

24

A person with a mental health disability claiming discrimination must have standing to sue

25

26

60 McInnis-Misenor , 319 F.3d at 73. 61 Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343, 97 S. Ct. 2434, 2441,

27

53 L. Ed. 2d 383 (1977); Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1110 (9th Cir. 2003) (finding that “PAMII—although relevant to the standing analysis—does not definitively answer

the question” whether an advocacy organization has standing). 28 62 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

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1 at each stage of the litigation.63 To invoke jurisdiction a DRC constituent must (1) have suffered

2 an injury-in fact, (2) the injury must be traceable to the challenged conduct, and (3) a favorable

3 decision must redress the injury.64

4

As discussed above, taking the facts of the Complaint as true, any risk of unnecessary

5 institutionalization cannot be placed upon AHS because it is not responsible for placing,

6 providing, nor funding community-based programs, nor dictating that the programs provide a

7 service in a culturally congruent manner. AHS provides necessary, individualized treatment for

8 emergency psychiatric treatment on an incremental basis and discharges patients based upon a

9 medical assessment of the particular needs of the individual. Because the County is responsible

10 for detaining individuals, funding and administering a system of care that provides Alameda

11 County residents with mental health disabilities access to community-based programs, the remedy

12 that DRC seeks can only be obtained from the County.

13

As pled, DRC’s prayer for relief leads to the result of forcing AHS to rely on the actions of

14 another entity before it can be in compliance with the Act. Here, it is up to the County to add

15 additional community-based programming so that AHS will be able to refer patients to these

16 services. If required, for example, it would be up to the County to provide care for its homeless

17 residents suffering from mental health disabilities.65 And, even if such programs are created, there

18 is no way for AHS to control whether those programs will be the “most integrated setting” for

19 individuals with disabilities. The County, not AHS, is responsible for the quality of each program

20 and to maintain a mechanism for monitoring the effectiveness of, and evaluating accessibility and

21 quality of, services available.66 Thus, at this stage, until out-of-hospital remedies are available, as

22 to AHS, DRC’s complaint is a hypothetical that is not ripe for judicial review. Therefore, DRC

23

24

25 63 See U.S. Const. art. III, § 2.

26

64 Lujan, 504 U.S. at 560-61. 65 Compl. at 29, ¶ 125 (“Recent data show that there were approximately 300 permanent

27

supported housing slots in Alameda County dedicated to people with serious mental health disabilities, even though the number of homeless adults with serious mental health disabilities in

the County is estimated to exceed 2,500”). 28 66 See Cal. Welf. & Inst. Code § 14684.

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1 does not presently have standing to bring its claim against AHS. 67

2 C. 3

DRC’s Fails To State A Claim of Disability Discrimination Upon Which Relief Can Be Granted

4

A complaint is properly dismissed per Rule 12(b)(6) if DRC “fail[s] to state a claim upon

5 which relief can be granted.”68

6

1. DRC has not alleged facts to make a regular disability accommodation claim

under the ADA or Rehabilitation Act and limits itself to an Olmstead

7

integration claim.

8

Framed as an Olmstead case, DRC’s complaint is that AHS statutorily mandated

9 emergency psychiatric care of patients with mental health disabilities is unlawful under the ADA

10 and Rehabilitation Act, and the federal laws' respective implementing regulations. But DRC’s

11 allegations are insufficient to satisfy the elements of an Olmstead integration mandate claim.

12

Section 504 of the Rehabilitation Act of 1973 makes it unlawful for any program or

13 activity that receives federal funding to discriminate against an individual solely because of his or

14 her disability.69 Similarly, Title II of the ADA forbids public entities from denying qualified

15 persons with a disability the opportunity to participate or benefit from the public entity’s services,

16 programs, or activities, or subjecting such persons to discrimination by reason of his or her

17 disability.70 The Supreme Court determined in Olmstead v. L.C. ex rel. Zimring, that the

18 unjustified institutionalization of persons with disabilities is a form of discrimination under Title II

19 of the ADA.71

20

This is not a case of discrimination in public accommodations under the ADA or the

21 Rehabilitation Act. DRC’s complaint is devoid of facts supporting a claim that DRC or its

22

23 67 A finding that DRC's claims against AHS cannot be remedied by the equitable relief it seeks

24

from the hospital, should also result in the dismissal of the state claim under Government Code sections 11135 and 11139 under which the only remedy available is equitable relief. Prescott v.

25

Rady Children's Hosp.-San Diego, 265 F. Supp. 3d 1090, 1102 (S.D. Cal. 2017) (finding in the context of the Affordable Care Act, Plaintiff’s failure to establish standing due to a failure to

26

establish future harm or how an injunction would remedy the alleged discrimination, Plaintiff cannot support a claim based on alleged discrimination under Government Code section 11135.)

68 Fed. R. Civ. P. 12(b)(6). 27 69 29 U.S.C. § 794(a).

28

70 42 U.S.C. § 12131, et seq. 71 Olmstead v. L.C. ex. rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

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1 constituents were denied participation in or benefit from government service, programs, or

2 activities because of his or her disability. Instead, DRC’s Complaint is limited to an Olmstead

3 claim of discrimination based on the alleged unjustified institutionalization of persons with

4 disabilities by a psychiatric hospital. DRC “challenges Defendants’ needless and illegal

5 segregation of adults with serious mental health disabilities into Alameda County’s psychiatric

6 institutions” as a form of discrimination under Olmstead.72

7

2. Because courts interpret the ADA and Rehabilitation Act’s integration

requirement in an identical manner, DRC’s failure to state a claim under the

8

ADA necessarily results in a failure to state a claim under the Rehabilitation

Act, and the derivative claim under state law also fails.

9

10

When viewed together, the ADA and the Rehabilitation Act impose identical integration

11 obligations upon public entities. Moreover, both mandates are similarly qualified. A public entity

12 that is otherwise required to make a reasonable modification to avoid discrimination can avoid

13 making such modifications when doing so would “fundamentally alter the nature of the service,

14 program or activity.” 73

15

As a result, courts interpret the integration mandate under the ADA and Rehabilitation Act

16 in an identical manner.74 Accordingly, should this Court find that DRC has failed to state a claim

17 of discrimination under the ADA, it must find that the same is true under Section 504 of the

18 Rehabilitation Act.

19

Similarly, DRC’s claim of discrimination under California law derives from the

20 proscription against discrimination of persons with disabilities under the ADA.75 Therefore, a

21 finding that dismissal of the Complaint is warranted because DRC has failed to state a claim for

22

23 72 Compl. at 1-4, ¶¶ 1-13; see also, Compl. at 12-15, ¶¶ 54-63.

73 28 C.F.R. § 35.130(b)(7)(i) (ADA) (requiring reasonable modifications unless fundamental

24 alteration to the public entity’s services, program, or activity results); 28 C.F.R. § 41.53

25

(Rehabilitation Act) (requiring reasonable accommodations, except if undue hardship on the operation of the public entity’s program results).

26

74 Townsend v. Quasim, 328 F.3d 511, 518 (9th Cir. 2003); Black v. Dep’t of Mental Health, 83 Cal. App. 4th 739, 749, 100 Cal. Rptr. 2d 39, 45 (2000).

27

75 Cal. Gov. Code § 11135; Bassilios v. City of Torrance, 166 F.Supp.3d 1061, 1084 (C.D. Cal. 2015) (finding Government Code section 11135 claim identical to a claim of discrimination under

28

Section 504 of the Rehabilitation Act and coextensive with Title II of the ADA such that liability based on either the Rehabilitation Act or the ADA, results in liability under Section 11135).

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1 relief under federal law, must necessarily result in dismissal of DRC’s state law claim.

2

3. DRC fails to state that AHS’s statutorily mandated patient care is not in

accordance with the prescriptions of the ADA and Rehabilitation Act.

3

4

DRC takes issue with AHS’s allegedly deficient consultation and coordination with

5 community providers, ACBHCS case managers, physicians, and others in connecting patients to

6 the community-based programming they need – which it claims does not sufficiently yet exist.76

7 This, allegedly, results in unjustified institutionalization of persons with mental health

8 disabilities – a form of unlawful discrimination under both the ADA and the Rehabilitation Act.77

9 As articulated below, how can AHS violate a statutorily mandated care of patients and patient

10 discharge practices when DRC also alleges that the County does not provide programs for AHS to

11 discharge patients?

12

DRC’s theory is that AHS violated the integration mandate under the ADA and

13 Rehabilitation Act. The ADA’s implementing regulations requires that a public entity provide

14 services to qualified individuals in the most integrated setting appropriate to the patient’s needs.78

15 In Olmstead, the Court held that a violation of the integration mandate occurs when (1) treatment

16 professionals have determined that community placement is appropriate, (2) the transfer from

17 institutional care to a less restrictive setting is not opposed by the affected individual, and (3) the

18 placement can be reasonably accommodated, taking into account the resources available to the

19 State and the needs of others with mental disabilities.79

20

DRC fails to state with sufficient particularity that Defendant AHS’s conduct violates the

21 integration mandate because community-based treatment placement is an obligation of the

22 County – not AHS. Moreover, DRC does not plead a plausible claim that AHS’s administration

23 of the hospital had a discriminatory effect because there is no alleged unlawful conduct by AHS

24 that results in AHS placing DRC constituents at risk of institutionalization.

25

By DRC’s own pleading, AHS does not place patients into community-based

26 76 Compl. at 32, ¶¶ 134-136.
27 77 Id. at 17, ¶ 71; id. at 31, ¶¶ 131-136. 78 28 C.F.R. § 35.310(d).
28 79 Olmstead, 527 U.S. 581 at 607.

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1 programming. Yet DRC conflates its allegations as to Defendant AHS with the County and

2 ACBHCS in an effort to manufacture a cause of action. DRC has alleged no facts, even as to its

3 four exemplars, that AHS is responsible for the risk of unjustified institutionalization of its

4 constituents.

5

First, with regard to Ms. Ahmad, DRC states, “Defendants did not take steps to provide

6 Ms. Ahmad with community-based crisis services, even though Ms. Ahmad would have strongly

7 preferred such care.”80 But, again, AHS does not place, provide, nor fund community-based

8 programs.

9

Second, DRC alleges that Defendants failed to connect Mr. Walter with the community-

10 based mental health services he needed.81 Two paragraphs later, DRC states that the County

11 recently assisted him in re-connecting him with a community-based program and in securing

12 housing.82 Once, again, connecting Mr. Walter to the community-based programming he needed

13 is a job for the County.

14

Third, DRC alleges that KG’s mental health symptoms have been made worse by, among

15 other reasons, “poor discharge planning from psychiatric institutions such as John George.”83

16 DRC claims that KG is homeless and lacks community services and “without access to the needed

17 intensive community services, KG is at serious risk of further unnecessary institutionalization.”84

18 Thus, as alleged, it is the County’s inability to connect KG to community-based programming

19 results in the alleged risk of unjustified institutionalization to KG, not conduct by AHS.

20

Fourth, MR was allegedly released from John George without a discharge plan.85

21 However, DRC claims MR’s lack of medical insurance and inability to access community-based

22 mental health care services resulted in her subsequent treatment at John George.86 Because the

23 hospital does not provide medical insurance, nor does it have the responsibility or means to

24

25 80 Compl. at 8, ¶ 33.

26

81 Id. at 9, ¶ 37. 82 Id.

27

83 Id. at 10, ¶ 42 84 Id.

28

85 Id. at 10, ¶ 46 86 Id.

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1 provide community-based services, once again, DRC identifies a job for the County.

2

Moreover, the ADA’s prohibition against discrimination does not require that public

3 agencies provide persons with disabilities with the opportunity to remain out of institutions.87

4 Indeed, the statute is not intended to prevent institutionalization. For some who are unable to

5 handle or benefit from community setting, a hospital may be the best care option.88 For others,

6 even though a hospital setting may be the best option, they lack access. “Any person who has

7 been homeless due to profound mental illness of years and will not accept shelter when offered is,

8 by any commonsense definition, gravely disabled. Yet the protection intended by the [gravely

9 disabled] standard is clearly not working. If it were, we wouldn’t have thousands of homeless

10 people living on the streets.”89 To fully satisfy the mental health needs of County residents

11 legislative action is required, not court intervention which risks second guessing the medical

12 assessments of hospital medical professionals.90

13

As pled, DRC cannot make an Olmstead claim against AHS and its claim must be

14 dismissed.

15 D. 16

DRC’s Allegations Of Racial Disparities In Treatment, And COVID-19 Risk Of Infection Are Immaterial And Impertinent, And Must Be Stricken

17

Rule 12(f) of the Federal Rules of Civil Procedure provides that the “court may strike from

18 a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

19 matter.”91 A Rule 12(f) motion serves to avoid spending time and money on "litigating spurious

20 issues by dispensing with those issues before trial."92

21

DRC raises several allegation concerning the disproportionate number of Black patients

22

23 87 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) (finding that the Supreme Court’s

24

decision in Olmstead only requires adherence to the ADA’s nondiscrimination requirement as to the services a public entity actually provides).

25

88 See, Olmstead, 527 U.S. at 601-602. 89 Jonathan Sherin and Darrell Steinberg, Op-Ed: Mentally ill people in desperate need of

26

treatment often don’t get it because of an antiquated law, Los Angeles Times, (Aug. 20, 2020), https://www.latimes.com/opinion/story/2020-08-20/op-ed-mentally-ill-people-often-dont-get-

treatment-because-of-antiquated-law. 27 90 See id.

91 Fed R. Civ. P. 12(f). 28 92 Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

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1 treated at the hospital and increased risk of COVID-19 infection at the hospital. However, these

2 are immaterial to the Court’s determination of liability on a discrimination action based in unjust

3 institutionalization. DRC’s inclusion of such facts serve to detract from the issues before the

4 Court, and inflame and capitalize on the current political and social climate. Accordingly, this

5 Court should strike such allegations as immaterial and impertinent.

6

VII. CONCLUSION

7

DRC asks the Court to declare that AHS is in violation of public accommodation laws

8 under Olmstead for failing to coordinate the release of patients to community-based programming

9 that does not exist. Next, DRC asks the Court to order AHS to coordinate with the County on the

10 programming that the County controls and does not exist. While it may ask that the County

11 increase its programming, DRC cannot ask this Court to find that AHS is failing to release patients

12 to programs that do not exist. Requiring AHS to coordinate or refer patients to services not yet

13 available is premature. Moreover, this Court should not be placed in the position of second

14 guessing the medical assessments of medical professionals that would in essence cede hospital

15 operations to DRC and the Court.

16

For these reasons, Defendant AHS asks this Court to grant this motion to dismiss DRC’s

17 complaint against AHS in its entirety.

18 DATED: October 13, 2020

HANSON BRIDGETT LLP

19

20

By:

/s/ Gymmel M. Trembly

21

KURT A. FRANKLIN

GYMMEL M. TREMBLY

22

Attorneys for Defendant

23

ALAMEDA HEALTH SYSTEM

24

25

26

27

28

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1 HANSON BRIDGETT LLP KURT A. FRANKLIN, SBN 172715
2 kfranklin@hansonbridgett.com GYMMEL M. TREMBLY, SBN 327236
3 gtrembly@hansonbridgett.com 425 Market Street, 26th Floor
4 San Francisco, California 94105 Telephone: (415) 777-3200
5 Facsimile: (415) 541-9366

6 Attorneys for Defendant ALAMEDA HEALTH SYSTEM
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

10

11 DISABILITY RIGHTS CALIFORNIA, a California nonprofit corporation,
12 Plaintiff,
13 v.
14 COUNTY OF ALAMEDA; ALAMEDA
15 COUNTY BEHAVIORAL HEALTH CARE SERVICES; and ALAMEDA HEALTH
16 SYSTEM,

17

Defendants.

18

Case No. 20-cv-05256 JCS

DECLARATION OF GYMMEL TREMBLY IN SUPPORT OF IN SUPPORT OF DEFENDANT ALAMEDA HEALTH SYSTEM’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND MOTION TO STRIKE

Judge: Date: Time: Ctrm.:

Hon. Joseph C. Spero November 20, 2020 9:30 a.m. F – 15th Floor

19

I, Gymmel M. Trembly, declare as follows:

20

1. I am an attorney duly admitted to practice before this Court. I am an associate with

21 Hanson Bridgett LLP, attorneys of record for Defendant ALAMEDA HEALTH SYSTEM

22 ("AHS"). I have personal knowledge of the facts set forth herein, except as to those stated on

23 information and belief and, as to those, I am informed and believe them to be true. If called as a

24 witness, I could and would competently testify to the matters stated herein.

25

2. Defendant AHS provided my firm with the Master Contract Between County of

26 Alameda and Alameda County Medical Center, executed June 23, 1998 as amended November 28,

27 2000, a copy of which is attached to Defendant AHS's Request for Judicial Notice as Exhibit A.

28 / / /

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16848961.1

1

3. Defendant AHS provided my firm with the Master Contract Between County of

2 Alameda and Alameda County Medical Center, executed June 23, 1998, a copy of which is

3 attached to Defendant AHS's Request for Judicial Notice as Exhibit B.

4

4. Defendant AHS provided my firm with the County Service Agreement Between

5 Alameda County Medical Center and County of Alameda, executed June 23, 1998 as amended

6 November 28, 2000, a copy of which is attached to Defendant AHS's Request for Judicial Notice

7 as Exhibit C.

8

5. My firm caused AHS's enabling legislation, State of California Health and Safety

9 Code section 101850, to be downloaded from the California Legislative Information's website, a

10 true and correct copy of which is attached to Defendant AHS's Request for Judicial Notice as

11 Exhibit D.

12

6. Defendant AHS provided my firm with the First Amendment to Agreement

13 between Alameda Health System and Alameda County, executed September 13, 2018, a copy of

14 which is attached to Defendant AHS's Request for Judicial Notice as Exhibit E.

15

7. My firm caused the Alameda County Behavioral Health Policy & Procedure:

16 Adult and Older Adult System of Care Coordination Medi-Cal Specialty Mental Health Service;

17 Policy No. 100-2-5; original approval December 16, 2019, to be downloaded from the Alameda

18 County Behavioral Health Care Services' website, a copy of which is attached to Defendant AHS's

19 Request for Judicial Notice as Exhibit F.

20

8. My firm caused the Alameda County Behavioral Health Policy & Procedure:

21 Adult and Older Adult Specialty Mental Health Consumer Care Transitions; Policy 100-2-6,

22 original approval December 16, 2019 to be downloaded from the Alameda County Behavioral

23 Health Care Services' website, a copy of which is attached to Defendant AHS's Request for

24 Judicial Notice as Exhibit G.

25

9. My firm caused the Alameda County Behavioral Health Out of Network Access

26 and Continuity of Care For Medi-Cal Specialty Mental Health Services and Substance Use

27 Disorder Services; Policy No. 100-2-1 originally approved January 24, 2020, to be downloaded

28 / / /

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16848961.1

1 from the Alameda County Behavioral Health Care Services' website, a copy of which is attached

2 to Defendant AHS's Request for Judicial Notice as Exhibit H.

3

10. My firm caused the Alameda County Behavioral Health Policy & Procedure:

4 Authorization of Specialty Mental Health Services, Policy No. 200-2, to be downloaded from the

5 Alameda County Behavioral Health Care Services' website, a copy of which is attached to

6 Defendant AHS's Request for Judicial Notice as Exhibit I.

7

11. On October 7, 2020, I, along with Kurt Franklin, attorneys for AHS, conferred by

8 telephone with Plaintiff DISABILITY RIGHTS CALIFORNIA ("DRC"). During this

9 conversation, counsel for AHS informed DRC that AHS planned to file its Federal Rule of Civil

10 Procedure, Rule 12(b) Motion to Dismiss Plaintiff's Complaint this Tuesday, October 13, 2020.

11 Plaintiff DRC took note of the date and raised no issues as to Defendant AHS's anticipated motion.

12

I declare under penalty of perjury under the laws of the United States of America that the

13 foregoing is true and correct.

14

Executed on this 13th day of October, 2020, at Cotati, California.

15

16

/s/ Gymmel M. Trembly

Gymmel M. Trembly

17

18

19

20

21

22

23

24

25

26

27

28

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Case No. 20-cv-05256 JCS

DECLARATION OF GYMMEL TREMBLY ISO DEFENDANT ALAMEDA HEALTH SYSTEM’S

MOTION TO DISMISS PLAINTIFF’S COMPLAINT AND MOTION TO STRIKE

Case 3:20-cv-05256-CRB Document 17-3 Filed 10/13/20 Page 1 of 2

1 HANSON BRIDGETT LLP KURT A. FRANKLIN, SBN 172715
2 kfranklin@hansonbridgett.com GYMMEL M. TREMBLY, SBN 327236
3 gtrembly@hansonbridgett.com 425 Market Street, 26th Floor
4 San Francisco, California 94105 Telephone: (415) 777-3200
5 Facsimile: (415) 541-9366

6 Attorneys for Defendant ALAMEDA HEALTH SYSTEM
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

10

11 DISABILITY RIGHTS CALIFORNIA, a California nonprofit corporation,
12

13

Plaintiff,

14

v.

15 COUNTY OF ALAMEDA; ALAMEDA

16

COUNTY BEHAVIORAL HEALTH CARE SERVICES; and ALAMEDA HEALTH

17 SYSTEM,

18

Defendants.

Case No. 20-cv-05256 JCS

[PROPOSED] ORDER GRANTING DEFENDANT ALAMEDA HEALTH SYSTEM'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT AND MOTION TO STRIKE

Judge: Date: Time: Ctrm.:

Hon. Joseph C. Spero November 20, 2020 9:30 a.m. F – 15th Floor

19

20

21

22

23

24

25

26

27

28
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16849327.1

1

The Court, having considered Defendant ALAMEDA HEALTH SYSTEMS' ("AHS")

2 Motion to Dismiss under Federal Rules of Civil Procedure, Rule 12(b)(1) for lack of jurisdiction,

3 12(b)(6) for failure to state a claim upon which relief can be granted, and Motion to Strike certain

4 allegations of Plaintiff DISABILITY RIGHTS CALIFORNIA's ("DRC") complaint under Federal

5 Rule of Civil Procedure, Rule 12(f), dated October 13, 2020, all supporting or opposing papers in

6 connection with the motion, the pleadings and papers of record herein, arguments, and any

7 additional matters presented to the Court:

8

IT IS HEREBY ORDERED that the Defendant AHS's Motion to Dismiss (Fed. R. Civ.

9 Proc. 12(b)(1) and Fed. R. Civ. Proc. 12(b)(6)), is GRANTED.

10

Because Plaintiff DRC's complaint is hereby dismissed, the Court considers Defendant

11 AHS's Motion to Strike certain allegations under Rule 12(f) of the Federal Rules of Civil

12 Procedure to be moot as to the current complaint. Having found that the allegations concerning

13 the disproportionate number of Black patients treated at the hospital and increased risk of

14 COVID-19 infection at the hospital are immaterial to the determination of liability on a

15 discrimination action based on Olmstead claim of unjustified institutionalization against

16 Defendant AHS, Plaintiff DRC may not include such facts in a first amended complaint, should it

17 choose to file one.

18

Plaintiff DRC's complaint against Defendant AHS is hereby dismissed.

19

IT IS SO ORDERED.

20

21 DATED: __________________, 2020

22

23

THE HONORABLE JOSEPH C. SPERO

24

United States Magistrate Judge

25

26

27

28

-2-

Case No. 20-cv-05256 JCS

[PROPOSED] ORDER GRANTING DEFENDANT ALAMEDA HEALTH SYSTEM'S MOTION TO DISMISS

PLAINTIFF'S COMPLAINT AND MOTION TO STRIKE